Monday, August 27, 2018

U.S. v. Ferrell, 725 F. App'x 672 (3/2/18) (Col.) (unpub'd) - The 10th reverses a ยง 2K2.1(b)(6)(B) enhancement for using a firearm in connection with another felony offense. The 10th finds the enhancement wasn't based on reliable facts because, in violation of Fed. R. Crim. P. 32, the district court adopted without explanation the objected-to presentence report findings that both found circumstances justifying an enhancement and adopted the plea agreement stipulations that didn't justify an enhancement. There was insufficient evidence, the 10th holds, to support that Mr. Ferrell possessed the meth, marijuana and drug paraphernalia in someone else's garage. While Mr. Ferrell was arrested in the garage, there wasn't enough evidence he possessed the contraband items because the evidence indicated he was seen leaving the house, not the garage, and he fled to the garage only after he saw parole officers.

U.S. v. Ramos, 723 F. App'x 632 (2/27/18) (N.M.) (unpub'd) - An officer unlawfully prolonged the traffic stop by questioning a passenger while making believe he was checking the VIN. The 10th finds VIN inspections to be okay, as long as the officer, as in this case, doesn't physically enter the car, see U.S. v. Caro, 248 F.3d 1240 (10th Cir. 2001). But the 10th does find the officer unlawfully extended the detention by questioning the passenger.
The 10th finds the district court's analysis of the voluntariness of Mr. Ramos' verbal and written consent is "faultless." The usual non-coercive factors prevail, e.g. no gun to the head, in public view, conversational tone, etc. Finally, the three Brown v. Illinois , 422 U.S. 590 (1975), factors indicate the consent was not tainted by the stop prolongation. First, there was close temporal proximity, which favored suppression. But, second, there was the intervening circumstance of the officer going through the typical written consent process. Third, the 10th refuses to find the officer's behavior was purposeful and flagrant, even though he admitted he conducts VIN inspections to investigate crimes other than traffic violations. The 10th relies on the lack of evidence the officer routinely extends the duration of traffic stops when he does VIN inspections. Even though the inspection took at least 80 seconds, the 10th sees no contradiction the finding that the inspection was "pointed and narrow." Most troubling of all, the 10th holds the officer was not questioning the passenger "in the hope that something might turn up" because he spotted oddities in Mr. Ramos' travel plans and suspected something was going on---"something more than an unsupported hunch," the 10th claims, but, mind you, not enough to constitute reasonable suspicion. No exclusionary rule applies here, the 10th concludes.

U.S. v. Bouziden, 725 F. App'x 653 (2/27/18) (Okl.) (unpub'd) - The 10th finds Oklahoma's manslaughter statute divisible and manslaughter in the heat of passion to be a "violent felony" under the ACCA. The 10th finds the statute divisible even though the same punishment applies to each of 3 subsections. The 10th relies on cases and jury instructions treating the subsections as separate crimes. Accordingly, the 10th applies the modified categorical approach and finds Mr. Bouziden was convicted of manslaughter in the heat of passion. The general intent of that crime is enough mens rea for the ACCA's elements clause. And killing another person requires the use of violent force under Johnson I, 559 U.S. 133 (2010), the 10th says.

Starr v. Quiktrip Corporation, 726 F. App'x 692 (3/1/18) (Okl.) (unpub'd) - The 10th holds Batson doesn't protect jury selection discrimination against military veterans. Prior military service isn't an immutable attribute and, according to the 10th, "veterans aren't saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."