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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

Pepper In the Eye is a 4th Amendment Seizure

Posted on April 28, 2009
Lemery v. Beckner, 2009 WL 990523 (4/14/09) (unpub'd) - An officer's hitting a person with a pepper ball shot in the eye and momentarily stopping the person constituted a seizure under the Fourth Amendment.

Denial of Summary Judgment in 1983 Action Affirmed

Posted on April 28, 2009
Hostetler v. Green, 2009 WL 997426 (4/15/09) (unpub'd) - In a § 1983 case, the question whether the district court properly relied on a particular fact to determine the officer's subjective knowledge was a question of law. The district court correctly considered whether the guard violated prison policy when he left a male trustee inmate alone in a cell with a female prisoner...

A Black Eye Can Constitute Excessive Force

Posted on April 28, 2009
Grass v. Johnson, 2009 WL 997346 (4/15/09) (unpub'd) - Force used by police can be excessive even if it does not result in that much damage. In this case, the plaintiff ended up with a black eye. The unwarranted nature of the force, not the potential for physical harm, rendered it unconstitutional...

Investigatory Stop OK'd

Posted on April 28, 2009
U.S. v. Crespin, 2009 WL 1069167 (4/22/09) (unpub'd) - One of the factors establishing reasonable suspicion to conduct an investigatory stop: all the occupants of the minivan reacted to the officer's presence with an "oh crap look," as though they had something to hide...

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Harmless Error for Court to Consider State Prosecutor's Letter

Posted on April 28, 2009
U.S. v. Bacon, 2009 WL 997400 (4/15/09) (unpub'd) - Any error in the district court considering a letter from a state prosecutor calling the defendant a "menace to society," without telling the defendant was harmless because the court's upward departure from 37 months to 60 months was overwhelmingly justified by the defendant's horrible record.

No 3582(c)(2) Relief for Career Offender

Posted on April 28, 2009
U.S. v. Robinson, 2009 WL 1067591 (4/22/09) (unpub'd) - A little twist on the typical career offender denial of 18 USC § 3582(c)(2) relief. At the original sentencing the court applied the offense level determined by the crack quantity. But no relief, the 10th says, based on the crack amendment because the defendant's career offender offense level, which was the same as the quantity-driven level, was not reduced and trumped the amendment's reduction, even though the court did not originally rely on the career offender level.

OK to Pat Down Suspected Burglar

Posted on April 28, 2009
U.S. v. Luginbyhl, 2009 WL 1014853 (4/16/09) (unpub'd) - The officer had a reasonable suspicion the defendant was armed and needed to be patted down because: (1) the defendant was a suspected burglar and burglars often are armed and (2) the officer reasonably misunderstood the dispatcher to indicate the defendant was going to get a gun [it was actually the caller who said she might get a gun]...

Prior Conviction Counts Eventhough Defendant was a Juvenile

Posted on April 28, 2009
U.S. v. Rayas, 2009 WL 1067943 (4/22/09) (unpub'd) - It was okay to count a conviction, even though the defendant was a juvenile at the time of the conviction, because the juvenile claimed to be an adult at that time and received an adult conviction he didn't deserve.

Defendant Properly Denied Acceptance Points

Posted on April 28, 2009
U.S. v. Tharps, 2009 WL 975532 (4/13/09) (unpub'd) - The 10th affirms denial of acceptance of responsibility reduction where the defendant was convicted of only the offenses he admitted to on the stand: possession of cocaine for personal use and felon-in-possession, and was acquitted of possession with intent to distribute and possessing a gun in furtherance thereof...

"Community of Reference" Test for Indian Country Applied

Posted on April 28, 2009
Hydro Resources, Inc. v. U.S. EPA, 2009 WL 1027184 (4/17/09) (Published) - The 10th holds the EPA did not err in finding a checkerboard area in N.W. New Mexico is "Indian country." As a result, the uranium mining company has to deal with the EPA, not state authorities, for permission to help spread radioactivity throughout the land...

Always, Always Object

Posted on April 28, 2009
U.S. v. Uscanga-Mora, 2009 WL 1100458 (4/24/09) (Published) - Following the Supreme Court's recent Puckett case, the court extols the virtue of plain error review. E.g., a contemporaneous objection will enable the court to correct any procedural error right then...

Nunc Pro Tunc State Order Shortening Probation Did Not Negate Sentencing Increase

Posted on April 28, 2009
U.S. v. Pech-Aboytes, 2009 WL 1026484 (4/17/09) (Published) - A post-federal-plea nunc pro tunc state court order that shortened the defendant's probation so that it ended before he committed the federal offense did not preclude the application of the two level increase under § 4A1...

Court Reverses Some Enhancement Imposed on Defendants Convicted of Civil Rights Offenses

Posted on April 16, 2009
United States v. Egbert, ___ F.3d ___, 2009 WL 983054 (10th Cir. 2009)Three white supremacists convicted of conspiracy to violate civil rights and, in the case of one of the three Ds, a substantive civil rights offense, launched unsuccessful and successful challenges to guideline calculations...

Possessing Unregistered Gun Not a Crime of Violence Under 924(c)(1)

Posted on April 16, 2009
United States v. Serafin, ___ F.3d ___, 2009 WL 983055 (10th Cir. 2009)Possession of an unregistered firearm?a short-barreled .22 assault rifle?was not a crime of violence, so that D?s possession of a different firearm at the same time he possessed the unregistered rifle could not constitute the offense of possession of a firearm during a crime of violence in violation of 18 USC Sec...

Gun Thief Convicted of Felon-in-Possession, Properly Enhanced for Possessing Gun with Burglary

Posted on April 16, 2009
United States v. Morris, ___ F.3d ___, 2009 WL 989011 (10th Cir. 2009)D was convicted of being a felon in possession of a firearm for the gun he took during a burglary. The district court properly applied the § 2K2.1(b)(6) enhancement for possession of the gun in connection with another felony (the burglary), and there was no plain error in the court?s use of Application Note 14 (B)...

District Court May Not Delegate Setting Restitution Schedule to BOP

Posted on April 14, 2009
Bradshaw v. Lappin, 2009 WL 921161 (4/7/09) (unpub'd) - A federal prisoner victory. The 10th reverses a dismissal of a civil rights complaint. The Bureau of Prisons does not have the authority to set up a restitution schedule and tell the inmates they would not be allowed out of supermax unless they complied with that schedule...

Separation of Powers Argument Rejected in 3582(c)(2) Context

Posted on April 14, 2009
U.S.. v. Franklin, No. 08-3315 (4/10/09) (unpub'd) - The 10th rejects a separation of powers argument against the refusal to apply Booker to § 3582(c)(2) proceedings. Congress can incorporate a guideline provision as a means of limiting a district court's authority to reduce a sentence.

Crack Resentencing Properly Denied Based on Court's Calculation of New Drug Amount

Posted on April 14, 2009
U.S. v. Valdez, 2009 WL 929921 (4/8/09) (unpub'd) - An unusual 18 USC § 3582(c)(2) case that calls into question the 10th's claim that those cases don't involve a real resentencing. When the defendant was initially sentenced, the district court found 1...

Preponderance of the Evidence Standard Still Applies to Judicial Fact-Finding at Sentencing

Posted on April 14, 2009
U.S. v. Jones, 2009 WL 921116 (4/7/09) (unpub'd) - Booker did not require overturning prior precedent that only a preponderance of the evidence standard applies to judicial fact-finding that enhances the guideline range. In this case, the fact-finding increased the range from 21-27 months to 151 to 188 months...

Sentence Reversed Based on Plain Error

Posted on April 14, 2009
U.S. v. Mendez, 2009 WL 921125 (4/7/09) (unpub'd) - Defendant's sentence reversed because the district court mistakenly applied a 60% purity ratio to calculate the marijuana equivalent for the methamphetamine. The lab report said the purity ratio was 41%...

Petition Raising Applicability of Booker to section 3583(c)(2) Resentencing Proceedings Set for Conference

Posted on April 13, 2009
The first petition raising the issue of whether Booker's flat statement that the guidelines are advisory in all contexts includes resentencing proceedings pursuant to Section 3582(c)(2), US v. Rhodes, Docket No. 08-2111,has been set for conference next week, on April 24...

Ohio Breaking and Entering, 3rd-Degree Burglary Conviction Qualify as ACCA Violent Felonies

Posted on April 10, 2009
US v. Scoville, 2009 WL 929521 (10th Cir. April 8, 2009) publishedDefendant was properly sentenced as an armed career criminal. His Ohio breaking and entering conviction does not categorically qualify as generic burglary, but under modified approach, it qualified as generic burglary because he pled guilty to unlawfully entering a building (a laundromat) with intent to commit a crime...

Ambiguity in Appeal Waiver Created by District Court's Description

Posted on April 10, 2009
US v. Benitez-Diaz, 2009 WL 931708 (10th Cir. April 8, 2009) (unpublished)Despite an appeal waiver in the plea agreement, defendant get a partial remand for resentencing. The district court mischaracterized the waiver provision as applying to the conviction, and it was not clear whether the defendant had already signed the agreement at the time...

Rare Reversal for Procedural Unreasonableness in Imposing Sentence

Posted on April 10, 2009
US v. Swopes, 2009 WL 929927 (10th Cir. April 8, 2009)(unpublished)"In an exhibition of admirable candor", the Government conceded and Tenth Circuit agreed that the district court's sentence was procedurally unreasonable, and the error not harmless, because the court admitted presuming that the advisory Guidelines range was reasonable and failing to consider the 3553(a) factors!

Over-zealous Alumni Devotion Leads to Traffic Stop

Posted on April 07, 2009
U.S. v. Orduna-Martinez, 2009 WL 884619 (4/3/09) (Published) - Kansas law did require all of the registration label on a license plate to be "clearly legible" and the defendant's Ohio State University plate frame was not cut out sufficiently enough to render the label "clearly legible," authorizing the officer's stop of the vehicle...

Plaintiff's Counsel's Misconduct Gets New Trial for Company

Posted on April 07, 2009
Whittenburg v. Werner Enterprises, 2009 WL 884616 (4/3/09) (Published) - A civil case , but should be useful in prosecutorial misconduct arguments on appeal. Once again a big company facing money damages seemingly gets more protection than a defendant facing the loss of liberty...

Remand for Application of Chambers in ACCA Case

Posted on April 07, 2009
U.S. v. Young, 2009 WL 886236 (4/3/09) (unpub'd) - Chambers applies to the interpretation of USSG § 4B1.2(a). The 10th remands to see if the defendant's escape was a failure to return escape and thus was not a "crime of violence" for purposes of determining the base offense level for a felon-in-possession of a firearm case under § 2K2...

Doubling of Sentence in Reentry Case Affirmed

Posted on April 07, 2009
U.S. v. Marquez-Pineda, 2009 WL 799018 (3/27/09) (unpub'd) - Without much discussion, 10th Cir. affirms upward variance in reentry case from the top end of 30 months to 60 months, due to 8 prior illegal reentries, 30 aliases, 16 different dates of birth, 5 different social security numbers and 8 DUI convictions.

Failure to Consult Re: Appeal Rights Results in 2255 Relief

Posted on April 07, 2009
U.S. v. Kelley, 2009 WL 806746 (3/30/09) (unpub'd) - A reversal of a 2255 denial. First, trial counsel had a duty to consult with the defendant about appealing, even though there was no reason to believe a rational defendant would want to appeal the within-Guidelines sentence...

What Not To Say at Oral Argument

Posted on April 07, 2009
U.S. v. Marquez-Diaz, 2009 WL 826840 (3/13/09) (unpub'd) - Just a cautionary tale about what counsel says at oral argument. The 10th had issued an earlier decision saying counsel had waived a particular issue at oral argument. The 10th granted the petition for rehearing and begrudgingly addressed the issue, insisting all along counsel really did waive the issue...

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