Replacement Cost An Appropriate Measure for Restitution

United States v. Howard, 887 F.3d 1072 (10th Cir. 2018) (OK): The panel addressed whether the district court correctly used the replacement cost as the restitution value and correctly determined the value of the returned property to be zero. The panel holds that depending on the factual circumstances, different measures of value may be appropriate, such as fair market value, replacement cost, foreclosure price or cost to the aggrieved. Sometimes, there may be multiple measures of value. Regardless, in every case, the ‘controlling metric’ for a restitution award is actual loss suffered. Here, the facts show that replacement cost was the correct measure of value. Although the value of the property, if returned, can offset the restitution amount, the accused has the burden of persuasion ’s with regard to any offset value. That burden can be rather exacting: because Howard did not calculate the expenses that would have been incurred to refurbish and sell the parts of the returned machine, his evidence of the general prices of refurbished parts was insufficient to meet his burden. The court did not abuse its discretion in finding the returned machine had no value to its owner.

Defendant Has Burden of Proving Inability to Pay Fine

United States v. Sanchez-Urias, 887 F.3d 1069 (10th Cir. 2018) (CO): When an accused argues that he is unable to afford a fine, it is his burden to show that he lacked the assets to pay the fine. Since Sanchez refused to provide financial information at his presentence interview and other evidence in the record showed he had some financial wherewithal, the panel finds the district court did not err in finding that Sanchez had not established his inability to pay.

Burglary Conviction Qualified as Generic Burglary, Precluding 2255 Relief

United States v. Murphy, 887 F.3d 1064 (10th Cir. 2018) (WY): Murphy filed a second 28 U.S.C. § 2255 motion to vacate his sentence in light of Johnson II. The panel holds that a second or successive § 2255 motion must satisfy two criteria before its merits can be considered: (1) a prima facie showing to the appellate court that the motion satisfies the requirements of § 2255(h), defined as “a sufficient showing of possible merit to warrant a fuller exploration by the district court,” and (2) a determination by the district court that the petition does, in fact, satisfy those requirements. Murphy’s motion did not satisfy these requirements. The district court found his prior burglary conviction met the definition of generic burglary and thus was a violent felony under the ACCA’s enumerated offense clause. The ACCA’s now defunct residual clause played no role in that decision.

Federal Bank Robbery Is Categorically a Crime of Violence, Panel Holds

United States v. McCranie, 2018 WL 205009 (10th Cir. May 3, 2018) (Colo.) Mr. McCranie’s conviction for federal bank robbery under 18 U.S.C. § 2113(a) qualified as a “crime of violence” under the career offender sentencing guideline, U.S.S.G. § 4B1.2(a)(1). The guideline states:, “[t]he term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another . . . .” The relevant portion of the federal bank robbery statute requires a taking, or attempted taking, of property “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a). Because “intimidation” captures the least culpable conduct supporting federal bank robbery, for that offense to categorically be a crime of violence under § 4B1.2(a)(1), bank robbery by intimidation must require the threatened use of physical force. The panel relied on cases and Tenth Circuit Pattern Jury Instruction No. 277 to conclude that “every definition of intimidation requires a purposeful act that instills objectively reasonable fear (or expectation) of force or bodily injury.” As a result, intimidation qualifies as a threatened use of physical force against the person of another and Mr. McCranie’s conviction for federal bank robbery categorically qualified as crimes of violence.

Successive 2255 Movant's Johnson Claim Rejected

United States v. Washington, 2018 WL 2208475 (May 15, 2018) (OK): The panel reviews whether the district court relied on the ACCA’s residual clause to find that Washington’s prior convictions were violent felonies. Because this was Washington’s second habeas petition, he had to establish his claim by a preponderance of the evidence. The panel found he was unable to meet that burden because (1) his Oklahoma second degree burglary conviction involving entering a building fell within Taylor’s definition of generic burglary and thus was a violent felony as defined in the enumerated offense clause; and (2) United States v. Herron, 432 F.3d 1127 (10th Cir. 2005), and United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010), would have supported the district court’s decision to consider his Oklahoma juvenile adjudication for pointing a weapon under the elements clause.

Panel affirms denial of motion to suppress based on pat-down search; dissent makes good points

United States v. Hammond, 2018 WL 2208523 (May 15, 2018) (CO): This decision is notable for its dissent which is detailed below. The panel was asked to decide whether police officers, who frisked Hammond for weapons, had reasonable suspicion to believe that he was armed and dangerous. It holds it is reasonable for officers to “perform a brief, non-invasive search to ensure their own safety and that of the surrounding community” when the person searched is a (1) known gang member (2) who was a suspect in a prior weapons possession case and who had (3) recently been arrested in connection with another weapons case, is pulled over (4) while riding in a car that had previously been seized in connection with the individual’s prior arrest, (5) while wearing colors which loudly display his affiliation with a gang involved in an ongoing feud. The panel noted that a criminal record, let alone arrests or suspected gang affiliation, is not sufficient to create reasonable suspicion of anything. The circumstances of the stop “must interact” with these other factors before they become “critically relevant” to the Terry-stop analysis.

Judge Phillips dissented. He said before approving a pat down search, the court must be sure there is “objective” reasonable suspicion that the accused is armed and dangerous. He agreed there was objective reasonable suspicion that Hammond was armed but that suspicion was lacking as to his dangerousness. He pointed out that “danger is specific to the moment before the police pat down a person.” He also listed four facts that weighed against finding Hammond dangerous: (1) he was a passenger in a car stopped for a burned-out taillight; (2) the police did not treat the female driver as a threat to their safety; (3) Hammond was courteous, calm and compliant, not angry intoxicated or in any other “worrisome state” and (4) he voluntarily stood outside the car in a well-lit busy intersection, surrounded by commercial buildings, with the police department on the corner. Judge Phillips criticizes the majority for “collapsing armed and dangerous into one condition.” He predicts the government will use this opinion to “stress” that the court allowed a frisk “under all of the surrounding circumstances, not just those bearing on whether Hammond was armed.”

Child Porn Defendant's 10-year Sentence Based on Prior Georgia Misdemeanor Sexual Battery Offense Affirmed

United States v. Hebert, 2018 WL 1915851 (April 24, 2018) (WY, published): An accused convicted of a child pornography offense under 18 U.S.C. § 2252A can face a mandatory minimum 10 year prison term if he has a prior state conviction ‘relating to’ aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor or ward. Using the categorical approach, the panel rules that Georgia’s sexual battery offense 'relates to' sexual abuse as those elements are defined in 18 U.S.C. § 2242. The panel admits the Georgia statute includes some conduct that might not come within the federal definition, but it need only decide whether the sexual battery statute 'relates to' sexual abuse, not whether it 'constitutes' sexual abuse. Herbert’s 10 year minimum mandatory sentence is affirmed because his misdemeanor convictions for sexual battery triggered the enhanced sentence.

Statute Prohibiting "Transporting" of Illicit Drugs Qualifies as "Serious Drug Felony" for ACCA Purposes

US v. Johnson, 2018 WL 2058181, Docket No. 17-6228 (10th Cir. May 2, 2018): Mr. Johnson's sentencing enhancement under the Armed Career Criminal Act (ACCA) is affirmed. The Court holds that an Oklahoma statute that prohibits transportation of illicit drugs with the intent to distribute them, Okla. Stat. tit. 63, § 2-401(A)(1), qualifies as a "serious drug offense" as defined for ACCA. See 18 U.S.C. § 924(e)(2)9A)(ii). The Court acknowledges that the federal definition of "serious drug offense" does not include "transportation," but it does include "possessing" and "the transportation of drugs necessarily implies their possession." The Court also rejects Mr. Johnson's argument that his two prior drug convictions occurred on the same occasion. One conviction occurred because Mr. Johnson sold 3 grams of crack cocaine to an undercover investigator at 4:20 p.m. one afternoon. The next day, at 7:15 p.m., officers found 13 grams of cocaine base in Mr. Johnson's car. The Court rejects Mr. Johnson's argument that the two incidents involved the "continuation of a single drug deal, negotiated at the same time, between the same parties." The Court noted the crimes were related, but said they were nonetheless distinct because they were committed at "distinct, different times" and Mr. Johnson had "a meaningful opportunity to stop" after the first sale.