U.S. v. Ortiz-Lazaro, 884 F.3d 1259 (3/16/18) (N.M.) (Published) - The 10th affirms reentry and reentry-revocation sentences challenged on multiple grounds. The 10th acknowledges § 3553(c)(2) requires a statement of specific reasons for imposing a sentence above the sentence range the Sentencing Commission recommends for supervised release violations. But here the district court gave specific enough reasons to justify an upward variance from the top end of 12 months to 24 months. The 10th says it was enough for the court to note Mr. Ortiz's return to the U.S. a month after his supervised release started, his inability to conform his behavior to the supervised release terms, his "blatant disrespect" for immigration laws, and the need to protect the public from Mr. Ortiz committing serious violent offenses of the type he committed before. The district court's failure to complete a written statement of reasons, while in violation of 28 U.S.C. § 994(w)(1)(B), was harmless. The court wouldn't have changed its sentence if it had filled out the form. So there's no enforcement of § 994(w)(1)(B). The 10th also holds the district court considered the danger of unwarranted disparity by acknowledging the sentence range and then giving reasons for a sentence above the range. It sounds like that conflicts with U.S. v. Lente, 647 F.3d 1021 (10th Cir. 2010). The 10th thinks it was good enough for the district court to say it considered the § 3553(a) factors in explaining why it imposed the revocation sentence consecutively to the reentry sentence, as the policy statements recommend. The 10th explains: "We don't require the court to consider each § 3553(a) factor individually." The 10th finds the sentences to be substantively reasonable for the reasons the district court gave. The 10th is untroubled by the district court's statement that it relied on a non-existent violation report. No harm, says the 10th. Finally, the 10th rejects the argument that the district court giving the identical reasons for both sentences established a double jeopardy violation. No error, the 10th concludes, because Mr. Ortiz was sentenced for two separate crimes.
U.S. v. Banks, 884 F.3d 998 (3/6/18) (Okl.) (Published) - The 10th affirms Mr. Banks' 16 drug-related convictions and sentence. (1) The 10th affirms the suppression denial. There was probable cause for an arrest warrant even though there was no controlled buy. Three Confidential informants (CIs) corroborated each other with consistent reports about the drug-trafficking organization and two identified Mr. Banks as a member. Officers' independent investigation confirmed some aspects of their statements.
(2) The 10th finds sufficient evidence for all 16 convictions. Mr. Banks' knowing possession of the cocaine in a hamper in someone else's house was established by Mr. Banks' statement to his mother during a recorded jail call that the cocaine was his. Not considering evidence indicating otherwise, when Mr. Banks said "my shit," he meant "my drugs." Mr. Banks' knowing possession of the cocaine and gun in another person's attic was established by his girlfriend's testimony that he kept crack in the hotel room from which they went to the house with the attic.
(3) The 10th finds the district court didn't abuse its discretion in its evidentiary rulings. The initial overview testimony about the structure of the gang, including Mr. Banks' place in its hierarchy, and how the investigation began was okay. Other evidence supported the testimony, the 10th finds, including Mr. Banks' own mother testifying he sold drugs. The witness never offered an opinion about the trustworthiness of Mr Banks or any upcoming witness or about Mr. Banks' guilt. Evidence of Mr. Banks' 3 prior drug-related convictions was admissible under Rule 404(b). Mr. Banks' primary defense was lack of knowledge. So the convictions countered that defense and, besides,"our court has time and again held that past drug-related activity is admissible under 404(b)."
Judge Phillips dissents on a protective sweep issue. He notes the officers could have kept safe by just driving away once they arrested Mr. Banks outside the house. He also points out officers took their time on this sweep to examine items unconnected to the supposed hiding gang member, e.g. the Oster bag, wallet and photograph. He further observes, if the officers were really worried about the gang member endangering their safety, they wouldn't have entered the attic the way they did: officers hoisted another officer to push a panel aside and lift his head into the attic to see what was there. Judge Phillips opined that, while some times a protective sweep can be justified by an outside-the-house arrest, the justifications for such a sweep must be more compelling than in the in-house arrest circumstance. In this case, Judge Phillips found insufficient reason to suspect the gang member was in the house and endangering people. Several hours had passed since Mr. Banks' threats, an officer had heard only one male voice in the house, no officer bothered to run the license plate of the car in the driveway and there was no explanation how someone in the attic could be a danger to the officers outside the house.
Kendall v. Olsen, 2018 WL 1294174 (3/15/18) (unpub'd) - The 10th holds a warrantless search of a backyard was justified by exigent circumstances. Officers canvassed the neighborhood to find a three-year-old boy who had been missing for about one hour. Mr. Kendall's house was 10 houses from the boy's house. An officer searched Mr. Kendall's backyard looking for the boy and ended up shooting and killing Mr. Kendall's attacking dog. The 10th finds the officer had an objectively reasonable basis to believe there was an immediate need to take action to protect the boy from serious injury because he had apparently wandered off and the chances of finding the boy unharmed was decreasing rapidly with time. There was no need for any specific information indicating the boy was in that particular backyard. And the search's scope was properly limited to looking in places the officer couldn't see from outside the yard and that were accessible to the boy.
Rusk v. Tymkovich, 714 F. App'x 913 (3/14/18) (Utah) (unpub'd) - The panel refuses to recuse itself even though Chief Judge Tymkovich was the defendant in the case. The 10th cites its "duty to sit" and the "rule of necessity' that a judge is qualified to decide a case even if he or she would normally not be allowed to do so.
U.S. v. Banks, 884 F.3d 998 (3/6/18) (Okl.) (Published) - The 10th affirms Mr. Banks' 16 drug-related convictions and sentence. (1) The 10th affirms the suppression denial. There was probable cause for an arrest warrant even though there was no controlled buy. Three Confidential informants (CIs) corroborated each other with consistent reports about the drug-trafficking organization and two identified Mr. Banks as a member. Officers' independent investigation confirmed some aspects of their statements.
(2) The 10th finds sufficient evidence for all 16 convictions. Mr. Banks' knowing possession of the cocaine in a hamper in someone else's house was established by Mr. Banks' statement to his mother during a recorded jail call that the cocaine was his. Not considering evidence indicating otherwise, when Mr. Banks said "my shit," he meant "my drugs." Mr. Banks' knowing possession of the cocaine and gun in another person's attic was established by his girlfriend's testimony that he kept crack in the hotel room from which they went to the house with the attic.
(3) The 10th finds the district court didn't abuse its discretion in its evidentiary rulings. The initial overview testimony about the structure of the gang, including Mr. Banks' place in its hierarchy, and how the investigation began was okay. Other evidence supported the testimony, the 10th finds, including Mr. Banks' own mother testifying he sold drugs. The witness never offered an opinion about the trustworthiness of Mr Banks or any upcoming witness or about Mr. Banks' guilt. Evidence of Mr. Banks' 3 prior drug-related convictions was admissible under Rule 404(b). Mr. Banks' primary defense was lack of knowledge. So the convictions countered that defense and, besides,"our court has time and again held that past drug-related activity is admissible under 404(b)."
Judge Phillips dissents on a protective sweep issue. He notes the officers could have kept safe by just driving away once they arrested Mr. Banks outside the house. He also points out officers took their time on this sweep to examine items unconnected to the supposed hiding gang member, e.g. the Oster bag, wallet and photograph. He further observes, if the officers were really worried about the gang member endangering their safety, they wouldn't have entered the attic the way they did: officers hoisted another officer to push a panel aside and lift his head into the attic to see what was there. Judge Phillips opined that, while some times a protective sweep can be justified by an outside-the-house arrest, the justifications for such a sweep must be more compelling than in the in-house arrest circumstance. In this case, Judge Phillips found insufficient reason to suspect the gang member was in the house and endangering people. Several hours had passed since Mr. Banks' threats, an officer had heard only one male voice in the house, no officer bothered to run the license plate of the car in the driveway and there was no explanation how someone in the attic could be a danger to the officers outside the house.
Kendall v. Olsen, 2018 WL 1294174 (3/15/18) (unpub'd) - The 10th holds a warrantless search of a backyard was justified by exigent circumstances. Officers canvassed the neighborhood to find a three-year-old boy who had been missing for about one hour. Mr. Kendall's house was 10 houses from the boy's house. An officer searched Mr. Kendall's backyard looking for the boy and ended up shooting and killing Mr. Kendall's attacking dog. The 10th finds the officer had an objectively reasonable basis to believe there was an immediate need to take action to protect the boy from serious injury because he had apparently wandered off and the chances of finding the boy unharmed was decreasing rapidly with time. There was no need for any specific information indicating the boy was in that particular backyard. And the search's scope was properly limited to looking in places the officer couldn't see from outside the yard and that were accessible to the boy.
Rusk v. Tymkovich, 714 F. App'x 913 (3/14/18) (Utah) (unpub'd) - The panel refuses to recuse itself even though Chief Judge Tymkovich was the defendant in the case. The 10th cites its "duty to sit" and the "rule of necessity' that a judge is qualified to decide a case even if he or she would normally not be allowed to do so.
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