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Criminal Law

Kansas Federal Defender

Coverage of the 10th Circuit, sentencing rulings and content relevant to public defenders.
By Melody Evans and Kirk Redmond

Post Frequency: 0.3/day

Last Entry: September 11, 2017 at 21:39:00

Felony Assault: Not Always a Crime of Violence

Posted on March 15, 2008
Which state felonies constitute crimes of violence is a complicated area, and we should never make assumptions based on the label of conviction. That point was proved again this week by the Tenth Circuit in an immigration case, US v. Rodriguez-Enriquez...

Failed Federal Death Penalties

Posted on March 10, 2008
Today, the New York Times has an excellent article about the repeated failures of federal death penalty prosecutions in New York. A couple of selections:[F]ederal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988...

Judge Lucero: "Overruled"

Posted on March 05, 2008
Again borrowing from the erudite Prof Berman and his blog, here's the big news on the 10th Circuit front today:In a lengthy decision, a split Tenth Circuit panel upheld the reasonableness of a below-guideline sentence in a sex offense case in US v. Smart, No...

Crack Excuse

Posted on February 15, 2008
Well, we've been buried in retro-crack cases around here, it dominates our work right now.That's why we haven't been blogging much, our apologies. Meanwhile, I thought I'd link you to the best federal defender blog ever, Steve Sady's Ninth Circuit, so you can see how it ought to be done...

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Leon Can't Save This

Posted on February 06, 2008
The Tenth Circuit reversed a denial of a search warrant challenge, and found that the usually omnipotent Leon did not save this unlawful execution. In US v. Amber Young, the police wanted to search Ms Young's apartment and her person. The SW found probable cause for both the residence and Ms Young herself, but the command line authorized only, ?YOU ARE THEREFORE COMMANDED ...

Gould Gold

Posted on January 18, 2008
US v. Jay Hill is an important case for anyone with either gun cases or criminal history issues. Excellent win for Charles Dedmon (and Dave Phillips, who argued the case for Sparky), and a continuation of his good work started in US v. Norris.Here's the short version: Kansas felonies are measured by the maximum time that the individual defendant was exposed to at the time of sentencing, not the possible sentence for any defendant in that category...

Bring us your tired, your poor, your crack defendants eligible for retroactive sentencing relief

Posted on January 10, 2008
Since the amendment lowering sentences for crack offenses has been made retroactive, the lot of us have been running around with our heads cut off trying to figure out what to do. The primary challenges are organizational, which is not my or Melody's strong suit...

Reversal of Low-End Guideline Sentence

Posted on December 28, 2007
The Tenth Circuit recognized Gall and Kimbrough today in an unpublished reversal of a low-end guideline sentence. The decision begins:Having interpreted this court?s precedents as virtually foreclosing variances from the United States Sentencing Guidelines, the district court imposed a sentence at the bottom of the Guidelines range...

What 'in custody' Really Means

Posted on December 21, 2007
With the kvetching about the Speedy Trial Act case, don't overlook the good Miranda "in custody" case handed down today, US v. Revels, (which, incidentally, is from the same Northern Dist. of Oklahoma judge as the Speedy Trial case). The government appealed a suppression, and unsuccessfully argued that the 'custody' was really just an investigative detention during execution of a search warrant...

Christmas Miracle -- or not

Posted on December 21, 2007
From the Tenth Circuit today:This case requires us to dismiss a criminal indictment because of the failure to comply with the requirements of the Speedy Trial Act of 1974 (the ?Act?), 18 U.S.C. �3161 et seq.Thought it'd never happen, didn't ya? Well, in US v...

Retro-crack

Posted on December 17, 2007
Well, about everyone knows now that the Sentencing Commission has decided that the November 1, 2007, amendments to the crack guidelines should be retroactively applied, lowering the BOL by 2 levels. That is a small measure of justice, but some is better than none...

But I #%@*! Forgot to Raise the Gall Issue!

Posted on December 10, 2007
So- your client has an appeal pending, and you didn?t raise a sentencing issue now impacted by Gall or Kimbrough. That is bad. How do you fix it? Don?t just send a letter of additional authority- ask to brief the issue. We have been through this before...

Holiday Spirit from Justice Ginsburg

Posted on December 10, 2007
"It is better to receive than to give, the Court holds today, at least when the subject is guns." That is Justice Ginsburg's take on the Watson v. United States decision handed down today.The short of it is this: in a drugs-for-guns trade, the one getting the drugs may be up for a section 924c conviction under the 'use' prong, while the one receiving the gun is not guilty, at least of 'using' a gun 'during and in relation to a drug-trafficking crime'...

Good Day?

Posted on December 10, 2007
Looks like Gall, Kimbrough and Watson are all down fron the US SCt today, and in a good way, at first glance.Decisions available here at Scotus blog.More later . . . .

Scalia: "Sue him or something"

Posted on December 05, 2007
Slate's Dahlia Lithwick is again spot on in her coverage of this Supreme Court Batson-based argument (Snyder v. Louisiana) in Race to the Bottom: The Supreme Court takes on the O.J.-obsessed prosecutor. Snyder is represented by the incredibly smart Stephen Bright...

What Wisconsin Writes is Not What the Feds Read: Guns and Civil Rights

Posted on December 04, 2007
Resolving a circuit split, Justice Ginsburg wrote the unanimous decision in Logan v. US, which addresses a statutory exception to the felon-in-possession prohibition. Here is the summed-up defense loss:Does the ?civil rights restored? exemption contained in �921(a)(20) encompass, and therefore remove from ACCA?s reach, state-court convictions that at no time deprived the offender of civil rights? We hold that the �921(a)(20) exemption provision does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation...

Math is Hard

Posted on November 30, 2007
Blatantly stealing from other blogs because I don't have anything quasi-original today, this interesting case is straight from Appellate Law and Practice, a very nice blog that we've added to our blog roll.One lesson here is that waivers should not deter us from reviewing for basic errors such as these...

Misjoinder

Posted on November 27, 2007
A rare reversal for misjoinder of tax and non-tax charges, and for consequential and prejudicial misjoinder of defendants, from the Second Circuit. This is a long opinion, but a careful analysis of Rule 8(a), concluding,Because commission of the alleged wire fraud and conspiracy neither depended upon nor necessarily led to the commission of the alleged 1996 tax misconduct and proof of the one act neither constituted nor depended upon proof of the other, joinder was improper...

Too Much Time

Posted on November 19, 2007
We know all too well that too many of our clients are going to prison for too long. Here is an article from Reuters with some good but depressing statistics from a recently released report. We need to find a way, in some cases, to integrate this sort of argument into our sentencing memoranda...

Guideline Goodness II: Inside the Gift Horse's Mouth

Posted on November 02, 2007
The now-effective changes in the crack guidelines are the Sentencing Commission?s attempt to make the best of a bad situation. Because the Commission believes it must peg crack sentences to the mandatory minimums in 18 U.S.C. � 841, it has still tied the guidelines (albeit in a more lenient fashion) to the five and ten year statutory minimums...

Guideline Goodness: Part I

Posted on November 01, 2007
A new series of guideline amendments are effective as of today. While the downward revisions to the crack guideline will garner the most interest, a small change to the criminal history guidelines should also have a big impact. The commission has amended � 4A1...

"A Very Rough Place to Serve Time"

Posted on October 30, 2007
For anyone with federal clients at Jackson County, Kansas, here's a thought straight from Prof Berman's blog Sentencing Law and Policy. The judge reduced the sentence because the federal detainee spent seven months in horrid pre-trial confinement:As detailed in this article from the Newark Star-Ledger , a district judge in New Jersey last week granted a variance in response to evidence that prison conditions in a county jail were horrid...

Invoking the Rule

Posted on October 24, 2007
While invoking the rule of sequestration didn't really help Mr Avalos on appeal yesterday, see US v. Avalos, the Tenth Circuit still provides a good synopsis of what the trial court is supposed to do when counsel invokes the Rule under FRE 615:The witnesses should be clearly directed, when theRule is invoked, that they must all leave the courtroom (with theexceptions the Rule permits), and that they are not to discuss the caseor what their testimony has been or would be or what occurs in thecourtroom with anyone other than counsel for either side...

Sometimes the Constitution Beats the Federal Rules of Evidence

Posted on October 11, 2007
Sometimes, when the Constitution crashes up against Federal Rules of Evidence, the Constitution wins. Not often enough, but sometimes. The 6th Am. confrontation right was bolstered a couple of years ago when the SCt decided Crawford. The overlap between that constitutional right and the hearsay rules continues to evolve, and the rules of hearsay must be adjusted accordingly...

Bad Advice

Posted on October 04, 2007
A while back, Kirk posted on the new, and utterly ridiculous, state law that requires registration of certain drug offenders. This is retroactive and requires those offenders to register three times a year at the sheriff's office, at $20.00 a pop.This post is a warning -- before a client registers, make sure that they NEED to register...

Most Excellent New Supreme Court Resource

Posted on October 03, 2007
The good folks over at SCOTUSblog have created a new Supreme Court wiki, which we have added to our helpful links. This new addition is a fabulous (yes, fabulous) resource for tracking the progress of a particular case. When you open the wiki, click on the cases to watch feature, which will pull up an index...

Dahlia

Posted on October 03, 2007
Both Gall and Kimbrough were argued yesterday before the Supreme Court, and reports from the argument sound as if district courts will have true sentencing discretion, guidelines be damned (or at least marginalized), and the appellate courts will truly have a secondary role, sort of, I don't know, call it appellate review, rather than standing in as the actual sentencer...

Moore Supreme Court

Posted on September 25, 2007
The only Fourth Amendment cert grant this week was in Virginia v. Moore. This is a govt appeal based on a circuit split. Here's the (govt written) issue:Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates state law?Virginia and the Ninth Circuit (no, Virginia is in the Fourth Circuit, but this is the circuit split the govt notes) answer yes, and other states and some other circuits say no...

Cert Grants on ACCA Cases

Posted on September 25, 2007
Today the Supreme Court granted cert in two ACCA cases. The first, United States v. Begay, comes from the Tenth Circuit and concerns whether driving under the influence is a violent felony. The second, United States v. Rodriquez, concerns a Ninth Circuit ruling that the defendant?s prior drug convictions from Washington did not constitute ?serious drug felonies? because in each, the defendant was subject to a statutory maximum of five years, and the ACCA requires that the conviction subject the defendant to a term of ten years or more...

First Monday in October

Posted on September 21, 2007
No, not the really unfortunate TV show of a few years ago, but the real (and sometimes unfortunate) thing. October 1 starts the new term for the US Supreme Court, although they conference this coming Monday. Two important federal sentencing cases are slated for argument on the first Tuesday:US v...

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