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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

Tax Evasion, Fraud Charges Affirmed

Posted on March 14, 2008
US v. Thompson, 2008 WL 650009 (10th Cir. Mar. 12, 2008): The Tenth affirms the defendants' convictions on various conspiracy, tax fraud, and tax evasion charges. The opinion is long and detailed, so this is very summary and written late in the day...

Assault by "Drugging" Not a Crime of Violence

Posted on March 11, 2008
U.S. v. Rodriguez-Enriquez, -- F.3d --, 2008 WL 624433 (10th Cir. 3/10/08) - The Tenth reversed the imposition of the 16-level enhancement under § 2L1.2 for having a prior crime of violence, holding that a prior Colorado conviction of assault two (drugging a victim) was not for a crime of violence...

Body Armor Enhancement OK'd

Posted on March 11, 2008
U.S. v. Chambers, 2008 WL 622807 (3/5/08) (unpub'd) - It was okay to impose an enhancement for using body armor during the commission of a drug trafficking offense under § 3B1.5(2)(B), even if the defendant was not using the armor in connection with the offense...

Judicial Estoppel Argument Suggested by COA

Posted on March 11, 2008
U.S. v. Abo-Seba, 2008 WL 565443 (3/3/08) (unpub'd) - The 10th suggests an approach that might be helpful in some cases. It noted the defendant could have argued the government was judicially estopped from arguing the defendant's testimony did not raise self-defense because at sentencing the government argued the defendant should get an obstruction of justice enhancement, on the grounds that if he had been believed the jury would have acquitted him based on self-defense...

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Detention of Neighbor Justified When Officers Searched Home

Posted on March 11, 2008
Chidester v. Utah County, No. 06-4255 (3/6/08) (unpub'd) - In this civil rights suit, the 10th found the officer was justified in detaining a resident of a home next door to the one the SWAT team invaded to execute a search warrant, when the neighbor stepped out onto his front lawn...

Appeal Waiver Inapplicable Where Plea Agreement Not Formally Accepted

Posted on March 11, 2008
U.S. v. Nichols, 2008 WL 565438 (3/3/08) (unpub'd) - The 10th finds an interesting way to avoid an appeal waiver. The waiver did not apply because neither the magistrate judge nor the district court formally accepted the plea agreement. But the 10th rejects the defendant's sentencing argument...

SCOTUS Justices Air Views on Writing

Posted on March 11, 2008
Law.com has a couple of interesting articles about the United States Supreme Court Justices and their views on brief-writing to check out. The first is "In Series of Videos, Supreme Court Justices Make Their Case." The other article is "In the Opinion of Justice Scalia...

Wiretap Affidavit Requirements Discussed

Posted on March 06, 2008
US v. Gurrola-Rodriguez, No. 06-4192 (10th Cir. 3/6/08) (unpublished): The Tenth Circuit upholds the district court's denial of the defendant's motion to suppress wiretap evidence. The defendant had argued that the government failed to provide a sufficient statement regarding other investigative procedures as required by 18 USC 2518(1)(c)...

Interesting Cases from Other Circuits

Posted on March 05, 2008
Danger to Foreign Community: A district court may consider a defendant's danger to a foreign community when determining whether it can deny pretrial release under the Bail Reform Act, the 9th Circuit held. Defendant was charged with, inter alia, conspiring to provide and providing support to terrorists based on the defendant's sending money and supplies to his brother in Malaysia, an acknowledged member of a terrorist group...

Tenth Finds Reasonable Suspicion to Stop Truck, Reversing District Court's Grant of Motion

Posted on March 05, 2008
U.S. v. Lopez, --- F.3d ----, 2008 WL 570802 (10th Cir. March 04, 2008) The 10th reverses the district court suppression of drugs found after police stopped Defendant?s truck. Even though the stop of the truck for a violation of a traffic law was not justified, there was reasonable suspicion to stop it based upon the officer?s observations of activity involving the Defendant and others before Defendant drove onto the freeway (the cop had radioed others to find a traffic infraction for which to stop Defendant?s truck)...

By Waiting to Object after Seizure, Defendant Waived Attorney-Client, Work-Product Privilege

Posted on March 05, 2008
U.S. v. Ary, --- F.3d ----, 2008 WL 565437 (10th Cir. March 04, 2008) The attorney-client and work-product privileges can be waived in the context of involuntary disclosure or disclosure pursuant to a subpoena or warrant. Waiver is analyzed by looking at how specifically the material is identified; how quickly the defendant informs the government that it seized protected material; and how quickly the defendant seeks judicial action to enforce the protection...

Below-Guideline Sentence Upheld Pursuant to Gall, Kimbrough

Posted on March 05, 2008
U.S. v. Smart, --- F.3d ----, 2008 WL 570804 (10th Cir. March 04, 2008) In the 10th?s first big post-Gall and Kimbrough decision, over Judge Hartz?s dissent, the panel (Judge Lucero writing the opinion) upholds the district court's variance of 48 months below the advisory guidelines, resulting in a sentence of 120 months in a child porn case...

Improper Placement of Temporary Tag Under KS Law Supported Traffic Stop

Posted on March 05, 2008
U.S. v. Martinez, -- F.3d --, 2008 WL 554812 (10th Cir. 3/3/08) - The Tenth Circuit affirms the district court's denial of the defendant's motion to suppress based on a traffic stop involving an out-of-state temporary registration permit that was not displayed on the rear of the car, as required by Kansas law, though lawfully displayed under the issuing state's law...

Remand for Clarification in Crack Case

Posted on March 05, 2008
U.S. v. Trotter, -- F.3d --, 2008 WL 555699 (10th Cir. 3/3/08) - after granting the cert petition, vacation and remand by the Supreme Court in the wake of Kimbrough, the Tenth Circuit remands this case to the district court for clarification of why it rejected defendant's request for a variance based on the crack/powder disparity...

Counterfeiting Enhancement Reversed

Posted on March 05, 2008
U.S. v. Tatum, -- F.3d --, 2008 WL 554818 (10th Cir. 3/3/08) - The district court erred in imposing a six-level enhancement under § 2B1.1(b)(10) because defendant's counterfeiting conduct did not involve use or possession of equipment designed or primarily used for making, trafficking, or producing what falls within the statutory definition of access devices, i...

Life-Threatening Bodily Injury Enhancement Affirmed

Posted on March 05, 2008
U.S. v. Tindall, -- F.3d --, 2008 WL 554821 (10th Cir. 3/3/08) - District court did not err in imposing seven-level enhancement for permanent or life-threatening bodily injury in assault resulting in serious bodily injury case in which the doctor opined that the victims'head laceration posed a substantial risk of death due to blood loss...

Attempted Enticement of Child Upheld

Posted on March 04, 2008
U.S. v. Butters, 07-3172 (2/29/08) (unpub'd) - The defendant could be convicted of attempted enticement of a minor via the computer even though the person he was enticing was an adult agent. The involvement of a real minor is irrelevant. It was not irrational in violation of due process or cruel and unusual punishment to impose the same ten-year mandatory minimum sentence on the defendant as is imposed on people who entice real minors...

Tenth Reverses Earlier Decision on Late Filing of Notice of Appeal; Affirms Lawfulness of Truck Search

Posted on March 04, 2008
U.S. v. Mitchell, 2008 WL 542130 (2/29/08) (Published) - After getting a remand from the Supreme Court, the defendant wins the jurisdictional battle, but loses the suppression war. The 10th Circuit follows the recent holding in U.S. v. Garduno, 506 F...

AEDPA Time Limits Roll On Despite Counsel's Bad Advice

Posted on March 04, 2008
U.S. v. Azubuike, 2008 WL 510527 (2/26/08) (unpub'd) - The Tenth addresses the AEDPA's time limitations and equitable tolling rules. It was not a legitimate excuse for a late 2255 filing that the defendant did not learn that his attorney misadvised him about the law until an inmate informed him of that fact...

Cancellation of Removal Unavailable for Alien with Only 8 Years of U.S. Residence

Posted on March 04, 2008
Pohan v. Mukasey, 2008 WL 506284 (2/25/08) (unpub'd) - The alien cannot obtain cancellation of removal on "exceptional and extremely unusual hardship" grounds because he had not been present in the U.S. for 10 years before he was served with a notice to appear [he had been here 8 years]...

Plea Colloquy Error Did Not Negate Appeal Waiver

Posted on February 29, 2008
US v. Ibarra-Coronel, No. 06-2183, 2008 WL 525381 (10th Cir. Feb. 28, 2008):Defendant pled guilty pursuant to a Rule 11 agreement to conspiracy to distribute more than 1K of heroin. The plea agreement included an appeal waiver. At the plea hearing, the magistrate mistakenly stated that the maximum penalty was 120 months, when actually that is the statutory minimum sentence...

Multiple Sentencing Hearings Not Unreasonable

Posted on February 28, 2008
US v. Collins, No. 06-5221, 2/27/08 (unpublished) - District court did not abuse its discretion in conducting a series of sentencing hearings in an attempt to properly determine the correct amount of substance attributable to the defendant in this drug conspiracy case...

Colorado Harassment Convictions Not Categorically Crimes of Violence

Posted on February 28, 2008
US v. Maldonado-Lopez, No. 07-2195, 2/27/08 (published): The Tenth Circuit reverses for resentencing in a reentry case in which the defendant had three prior misdemeanor convictions for harassment under Colorado law. Defendant objected to the three convictions being considered misdemeanor crimes of violence and his offense level under USSG 2L1...

Abandon Hope, All Ye Who Enter Here: Pew Report Documents Prison Population Explosion

Posted on February 28, 2008
Or so Dante described the words at the portals to Hell in The Inferno. The phrase could describe the new American reality. A new Pew Report says that, for the first time, more than one in every 100 American adults is in jail or prison. The report tracks the surge in inmate population...

Attorney General Must Be Notified of Constitutional Challenge to Federal Statute in Civil Case

Posted on February 27, 2008
Oklahoma ex rel Edmondson v. Pope, ___F.3d___, 2008 WL 495982 (10th Cir. Feb. 26, 2008) 10th remands case to the district court with instructions that it notify the Attorney General of the United States of a constitutional challenge to a federal statute (the Telephone Consumer Protection Act) raised by a litigant...

"Fugitive Disentitlement Doctrine" Applied to Immigration Appeal

Posted on February 27, 2008
Martin v. Mukasey, ___F.3d___, 2008 WL 501113 (10th Cir. Feb. 26, 2008) Appellate review of a final order of removal is barred by the ?fugitive disentitlement doctrine.?After the Bureau of Immigration Appeals affirmed the immigration judge?s order of removal, petitioner failed to appear in front of the department of homeland security for removal pursuant to an order, and ?absconded...

Death Penalty Upheld in Oklahoma Double Murder Case

Posted on February 26, 2008
U.S. v. Fields, -- F.3d --, 2008 WL 483281 (10th Cir. 2/25/08) - the federal government properly exercised concurrent territorial jurisdiction in this death penalty double murder case on national forest land. Prospective juror who said he could only support the death penalty in extreme cases was substantially impaired in his ability to consider the death penalty and was properly excused for cause...

Unpublished but Interesting Decisions

Posted on February 26, 2008
U.S. v. Kolthoff, 2008 WL 467001 (2/20/08) (unpub'd) - The d.ct.'s finding that the drug dog "alerted" to drugs in the car was not clearly erroneous where the video showed the dog "heavily sniffed the trunk area twice and then looked to the handler." The handler explained that when the dog looks back he expects the handler to throw him a toy or "something...

Civil Rights Claim of Unconstitutional Jail Conditions Against County Sheriff Reinstated

Posted on February 22, 2008
Tafoya v. Huerfano Co. Sheriff John Salazar, No. 06-1191 (10th Cir. 2/21/08) (published):Ms. Tafoya was sexually assaulted by a detention center guard while being detained in the jail. This assault occurred three years after the Tenth Circuit had held, in another case involving assaults on female detainees by male detention officers, that the assaults were the result of unconstitutional jail conditions and that Sheriff Salazar was deliberately indifferent to those conditions...

Plaintiffs Who Interfered with Son's Arrest Were Reasonably Seized

Posted on February 22, 2008
Bradford v. Wiggins, No. 06-4287 (10th Cir. 2/20/08):Defendant deputies were entitled to qualified immunity in civil rights suit arising out of the defendants' alleged seizure of the plaintiffs when they interfered with the arrest of their son. The majority assumed without deciding that the Bradfords were seized, but that it was reasonable and did not violate the Fourth Amendment...

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