Collateral-Attack Waiver Does Not Bar Johnson 2255 Motion; NM Offense of Shooting at or from a Motor Vehicle with Reckless Disregard Is a Violent Felony

United States v. Pam, 2017 WL 3481853 (August 15, 2017)(Published, NM): The panel finds that a Rule 11(c)(1)(C) plea agreement to an ACCA mandated sentence which contained a waiver of collateral attack does not prevent it from considering the merits of Pam’s Johnsonbased 28 U.S.C. § 2255 petition. However, when it does, it rules that New Mexico’s shooting at or from a vehicle with reckless disregard of another has as an element the use, attempted use or threatened use of physical force and therefore is a violent felony.

The district court dismissed Pam’s petition because his sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement, not the ACCA, so Johnsondid not apply. The panel disagreed. Using as a guide, Freeman v. United States, 564 U.S. 522 (2011), it wrote that the agreement explicitly used the ACCA to establish the agreed upon 180 month sentence (statutory 120 month maximum became a minimum of 180 months because the ACCA applied). Thus, the binding nature of the agreement did not prevent the panel from evaluating whether Johnson impacted the constitutionality of Pam’s sentence.

The district court also found that the agreement’s collateral attack waiver was enforceable and barred Pam from bringing a Johnson based § 2255 petition. Again, the panel disagreed. It said that Pam agreed to waive a collateral attack only on his “conviction(s).” The waiver did not limit or waive his rights to collaterally challenge his sentence. Because Pam’s petition challenged the constitutionality of his sentence after Johnson, it does not come within the waiver provision.

Analyzing the merits of Pam’s petition, the panel first decides that New Mexico’s shooting at or from a motor vehicle (NMSA 30-3-8(B)) is divisible. This is because the felony levels increase (4th to 2d degree) with the severity of harm and the varying harm caused is an element which distinguishes each degree. Shooting at or from a motor vehicle requires proof that the accused “willfully discharged a firearm . . . with reckless disregard for the person of another.” After United States v. Hammons, 2017 WL 2884044 (10th Cir. July 7, 2017), the panel said that a statute which requires proof only that the accused acted willfully and with reckless disregard for the risk posed to another person will categorically involve the use of physical force. New Mexico case law demonstrates that the statute was intended to protect against threats to personal safety rather than threats to property. Ultimately, the statute’s ostensibly broad language is limited to "situations involving the willful discharge of a firearm by an accused coupled with knowledge that in doing so he is creating a substantial and foreseeable risk to the safety and welfare of the person of another." By circumscribing the statute’s elements in this way, the panel was able to find New Mexico’s drive by shooting statute a violent felony.

Note: A holding that an offense with a mens rea of "reckless disregard" nonetheless can be construed as having an element of intentional use of physical force would seem to be contrary to numerous cases holding that crimes that can be committed with a reckless mens rea do not have an element of intentional use of force.

Mere Possibility Someone Else Might Be Present Does Not Justify A Protective Sweep of Residence

US v. Nelson, --- F.3d ---, 2017 WL 3526570 (10th Cir. August 17, 2017): Almost a win for the defendant. The Tenth Circuit reverses the district court's denial of the defendant's motion to suppress. Defendant was visiting his girlfriend at her parents' house when the girlfriend's father called deputies to tell them defendant was there, as the deputies had previously asked the father to do so. When the father called, he told the officers defendant was at the residence and the marshals could "go inside and search" for defendant. When the officers arrived, the girlfriend answered the door. She said defendant was upstairs and she would get him, and then tried to shut the door. One deputy stopped her from doing so, and they entered the residence, which had four levels. As it happened, the defendant was not upstairs, but in the subbasement. One deputy saw movement there and told the unidentified person to come out. Defendant came out and was taken into custody on the next level. A deputy then went to the subbasement and searched it, where he found two guns under a pile of clothes on a bed. The girlfriend and her parents all denied ownership of the guns, so defendant was charged with felon in possession of them. Defendant moved to suppress the guns, on the grounds that the Fourth Amendment was violated because the deputies continued to search the residence after arresting him. The government made two arguments in response: 1) The owner of the house, the girlfriend's father, consented to the search, and 2) the search was a lawful protective sweep under Maryland v. Buie, 494 U.S. 325 (1990). The district court bought the second argument , reasoning that the facts surrounding Nelson's arrest supported a reasonable belief that someone else was in the home who might pose a danger. The district court didn't address the first argument.

On appeal, the 10th Circuit holds that the search was not a lawful protective sweep. The facts relied on by the district court -- that the girlfriend attempted to shut the door on the deputies, that she incorrectly told the deputies defendant was upstairs when he was actually downstairs, and that defendant failed to immediately show himself -- "don't create an inference that someone other than [defendant] was hiding in the house, whether ... taken separately or together." The Court noted that the government did not try to explain how the facts created the necessary inference, instead arguing that the deputies had no way of knowing if anyone else was there. But that isn't enough, the Court says. There might always be somebody else present. That mere possibility does not justify a protective sweep.

The government pointed to two additional facts, but the Court was not impressed. The Court rejects the government's attempt to rely on the finding that one deputy "noticed shadows moving at the bottom of the stairs" in the subbasement because the government did not explain the significance of this putative fact. The government also pointed to the girlfriend's statement that her cousin was also in the house. The Court says that is the type of information that might support the search. Unfortunately, the government conceded the deputy didn't learn about this fact until after the search, and thus it can't justify the search.

The government also made two more arguments to support the search. First, the government contended that the search was appropriate because, under Buie, officers could look into areas immediately adjoining the place of arrest from which an attack could be launched., The panel is not impressed because the government did not make this specific argument below. Moreover, even though the Court can affirm on alternative grounds, here the record is insufficiently developed to allow it to do so. For the same reasons, the Court declines to consider the government's argument based on the good faith exception to the exclusionary rule.

However, the defendant is not home free. The Court remands the case to the district court to determine the scope of the father's consent to enter and search the house.

Interestingly, in footnote 5, the panel noted testimony at the hearing that the Marshals had a "blanket safety rule" that whenever they entered a residence to make an arrest, they would "check everywhere that a body could be." The Court was somewhat disturbed by this, saying: "We note that if, as Nelson suggests, the United States Marshals Service for the District of Kansas maintains a practice that systemically ignores the framework set forth in Buie, such a practice would be troubling."

OK Assault and Battery with a Deadly Weapon is a Violent Felony

US v. Burtons, --- Fed.Appx. ---, 2017 WL 3531399 (10th Cir. Aug. 17, 2017) (unpublished): The Court affirms denial of Petitioner's 2255 motion. An Oklahoma conviction for assault and battery with a deadly weapon is a violent felony for purposes of ACCA under the elements clause of 18 U.S.C. § 924(e)(2)(B)(i). However, there is something potentially useful here: The Court considers the petitioner's argument based on Mathis v. United States regarding the divisibilty of the Oklahoma statute even though it was not raised until the reply brief, largely because Mathis was not decided until after the opening brief as filed. Unfortunately, the Court then concludes that the Oklahoma statute is divisible, the district court correctly applied the modified categorical approach, and the alternative under which the defendant was convicted, assault and battery with a deadly weapon under Okla. Stat. Ann. tit. 21, § 652(C) (1994), has an element of use, attempted use, or threatened use of force.

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.

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.