United States v. Canada

United States v. Canada, 74 F.4th 1304 (10th Cir. 2023): Mr. Canada appealed the denial of his motion to suppress on the grounds the officers lacked reasonable suspicion to engage in a warrantless protective sweep of his vehicle. The majority Judge Rossman dissented) upheld the district court’s determination that officers had reasonable suspicion Mr. Canada was both dangerous and may gain immediate access to a weapon based on his “slow roll” and furtive movement towards the backseat. Mr. Canada was pulled over on a rainy evening for failing to use his turn signal. He was driving through a high-crime area where Officers Jensen and Sanders were conducting a proactive patrol. After the officers engaged their emergency lights, Mr. Canada took approximately fourteen seconds to come to a stop. Dash camera footage showed Officer Jensen comment, upon exiting the patrol car, that the stop appeared to be “a little bit of a slow roll here.” At the suppression hearing he testified the stop did not take “an absurd amount of time,” but it was “a little bit longer than usual.” He further testified a “slow roll” may suggest that the driver “is attempting to hide or retrieve something inside the vehicle, maybe trying to come up with an exit plan or strategy, decide if they want to stop or don’t stop.” On his approach to the passenger side of the vehicle, Officer Jensen saw Mr. Canada “strenuously arching his hips, reaching his right arm under the rear of his seat with his head facing kind of off his shoulder.” This movement caused Officer Jensen to order him to show his hands and Officer Sanders removed him from the vehicle on the driver’s side. Mr. Canada fully cooperated and a frisk revealed nothing on him. Mr. Canada was moved towards the trunk of his vehicle while Officer Jensen conducted a protective sweep under the driver’s seat and located a loaded .38 Special. The majority determined they need not address Mr. Canada’s argument that officers relied only on his furtive movements to justify their protective sweep because they could also consider the “slow roll” comment. The comment was “a contemporaneous observation from a trained officer” rather than a post hoc rationalization for the protective sweep. Practice tip: try to distinguish your case if you have dash cam/audio and the facts going to reasonable suspicion don’t come out until later through a written report and/or testimony at a suppression hearing. The majority determined the “slow roll”, and furtive movement were enough to establish reasonable suspicion that Mr. Canada was both dangerous and had access to a weapon. They reasoned that, even if officers weren’t sure whether they were going to arrest Mr. Canada, he was not handcuffed or detained in a squad car and could have broken away to access a weapon. Judge Rossman’s dissent is worth reading as it analyzes a “tension in our reasonable suspicion jurisprudence, specifically our two-part clear error/de novo standard of review.” Judge Rossman points out the Tenth Circuit’s “light most favorable” language doesn’t come from a Fourth Amendment case and that despite the Supreme Court’s directive in Ornelas requiring clear error review of factual findings and de novo review of “the ultimate questions of reasonable suspicion”, “our Circuit’s continued application of the a light-most-favorable bias does not abide the standard formulation of clear error review and is incompatible with a principled de novo analysis.” Judge Rossman was not persuaded the “slow roll” by Officer Jensen went to reasonable suspicion since Mr. Canada took only 14 seconds to stop on a dark and rainy night. She reasoned a de novo review of all the facts of the stop (weather, time of day, multilane road with other drivers) led her to conclude Mr. Canada pulled over promptly and the district court erred by crediting the “slow roll comment” at all. Please consider highlighting the issue raised by Judge Rossman in future 4th Amendment cases.

United States v. Faunce

United States v. Faunce, 66 F.4th 1244 (10th Cir. 2023): the panel holds it was not plain error for the district court to rely on a sub-section of the state’s criminal mischief statute different than the one cited by the government in the revocation petition. It also rules that, as a matter of first impression, Faunce’s due process rights were not violated by the district court’s decision to let an alleged victim testify by live video. Additionally, that decision was not an abuse of discretion. The panel holds that under plain error review the district court didn’t ‘constructively amend’ the revocation petition by using a different statutory subsection than the government cited. Most importantly, Faunce did not show any error affected a substantial right. The district court found Faunce had violated seven conditions of supervised release. Two of those were grade A violations which dictated the recommended guideline imprisonment range. Even without the criminal mischief violation, the imprisonment range would have been the same. And likewise the sentence imposed. The criminal mischief was a grade C violation that “paled in comparison to the far more serious violations of kidnapping and aggravated assault.” Besides the court could have considered the conduct even if the government hadn’t alleged it violated a supervised release condition. Faunce then made numerous arguments assailing the court’s decision to let the alleged victim testify remotely. None persuaded the panel. Still, our Utah FPD colleagues made an impressive due process challenge to the district court’s decision which allowed the alleged victim to testify by Zoom. They cited empirical studies, movie scenes showing cross-examinations, evidence involving in-court use of technologies like closed-circuit television, Blackstone commentaries and Supreme Court opinions to support the arguments that testimony by video conference dilutes the right of confrontation and that the right to physically confront a witness has a lengthy historical tradition. Due process, they said, gives the accused the right to in-person questioning of adverse witnesses at revocation hearings. Unfortunately, this argument wasn’t made in the district court. Using plain error review the panel decides that “given Faunce’s opportunity to see and hear [the victim] in real time, the district court didn’t commit an obvious or clear error in declining to sua sponte to find a denial of due process.” Per Faunce’s request, the panel next reviewed the district court’s Zoom decision under the Jones/Rule 32.1 balancing test. United States v. Jones, 818 F.3d 1091, 1100 (10th Cir. 2016). In Jones the court adopted Rule 32.1’s balancing test to determine the admissibility of hearsay in revocation proceedings. The panel commented that it wasn’t certain Jones applied because the context here was different. Ordinarily, the balancing test evaluates the reliability of out-of-court statements because of the inability to cross-examine a witness. In comparison, the panel said the balancing here involved the difference between Faunce’s ability to confront the alleged victim in person and through Zoom. It ruled that because the district court considered the balancing arguments from both parties, it correctly decided that credibility still could be evaluated via Zoom. Both the court and Faunce could see the alleged victim’s “mannerisms and body language.” Additionally, as the district court noted, she was not central to the government’s case and there were “practical difficulties [in] obtaining her presence.” Also, the court had “positive experience” with remote hearings throughout the pandemic. The record therefore demonstrated that the district court adequately balanced the parties’ competing interests and it did not abuse its discretion by allowing testimony via Zoom.

United States v. Griffifth

United States v. Griffith, 65 F.4th 1216 (10th Cir. 2023): The panel rules that an officer’s expert testimony about Griffith’s lack of credibility was not plain error. It also finds that a victim’s statement to a sexual assault nurse examiner identifying an individual as the perpetrator is made for the purposes of medical diagnosis or treatment and thus an exception to the hearsay rule. At trial Griffith’s defense was based “primarily on [the victim’s] dishonesty.” He argued that she “had frequently manipulated others by making false allegations of sexual abuse.” Id. at 1218. Officers that interrogated Griffith testified that he was dishonest and his comments were either fabricated or inconsistent. Because defense counsel did not object to this testimony, on appeal the panel reviewed Griffith’s challenge to that testimony for plain error. The panel agreed that this type of expert testimony “generally” is not admissible. Id. at 1217. It therefore focused on whether Griffith could establish that the testimony had an effect on a substantial right. This element is shown with proof that but for the error, there is a reasonable probability that the result of the proceeding would have been different. To assess the probability of a different result, the panel examined for factors: (1) the strength of the parties’ respective cases; (2) whether the improper evidence affected the parties theory of the case; (3) the extent that the parties emphasized the improper opinion testimony; and (4) whether the jurors were able to independently assess the accused’s credibility. Id. at 1218. Here, the panel concluded these factors did not demonstrate a different result was reasonably probable. Griffith’s defense “focused largely on [the victim’s] credibility.” Id. The improper opinion testimony had little, if any affect, on his theory of the case. Additionally, there was evidence corroborating the victim’s version of events. Id. at 1222. Neither side mentioned Griffith’s credibility in closing. The jury independently assessed Griffith’s credibility when it watched the video of the officers’ interrogation. And the jury instructions did not refer to the officers’ expertise. Rather the instructions told the jury to treat their testimony in “the same way as that of any other witness.” Id. at 1223. Regarding the victim’s statement to the nurse in which she identified Griffith as the perpetrator, the panel said it was bound by precedent. The panel in United States v. Edward J., 224 F.3d 1216, 1219-20 (10th Cir. 2000) held that a victim’s statement to a medical provider, identifying the perpetrator, triggers Fed.R.Evid. 803(4)’s hearsay exception. 65 F.4th at 1223. Therefore, the district court correctly allowed the nurse to tell the jury about the victim's comment.

United States v. Wesley, 60 F.4th 1277 (10th Cir. 2023)

United States v. Wesley, 60 F.4th 1277 (10th Cir. 2023): The panel holds that a motion to reduce the sentence under 18 U.S.C. § 3582(c)(1)(A)(i) cannot be used to get around the procedural and substantive statutory restraints imposed by 18 U.S.C. § 2255, such as timing, content of the motion and grounds on which one can bring additional motions. Wesley had already filed a § 2255 motion and a motion under § 3582(c)(1)(A)(i). In his latest § 3582(c)(1)(A)(i) motion, which the district court denied, he argued the prosecutor solicited false testimony about drug quantities; his choice to go to trial resulted in an unreasonably longer sentence compared to co-defendants who pleaded guilty; and his sentence was excessive compared to more culpable co-conspirators. The panel focused on the prosecutorial misconduct issue. It admitted that if true, the prosecutor’s conduct would violate the Fifth Amendment due process clause. But the panel said, the district court was correct in finding it had no jurisdiction to consider that claim. When a defendant attempts to raise “§ 2255-like claims outside of § 2255 . . . such a motion, however captioned or argued must be treated as a § 2255 motion.” 60 F.4th at 1288. Because this was Wesley’s second § 2255 motion, he had to ask the Tenth Circuit for permission to file a successive petition as well as satisfy the content requirements described in § 2255(h)(1). Since he failed to do either, the panel affirmed the district court’s decision. Update: the Tenth Circuit denied rehearing en banc, with a dissent from Rossman.

United States v. Spaeth

United States v. Spaeth, 69 F.4th 1190 (10th Cir. 2023) (to win on collateral constitutional challenges to a plea agreement based on ineffectiveness of counsel, defendant must show that counsel’s ineffectiveness produced an involuntary and unknowing plea). In 2016, Mr. Spaeth pled guilty in an 11(c)(1)(C) plea agreement to conspiracy to distribute methamphetamine. In exchange for the guilty plea, the government agreed to dismiss numerous other charges and to recommend a binding sentence of 180 months imprisonment. Mr. Spaeth stated in the agreement and at his plea colloquy that he freely, voluntarily, and knowingly entered into the plea. His plea agreement also included a broad waiver of appellate rights, with carve-outs for a sentence outside the agreed upon sentence and for a collateral attack based on ineffective assistance of counsel. After Mr. Spaeth was sentenced, the federal government began an investigation into a drug smuggling operation at the facility where Mr. Spaeth had been housed while his case was pending. The government subpoenaed recordings of phone calls outgoing from the prison, including attorney-client communications. In 2018, the Kansas FPD office was appointed to represent over 100 defendants with potential Sixth Amendment claims based on the government’s listening to attorney-client calls. The district court imposed an inference against the government that it was privy to communications between the petitioners and counsel. The AUSA on Mr. Spaeth’s case denied listening to any of his calls by affidavit. Mr. Spaeth filed a § 2255 motion to vacate based on the Sixth Amendment violation. In a nut-shell, the district court found that the problem with Mr. Spaeth’s claim was that it did not even so much as allege that ineffective assistance of counsel resulted in an unknowing and involuntary plea, which the district court ruled was the only way he could qualify for relief given that he pled guilty. Though the court invited him to provide supplemental briefing on the question whether his plea was knowing and voluntary, he instead sought a COA from the Tenth Circuit and the district court dismissed his § 2255 motion. Before getting into a discussion on the merits, the Tenth Circuit set forth a summary of the state of the applicable law, the main point of which was this: collateral attacks on guilty pleas based on pre-plea constitutional defects, even if the defects were unknown (or unknowable!) at the time, only qualify a defendant § 2255 relief where the error meant that his plea was not knowing and voluntary. Where the challenge involves a claim of ineffective assistance of counsel, that ineffective assistance must have caused the plea to be unknowing or involuntary. “In other words, counseled guilty pleas occasioned by antecedent constitutional violations require, at a minimum, that habeas challengers attack the plea advice they received.” In this way, a defendant convicted by a guilty plea is treated differently than a defendant convicted after trial in the habeas world. “The focus of federal habaes inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.” Tollett v. Henderson, 411 U.S. 258 (1973). The court noted that there are four “narrow” exceptions to this rule, none of which applied here. Mr. Spaeth argued that the carve-out provisions in his plea agreement, particularly the ineffective assistance one, meant that this standard for plea agreements did not apply to his arguments within the carve-out. Specifically, he argued that the government had itself waived the Tollett standard by agreeing to the carve-out. The Tenth Circuit dispensed with this idea quickly. In response to the question “what effect, if any, the carve-out provision . . . has on the rule of Tollett,” the Tenth Circuit stated: “the short answer is none.” The Tenth Circuit balked at the idea that the government could ever waive the Tollett standard. Next, Mr. Spaeth argued that the Tollett standard should not apply when the government intrudes upon attorney-client privilege. The Tenth Circuit pointed out that most of the authority he pointed to still circulates around the question whether the pleas were knowing and voluntary, so those cases were at least “overlapping” with Tollett. The only other case arose in the context of trial, where a constitutional error has more magnitude and there is an easier path to habeas relief. The Tenth Circuit thus decided that it didn’t have to accept Spaeth’s argument because there was no support requiring that conclusion, but also didn’t really address any substantive reason for rejecting it. There are a lot of words spent here on describing ineffectiveness of counsel in general. Finally, Mr. Spaeth argued that the pre-plea constitutional violations also infected sentencing. The Tenth Circuit summarily rejected this, too, affirming dismissal of the claim.

United States v. Brooks

United States v. Brooks, 67 F.4th 1244 (10th Cir. 2023) (finding of malice aforethought mens rea does not warrant application of the attempted murder guidelines cross reference) Mr. Brooks was convicted by a jury of unlawful possession of ammunition. He allegedly “shot a firearm at a car his then-girlfriend was riding in, striking her in the buttocks.” At sentencing, over objection, the district court applied the cross-reference to the attempted murder guideline, U.S.S.G. § 2A2.1. The district court also heightened his base-offense level under U.S.S.G. § 2K2.1 (without objection) based on the assumption that Oklahoma aggravated assault and is a crime of violence. On appeal, Mr. Brooks argued that 1) the attempted murder cross-reference did not apply because evidence did not establish specific intent and 2) the § 2K2.1 enhancement could not apply under the Tenth Circuit’s recent decision clarifying that Oklahoma aggravated assault and battery is not a crime of violence. U.S.S.G. § 2A2.1 The guideline for possession of ammunition, § 2K2.1, instructs court to cross-reference § 2X1.1 if the defendant use or possessed ammunition in connection with the commission or attempted commission of another offense. Section 2X1.1, in turn, instructs courts to apply the base offenses level from the guideline for that other offense. Here, the district court applied the base offense level set forth at § 2A2.1, which pertains to assault with intent to commit murder or attempted murder. Though Mr. Brooks argued that there was no evidence to establish specific intent to kill, as required for attempted murder, the district court concluded that application of the cross-reference was appropriate because evidence established the necessary intent for second-degree murder (malice aforethought). The Tenth Circuit agreed that malice aforethought was not sufficient for application of the attempted murder cross-reference, because conviction for an attempt requires specific intent to kill. The government argued that the record supported a finding of premeditation, so it supported application of the cross-reference based on attempted first degree murder. In a rare turn of events, the Tenth Circuit saw right through it. The Tenth Circuit sagely reminds us that “the only way to know whether, absent the error, the district court would have imposed the same sentence is if the district court indicated at sentencing that the sentence imposed would be the same under multiple sentencing approaches, one of which was the correct approach.” The district court did not do this. Oklahoma Agg Assault & Battery In United States v. Winrow, 49 F.4th 1372 (10th Cir. 2022), after Mr. Brooks was sentenced, the Tenth Circuit resoundingly declared that Oklahoma Aggravated Assault and Battery is not a crime of violence under the ACCA. Because the law at the time of the appeal was clear, the Tenth Circuit held that the district court’s error was plain, meeting the first and second prongs of the test for reversal under plain error review. Sadly, however, the Tenth Circuit did not feel confident that the third and fourth prongs were met because there were too many hypotheticals in determining what the sentence would have been without the error. Specifically, the court was not certain whether the district court would in fact find, on remand, that the defendant did not have the required intent for the cross reference discussed above, or whether cross-reference to another offense would enhance the base offense level so that this error would not, in fact, have an impact on sentencing. Thus, the district court vacated the sentence and remanded for resentencing based on its clarification of the intent requirement for attempted second degree murder. It instructed the district court to consider the impact of Winrow “if it becomes relevant to its guideline calculations.”

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.

United States v. Linares, 60 F.4th 1244 (10th Cir. 2023) Guidelines - USSG § 2X1.1(b)(1) Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Offense Guideline); § 2B3.1. Robbery – specifically car-jacking. A family was doing some yard work. They drove their car (the opinion says car but surely it was a SUV or a truck) into the yard as they cleared stuff out. Our client drives up and parks in front of the house and asks for a ride to a gas-station. The family declines. They move the car to the street. It is a newer car and has the button ignition so you can the key with you outside/away from the car and the car can be locked and running. (Random info: this apparently has led to increase in carbon monoxide deaths because people forget to turn the car off since you don’t have to take the keys out of the ignition. And does anyone know if there is some sort of distance between the car and the key that the car will shut off?) Well, this encouraged our client to approach with an AK-47. When the family noticed the gun, they hustled inside. Someone shut off the car (remotely). Our client demanded the keys and someone else came back outside on the phone with 911. Our client told him to hang up and allegedly threatened to come back and kill him. And then he drove away. Cops caught up with him shortly, and here we are. At sentencing, the district court applied § 2K2.1(c)(1)(A) which applies an enhancement to a sentence where a firearm was used in connection with the substantive offense of attempted robbery (via § 2X1.1(b)(1) (cross-reference) and § 2B3.1(b)(5) (carjacking)). Attempt § 2X1.1(b)(1) – generally our clients get a three-level decrease if they don’t complete the crime. But because there are always exceptions, they don’t get the decrease where: 1) they think they did everything necessary to commit the crime; or 2) they would have completed it except that they got interrupted by something beyond their control. Well, the Tenth agreed with the district court that it was the phone call that interrupted our client’s attempt to take the car so he did not voluntarily stop and exception 2 applies. (I mean it was just a call. He could have still followed through given response times.) Carjacking - § 2B3.1(b)(5) The definition of carjacking used in the application note (“‘Carjacking’ means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation”) is not the same as the statutory definition of carjacking (“Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle … from the person or presence of another by force and violence or by intimidation … 18 U.S.C. § 2119). As the application notes often interpret and explain how to screw our clients to apply the guidelines they are considered binding unless they “violate[ ] the Constitution or a federal statute, or [are] inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). So, the definition in the application note controls over the statutory definition. (The defense made a lot of great points like the guideline references the statute; the comment definition is inconsistent with the guideline text and so plainly erroneous; and the comment definition paraphrases the statutory language so we should use the statutory language. But as the Tenth themselves put it: “We are unpersuaded.” 60 F.4th at 1250. SIGH.) So, since it doesn’t matter than our client did not intended death or great bodily harm, he still get the carjacking bump. United States v. Batara-Molina, 60 F.4th 1251 (10th Cir. 2023) Traffic Stop-Fourth Amendment Short Version: Third-party rented car, suspiciously short vacation in Sioux Falls, and strong cover order give reasonable suspicion to run a dog sniff. Because of the deference given to cops “to distinguish between innocent and suspicious actions,” (e.g. the cover odor and short vacation) the Court decided a dog sniff was just barely supported by the totality of the circumstances.

Bad result for the defendant in an ACA case

United States v. Polk, 61 F.4th 1277 (10th Cir. 2023) Holding: A defendant convicted under the Assimilative Crimes Act (ACA) is not eligible for state-law safety valves that “conflict” with federal sentencing policy. Mr. Polk was charged federally for driving under the influence by way of the Assimilative Crimes Act (ACA). Mr. Polk is Native American, and the DUI occurred in Oklahoma on reservation land. He pleaded guilty. The mandatory minimum in Oklahoma for this offense is 4 years with a maximum of 20 years. However, in Oklahoma there is also a “safety valve” law that allows a sentencing judge to go below the statutory minimum in a variety of circumstances, which is much broader than the safety valves available under federal sentencing law. Mr. Polk argued that he should be eligible for this safety valve. The district court denied his request on the ground that the safety valve did not agree with federal sentencing law. The ACA covers criminal conduct in federal land that is not covered by its own federal statute. It “generates a federal offense using the laws of the state in which the reservation is located,” borrowing from state law to fill in the gaps. It requires that the defendant receive a punishment “similar” to the one they would receive in state court. Typically, this means that the sentence should be within the minimum/maximum range, but it doesn’t mean that the federal district court must adhere to every convention or rule of state sentencing law. And if Congress has created a “contrary penal policy,” the district court is bound to follow that. To the extent that there is a “conflict,” federal law wins. Here, the district court and the appellate court both focused on the fact that § 3553 only provides for two grounds upon which federal sentencing judges may go below the statutory minimum: subsections (e) and (f) (for substantial assistance and when the conviction is for certain listed drug offenses and satisfies five factors) neither of which was relevant here. The Tenth Circuit called this a “direct tension between what state law permits and what federal law forbids.” As a result, Mr. Polk was not eligible for Oklahoma’s safety valve. Question: Is it actually a “direct conflict” where one law is more expansive that another? And strict adherence to federal sentencing doesn’t seem like the answer if the overarching goal aim of the ACA is to keep things consistent with what would happen in the state system. The federal sentencing scheme is not designed to address an offense like a DUI, so it makes sense that it doesn’t set forth a safety valve that would capture that kind of conduct. It sounds like Mr. Polk focused on the fact that § 3553 doesn’t mention the ACA (inferring that Congress would have explicitly excluded if it wanted to), and the court insisted the failure to mention it meant just the opposite. This ruling seemingly puts into question an issue previously won by the defense in the District of New Mexico, too, which is the applicability of the NM law allowing for mitigation of the basic sentence in cases where the defendant is convicted and sentenced under state law pursuant to the Assimilative Crimes Act.

What does a district court need to say about the sentence before asking an accused to allocute in order to commit reversible plain error?

In United States v. Slinkard, 2023 WL 2484934 (10th Cir., Mar. 14, 2023) (NDOK) and United States v. Benitez-Jimenez, 2023 WL 2484646 (10th Cir., Mar. 14, 2023) (NDOK), the panel explains what a district court cannot say before an accused’s allocution. In Slinkard, before allocution, the district court said “There is no way in good conscience that I could ever allow this defendant to be among the public or near any child.” Then the court asked Slinkard if he had anything to say. He did not. The court sentenced him to two concurrent life terms. In Benitez, the district court ruled on a downward variance request before asking Benitez if he something to say. The court explained that “based upon the information provided by the parties, I will not vary from the advisory guideline level as the factors fail to separate this defendant from the minerun [sic] of similarly situated defendants; therefore, defendant’s motion . . . is denied.” Thereafter, the court invited Benitez to allocute. Benitez apologized for his misconduct and promised he would not misbehave again. The court sentenced him to a prison term of 57 months, the high end of the guideline imprisonment range. Both cases were reviewed for plain error by the same panel. In Slinkard it held that the district court clearly erred by “definitively announcing Mr. Slinkard’s life sentence before allocution.” According to circuit precedent, being denied the right to allocute is presumptively prejudicial and thus satisfies plain error’s third prong. Only an “extraordinary circumstance” overcomes this presumption. Here, the government didn’t identify any extraordinary circumstance. Besides, there was a possibility of a less severe sentence because the guideline imprisonment range was 30 years to life and Slinkard had been given a 30 year term in state court for the same misconduct. The fourth plain error element also was satisfied. Denying allocution “subverts public values.” The judicial proceedings are “seriously affected” when the district court does not give the accused a “meaningful opportunity” to speak and “present mitigating circumstances.” The opportunity to allocute was not meaningful because the court told Slinkard he was not getting a prison term less than life. The panel said on remand the case should go to a different judge. The appearance of impropriety was too marked not to do so. The court’s commentary at sentencing suggested a strong personal belief which would be difficult to set aside on remand. Given that “preserving the appearance of justice” is an “essential purpose of the right of allocution” reassignment best ensures fairness. And assignment to a different judge would not impose a substantial burden on the judiciary. Unlike, Slinkard, Benitez did not convince the panel that he satisfied plain error’s four elements. The panel said the district court did not clearly and unambiguously communicate the specific sentence it would impose on Benitez when it ruled on his downward variance motion before his allocution. Although the district court might have conveyed it would impose a guideline sentence, that is not the same as announcing a specific sentence pre-allocution. Still, the panel noted that from the court’s comments Benitez reasonably could have concluded he was categorically precluded from arguing for a lower sentence and that in allocution he could not reargue the points he made in his motion. Although the court’s procedure may have been incorrect, it did not amount to plain error. “Even if [Benitez] inferred that the district court’s denial of his motion for variance precluded him from arguing for a variant sentence, the fact that the district court did not affirmatively prohibit from doing so means there is no plain error under” the circuit’s precedent. Benitez gets no relief because neither the circuit, nor the Supreme Court has held that “limiting the scope of allocution by implication” is “reversible” error.

Vehicle impoundment principles apply to search of backpack; evidence from backpack should have been suppressed

An important decision rejecting the government’s contention that a warrantless search of personal property does not require the exclusion of incriminating evidence because officers would have validly impounded that property and inevitably discovered its contents. In United States v. Braxton, 2023 WL 2377701 (10th Cir., Mar. 7, 2023) (CO), the panel decided that the circuit’s impoundment criteria from United States v. Sanders, 796 F.3d 1241 (10th Cir. 2015), which generally is used to determine the reasonableness of impounding a vehicle, applies also to personal property. It holds that the government did not meet its burden to show that the officers would have impounded Braxton’s backpack “under a reasonable, nonpretextual community caretaking rationale.” Thus, contrary to the district court’s finding, the gun the officers found inside the pack would not have been inevitably discovered. The district court should have suppressed the gun. When Braxton was arrested for selling drugs, he was “wearing a black backpack.” The officers took it off and put it on the sidewalk. They searched him and found crack cocaine and cash in his pockets. During the search Braxton yelled out to someone to “get my girl, Tan!” Less than 30 seconds later, Braxton’s girlfriend Tanyrah Gay walks up to the officers. Braxton tells her “get the money so you can bond me out.” Gay asks the officers if she can have the pack. They say no. When one picks up the pack, she asks, “I can’t take my pack?” They again say no. When one officer put Braxton into a patrol car, he said that Gay needed the money in the pack. She too said she needed the money because she was staying in a hotel. This officer also said no. Gay asked if the officer would at least write down her telephone number. He said that he’d get to that momentarily. Another officer took the pack and searched it on the hood of a patrol car. Inside he found a loaded gun with a pink handle. While he was still rummaging through the pack, Gay asked him if she could get her ID and bus pass from the pack. The officer told her to wait a moment. He then put the gun in an evidence bag. Needless to say, Gay never got the pack. Braxton was charged with possession of a firearm in furtherance of drug trafficking, possession of crack cocaine with intent to distribute and felon in possession of a firearm. In the district court, Braxton moved to suppress the firearm. He argued that the search of the pack was not justified as a search incident to arrest under the Tenth Circuit’s decision in United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019). [There the court held that the warrantless search of Knapp’s purse could not be defended as a search incident to arrest because Knapp could not access weapons or destroy evidence within the purse after her arrest.]. The government conceded that search incident to arrest would not validate the search after Knapp. However, it convinced the district court that the gun should not be suppressed because officers would have inevitably discovered it after impounding the backpack and doing an inventory search. On appeal, the panel was not persuaded by this argument. It said under the facts here, the government could not prove that the gun inevitably would have been discovered by lawful means, that is by the community caretaking and inventory exceptions to the warrant requirement. The panel found that the principles from the vehicle impoundment cases are relevant in the personal property context. In Sanders, the court held that impounding a vehicle from private property must be justified by both (1) a standardized policy and (2) a reasonable, nonpretextual community caretaking rationale. 796 F.3d at 1248. The analysis of the second prong centers on a list of nonexclusive factors Sanders said were relevant to determining whether a reasonable and legitimate nonpretextual community caretaking rationale existed. The panel focused on the second prong and concluded that the list’s third factor, whether there was an alternative to impoundment, determined the outcome here. As it did in the district court, the government contended that the officers would have inevitably discovered the gun because they were obligated to take the pack back to the station to prevent its theft and to protect the community from its possibly dangerous contents. The panel acknowledged that Denver police department policy directed officers to bring personal property to the property section for safekeeping. But, the panel said, “the existence of and compliance with such a policy does not by itself establish a reasonable community caretaking rationale.” The panel stressed that the officer who testified at the suppression hearing “provided scant explanation for why he would have refused Gay’s requests . . . or would not have asked Braxton about giving her the backpack.” The proper inquiry under this third factor, the panel said, is “whether an alternative to impound exists and is not focused on who suggested that alternative.” Here, there was a plausible alternative to impoundment. The officer’s testimony did not explain why, given Gay’s requests, that he needed to impound the pack to keep it safe for its owner. It didn’t matter that Braxton did not directly ask the officers to give the pack to Gay. She asked twice for the pack and both times the officers refused to give it to her. There also was evidence that the two were in a relationship. At a minimum then, a “reasonable officer[] dealing with the backpack in a lawful manner would have inquired further about whether [to] give the backpack to Gay, either by asking Braxton if he wanted Gay to take the backpack or by inquiring into their relationship.” As to this last point, the panel emphasized that circuit precedent “establishes that officers generally act unreasonably when they ignore or shut down obvious alternatives to impoundment.” Given that the officers could have given Gay the pack it was not “inevitable that the officers would have validly impounded the backpack under a reasonable community caretaking rationale.” Thus, the impoundment here was not reasonable because there were “clear and promptly available alternatives.”