Criminal Law

Burglary Conviction at Age 17 Qualified as Career Offender Predicate

Posted on April 11, 2008
US v. Collins, No. 06-6191, 4/11/08 - The third time was something of a charm for the defendant in a drug conspiracy case. He was originally convicted of all nine counts following a jury trial. He was seventeen when he committed a second-degree burglary, which was treated at sentencing as a crime of violence, which made him a career offender, which got him a sentence of 360 months...

Confrontation Clause, Evidentiary Claims Rejected in 2254 Case

Posted on April 10, 2008
Dalton v. Dinwiddie, No. 07-6126 (10th Cir. April 8, 2008) (unpublished): The Tenth denied the certificate of appealability and dismissed the appeal of the petitioner, who is serving life in Oklahoma, in this 2254 case. Mr. Dalton was convicted of murder and sentenced to life following the shooting of a young man in a robbery of the home where the man and his parents lived...

Prisoner's Complaint that his Property was Unlawfully Destroyed Dismissed

Posted on April 10, 2008
Thomas v. NM Corrections, No. 06-2224 (10th Cir. April 9, 2008) (unpublished): Although the Tenth reviews the pro se prisoner's claims liberally, it concludes that he can not prevail in his 42 USC 1983 action based on the facts he alleged and affirm dismissal of the claims...

Grant of New Trial Based on Erroneous Admission of Testimony Affirmed

Posted on April 10, 2008
US v. Grigsby, No. 07-7014 (10th Cir. April 9, 2008) (unpublished): A defense win! The Tenth affirms the district court's granting a new trial to a defendant convicted of sexually abusing his grandneice in Indian Country. The district court was concerned because it had allowed defendant's niece (not the victim) testify that 20 years earlier, the defendant had tried to abuse her...

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Ownership Claim Provides Standing to Contest Forfeiture

Posted on April 09, 2008
U.S. v. $148,840.00 in U.S. Currency, 2008 WL 901783 (4/4/08) (Published) - The claimant established standing to challenge the forfeiture of money found in the trunk of a rental car he was driving, even though he refused, on Fifth Amendment grounds, to disclose how he came to own the money...

OK Death Penalty Conviction Affirmed Despite Divided Jury, Failure to Give Manslaughter Instruction

Posted on April 09, 2008
Gilson v. Sirmons, 2008 WL 863034 (4/2/08) (Published) - A habeas death penalty affirmance by a divided court.Reviewing the issue de novo [because the Oklahoma courts did not apply the correct standard], the 10th holds it was not a violation of due process for the jury to convict the petitioner of child abuse murder, even though the jury was divided as to whether he committed the crime by committing child abuse or by permitting the mother to do so...

An Example of a Preserved Objection to a GL Sentence!

Posted on April 09, 2008
U.S. v. Kinchion, 2008 WL 886039 (4/1/08) (unpub'd) - The 10th reverses a guideline sentence because the district court applied a presumption of reasonableness to the Guidelines. The defendant preserved the error by asserting generally the court was not exercising the full range of its discretion...

Consecutive Sentencing Discretion Affirmed

Posted on April 09, 2008
U.S. v. O'Bryan, 2008 WL 905189 (4/4/08) (unpub'd) - The Tenth affirms that district courts have discretion in deciding whether to impose consecutive or concurrent sentences. However, in deciding to address the concurrent sentencing discretion issue as though it had been preserved, the 10th contrasts the latest plain error sentencing cases with a possibly helpful published case: U...

Split Tenth Affirms Summary Judgment for Defendants in Civil Rights Case

Posted on April 09, 2008
Hernandez v. Conde, 2008 WL 867968 (3/31/08) (unpub'd) - The Tenth affirms granting summary judgment in a civil rights case raising Franks issues. An undercover officer has Travis buy cocaine for the officer from a home across the railroad tracks from where the officer's car is parked...

Eyewitnesses' ID of Defendant Admissible Despite Leading Questions

Posted on April 09, 2008
Corbett v. State of Kansas, 2008 WL 901179 (4/3/08) (unpub'd) - Leading questions of eyewitnesses at a deposition with the defendant present were insufficiently suggestive to give rise to a substantial likelihood of misidentification so as to warrant suppression of the eyewitnesses' deposition identification of the defendant, even though both eyewitnesses had previously identified someone else as the perpetrator.

Plain Error Applied Despite Gov't Failure to Allege Defendant Failed to Preserve Error

Posted on April 09, 2008
U.S. v. Dunham, 07-5011 (4/7/08) (unpub'd) - The 10th can apply the plain error standard, even if the government doesn't point out the defendant's failure to object below. The institutional interests of the judiciary require that application, unlike where a party can waive some time limits...

Toxicology Report Not Testimonial

Posted on April 09, 2008
U.S. v. Brown, 2008 WL 867971 (3/31/08) (unpub'd) - With a short-paragraph discussion, the 10th declares a hospital toxicology report on the defendant's cocaine ingestion is not testimonial for Crawford purposes.

No Insurance Co. Duty to Defend Insured Who Pleads Guilty in Related Criminal Case

Posted on April 09, 2008
Pompa v. American Family Mutual Insurance Company, 2008 WL 837050 (3/31/08) (Published) - An insurance company had no duty to defend the insured in a wrongful-death action, in light of the criminal conviction exclusion of the insurance policy. That exclusion applied to the insured's guilty plea to negligent homicide...

10th Foregoes Categorical Analysis of "Enumerated" Crime in Reentry Case

Posted on April 04, 2008
US v. Machado-Delgado, No. 06-2303, 4/3/08 - 16-level enhancement for reentry defendant who had previously been deported following his Arizona conviction for aggravated assault affirmed because prior 10th precedents establish that since aggravated assault is an enumerated crime of violence under USSG Sec...

Admitting Certificate of Nonexistence of Record Not Plain Error in Reentry Case

Posted on April 04, 2008
US v. Provencio-Sandoval, No. 07-2119, 4/3/08 - No plain error in admission of Certificate of Nonexistence of Record (CNR) in defendant's trial for illegal reentry, over objection raised for the first time on appeal that admission violated the defendant's right of confrontation, because the alleged error was not "plain", which means "clear under current law"; neither SCOTUS nor the 10th have explicitly ruled on this issue, and every other circuit that has considered it has rejected it...

Upward Variance Presumed Reasonable

Posted on April 04, 2008
US v. Limon, No. 07-1297, 4/3/08 - Upward variance for defendant who went on a bank robbing spree in which he used firearms affirmed. Lots of bad sentencing facts (multiple priors, increasingly violent crimes, substance abuse and gambling addition issues, scared people, etc...

Loss Calculation in Odometer-Rollback Case Reasonable

Posted on April 04, 2008
US v. Sutton, No. 07-1223, 2008 WL 879429 (April 3, 2008): Defendant, a Colorado car dealer, pled guilty to one count of mail fraud and one count of odometer tampering related to a scheme in which he rolled back the odometers of 76 high mileage used cars so that they looked like they had lower mileage, then manipulated the titles so that new Arizona titles were issued showing the modified mileages as being real...

Remand to District Court to Explore Government's Use of Possibly Perjured Testimony in Suppression Case

Posted on April 01, 2008
U.S. v. De La Campa Rangel, 2008 WL 787114 (3/26/08) (Published) - DEA agent Jay Perry's DEA-6 report and trial testimony contradicted his criminal complaint and preliminary hearing testimony as to how he got information that the defendant took a small black bag (subsequently found to contain cocaine) from a larger bag while sitting on the bus...

Interesting Cases from Other Circuits

Posted on April 01, 2008
Relying on Gall and Kimbrough, the Fifth Circuit held that the district court could impose an above-guidelines sentence on a reentry defendant based on its conclusion that USSG 2L1.2 was under-inclusive in what it counted as prior drug trafficking offenses...

Not Error to Preclude Evidence of Intoxication in Reentry Case

Posted on March 25, 2008
US v. Hernandez-Hernandez, No. 07-2028, 3/21/08 )Published) - Previously deported defendant became very drunk in a Palomas, Mexico, bar, and then was found in the US and had no memory of how he got there. District court did not allow him to present evidence of his intoxication in his 1326 prosecution for being found in the US after deportation...

Habeas Petition Reinstated

Posted on March 25, 2008
Yellowbear v. Wyoming Attorney General, 2008 WL 748367 (3/21/08) (published) - The district court was wrong to hold the habeas 2254 petitioner had failed to exhaust his state remedies. When the petitioner filed his petition, he had not yet been convicted, but he had already argued before the state's highest court, [and obtained a decision from that court], that the state had no jurisdiction over his alleged offense, on the grounds that the offense occurred in Indian Country, But rather than decide the jurisdictional question, the 10th remanded to the district court to ask the petitioner if it would be okay to treat the petition, which pre-conviction was a 2241 petition, as a 2254 petition, because now the petitioner had been convicted...

Example of Below-GL Reentry Sentence

Posted on March 20, 2008
US v. Gonzalez-Carballo, No. 07-2155 (D.N.M. No. 07-489): Although this appeal was filed as an Anders brief and the Tenth Circuit agreed, it is notable because the aggravated reentry defendant received a below-guidelines sentence of 24 months. The original guidelines sentencing range was criminal history category III, offense level 21...

Unpublished but Interesting Decisions

Posted on March 19, 2008
U.S. v. Delgado, 2008 WL 647512 (3/10/08) (unpub'd) - The defendant fails the fourth prong of the plain error test where the district court post-Booker, stated: "the 10th has told sentencing judges they are normally to abide by the guideline ranges except for extraordinary circumstances" and defense counsel failed to object to this obvious misconception of Booker...

Sec. 1983 Case Remanded for Findings on Timeliness

Posted on March 19, 2008
Mondragon v. Thompson, 2008 WL 624434 (3/10/08) (pub'd) - The plaintiff's right to sue based on his detention following the issuance of a forged warrant accrued at the time he was released or due process proceedings began, whichever came first. The Fourth Amendment claim was filed too late if it accrued before the plaintiff's release...

Summary Judgment in Favor of Bullying City Official Correct in 1983 Case

Posted on March 19, 2008
Williams v. Berney, --- F.3d ----, 2008 WL 708436 (10th Cir. March 18, 2008).Summary judgment was proper on substantive due process claim under § 1983 against city licensing official who bullied and assaulted business owners who did not have proper license...

BIA Correctly Construed State Conviction As Meeting Federal Child Abuse Definition

Posted on March 19, 2008
Ochieng v. Mukasey, ___F.2d. ___ (10th Cir. 2008, Feb. 6, 2008)The 10th ordered published, nunc pro tunc, this decision from earlier this year. The 10th denies Petitioner?s request for review of the BIA dismissal of his appeal from an order of removal...

Tipster Sufficiently Reliable; Denial of Suppression Motion Affirmed

Posted on March 19, 2008
U.S. v. Sanchez, -- F.3d --, 2008 WL 697398 (10th Cir. 3/17/08) - the 10th upholds denial of suppression motion. Police were flagged down by an unknown woman who reported she saw a man hitting a woman in the face at a nearby intersection. Police went there, found neighbors pointing at two cars pulling out quickly from an area driveway, and stopped both vehicles...

Former CEO's Insider Trading Convictions Reversed; Expert Improperly Excluded

Posted on March 19, 2008
U.S. v. Nacchio, -- F.3d --, 2008 WL 697382 (10th Cir. 3/17/08) - reversal of former Qwest CEO's convictions on 19 counts of insider trading because testimony of defense expert was wrongly excluded. The defense adequately disclosed the expert's opinions and qualifications under Rule 16; the district court was wrong in excluding testimony on the basis that the defense improperly failed to disclose expert methodology and the error was not harmless...

Info on Internet Legal Research Sites

Posted on March 18, 2008
Law.com has this article on resources for free legal research on the internet. Entitled "Online Legal Research Revolution," by Robert Ambrogi, it discusses trends and developments in increasing free and public access to legal materials, with links to some of the excellent public-domain resources available on the net...

New Edition of "Introduction to Federal Sentencing" Available

Posted on March 18, 2008
"An Introduction to Federal Sentencing: Tenth Edition" is now available from the Western District of Texas. This new edition of the extremely useful introduction to the intricacies of federal sentencing procedure covers Booker and the advisory guidelines, nuts and bolts for applying the guidelines, plea bargaining issues, and "traps...

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