U.S. v. Ellis, 868 F.3d 1155 (8/24/17) (Kan.) - A nice Alleyne ruling overturning a life sentence in a drug conspiracy case. The government attempted to § 851 Mr. Ellis to a life term based on his 2 prior drug convictions and a 21 USC § 841(b)(1)(A) crack cocaine amount of 280 grams and/ or a cocaine powder amount of 5 kilograms. The jury found Mr. Ellis guilty of being involved in a conspiracy involving those amounts. However, to impose the mandatory minimum Alleyne required the jury to find one or the other of the amounts was within the scope of Mr. Ellis's agreement and reasonably foreseeable to him. The jury instructions did not require the jury to make that finding. In reaching its holding, the 10th acknowledges Allleyne overruled a really bad 10th Circuit case, U.S. v. Stiger, 413 F.3d 1185 (2005), which held the defendant could be held responsible for everything the drug conspiracy was responsible for. The government failed to prove the error harmless beyond a reasonable doubt. Regarding the powder cocaine, the government relied at trial on the Mexican drug cartel with nothing much particular to Mr. Ellis. For the crack, there was evidence Mr. Ellis was personally involved with 25.3 grams, but the government didn't present overwhelming evidence with respect to the additional 254.7 grams it needed. The government presented a witness that maybe tied Mr. Ellis to that amount of crack, but Mr. Ellis contested that testimony.
Luckily, the 10th refuses to apply the invited error rule. The district court referred to off-the-record feedback convincing it not to submit to the jury the verdict form the 10th says it should have submitted. The record didn't reflect whose feedback that was [why are these instructions discussions off the record?]. On the record, defense counsel just said counsel had no objection to the verdict form. Defense counsel did not submit the verdict form. Not objecting did not constitute invited error. Mr. Ellis himself preserved the error for review. He went pro se at sentencing and contended he shouldn't be held responsible for all the drugs the conspiracy was involved in. "I didn't know none of these dudes" from the Mexican cartel, he eloquently argued. Importantly, Mr. Ellis was under no obligation to object to the jury instructions or the verdict form at trial. A defendant "isn't obliged to object to something inimical to his cause ensuring his eligibility for a longer sentence." "If the government wanted a heightened sentence under § 841(b)(1)(A), it was obliged to ensure the jury received proper jury instructions and a special-verdict form with spaces enabling the jury to find Ellis's individually attributable powder and crack cocaine amounts," the 10th rules. So Mr. Ellis should be sentenced under § 841(b)(1)(C).
The 10th goes against Mr. Ellis on every other issue he raised. There was sufficient evidence for the conspiracy and maintaining drug-involved premises convictions. The indictment was "close enough for government work" when it alleged Mr. Ellis maintained drug premises a month after there was trial evidence that he did. This was "reasonably near" the indictment's date. The government also presented enough evidence Mr. Ellis intended to distribute the 2.5 grams of powder cocaine in his possession when he was found with a gun in violation of § 924(c). Officers found other dealing evidence in Mr. Ellis's bag, including other drugs, a scale and an empty sandwich-bag box. The right-to-counsel-at-sentencing claim was moot, the 10th decides, and orders a full resentencing with different counsel than the counsel Mr. Ellis had at trial. Mr. Ellis's "bare assertion" that the complete breakdown in his communication with his attorney continued during the supervised-release proceeding didn't preserve the challenge to the sentence resulting from that proceeding. And, anyway, Mr. Ellis knowingly and voluntarily waived counsel during the supervised- release-violation hearing.

U.S. v. Cone, 868 F.3d 1150 (8/24/17) (Okl.) - The 10th affirms denial of a traffic-stop motion to suppress. The 10th says it's okay for an officer to ask about a driver's criminal history. The 10th has always been okay with a computer background check so that the officer knows who the officer is dealing with for safety reasons. And questions would take less time. So extending detention for criminal history questions does not violate the Fourth Amendment. A question the 10th didn't have to address was: what if the officer asked the questions and then did a background check? That would seem a bit redundant. Here the officer was about to do a background check when he discovered a gun after Mr. Cone had acknowledged a criminal history. Mr. Cone raised an interesting question about the propriety of travel plan questions [e.g. what are you doing here?] when he was already at his destination and his traffic violation was for a non-functioning license plate light. But the 10th avoids the issue. Any problem with the travel plan questions was irrelevant because those questions did not cause the gun discovery. The officer saw the gun when he legitimately asked Mr. Cone to get out of the pickup for safety reasons. Drugs were found soon after. The 10th does sort of suggest travel plan questions might make a difference if the answers prompted the officer to ask Mr. Cone to get out of the pickup for safety reasons. But the 10th relies on the district court's finding that Mr. Cone's answers had nothing to do with the officer's asking Mr. Cone to exit his pickup.