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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

Almost Mandatory is Advisory?

Posted on July 16, 2008
United States v. Covington, 2008 WL 2736753 (10th Cir. 2008)This case?s lesson: if the district court says it understands that the guidelines are no longer mandatory, but also says but they are practically mandatory and it really has no choice but to impose the GL sentence, and does, the court has exercised its discretion...

Qualified Immunity Should Be Granted Cop who Administered Sobriety Test

Posted on July 16, 2008
Amundsen v. Jones, ___F.3d ___, 2008 WL 2737273 (10th Cir. 2008)Reversal of denial of qualified immunity for cop in § 1983 case. Administration of roadside sobriety and toxicology test did not violate Plaintiff?s constitutional rights (cop stopped Plaintiff for weaving)...

Conviction for Attempting to Vacate ACCA Sentence Based on False Expungement of Prior Affirmed

Posted on July 15, 2008
U.S. v. Smith, 2008 WL 2699388 (7/11/08) (Published) - The defendant was convicted of 18 U.S.C. § 1623(a) for attaching a false document to a federal court motion. He attached a bogus state court order expunging a conviction to a 2255 motion and asserted that his sentence pursuant to the Armed Career Criminal Act should be vacated due to the alleged expungement...

Defendant Failed to Show "Substantial Impairment" Rendered his Statements Involuntary

Posted on July 15, 2008
U.S. v. Burson, 2008 WL 2698214 (7/11/08) (Published) - Once an officer credibly testifies that the defendant making a statement was sufficiently in touch with reality so that he knew his rights and the consequences of abandoning them, the defendant has the burden to show his condition rose to the level of "substantial impairment" by drugs, alcohol, and/or exhaustion, etc...

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California Battery Conviction Not 2L1.2 Crime of Violence

Posted on July 15, 2008
U.S. v. Herrera, 2008 WL 2698644 (7/11/08) (unpub'd) - Although unpublished, this case deserves top billing because it's quite an achievement---a plain error reversal of a "crime of violence" § 2L1.2 16-level enhancement on rather esoteric grounds. The defendant was represented by CJA counsel Angela Arrellanes and Scott Davidson...

Unpublished Decisions

Posted on July 15, 2008
U.S. v. Jacquez, 2008 WL 2694060 (7/9/08) (unpub'd) - The 10th finds the officer reasonably stopped the defendant because the license plate of the car he was driving was registered to a Tommy Largo and there was an outstanding arrest warrant for a "Tommy Largo...

Guatamalan's Pleas for Immigration Mercy Rebuffed

Posted on July 15, 2008
Vicente-Elias v. Mukasey, 2008 WL 2699399 (7/11/08) (Published) - The 10th defers to the immigration judge's determination that the economic hardships suffered by the indigenous people of Guatemala due to the refusal of Spanish-speaking Guatemalans to hire people who speak only indigenous languages did not amount to a threat to the alien's life or freedom...

Gov't Didn't Improperly Comment on Defendants' Failure to Testify

Posted on July 15, 2008
U.S. v. Ivory, -- F.3d --, 2008 WL 2718813 (10th Cir. 7/14/08) - Court rejects defendants' claim of improper comment on their failure to testify in drug and conspiracy to murder a witness case. In arguing in closing that defendants used the work "money" as code for murder, prosecutor told jury that the only persons who used that code were witnesses the government could not call...

Interpreter Breaks Silence on Court Proceedings

Posted on July 14, 2008
A New York Times article discusses how a court interpreter, Erik Camayd-Freixas, has written an essay about how the illegal immigrant defendants -- many of them Guatamalen -- did not understand what was going on when they were prosecuted for document fraud following the raids at the Agriprocessors packing plants in Iowa...

List of Federal Crimes Continues to Expand

Posted on July 14, 2008
The Heritage Foundation has issued a new report discussing the explosive increase in the number of federal crimes.It says in part:"The growth of federal crimes continues unabated. The increase of 452 over the eight-year period between 2000 and 2007 averages 56...

Suppressed Drugs Can Be Included in Guideline Calculations

Posted on July 10, 2008
U.S. v. Maytubby, -- F.3d --, 2008 WL 2635568 (10th Cir. 7/7/08) - the Tenth reaffirms precedent indicating that quantity of drugs suppressed because they were discovered during an unconstitutional search may be included in GL calculations.

No Search Warrant Required Where Wife's Probation Agreement Allowed Search on Reasonable Suspicion; Evidentiary Objections Rejected

Posted on July 10, 2008
US v. Blake, No. 07-8050, 7/3/08 - Denial of motion to suppress affirmed. Defendant's wife was on probation in a state case. Her probation agreement included a consent to search provision based on reasonable suspicion. She tested dirty for meth, so the probation officer called the cops, who tell her they have information that probationer's husband, the defendant, has been selling meth...

No Suppression Despite Recklessly Made Factual Mistakes in Affidavit

Posted on July 10, 2008
US v. Garcia-Zambrano, No. 07-1261, 7/3/08 - Suppression of evidence for Delaware v. Franks violations reversed. While district court did not clearly err in finding factual inaccuracies in search warrant affidavit and determining that they were recklessly made, the 10th's de novo review of the legal sufficiency of what remained after the false statements were excised led it to conclude that the affidavit established probable cause.

Argument that Evidence was Improperly Admitted Rejected; Life Sentence Remanded for Resentencing

Posted on June 25, 2008
United States v. Cerno, ___F.3d___, 2008 WL 2502526 (10th Cir. 2008)Efforts to reverse the trial court?s admission of inflammatory and irrelevant information in a child sex abuse prosecution were rejected by the majority. McConnell dissented. However, the COA did grant resentencing for the defendant...

Sentence Affirmed in Mann Act Case

Posted on June 25, 2008
United States v. Scott, ___F.3d___, 2008 WL 2502524 (10th Cir. 2008)The district court?s calling and examining a witness in support of the higher sentence did not violate Due Process and show judicial partiality, and did not entail the judge acting as an advocate...

DWI Not a Predicate for Career Offender Definition

Posted on June 25, 2008
United States v. Tiger, ___F.3d___, 2008 WL 2498052 (10th Cir. 2008)In a Begay remand, the COA extends Begay from the determination that a DWI does not satisfy the statutory ACCA ?crime of violence? definition to a determination that a DWI does not satisfying the USSG Sec...

Tenth Affirms that Cooperation is the Only Basis for Sentences Below Mandatory Minimum

Posted on June 25, 2008
United States v. A.B., ___F.3d___, 2008 WL 2498026 (10th Cir. 2008)Government moved for a sentence below the mandatory minimums for drugs and a gun in light of Defendant?s cooperation. COA ruled that, in keeping with its precedent in Campbell, which remains unaffected by Booker, a sentencing court can sentence below the mandatory minimum only for cooperation, and cannot consider other mitigating facts that might support either a downward departure or presumably a variance, to further decrease a sentence below that statutory minimum sentence...

Defendant's Sentence Improperly Enhanced Based on Prior Military Conviction

Posted on June 24, 2008
U.S. v. Brown, -- F.3d --, 2008 WL 2485933 (10th Cir. 6/23/08) - sentence for possession of child porn was erroneously enhanced under 18 U.S.C. § 2252A(b)(2) based on Mr. Brown's previous conviction under Article 134 of the Uniform Code of Military Justice...

Wonderful Resource for Pro-Defendant Case Law

Posted on June 24, 2008
Are your eyes blurring from looking at the endless cases where the defendant lost? Wouldn't you like to read something where the defendant won? Here to the rescue is Federal Convictions Reversed, a 37-page resource edited by Alex Bunin, Federal Defender for the Northern District of New York...

Third Time A Small Charm for Defendant

Posted on June 24, 2008
United States v. Wittig, ___F.3d___, 2008 WL_____, No. 07-3051 (10th Cir. June 17, 2008)Defendant?s third sentencing appeal (won the previous 2, and sentence went from 51 to 60 to the current 24 months imprisonment). The 24-month sentence was a variance from 0 to 6 months in a fraud case, but Court says it was procedurally and substantively reasonable under 18 USC 3553...

Unconstitutional Search of Trailer Does Not Taint Search of Truck's Cab; Dog Provided PC

Posted on June 24, 2008
United States v. Forbes, ___F.3d___, 2008 WL_____, No. 07-2191 (10th Cir. June 17, 2008)Court of Appeals holds that the independent source doctrine applies to a search of the tractor portion of a tractor/trailer rig, when the trailer portion was unfruitfully searched first, presumably in violation of the Fourth Amendment...

Notice Requirement of FRCP 32(h) Doesn't Extend to Variances

Posted on June 12, 2008
Irizzary v. US, No. 06-7517 (S.Ct. 6/12/08): Federal Rule of Criminal Procedure 32(h), requiring the sentencing court to give notice of a potential upward departure on a ground not specified in a PSR or pre-hearing submissions, does not apply to variances from a recommended guideline range...

Wire Fraud Convictions Reversed, But Related Fraud, Laundering Convictions Upheld

Posted on June 11, 2008
U.S. v. Redcorn, -- F.3d --, 2008 WL 2332005 (10th Cir. 6/9/08) - reversal of wire fraud convictions of defendants who were also found guilty of embezzlement from a health care benefit program and money laundering. There was insufficient evidence to show that the defendants' transfers of funds to out-of-state investments accounts were part of the plot to defraud...

District Court Could Properly Refuse Attempted Guilty Plea to Two of Four Charges

Posted on June 11, 2008
U.S. v. Martin, -- F.3d --, 2008 WL 2332049 (10th Cir. 6/9/08) - Mr. Martin was convicted of two assault counts and two rape counts. The district court's refusal of Mr. Martin's attempted plea to the two counts of assault is upheld. While the Court expresses doubt that the district court properly relied on the need to avoid confusing the jury and complicating the evidentiary issues, it affirms based on failure to establish a factual basis for the plea...

Using a Gun as a Club is "Brandishing" Under 18 USC 924(c)

Posted on June 10, 2008
U.S. v. Bowen, 2008 WL 2232261 (6/2/08) (Published) - Using a firearm as a club constitutes "brandishing" a firearm under 18 U.S.C. § 924(c)(1)(A). First, the 10th made clear the question whether "brandishing" occurred is a sentencing determination to be made by the district court, not a matter for the jury [this is okay under Apprendi, etc...

Suppression Motion Properly Denied for Defendant Who Asked Cops to Search Home for Exculpatory Evidence

Posted on June 06, 2008
US v Pikyavit, No. 07-4113, 2008 WL 2265154 (Tenth Cir. June 4, 2008) (published): This defendant, in attempting to get out of one jam, got himself into a worse one. Mr. Pikyavit was arrested and jailed, along with four other men, after there was a fight outside his home...

Refusal to Allow Evidence of Defendant's Good Character Results in Reversal

Posted on June 04, 2008
United States v.Yarbrough, ___ F.3d ___, 2008 WL 2246969 (10th Cir. 2008)In a fairly surprising defense win, the Court reverses Defendant?s conviction after trial on obstruction of justice-related charges, because the trial court refused to admit Defendant?s evidence of his good character...

Texas Assault of Public Servant Not a Crime of Violence

Posted on June 04, 2008
United States v. Zuniga-Soto, ___F.3d ___, No. 06-2364 (10th Cir. 2008)A very nice defense win in an illegal reentry case. Using the Taylor categorical approach, the Court determines that Defendant?s prior conviction for assault of a public servant under Texas law was not a crime of violence...

Gov't Concedes Plain Error in Applying 4B1.2 COV Definition in Reentry Context

Posted on June 03, 2008
Arreguin-Aguilar v US, 2008 WL 460975 (5/27/08) - A government concession of reversible plain error in the § 2L1.2 context. The S.Ct. vacates and remands based on the government's concession that the imposition of a 16-level enhancement for possession of a concealed weapon as a crime of violence under § 2L1...

A few instructive, unpublished 10th Circuit cases

Posted on June 03, 2008
U.S. v. Matias-Medina, 2008 WL 2097418 (5/20/08) (unpub'd) - The 10th remands for reconsideration of whether a Colorado 3rd degree assault was a crime of violence under § 2L1.2. The 10th could not tell if documents acceptable under Shepard were consulted as to whether the defendant was found guilty of the requisite elements, where the PSR only quoted from a "PSR" (?) from a prior deportation proceeding...

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