United States v. Young, 893 F.3d 777 (10th Cir. 2018): The panel finds the guidelines reckless endangerment enhancement applies even when an accused makes verbal threats against an officer while fleeing and when he has stopped fleeing but is in a standoff with police. Young’s verbal threats created a dangerous situation for the police when they pursued him because he was armed and had expressed an intention to shoot if they took action. Besides “if the police were to shoot, they could have accidentally shot a fellow police officer.” Also, during flight is construed broadly and includes conduct while resisting arrest. Young was “resisting arrest during the standoff, disobeying police commands to exit his vehicle.” (NOTE for appellate types: the panel reviewed the issue de novo because Young didn’t challenge the district court’s factual findings, he argued instead that the facts are insufficient as a matter of law to warrant the enhancement.)
United States v. Ibanez, 893 F.3d 1218 (10th Cir. 2018): Because Ibanez challenged the substantive reasonableness of his within guideline sentence, to rebut the presumption of reasonableness the 10th Circuit attaches to that sentence, he was required to show “the statutory sentencing factors render the sentence unreasonable.” Ibanez argued only that the USSG § 2K2.1 (a)(4)(B), the enhancement for possession of a semiautomatic weapon by a prohibited person, was unreasonable. Because Congress allowed the ban on semiautomatic assault weapons to lapse - the statute on which the enhancement was based - there no longer was a sound basis for the guideline enhancement. The panel disagreed for two reasons. First, the reasonableness of the guideline is irrelevant because the district court had the discretion not to apply it. Second, according to the sentencing commission’s own policy judgment, the enhancement was necessary because the public is endangered when prohibited persons possess large-capacity magazines.
United States v. Hull, 893 F.3d 1221 (10th Cir. 2018): The panel finds that a standard supervised release condition in which the accused is required to notify third parties “of risks he may pose to them” is not unconstitutionally vague, an unconstitutional delegation of judicial authority, or an unlawful occupational restriction. The condition is not unconstitutionally vague because the district court said the risk would be assessed in the context of Hull’s prior convictions for home invasion robberies and bank robberies, i.e when others “may be at risk for financial or physical harm.” (The panel questioned whether, after Beckles, one can challenge on due process grounds a condition derived from the guidelines.) The condition did not unconstitutionally delegate judicial authority to the probation office since it is specific to the circumstances in which it applies and the probation department is not deciding the nature of extent of Hull’s punishment. Finally, the condition is not an unlawful occupational restriction because unlike the conditions struck in Souser and Mike, it does not require “to notify and all employers of his convictions.”
United States v. Ibanez, 893 F.3d 1218 (10th Cir. 2018): Because Ibanez challenged the substantive reasonableness of his within guideline sentence, to rebut the presumption of reasonableness the 10th Circuit attaches to that sentence, he was required to show “the statutory sentencing factors render the sentence unreasonable.” Ibanez argued only that the USSG § 2K2.1 (a)(4)(B), the enhancement for possession of a semiautomatic weapon by a prohibited person, was unreasonable. Because Congress allowed the ban on semiautomatic assault weapons to lapse - the statute on which the enhancement was based - there no longer was a sound basis for the guideline enhancement. The panel disagreed for two reasons. First, the reasonableness of the guideline is irrelevant because the district court had the discretion not to apply it. Second, according to the sentencing commission’s own policy judgment, the enhancement was necessary because the public is endangered when prohibited persons possess large-capacity magazines.
United States v. Hull, 893 F.3d 1221 (10th Cir. 2018): The panel finds that a standard supervised release condition in which the accused is required to notify third parties “of risks he may pose to them” is not unconstitutionally vague, an unconstitutional delegation of judicial authority, or an unlawful occupational restriction. The condition is not unconstitutionally vague because the district court said the risk would be assessed in the context of Hull’s prior convictions for home invasion robberies and bank robberies, i.e when others “may be at risk for financial or physical harm.” (The panel questioned whether, after Beckles, one can challenge on due process grounds a condition derived from the guidelines.) The condition did not unconstitutionally delegate judicial authority to the probation office since it is specific to the circumstances in which it applies and the probation department is not deciding the nature of extent of Hull’s punishment. Finally, the condition is not an unlawful occupational restriction because unlike the conditions struck in Souser and Mike, it does not require “to notify and all employers of his convictions.”
posted by Anonymous at 4:44 PM
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