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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

Unpublished Decisions

Posted on February 20, 2009
US v. Flanders, No. 08-6056, 2/19/09 - 10th affirms as substantively reasonable, with no discussion, an upward variance for a defendant convicted of bank fraud and related charges. Here is the whole "analysis" - "Mr. Flanders? sole issue on appeal is that his sentence was substantively unreasonable...

No Clear S.Ct. Precedent Requires States to Prove Every Element in Jury Instructions

Posted on February 17, 2009
Bates v. Workman, 2009 WL 294367 (2/9/09) (unpub'd) - No federal habeas relief under AEDPA was available for the state's failure to present sufficient evidence to prove an element that was in the jury instructions, but was not an element under state law...

No Factual Basis Required for Nolo Contendre Plea Where Innocence Not Asserted; IAC Claims Rejected

Posted on February 17, 2009
Green v. Koerner, 2009 WL 347457 (2/12/09) (unpub'd) - The state courts were not required to establish a factual basis for the petitioner's nolo contendere plea because she did not assert her innocence. The petitioner's assertion that she had evidence to challenge her guilt did not constitute an assertion of innocence...

Procedural Reasonableness Claim Preserved; Judge's Sparse Explanation Sufficient

Posted on February 17, 2009
U.S. v. Hernandez-Valois, 2009 WL 301829 (2/9/09) (unpub'd) - A trial attorney shows how one can preserve a procedural reasonableness claim. Hurray. The trial attorney asked the district court for the court's findings with respect to the downward variance request...

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State Revocation Counts for CH Points in Fed. Case that Led to Revocation

Posted on February 17, 2009
U.S. v. Dozier, 2009 WL 323269 (2/11/09) (Published) - A state sentence imposed upon revocation of probation counts in calculating criminal history points, even if the revocation was the result of the federal crime the federal court is punishing. The revocation sentence is imposed for the original offense, not the new federal offense.

Defendant's Plea Was Knowing, Voluntary

Posted on February 17, 2009
U.S. v. Vidal, 2009 WL 350653 (2/13/09) (Published) - The 10th holds the defendant's plea was knowing and voluntary. Even though no one thought it was an Alford plea at the time, the 10th characterizes the plea as such because a number of times the defendant insisted she didn't know the drugs were in the car but on occasion expressed a willingness to plead guilty to possessing the drugs with the intent to distribute them...

Capital Habeas Petitioner Gets Remand Based on Incorrect Instruction on Second-Degree Murder

Posted on February 09, 2009
Taylor v. Workman, 2009 WL 213112 (1/30/09) (Published) - A habeas reversal of an Oklahoma death penalty conviction (!!!!) due to a failure to give a correct lesser-included offense instruction for second degree murder. First, the state court applied law that was contrary to S...

Newly Discovered Evidence Results in Remand

Posted on February 09, 2009
U.S. v. Jones, 2009 WL 166489 (1/26/09) (unpub'd) - A very interesting case in which the 10th reverses and remands for the district court to consider newly discovered evidence. The district court elected to believe the officer's version of his interrogation of the defendant that the defendant admitted previously purchasing 63 grams of crack, resulting in an increase in the base offense level based on relevant conduct...

Possible Jury Confusion over Meaning of "Actual" Meth Unlikely, Court Says

Posted on February 09, 2009
US v. Villegas, -- F.3d --, 2009 WL 225840 (10th Cir. 2/2/09) - affirmance of defendant's convictions for possession with intent to distribute narcotics Suppression motion was properly denied. Mr. Villegas maintained that after traffic stop and return of his driver's license, he did not voluntarily consent to further questioning because a hand gesture made by the officer indicated he was not free to leave...

Some Unpublished Decisions

Posted on February 09, 2009
U.S. v. Frierson, 2009 WL 190082 (1/28/09) (unpub'd) - An unsuccessful, but clever, attempt to get around an appeal waiver. The defendant asserts the miscarriage of justice exception to an appeal waiver applied because the sentence was based on the impermissible factor of race...

CSI Yellowstone, or Whatever Happened to Bambi?

Posted on January 30, 2009
One bizarre unpublished criminal case. US v. Belderrain, No. 08-8016: Government officials learned about an elk's head in a taxidermist's shop in Montana. In the investigation, Mr. Belderrain, the taxidermist, and others told the government that Mr...

Circuit Snippets

Posted on January 27, 2009
In the prosecution of Jeffrey Skilling, former CEO of Enron, the government sufficiently complied with its Brady and Giglio obligations by providing the exculpatory material, along with hundreds of millions of pages of other documents, and left it to the defense to figure out what it wanted, the 5th Circuit held...

Unpublished Decisions

Posted on January 27, 2009
Silvan W. v. Briggs, 07-4272 (1/23/09) (unpub'd) - It was okay to detain someone who was reasonably suspected of obstructing justice with respect to the state taking children from their parents, especially because the plaintiff was a police officer and might have been armed...

Conviction for Felon-in-possession-of-ammo Upheld

Posted on January 27, 2009
US v. Turner, -- F.3d --, 2008 WL 161737 (10th Cir. 1/26/09) - affirmance of conviction for possession of ammunition by a previously convicted felon. District court properly denied motion to suppress results of search that followed arrest of Mr. Turner for driving with a suspended license...

Prisoner Plaintiff Stated Cause of Action Based on Prison's Depriving Him of Hygiene Items

Posted on January 22, 2009
Whittington v. Ortiz, 2009 WL 74471 (1/13/09) (unpub'd) - The prisoner plaintiff had set forth a ground for relief by alleging that the prison authorities deprived him of hygiene items: soap, toothpaste, toothbrushes and razors and, thus, caused him physical problems...

Possessing Deadly Weapon in Prison is ACCA Violent Felony

Posted on January 22, 2009
U.S. v. Zuniga, 2009 WL 104304 (1/16/09) (Published) - The 10th expands the meaning of "purposeful, violent and aggressive" under the recent Supreme Court decision in Begay and, as a result, expand the kinds of offenses that are violent felonies under the Armed Career Criminal Act (ACCA), [and by extension "crimes of violence" under the Guidelines]...

Evidentiary Hearing Ordered on Petitioner's Claim He Wasn't Allowed to Testify

Posted on January 15, 2009
US v. Duran-Salazar, 2009 WL 74476 (10th Cir. 1/13/2009) unpublished: A divided panel remands the habeas petitioner's case for an evidentiary hearing in the district court on his 2255 claim that he was denied effective assistance of counsel at his trial...

Dog Alert Sufficiently Reliable Despite Dog's Health Issues

Posted on January 15, 2009
US v. Bertram, 2009 WL 74477 (10th Cir. 1/13/2009) unpublished: Defendant's convictions for felon in possession of a firearm are affirmed. The guns were found after a dog alerted to the car during a traffic stop. Read this case if you have a dog alert issue...

Reentry After Deportation is a Continuing Offense

Posted on January 13, 2009
US v. Villarreal-Ortiz, -- F.3d --, 2009 WL 57491 (10th Cir. 1/12/09) - after having been deported, Mr. Villarreal-Ortiz re-entered and was arrested on drug charges. He admitted being in the US w/o inspection. After he got probation on the drug charge, an immigration agent determined his true name and status as a prior deportee...

Team Effort

Posted on January 05, 2009
Happy New Year! This seems like a good time to point out that, although I manage this blog, the submissions are actually written by the whole team of wonderful and dedicated research and writing specialists in the District of New Mexico.

Despite Sparse Mitigation Efforts by Trial Counsel, Capital Habeas Petitioner's Claims Rejected

Posted on January 05, 2009
Smith v. Workman, ___ F.3d ___, No. 05-6206 (10th Cir. 2008)Death affirmed in habeas case. The offense was the killing of a confederate who refused to give Petitioner drugs and money. The aggravating circumstances supporting death, after a mitigation trial that took up only 6 pages of transcript, was Petitioner?s two previous violent felony convictions and the probability of his continuing threat to society...

Double-Counting in Reentry Cases Still OK

Posted on January 05, 2009
United States v. Algarate-Valencia, ___ F.3d ___, 2008 WL 5401415 (10th Cir. 2008)After submitting a lengthy sentencing memo, defense counsel asked to speak at sentencing. The judge said ?you have 30 seconds.? Counsel spoke, quickly. After the judge pronounced sentence and did not address the grounds Defendant raised for a variance, the government asked the judge to make findings on Defendant?s variance grounds...

Wife's Suicide Supports Felon-in-Possession Enhancement

Posted on January 05, 2009
United States v. Montgomery, ___ F.3d ___, 2008 WL 5401410 (10th Cir. 2008)Upward departure for death under USSG Sec. 5K2.1 is not limited to homicide deaths and can apply as a matter of law to a resulting suicide?in this case, D?s wife committed suicide with a gun he illegally possessed as a felon...

Fla. Agg Battery Conviction Not Categorically a Crime of Violence

Posted on January 05, 2009
United States v. Barraza-Ramos, ___ F.3d ___, 2008 WL 5401417 (10th Cir. 2008)The Court happily determines, in at least the context of this case, ?or? does not mean ?and.? Defendant?s Florida conviction for felony aggravated battery was not categorically a crime of violence and could not support the 16 level upward adjustment under USSG 2L1...

Unpublished Decisions

Posted on January 05, 2009
U.S. v. Helton, 2008 WL 5206276 (12/15/08) (unpub'd) - Video of a minor constituted a lascivious exhibition of the minor's pubic area, even though the minor's pubic area was covered. A surreptitious video set up in a bathroom focusing on an 11-year-old girl's pubic area covered by opaque underpants was child pornography...

General Request for Low Sentence Fails to Preserve Specific Issue

Posted on January 05, 2009
U.S. v. Herrera-Gonzalez, 20008 WL 5328448 (12/22/08) (unpub'd) - An issue-preservation word to the wise. Counsel had not preserved the issue that the d.ct. should have imposed a greater variance than it did to a level below what the defendant would have received had the defendant entered a Fast-Track plea, because counsel had not explicitly requested a sentence that low...

Guidelines Mandatory in Sec. 3582(c)(2) Context

Posted on January 05, 2009
U.S. v. Pedraza, 2008 WL 5274446 (12/22/08) (Published) - The 10th refused to permit the guidelines to be considered advisory in the defendant's � 3582(c)(2) proceedings. The 10th applied its recent decision in Rhodes that Booker did not apply to those proceedings...

Tenth Limits Meaning of "Forcible Sex Offense" in Guidelines

Posted on January 05, 2009
U.S. v. Dennis, 2008 WL 5274098 (12/22/08) (Published) - An excellent guideline "crime of violence" decision. The taking of indecent liberties with a minor in Wyoming is not a "forcible sex offense" and does not present a serious potential risk of physical injury to another under � 4B1...

Circuit Snippets

Posted on December 24, 2008
A district court can rely on particular attributes of the local community to justify a variance in the sentence, the 2d Circuit held. It affirmed a district court's decision to enhance a defendant convicted of illegally trafficking in firearms based on the need for greater deterrence in NYC...

District Court Can Consider Prior Guideline Reductions at 3582(c)(2) Resentencing

Posted on December 24, 2008
United States v. D.C., ___ F.3d ___, 2008 WL 5340429 (10th Cir. 2008)Great argument in retroactive crack reduction case where Defendant had previously received 5K1.1 and Sec. 3553(e) reductions, rejected by the COA. Defendant claimed that the district court, in the reduction re-sentencing, erroneously took the extent of those cooperation reductions into account when denying the retroactive crack reduction...

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