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Criminal Law

Tenth Circuit Blog

Commentary and summaries of cases before the Denver-based 10th U.S. Circuit Court of Appeals.
By Shari Allison

Post Frequency: 2.7/day

Last Entry: August 28, 2020 at 17:58:00

Court Affirms Upward CH Departure & Obstruction Enhancement

Posted on April 20, 2010
US v. Webster, 2010 WL 1531064 (10th Cir. 4/19/10) (unpub) - affirmance of 2-level enhancement for obstruction of justice and upward departure for under-representation of criminal history. The district court implicitly found that Webster willfully gave false testimony under oath on a material matter...

Attempted Burglary is a COV under 4B1.2, But Not An ACCA Violent Felony

Posted on April 20, 2010
US v. Martinez, -- F.3d --, 2010 WL 1530673 (10th Cir. 4/19/10) - Arizona offense of attempted second-degree burglary is a crime of violence, but not a violent felony under the ACCA. The crime of second-degree burglary is defined as "entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein...

U.S. v. McCalister, No. 09-5101

Posted on April 20, 2010
U.S. v. McCalister, No. 09-5101 (4/16/10) (Published) - An unsuccessful applicant under 18 USC § 3582(c)(2) (retroactive guidelines amendment sentence reduction) cannot file a Rule 60(b) motion to set aside the judgment. Civil rules do not apply to § 3582(c)(2) proceedings which are strictly criminal proceedings...

Release of Clients with ICE Detainers

Posted on April 15, 2010
The Federal Defenders of Eastern Washington and Idaho have posted a "Kit" for obtaining pretrial release of non-citizen clients at their blog, here .

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Order re: Release of Oral Argument Recordings

Posted on April 07, 2010
The Tenth Circuit has issued a policy, effective with the May term, regarding releasing oral argument recordings. Parties or others seeking access to the recordings should file a motion stating the reasons access is desired. If the motion is granted, the Clerk will e-mail the recording as an mp3 file...

Remand Ordered in Prisoner's Religious Rights Case

Posted on April 06, 2010
Abdulhaseeb v. Calbone, 2010 WL 1254350 (4/2/10) (Published) - The 10th reverses summary judgment in favor of Oklahoma prison officials because there was a genuine issue of material fact whether, in violation of RLUIPA, the prison had substantially burdened the plaintiff's Muslim religious beliefs by refusing to provide him with a halal diet that includes meats, but only offering non-pork and vegetarian meals ...

State's Label Is Not Determinative of Whether Prior Conviction is COV

Posted on April 06, 2010
U.S. v. Gastelum-Laurean, 2010 WL 1242804 (4/1/10) (unpub'd) - A USSG § 2L1.2-crime-of-violence victory with the help of a government concession of error: The district court erred when it held that an Arizona aggravated assault was a crime of violence based solely on the aggravated-assault label...

Unpublished Decisions

Posted on April 06, 2010
U.S. v. Holcomb, 2010 WL 1242805 (4/1/10) (unpub'd) - The 2255 movant's claim that Begay required a different interpretation of the guidelines than was made at the time of his sentencing alleged only a non-constitutional error, (while a Chambers claim that the ACCA was wrongly applied to increase the maximum sentence was a constitutional due process claim)...

Tenth Circuit Offers Training Program for Using the Electronic Record on Appeal

Posted on April 06, 2010
The Tenth Circuit is offering a training program on using Adobe's markup tools to review and manipulate an electronic record on appeal (ROA). The program will be held on Friday, April 23, 2010 from 10 a.m. to noon in Denver, Colorado, in the Byron White U...

Defendant's Rights Not Violated by Placing Informant in Cell

Posted on April 06, 2010
US v. Cook, -- F.3d --, 2010 WL 1268529 (10th Cir. 4/5/10)In interlocutory government appeal, the court reverses the district court's suppression of statements made to a jail-house informant. The government notice of appeal was timely because it was filed within 30 days of district court order denying motion for reconsideration...

Advice Re: Immigration Consequences is a Constitutional Right

Posted on March 31, 2010
I don't normally include Supreme Court decisions, but this one affects so many of our clients, past and present, that it must be mentioned.In Padilla v. Kentucky, available at http://www.supremecourt.gov/opinions/09pdf/08-651.pdf, released today, the Supreme Court held that counsel must inform a client whether his plea carries a risk of deportation...

Defendant's Admitted Knowledge of Marijuana in Bag Supports Conviction for Meth Also in Bag; Defendant Eligible for Safety Valve

Posted on March 31, 2010
United States v. De La Torre, ___ F.3d ___ , 2010 WL ----- No. 09-3029 (10th Cir. 2010). Defendant, convicted after trial of possession with intent to distribute marijuana and methamphetamine, testified that although he knew pot was in the backpack he carried and ditched while fleeing a police raid of a motel party room, he did not know meth was in it...

Defendant Failed to Show that Court's Error at Plea Hearing Affected Substantial Rights

Posted on March 30, 2010
US v. Ferrel, -- F.3d --, 2010 WL 1172596 (10th Cir. 3/29/10) - The Tenth Circuit affirms the defendant's conviction and sentence in a possession with intent to distribute meth and cocaine case. The district court erred when accepting the defendant's guilty plea by failing to inform defendant of the drug quantity element of the offense and by misinforming him of the statutory maximum sentence...

Defender Testimony Before USSC on Proposed Amendments Useful Now

Posted on March 25, 2010
The United Sentencing Commission is considering guideline amendments that would encourage drug treatment for a few defendants, consideration of certain offender characteristics, eliminating or restricting use of criminal history recency points, and immigration-related departures...

No Release for Defendant Found Not Guilty by Reason of Insanity

Posted on March 17, 2010
United States v. Livesay, ___ F.3d ___ , 2010 WL 918067 (10th Cir. 2010). Bipolar defendant found not guilty by reason of insanity of possession of a firearm by a convicted felon (he shot firearm into ground and pellets hit state officers; state decided not to prosecute, D checked self into mental health treatment facility...

U.S. v. Fisher, 2010 WL 809818

Posted on March 16, 2010
U.S. v. Fisher, 2010 WL 809818 (3/10/10) (Published) - There was reasonable suspicion to order the car's occupants at gun point to show their hands [which did not amount to an arrest] where officers responded to a call that someone had shot at a woman and her son, late at night; in a high crime area, the car was the only vehicle at the scene and its brake lights were illuminated, indicating it was about to depart...

Tenth Circuit Seeks Clerk of Court

Posted on March 16, 2010
The United States Bankruptcy Appellate Panel of the Tenth Circuit, is currently recruiting for the position of Clerk of Court. The position is located in the BAP Clerk's Office in Denver, Colorado. An announcement that details the duties, responsibilities, and qualifications of the position is located here on the Court's website.

Substantive Unreasonableness Argument Rejected

Posted on March 09, 2010
US v. Chavez-Suarez, -- F.3d --, 2010 WL 761077 (10th Cir. 3/8/10) - Although the court expresses some sympathy for the substantive unreasonableness argument that the 16-level enhancement for reentry after deportation following an 11-year-old marijuana conviction resulted in an unfairly long sentence in light of the "relatively benign nature" and staleness of the marijuana conviction, the district court did not abuse its discretion in rejecting the argument...

Habeas Petitioner's Counsel Was Not Ineffective For Rejecting Instructiions, Conceding Conspiracy

Posted on March 03, 2010
United States v. Gonzalez, ___ F.3d ___ , 2010 WL 702297 (10th Cir. 2010). After a direct appeal of his drug conspiracy conviction, defendant filed an unsuccessful post-conviction petition claiming errors and ineffectiveness by trial counsel. (1) Counsel rejected instruction on withdrawal from conspiracy even though trial strategy was to show withdrawal...

Unpublished Decisions

Posted on March 02, 2010
U.S. v. Moreno, 2010 WL 597506 (2/22/10) (unpub'd) - Evidence of the defendant's involvement in criminal conduct for which he was not convicted met the "low" standard of "minimum indicia of reliability." There was more than just a police report. There were eyewitnesses and/or probable cause findings...

Circuit Snippets

Posted on February 25, 2010
A variety of decisions from other circuits:US v. Vinton, 2010 WL 392347 (C.A. D.C. 2/5/10): The D.C. Circuit held that, under Arizona v. Gant, 129 S.Ct. 1710 (2009), a US Park Police officer who had stopped the defendant for traffic violations and then saw an unlawfully possessed knife in the car could search the vehicle and pry open a locked briefcase to search for additional weapons even though the driver was handcuffed...

Tenth Addresses "Testimonial" Statements, Affirms Meth Conviction

Posted on February 25, 2010
U.S. v. Lopez-Medina, 2010 WL 569944 (2/19/10) (Published) - Some lessons about the consequences of defense tactics with good, though not startling, news concerning what statements are testimonial. The 10th holds that a confidential informant's ("CI") statements to law enforcement officers are "clearly testimonial" under the Supreme Court's decision in Crawford...

Rehearing Granted to Review Defendant's § 3582(c)(2) victory

Posted on February 25, 2010
U.S. v. Cobb, 2010 WL 546057 (2/17/10) (Published) - The rare 18 USC § 3582(c)(2) victory is in jeopardy. The 10th has granted the government's rehearing en banc petition challenging the decision at 584 F.3d 979 (2009) that a reduction under § 3582(c)(2) is possible, even with respect to an 11(c)(1)(C) plea, where the agreement as to sentence was based on the guideline range in effect at the time...

Inmates Complaining About Placement Policy Must Pursue Admin Remedies Against BOP

Posted on February 25, 2010
Garza v. Davis, 2010 WL 537769 (2/17/10) (Published) - After dealing with the issue several times in unpublished decisions, the 10th issues a published decision. Inmates in Florence prison camp have been complaining that the prison is categorically denying their placement in community correction centers and residential reentry centers for more than six months...

Unpublished Decisions Address Sentencing Situations

Posted on February 25, 2010
U.S. v. Palato, 2010 WL 582632 (2/19/10) (unpub'd) - A word to the wise regarding plea colloquys. The 10th affirmed the district court's decisions regarding drug quantity and to refuse a minor role reduction, in part based on the defendant's admissions while setting out the factual basis at the plea hearing...

CI's Testimony Not "Inherently Incredible"; Evidence Supported PWID Conviction

Posted on February 24, 2010
United States v. Garcia, ___ F.3d ___ , No. 08-5090 (10th Cir. 2010) Circumstantial evidence of defendant?s dealing in drugs on date charged, combined with testimony of a cooperator, sufficient to convict him of possession with intent of over 500 grams of meth...

IAD Request Sent to AUSA Ineffective; Felon-in-Possession Charge Affirmed

Posted on February 24, 2010
United States v. Washington, ___ F.3d ___ , 2010 WL 611789 (10th Cir. 2010)1. Defendant?s pro se request for disposition of his federal charges under the Interstate Agreement on Detainers was ineffective because he sent it only to the US attorney (USA) and then to ATF (charge against him was felon in possession of firearm), and not to the appropriate district court...

Evidence Supported Conviction for Impersonating Border Patrol Agent

Posted on February 24, 2010
United States v. Ramos-Arenas, ___ F.3d ___ , No. 09-2165 (10th Cir. 2010)Evidence was sufficient to uphold conviction for impersonating an officer. Defendant?s driving and speeding girlfriend was stopped and was being given a $115 ticket when Defendant said he was a Border Patrol agent...

No 3582(c) Relief for Defendant Sentenced as Career Offender

Posted on February 24, 2010
US v. Corber, -- F.3d --, 2010 WL 599887 (10th Cir. 2/22/10) - district court lacked authority to reduce sentence under 18 USC § 3582(c) because the "applicable guideline range" was based on the career offender guideline and would not have been lowered by Amendment 706...

Resources for Defending Non-Citizen Clients

Posted on February 22, 2010
Effective criminal defense often includes analyzing the potential effects of a conviction on a non-citizen client's immigration status. To help with this endeavor, immigration specialist Norton Tooby has made available an on-line version of his book, Tooby's Guide to Criminal Immigration Law, and other resources, for free at this link.

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