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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

Prior to State Decision, Officer Could Have Reasonably Concluded "Possible Harm" Sufficient for Arrest

Posted on December 22, 2009
Herrera v. City of Albuquerque, 2009 WL 4755705 (12/14/09) (Published) - An arrest was okay because the officer could have reasonably concluded there was probable cause to believe the plaintiff violated N.M. Stat. Ann. § 30-6-1(D)(1)---child abuse by endangerment---by virtue of the unsanitary conditions in the home...

Good Faith Saves Search that Violated Gant

Posted on December 22, 2009
U.S. v. Davis, 2009 WL 4884054 (12/18/09) (Published) - The 10th elects to publish a case that reconfirms the decision in U.S. v. McCane, 573 F.3d 1037 (10th Cir. 2009), that the good faith exception applies to officers who acted in violation of Arizona v...

Walkaway Escapes Not ACCA Predicates

Posted on December 22, 2009
U.S. v. Shipp, 2009 WL 4827367 (12/16/09) (Published) - A great defense win and a reason to encourage clients who suffered from the former case law that walkaway escapes were violent felonies and crimes of violence to file 2255s before Jan. 13, 2010. The defendant had contended on appeal that his prior walkaway escape should not have counted as a violent felony under the ACCA...

Unpublished Decisions

Posted on December 09, 2009
U.S. v. Niedlinger, 2009 WL 4282839 (12/2/09) (unpub'd) - Showing a badge, pointing out the possession of the badge, stating that, because of the badge, the defendant would not be pushed around any more and demanding to see the mayor without an appointment resulted in an overt act beyond the mere representation of claiming to be a U...

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Stop Found to Be Unreasonable Where Cop Mistakenly Believed Dealer Plates were Improper

Posted on December 08, 2009
US v. Pena-Montes, -- F.3d --, 2009 WL 4547058 (10th Cir. 12/7/09) - Officer initiated traffic stop on reasonable belief that the vehicle lacked a license plate, but observed after pulling it over that the vehicle had a "dealer tag." The officer made a mistake of law in assuming that the lawful use of dealer plates was limited to demonstrating vehicles and thus investigating his suspicion that the vehicle may have been stolen...

Time Computation, Other Changes in New Appellate Rules

Posted on December 01, 2009
As of today, December 1, among a few other changes, the hard work of the Time Computation Committee has finally come to fruition, doubtless leading to mass confusion for awhile to come. The Criminal Procedure and Appellate Procedure Rules have been changed so that there is no such thing as not counting weekends and holidays...

Unpublished Decisions

Posted on December 01, 2009
Thomas v. Parker, 2009 WL 4042667 (11/23/09) (unpub'd) - The 10th affirms granting of habeas challenging the revocation of 30 days of good time credits for possession of contraband, i.e., a prayer cap. The prisoner alleged that the warden asked him to withdraw a grievance against a mail room clerk...

Search Warrant Not Stale, Supported by Probable Cause

Posted on November 17, 2009
US v. Potts, -- F.3d --, 2009 WL 3806681 (10th Cir. 11/16/09) - search warrant affidavit established probable cause to believe child porn would be found at Mr. Pott's residence. Witness who made report seemed credible and affidavit information was not stale by standards Tenth has endorsed in child porn cases...

Remand Regarding Voluntariness of Appeal Waiver Ordered

Posted on November 17, 2009
US v. Livingston, -- F.3d --, 2009 WL 3806675 (10th Cir. 11/16/09) - remand for evidentiary hearing to determine whether Mr. Livingston voluntarily waived his right to appeal the denial of his motion to suppress evidence seized from a search of his motel room by entering into a stipulation of the underlying facts for purposes of his bench trial...

Venue, Suppression, Sentencing Claims Rejected

Posted on November 11, 2009
U.S. v. Hamilton, 2009 WL 3647929 (11/5/09) (Published) - The 10th finds the evidence sufficient to establish venue in Kansas, which, in turn, depended on establishing the interdependence between the defendant's acts and those of a co-conspirator. The defendant was responsible for overt acts committed before he joined the conspiracy...

Civil Rights Wheelchair Bound Plaintiff Has Claims Reinstated

Posted on November 11, 2009
Rhoads v. Miller, 2009 WL 3646078 (11/5/09) (unpub'd) - The 66-year-old plaintiff stated a claim for relief where he alleged an officer pulled him out of his wheelchair, tipped him over, kicked him in the ribs and stomped on his hands, resulting in dislocation of his elbow.

Unpublished Decisions

Posted on November 11, 2009
U.S. v. Villareal, 2009 WL 3526561 (11/2/09) (unpub'd) - Pro se appellant's filing of IFP motion constituted a timely filing of a notice of appeal, although the motion did not state what judgment the appellant was appealing or to what court he was appealing...

I want to thank all the other research

Posted on October 30, 2009
I want to thank all the other research attorneys for the FPD-NM office. This blog is a group effort; no one person could keep it up alone!

Unpublished Decisions

Posted on October 30, 2009
U.S. v. Richard, 2009 WL 3367632 (10/21/09) (unpub'd) - An officer's opinion, based on his extensive experience, that individuals involved in drug activity typically keep evidence of that activity in their homes, is enough to establish probable cause to search a suspect's home...

Supervised Release Violation Based on Failure to Complete Program Upheld

Posted on October 30, 2009
U.S. v. Metzener, 2009 WL 3366308 (10/21/09) (Published) - The district court reasonably interpreted the supervised release condition that the defendant "participate in a sex offender treatment program" to mean that the defendant had to substantially participate for the entire length of the program...

Tenth Addresses Issues of Waiver, Affirms Denial of Suppression Motion

Posted on October 30, 2009
U.S. v. White, 2009 WL 3381528 (10/22/09) (Published) - One defendant signed an appeal waiver that waived any suppression arguments except those raised below. Troublingly, the other defendant waived arguments not raised below because Rule 12(b)(3)(C) says a party who fails to raise an issue regarding a motion to suppress waives that issue...

UnpublishedUS v. Ellis, No. 09-4006,

Posted on October 30, 2009
UnpublishedUS v. Ellis, No. 09-4006, 10/29/09 - 1) 2-level enhancement of felon in possession sentence because district court found that firearm was stolen appropriate where district court said nothing to indicate that it considered guidelines mandatory, hence no Booker violation; in any event, defendant admitted gun was stolen, and there is no scienter requirement that he be subjectively aware of that fact...

United States v. Griffith, ___

Posted on October 28, 2009
United States v. Griffith, ___ F.3d ___ , 2009 WL 3429767 (10th Cir 2009) Defendant pleaded guilty to theft of government money arising out of her embezzlement of VA benefits as representative payee/fiduciary of the veteran. The Tenth held that the district court correctly calculated loss under the guidelines...

State Law Violation Not A Fourth Amendment Violation

Posted on October 27, 2009
Bowling v. Rector, -- F.3d --, 2009 WL 3416342 (10th Cir. 10/26/09) - state law violation related to execution of a search warrant - in this case, exceeding authority of a special ranger under Oklahoma law - did not violate the Fourth Amendment and thus was not actionable under § 1983...

Claim of Ineffective Assistance Waives Attorney-Client Privilege

Posted on October 27, 2009
US v. Pinson, -- F.3d --, 2009 WL 3417706 (10th Cir. 10/26/09) - denial of certificate of appealability on § 2255 claims, including claim that Mr. Pinson's Sixth Amendment rights were violated by district court order that his attorney produce an affidavit regarding claims of ineffective assistance of counsel...

Court Can Resentence Defendant Who Had 11(c)(1)(C) Agreement Based on Amended Guidelines

Posted on October 27, 2009
US v. Cobb, -- F.3d --, 2009 WL 3418214 (10th Cir. 10/26/09) - reversal of district court ruling that it lacked authority under the amended crack guidelines to reduce Mr. Cobb's bottom of the guidelines sentence, which was imposed under 11(e)(1)(C). The sentence was "tied to the guidelines at every step...

US v. Evanson, -- F.3d --, 2009

Posted on October 20, 2009
US v. Evanson, -- F.3d --, 2009 WL 3336094 (10th Cir. 10/19/09) - district court acted well within its broad latitude in disqualifying Mr. Evanson's chosen counsel because of a serious potential conflict of interest and unsworn witness problems. Counsel had been involved in creating two letters that Mr...

Williams v. Jones, 2009 WL 3284847

Posted on October 20, 2009
Williams v. Jones, 2009 WL 3284847 (10/14/09) (Published) - Good news. The 10th denies rehearing en banc 7-4 where the panel had held a defendant should get relief that puts him back in the position where he would have been had his counsel not unethically threatened to withdraw if he took the plea offer...

Search and Seizure Outline

Posted on October 14, 2009
The excellent folks at the Federal Defender Office in Portland, Oregon, have updated their Search and Seizure Outline, which is available here.

Crack Amendment Does Not Apply to Supervised Release Violations

Posted on October 14, 2009
United States v. Fontenot, ___ F.3d ___ , No. 08-1363 (10th Cir 2009) In another case of the (non-applicable) retroactive amendment reducing the crack guidelines by two levels, the 10th decides that the amendment does not apply to sentences upon revocation of supervised release...

Officer's Sniff Inside Car Was An Unconstitutional Search

Posted on October 05, 2009
US v. Montes-Ramos, 2009 WL 3138866 (10th Cir. 2009) (unpublished): The Tenth Circuit reversed the district court's denial of the defendant's suppression motion. It was reasonable for the deputy to stop Mr. Ramos in the bootheel area when his temporary license plate was flapping and not legible as required by state law...

Witness Retaliation Conviction Affirmed

Posted on September 23, 2009
United States v. Wardell, ___ F.3d ___ 2009 WL 2998939 (10th Cir 2009) Defendant convicted, along with co-defendants, of retaliation and conspiracy to retaliate against a witness (witness was beaten in a holding cell) who had earlier testified against defendant in tax fraud case...

Warrant Lacked PC, But Officers Searched in Good Faith; Improper Gang Testimony Harmless

Posted on September 22, 2009
US v. Roach, -- F.3d --, 2009 WL 2989182 (10th Cir. 9/21/09) - search warrant affidavit failed to supply probable cause for search because it relied on outdated information regarding Mr. Roach's gang connection and failed to provide a nexus between him and the address searched...

Career Offender Guideline Amendment Not Retroactive

Posted on September 18, 2009
US v. Bronson, No. 09-3152, 2009 WL 2965199 (10th Cir. 9/17/09) (unpublished): Amendment 709 to the United States Sentencing Guidelines, which amended the career offender guidelines, does not apply retroactively and therefore cannot be a basis for relief under 18 U...

Entrapment Defense Fails

Posted on September 18, 2009
US v. Fulton, No. 08-3261, 2009 WL 2952145 (10th Cir. 9/16/09) (unpublished): Mr. Fulton was enticed by a former prison-mate turned CI into participating in drug deals. Mr. Fulton raised an entrapment defense. The court allowed rebuttal evidence that the CI had seen Mr...

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