Thursday, January 18, 2018

Unpublished decisions

U.S. v. Kieffer, 702 F. App'x 734 (7/27/17) (Col.) (unpub'd) - Supervised release conditions, Rule 36 victory for the defense. The 10th previously vacated the district court's restitution order due to lack of proof. On remand, the district court not only eliminated restitution from the judgment, it also took out 7 special financial supervised release conditions, putting "None *" in their place. The judgment said "changes identified with asterisks." Nine months later the district court added back the 7 deleted conditions, saying it was doing so pursuant to Rule 36. The 10th decides the district court deliberately deleted the conditions because: it didn't just leave the space for conditions blank, but added "None" with an asterisk; and it made a certain amount of sense to take out the financial conditions because they were sort of related to the restitution that had been eliminated [this was true even though Mr. Kieffer never objected to those conditions]. Since the deletion was a substantive intentional change, not inadvertent, it was not a clerical error that could be rectified under Rule 36. The 10th rejected the government contention that the conditions were valid because they were orally announced at an earlier sentencing. The condition deletion took place long after that hearing and was in response to the 10th's remand, not the earlier sentencing, the 10th reasons. So the 10th orders the conditions stricken.
Judge Bacharach dissents. He believes it wasn't clear whether the conditions deletion was intentional. So, when the district court decided to add them under Rule 36, the 10th should defer to the district court's implicit determination that the deletion was an inadvertent clerical mistake.

U.S. v. Garcia-Damon, 702 F. App'x 743 (7/28/17) (N.M.) (unpub'd) - The 10th rejects procedural sentencing objections as well as Mr. Garcia's substantive reasonableness argument. Defense counsel argued the 46-month, bottom of the guideline range, sentence was unduly harsh because, under subsequently amended guidelines, Mr. Garcia's guideline range would have been 10-16, not 46-57, months. The 10th admits it finds this argument "sympathetic." The 10th, however, finds no authority to overturn the sentence solely based on the new amendments. It notes 10th precedent, Vasquez-Alcarez, 647 F.3d 973, 979 (2011), denying such a request, and an unpublished decision rejecting the argument on the grounds that otherwise the Sentencing Commission's prerogative to find an amendment non-retroactive would be undermined.