U.S. v. Lynch, 881 F.3d 812 (2/5/18) (Col.) (Published) - The 10th affirms a conviction for assault or intimidation of a flight attendant that interferes with his or her duties in violation of 49 U.S.C. § 46504. The 10th holds that only general intent, not specific intent, is required to violate the statute, that is, the defendant just has to know the facts that make the defendant's conduct illegal. The 10th finds general intent best achieves the statute's purpose of protecting air-travel safety. The 10th doesn't find relevant the Supreme Court's more specific mens rea requirement imposed in Elonis v. U.S., 135 S. Ct. 2001 (2015), regarding the threat statute, 18 U.S.C. § 875(c). All Elonis means, the 10th says, is that "we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct." Requiring the § 46504 conduct to be voluntary and deliberate fits the bill. A defendant who is intimidating enough to prevent an attendant from fully performing his or her duties to the point of undermining everyone's safety shouldn't be able to avoid culpability because the defendant didn't intend to intimidate the attendant, the 10th says.
The 10th beats back an overbreadth challenge. Mr. Lynch asserted his demanding more alcohol, calling the flight attendants foul names and threatening to take down the airline with negative publicity, while offensive, were just exercises in free speech. The 10th finds the statute sets out a content-neutral prohibition on conduct [not profane language] in a specific time, place and manner while serving a significant governmental interest. The 10th points out Mr. Lynch's behavior was less benign than he described because he screamed in attendants' faces, shouted vile insults at them and refused to calm down, not to mention sexually harassing by inappropriate touching.
The 10th also rejects an unconstitutional vagueness challenge. Mr. Lynch contended there was no clear line between impolite conduct and criminal conduct because the line depended on how a particular attendant feels. He claimed the only interference he caused was "someone in row 16 had to wait five minutes before getting a soda refill." On the bright side, the 10th acknowledges that Johnson II means you can succeed on a vagueness claim without showing every application of the statute is vague. But here, the 10th says, ordinary people can tell what type of conduct is prohibited, where it is prohibited and what result the statute is intended to prevent.
The 10th affirms the district court's refusal to give an acceptance of responsibility reduction. Mr. Lynch contested several factual contentions at trial [e.g. his touchings were only to get the attendant's attention and as a conciliatory gesture]. And his profanity, screaming and aggressive conduct during his arrest wasn't the behavior of someone accepting responsibility, the 10th adds.

U.S. v. Goosen, 723 F. App'x 608 (1/31/18) (N.M.) (unpub'd) - The 10th affirms a 15-offense-level upward variance for a heroin distribution offense from 12 to 18 months to 90 months. The judge varied based on finding that 13 months before the instant offense Mr. Goosen injected a friend with heroin that caused his friend's death. The 10th rejects Mr. Goosen's Fifth and Sixth Amendment challenges because, according to 10th precedent, a district court may consider an uncharged-conduct finding in imposing sentence when the finding doesn't result in a mandatory minimum or a sentence beyond the stat max. The 10th distinguishes this case from U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007), where the 10th found substantially unreasonable an upward variance based on the defendant's uncharged conduct. In that case, the 10th says, the uncharged conduct was unrelated to the instant offense and the district court imposed a sentence based on the guideline range for the uncharged conduct. Here, the 10th explains, the uncharged conduct was related to the offense of conviction and the district court varied because the conduct affected the adequacy of the advisory guideline range, not to punish for the conduct. The variance was because Mr. Goosen's continued heroin distribution after the death demonstrated he would not be adequately deterred, and the public not adequately protected, by a mine-run guideline sentence. The 10th notes its precedent has rejected Justice Scalia's dissenting opinion in Jones v. U.S., 135 S. Ct. 8 (2014), that "any fact necessary to prevent a sentence from being substantively unreasonable must be admitted by the defendant or found by a jury."