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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

Denial of Crack Amendment Relief Reversed

Posted on November 04, 2008
U.S. v. Price, 08-5048 (10/31/08) (unpub'd) - The 10th overturns the denial of crack amendment relief because the district court applied the wrong drug quantity level to rule the guideline range had not been lowered by the amendment. The court thought the original sentencing court had found a much higher amount than it actually had.

Absent Witness was Unavailable So State Could Use Prelim Testimony Despite Crawford

Posted on November 04, 2008
Malone v. Six, 07-3268 (10/31/08) (unpub'd) - In a habeas case applying de novo review [because the state court did not rule on the issue but instead found any error harmless], the 10th held Crawford's unavailability requirement was met so as to allow the admission of an absent witness's preliminary hearing testimony...

Successive Nature of 2255 Petition Appealable

Posted on November 04, 2008
U.S. v. Harper, 2008 WL 4756393 (10/31/08) (Published) - The district court's denial of a 28 USC § 2255 motion on the grounds that it was successive and had not been previously authorized by the 10th is a final order appealable to the 10th. It is also subject to the § 2253 certificate of appealability requirement...

Applying Plain Error, Conviction for Assault with Serious Bodily Injury Affirmed Despite Possible Jury Confusion

Posted on November 04, 2008
U.S. v. Poole, 2008 WL 4756164 (10/31/08) (Published) - The jury found the defendant guilty of both the charged offense of assault resulting in serious bodily injury and the lesser-included offense of simple assault, even though the jury was instructed not to consider the defendant's guilt of the lesser offense if it could unanimously find the defendant guilty of the greater offense...

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New Sentencing Guideline Amendments effective Nov. 1, 2008:

Posted on October 28, 2008
The only good news in the amendments is a suggestion in USSG § 2L1.2 that a downward departure may be appropriate when a defendant receives a 16-level enhancement but the conviction is not an aggravated felony. Otherwise, under § 2L1.2: an upward departure is suggested when the drug trafficking guideline does not apply but the controlled substance quantity is inconsistent with personal use; drug trafficking now includes "an offer to sell"; "forcible sex offense" includes assented-to conduct when consent is invalid...

10th Circuit decisions

Posted on October 28, 2008
U.S. v. Williams, 2008 WL 4636724 (10/21/08) (unpub'd) & U.S. v. Leroy, 2008 WL 4636725 (10/21/08) (unpub'd) - Two cases with identical language from two different panels with a total of six different judges calling into question the chances of applying Booker to § 3582(c)(2) cases...

Interstate Use of Cell Phone to Arrange Murder-For-Hire is Use of an Interstate Communications Facility

Posted on October 27, 2008
US v. Means, No. 07-7112, 10/24/08 - Defendant and his girlfriend conspired to murder her husband and sought out a hit man. The person defendant solicited for the job ratted him out and the FBI got involved. It recorded meetings and cellphone conversations...

Within-Guidelines Sentence Affirmed in Reentry Case

Posted on October 22, 2008
United States v. Martinez-Barragan, ___ F.3d ___, 2008 WL 4632806 (10th Cir. 2008)Sentence for reentry after aggravated felony is procedurally (PR) and substantively reasonable (SR). PR: COA ducks whether to review under plain error standard because it found there was no error, but signals that the ?unforeseeable error? doctrine that avoids PE review might no longer be viable...

Reversal of SJ in Civil Rights Case

Posted on October 22, 2008
Weigle v. Cox, ___ F.3d ___, 2008 WL 4631920 (10th Cir. 2008)COA reverses summary judgment in favor of cops because there are questions of fact on issue of qualified immunity in § 1983 excessive force claim. Cops' restraint of decedent?one sat on dead guy?s back as he was face down, restrained and prone on the ground, causing a heart attack?was arguably unreasonable and excessive in light of cops? training that such placement of weight on a restrained person can cause a heart attack, and because it lasted longer than necessary.

2254 Petition Dismissed for Failure to Pay Fee

Posted on October 21, 2008
Abram v. Milyard, 2008 WL 4417206 (10/1/08) (unpub'd) - It was okay to dismiss a § 2254 petition for failure to pay the $ 5 filing fee where the petitioner had $ 6.15 in his account at one time. The 10th didn't care that the petitioner might have needed to spend the $6...

Estranged Wife Lacked Authority to Consent to Search of Husband's Motel Room

Posted on October 21, 2008
U.S. v. Arrington, 2008 WL 4561465 (10/14/08) (unpub'd) - A suppression victory with the government's concession. The 10th reverses suppression denial on actual authority to consent grounds. Estranged couple rented hotel room to discuss differences...

Max Fine for Tax Evader Affirmed

Posted on October 20, 2008
US v. Green, No. 08-5031, 10/16/08 - Defendant was convicted of one count of income tax evasion (to the tune of more than $2 million) and one count of making a false tax declaration. Imposition of statutory maximum fine of $250,000 per count, for a total of $500,000, which was well above the recommended guideline range fine, affirmed...

No Crack Reduction for Career Offenders

Posted on October 20, 2008
US v. Olden, No. 08-5060, 10/15/08 - Another crack sentence reduction motion denied, and affirmed, because the defendant was sentenced as a career offender.

Evidentiary Hearing on IAC Claim Denied

Posted on October 20, 2008
PublishedBoyle v. McCune, No. 06-3025, 10/16/08 - State habeas petitioner was not entitled to an evidentiary hearing on his claims of ineffective assistance by both trial and appellate counsel because his claims of deficient performance, even if true, did not establish a reasonable probability that, but for the alleged deficiencies, he would have prevailed at trial.

Circuit Snippets

Posted on October 09, 2008
A Virginia statute that criminalizes falsifying routing data in spam e-mail violates the First Amendment right to engage in anonymous speech, the Virginia Supreme Court held. Jaynes v. Commonwealth, No. 062388 (Va. S.Ct. 9/12/08) on rehearing 657 SE2d 478...

No Crack Amendment Relief for Career Offender

Posted on October 08, 2008
United States v. Sharkey, ___ F.3d ___, 2008 WL 4482893 (10th Cir. 2008)Retroactive amendments to crack guidelines do not apply to career offender sentence in this case because according to the COA the amendment did not have the effect of lowering the guideline range for career offender guidelines and therefore a reduction was not authorized under 18 USC § 3582(c)(2) and the sentencing commission policy statements...

False Statement Convictions for Lawyer, Wife Affirmed; Convictions for Forging Entry Documents Reversed

Posted on October 03, 2008
US v. Phillips, --- F.3d ----, 2008 WL 4416526 (10th Cir. Oct. 1, 2008): partial affirmance and reversal of the defendants' convictions of 8 counts of making a false statement to a federal agency and 8 counts of immigration fraud. The defendants, a lawyer, and his wife (who was also his secretary) appealed the denial of their motions for acquittal or for new trial, raising evidentiary and sufficiency issues...

Extensive Discussion of Plain Error Review of Downward Variance

Posted on October 03, 2008
US v. Mendoza, 2008 WL 4416524 (10th Cir. Oct. 1 2008) (published): The government appealed the sentence given to Mr. Mendoza after the district court granted a variance from the 324-month advisory guideline range for his drug conviction and imposed a 240-month sentence...

Court Addresses Meaning of Fear for Purposes of USSG 2A3.1

Posted on October 03, 2008
US v. Fish, 08-6007, 2008 WL ---- (10th Cir. Oct. 2, 2008) (unpublished): Strangely unpublished, since it seems to address an issue of first impression in this circuit -- the meaning of "fear" under 18 USC 2242. The Tenth affirms 111-month sentence (including 24-month upward variance) for defendant who pled guilty to knowingly transporting a minor in interstate commerce with the intent to engage in unlawful sexual activity, contrary to 18 U...

Five-month Variance Affirmed

Posted on October 03, 2008
US v. Duarte-Hurtado, No. 08-2021, 2008 WL 4417197 (10th Cir. 10/1/08)(unpublished): Clearly this was a hard-fought case at every level, but, rejecting the defendant's arguments that a lower sentence was warranted, the Tenth affirms the five-month variance to 36 months (from 41) for a reentry defendant...

Materials on Sentencing Issues in Reentry Cases Available

Posted on October 02, 2008
Some training materials, a paper called "Less = Success" and an accompanying case list, with information on the reentry guideline, sentencing strategies and helpful cases for defending reentry clients are available at the Association of Federal Defenders website.

Report Documents Increased Federal Prosecution; Arrests High in Border Districts

Posted on September 30, 2008
A press release from the Dept. of Justice, Bureau of Justice Statistics announced the release of a new report on arrests and prosecutions in the criminal justice system. It begins as follows: FEDERAL IMMIGRATION ARRESTS SURPASS DRUG ARRESTSPost-arrest, drug and weapons offenders most likely to be prosecuted and convicted WASHINGTON -- Immigration and drug arrests comprised more than half of the 140,200 federal suspects arrested and booked by the U...

Possession of Child Porn Conviction Affirmed

Posted on September 30, 2008
U.S. v Schene, -- F.3d --, 2008 WL 4379509 (10th Cir. 9/29/08) - There was sufficient evidence that materials transported in interstate commerce were used to download porn images to the hard drive of Schene's computer to support his conviction of knowingly possessing child porn...

Unpublished Decisions

Posted on September 30, 2008
U.S. v. Griffin, 2008 WL 4330388 (9/23/08) (unpub'd) - In this case, the 10th holds that the defendant waived, [not forfeited, which would allow for plain error review] his right to challenge on appeal absent-witness statements at a revocation hearing because when the court asked whether the defense objected to their admission the defense said "no...

Comments Requested on Proposed Changes to Tenth Circuit Rules

Posted on September 23, 2008
Effective January 1, 2009, the Tenth Circuit will amend its local rules. Here is a link to a memo regarding the proposed rules changes, as well as redlined and non-redlined versions of the proposed amendments. The Clerk invites interested parties to submit comments on the proposed changes to the Clerk of Court...

Upcoming Tenth Circuit Oral Arguments

Posted on September 23, 2008
The Tenth Circuit will be holding oral arguments this week in Denver, CO; at the University of Kansas on Oct. 3; and in Las Cruces, NM on October 17. Calendars are available here on the Tenth Circuit's website.

240-Month Sentence, More than Twice the Advisory Range, Affirmed for Mentally Ill Defendant

Posted on September 23, 2008
US v. Pinson, 2008 WL 4238999, No. 07-6013 et al. (Sept. 17, 2008)Mr. Pinson, a 21-year-old "mentally-ill inmate with a propensity for making grandiose threats," was convicted of one count of threatening to harm the US President. Before sentencing, he told the district court that another inmate intended to kill the judge...

A few 10th Circuit cases:

Posted on September 23, 2008
U.S. v. Pruitt, 2008 WL 4218798 (9/16/08) (unpub'd) - On remand from the S. Ct. to reconsider in light of Gall, the unanimous panel rules its original decision that applied a deferential abuse-of-discretion standard to uphold a within-Guidelines sentence was consistent with Gall...

Las Cruces' Use of Crosses Not an Establishment Violation

Posted on September 16, 2008
Weinbaum v. City of Las Cruces, Docket No. 06-2355 (10th Cir. September 12, 2008): Plaintiffs sued the City of Las Cruces, New Mexico, and the Las Cruces Public Schools based on the representation of three crosses in the City's seal, on district maintenance vehicles, in a sculpture, and in a school mural, alleging that the use constituted an improper endorsement of a specific religion, Christianity...

Statute of Limitations Precludes Suit Against Howard Hughes' Heirs

Posted on September 16, 2008
Dummar v. Lummis, 2008 WL 4183338 (9/12/08) (Published) - The statute of limitations precluded Melvin Dummar, the subject of the movie "Melvin and Howard," from suing the Howard Hughes heirs because they conspired to lie that Mr. Hughes never left his hotel for a long period of time that included the time, December, 1967, Mr...

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