Mid-trial Waiver of Right to Counsel Was Not Knowing; Conviction Reversed

United States v. Hamett, 2020 WL 3167626 (10th Cir. June 15, 2020) (OK): The panel sets aside Hamett’s convictions, including kidnapping, and remands for a new trial because Hamett’s mid-trial waiver of his right to counsel was not made knowingly and intelligently.

The panel found that the district court’s self-representation warnings were inadequate. The court did not confirm on the record that Hamett knew the charges against him, understood the maximum punishments if convicted (because the court advised him incorrectly), was aware of the available defenses to the charges or comprehended his obligation to comply with federal evidentiary and procedural rules.

The panel also held there were no case-specific factors that would allow it to conclude that in spite of the court’s inadequate discussion with Hamett about the Von Moltke factors (322 U.S. at 724), his waiver of his right to counsel still was knowing and intelligent when it was made. Unlike in other cases where the court pointed to factors that rescued an otherwise deficient discussion, here, Hamett did not have prior experience with the criminal justice system, nor did he have formal legal training and experience with criminal trials. The appointment of standby counsel did not cure the inadequate discussion either.

Chief Judge Tymkovich dissented.

Winn v. Cook, 2019 WL 72073332 (10th Cir. December 23, 2019) (OK): Winn filed a habeas petition under 28 U.S.C. § 2241. He alleged that a jury trial waiver he signed was invalid and asked the district court to order the state court to hold a jury trial. The panel held that Younger v. Harris, 401 U.S. 37 (1971) precluded federal intervention. Since the criminal proceedings still were ongoing and the state court already had held an evidentiary hearing on Winn’s claim that his waiver was involuntary, there was an adequate state forum to hear his claims. Besides, state criminal proceedings traditionally are areas primarily of state concern. Winn did not meet any of the Younger exceptions either. Even if his jury waiver remained in effect, he would not suffer "irreparable injury" because the "injury" still can be corrected by the state appellate court.

United States v. Rodriguez, 2019 WL 7207303 (10th Cir. December 23, 2019) (CO): At his supervised revocation hearing, Rodriguez admitted to possession and use of a controlled substance. He argued his misconduct constituted a Grade C violation, not a Grade B, because according to Colorado law he could not be given a term of imprisonment exceeding one year. The panel disagreed: Rodriguez’s misconduct qualified as a Grade B violation since federal law allowed an imprisonment term greater than one year. Although simple possession is punishable by a maximum imprisonment term of one year, the district court could have taken into account 21 U.S.C. § 844's recidivist enhancements. Using those enhancements a federal court could have imposed a term greater than one year, because Rodriguez had 3 prior drug convictions. The panel stressed that "a district court may consider recidivist enhancements based on prior criminal offenses when determining the grade of a supervised release violation."

Please note: You may think that this decision conflicts with the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). The panel says that you would be wrong. There the Court rejected a "hypothetical approach" because the statute at issue required the court to review the offense of which the accused was convicted. By contrast, in a revocation sentencing context, the question is not how to categorize an accused’s prior convictions, but how to grade his present misconduct. The panel says the grade of violation turns on the maximum punishment that could have been imposed for the misconduct. "Thus, it is entirely proper for a district court to consider possible sentences because the inquiry in supervised release revocation proceedings is inherently hypothetical."

United States v. Mendenhall, 2019 WL 7207352 (10th Cir. December 23, 2019) (OK): After reviewing for plain error, the panel held that Congress has authorized restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction. The panel reviewed the elements of the offense of conviction to determine whether the loss cited as the basis for the restitution order were directly attributable to those elements. It concluded they were not: the district court exceeded the range of restitution authorized by 18 U.S.C. § 3663A when it order Mendenhall pay for losses related to, but not arising directly from his offense of conviction, knowing possession and concealment of a stolen firearm (18 U.S.C. §§ 922(j), 924(a)(2)).

Please note: Evidence suggested that the stolen firearm Mendenhall possessed came from a pawn shop he burglarized. The burglary resulted in losses to the pawn shop owners which were the basis for the court’s restitution order. The panel suggested that restitution orders will likely be affirmed on appeal if the government includes in the plea agreement’s factual basis a description of the conduct on which the loss is directly based.

Sandusky v. Goetz, 2019 WL 6834803 (10th Cir. December 16, 2019) (CO): In every year since 2014, Congress has passed an appropriations rider which stipulates that the Department of Justice may not use appropriate funds to obstruct states from promulgating and enforcing their own laws legalizing acts pertaining to medical marijuana. Sandusky was convicted in federal court of trafficking marijuana. He filed a habeas petition under 28 U.S.C. § 2241 arguing that his conduct complied with California state law. Since the rider was in effect, he said that the Bureau of Prisons cannot expend funds to incarcerate him. The district court dismissed his petition because it believed his claim did not fall under § 2241.

The panel disagreed. Sandusky was not contesting his conviction or sentence. Instead he was challenging only the execution of his sentence and § 2241 is the correct statute under which to make that challenge. The panel reversed the district court and directed it on remand to consider the merits of Sandusky’s petition. The panel noted his petition raises an issue of first impression.

United States v. Robertson, 2020 WL 54652 (10th Cir. January 6, 2020) (NM)

Robertson pleaded guilty to being a felon in possession of a firearm. The probation office asked the court to apply a ten level enhancement: four levels under USSG § 2K2.1(b)(6) for assaulting a police officer with the firearm; and another six levels using U.S.S.G. § 3A1.2(c)(1), the official victim enhancement, because it claimed Robertson assaulted the officer in a "manner creating a substantial risk of serious bodily injury." After an evidentiary hearing at which the officer who shot Robertson testified, the district court applied those enhancements. Robertson’s imprisonment range went from 46 to 57 months to 120 to 150 months.

Robertson’s appeal raised numerous issues, the most important of which were that, (1) because of the disproportionate impact the enhancements had on the recommended imprisonment range, the district court should have required they be proven by clear and convincing evidence; and (2) the district court used Robertson’s silence at the sentencing hearing to improperly justify its application of the sentencing enhancements.

The panel majority held that in this circuit, due process does not require a standard higher than a preponderance of the evidence, irrespective of the effect contested enhancements may have on the accused’s sentence. Here, those enhancements almost tripled the imprisonment range Robertson faced without them. The panel also was untroubled by the district court’s comments that it was "surprised it didn’t hear from the main player" who it believed should tell it that he did not point a gun at the officer. When counsel noted Robertson was challenging the officer’s version of events, the court again stressed that it had not heard Robertson say that under oath but it had heard the officer’s sworn testimony - which was not countered by Robertson’s. The panel said the court’s comments were "ambiguous" and could simply have been "an observation" after it discounted the testimony of an eyewitness.

Judge Briscoe, in her dissent, agreed with Robertson that the district court inappropriately commented on Robertson’s silence and considered it in its sentencing deliberation. Analyzing this issue using the plain error standard, she would have remanded the case for re-sentencing.

United States v. Tony, 2020 WL 413445 (10th Cir. January 27, 2020) (NM): A remarkable reversal of a first degree murder conviction by our Colorado FPD colleague Josh Lee. The panel held the district court incorrectly excluded evidence that the alleged victim used methamphetamine before he fought with Tony because its reasons for doing so were unsupported by the record.

Tony admitted that he killed the victim but denied it was pre-meditated because he was defending himself. The district court allowed him to present evidence of the victim’s erratic and violent behavior. But it refused to let Tony offer evidence that the victim had been using methamphetamine during the fight and that methamphetamine caused his aggressive behavior. The court said Tony had not identified a permissible purpose for the methamphetamine evidence.

The panel disagreed. Tony had identified a proper purpose: the victim’s hostile actions toward Tony were fueled by methamphetamine. The panel also discussed why it could not affirm the conviction on alternative grounds. If this evidence was lacking a foundation in expert testimony it might be inadmissible. But here, the panel said, a reasonable jury would not need an expert to conclude the victim had been under the influence of methamphetamine. There was evidence that the victim had methamphetamine on him and in his bloodstream. Also lay witnesses "might have been able to testify that he was high." (emphasis added). Tony would not have needed an expert to show that methamphetamine causes erratic violent behavior.

The panel ordered the district court to vacate the conviction and conduct a new trial because its error was not harmless. It dismissed the government’s contention that Tony still was able to argue self-defense based on the victim’s erratic and violent behavior. The panel said the government did not address how the methamphetamine evidence might have affected Tony’s insistence that his actions were not premeditated. Without an argument on premeditation, the government could not satisfy its harmlessness burden.

For appellate types: It is worth noting that the panel declined to order a limited remand for the district court to decide the admissibility of the methamphetamine evidence under Fed.R.Evid. 403. It explained that would "create a dilemma for the district court, which would have an overwhelming temptation to rationalize the exclusion of evidence under Rule 403."

United States v. Rubbo, 2020 WL 416410 (10th Cir. January 27, 2020) (CO): On appeal Rubbo complained that the government breached the plea agreement by recommending a 15% departure rather than the 20% departure called for in the agreement. The panel held the express language of the agreement shows that the government did not "unequivocally" promise to recommend a departure of a certain percentage.

The panel explained the government’s promises were conditional. First, Rubbo had to fully and truthfully cooperate with the government. While on bond Rubbo contacted a known witness to continue his fraudulent scheme and did not tell the government he had done so. Rubbo did not satisfy this condition. Second, the government qualified its departure recommendation by saying it "expected to recommend a 20% departure." Third, the government retained the "sole discretion" to evaluate Rubbo’s cooperation. Given how the government’s obligations were conditioned, the panel found the government had not violated the plea agreement.

US v. Sophia Zayas, No. 18-2154 (10th Cir. Feb. 6, 2020):

The Tenth Circuit reverses the district court’s denial of Ms. Zayas’ motion to withdraw her plea of guilty to the New Mexico crime of child abuse resulting in great bodily harm, through the Assimilated Crimes Act. When she pled, the required mens rea was criminal negligence, which could be satisfied by the government showing the defendant disregarded a risk of which she knew or should have known. Six months later, the New Mexico Supreme Court sua sponte overruled its precedent and held that the requisite mens rea was recklessness – that the defendant consciously disregarded a substantial and unjustifiable risk. Ms. Zayas moved to withdraw her guilty plea, arguing it was not knowing and voluntary because the district court had failed to adequately explain the mens rea requirement. The district court denied the motion, reasoning that the information adequately informed Ms. Zayas of the recklessness requirement and she had admitted facts consistent with that requirement. The Tenth Circuit reviewed the pleadings and the plea colloquy and concluded that nothing showed Ms. Zayas was told that the government would be required to prove that she actually knew, rather than merely should have known, of the risk. Moreover, she did not admit that she knew of the risk but repeatedly stated that she believed the government could prove that she should have known of the risk. The government argued it should be presumed her attorneys informed her of the recklessness mens rea at the time of her plea. The court rejected that argument because, at the time of the plea, there was no reason for her attorneys to so advise her. The mens rea at the time was negligence. Her attorneys had no notice that the government would be required to prove recklessness. Because subsequent developments in NM law made it clear that the negligence standard was not good law, she was not informed of the elements of the offense to which she pled guilty. Accordingly, her plea was not knowing and voluntary.

U.S. v. Gaspar-Miguel, 947 F.3d 632, 19-2020, 2:18-PO-2441 RB-GBW (Jan. 16, 2020) (D. N.M.)

Petrona Gaspar-Miguel, a citizen of Guatemala, crossed the border on foot with a group of other migrants. A Border Patrol agent watched the group through binoculars from the time they crossed until they were apprehended. Ms. Gaspar was charged illegal entry without inspection, in violation of 8 U.S.C. § 1325(a)(1).

The matter proceeded to a bench trial before a magistrate judge. At the close of the evidence, Ms. Gaspar moved for a judgment of acquittal based on the official restraint doctrine, arguing the government had failed to prove her guilty of entry without inspection because she was under continuous surveillance and never free to roam about the United States. She further argued the proper charge was attempted entry without inspection, and she did not have the specific intent to enter illegally. The magistrate judge found Ms. Gaspar guilty on the grounds she had entered without inspection. The magistrate judge did not address the attempt argument.

The district court affirmed the conviction. Although it found that the term “entry” has a long history of requiring not only physical presence in the country, but also freedom from official restraint, it declined to hold that continuous surveillance constituted official restraint.

On appeal, the Tenth Circuit traced the origins of the official restraint doctrine and concluded that even if it assumed “entry” requires freedom from official restraint, continuous surveillance by border patrol agents alone does not constitute official restraint. Since official restraint had not been shown, the element of “entry” into the U.S. was proved, and the Tenth Circuit affirmed the conviction.

This decision creates a circuit split with numerous other circuits that have held that continuous surveillance by law enforcement officers is official restraint that prevents "entry" into the United States.

United States v. Jose Vicente Lira-Ramirez, 2020 WL 1071033 (10th Cir. March 6, 2020) (KS):

The Tenth affirms the denial of Mr. Lira-Ramirez’s motion to dismiss. He was indicted on a charge of illegally reentering in violation of 8 U.S.C. § 1326(a) and tried to make a jurisdictional challenge, arguing that the notice to appear in his prior removal did not state the date and time of his removal proceeding. The defective notice to appear, he argued, meant that the immigration judge at the prior removal proceeding lacked jurisdiction to enter the removal order. The panel says that they have precedent that forecloses this argument (Lopez-Munoz v. Barr, 941 F.3d 1013 + Martinez-Perez v. Barr 2020 WL 253553). In those cases, the Tenth decided that even if the notice to appear was defective, it didn’t matter—an alleged defect in the notice to appear is not jurisdictional.

Despite saying that his argument is foreclosed by precedent, the Court then rejects a “new argument” made by Mr. Lira-Ramirez’ counsel. In 1996, the procedure for starting a removal proceeding changed requiring only one document—a notice to appear. Two documents were previously required (show cause order and notice of hearing). Because the 1996 law did not take immediate effect, there was a transitional provision that covered removals during this time. It allowed commencement of proceedings under either mechanism. Mr. Lira-Ramirez tried to seize on the language of the transitional provision, saying it conferred jurisdiction to the immigration judge. The panel says no—the transitional provision does not clearly show that 8 U.S.C. § 1229 is jurisdictional as § 1229 itself says nothing about jurisdiction or an immigration judge’s power to act.

United States v. Chatman, 2020 WL 1239468 (10th Cir. March 16, 2020) (OK): The panel reverses two of Chatman’s three convictions. A jury convicted Chatman of being a felon in possession of a firearm, obstructing justice by attempting to kill a witness and using a firearm in furtherance of a crime of violence. On appeal Chatman argued the that the facts could not satisfy the elements of the obstruction charge and therefore that charge and the accompanying 18 U.S.C. sec. 924(c) charge must be dismissed. The panel agreed.

Officers ordered Chatman, who was in the back of a van, to step out. After he repeatedly refused, an officer shot him with pepper balls. Chatman fired back at a different officer striking him in the leg. To prove Chatman obstructed justice the government had to present evidence that Chatman intended to kill the officer to prevent a communication about the commission or possible commission of a federal offense. The panel concluded the government failed to prove that intent: when Chatman shot the officer, he “instructed” the five others outside the van to shoot him and then said goodbye to his nearby girlfriend. Since all the officers knew Chatman was a felon and saw him with a gun, these facts do not support a reasonable inference that Chatman shot the officer with the intent of preventing him from telling other officers that he was a felon possessing a firearm.

United States v. Finnesy, No. 18-3045, 2020 WL 1314721 (10th Cir. Mar. 20, 2020) (KS)
Defendant absconded from the halfway house and was charged with escape. He pled pursuant to a plea agreement under which the government agreed to recommend concurrent time with defendant’s state sentence and credit for acceptance of responsibility. Before sentencing, defendant had serious disciplinary incidents. At sentencing, the district court concluded the plea agreement was breached and denied the acceptance of responsibility reduction and government did not have to recommend concurrent time.
Defense counsel asked for a low-end sentence and for the federal sentence to run concurrently with the state one. The Government asked for the opposite.

The district court tentatively concluded it would sentence Finnesy at the high-end of the sentencing range and would run his sentence consecutive to the state sentence. Defense counsel objected, saying it was substantively and procedurally unreasonable but couldn’t be specific.

Three issues were raised:

(1) Does the magistrate judge have jurisdiction to hear pleas? Yes.

(2) Did the district court err in failing to apply U.S.S.G. § 5G1.3(b) and running the sentencing concurrently? No “clear and obvious” error here. The objection wasn’t preserved for de novo review because defense counsel’s general request for a concurrent sentence was insufficient.

(3) Did the district court err in denying the acceptance of responsibility reduction based on the government’s refusal to recommend it? Again, Tenth deems there’s no “clear or obvious” error.

Bottom line: Be specific with objections.

United States v. Blackbird, 949 F.3d 530, 532 (10th Cir. 2020)
USSG § 2A3.2(b)(1) – 4 level enhancement for Sex Abuse of minor in custody or care or supervisory control of defendant
The Tenth interprets this enhancement as requiring the defendant must have a degree of authority or control over minor. Mere proximity or familial relationship not enough; age of minor also a consideration

United States v. Wagner, 951 F.3d 1232 (10th Cir. 2020) sufficiency possession & receipt child porn; warrant - good faith exception; warrant – staleness; statement –voluntariness; Miranda – in custody; outrageous gov. conduct; hearsay – statement of party opponent.

Short version: Good faith exception allows out-of-jurisdiction warrants for child porn on the internet. If you have child porn, you’ll hoard it so staleness isn’t a concern. If you are talking to agents on your front porch, you are not in custody; agents giving you a chance to explain isn’t coercive or implied leniency so you’re statement is voluntary. Government seizing control of servers and continuing to operate them as usual is not outrageous government conduct. Downloading child porn sufficient for receipt.
is

United States v. Manzanares, No. 18-2010, 2020 WL 1898797 (10th Cir. Apr. 17, 2020)

The Court affirms its prior holdings that New Mexico robbery (aggravated or not) is a crime of violence, post-Stokeling. The Tenth holds that Stokeling did not alter its holding in Garcia. Its subsequent decisions in Ash (finding MO robbery is an ACCA predicate) and Bong (finding that Kansas robbery is not an ACCA predicate) also make no difference on the binding Garcia precedent.

Also still qualifying as ACCA predicates are New Mexico aggravated assault and aggravated battery.

United States v. Sandoval, No. 19-2041, 2020 WL 2603208 (10th Cir. May 22, 2020)

This was a DWI/car accident case where the defendant was sentenced under U.S.S.G. § 2A2.2 and was subject to an increased aggravated assault sentence because the victim lost part of her pinky finger in the accident. At sentencing, the defendant argued that the guideline does not adequately reduce sentences when the assault is committed recklessly. In addition, because the adjusted offense level ended up calculating to one level below the base offense level for involuntary manslaughter involving the reckless operation of a means of transportation, it was disproportionately high.

The Court concluded that while differences in mental states usually do matter at sentencing, other factors matter too--like degree of injury or the relationship between the defendant and victim. And because cases like US v. Zunie, 444 F.3d 1230, have held that reckless and intentional mental states are interchangeable in DWI crimes, the Commission has had an opportunity to punish reckless conduct less severely but hasn't chosen to. It also determined that the "permanent injury" that the victim suffered to her finger was a matter of happenstance, and that the argument to lower the starting point for aggravated assaults that result in permanent injury by way of recklessly-committed DWI could just as easily be turned into an argument to increase the involuntary manslaughter guidelines.

One useful thing in the opinion (that might be more meaningful for appellate practitioners) is FN 5, which reinforces the idea that the "presumption of reasonableness" doesn't insulate within-Guidelines sentences from appellate review.

Traffic Stop Was Not Unreasonably Prolonged

United States v. Morales, 2020 WL 3041600 (10th Cir. June 8, 2020) (N.D. OK): The panel holds that an officer did not unreasonably prolong a valid stop by gathering information about the driver and passenger during a 15 minute phone call with the El Paso Intelligence Center (EPIC), a national law enforcement database. Quoting United States v. Mayville, 955 F.3d 825, 827 (10th Cir. 2020), the panel said that the “touchstone of the Fourth Amendment is reasonableness rather than efficiency.”