Tenth Circuit Blog: Criminal Law

Home -> Law Blog Directory -> Criminal Law Blogs

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

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

Enhancements Based on Relevant Conduct in Gun Case Affirmed

Posted on May 23, 2008
US v. Hernandez, No. 07-2267 (10th Cir. May 22, 2008) (unpublished): Defendant convicted of being a felon in possession of a firearm and ammunition. Court found that sufficient evidence supported the application of USSG 2K2.1(b)(1)(A), which requires a two-level enhancement if the offense involved three or more firearms...

Wyo. "Simple Assault, Battery" Conviction Not a Predicate Misdemeanor Domestic Violence Offense

Posted on May 21, 2008
United States v. Hays, ___ F.3d ___, No. 07-8039 (10th Cir. May 20, 2008)Conviction under Wyoming ?simple assault, battery? misdemeanor statute is not a misdemeanor crime of domestic violence within the meaning of 18 USC Secs. 922(g)(9) and 924(a)(2), possession of a firearm by a person convicted of misdemeanor domestic violence...

Cause Remanded to Determine If Somalian-born Defendant Should Have Had Interpreter at Grand Jury Proceeding

Posted on May 21, 2008
United States v. Hasan, ___ F.3d ___, No. 06-5234 (10th Cir. May 20, 2008)Remand to the district court to enter findings on whether, under the Court Interpreter?s Act (CIA) (which applies equally to trials and to grand jury proceedings), the Somalian-born defendant was entitled to an interpreter at the grand jury proceedings...

The Legend Lives!

Posted on May 20, 2008
The National Association of Federal Defenders has published the May 2008 edition of The Liberty Legend, chock full of inspiring tales of victories and those selected to be this year's outstanding assistant federal defenders, investigators, research and writing specialists, and paralegals...

To access this complete feed in the blog feed reader login or register for free.

Sec. 1001 Prosecution Can Be Based on False Statements to a Probation Officer

Posted on May 19, 2008
US v. Manning, No. 07-5035, 5/16/08 - The Tenth Circuit reverses the dismissal of a prosecution for making a false statement pursuant to 18 USC � 1001. The dismissal had been based on the ?judicial function? exception in � 1001(b).The defendant forgot to mention the $40K he had in a 401(k) when he submitted his financial affidavit to probation after he pled guilty to misappropriating funds as a fiduciary...

New Trial Motion Denied; Evidence Not "Newly Discovered"

Posted on May 16, 2008
US v. Shipp, 2008 WL 2043295 (10th Cir. 5/14/08) unpublished: Mr. Shipp (acting pro se) filed a second motion for new trial on his felon in possession conviction. This motion fares no better than his first. The allegedly newly found police documents were not newly found but had been mentioned at the trial...

Sufficient Evidence Supported Manager Enhancement in Meth Case

Posted on May 16, 2008
US v. Garcia, 2008 WL 2039535 (10th Cir. 5/14/08), unpublished: Tenth Circuit affirms 210-month sentence for one count of possession with intent to distribute lots of meth. The original presentence report gave Mr. Garcia a total offense level of 33, including a two-level safety valve reduction...

Arrest by Immigration Authorities Did Not Trigger Speedy Trial Act

Posted on May 14, 2008
United States v. Paillas-Castanon, ___ F.3d ___, 2008 WL 2025106 (10th Cir. May 13, 2008)The arrest and detention of the defendant on a civil deportation matter did not violate the Speedy Trial Act, 18 USC Sec. 3161, when he was indicted 2 months later for possession of a counterfeit green card...

Guideline Range Can Be Given "Great Weight" by District Court

Posted on May 14, 2008
United States v. Zamora-Solorzano, ___ F.3d ___, 2008 WL 2035476 (10th Cir. May 13, 2008)Defendant plead guilty to possession with intent to distribute methamphetamine and possession of a firearm in connection with the drug offense, and was sentenced to the low end of the guideline range (270 months)...

Driving a Little Slow Insufficient Grounds for Stop

Posted on May 13, 2008
U.S. v. Valadez-Valadez, -- F.3d --, 2008 WL 2009867 (10th Cir. 5/12/08) - An actual reversal of the district court's denial of motion to suppress because there was no rs for the stop of Mr. Valadez-Valadez's pickup outside Tierra Amarilla, NM. The pickup was stopped for traveling ten miles per hour under the speed limit...

Bank Robbery Conviction Upheld; Defendant Properly Found to Be a Career Offender

Posted on May 13, 2008
U.S. v. Ellis, -- F.3d --, 2008 WL 2004276 (10th Cir. 5/12/08) - the indictment was not inadequate to sustain bank robbery conviction for failure to charge aiding and abetting because it is not an independent crime. The bank robbery elements were properly alleged...

Suspect Unlawfully Arrested Inside Motel Room When Coercive Police Tactics Forced Him to Answer Door

Posted on May 08, 2008
US v. Reeves, 2008 WL 1961246 (10th Cir. 5/7/08):Tenth Circuit REVERSES the district court's denial of the felon-in-possession defendant's suppression motion, holding that the defendant was unlawfully arrested under Payton v. New York. The defendant was arrested without a warrant when he answered his motel room door at 3:30 a...

Robbery, Gun Convictions Affirmed; Speedy Trial, Suppression, and In-Court ID Challenges Rejected

Posted on May 07, 2008
U.S. v. Thompson, -- F.3d --, 2008 WL 1932115 (10th Cir. 5/5/08) - affirmance of bank robbery and gun convictions. No speedy trial violation because, since there was no grand jury in session when the time to file the indictment would otherwise have expired, the period for filing the indictment was extended 30 days...

Tenth Affirms Vitality of Gall/Kimbrough for Downward Variances, But Defendant's Boots Were Suspicious

Posted on May 07, 2008
United States v. Mu�oz-Nava, ___ F.3d ___, 2008 WL (10th Cir. May 6, 2008)Bad news first: there was probable cause to detain Defendant and take him to DEA HQ from the bus station where he arrived from El Paso wearing boots that attracted unwanted attention, and to detain those boots pending issuance of a search warrant...

Proposed New Guidelines

Posted on May 06, 2008
The Fifth Circuit Blog has already done an excellent summary of the proposed new Guidelines amendments, so rather than re-creating the wheel, I urge you to visit the discussion, available here.

Civil Rights Claim Based on Failure to Enforce Protective Orders Proceeds

Posted on May 06, 2008
Price-Cornelison v. Brooks, No. 05-6140, 5/2/08 - Denial of defendant's summary judgment motion based on claim of qualified immunity in this Section 1983 case affirmed in part. This is a civil rights case against an undersheriff. The plaintiff complained about the undersheriff's refusal to enforce some protective orders she got against her long-time girlfriend...

No Scienter Req't Needed to Enhance for Possession of Sawed-Off Shotgun; City Ordinance Violation Not Necessarily Countable in Crim History

Posted on May 02, 2008
US v. Saavedra, No. 07-2192 (10th Cir. May 1, 2008): Half a sentencing loaf for a defendant who pled guilty to being an addict or unlawful user of a controlled substance in possession of a firearm and ammunition, in violation of 18 USC 922(g)(3). Following a traffic stop, Mr...

Upward Variance OK

Posted on April 29, 2008
U.S. v. Taghizadeh, 2008 WL 17901291 (4/21/08) (unpub'd) - The 10th affirms an upward variance from 121 months to 216 months on the grounds that the sexual-exploitation-of-a-minor Guidelines contemplated neither the videotaping of sexual acts [as opposed to sexually explicit poses] nor the defendant participating in the sexual acts...

Civil Rights Claim Against Prison Guards Reinstated

Posted on April 29, 2008
Gruenwald v. Maddox, 2008 WL 1766890 (4/17/08) (unpub'd) - The 10th reverses dismissal of a civil rights complaint. The prisoner sufficiently alleged an 8th Amendment claim where prison guards beat him while he was handcuffed, despite his lack of resistance to their attempts to move him to a different part of the prison...

Remand Based on Kimbrough

Posted on April 29, 2008
U.S. v. Santillanes, 2008 WL 1790381 (4/21/08) (unpub'd) - The 10th remands in light of Kimbrough. The district court mistakenly believed it had no power to grant the defendant's variance motion, which asserted that the disparity between mixed and actual methamphetamine in the Guidelines produced a sentence greater than necessary under � 3553(a).

Wrongfully Incarcerated Plaintiff Could Recover Damages for Personal Hardship

Posted on April 29, 2008
Lowery v. County of Riley, 2008 WL 1701682 (4/14/08) (Published) - Plaintiff sued officers for their interrogation that resulted in a coerced confession that resulted in a wrongful rape conviction that resulted in the plaintiff serving 10 years in prison until DNA evidence exonerated him...

Drumming Anti-War Protester's Civil Rights Claim Survives

Posted on April 29, 2008
Fogarty v. Gallegos, 2008 WL 1765018 (4/18/08) (Published) - The 10th affirms for the most part Judge Johnson's ruling in favor of the civil rights plaintiff in denying summary judgment motions by officers involved in the crack-down on Iraq War protestors near UNM...

Summary Judgment Properly Denied in Sec. 1983 Case

Posted on April 23, 2008
York v. City of Las Cruces, __ F.3d __, 2008 WL 1795062 (10th Cir. April 22, 2008)No summary judgment in 42 U.S.C. 1983 case for qualified immunity to police who arrested plaintiff for saying ?bitch? in public and within the hearing of others, and used brutal force in arresting him...

Limited English Proficiency Doesn't Justify Tolling AEDPA Deadline

Posted on April 23, 2008
Yang v. Warden, __ F.3d __, 2008 WL 1795049 (10th Cir. April 22, 2008)Sec. 2254 petition filed over one year after pro se petitioner?s state court conviction became final is untimely, and there is no equitable tolling of the time due to fact that petitioner speaks Hmong as his first language...

Prison's Confiscation of Legal Materials Shortly Before AEDPA Deadline Could Support Equitable Tolling

Posted on April 17, 2008
US v. Gabaldon, 06-2348 (10th Cir. 4/17/08) (published): The district court should not have dismissed the pro se petitioner's petition that was filed 36 days after expiration of the one-year AEDPA period, which expired on March 21, 2006. Mr. Gabaldon contended that he should receive equitable tolling because, on Feb...

Sparse Statement Insufficient, But Sentence Affirmed

Posted on April 17, 2008
US v. Rainwater, No. 07-6185 (10th Cir. 4/16/08)(unpublished); Although this appeal was filed as Anders brief and the Tenth ultimately affirms, it is notable because the Tenth concludes that the district court's sparse statement imposing a 24 month sentence for violating supervised release conditions gave the Court no reason to conclude that it had considered the Chapter 7 policy statements and the 3553(a) factors when imposing sentence...

Below-Guidelines Sentence Reversed as Procedurally Unreasonable

Posted on April 16, 2008
U.S. v. Pe�a-Hermosilla, ___F.2d. ___, 2008 WL 1723664(10th Cir. April 15, 2008 )Reversal of a below-guidelines sentence as procedurally unreasonable: ?failure to provide proper explanation for the chosen sentence is reversible procedural error.? ?Proper? in this case charts to a large extent Rule 32 requirements...

Order Denying Religious Freedom Defense to Drug Charge Not A Collateral Order

Posted on April 16, 2008
U.S. v. Butts, --- F.3d ----, 2008 WL 1727051 (10th Cir. April 15, 2008).District court order that defendants could not raise at trial their First Amendment, Religious Freedom Restoration Act defense to the marijuana charges against them (MJ is a god), was not a final order that could be appealed under the collateral order exception to the requirement that only final orders can be appealed...

DWI Not A Violent Felony for ACCA Purposes; Supremes Reverse the Tenth

Posted on April 16, 2008
Begay v. United States (06-11543), reversing 470 F.3d 964.In a 6-3 opinion authored by Breyer (dissent by Alito joined by Thomas and Souter)(concurrence by Scalia), the Court decided that 18 USC Sec. 924(e), the Armed Career Criminal Act?s second clause: ?is burglary, arson, or extortion, involves the use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another? does not apply to DWI, and DWI is not a crime of violence within the ACCA...

Gun Conviction for Illegal Alien Affirmed; Pending Application Defense Rejected

Posted on April 11, 2008
US v. Ochoa-Colchado, No. 07-4023, 4/11/08 (published) - Defendant was convicted of unlawful entry in 1993 but remained in the country. The government finally initiated removal proceedings in 2002, in response to which the defendant applied for cancellation of removal and adjustment of status, which was pending at all relevant times...

Previous | Next

Related Law Bulletins

2d Circuit Hears Oral Arguments In Muslim Border-Search Case
Yesterday, the U.S. Second Circuit Court of Appeals heard oral arg...

10th Circuit Rules Largely In Favor of Summum "7 Aphorisms" Monuments
In decisions yesterday, the U.S. 10th Circuit Court of Appeals dea...

Hague Abduction: New 6th Circuit Case on Grave Risk of Harm
The U.S. Court of Appeals for the Sixth Circuit has issued a hi...

New Baptist Covenant Blog
Last week, I pointed to the New Baptist Convenant website, now onl...

The Mexico Trucker Blog
I've written before about the perceived problems with relaxed rest...