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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

3d-party Guarantor of a Bail Bond Can Discharge Debt in Bankruptcy

Posted on September 16, 2008
In re Sandoval, 2008 WL 4173090 (9/11/08) (Published) - A debt incurred by a debtor who has guaranteed a bail bonds person to make the bail bonds person whole if the criminal defendant jumps bail is dischargeable in bankruptcy. The debt is not a "fine, penalty or forfeiture payable to and for the benefit of a governmental unit," since the debtor owed the bail bonds person, not a government agency.

Defendant Who Seeks a Change in Sentence Loses Expectation of Finality

Posted on September 16, 2008
Torres v. Heredia, 2008 WL 4139385 (9/9/08) (unpub'd) - It was not a violation of the petitioner's expectation of finality protected by the Double Jeopardy Clause when, in response to the petitioner's motion to reconsider sentence, the state district court found an arithmetical error and increased the sentence by a year...

Perjury Conviction Based on Statements in 2255 Motion Upheld

Posted on September 16, 2008
U.S. v. Rodriguez-Chavez, 2008 WL 4139386 (9/9/08) (unpub'd) - The defendant was convicted of perjury for two false statements in his 2255 motion: (1) that his counsel never spoke to him about his offense; and (2) that his counsel forced him to sign a plea agreement...

Argument with Judge Supported Obstruction Enhancement

Posted on September 16, 2008
U.S. v. Judd, 2008 WL 4183920 (9/112/08) (unpub'd) - It was okay to impose an obstruction of justice enhancement where the defendant went to the home of the state judge who issued the warrant in his case, asked the judge to give him a handwriting sample to prove the judge's warrant signature was forged, the judge refused [while offering to look at the warrant and say whether he signed it or not] and a heated argument ensued...

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Double-Counting Argument Rejected

Posted on September 16, 2008
U.S. v. Riccardi, 2008 WL 4183921 (9/12/08) (unpub'd) - It was not impermissible double-counting to impose an enhancement under USSG � 2G2.1(d)(1) for exploiting more than one minor and imposing another enhancement under � 4B1.5(b)(1) for exploiting those same minors on more than one occasion...

Civilian Volunteer Working with Cops Supports 2G2.1 Enhancement

Posted on September 16, 2008
U.S. v. Mai, 2008 WL 4139383 (9/9/08) (unpub'd) - It was okay to cross-reference from USSG � 2G1.3 (re: traveling to engage in illicit sexual conduct) to � 2G2.1 (sexual exploitation of a minor) [an 8-level higher base offense level]. The cross-reference is only appropriate when a "minor" is involved and "minor" is defined as a person under 18 or a "law enforcement officer" pretending to be under 18...

Duress Defense Denied to Reentry Defendant

Posted on September 16, 2008
U.S. v. Portillo-Madrid, 2008 WL 4183915 (9/12/08) (unpub'd) - The district court correctly refused to give a duress instruction in a reentry case where the defendant asserted he fled El Salvador and entered the U.S. because he was threatened with death due to his participation in a court proceeding...

Upward Variance from 37 Months to 8 Years Ok'd

Posted on September 12, 2008
US v. Johnson, 2008 WL 4150019, No. 07-3112 (10th Cir. 9/10/08) (unpublished): The Tenth affirms the upward variance from the advisory guidelines range of 30-37 months to an 8-year sentence in a felon-in-possession case. On plain error review, the Court finds that the sentence was procedurally reasonable, rejecting arguments: (1) That the district court improperly relied on a memorandum prepared by the probation officer at the court's request; this memo used an "extrapolation method" to calculate a range of 51-63 months...

Court Considers Wiretap, Sufficiency, and Sentencing Issues

Posted on September 11, 2008
United States v. Zapata, ___ F.3d ___, 2008 WL 4138520 (10th Cir. 2008) COA upholds convictions and sentences for 5 co-defendants in an extensive drug conspiracy prosecution involving many family members and friends. After a key bust that turned a transporter into a cooperator, the government obtained wire taps which in turn led to a 35 count indictment, including drug trafficking conspiracy, against 18 co-defendants...

No Abuse of Discretion to Exclude Defendant's Expert Testimony on False Confessions

Posted on September 11, 2008
United States v. Benally, ___ F.3d ___, 2008 WL 4138468 (10th Cir. 2008).The COA finds district court did not abuse its discretion under Fed. Crim. Evid. R. 702 in not admitting testimony of defense expert on why individuals might falsely confess. Although the expert would not have testified to whether D falsely confessed, the testimony would nevertheless have encroached upon the jury function of determining credibility of the witnesses...

Miscellaneous from All Around the Circuits

Posted on September 11, 2008
It was A-OK for cops to search a house pursuant to the wife's consent, even though the husband had denied consent. You'd think that the Supreme Court's decision in Georgia v. Randolph, 547 US 103 (2006), would mean that the search was a definite no-no...

Co-Defendants' Drug Conspiracy Convictions Affirmed

Posted on September 09, 2008
U.S. v. Doddles, 2008 WL 4061054 (9/3/08) (Published) - There was sufficient evidence the defendant possessed ecstasy pills and a firearm found in another person's bedroom, [despite no evidence he had a gun or drugs on the date the firearm and drugs were found] in light of the defendant's access to that bedroom, his involvement in other drug transactions and shooting episodes, his membership in the gang that was connected to the pills and firearm, and his presence in the residence with the bedroom...

Prisoners Seeking Medical Care Not Certified as a Class

Posted on September 09, 2008
Shook v. Board of County Commissioners, 2008 WL 3982987 (8/29/08) (Published) - A troubling roadblock to prisoners obtaining better medical care. The 10th finds no abuse of discretion [although it might have decided differently, it claims] when the district court refused to certify prisoners of a Colorado jail as a class because the named plaintiffs had different complaints that required different individualized remedies.

Unpublished Decisions

Posted on September 09, 2008
U.S. v. Welch, 2008 WL 4061166 (9/3/08) (unpub'd) - The good news: officers did not have probable cause for the issuance of a warrant to search the defendant's home when the information they had indicated the defendant had used his home to make meth several months before but that he had stopped doing so...

Guideline Enhancement Based on Co-Defendant's Use of Gun During Robbery Upheld

Posted on August 28, 2008
United States v. Miera, ___ F.3d ___, 2008 WL 3905885 (10th Cir. 2008)The COA upholds application of the two level GL enhancement, �2B3.1(b)(4)(B), restraint of a person, when D?s accomplice waved a gun at the bank door during a robbery and ordered no one to move...

Wyo. Law Fails to Restore Federal Gun Rights to DV Misdemeanants

Posted on August 28, 2008
Wyoming ex rel. Crank v. U.S., 2008 WL 3906587 (Aug. 26, 2008): The State of Wyoming sought declaratory and injunctive relief against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which had ruled that a Wyoming statute purportedly establishing a procedure to expunge convictions of domestic violence misdemeanors, so as to restore lost firearms rights, would not restore federal firearm rights...

Safe Haven?

Posted on August 26, 2008
U.S. v. Cabanillas, 2008 WL 3843463 (8/19/08) (unpub'd) - In rejecting a claim of the substantive unreasonableness of a sentence, the 10th expresses its belief, contrary to the defendant's claim, that the BOP will take all necessary steps to ensure the safety of a prisoner who has snitched off gang members.

Bacause Defendant Was Already Incarcerated, No Relief for Speedy Trial Violation

Posted on August 26, 2008
U.S. v. Hill, 2008 WL 3861201 (8/20/08) (unpub'd) - In a divided decision, the 10th rejects Speedy Trial Act and speedy trial right claims. There is no provision in the Act for dismissal of an indictment when, as occurred here, the government violates its obligations under 18 U...

Nature of Prior Not Dependant on Defendant's Actual Sentence But On Potential Sentence

Posted on August 26, 2008
U.S. v. Hill, 2008 WL 3876846 (8/22/08) (Published) - Upon the government's rehearing petition, the 10th reverses its prior decision in light of the Supreme Court's decision in U.S. v. Rodriquez, 128 S. Ct. 1783 (2008). The 10th previously ruled the defendant could not be a felon in possession of a firearm since his prior conviction was for a crime punishable by only 11 months under Kansas' guidelines, given the defendant's particular criminal history...

Tenth Denies Claim that Right to Present Defense was Abrogated by Co-Defendant's Refusal to Testify

Posted on August 26, 2008
U.S. v. Rivas-Macias, -- F.3d --, 2008 WL 3892728 (10th Cir. 8/25/08) - COA rejects claim that right to present a defense at drug conspiracy and possession with intent to distribute trial was violated by co-conspirator's invocation of his 5th privilege...

Alien-In-Possession of Firearm, Ammo Convictions Affirmed

Posted on August 26, 2008
U.S. v. Gambino-Zavala, -- F.3d --, 2008 WL 3892073 (10th Cir. 8/25/08) - police sweep of apartment where multiple gunshots were reported by multiple 911 calls early in the morning was justified by exigent circumstances and motion to suppress was rightfully denied...

New Federal Convictions Reversed Available

Posted on August 25, 2008
Tne Federal Defenders for the District of Northern New York have an updated edition of Federal Convictions Reversed available here at their website. This is a very useful list of successful criminal defense wins that can shortcut the painful process of finding favorable case law.

Conviction Rev'd Because Indictment Constructively Amended

Posted on August 20, 2008
United States v. Farr, ___ F.3d ___, 2008 WL 3843336 (10th Cir. 2008)The COA finds that during trial the government constructively amended the indictment against Defendant in a employment tax fraud case, charging her in the indictment as an employer/individual, but having the charge amended to a charge against her as an employer/business, when D defended in closing that the case had not been proved against her as an individual...

Divided Panel Upholds Drug Conviction Enhancement in Reentry Case

Posted on August 20, 2008
United States v. Torres-Romero, ___ F.3d ___, 2008 WL 3843344 (10th Cir. 2008)Defendant was convicted of illegal entry after deportation. The COA held that his prior Colorado drug conviction was properly treated as a qualifying ?drug trafficking offense? for the 16 point guideline enhancement...

Probation Officer Could Identify Defendant In Robbery Video; Life Sentence Affirmed

Posted on August 19, 2008
U.S. v. Contreras, -- F.3d --, 2008 WL 3823059 (10th Cir. 8/18/08) - it was OK to permit Mr. Contreras' probation officer to testify she recognized him in bank robbery video. While the jury could review the surveillance footage, the po could base her identification on many factors that would not be apparent to the jury viewing Mr...

USSG 2K2.1 Enhancement Proper; Low-End GL Sentence Affirmed

Posted on August 15, 2008
US v. Hodge, 2008 WL 3507464 (unpublished) - In this felon in possession case, district court did not clearly err in finding that defendant possessed firearm "in connection with another felony offense" and applying four-level sentence enhancement pursuant to USSG section 2K2...

Capital Habeas Petitioner Gets Evidentiary Hearing on IAC Claim; Other Contentions Rejected

Posted on August 12, 2008
Wilson v. Sirmons, 2008 WL 3166975 (8/8/08) (Published) - Judge McConnell wrote an excellent opinion regarding ineffective assistance ("IA") of counsel in a capital case. But it was not joined in by any other judge. Judge Hartz concurred in the result remanding for an evidentiary hearing on the IA issue and Judge Tymkovich dissented...

Prisoner Civil Rights Complaint Reinstated

Posted on August 12, 2008
Fuller v. Wilcox, 2008 WL 2961388 (8/4/08) (unpub'd) - The 10th reverses dismissal of civil rights action filed by prisoner who had filed so many frivolous actions he was banned from filing anything in federal court absent imminent danger of physical injury...

Sufficient Evidence Supported Conviction

Posted on August 12, 2008
Mars v. Dinwiddie, 2008 WL 2954292 (8/4/08) (unpub'd) - The 10th finds sufficient evidence to support the conviction for assault and battery with intent to kill, rejecting the petitioner's claim that he could not have used the requisite force or had the requisite intent because, "despite all the problems, he loved" the victim.

10th Refuses to Reconsider IAC Argument

Posted on August 12, 2008
U.S. v. Lewis, 2008 WL 2961812 (8/4/08) (unupb'd) - Evidencing the downside of raising ineffective assistance ("IA") of counsel on direct appeal, the 10th refuses to consider the � 2255 movant's IA claim because the 10th already rejected the claim on the merits in the direct appeal.

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