U.S.S.G. § 3A1.2(c)(1) Enhancement Requires Proof of Intent to Instill Fear

United States v. Gonzales, 2019 WL 3403479 (10th Cir. July 29, 2019) (NM): In this circuit, the government now is required to prove the accused’s subjective intent to instill fear in an official when it seeks U.S.S.G. § 3A1.2(c)(1)’s six-level enhancement for creating a substantial risk of serious bodily injury to that official.

Local police were chasing down Gonzales when he lifted up his shirt, pulled out a gun and dropped it. Eventually, he was arrested and later pleaded guilty to possessing a firearm after a felony conviction. The officer chasing him testified that as the gun was falling he thought Gonzales was reaching forward to grab it. Gonzales argued the evidence demonstrated he had intentionally discarded the gun. Section 3A1.2(c)(1) allows for a 6 level enhancement when the accused assaults an officer during the course of the offense or immediate flight therefrom. The district court applied the enhancement because Gonzales did not present evidence of his intent and § 3A1.2 did not have an intent requirement.

The panel held the district court incorrectly interpreted § 3A1.2. It reviewed common law and case law definitions of assault. It found that assault, as used in § 3A1.2, requires proof of specific intent to instill fear. Thus, the district court could apply the enhancement only if the government established Gonzales had the specific intent to put the officer in fear of serious bodily injury. Because the court incorrectly concluded that subjective intent is immaterial in its analysis, the panel remanded the case for it to address the factual question of Gonzales’s intent.

Exclusion of Defense Expert for Late Disclosure, Obstruction of Justice Enhancement Both Upheld

United States v. Paup, 2019 WL 3756446 (10th Cir. August 9, 2019) (CO): This was an appeal from a jury trial for shoplifting that occurred before a magistrate judge. The mag court sentenced Defendant, inter alia, to a term of imprisonment, a fine, and ordered restitution for the value of stolen merchandise. Defendant appealed to the district court and the district court upheld her conviction and sentence of imprisonment but vacated the restitution & remanded to the magistrate judge for further proceedings. The defendant then appealed to 10th Circuit. The first issue addressed was jurisdiction, since the restitution amount was not settled at the time of the appeal to the Tenth Circuit. The panel held that it had jurisdiction because the district court's remand order was final in terms of Defendant’s conviction and sentence of imprisonment.

The second issue addressed was the propriety of excluding the defense’s expert witness. The defense sought the expert to testify that Defendant suffered from dissociative disorders and, as such, could not form the mens rea necessary to commit the charged crimes. Indeed, this was the diagnosis of Defendant’s therapist, but that therapist was “not competent” to provide a medical opinion in court. Defense counsel requested two continuances to find a suitable expert and provide the government with a written summary of proposed testimony pursuant to Fed.R.Crim.P. 16, but missed the ultimate deadline set by the court. Ten days after the deadline, defense counsel finally made an expert witness disclosure by emailing the government and court, explaining later that she was unable to navigate PACER because it was her first federal case. The Government moved to exclude the witness and the magistrate court granted the motion. Tenth upholds this decision. The argument that defense counsel was a federal court newbie was no excuse for missing deadlines.

The third issue on appeal involved the application of a two-level enhancement for obstructing justice/perjury. See USSG § 3C1.1 Defendant’s shoplifting was caught on video, and she was found in possession of wire cutters and empty bags from other stores to make the merchandise appear as though it was purchased elsewhere. Yet, when Defendant testified, she attempted to provide explanations for the suspicious behaviors that the magistrate court absolutely did not buy. The Tenth Circuit said there was sufficient evidence to uphold the mag court’s enhancement, and, per usual, for credibility determinations, it deferred to the judge’s fact-finding. Conviction and sentence of imprisonment affirmed.

Banning All Computer Use Is An Impermissibly Overbroad Condition of Supervised Release

United States v. Blair, ___F.3d___, 2019 WL 3793368 (No. 18-1220, 10th Cir. Aug. 13, 2019) (Special Condition of Supervised Release – computer/internet access).
Short version: Special condition of supervised release that essentially allowed probation to ban all use of computers and the internet as impermissibly broad, and the district court abused its discretion by imposing it. Applies 18 USC 3583(d) and 3553(a) in our favor for once.

Long version: Mr. Blair had a LOT of child porn on his computer. Pled to one count possession; anticipated a guideline level 28, crim. history 1, for a range of 78-97 months. Alas, the government learned that Mr. Blair allegedly molested his younger sister and his son, so bumped him up to offense level 33 for a guideline range of 135-168 months. Sentencing court was unmoved by mitigating evidence of poor health, military service and difficult childhood. Luckily, statute set maximum at 120 months, which is what the court imposed. Mr. Blair was unhappy with this sentence but the 10th found it to be substantively reasonable.

But, it found a special condition that essentially allowed probation to ban all use of computers and the internet as impermissibly broad, and the district court abused its discretion by imposing it. The district court phrased the condition as: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” Because this put all discretion with probation, the 10th felt too broad. The probation office can only impose restrictions “that are reasonably calculated to prevent the defendant from using a computer or the Internet to access, store, produce, or send child pornography in any form; to provide necessary restrictions to facilitate a defendant’s correctional treatment so that he may be rehabilitated; and to protect the public from any further crimes of the defendant.” 2019 WL 3793368, at *8.
This has a lot of good language about how ubiquitous the internet is – at least a few years ago, this language was hard to find. But the 10th actually recognized that now-a-days you need the internet to know the weather. Of note, split decision on this issue with Ebel and Bacharach in majority and Baldock dissenting.

Consulting with Client Regarding Appeal is Mandatory, Even if Client Waived Appeal Rights

United States v. Herring, 2019 WL 4019905 (No. 18-4023, 10th Cir. Aug. 27, 2019). Even where a plea deal includes a waiver of appellate rights, the trial attorney needs to consult with the client about appeal and file a notice of appeal if the client wants it – otherwise ineffective assistance of counsel. SCOTUS defined “consult” as “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).

Pursuant to a plea agreement, Mr. Herring pled to one count of child porn. The plea agreement included a waiver of many of Herring’s appeal rights, except for his ability to appeal claims of ineffective assistance of counsel. After the hearing, Mr. Herring expressed interest in appealing; trial counsel told him he didn’t do appellate work and to consult with an appellate attorney. (The Tenth frowns on that: “Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case.”) Mr. Herring did not consult an appellate attorney and did not file an appeal but did file a habeas alleging IAC for no appeal.

The district court denied the petition without a hearing. The Tenth held this was an abuse of discretion because “The files and records of the case do not ‘conclusively show that the prisoner is entitled to no relief.’28 U.S.C. § 2255(b). That is the test, and under that test Herring is entitled to a hearing so that he may prove his factual allegations.”

Officer Lacked Reasonable Suspicion to Arrest Defendant for Failing to Obey a Lawful Order

United States v. Romero, Jr., --- F.3d ---, 2019 WL 4197484 (10th Cir. Sept. 5, 2019): In this felon-in-possession and possession-of-a-stolen firearm case, the 10th agrees the Las Cruces cop lacked probable cause to arrest Mr. Romero for resisting a lawful order and thus had no right to search Mr. Romero’s backpack--in which the weapon was found--incident to the arrest. The majority did not address whether the officer initially had reasonable suspicion to order Mr. Romero to submit to a frisk.

The facts were that the Las Cruces officer saw Mr. Romero looking into the window on the front entry of a church at about 5:30 p.m. on a Friday. The officer went back to question the person he saw. At that time, Mr. Romero was filling up a water bottle from a hose on the side of the church and had a cell phone that he was charging. The officer immediately and rudely escalated the exchange and within seconds had pointed his taser at Mr. Romero and within about a minute had Mr. Romero on the ground getting arrested. The majority (Judges Ebell and Lucero) correctly concluded that Mr. Romero did not refuse to obey the officer’s commands in any way that would constitute unlawful resistance under NMSA 1978, 30-22-1(D). Since there was no unlawful resistance, the officer’s arrest was not supported by probable cause and no right to search the backpack incident to the arrest. Moreover, the majority rejected the government’s argument that, even if the arrest was not supported by probable cause, the officer made a reasonable mistake of law. The Court relied on the decision in US v. Cunningham, 630 Fed.Appx. 873 (10th Cir. 2015) (Unpublished), in which the panel had held that an officer’s mistake of law may be reasonable if (1) the law is ambiguous and (2) the law has not been previously construed by the relevant courts. In this case, the potentially ambiguous language has been clarified on several prior occasions by the NM courts. It was not objectively reasonable for the officer to make any mistake of law. Accordingly, the district court’s denial of the motion to suppress was reversed.

Tymkovich dissented, based on a second-by-second parsing of the video of the incident concluding that there was reasonable suspicion to pat Mr. Romero down and Mr. Romero “resisted” by taking a few seconds to comply with the officer’s orders.

Charges of CP Possession Based on Different Devices Were Multiplicitous

United States v. Elliott, 2019 WL 4252182 (10th Cir. September 9, 2019) (NM): Elliot was convicted 3 counts of producing child pornography and 4 counts of possessing it. Each of the four possession counts charged a different electronic device or medium on which Elliott stored his collection. The district court ordered the 240 month prison term for each possession count, to run consecutively. Elliott said 3 of those 4 counts were multiplicitous and violated the Double Jeopardy Clause. Because he possessed the different electronic devices in the same physical location and at the same time, he should not have been convicted of distinct possession counts for each device.

The panel agreed. The panel said the plain text of 18 U.S.C. § 2252A(a)(5)(B) does not clearly define the appropriate unit of prosecution. Since it includes the ambiguous modifier ‘any’ before the enumerated list of storage materials, the statute creates sufficient ambiguity as to the correct unit of prosecution. In others words, the statute is ambiguous as to whether the unit of prosecution is a single device containing child pornography or the simultaneous possession of multiple devices containing that pornography. According to the rule of lenity, distinct charges for each electronic device or medium were improper. The panel notes that although part of his collection was stored in a Dropbox account on servers outside New Mexico, Elliott still simultaneously possessed those images with the others on different devices. His iPhone was ‘synced’ to the Dropbox account and he accessed the account from the same location as the iPhone. The panel vacated Elliott's convictions and sentences on all but one of the child pornography possession convictions.

Expert Testimony Decoding Alleged Drug Code OK; Sufficient Evidence Supported Drug Convictions

US v. Duran, Docket No. 18-1062 (10th Cir. 10/9/19): Mr. Duran was convicted of one count of distributing and possessing cocaine with intent to distribute on March 8, 2017; one count of conspiracy to distribute cocaine and crack cocaine with intent to distribute; and two counts of using a telephone to facilitate a drug crime on March 8 and 11, 2017. He appealed, alleging insufficient evidence to support three of the convictions and arguing that the court abused its discretion in admitting testimony about prior drug transactions and interpretation of some recorded calls.

The court found there was sufficient circumstantial evidence to support the conviction of possession of cocaine on March 8, even though no one saw Mr. Duran with the cocaine. The primary evidence was two phone calls on March 8 between Duran and Jerrell Birch (Jerrell Birch was actually the target of the investigation). In the first, Duran tells Birch that “Unc” is present and (in code interpreted by a cop) Duran wants Birch to convert (“raindrop”) cocaine into crack (“gooey-gooey” – hard to believe grown men talk like this). In the next call, Birch gives Duran directions. Birch and Duran are together for about 1.5 hours, which an officer said was about long enough to make crack. On March 11, Duran tells Birch he still has “hard” (translated as “crack”) from Birch. From all this, the court says the jury could have inferred Duran received cocaine from Unc on March 8, brought the cocaine to a meeting with Birch, spent time with Birch converting the powder cocaine to crack, and received crack cocaine from Birch. This was sufficient circumstantial evidence to support an inference the defendant possessed the cocaine on March 8.

The Court also found sufficient evidence to support the use of a telephone counts because the conversations could allow the jury to reasonably infer that the calls helped Mr. Birch buy cocaine and convert it to crack. The fact that the jury acquitted Mr. Duran of the charge of possessing drugs on March 11 did not require acquittal on the count alleging use of a telephone on March 11.

The trial court did not abuse its discretion in admitting an officer’s testimony about a CI’s controlled buys from Mr. Birch. This was overview testimony that could help the jury understand the content and significance of the conversations between Duran and Birch, and the code words. The testimony did not pose a danger of unfair prejudice because the government did not use the controlled buys to show Mr. Duran possessed or sold cocaine in March 2017 or to impugn his credibility. The court rejected the argument that the testimony was inadmissible hearsay because there was no mention of any out-of-court statement. Mr. Duran contended some of the follow-up questions went beyond the limited purpose of explaining why an investigation was undertaken, but Duran failed to identify any improper questions or informant’s hearsay statements. The argument that the officer lacked personal knowledge of the controlled buys was unpreserved.

The trial court also acted within its discretion in allowing the officer to testify about the meaning of the recorded calls. Regarding some calls, Mr. Duran failed to object and also failed to argue plain error. Even if he had, it was ok for the officer to explain why the investigation turned to Mr. Duran. The officer’s testimony regarding the meaning of code words was proper lay opinion. Other objections were not preserved. Similarly, it was ok to allow expert testimony about drug dealers’ use of code language.

Affirmation of Sentence under Plain-error Standard Highlights Need to Strenously Object to PSR, at Hearing

United States v. McClaflin, 2019 WL 4559348 (10th Cir. 2019, Sept. 20, 2019) (CO). Defendant Karen McClaflin pled guilty to two counts stemming from the operation of a “fix and flip” real estate Ponzi scheme which defrauded investors of more than $14.5 million dollars. At sentencing, the district court calculated the advisory sentencing guidelines at 135 to 168 months’ imprisonment, applied a 6-level enhancement for substantial financial hardship to more than twenty-five victims (USSG § 2B1.1), and then determined a downward variant sentence of 96 months was appropriate.

On appeal, McClaflin argued the district court: (1) abused its discretion by denying her motion for an additional continuance of the sentencing hearing; (2) procedurally erred by imposing the 6-level enhancement based upon victim impact statements; and (3) failed to consider all of the requisite 18 U.S.C. 3553(a) factors. The Tenth Circuit determined the district court did not plainly err when it sentenced McClaflin, therefore it affirmed the judgment and sentence.

One important lesson here is issue preservation. If you want to preserve an objection to an enhancement, object to the application of it in the Presentence Reprot. Object, with specificity, to the PSR’s factfinding that supports the enhancement. File a written objection and restate the objection orally at sentencing. Don’t just rely on the government’s concessions. Here, the government objected to the PSR’s 6-level enhancement, arguing that only a 2-level enhancement was warranted based on the plea agreement (substantial financial hardship to more than 10 victims). Defense counsel joined the government’s objection, but when pressed at sentencing, said “it is the government’s objection…not the defendant’s.” The Tenth said it was okay for the district court to independently find facts for the greater enhancement based on victim impact statements, especially given defense counsel’s failure to adequately preserve any issue regarding their reliability.

Death Sentence Set Aside for Intellectually Disabled Defendant

Smith v. Sharp, 2019 WL 4010132 (10th Cir. August 26, 2019) (OK): The panel finds Smith is intellectually disabled and sets aside his death sentence. To execute him would violate Atkins v. Virginia, 536 U.S. 304 (2002), in which the Supreme Court held the state is prohibited from executing the intellectually disabled. Outstanding work by our FPD colleagues in Oklahoma, Emma Rolls and Thomas Hird.

Smith appealed the district court’s denial of his habeas petition. To succeed he had to show the state appellate court’s ruling that he had failed to establish significantly sub-average intellectual functioning was contrary to, or an unreasonable application of, Atkins, or an unreasonable determination of the facts. The panel held he proved both. The state court unreasonably applied Atkins because it disregarded the clinical definitions of sub-average intellectual functioning in favor of lay witness testimony that Smith was not intellectually disabled. The court also unreasonably determined the facts because Smith’s consistently low IQ scores demonstrated significantly sub-average intellectual functioning.

Of note: This opinion is worthwhile reading if you have a client with low intellectual functioning. It offers ways to combat the government’s arguments that our clients are malingering or are not disabled because they behave like others with higher intellectual functioning.

The panel reviews in detail the expert testimony from both sides and for numerous reasons discounts the opinion of the state’s expert, including his suggestion that Smith was malingering. It also stresses that Smith’s IQ scores consistently were between 70 to 75 or lower, which is typically considered the cutoff score for an intellectual disability diagnosis. It also criticizes lay witness opinions perpetuating stereotypes about a person’s adaptive behavior. The panel says that intellectually disabled people can hold a job, work hard, cook, clean, lie, marry and love. Their deficits are assessed against the population in general, the overwhelming majority of which can perform work, for example, at a much higher level. In other words, the ability to hold a job is not sufficient evidence to overcome objective evidence of a person’s adaptive deficits.