Unpublished Decisions
U.S. Yazzie, 704 F. App'x 767 (8/9/17) (N.M.) (unpub'd) - The 10th rejects the contention that the aggravated assault guideline, ยง 2A2.2 USSG, over-punishes offenses, such as Mr. Yazzies's, where the defendant commits assault by driving drunk and hurts people in a crash. The 10th doesn't find it troubling that Mr. Yazzie's guideline wouldn't be much worse if the people he hit died. Nor is the 10th convinced the Commission established the assault guidelines based on intentional assault, not assault through reckless driving. On the bright side, the 10th does say: "We do not foreclose the district court, in another case from choosing to impose a below-guideline sentence based on similar disproportionality arguments."
U.S. v. Zander, 705 F. App'x 707 (Utah) (unpub'd) - The 10th finds a number of sentencing errors. Most significantly, the district court violated Fed. R. Crim. P. 43(a)(3) when the defendant appeared by video rather than in person. The decision doesn't say if Mr. Zander consented or objected to the video hearing. The government conceded error. The 10th says its prior remand didn't limit the district court on what it could consider on the restitution issue. So the district court was wrong to think it did not have discretion to consider that some of the checks Mr. Zander received from the feds were for work actually performed and other checks to Mr. Zander's fake companies had nothing to do with federal grants.
U.S. v. Ivory, 708 F. App'x 449 (8/8/17) (Kan.) (unpub'd) - The district court in this case committed plain error warranting reversal when it imposed a mandatory-minimum 20-year prison term without a jury finding that at least 280 grams of crack cocaine were within the scope of Mr. Ivory's particular agreement or reasonably foreseeable to him. The district court also committed plain error when it relied on the PSR's drug-quantity findings where the PSR didn't cite anything suggesting that the quantities attributed to a co-defendant were within the scope of Mr. Ivory's conspiracy agreement.
U.S. v. Banks, 706 F. App'x 455 (8/8/17) (Kan.) (unpub'd) - The 10th says the district court erred because on resentencing it didn't make any findings upon which to base the leader/organizer enhancement. The 10th says the court's duty in this regard is "not onerous." Here the court vacated all its prior role findings and didn't replace them with new ones.
U.S. v. Zander, 705 F. App'x 707 (Utah) (unpub'd) - The 10th finds a number of sentencing errors. Most significantly, the district court violated Fed. R. Crim. P. 43(a)(3) when the defendant appeared by video rather than in person. The decision doesn't say if Mr. Zander consented or objected to the video hearing. The government conceded error. The 10th says its prior remand didn't limit the district court on what it could consider on the restitution issue. So the district court was wrong to think it did not have discretion to consider that some of the checks Mr. Zander received from the feds were for work actually performed and other checks to Mr. Zander's fake companies had nothing to do with federal grants.
U.S. v. Ivory, 708 F. App'x 449 (8/8/17) (Kan.) (unpub'd) - The district court in this case committed plain error warranting reversal when it imposed a mandatory-minimum 20-year prison term without a jury finding that at least 280 grams of crack cocaine were within the scope of Mr. Ivory's particular agreement or reasonably foreseeable to him. The district court also committed plain error when it relied on the PSR's drug-quantity findings where the PSR didn't cite anything suggesting that the quantities attributed to a co-defendant were within the scope of Mr. Ivory's conspiracy agreement.
U.S. v. Banks, 706 F. App'x 455 (8/8/17) (Kan.) (unpub'd) - The 10th says the district court erred because on resentencing it didn't make any findings upon which to base the leader/organizer enhancement. The 10th says the court's duty in this regard is "not onerous." Here the court vacated all its prior role findings and didn't replace them with new ones.
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