Wednesday, August 16, 2017

Neighbors can sue Colorado marijuana operation

Safe Streets Alliance v. Hickenlooper, 859 F.3d 865 (6/7/17) (Col.) (Published) - The 10th gives the go ahead for the land-owning neighbors of a marijuana-growing operation to sue the operation and its affiliates. But the 10th shuts down other attackers of Colorado's recreational marijuana law. The landowners' allegations establish a cause of action under RICO's citizen suit provisions. The marijuana growing operation and its affiliates that get the marijuana to consumers could be considered a conspiracy in violation of the federal Controlled Substances Act. And the neighbors alleged enough injuries due to the interference with their enjoyment of their property and the diminution of their property's value from being near those odors and near an ongoing criminal enterprise. The 10th cautions that this doesn't mean every private citizen, or even every citizen tangentially injured, can sue a marijuana-related enterprise under RICO. Nothing else serves a basis for relief for the neighbors, sheriffs, the Safe Streets Alliance or neighboring states. There is no right to sue based on the Supremacy Clause or the Controlled Substances Act. And the states are out of luck because the Supreme Court is the only place for litigation between states.

Useful case discussing minor role reduction, but ultimately nothing for the defendant

U.S. v. Moreno, 2017 WL 2651702 (6/20/17) (Kan.) (unpub'd) - An important discussion about minor role without helping Mr. Moreno any. The 10th notes that Amendment 794's changes to § 3B1.2 were intended to correct what the Sentencing Commission thought was sentencing courts' too sparing use of the minor role adjustment. The Commission, the 10th says, resolved a circuit split by deciding the focus should be on the defendant's role in the particular criminal activity, and not compare the defendant's role to the average participant in other similar crimes. The 10th refuses to apply the new amendment to Mr. Moreno's case, although the amendment came into effect while his appeal was pending. The 10th finds the change to be substantive, rather than clarifying [which would justify applying the change], at least in this circuit, because the change overruled the 10th's precedent. This determination conflicts with at least 4 circuits' rulings. The district court's role findings were "terse, but adequate." The record supported the rejection of Mr. Moreno's minor role request, even though he was a courier. His role was less than the "big boys," but more than the little fish. He conversed with the head guy, knew a lot about the operation and was allowed to carry significant drug quantities a long distance.

Lack of factual basis for guilty plea is plain error

U.S. v. Carillo, 860 F.3d 1293 (6/23/17) (N.M.) (Published) - The 10th finds plain error in the magistrate judge's failure to establish a factual basis for Mr. Carillo's 100-gram-heroin-conspiracy guilty plea. The 10th finds nowhere in the record [not in the indictment, plea hearing or PSR] support for inferring the involvement of 100 grams of heroin was foreseeable to Mr. Carillo or that Mr. Carillo's single purchase of 50 grams was an act intended to further the aims of the larger conspiracy. The plea hearing plainly violated Fed. R. Crim. P. 11(b)(3)'s factual basis requirement. To establish the third substantial-rights plain error prong for an 11(b)(3) violation, as opposed to other Rule 11 violations, the defendant need not prove he would have pleaded guilty absent the error. He just has to show there is no factual support anywhere in the record. Reversal required here. Similarly, the 10th notes Rule 11(b)(1)(G) was violated because no one identified all the offense's elements at the plea hearing. The 10th says it has serious doubts whether the presumption that counsel informed the defendant of the elements applies in this case where there is nothing in the record to corroborate the presumption. But it refuses to decide the issue. The 10th refuses to grant relief for the misstatement of the mandatory minimum at the plea hearing. Mr. Carillo had other sources for that information and apparently the plea negotiations centered around trying to avoid the mandatory minimum. Back to district court for Mr. Carillo where apparently there is no evidence of the charge he pleaded guilty to.

Wednesday, August 09, 2017

Divided Panel Grants Partial Relief to Capital Habeas Petitioner

Pavatt v. Royal, 859 F.3d 920 (6/9/17) (Okl.) (Published) - The 10th affirms the murder conviction but overturns the Oklahoma jury's finding that the murder was especially heinous, atrocious or cruel ("HAC") and so imposed the death penalty. First the good news. A divided 10th (Judges Hartz & Kelly) holds the Oklahoma Criminal Court of Appeals ("OCCA") issued an adjudication contrary to clearly established federal law under the stringent AEDPA standard when it held the state presented sufficient evidence that the murder was HAC. The 10th finds that evidence the shooting victim may have endured a bit of conscious physical suffering before dying was not enough to distinguish the case from many other murders where the victim didn't die instantly. The cruel & unusual punishment clause requires much more channelling of the jury's discretion so it would not be so related to chance. The OCCA acted contrary to constitutional law because it only addressed whether the evidence matched the state standard, (which the 10th indicates has been slipping away from S. Ct. precedent), and ignored the stiffer, anti-arbitrariness, narrowing constitutional standard. The 10th left it to the district court to decide what relief should be granted where the jury also found an unchallenged aggravating circumstance. Judge Briscoe dissents. She feels Mr. Pavatt procedurally defaulted the claim. Perhaps helpfully for our Johnson cases, the majority refuses to consider the procedural issue, because the state didn't raise it on appeal. Judge Briscoe also thinks the OCCA did consider the constitutional standard and it was enough to combat arbitrariness that the victim may have suffered for several minutes before dying. On the helpful side, Judge Briscoe thinks Hurst v. Fla. 136 S. Ct. 616 (2016), requires resentencing by a jury, and prohibits reweighing by the OCCA.

As for the conviction, the 10th says Mr. Pavatt did not preserve two of his ineffective-assistance-of-counsel ("IA"")issues in federal district court. For one of those issues he only mentioned it in one sentence buried under a heading that didn't mention the issue. For the third IA issue, Mr. Pavatt couldn't prove enough prejudice regarding failure to object to admission of photographs of the deceased before his death.

Civil Rights Plaintiff Loses on Religious Freedom Argument

Sause v. Bauer, 859 F.3d 1270 (6/20/17) (Kan.) (Published) - The § 1983 civil rights plaintiff only raised the religious freedom argument. Judge Tymkovich opines that, if the plaintiff had raised a 4th Amendment argument, he would have found a constitutional violation. He finds the allegations, if true, that officers prolonged the encounter beyond the time needed to complete the officers' objective and their actions were not reasonably related to a legitimate objective. The officers went to Ms. Sause's home due to a noise complaint; at first Ms. Sause denied entry; later she let the officers in; the officers asked angrily why she hadn't let them in at first; she responded by showing them a copy of the constitution she had on display by her front door; "the Bill of rights are just a piece of paper, that doesn't work here," an officer responded; the officers threatened that their encounter would be on COPS; they told her to get ready because she was going to jail and her bond would be $2,000; she started praying; they demanded that she stop and then said: "you need to move back to where you came from"; an officer flipped through a booklet searching for a violation to charge Ms. Sause with, suggesting the officers weren't proceeding under the noise ordinance; they issued tickets for interference with law enforcement and disorderly conduct for not answering the door at first; and 3 or 4 times they asked her to show them any tattoos or scars she had, including scars on her chest from a double mastectomy. If true, the judge summed up, the officers "acted with extraordinary contempt of a law abiding citizen."

Modified Categorical Approach Applies to California Drug Statute

U.S. v. Rogers, 2017 WL 2557130 (6/13/17) (Okl.) (unpub'd) - A bad Mathis/controlled-substances-offense decision. Following a 9th Circuit case, the 10th holds California's drug statute, Cal. Health & Safety Code § 11378, is divisible by the type of controlled substance. California law treats the type of controlled substance as a separate element, the 10th says. So a sentencing court would use the modified categorical approach to decide what type of controlled substance the defendant was accused of distributing. In this case, the defendant's methamphetamine offense was a "controlled substance offense" under the career-offender guidelines because methamphetamine is illegal under the federal Controlled Substances Act. If the statute was not divisible, then the fact that California criminalizes some drugs that the feds don't would doom any claim that a California drug offense was a career-offender predicate.