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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

Stop Based on "Tandem Driving" OK'd

Posted on December 24, 2008
United States v. Rodriguez-Rodriguez, ___ F.3d ___, 2008 WL 5340311 (10th Cir. 2008)Sufficient evidence of tandem driving to give probable cause to stop and detain tandem driver. By two car lengths, Defendant was preceding the truck where drugs were discovered; both driving along a lightly traveled New Mexico road at 4:30 in the morning; both had California plates; and, both were traveling 5 mph below the limit...

Restitution Can Include Lost Work Hours

Posted on December 24, 2008
United States v. Wilfong, ___ F.3d ___, 2008 WL 5340423 (10th Cir. 2008)Restitution for phoning in bomb threat to an Air Force base can include compensation for lost employee work hours due to the evacuation. Defendant owes half a million in restitution.

Real Estate Fraud Conviction, Sentence Confirmed

Posted on December 24, 2008
United States v. Baum, ___ F.3d ___, 2008 WL 5274316 (10th Cir. 2008)Defendant, a real estate agent, was found guilty of wire fraud and money laundering for his scheme: he was an agent for buyers who did not qualify for home loans because of poor credit; Defendant lent money to buyers for down payment; home prices were inflated on the contract; buyers agreed to pay an additional amount for remodels per a contract addendum (not disclosed to mortgage lender) that were never meant to happen and that money went into a fund to pay back Defendant, plus...

Be Sure to Argue Sentencing Issues in a Sentencing Memo; Unargued Claims are Forfeited

Posted on December 24, 2008
United States v. Zubia-Torres, ___ F.3d ___, 2008 WL 5274166 (10th Cir. 2008)1. Defendant?s failure to challenge his prior conviction under Nevada law as not categorically a drug trafficking felony was a forfeiture, not a waiver of the argument. The COA tries to give better direction regarding the difference, and says because Defendant never made the argument he could not have ?affirmatively abandoned? it?waiver is abandonment...

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District Court Should State Reasons for Mid-Range Sentence on Resentencing

Posted on December 19, 2008
US v. Nelson, No. 08-6076, 12/18/08 - Crack reduction case in which defendant was originally sentence at the bottom of the guideline range, but was resentenced in the middle of the amended guideline range, remanded for district court to state on the record its reasons for not imposing new bottom end sentence.

Illegal Alien's Drug, Gun Convictions Upheld

Posted on December 19, 2008
US v. Bustos, no. 07-5157, 12/18/08 - Convictions for possessing with intent to distribute meth, possession of guns and ammo in furtherance of the drug offense, and possession of guns and ammo by illegal alien, all arising from a traffic stop, affirmed...

TX Unauthorized Use of Motor Vehicle Conviction Not an Agg Felony

Posted on December 19, 2008
US v. Perez-Gutierrez, No. 07-2129, 12/18/08 - 8 USC 1326 case in which parties did not dispute below that defendant?s Texas conviction for unauthorized use of a vehicle was an aggravated felony that justified an eight level increase. Defendant had pled, and his agreement contained an appeal waiver...

Stop of Suspected Parole Violator OK, Led to Discovery of Gun

Posted on December 19, 2008
US v. James, No. 07-3296, 12/17/08 - Denial of motion to suppress and ACCA sentence affirmed. Cops had reasonable suspicion that vehicle defendant was driving was used and possibly being driven by parole violator who was a suspect in case in which hot checks had been written to a nursery to pay for shrubbery, so pulling it over was lawful, as was discovery of gun in plain view between driver?s seat and center console...

ATM Thief's Sentence Affirmed

Posted on December 19, 2008
US v. Hahn, No. 2008 WL 5247929, 12/18/08 -Sentence for ATM technician who pled to stealing from ?straps? of cash meant for the ATMs affirmed. There was no clear error in loss calculation or restitution order, ordering sentence to run consecutively to state court sentence for lewd and indecent proposal to children was not an abuse of discretion, nor was imposing sex offender conditions as part of supervised release convictions because the conduct underlying the sex offender convictions occurred after defendant was fired for stealing the cash and is part of his history and characteristics.

Capital Habeas Petitioner's Claims of Improper Victim Impact Evidence, IAC Rejected

Posted on December 18, 2008
Young v. Sirmons, ___ F.3d ___, 2008 WL 5220520 (10th Cir. 2008)br /Death penalty affirmance out of Oklahoma. Plaintiff challenged (1) admission of victim impact evidence: the COA held that the Oklahoma Court of Criminal Appeal?s determination that this evidence was not unduly prejudicial (including testimony that the victims? aunt died of a heart attack after learning of the murders) was not contrary to nor an unreasonable application of Sup...

Conviction, Sentence for Making False Threat Affirmed

Posted on December 18, 2008
United States v. Parker, ___ F.3d ___, 2008 WL 5220512 (10th Cir. 2008)br /Defendant convicted after a jury trial of two counts of making or conveying false claims regarding a threat to blow up a building. (1) No plain error in admission of voice identification testimony by cop who listened to 911 tapes and who had interviewed Defendant, that Defendant had made the 911 threatening calls...

Failure to Stop Is An ACCA Predicate Offense

Posted on December 12, 2008
US v West, 2008 WL 5158599 (Dec. 10, 2008) (published): The Court holds that defendant's prior Utah conviction for failing to stop a vehicle at a police-officer's command is a predicate offense for sentencing pursuant to the Armed Career Criminal Act...

Brady Contentions in Entrapment Case Rejected

Posted on December 12, 2008
US v. Ford, 2008 WL 5173125 (10th Cir. Dec. 11, 2008) (published): Defendant was convicted of illegally selling or possessing a machine gun. At trial, his primary defense was entrapment. The defendant, a firefighter with no criminal history, contended that he sold the firearms to the informant after beiing pressured by the CI...

SORNA Challenges Rejected

Posted on December 09, 2008
US v. Lawrance, -- F.3d --, 2008 WL 5123846 (10th Cir. 12/8/08) - no dice on SORNA challenges. The 10th reaffirms prior holdings that prosecution under SORNA does not violate the Ex Post Facto Clause because it is civil in intent and nonpunitive in purpose...

Tenth Creates Circuit Split with Ninth over Applicability of Booker at 3582(c)(2) Resentencings

Posted on December 09, 2008
U.S. v. Rhodes, 2008 WL 5102247 (12/5/08) (Published) - The 10th holds Booker does not apply to � 3582(c)(2) proceedings. As a result, the guidelines in � 3582(c)(2) proceedings are mandatory and a defendant seeking a lower sentence by virtue of a retroactive guideline amendment may not receive a sentence below the amended guideline range unless the defendant had received a below-guideline-range sentence at the original sentencing...

State Habeas Petitioner's Claims Rejected

Posted on November 25, 2008
Sandoval v. Ulibarri, -- F. 3d --, 2008 WL 4966218 (10th Cir. 11/24/08) - a rejection of various � 2254 claims re: NM convictions of aggravated battery and shooting at a vehicle. Mr. Sandoval did not establish that he was prejudiced by counsel's failure to follow rules re: pretrial disclosure of dr...

Amended Rules of Criminal Procedure Effective Dec. 1

Posted on November 25, 2008
New Rules of Criminal Procedure go into effect Monday, December 1, 2008. Almost all the changes are attempts to implement the Crime Victims Rights Act, 18 U.S.C. � 3771. One important amendment is to Rule 17(c). The new rule provides that any subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order and before entering the order the court must require that the victim get notice to enable the victim to move to quash...

Circuit Snippets

Posted on November 20, 2008
The U.S. District Court in Middle District Pennsylvania concluded that the private-search doctrine did not authorize law enforcement officers to copy a computer's hard drive and scan all of its contents after a private person found evidence of possible crimes in a few files...

Habeas Relief Granted Where Plea Colloquy Showed Def. Did Not Understand "Depraved Mind" Element of Charge

Posted on November 18, 2008
Hicks v. Franklin, -- F.3d --, 2008 WL 4900135 (10th Cir. 11/17/08) - reversal of denial of habeas relief!!! State court's holding that Mr. Hicks voluntarily pled to second degree murder was an unreasonable application of clearly established law. Mr...

Sentencing Enhancement Based on Co-Defendant's Possession of Guns Upheld

Posted on November 14, 2008
U.S. v. Moreira, 2008 WL 4787157 (11/4/08) (unpub'd) - The two-level enhancement for firearm possession in connection with a drug trafficking offense applied where guns were hidden in co-conspirators' homes with drugs, even though there was no evidence the defendant knew about the guns...

SORNA Does Not Apply to Someone Who Only Traveled Interstate Before Effective Date of Statute

Posted on November 14, 2008
U.S. v. Husted, 2008 WL 4792339 (11/5/08) (Published) - A SORNA win for the defense. Under a plain language analysis, SORNA ("Sex Offender Registration and Notification Act") does not apply to someone who only traveled interstate before SORNA's effective date...

Counsel Not Ineffective for Failing to Obtain Victim's Mental Health Records

Posted on November 14, 2008
Wickham v. Friel, No. 08-4023, 11/14/08 - Trial counsel was not ineffective in failing to obtain mental health records of teenage victim of aggravated sexual assault, where obtaining such records under Utah law was quite difficult and required a detailed showing that such records contained information material to the defense, and counsel had no reason at the time of trial to believe that victim?s records included evidence that she had previously lied about being sexually assaulted.

Co-Defendant's Statements Admissible in Conspiracy Case

Posted on November 14, 2008
US v. Merrick, No. 0805007, 11/13/08 - Admission of codefendant?s statements made in course and in furtherance of the conspiracy upheld in this PWID/conspiracy case. The district court impliedly found that sufficient evidence of the conspiracy, and defendant?s participation in it, had been presented by overruling defendant?s objection to the admission of the statements, and then explicitly put those findings on the record the next day...

Habeas Relief Reversed in KS "Partial Verdict" Case

Posted on November 14, 2008
Tomlin v. McKune, No. 07-3286., 11/13/08 - District?s court?s grant of habeas relief to state petitioner reversed. Defendant was charged in Kansas state court with one count of rape and one count of aggravated indecent liberties with a minor. As to the rape count, the jury was instructed on aggravated indecent liberties as a lesser included offense...

Dismissal of Prisoner's 8th Amendment Claim Affirmed

Posted on November 05, 2008
Duffield v. Jackson, ___ F.3d ___, 2008 WL 4780922 (10th Cir. 2008)No interest of justice exception to pro se inmate?s failure to object to (or failure to ask for an extension of time to object to) magistrate?s recommendation dismissing his � 1983 8th Amendment claim of deliberate indifference regarding inadequate medical care...

Filing of Prior Frivolous Asylum Petition Prevents Later Adjustment of Status

Posted on November 05, 2008
Ribas v. Mukasey, ___ F.3d ___, 2008 WL 4781711 (10th Cir. 2008)Immigration judge determination that first asylum petition was frivolous, which was upheld by the board of immigration appeals and not appealed, was a final judgment which barred Plaintiff from adjustment of status when he married a US citizen...

Sentencing Commission News

Posted on November 04, 2008
The Sentencing Commission has posted a number of new items at its website. Some interesting items include:The full text of the Guidelines effective November 1, 2008, are available for downloading here.The Commission's Preliminary Crack Cocaine Retroactivity Data Report is also available...

"Gibberish" Leads to Dismissal of Appeal

Posted on November 04, 2008
Punchard v. Jeffries, 2008 WL 4748530 (10/30/08) (unpub'd) - The 10th dismisses the appeal on the ground that Public Minister Billy Punchard's brief is "gibberish."

PC to Arrest Civil Rights Plaintiff with .02 BAC Existed

Posted on November 04, 2008
Titus v. Ahlm, 2008 WL 4726233 (10/28/08) (unpub'd) - In a civil rights case, the officer had probable cause to arrest the plaintiff, even though he only blew a .02 on the breath alcohol test because in New Mexico DWI can be impairment "to the slightest degree...

Tenth Hints That Sentencing Challenges Must Address Both Procedural, Substantive Prongs

Posted on November 04, 2008
U.S. v. Romero-Resendez, 07-2176& 07-2177 (10/31/08) (unpub'd) - The 10th implies it will not find a defendant's substantial rights have been affected under the plain error reversal standard if the defendant has only challenged the sentence's procedural reasonableness and not its substantive reasonableness.

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