First Step Act applies only to cases sentenced after its enactment

United States v. Jefferson, ___F.3d___, 2021 WL 868496 (10th Cir. 2021) (application of First Step Act to pending cases) The First Step Act is not ambiguous; it says it applies to cases where the sentence “has not been imposed” by December 20, 2018 (date of enactment). Mr. Jefferson’s case was on appeal at that time but he was sentenced in June 2017. “[A] sentence is ‘imposed’ ‘“when the district court announces it, not when appeals are exhausted’.” at *2. Because the FSA is not ambiguous, the rule of lenity does not apply.

Sounds-like-Science is sufficiently sciencey to satisfy Daubert.

United States v. Foust, ___F.3d ___, 2021 WL 786975, (10th Cir. 2021) (Daubert-handwriting) Mr. Foust allegedly faked some invoices and got himself some wire fraud convictions, as well as convictions for money laundering and aggravated identity theft. The evidence mostly centered on some invoices for work the company had not done, specifically on the issue of whether Mr. Foust signed them or wrote them. (The summary was unclear, it seems like some were computer generated and Mr. Foust didn’t get convictions for those, but some were handwritten and he did get convicted on those.) Mr. Foust challenged both the underlying “science” of graphology and that the underlying data (examples of Mr. Foust’s writing) was unreliable. The court says, “[H[andwriting comparison is not a traditional science, and the Daubert factors do not always correspond perfectly.” It is subjective experience based science. Testing of handwriting comparison “mostly falls short of the rigors demanded by the ideals of science,” but it is “tested” in court cases and criminal investigations (yes, seriously, that’s what they said). Because this pseudo-science has a long history, that weighs in favor of admission. The Court also noted that the expert has received training from “forensic organizations and federal agencies” and that this weighs in favor of admission. The Court does recognize that handwriting analysis has been criticized but doesn’t think the lower court abused its discretion in admitting the testimony. The expert explained he preferred his writing examples to be from within a year or two of the writing to be examined. The examples the expert used were 2.5 months and 8 months outside of 2 years. But, this goes to weight, not admissibility.

The "reasonable person" has no race; trial court has "ample" discretion regarding voir dire

United States v. Mercado-Gracia, ___F.3d ___ (10th Cir. 2021)(4th amendment-car; jury voir dire) – The Tenth doubles down on race not being part of the reasonable person standard; i.e., there is no reasonable race-of-your-choice person standard. Thus, in a car stop when the cop calls the driver back, if the driver goes back, the idea that certain races may feel less free to disobey and officer than a white person is of no import. Also, during the consensual encounter, the officer developed reasonable suspicion because Mr. Mercado-Gracia gave confusing explanations for his trip to Albuquerque; did not know the last name of the car’s owner; changed his answer on who was the owner: first a cousin, second: his lady’s husband’s cousin; additionally, he was traveling from Phoenix, a known drug “source city”; and he became increasingly nervous. Thus even though he said no search, because of the reasonable suspicion the officer could run a drug-sniffing dog around the car. The dog alerted and drugs were found. Judges have “ample” discretion in how to run voir dire so the court did not abuse judicial discretion by declining to show a video on implicit bias. At trial, the district court suggested asking about Mr. Mercado-Gracia’s nationality, defense counsel agreed to the question and did ask follow-up questions during her voir dire so the Tenth Circuit felt this undercut the need for the implicit bias video. However, this opinion could be read as providing discretion to show such a video.

First Step Act claims denied based on no abuse of discretion, lack of standing

United States v. Mannie, 971 F.3d 1145 (10th Cir. 8/18/20) (Okla.) – the Tenth affirms denial of sentencing reductions to two defendants under the 2018 First Step Act. An offender is eligible to seek relief under that act if: (1) the offender was sentenced for a federal criminal offense; (2) for which the statutory penalties were modified by section 2 or 3 of the 2010 Fair Sentencing Act; and (3) the offense was committed before August 3, 2010. Although Mr. Mannie was eligible to seek a reduced sentence under the First Step Act, the district court properly exercised its discretion when it denied Mr. Mannie a hearing and a sentencing reduction based on the 3553(a) sentencing factors. Nothing requires the district court to hold a hearing. Although the First Step Act would have applied to defendant Maytubby’s drug conspiracy conviction, the court decides he lacked standing because even if he was afforded relief, it would not reduce the length of his incarceration. He had received concurrent sentences that would be unaffected, imposed on other convictions for the same or greater amounts of time than was imposed for conspiracy. Consequently, there was no live controversy.

Neither Colorado second-degree burglary nor a Colorado juvenile conviction for second-degree assault are ACCA predicates

United States v. Lozado, 968 F.3d 1145 (10th Cir. 7/28/20) (Colo.) – The Court reverses the sentence applying an enhancement under the Armed Career Criminal Act because it finds two of Mr. Lozado’s state offenses could only have qualified as violent felonies under the unconstitutional residual clause. Colorado second-degree burglary of a building is not a violent felony under the ACCA enumerated offenses clause. The state statute defined burglary much more broadly than generic burglary; it included vehicles in the definition of “building.” There were no identified court records that established that the defendant’s conviction was necessarily based on the elements of generic burglary. The district court plainly erred by finding the defendant’s juvenile conviction for Colorado second-degree assault constituted a predicate ACCA felony. A juvenile offense qualifies as an ACCA violent felony only if it requires use or carrying of a firearm, knife, or incendiary device and Mr. Lozado’s offense of conviction encompassed a much broader swath of conduct. Thus, it too did not qualify for the ACCA enhancement.

Published dissent would have reversed use-of-violence sentencing enhancement

United States v. Zarate-Suarez, 970 F.3d 1330 (10th Cir. 8/18/20) (Colo.) – The majority issued an unpublished opinion at 823 Fed.Appx. 665 (10th Cir. 8/18/20), upholding the district court’s conclusion that Ms. Zarate-Suarez was an organizer or leader in the conspiracy to distribute meth and the application of a four-level enhancement based on that finding, as well as a two-level enhancement for directing the use of violence. In this published dissent, Judge Phillips concurred in the application of the aggravating role enhancement, but dissented in a published opinion from application of the USSG 2D1.1(b)(2) use-of-violence specific offense characteristic. He concluded there was insufficient evidence that Ms. Zarate-Suarez used violence, made a credible threat of violence, or directed the use of violence. She was not present when underlings assaulted a buyer who resisted their plan to steal from her and there was no evidence Ms. Zarate-Suarez directed associates to use violence or planned with them for an assault or kidnapping. The 2D1.1(b)(2) text limits a defendant’s responsibility to her own acts. Although the conduct of others may be considered under 1B1.3(a)(1)(B), there was no showing that others’ use of violence was reasonably foreseeable to Ms. Zarate-Suarez. Judge Phillips also disagreed with the majority’s application of the plain error standard to the district court’s error in relying on others’ conduct to enhance Ms. Zarate-Suarez’s sentence under 2D1.1(b)(2); she alerted the district court to her argument against increasing her sentence based on others’ conduct by asserting that it would be improper to enhance her sentence without proof that she herself used violence or threatened or directed the use of violence. Judge Phillips concluded she should prevail even under the plain error standard because under the plain GL text and case law, the district court incorrectly applied the GL. There was a reasonable probability that the district court’s error affected the outcome and the fourth prong of plain error was met as well because it would undermine judicial integrity to permit an individual to linger longer in prison because of an obvious judicial error.

Rehaif given crabbed interpretation by Tenth

United States v. Tignor, 981 F.3d 826 (10th Cir., December 1, 2020): The panel interprets Rehaif v. United States, 139 S.Ct. 2191 (2019), to require only that the government prove an accused knew that his prior conviction was punishable by more than a year in prison. The panel finds the district court plainly erred in not telling Tignor this was an element of the offense to which he was pleading guilty. But Tignor was not entitled to have his guilty plea set aside because he did not show he could plausibly defend against this element at trial. First, when his sentence was revoked on the underlying offense, the state court sentenced him to 7 years in prison, 2 of which he actually served. The panel notes he would not have forgotten the length of that stretch in prison. Second, when he pleaded guilty to the underlying offense, state law required the court to tell Tignor of the possible imprisonment range. According to the state statute, that range was 2 to 20 years of imprisonment. Therefore, it was likely Tignor knew the offense was punishable by more than one year. Third, any belief that his civil rights had been restored by the state in which he was convicted was unfounded: he did not possess the firearm in that state, which allowed felons to possess firearms only inside their homes. Of note: The circuit has not really embraced Rehaif. A keen reader of the circuit’s decisions noted that in United States v. Benton, 2021 WL 687940 (10th Cir., February 23, 2021), the panel significantly limited its value to the defense. There, the panel held that not knowing that one’s prior conviction makes one ineligible to possess a firearm is not an element of the offense. According to the panel, the government has to prove only that the accused was aware that he was convicted of a particular offense. In context, all the government had to prove was that Benton knew he was convicted of a misdemeanor domestic violence offense, not that he knew it prohibited him from possessing a firearm. Therefore, the trial court was not required to instruct the jury that it must find the government proved Benton knew he was prohibited from possessing a firearm as a result of his domestic violence conviction. Although the panel believes its holding is consistent with Rehaif, it is difficult to reconcile its holding with Rehaif’s requirement that the government prove the accused knew he belonged to the relevant category of persons barred from possessing a firearm. It may be worth preserving this issue by asking that the jury instruction include a requirement that the government prove the accused knew that his conviction (or status) made him a person prohibited from possessing a firearm. At least one Albuquerque district judge is using Benton as a guide for jury instructions. The Supreme Court is not done with Rehaif. It granted certiorari in two cases derived from Rehaif. In United States v. Gary, No. 20-444, it will decide whether a defendant who pleaded guilty to possessing a firearm as a felon, is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings. If it rules in Gary’s favor, it will necessarily overrule Tignor and United States v. Trujillo, 960 f.3d 1196 (10th Cir. 2020). In Greer v. United States, 19-8709, the question presented notes that Rehaif held that the government must prove not only that the defendant knew he possessed a firearm, but also that he knew he belonged to the relevant category of persons barred from possessing a firearm. The specific question the Court will address is whether when applying plain-error review based upon an intervening Supreme Court decision, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity, or public reputation of the trial? Arguably, a favorable ruling for Greer puts Tignor's continuing validity in question.

Any traffic violation can provide reasonable suspicion for a stop

United States v. Meadows, 970 F.3d 1338 (10th Cir. 2020) (fourth amendment – traffic stop) An officer stopped Ms. Meadows because he believed the window-tint was too dark. Of course, he found drugs and paraphernalia. Ms. Meadows argued that since Utah decriminalized traffic violations, there was no reasonable suspicion for the stop (because no crime). The Tenth Circuit was having none of that. Traffic violations even if only civil penalty still give cops reasonable suspicion to stop people.

Court affirms drug convictions; addresses when conduct is one or two conspiracies

United State v. Mier-Garces, 967 F.3d 1003 (10th Cir. 2020) (Double jeopardy – conspiracy; USSG § 2D1.1(b)(12) (maintaining premises to manufacture or distribute)) Short Version: 1) Double jeopardy – conspiracy A) To determine if two or more conspiracies are actually one conspiracy (for Double Jeopardy) the test is if the conspiracies are interdependent. If no direct evidence of a shared, single criminal objective between conspiracies, the court can also look at “same evidence” test i.e. “commonalities – including time, place and personnel” to see if the conspiracies are interdependent and if pled, activities in furtherance of the conspiracies; and the statutory object of the conspiracy. B) Court of Appeals limited review of evidence to that presented at the pre-trial hearing on this issue because the attorney didn’t renew the motion during or after trial – so evidence at trial about the conspiracies was not considered. 2) USSG § 2D1.1(b)(12) (maintaining premises to manufacture or distribute) The evidence was sufficient to support two-level enhancement for maintaining premises for manufacture/distribute because Mr. Mier-Graces admitted to using the home to store drugs and conceal them in vehicles for transport on bi-weekly basis. District court found that defendant did not really live in home, because there was no furniture, refrigerator, or stove; it was very messy (so messy as to preclude use as a home according to the judge); and because he did not receive mail at that address. Long Version: The Government charged Mr. Mier-Garces with conspiracy to distribute controlled substances in the Western District of Texas and in the District of Colorado. His role was to take a vehicle from an El Paso parking lot to his home in Chaparral, New Mexico, and fill it with either drugs or money, then return it to the parking lot where someone else would drive the vehicle elsewhere (usually Denver) and once to Albuquerque. The Texas charge came from the one trip to Albuquerque and was limited to one day (March 8, 2015). The Colorado charges were from the Denver trips and spanned years (December 2013 to March 2016). The Court limited review of evidence to that presented at the pre-trial hearing because the attorney didn’t renew the motion during or after trial – so evidence at trial about how the conspiracies worked/overlapped was not considered. To prove one conspiracy and not more, a defendant must prove that the conspiracies share a single criminal objective; in other words, one conspiracy “was designed to further and to promote the success” of the other conspiracy (at 1025). It is not sufficient that they share a common goal. Example: conspiracy to get pot from Florida and Kentucky, then combine the pot to sell in New York is one conspiracy, but a conspiracy to get pot from Florida and Kentucky just to sell pot would be two conspiracies. Here, the court determined that the purposes of the Albuquerque trip and the Denver trips were similar or parallel but not the same. Court admits there were time overlaps, and the Chaparral home is the same, but different people (noting that the evidence that came out at trial about the source of the drugs is not considered because counsel did not renew the motion) were involved in the Denver and Albuquerque trips. Evidence was sufficient to support two-level enhancement for maintaining premises for manufacture/distribute because Mr. Mier-Graces admitted to using the home to store drugs and conceal them in vehicles for transport on bi-weekly basis. District court found that defendant did not really live in home, because there was no furniture, refrigerator, or stove; it was very messy (so messy as to preclude use as a home according to the judge); and because he did not receive mail at that address.

Sentencing enhancement for having prior crime of violence conviction was plain error

United States v. Silva, 981 F.3d 794 (10th Cir. November 24, 2020): Silva pleaded guilty to being a felon in possession of a firearm. On appeal, he argued that the district court plainly erred when it used USSG § 2K2.1(a)(4)(A) to enhance his base offense level for allegedly having a prior crime of violence conviction. The panel held Silva satisfied all four plain error elements and reversed his sentence. Section 2K2.1(a)(4)(A)’s application note 10 states the higher offense level for a prior crime of violence conviction applies only when that conviction receives criminal history points under § 4A1.1(a), (b), or (c). Application Note 3(A) to § 4A1.2 says for the purposes of determining a predicate offense, a prior sentence included in a single sentence should be treated as if it received criminal history points if independently it would have received criminal history points. But only one sentence from any single sentence can count as a qualifying predicate, even if more than one conviction was independently eligible to receive points. This is so because two convictions cannot be counted as predicate offenses unless they are separate as described in § 4A1.2(a)(2). Here, Silva’s state convictions for burglary and assault were entered on the same day in 2005. There was no intervening arrest between the two offenses. The state court sentenced him to 2 years of imprisonment on the burglary and fined him for the assault. The PSR treated them as one sentence for criminal history purposes. Since Silva’s assault conviction was imposed over 10 years before he committed the current offense, it was not independently eligible to receive criminal history points (see § 4A1.2(e)(2)), and thus was not a qualifying predicate under § 2K2.1(a)(4)(A). Since the court's error affected its calculation of the guideline imprisonment range, Silva was entitled to a presumption that the 3d and 4th elements of plain error were met as well.

Reimposition of supervised release conditions affirmed

United States v. Henry, 979 F.3d 1265 (10th Cir. November 10, 2020): A defense challenge to supervised release conditions fails, providing a lesson in preservation and demonstrating the limited value of challenging reimposed conditions of release not objected to at the original sentencing. A district court in Michigan sentenced Henry to 100 months in prison and 10 years of supervised release. The release conditions included the probation office’s advanced approval of any employment, the completion of a substance abuse program and no alcohol use. Two months into his supervision term, which had been transferred to Colorado, Henry disappeared. When he was found, the court held a revocation hearing. Henry objected to the court reimposing conditions that his employment be approved in advance by the probation office and that he participate in and successfully complete a drug abuse program. The court said that since those conditions were imposed by the sentencing court, it could not change them. On appeal, Henry argued that the district court incorrectly concluded it was required to reimpose the employment approval and substance abuse program conditions. If the court was wrong, then he was entitled to a remand for the district court to consider, according to 18 U.S.C. § 3583(d), whether those conditions are appropriate. The lesson in preservation: The panel reviewed these issues for plain error. It acknowledged Henry objected to the court imposing these two special conditions again. However, “he did not object to the district court’s failure to consider the factors required by § 3583(d) when it ruled on the objections.” To avoid plain error review Henry was expected to make the “specific procedural objection” that the district court did not independently assess whether those previously imposed conditions were necessary. The limited value of challenging reimposed conditions under the plain error standard: The panel acknowledged that the district court did not give individualized reasons for reimposing the employment approval and drug abuse program special conditions. The panel noted that the court’s comments that Henry created a risk to the community did not directly address any of the challenged conditions. Still, even if the court did err it was not plain and it is improbable that the outcome would have been different without the error. The panel reasoned that the conditions originally imposed - and to which Henry did not object at the original sentencing - would have remained in effect had Henry not absconded. He shouldn’t be allowed to benefit from violating supervised release by having those conditions removed. Besides there were valid grounds for these conditions: Henry was never consistently employed and he admitted to abusing alcohol and drugs before he was arrested.

Money laundering, drug trafficking convictions affirmed for two brothers operating medical clinics

United States v. Khan, 2021 WL 732348 (10th Cir., Feb. 25, 2021). (Wyo.) Dr. Khan and his brother, Nabeel, were convicted of drug trafficking and money laundering. Numerous issues were raised on appeal including the validity of the search warrants issued and executed at a business and two residences, the denial of a motion for a new trial, and errors while instructing the jury. The brothers unlawfully operated two pain clinics in Arizona and Wyoming. Dr. Khan maintained residences in both states, while Nabeel resided in Dr. Khan’s Arizona residence. Dr. Khan’s wife, Lyn, managed the Wyoming office, while Nabeel managed the Arizona office. Patients at both clinics were unlawfully prescribed controlled substances based on payment and not medical needs. The clinics operated on a cash only basis with the option of payment in personal property, including firearms. After the death of a patient, law enforcement began surveilling their operations. Search warrants were issued and executed at both residences and a separate business, called Vape World, owned by Dr. Khan and Lyn. At the Arizona residence, 51 patient files were seized pursuant to the warrant; along with one million dollars, over 40 firearms, and automobiles, items not listed on the warrant. All three were indicted. Lyn pled guilty to a conspiracy charge prior to trial. The defendants challenged the scope, seizures, and validity of the search warrants. They argued that the Arizona residence was not Dr. Khan’s primary residence and that the government failed to establish a nexus between this residence and evidence of a crime. Defendants further claimed that the warrant for the Wyoming residence lacked probable cause, while the affidavit for the business warrant also failed to prove a nexus of criminal activity and that specific business. As to the patient files, they contended that the affidavit in support of the warrant established probable cause for only eight patients. The defendants argued that the plain view doctrine was not applicable for two reasons: (1) there was insufficient probable cause that required additional investigation, and (2) the items were not inadvertently discovered. They asserted that officers had grossly exceeded the scope of the warrant based on the seizure of items not listed on the warrant. Defendants argued that the district court erroneously denied the motion for a new trial after unfairly prejudicial witness testimony referencing Dr. Khan’s incarceration was presented to the jury. Finally, they argued that the jury was not properly instructed on the good faith defense given the different evidence requirements imposed on each defendant. Dr. Khan specifically argued that the jury instruction on intent unfairly burdened his right to testify because the instruction directed the jury to disregard his testimony. The Court found that the searches of both residences and the business were proper since the magistrate judge’s findings of probable cause were supported by a substantial basis. The search warrant for the Arizona residence established an adequate nexus between evidence of a crime and the residence. There was probable cause to search the separate business given the numerous criminal related transactions that took place there, including a bank deposit of a patient’s check that was linked to that specific business. The seizure of the money and firearms was supported by the plain view doctrine. Since automobiles were the only items seized not listed on the warrant, the officers did not grossly exceed the scope of the warrant. Due to the overwhelming amount of evidence of guilt, there was no reasonable possibility that witness testimony affected Dr. Khan’s conviction. The Court noted that a mere reference to jail calls was no different to the prejudice suffered by a defendant who appears before the jury in shackles or prison clothing. The district court’s good faith instruction was proper because it is a defense to the lawfulness of a prescription and not mens rea as argued by the defendant. The district court also properly instructed the jury on intent as it did not direct the jury on how to weigh Dr. Khan’s testimony, but simply left the weighing of competing evidence entirely up to the jury.