United States v. Booker

United States v. Booker, 63 F.4th 1254 (2023) Supervised Release Sentencing Short version: Judge should not consider the retribution prong when thinking about sentencing on revocations Long version: Section 3553(a)(2) requires the judges to consider: retribution, deterrence, incapacitation, and rehabilitation. Subsection A which is “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment” is known as the retribution prong (seems a bit of a misnomer to me but SCOTUS didn’t ask me – go figure). Now for supervised release revocation/modification the statute (§ 3583(e)) instructs to think about some 3553(a) factors but noticeably the retribution prong is not on that list. And under canons of statutory construction this means the court should not consider this prong. Since the judge did mention this during the sentencing spiel, it’s error. But (because there is always a but) it is harmless because it was “a formulaic recitation of a statutorily enumerated sentencing factor” and Mr. Booker would have received the same sentence.

United States v. Hayes

United States v. Hayes, 62 F.4th 1271 (10th Cir. 2023) Fourth Amendment Traffic Stop & Drug Dog Alert Mr. Hayes was driving along I-25; he had a suspended license. The DEA had also been investigating Mr. Hayes for quite a bit. They used GPS data from his phone and got his phone calls (he made a lot of calls to drug users and dealers), noticed he hung out with a known drug trafficker, and made multiple short trips between Denver and Billings. Mr. Hays and his known drug dealing friend, Dembo, were once more on the road for a trip between Denver and some point North (probably Billings but they were stopped in Wyoming, so we don’t actually know their destination). Cheyenne Police and the DEA together decided to stop him for his suspended license. The stopping officer (Norris) had coordinated with two other cops, one of whom happened to have a drug dog, so that they all converged on the car at once. For whatever reason, instead of telling Mr. Hayes he was stopped for driving on suspended license, Officer Norris told him that the temporary tag was flapping around and hard to read and asked him to step out of the car. Immediately after Mr. Hayes gets out of the car, Officer Norris tells him to turn around and handcuffs him. Norris told Mr. Hayes he was not under arrest but Norris needed to check him for weapons. (Mr. Hays proceeded pro se and it does not appear that the immediate handcuffing was challenged; although, even if it was and was successful, I’m not sure you could get around inevitable discovery.) While this was happening, Officer Koepel got her drug dog out. Officer Norris completed the handcuffing five-seconds before the dog alerted. Turns out Mr. Hayes had some of a variety of illicit drugs and a gun. Mr. Hayes concedes that the initial stop because of his suspended license was good. The majority opinion says the stop was fine but doesn’t give any analysis. Briscoe would uphold the stop because there was plenty of evidence to support reasonable suspicion of drug trafficking: the calls, the trips, the fact he had a two-hour detour to a hotel where he took nothing in but came out with a duffel bag, his criminal history of dealing, and witness statements and identifications that he was dealing. Thus, in Briscoe’s mind from the get-go there was reasonable suspicion to run the dog and then once the dog alerted, it was all gravy. Baldock, on the other hand, decides to focus on Rodriguez moment[1] of five seconds between when Officer Norris finished handcuffing Mr. Hayes and when the drug dog alerted. To do this, he ignores all the stuff about Mr. Hayes drug trafficking and instead focuses only on the suspended license. He then says that the Fourth Amendment doesn’t like bright line rules and focusing on de minimis extension would do just that so therefore the five seconds was reasonable. He then points to Rodriguez for the idea that the mission of the stop includes related safety concerns. And concludes that the officers had not addressed all the safety concerns by the time that Mr. Hays was handcuffed – Dembo was still in the passenger seat of the car and Mr. Hays was known to have guns.

United States v. Diaz-Menera

United States v. Diaz-Menera, 60 F.4th 1289 (2023) Sentencing – Guidelines Calculation Money Laundering USSG § 2S1.1; appropriate base level i.e., underlying offense Short version: Conspiracy to traffic drugs can be underlying offense for laundering money USSG § 2S1.1(a)(1). More broadly, conspiracy can be the underlying offense for money laundering. Long version: “Authorities” were investigating Jose Manual Aveja for drug-trafficking. Mr. Aveja met a white van in a public parking lot; he took something from the van and put it in his car and puttered away. Some cops followed him, stopped him in Texas, and found four kilograms of meth. Other officers followed the white van to a house; they watched the house, observed two cars come, stay for a short while, and leave. Officers followed these cars and stopped them. The car our client drove happened to have $99,900 cash. The residence had “$400,000 (bundled in the same way as the $99,900), a gun, a drug ledger documenting over $1 million in drug sales over the prior five months, and a flattened cardboard box stained with methamphetamine residue.” at 1291. Mr. Diaz-Menera estimated he’d laundered around $1.5 million over the prior 7-8 months and he knew it came from illegal activities but declined to say what those illegal activities were. The Government charged him with conspiracy to distribute meth and conspiracy to launder money. He pled to the money laundering count, and the Government dismissed the drug conspiracy. The plea agreement also detailed that the Government agreed he got a 2-level reduction for acceptance of responsibility under USSG § 3E1.1(a) if he complied with the plea agreement, committed no further crimes, and did not “falsely deny or frivolously contest relevant conduct.” And if Mr. Diaz- Menera qualified for the additional one level drop under USSG § 3E1.1(b), the Government would ask for it. (Government has to ask for the decrease under § 3E1.1(b).) Probation figured that laundered money came from drug sales and looked to the guideline for drug conspiracy (§ 2D1.1). The figured he had 321 kg of meth (they totaled the estimated $1.5 million with the $99,900 from the car and the over $400,000 from the house and divided it by Oklahoma City’s per kg price of meth of approximately $6,250 (which they do not tell us how they came to – maybe they have an anonymous survey?)). This gave his a base level of 38 (under the drug conspiracy guideline as directed by §2S1.1(a)(1)(A)) Mr. Diaz-Menera objected on 3 grounds: 1) he didn’t personally possess or distribute drugs; 2) he wasn’t a member of the drug trafficking conspiracy; and 3) only the $99,900 could be tied to drug sales. The district court agreed that only $99,900 could be tied to drugs but concluded that conspiracy to traffic drugs could be the underlying offense. This dropped his base level by two. The Government felt that Mr. Diaz-Menera’s objections to the PSR were frivolous so did not ask for the one-level drop under § 3E1.1(b). The Government conceded on appeal that the agreement was that they would ask for the one-level drop if that subsection applied, the court applied the two-level drop, and he timely accepted the plea. The frivolous objections didn’t apply. (Though I sincerely wish the Tenth Circuit pointed out if the district court agreed with the objection, it’s not frivolous, they did not. Sigh.) After all is said and done, his guideline range ended up being 262-327 months but money laundering has a statutory maximum of 240 months. See 18 USC § 1956(a)(2). The district court granted a downward departure and he ended up with a sentence of 168 months (or 14 years). The money laundering guideline (§ 2S1.1) differentiates between “direct money launderers” (those personally involved in the underlying offense) and “third-party money launderers” (those who launder money without involvement in the underlying offense). The actual language of § 2S1.1(a) is: “1) The offense level for the underlying offense from which the laundered funds were derived, if (A) the defendant committed the underlying offense (or would be accountable for the underlying offense under subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct)); and (B) the offense level for that offense can be determined; or 2) 8 plus the number of offense levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the value of the laundered funds, otherwise.” So, we flip to § 1B1.3. Subsection (A) limits conduct to only the defendant’s own conduct; subsection (B) includes acts and omission of others. The majority tells to pay no mind this distinction because we don’t need to go to § 1B1.3(a)(1)(A) – and points us back to the money laundering guideline. He joined the conspiracy so he’s liable for the results of the conspiracy. The dissent (Ebel) points out that the actus reas of conspiracy is the agreement and the agreement by itself does not product any moo-lah. It is only the crime underlying the conspiracy (here the actual selling/trafficking) that generates the money. Ebel point out the majority’s reading of the money laundering guideline elides direct money launderers and third-party money launderers by making subsection (a)(2) superfluous. The distinction in relevant conduct supports the dissent’s reading – remember the majority said we didn’t need to bother our pretty little heads with relevant conduct so they don’t really account for it. The Tenth Circuit is the first to address head on if a drug conspiracy is properly the underlying offense.

United States v. O'Neil

United States v. O’Neil, 62 F.4th 1281 (10th Cir. 2023) Eyewitness ID; Fourth Amendment/inevitable discovery Short version: Even though law enforcement used an unnecessarily suggestive identification procedure, the ID was perfectly fine because it was reliable (opportunity to observe, attention paid, and accuracy of description). Thus, jury could determine worth of ID. Gun was not suppressed because government would have inevitably discovered it pursuant to an inventory search after arrest. Long version: In a UNM parking lot at night, driver gets out to pay, passenger stays in the car. She notices a guy looking into car windows some cars down carrying a gun. Eventually makes it to their car, peers into window, passenger peers back. Driver shows up and the peeper and he make “hard eye contact.” Peeper shows driver the gun and removes magazine. Driver has familiarity with guns says it looks like a 9mm. Driver gets in the car. They drive off, passenger calls 911, and they head to UNM police station where they recount their experience. They describe the guy as white, wearing a hoody, with facial hair, and having a slender build. UNM police swarm the parking lot (it does not give any sort of time frame). An officer notices a guy in a hoody, sitting on a bench, holding a black object that officer believed was a gun (turns out to be a shoe) with a backpack and small dog. (We have no idea what happens with the dog.) Police tell him to put his hands up but he instead walks towards the police. On third demand to put his hands up, he does as officers ask. Officers handcuff him and then it appears they all stand around. Meanwhile another UNM cop retrieved the driver and passenger and drove them back to the parking lot. They identify the guy in the hoody as the person they saw (and its Mr. O’Neil). Another officer continues to look for the gun; he decides to search the backpack despite 1) Mr. O’Neil is handcuffed and surround by cops and 2) Mr. O’Neil is more than 20 feet from the backpack. The ID Everyone (including the Government) admits this show-up identification is unnecessarily suggestive. (It is rather a textbook example of a bad ID process.) But they go through 3 of the 5 Biggers[1] reliability factors (certainty, opportunity, attention, description, and time). The Tenth determine the witnesses had plenty of opportunity to observe because the passenger was watching him look into other cars, and then he looked into their car and then the driver stared at him for around a minute. The Tenth used these same factors (differently phrased) in holding the said witnesses paid good attention. Lastly, the Tenth said the witnesses were fairly accurate in their description. (I mean, I think the description is rather vague: some slender white guy in a hoody with facial hair.) The defense challenged the accuracy of the description because Mr. O’Neil was husky. This is where we learn about the dog – Mr. O’Neil argues the dog is distinctive and witnesses would have noticed the dog and included it in the description. The Tenth Circuit thinks the dog is a minor error. The Court does mention the other two factors (time it was within 20 minutes of the incidenct) and the witnesses were certain of their id. Importatnly, the Court acknowledges, albeit in a footnote, that a witness’s certainty does not correlate to accuracy. Fourth Amendment The district court found that there was no exigency such that searching the backpack was necessary. (Remember, Mr. O’Neil was handcuffed, surrounded by cops, and twenty feet away from the backpack.) So that was nice. But then, the district court found that the cops would have inevitably discovered the gun when they inventoried the backpack. The Government did not introduce written polices concerning inventory so Mr. O’Neil argued that the search was unreasonalbe because it didn’t confrom to any policy. But the Tenth Circuit said that didn’t matter because one of the cops testified that they had a procedure that would have had them opening the bag.

United States v. Porter

United States v. Porter, __ F4th __, 2023 WL 3185043 (10th Cir. May 2, 2023) (CO): The panel agrees with district court that when Porter said he did not have a backpack, a reasonable officer would have understood that he had abandoned the pack and had given up any privacy interests in it. An arrest warrant had been issued for Porter. A detective went looking for him at the warehouse where he worked. Porter was summoned to the manager’s office where the detective arrested him. The detective asked Porter “if there were any personal belongings there at the job site that he wanted to bring with him.” Porter said, he “didn’t have any personal belongings.” The detective asked him, “what about the backpack I watched you walk in with?” Porter answered that he didn’t have a backpack. The detective had the manager show him Porter’s workstation. He searched that space and saw the pack 15 or 20 feet away. The manager asked another employee if the pack was Porter’s. He said it was. The manager “confirmed the bag belonged to no one else,” and then “urged” the detective “take it with him.” The detective looked inside, saw a handgun’s grip, zipped it back up and got a search warrant. During the search he found a .40 caliber handgun. The government charged Porter with being a felon in possession of a firearm. On appeal he argued the district court incorrectly denied his motion to suppress. The panel held the district court correctly found that Porter had abandoned his backpack. The standard by which the court determines abandonment is objective (and subjective): “in the eyes of a reasonable officer, [did] the defendant manifest an intent to disavow ownership of the property.” Here, Porter’s “denial of ownership was clear and unequivocal.” Porter argued that his comments about the backpack meant that he did not have any property that he wanted to take with him to the station. The panel disagreed. It said that his remarks not only demonstrated to reasonable officer that he had abandoned his bag, they also showed a subjective intent to disclaim ownership.

United States v. Hunsaker

United States v. Hunsaker, 65 F.4th 1223 (10th Cir. 2023) (EDOK): The panel reverses the district court’s application of the aggravating role enhancement for manager/supervisor under USSG § 3B1.1(b). Its analysis is helpful when arguing against an aggravating role enhancement. The district court believed the government and the probation office established that Hunsaker was a manager or supervisor as defined in § 3B1.1(b). The panel disagreed. This 3 level enhancement requires proof that the accused exercised some degree of control over others or was responsible for organizing others for the purpose of carrying out the crime. Put simply, its essential elements are control and organization over subordinate participants. (The panel noted that the “organizer” enhancement does not require proof “of underlings in the endeavor.”). Here, the government did not prove Hunsaker managed or supervised one or more other participants in the drug trafficking organization. The evidence on which it relied consisted of mere “conclusions, not facts.” For instance, a co-conspirator’s remarks that Hunsaker was “second in command” and was “deeply involved” with the leader’s “distribution activities,” said little about whether he was a manager or supervisor at all. Neither the relationship alone, nor the knowledge Hunsaker acquired about the organization establish that he had “the necessary authority and control over another.” To emphasize this point, the panel pointed to 3 factors it said did not prove “decision making authority or control over a subordinate”: (1) agreeing to help the leader retaliate against another; (2) discussing with the leader the need to purchase more drugs; and (3) informing the leader of possible future customers and alternative sources. In the panel’s view, “talk is cheap”: the enhancement must be predicated on “evidence [the] defendant acted in a supervisory or managerial capacity independent of any intimate connection to a major player in the criminal activity.”

United States v. Anderson

United States v. Anderson, 62 F.4th 1260 (10th Cir. Mar. 14, 2023) (NM) The panel finds officers had reasonable suspicion to detain Anderson for jaywalking and harassment; at sentencing the district court could use a police report to support a § 2K2.1(b)(6)(B) enhancement; and the government did not violate Brady when it failed to disclose photographs and test results of the drugs on which that enhancement was based. This unfortunate concatenation of events led to Anderson's appeal. A woman flagged down a passing officer and said the man who was crossing the street had been harassing her. Officers stopped the man and asked if he had any identification. Anderson said he didn’t. They then asked him if he had any weapons. Anderson didn’t answer right away, but eventually said he did not. Because he “appeared particularly nervous, raised his hands, and was wearing a bulky jacket,” [it was December in Albuquerque] one officer patted him down for weapons. None were found. Officers continued to question him about his identity. Anderson gave a false name and social security number. The officers arrested him for concealing his identity. They searched him and found a stolen handgun in his waistband and baggies filled with a “crystal-like substance” which according to the field test was positive for methamphetamine. Anderson was charged in state court for trafficking methamphetamine but that charge was dismissed when he was indicted in federal court for being a felon in possession of a firearm. There he filed a motion to suppress which the district court denied. The panel held that decision was correct. Officers had reasonable suspicion to stop Anderson for jaywalking. The jaywalking ordinance prohibits a person from walking along or upon an adjacent roadway if there is a sidewalk. That is what the officers saw him do. Similarly, officers had a reasonable belief that Anderson had harassed the woman. She expressed concerns about her safety; the officer believed she was in distress; and she claimed Anderson would not leave her alone which established the “repetitive conduct” element of the harassment statue. Thus, the officer had “sufficient” information “to meet the low reasonable suspicion bar.” The panel also rejected Anderson’s argument that the pat-down prolonged the stop and led to the discovery of the firearm. It said, even presuming the officers unjustifiably prolonged the stop, Anderson could not establish a causal link between the Fourth Amendment violation and the officers finding the gun. The officers intended to arrest Anderson for concealing his identity anyway, so the gun would have been found irrespective of the pat-down. Additionally, there was no evidence that the pat-down induced the officers to continue questioning Anderson about his identity. Nor did Anderson argue that the pat-down led him to lie about his identity. Regarding the sentencing enhancement under § 2K2.1(b)(6)(B), the panel found there was enough evidence to prove he possessed the firearm in connection with another offense, namely, possession of methamphetamine. The district court could rely on the officer’s report, attached to the government’s sentencing pleading, in which he said that the substance found on Anderson tested positive for methamphetamine. The government also included the state court indictment charging Anderson with drug trafficking. The panel dismissed Anderson’s contention that neither were reliable support for the enhancement. It said Anderson was not entitled to “a favorable inference” from the dismissal of the state charge. That is because, that charge was dismissed when federal prosecutors took over the case. Further, although neither was admitted as evidence during the sentencing hearing, both still were part of the record. And the officer’s report was corroborated by his lapel camera video which was admitted as evidence during the suppression hearing. The panel pointed out that in McDonald, 43 F.4th 1090, 1096 (10th Cir. 2022) [an opinion reviewed in an earlier update], the accused must say that particular facts alleged are false. A district court’s fact-finding obligation is triggered only when the defense shows certain information was unreliable and “articulate[s] the reasons why the facts contained therein were untrue or inaccurate.” Here, Anderson merely objected to the claim that he possessed methamphetamine, he did not point to any specific facts in the police report that were false. Finally, the panel said the government did not violate Brady v. Maryland, 373 U.S. 83 (1963), when it did not disclose photographs of the drugs, additional test results or information about the field tests used. Anderson did not show that any of this evidence would have been favorable to him.