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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

Gang Affiliation Evidence Supported Denial of Minor Role Reduction

Posted on June 11, 2009
US v. Vo, No. 08-8062 (10th Cir. June 10, 2009) (unpublished): district court did not err in denying a reduction for minor role participant where there was evidence Mr. Vo was an active member of a gang known to traffic in narcotics and where all but one of the co-defendants was also associated with the gang.

Attempted Escape Not a COV

Posted on June 11, 2009
US v. Harris, No, 08-1090 (10th Cir. June 10, 2009) (unpublished): Defendant gets a remand for resentencing in light of Chambers v. US, 129 S.Ct. 687 (2009) because the district court improperly concluded that his prior convictions for attempted escape under Colorado law were crimes of violence for USSG 4B1...

Convictions for Embezzling Emergency Tribal Funds Affirmed

Posted on June 11, 2009
US v. Oldbear, 2009 WL 1608334, No. 08-6095 (10th Cir. June 10, 2009) (published):Court affirms the defendant's conviction on five counts of embezzling tribal funds, contrary to 18 U.S.C. 1163, and one count of making a false statement, in violation of 18 USC 1001(a)(2)...

Co-Conspirator's Guns Supported 2-level Enhancement

Posted on June 09, 2009
US v. Moreira, 2009 WL 1579799 (10th Cir. 6/8/09) (unpub) - 2-level upward adjustment upheld for possession of a firearm in a meth case with a 151-month sentence. The guns in this case were possessed by a co-conspirator. It was held to be reasonably foreseeable to Mr...

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Defendant Lacked Standing to Contest Search of Camera with Incriminating Photo

Posted on June 09, 2009
U.S. v. Moya-Breton, 2009 WL 1524900 (6/2/09) (unpub'd) - The defendant did not have standing to contest the seizure of a photo of him with a handgun and a large roll of cash, even though he told his co-conspirator to destroy it. He did not have a reasonable expectation of privacy in the searched camera that took the photo.

Denial of Rule 33 Motion Began Running of 2255 Statute of Limitations

Posted on June 09, 2009
U.S. v. Carvajal-Moreno, 2009 WL 1566799 (6/5/09) (unpub'd) - A reversal on a 2255 statute of limitations determination. The statute of limitations clock did not start until 90 days after the 10th affirmed the d. ct.'s denial of the movant's Rule 33 motion following a prior 10th remand...

Good Faith Saves Search

Posted on June 09, 2009
U.S. v. Quezada-Enriquez, 2009 WL 1565196 (6/5/09) (Published) - Another published case skipping the question whether the affidavit for search warrant established probable cause and moving on to finding the good faith exception applies. The 10th notes that, when a confidential informant ("CI") is involved, whether there is probable cause depends on the CI's veracity, reliability and basis of knowledge...

U.S. v. Meacham, 2009 WL 1492548

Posted on June 02, 2009
U.S. v. Meacham, 2009 WL 1492548 (5/29/09) (Published) - The 10th could decide whether the d. ct. abused its discretion in refusing to hold an evidentiary hearing regarding a motion for new trial based on a claim of ineffective assistance of counsel, even though ordinarily the 10th prefers to leave ineffective assistance claims to collateral proceedings...

Circuit Snippets

Posted on May 29, 2009
Applying the gross disproportionality test of Solem v. Helm and Harmelin v. Michigan, the California Court of Appeal, Fourth District, held that a sentence of LWOP for a 14-year-old convicted of "no-injury" kidnapping violated both the 8th Amendment and the comparable provision of the California constitution...

924(c) Conviction Based on Gun Under Pillow in Room With Pot Affirmed

Posted on May 29, 2009
US v. Garza, No. 08-5040, 5/28/09 (published)- Conviction for possession of a firearm in furtherance of a drug-trafficking crime affirmed. No abuse of discretion in admitting cop?s expert testimony about how gun, found under a pillow in defendant?s bedroom along with pot and loaded with hollow-point bullets, related to defendant?s drug trafficking; no plain error in admission of this testimony, to the extent that it might have constituted an opinion as to defendant?s intent, because such error, if any, did not seriously affect the fairness, integrity, or public reputation of judicial proceedings; and evidence was sufficient to support conviction.

Sheriff Who Acted Based on Overbroad Warrant Denied Qualified Immunity in Civil Rights Case

Posted on May 29, 2009
Cassidy v. Goering, No. 07-1092, 5/28/09 (published) - Denial of qualified immunity to defendant sheriff who supervised search pursuant to invalid warrant affirmed by divided court. The opinions are great primers on the severability concept.Plaintiff farmer who allowed another farmer to store grain at plaintiff?s farm got into an altercation with the other farmer over failure to pay for the storage...

Late Restitution Order Still Valid; $250/month Not Unreasonable

Posted on May 29, 2009
US v. Dolan, No. 08-2104, 5/27/09 (published)- Restitution order entered more than 90 days after sentencing, which ordered defendant to pay $250/month against total restitution of over $100,000, affirmed. Defendant severely beat a hitchhiker on the Mescalero Reservation in New Mexico and was convicted of assault resulting in serious bodily injury...

Fraud Victims Did Not Include Persons Who Were Fully Reimbursed

Posted on May 29, 2009
US v. Orr, No. 08-7070, 5/27/09 (unpublished)- Sentence in credit card fraud case vacated and remanded because the number of victims, upon which a two-level enhancement was based, should not have included individuals who were fully reimbursed by their banks, and also because government failed to prove that loss amount was properly calculated.

Claim Reentry Defendant Was Incompetent for Trial Rejected

Posted on May 29, 2009
US v. Lopez-Hodgson, No. 08-2106, 5/28/09 (unpublished)- The 10th rejects a challenge to defendant?s competency to stand trial and upholds his conviction for reentry after conviction for an aggravated felony. The district court properly admitted the testimony of a forensic psychologist from the US Medical Center for Federal Prisoners, and did not clearly err in agreeing with his opinion that defendant was competent to stand trial, despite contrary opinion from two defense experts.

No Relief for Crack Defendant Who Received Mandatory Minimum

Posted on May 22, 2009
US v. Dennis, No. 08-6197, 5/21/09 Unpublished - Another crack sentencing reduction denial affirmed. The problem with this one was that defendant got a mandatory minimum 20 years, and was therefore not sentenced pursuant to a guidelines range that was subsequently lowered.

Odd Story, Different Name on Rental Agreement, Nervousness Equal Reasonable Suspicion

Posted on May 22, 2009
US v. Duenas, No. 08-3108, 5/21/09 Unpublished - Denial of motion to suppress evidence obtained after a routine traffic stop affirmed. After cop gave defendant warning ticket for speeding, he asked for consent to search. Defendant refused, but so what? Cop already had reasonable suspicion based on typical stuff - rental agreement in different name, odd story, extreme nervousness, etc.

Judge May Not Appreciated Full Scope of Sentencing Discretion

Posted on May 22, 2009
US v. Leyva-Ortiz, No. 07-2229, 5/21/09 Unpublished - Defendant gets a remand for resentencing in this reentry case because the district judge might not have appreciated that he had the discretion to vary downward based on disagreement with the policies underlying the reentry guidelines, given that the sentencing occurred prior to Gall and Kimbrough, the judge presumed the guidelines range was reasonable (although this was not plain error), and there was nothing in the record to indicate that he was aware of his ability to vary downward.

Circuit Snippets

Posted on May 20, 2009
An indicted employee had a right to discover the results of an internal company investigation that the company had turned over to federal investigators (in the hope it would avoid indictment itself), even though the company had reserved its privilege in the materials when giving them to the government...

Random Monitoring of Computer Use Too Broad a Supervised Release Condition

Posted on May 20, 2009
United States v. Matteson, No. 08-2176 (10th Cir. 2009)(unpublished)Congratulations to defense counsel for a sentencing remand resulting from great teasing out of good stuff on appeal which prompted a government concession. As a condition of supervised release for Defendant?s bank fraud and stolen mail convictions (the offenses involved Defendant making counterfeit checks on his computer), the district court imposed heavy-duty random monitoring of D?s computer use...

U.S. v. Tang, 2009 WL 1353755 (5/15/09)

Posted on May 19, 2009
U.S. v. Tang, 2009 WL 1353755 (5/15/09) (unpub'd) - Regardless of whether the defendant violated Utah's law to keep in the lane as much as practicably possible, the defendant's driving for 7 to 8 seconds for 200 to 300 yards over the line on a curving mountain road gave rise to reasonable suspicion the driver was sleepy or impaired justifying the stop...

Federal Public Defender for the District of Kansas Named

Posted on May 15, 2009
According to a press release from the Tenth Circuit Court of Appeals, Cyd Gilman has been appointed to be the Federal Public Defender for the District of Kansas.Ms. Gilman, a Kansas native, earned her undergraduate degree at the University of Kansas and her law degree at Washburn University...

ECF to be Mandatory as of June 1

Posted on May 13, 2009
The Court will begin requiring filing of most documents using the appellate ECF system beginning June 1. Information, including a User's Manual and on-line video tutorials, is available here on the Court's website.

Circuit Snippets

Posted on May 07, 2009
In a case reeking of questionable motives (white woman driver, African-American male passenger, predominantly African-American neighborhood known for drug trafficking), the Sixth Circuit concluded that Brendlin's rule that a stop of a car seizes the passengers as well as the driver did not apply where the passenger got out of the car and tried to leave...

Contention That Court Should Have Argued Second Compentency Eval Rejected

Posted on May 06, 2009
United States v. Cornejo-Sandoval, ___ F.3d ___, 2009 WL 1195527 (10th Cir. 2009)Court rejects D?s procedural and substantive competency claims regarding court?s failure to order a second competency evaluation during trial. 18 USC Sec. 4241(a) sets out the procedure when a question of competency arises...

Family Relationship to Suspect Insufficient to Support Stop of Sister, Search of Parents' Home

Posted on May 06, 2009
Poolaw v. Mercantel, ___ F.3d ___, 2009 WL 1176466 (10th Cir. 2009)Fourth Amendment violated when police stopped the car of the sister-in-law and searched the home of the parents-in-law of the primary suspect in a police killing (Astorga case). Familial relationship is not particularized enough suspicion to overcome an individual?s reasonable expectation of privacy...

Prisoner Certification Proved Timely Mailing

Posted on May 06, 2009
Brown v. Leavenworth County, Kansas, 2009 WL 1132358 (4/28/09) (unpub'd) - The prisoner satisfied proof of timely mailing by certifying he used the prison's internal legal mail system. A declaration under penalty of perjury or a notarized statement regarding mailing is not required when the prisoner certifies he used the prison's legal mail system.

Upward Variance in Child Porn Case Affirmed

Posted on May 06, 2009
U.S. v. Ray, 2009 WL 1133133 (4/28/09) (unpub'd) - The 10th affirms upward variance for transporting child porn from 180-210 months to 270 months because the defendant was a danger to the public, as evidenced by a very bad psychosexual evaluation. The d...

Decision Remanded in light of Nelson

Posted on May 06, 2009
U.S. v. Covington, 2009 WL 1151330 (4/28/09) (unpub'd) - After a remand from the S. Ct. to reconsider in light of Nelson v. U..S., 129 S. Ct. 890 (2009) (reversal for d. ct. presuming the guideline range to be reasonable), the 10th remands to the d. ct...

Interstate Travel at Any Time Sufficient Nexus for Federal Gun Conviction

Posted on May 06, 2009
U.S. v. Urbano, 2009 WL 1143605 (4/29/09) (Published) - In a felon-in-possession case, evidence that the gun traveled in interstate commerce at some unspecified earlier time is enough to satisfy the Commerce Clause. No other proof of nexus or effect on interstate commerce is necessary...

18-year Sentence Reversed By Divided Panel

Posted on May 06, 2009
U.S. v. Lente, 2009 WL 1143167 (4/29/09) (unpub'd) - Reversal of 18-year sentence for 3 involuntary manslaughter convictions and one conviction for assault, for DWI, cross-the-center-line, crash. A majority did not agree on a rationale for the decision...

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