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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

Gov't Did not Breach "Oral" Plea Agreement

Posted on February 22, 2008
US v. Tremble, No. 07-3130 (10th Cir. 2/20/08) (unpublished):Tenth Circuit affirms Mr. Tremble's conviction and sentence for felon in possession. He was sentenced on Oct. 31, 2003, in Douglas County court to 40 months based on the same incident. He was also going to get sentenced in Shawnee County...

Wiretap, Slang Evidence Admissible in Drug Case

Posted on February 22, 2008
U.S. v. Verdin-Garcia, --- F.3d ----, 2008 WL 435495 (10th Cir. Feb. 19, 2008)Defendants convicted of marijuana and methamphetamine trafficking conspiracies and related counts. - The DEA investigation relied heavily on gathering information on the structure and operations of the conspiracy from wiretaps (obtained with warrants)...

Consent to Search Unconstitutionally Coercive When Obtained by Deputy Who Was Also Lawyer

Posted on February 15, 2008
Eidson v. Owens, 2008 WL 376770 (10th Cir. 2/13/08)After marijuana charges brought against Mr. and Mrs. Eidson in state court were dismissed after their suppression motion was granted, they brought a civil rights action against Deputy Sheriff Owens, who participated in the search and who was their former attorney...

Improper Guidelines Calculation Leads to Too Low of a Sentence, Remand

Posted on February 15, 2008
United States v. Todd, No. 06-6334 (10th Cir. Feb. 12, 2008) District court guidelines sentence based on the 37 grams of meth Defendant was arrested with, rather on the 680 grams he admitted to having dealt in the previous year (and trial evidence tended to confirm multiple sales by Defendant) was clearly erroneous and not harmless, in spite of Gall...

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Mandamus Appropriate Method for Obtaining Audiotape of Sentencing, not 2255

Posted on February 12, 2008
U.S. v. Mondragon-Avilez, 2008 WL 313199 (2/5/08 (unpub'd) - The defendant's collateral relief waiver did not preclude a request for an audiotape of his sentencing hearing that he claims was mistranslated. But he had to seek the tapes by mandamus, not by 2255.

One Bad Brake Light Supports Stop

Posted on February 12, 2008
U.S. v. Brewer, 2008 WL 313438 (2/5/08) (unpub'd) - Reading the Utah statutes in conjunction with the federal statutes, the 10th holds the officer had reasonable suspicion to make a traffic stop of the defendant because one of the three rear lamps on the car was inoperative...

New Sentencing Required Because District Court Presumed GL Sentence Was Reasonable

Posted on February 12, 2008
U.S. v. Jesus-Gomez, 2008 WL 313388 (2/5/08) (unpub'd) - The 10th reverses the district court because it applied a presumption of reasonableness to the guidelines. The error was not harmless because the sentence was at the bottom of the guideline range...

Search of Defendant's Person Several Miles Away from Her Residence Was Improper

Posted on February 12, 2008
U.S. v. Young, 2008 WL 313436 (2/5/08) (unpub'd) - The 10th reverses a denial of a motion to suppress. The search warrant only authorized the search of the defendant's person in the course of searching her residence. Consequently, the search of the defendant's person several miles away from her residence was beyond the scope of the warrant...

Habeas Petitioner Sentenced to Adult Prison When a Juvenile Denied Relief

Posted on February 12, 2008
Gonzales v. Tafoya, --- F.3d ----, 2008 WL 307971 (10th Cir. Feb. 5, 2008).Petitioner was a passive, small, 14 year old who had long suffered from, among other things, bipolar disorder, depression, and ADD, when along with an older juvenile, he broke into the house of a couple they thought were not home...

Tenth Rejects Claims of Error, Affirms Death Sentence in OK Case

Posted on February 12, 2008
Brown v. Sirmons, --- F.3d ----, 2008 WL 307452 (10th Cir. Feb. 5, 2008).Multiple issues raised in a �2254 death penalty case?the conviction and sentence were upheld by the Tenth. The overall result, both below and in federal court seems somewhat shocking given the nature of some of the claimed errors, the relative garden variety nature of the offense (killing of a clerk during a 7-11 robbery), and the extremely mild to non-existent criminal background of the petitioner (P) (3 separate illegal firearm possessions, and one assault and battery in what looked like a crowd melee fight)...

Tenth Considers "Prison Mailbox Rule"; Jury Instruction in Alien in Possession of Firearm Case

Posted on February 12, 2008
US v. Lindsay, No. 07-3180 (10th Cir. 2/7/08) (unpublished): The Tenth Circuit dismisses the 2255 petitioner's appeal on the grounds that the notice of appeal was filed late on June 18, 2007. It declines to apply the prison mailbox rule even though 1) the petitioner had until June 15, 2007 to file; 2) the NOA and certificate of service were dated June 13, 2007; and 3) the envelope in which he mailed the documents to the district court was stamped as "received" on June 14, 2007 by the prison...

Tenth Circuit Decisions

Posted on February 06, 2008
U.S. v. Lozano, 2008 WL 241119 (1/30/08) (Published) - A mildly helpful case for an acceptance of responsibility reduction after going to trial. Despite the defendant's assertion in her opening brief that the 10th should review only for plain error her challenge to the one-level acceptance of responsibility reduction, the 10th, in accordance with the government's concession, reviewed for harmless error...

Convict "To End Cycle of Violence" Improper But Not Plain Error

Posted on February 01, 2008
United States v. Taylor, No. 06-1449 (10th Cir. Jan. 29, 2008) (published): The Tenth Circuit declines to find plain error even though it finds that a prosecutor's remark in his opening statements in Mr. Taylor's trial were inappropriate. Mr. Taylor was on trial for assault based on a fight he instigated on a reservation...

Un-Mirandized Confessions Admissible; Sentencing Enhancements for Vulnerable Victim, Abuse of Position of Trust as "Medicine Man" Upheld

Posted on February 01, 2008
United States v. Chee, No. 07-4057 (10th Cir. 1/29/08) (published): The defendant, convicted of one count of aggravated sexual abuse while in Indian Country and sentenced to 235 months' imprisonment, followed by lifetime supervised release, appealed the district court's denial of his motion to suppress his oral and written confessions, and his sentence...

Petitioner, Convicted as a Juvenile in 1981, Still Fighting for Parole

Posted on January 30, 2008
Alexander v. U.S. Parole Commission, --- F.3d ----, 2008 WL 224053 (10th Cir. Jan. 29, 2008).This may be a one of a kind case, under the old Youth Corrections Act, repealed in 1984, under which the petitioner was sentenced in 1981, as a 16-year-old convicted of 4 counts of first degree murder...

Concept of "Waiver" Popular These Days

Posted on January 30, 2008
U.S. v. Taylor, --- F.3d ----, 2008 WL 224055 (10th Cir. Jan. 29, 2008).This case is a little more complex than it appears on the surface?it is a standard of review decision. It seems to signal that the concept of ?waiver? is in high ascendancy.The Defendant objected to the prosecutor?s improper remarks in opening statement, to ?end the cycle of violence? on the rez by convicting Defendant of the battery with which he was charged...

Tenth Circuit Decisions

Posted on January 28, 2008
Jenkins v. Currier, 2008 WL 186866 (1/23/08) (Published) - State officers did not violate the plaintiff's Fourth Amendment or due process rights when they arrested the plaintiff and took him to the penitentiary without a warrant or a hearing. The plaintiff had been mistakenly released after serving time in federal custody, instead of being transferred to state custody to finish serving a state sentence...

Convictions for Illegal Alien in Possession of Firearms, Drug Charges Affirmed

Posted on January 25, 2008
US v. Baltazar Mendez, Docket No. 06-3282 (10th Cir. 1/24/08)(published): The Tenth Circuit affirms the defendant's various convictions for unlawful firearms possession and maintaining a drug house. Officers in Wichita, KS, executed a search warrant on the defendant's residence (the warrant was obtained based on an investigation into a home invasion and kidnapping)...

Magistrate's Entry of Judgment Conclusive for Determining Appellate Jurisdiction

Posted on January 18, 2008
US v. Pethick, No. 06-1525, 2008 WL 152583 (10th Cir. January 17, 2008) (published):The Tenth Circuit considers whether it has jurisdiction over an appeal from a conviction for misdemeanor DUI that occurred on a military reservation in Colorado. In this case, a magistrate judge handled initial proceedings...

Jurisdictional Challenge to Original Indictment Mooted by Agreed-Upon Plea to New Indictment

Posted on January 11, 2008
US v. Gachot, No. 07-6061, 1/10/08 (published): Defendant, a Native American, was involved in running a cockfighting venture. He was originally indicted on two Oklahoma state felonies and one federal crime (sponsoring or exhibiting an animal in an animal fighting venture if any animal had been transported in interstate commerce)...

Conviction for PWID Marijuana Upheld

Posted on January 11, 2008
US v. Montgomery, No. 07-3069, 1/10/08 (unpublished): Cop observed defendant buy a bunch of stuff at a hydroponics store. Criminal history check turned up two pot-related convictions. Check of utility records revealed that defendant?s residence used a lot more electricity than comparable residences in the neighborhood...

"171 Easy Mitigating Factors" Now Available

Posted on January 10, 2008
I don't normally include plugs for products, but this one is unique. For many years, Michael Levine has been compiling arguments to be used in getting lesser sentences in federal court. It began with "88 Easy Departures," the latest version is descriptively entitled "171 Easy Mitigating Factors? (formerly ?88 Easy Departures?)...

BOP Has Authority to Set Payment Schedules

Posted on January 08, 2008
Davis v. Wiley, 2008 WL 41067 (1/2/08)(unpub'd) - The BOP does not violate due process by setting an individualized payment schedule for the prisoner to pay restitution, according to its regulations, even though the district court does not do so, or apparently even if the court sets up a different schedule...

IAC Claim Must Be Pursued in 2255 Motion

Posted on January 08, 2008
U.S. v. Smith, 07-1044 (1/4/08)(unpub'd) - The 10th refuses to remand to consider an ineffective assistance of counsel claim regarding an untimely motion for new trial. The 10th says the defendant must pursue a � 2255 motion.

State Conviction Based on Contemporaneous Conduct Could Be Counted in Criminal History

Posted on January 08, 2008
U.S. v. Griffin, 07-6110 (1/4/08)(unpub'd) - It was okay to count in the defendant's criminal history score the defendant's state conviction for possession of the cocaine that was found at the same time and in the same place as the counterfeiting evidence that formed the basis of his federal counterfeiting conviction...

Arrest that was Unauthorized Under State Law Was Nonetheless Constitutional

Posted on January 08, 2008
Brown v. Fisher, 06-3207 (previously reported at 2007 WL 3011051) (1/2/08)(unpub'd) - The 10th denies rehearing, but amends the decision. Initially, the 10th held that the plaintiff's arrest was okay because there was probable cause and the arrest was authorized under Kansas law...

Excessive Force Claim Denied

Posted on January 08, 2008
Estate of Larsen v. Murr, 2008 WL 40020 (1/2/08)(Published) - An officer did not use excessive force when he shot dead a man, who had previously threatened violence against himself and others, and who refused to obey repeated orders to put down a knife with a blade over a foot long, and while holding the high ground from 7 to 20 feet away, took a step toward the officer...

Probation Search Ok'd

Posted on January 08, 2008
U.S. v. Carter, 2008 WL 44567 (1/3/08)(Published) - Another probation search approved. That the probation agreement only required the probationer to permit a home search, and did not explicitly permit a search without his consent, did not mean officers could not search without his permission under Utah law...

Denial of Safety-Valve Relief Affirmed

Posted on January 03, 2008
U.S. v. Altamirano-Quintero, 2007 WL 4554290 (12/28/07)(Published) - While it would have been error for the d.ct. to deny a safety valve adjustment solely because the defendant refused to debrief, the d.ct. did not require a debriefing, as the defendant claimed...

Rejection of Plea Agreement OK Despite Court's Receipt of Undisclosed Victim Impact Evidence

Posted on January 03, 2008
U.S. v. Rakes, 2007 WL 4510264 (12/26/07)(Published) - The 10th acknowledges the defendant's arguments "have force," but rejects them all. The 10th affirms the d.ct.'s rejection of the defendant's plea agreement that would have resulted in a sentence of 9 months [after trial, the defendant ended up with a sentence of 63 months!), where, prior to the plea rejection, and unbeknownst to the defendant, the victim, who was an AUSA, had written to the judge explaining the impact on her of the defendant's threatening letter...

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