TENTH CIRCUIT DECISIONS
DECEMBER 2005
Prior Sentences - Related, Clearly Erroneous Standard, Consolidated for Sentencing
United States v. Humphries, 05-1255 (December 2, 2005)
(Janine Yunker, FPD, Denver, Colorado)
Humphries pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The presentence report suggested that Humphries belonged in criminal history category VI. Humphries objected to the PSR’s treatment of four of his juvenile convictions, arguing that they had been consolidated for sentencing and should be considered “related” for purposes of the guidelines. In his first appeal, the circuit remanded for resentencing in light of Booker. On remand, the district court rejected Humphries’ arguments and imposed the same sentence. The circuit affirmed.
HELD: (1) Prior sentences in “related” cases are treated as a single sentence. When prior sentences are separated by an intervenining arrest, they are not considered related. Prior sentences are related if they resulted from offenses that occurred on the same occasion, are part of a single common scheme or plan, or were consolidated for trial or sentencing. The district court did not find that Humphries’ juvenile convictions were separated by intervenining arrests. Humphries concedes that the offenses did not occur on the same occasion and were not a part of a single common scheme or plan. The sole question is whether the convictions were consolidated for sentencing.
(2) The meaning of the word “related” is a legal issue reviewed de novo, while the district court’s determination of whether various offenses were “related” is a factual determination reviewed for clear error. The Supreme Court, in Buford, stated that review should be deferential. The circuit rejected Humphries’ argument that the Buford holding was limited to cases of functional consolidation. Therefore, the circuit held that district courts must be given deference with respect to all decisions regarding whether convictions were consolidated, and under such a standard, the circuit affirmed the district court. That the prior convictions were transferred to the same court for sentencing at the same time does not necessarily indicate that they were consolidated as the guidelines use that term.
Assistance of Counsel - Constructive Denial of Counsel, Critical Stage, Cronic Distinguished from Strickland Test, Structural Error, Remedy
Competency - Critical Stage, Retrospective Hearings
United States v. Collins, 04-2002 (December 5, 2005)
(Jill M. Wichlens, FPD, Denver, Colorado)
Collins appealed his conviction on the ground he was deprived of counsel at his competency hearing. At that hearing, the district court was presented with two issues – a motion to withdraw filed by Collins’ lawyer, and the issue of Collins’ competency. The district court addressed the competency issue before the withdrawal motion. As a result, Collins’ lawyer, believing there had been a breakdown in the attorney-client relationship, did not comment on Collins’ competency and did not introduce available evidence that may have affected the competency determination. Because Collins was not represented by counsel at his competency hearing, the circuit vacated the conviction and remanded for a new trial consistent with Collins’ constitutional rights.
HELD: (1) Collins argues that he was constructively denied counsel as under Cronic. The Sixth Amendment entitles a defendant to the assistance of counsel at every critical stage of a criminal prosecution. Critical stages are those steps of a criminal proceeding that hold significant consequences for the accused. A defendant is entitled to counsel at any proceeding where an attorney’s assistance may avoid substantial prejudice. Other circuits have held that competency hearings are a critical stage and the circuit agreed.
(2) If Collins were constructively denied counsel, then he need not show prejudice to establish a Sixth Amendment violation. Here there was a complete absence of adversarial testing, because the district court chose to address the withdrawal motion after the competency hearing. At no point during the competency hearing did counsel subject the prosecution’s competency case to meaningful adversarial testing.
(3) Collins argues he is entitled to automatic reversal because the violation of his Sixth Amendment rights constitutes structural error. A Sixth Amendment violation requires automatic reversal only when the constitutional violation pervades the entire criminal proceeding. Here, deprivation of counsel at the competency hearing affected the framework within which the trial proceeded only if it resulted in Collins standing trial while incompetent. Thus the pertinent question is whether the deprivation of Collins’ right to counsel resulted in an erroneous determination of competency. Competency hearings address the defendant’s psychological state of mind at a specific point and time. A defendant may be competent to stand trial today even though incompetent to assist six months earlier. Therefore, the Supreme Court has disfavored retrospective competency hearings, and this circuit has permitted them only in limited circumstances. Four factors are considered in accessing whether a meaningful retrospective competency determination can be made consistent with the defendant’s due process rights: the passage of time, availability of contemporaneous medical evidence, statements by the defendant in the trial record, and availability of witnesses. The factors weigh against conducting a retrospective competency hearing. Three years have passed since the competency evaluation and hearing. Collins made few remarks during his proceedings. Substitute counsel questioned Collins’ competency and there is insufficient contemporaneous medical evidence to permit a retrospective competency determination.
(4) Counsel’s statement at the competency hearing mentioned no military records and site reports that related to the issue of competency and the prosecution admitted that the undisclosed information may be relevant. Thus, the original competency hearing reveals an investigation, tactical decisions, and possible arguments that could have been made by counsel on behalf of Collins. Therefore, reversal is appropriate.
Confession - Voluntariness, Due Process, Hearing
Standing - Challenge Witness’ Confession
Plain Error
Prosecutorial Misconduct - Response Invited by Defense Argument
Concessions - Court Is Not Bound
Terrorism Enhancement
Booker - Adequate Objection, Harmless Error Review
United States v. Dowell, 03-1341 (December 6, 2005)
(Nancy Holton, Boulder, Colorado)
Dowell appealed his convictions for destroying government property by fire and forcibly interfering with IRS employees. He also argued that Booker requires resentencing. On the first day of trial, Dowell filed a motion to exclude Sherman’s testimony, arguing that police had coerced Sherman’s confession. The district court denied the motion, holding that any coercion would go to Sherman’s credibility and Dowell could bring this out on cross-examination.
On two occasions during closing argument, the prosecutor vouched for Sherman’s credibility. Defense counsel challenged Sherman’s credibility and, in rebuttal, the prosecutor argued that the testimony of the federal agents and Sherman was credible and believable.
HELD: (1) Dowell claims that the district court deprived him of due process when it did not conduct an evidentiary hearing to determine whether Sherman’s confession was voluntary. Because Dowell did not ask the district court to conduct a hearing, review is for plain error. A defendant in a criminal case is deprived of due process if his conviction is founded upon an involuntary confession. A defendant has a constitutional right to object to the use of a confession and to have a fair hearing. When a defendant questions the voluntariness of a confession, a hearing is mandated.
(2) But in cases like Jackson v. Denno, the defendant was
challenging his own confession. Nonetheless, Dowell has standing to challenge the voluntariness of a witness’ confession. But in doing so, he is not seeking to vindicate the witness’ Fifth Amendment right against self-incrimination, but instead to protect his own right to due process, that is, a fair trial.
(3) Unless a serious factual dispute can be shown to exist, and one
which, if successful, the defense would be entitled to exclusion, no hearing is necessary. Dowell failed to meet his burden of showing a serious factual dispute suggesting that Sherman’s confession was involuntary. The standard for determining whether a statement is voluntary is the same whether the court is dealing with a defendant or a third party. Sherman’s testimony at a pretrial suppression hearing was insufficient. Therefore, the trial court did not err in failing to conduct an evidentiary hearing on Dowell’s motion.
(4) Dowell failed to object to the prosecutor’s remarks so review is for plain error. The court gives prosecutors considerable latitude where defense counsel invites a response as to credibility. Even if the prosecutor’s remarks were erroneous, they would not rise to the level of plain error.
(5) The government concedes that the district court’s application of the terrorism enhancement violated the Sixth Amendment and warrants resentencing. But the circuit is not bound by the government’s concession and will conduct its own independent review of the record. Doing so, the circuit affirmed Dowell’s sentence. Dowell had not raised an objection before the Supreme Court decided Blakely or Booker, but the content of the objection was sufficient to preserve the Booker argument. For the terrorism enhancement to apply, the offense must have been one which was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. See §3A1.3. The jury essentially made this fact-finding when it convicted Dowell of interfering with the IRS. And for the terrorism enhancement to apply, the jury had to find beyond a reasonable doubt that Dowell’s offense involved a violation of § 844(f)(2). A jury specifically made this fact-finding when convicting him of violating that statute. The circuit rejected Dowell’s argument that the government also has to prove that he risked or caused death. Congress did not intend to engraft additional elements onto the crime set forth in § 844(f)(2)(3). The court found no constitutional error in the sentence.
(6) As to non-constitutional error, review is again for harmless error because the issue was preserved. The district court imposed a sentence in the middle of the range and this renders the non-constitutional Booker error harmless.
Illegal Aliens - Fast Track Sentencing Program, Effect of Booker, Sentencing Disparity
United States v. Morales-Chaires, 05-1190 (December 7, 2005)
(Edward R. Harris and John T. Carlson, FPD, Denver, Colorado)
Morales-Chaires plead guilty to one count of unlawful reentry by a deported alien, previously convicted of an aggravated felony. He was sentenced to 77 months imprisonment and appeals his sentence.
Fast-track sentencing programs originated with federal prosecutors in states bordering Mexico, who were faced with increasing numbers of illegal reentry and other immigration cases. They accordingly designed programs whereby defendants, accused of certain immigration offenses, would plead guilty early in the process and waive their rights to file certain motions and to appeal, in exchange for a shorter sentence. The shorter sentence was accomplished either by charge-bargaining or by promising to recommend a downward departure at sentencing. In 2003, Congress endorsed the fast-track concept in a provision of the PROTECT Act. At the time Morales-Chaires plead guilty and was sentenced, fast-track programs were in effect in a number of jurisdictions, but not in Colorado.
HELD: (1) When the sentencing guidelines were viewed as
mandatory, several circuits (as well as the Tenth Circuit) had held that the existence of sentencing disparities in illegal reentry cases among the various federal districts, where such disparities arise from varying charging and plea-bargaining policies, does not provide an appropriate basis for a downward departure at sentencing. The guidelines categorically proscribe consideration of sentencing disparities flowing from the exercise of prosecutorial discretion in charge and plea-bargaining practices.
(2) But Booker held the guidelines to be advisory, and not mandatory. The pre-Booker decisions that rejected departures from then-mandatory guidelines on the grounds that the guidelines precluded such departures cannot be ignored, but they can no longer be considered controlling law. One of the factors under § 3553(a) – subsection (a)(6) – provides that the courts must consider the need to avoid unwarranted sentence disparities.
(3) The court retains jurisdiction to review guideline sentences as before
the Supreme Court’s decision in Booker. The court now reviews sentences imposed after Booker for reasonableness. The district court carefully examined all the § 3553(a) factors before deciding on the sentence. As to the difference between sentences in fast-track jurisdictions and those without, the district court held that this disparity was within the province of the executive branch and the argument invites judicial legislation. The court concluded that the guideline range of 77 to 96 months was reasoned and reasonable, and sentenced Morales-Chaires to the low end.
(4) This issue is of first impression post- Booker. The circuit resolved the question based on plain error and did not need to reach that or any other issue of reasonableness. The directive to avoid unwarranted sentencing disparities is but one of several factors for a court to consider in determining a reasonable sentence. The circuit held the 77-month sentence was reasonable.
Habeas Corpus (28 U.S.C. § 2254) - Duration of Confinement
Exhaust State Remedies
Good Time Credits - Earning Status
Due Process
Wilson v. Jones, 02-6384 (December 7, 2005)
(Howard A. Pincus, FPD, Denver, Colorado)
Wilson, an Oklahoma State inmate, appealed the denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.
Wilson attempted to use his mandatory savings account for copying court documents he needed to pursue a post-conviction proceeding. He was charged with violating Oklahoma law, subjected to prison disciplinary proceedings, and convicted of Class X misconduct, which triggered two automatic consequences. Wilson was demoted from Class level 4, earning 44 credits each month toward early release, to a class level 1, in which he was ineligible to earn any credits. The Class X misconduct made him ineligible for promotion beyond level 2, where he could earn only 22 credits each month for a period of 2 years.
Wilson’s punishments were immediately suspended for 90 days and, because the 90 days expired without incident, the credits that had been ordered revoked could not be revoked. But the mandatory sanctions, pursuant to DOC policy, of demotions to a lower class for purposes of earning good-time credits, could not be suspended.
The district court denied Wilson habeas relief.
HELD: (1) Oklahoma inmates can use mandatory savings accounts to pay any fee, fine, cost or assessment imposed under Oklahoma statute. Included within this are photocopy charges imposed by a court clerk for obtaining official records and transcripts.
(2) In Sandin v. Conner, the Supreme Court held that a prisoner is entitled to due process before he is subjected to conditions that impose atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life, or disciplinary actions that inevitably affect the duration of his sentence.
(3) A habeas petitioner is generally required to exhaust state remedies when pursuing a § 2241 action. The requirement does not apply when exhaustion would be futile. A prisoner seeking speedier release, due to alleged errors in calculating good time, does not have an adequate habeas remedy under Oklahoma law. So requiring exhaustion would be futile.
(4) The connection between a disciplinary decision and the length of a prisoner’s sentence may be sufficient to establish a liberty interest when the prisoner establishes that the decision was the only factor that lengthened the sentence. In Gamble, the court found due process protections implicated in circumstances resembling the facts of Wilson’s case. It is well settled that an inmate must be afforded due process prior to the revocation of earned credits. The Gamble court did not discuss whether revocation of earned credits or reduction in credit-earning status implicated the petitioners’ liberty interest. But the Gamble court did restore credit earning status.
(5) The circuit held – in the instant case – that the misconduct conviction
infringed a liberty interest because it reduced Wilson’s credit earning class in a manner that inevitably affected the duration of his sentence. The lack of discretion based on the mandatory and automatic demotion is in contrast to the discretionary effect of the prisoner’s chances of parole in Sandin.
(6) There was also no evidence to support Wilson’s conviction. The circuit ordered that the misconduct conviction be reversed and expunged and that Wilson’s former status and credits be restored.
Illegal Alien - Collateral Attack Underlying Deportation Order
United States v. Chavez-Alonso, 05-3093 (December 12, 2005)
(John K. Henderson, FPD, Wichita, Kansas)
HELD: (1) The court reviews de novo constitutional challenges to an
underlying deportation order. To collaterally attack a deportation order, an alien must demonstrate that he has exhausted any administrative remedies, the deportation proceedings improperly deprived him of the opportunity for judicial review, and the entry of the order was fundamentally unfair. An alien who knowingly waives the right to appeal an immigration judge’s order of deportation fails to exhaust administrative remedies. In this court’s en banc decision in Aguirre-Tello, the circuit held that an alien facing deportation does not have a constitutional right to be informed of eligibility for discretionary relief.
Appeal Waiver - Booker Claim Within Agreement’s Exception to the Waiver Provision
Booker - Harmless-Error Review, Non-Constitutional Error
United States v. Cole, 04-3402 (December 12, 2006)
(Vicki Mandell-King, FPD, Denver, Colorado)
Cole entered a guilty plea to felon in possession of a firearm. He waived his right to appeal, but for a challenge to the four-point enhancement for use of a firearm during a commission of another felony. On appeal he argued that the enhancement violates Booker.
HELD: (1) The government moved to enforce the appeal waiver. The Booker argument is intertwined with the reserved issue, and the court strictly construes appeal waivers. Any ambiguities will be read against the government and in favor of a defendant’s appellate rights.
(2) The court reviewed the non-constitutional Booker error for harmlessness. The court held the defendant is entitled to a remand because the district court sentenced him to the lowest possible sentence. The government also agreed that a remand for resentencing was appropriate.
Discovery -Selective Prosecution, Appeal by Government of Discovery Order
Selective Prosecution - Discriminatory Effect and Intent
Invited Error Doctrine
United States v. Deberry, Lackey, and Talifero, 04-1532 (December 13, 2005)
The three defendants were indicted for an assault on a fellow inmate. The victim, Wheelock, is Native American, and the defendants are African American. The defendants argued they were treated less favorably than three Native Americans who allegedly assaulted an African American several days after the assault. They moved for discovery concerning selective prosecution. The district court granted that motion. When the government refused to comply, the court dismissed the indictment against the defendants with prejudice. The government appeals. The circuit held that the district court’s discovery order was erroneous and reversed the order of dismissal.
At the hearing on the discovery motion, the government had argued the defendants had not produced enough evidence to warrant discovery, and had not met their burden under United States v. Armstrong (S.Ct.), of showing evidence of both discriminatory impact and discriminatory intent. The district court had granted the motion for discovery, ruling that the government’s failure to indict Native Americans suspected of an almost identical crime was sufficient to show a discriminatory effect. The court ordered the government to produce all cases brought by the United States in the District of Colorado in the previous three years charging a federal inmate stabbing another inmate, indicating the race of the defendants and victims, a list for the same time period of all cases involving a stabbing of one inmate by another in which no criminal charges resulted, a statement of the criteria used by the United States in deciding whether to prosecute, and an identification of the persons involved in the investigations and decisions to prosecute.
When the government refused to comply with the discovery order, the district court issued an order to show cause why the AUSAs involved should not be held in contempt. The government argued that the court should follow the procedure in Armstrong and dismiss the indictment to allow the government to appeal the discovery order. The district court did so.
HELD: (1) The court reviews de novo the district court’s grant or denial of the defendant’s selective-prosecution discovery motion.
(2) Claims of selective prosecution have been recognized by the Supreme Court for well over a century. A decision to prosecute that is deliberately based upon an unjustifiable standard, such as race, is a denial of equal protection. The ban on discriminatory prosecution is not limited to the states, but also applies to the federal government under the Fifth Amendment’s due process clause.
(3) A defendant claiming selective prosecution must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. The clamant must show that similarly situated individuals of a different race were not prosecuted. Discriminatory intent can be shown by either direct or circumstantial evidence. Caution is required when evaluating selective-prosecution claims. The defendant is asking the judiciary to exercise power over a special province of the executive branch in which, for good reason, the executive possesses broad discretion. Such factors as the strength of the case, the prosecution’s general deterrence value, the government’s enforcement priorities, and the case’s relationship to the government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts undertake.
(4) There is a background presumption that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims. Responding to discovery on a claim of selective prosecution imposes many of the same costs associated with responding to a prima facie case of selective prosecution – diverting prosecutorial resources and disclosing strategies.
(5) The defendants here cannot satisfy the discriminatory effect requirement because the three Native American inmates are in fact being prosecuted. They had not yet been indicted at the time of the court’s discovery order or at the time of dismissal. But at the hearing on the discovery order, the government informed the district court that it intended to prosecute the second assault. The AUSA was speaking about the government’s decision to prosecute, a matter within his personal knowledge. To reject the AUSA’s representation not only ignores the presumption of regularity recognized in Armstrong, but disregards the AUSA’s duty as an attorney and an officer of the court. The district court expressed no reason to disbelieve the AUSA’s representation.
(6) Nor does it appear that the Native Americans were treated better than the defendants. The right to a speedy trial, not a delayed one, is guaranteed by the Constitution. Inmates suspected of committing serious crimes may suffer a number of negative consequences pending indictment and trial.
(7) Defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them. The alleged assault on Wheelock was captured on videotape. The actual stabbing is shown clearly. In contrast, the stabbing alleged to have been committed by the Native Americans occurred outside the range of video cameras. The absence of video footage would require more preparation for trial. Because the defendants have not produced evidence that similarly situated individuals of another race were not prosecuted, they have not satisfied the discriminatory-effect prong of Armstrong for obtaining discovery regarding selective prosecution.
(8) The court need not address whether the evidence presented satisfied the discriminatory-intent prong. But the court noted that the defendants had not produced evidence of discriminatory intent. The district court inferred discriminatory intent from discriminatory effect.
(9) The invited-error doctrine prevents a party who induces an erroneous ruling from being able to have it set aside on appeal. The doctrine is based on reliance interests similar to those that support the doctrine of equitable and promissory estoppel. That is not what happened here. The government is not arguing that dismissal of an indictment is an inappropriate sanction for defiance of a discovery order. Rather, the government has argued the discovery order was improper.
Motion to Suppress - Review Standard
Traffic Stop - Reasonable Suspicion
United States v. Alvarado, 05-4064 (December 13, 2005)
Alvarado entered a conditional plea of guilty to possession of cocaine with intent to distribute. He reserved his right to appeal the denial of the motion to suppress. The district court had held that the police stop of his vehicle was reasonable, based on a single instance of crossing over the right fog line of the highway, where the relevant Utah statute requires driving as nearly as practical and entirely within a single lane.
HELD: (1) In reviewing a district court’s denial of a motion to suppress evidence, the court accepts the factual findings of the district court and its determinations of witness credibility unless clearly erroneous. The ultimate determination of reasonableness is reviewed de novo.
(2) To satisfy the Fourth Amendment’s reasonableness requirement, a law enforcement officer must have an objectively reasonable suspicion that a traffic violation has occurred or is occurring before stopping an automobile. The court’s inquiry is whether the particular officer had reasonable suspicion that the particular motorist violated any one of the multitude of applicable traffic and equipment regulations. The circuit’s Gregory decision does not stand for the proposition that a single instance of drifting onto the shoulder can never be a violation of a traffic statute. Instead, the court must objectively analyze all the surrounding facts and circumstances. Here, there were no adverse weather or road conditions that might have made it impractical for Alvarado to prevent his vehicle from drifting out of the right hand lane and over the fog line. Therefore, the initial stop was reasonable.
Firearm Enhancement
Booker - Plain-Error Review, No Sixth Amendment Violation Because
Enhancement Did Not Result in Sentence Exceeding the Blakely-Defined Maximum Due to an Overlap in the Guideline Ranges
United States v. Williams, 04-3180 (December 19, 2005)
(Kirk C. Redmond, FPD, Topeka, Kansas)
Williams entered a plea of guilty to distribution of cocaine. His guideline range was enhanced on the basis that he possessed a dangerous weapon in connection with a drug trafficking offense. His guideline range was 70-87 months. He was sentenced to 70 months imprisonment. He had objected to the two-level increase.
HELD: (1) The court reviews the district court’s interpretation of the guidelines de novo and its fact findings for clear error. Section 2D1.1(b)(1) instructs that if a dangerous weapon was possessed, the offense level should be increased by two levels. The commentary states that the adjustment applies if the weapon were present, unless it is clearly improbable the weapon was connected to the offense. Williams conceded that he possessed the firearm. It was his burden to demonstrate that it was clearly improbable that the firearm was connected to the drug trafficking offense. He argued that because he had previously been robbed of drugs, he carried the gun for protection of his person and his drug dealing enterprise. His assertions are insufficient to meet the burden of “clear improbability.”
(2) For the first time on appeal, Williams relied on Blakely to contend his sentence violates the Sixth Amendment. And now Booker applies. Because Williams did not object to the firearm enhancement on the basis of the Sixth Amendment, review is for plain error. The court held that in this case, the enhancement did not result in a sentence exceeding the maximum authorized by the plea of guilty. The guideline range, including the enhancement, was 70-87 months. If the enhancement had been omitted, the range would be 50-71 months. Williams received a 70-month sentence, and therefore the district court did not violate his Sixth Amendment rights.
(3) The district court did commit non-constitutional Booker error in treating the guidelines as mandatory. Williams could not meet the fourth prong of plain error review.
Sufficient Evidence - Review Standard
Bank Fraud - Elements, Nominee Loans
Conspiracy - Elements
Booker - Harmless-Error Review, Proper Interpretation of Guidelines, Civil Settlement After Discovery of Fraud
United States v. Waldroop, 04-6308 (December 19, 2005)
Waldroop was convicted of bank fraud and conspiracy.
HELD: (1) In reviewing the sufficiency of the evidence, the court views the evidence in the light most favorable to the government.
(2) To prove bank fraud, the government must show the defendant knowingly executed or attempted to execute a scheme or artifice to defraud a financial institution, the defendant had the intent to defraud a financial institution, and the bank involved was federally insured.
(3) To prove conspiracy, the government must show there was an agreement to break the law, an overt act which was in furtherance of the conspiracy’s object, and the defendant willfully entered into the conspiracy.
(4) Nominee loans are not inherently illegal, but are illegal if they are used to deceive a financial institution about the true identity of a borrower. Informing a bank officer about his involvement with the loans is not a defense where it is the financial institution itself, and not officers or agents, that is the victim of the fraud.
(5) The court would not weigh conflicting evidence or consider witness credibility.
(6) The district court committed constitutional Booker error by finding facts to increase the sentence. Where the defendant objected on Booker or Blakely grounds, the government bears the burden of proving beyond a reasonable doubt that the error was harmless. Waldroop was sentenced to the highest possible term in the sentencing range.
(7) When enhancing a sentence under §2F1.1, the district court must determine the actual loss caused by the fraud. Had the court included the settlement in its calculation of actual loss, the amount would have been zero. The court reviews the district court’s determination of loss under the clearly erroneous standard, but reviews the factors the court may consider de novo. The application note to §2F1.1 states that the loss is the amount of the loss not repaid at the time the offense is discovered. Although the guidelines are advisory, application notes are authoritative about the proper interpretation of the guidelines, unless they violate the Constitution, a federal statute, or are inconsistent with the text. The offense was clearly discovered by the time of the civil settlement and was properly excluded from the court’s determination about the actual loss. Waldroop’s argument also directly conflicts with clear precedent of this court in which the court held that civil settlements made after the discovery of fraud are excluded from consideration when calculating the actual loss.
Admission of Evidence - Parole Agreement
Mistrial - Discretionary Review
Prosecutorial Misconduct
Cumulative Error
Violent Felony - Menacing
Acceptance of Responsibility
Booker - Courts Still Must Consult Guidelines, Non-Constitutional Error, Fourth Prong of Plain-Error Review
United States v. Herron, 04-1232 (December 20, 2005)
(Philip A. Churner, Denver, Colorado)
Herron was convicted of felon in possession of a firearm. During trial, the government sought to introduce Herron’s parole agreement to establish that he was aware a condition of his parole was that he not possess a firearm. The defense objected to the admission of the agreement because Herron could be prejudiced by other terms of his parole. The district court redacted parts of the agreement but left intact the condition that Herron report regularly to his parole officer, allow searches by the parole officer, submit to drug testing, and the condition that forbade him from possessing firearms. Defense counsel objected to the failure to redact the part of the agreement dealing with the Colorado statute that bars possession of firearms by convicted felons.
HELD: (1) Even if inclusion of the text of the Colorado statute in the parole agreement into the redacted agreement was error, it was harmless.
(2) The claims of failure to redact conditions four and five are reviewed for plain error. But anything in those conditions had already been presented to the jury, including by defense counsel who mentioned in opening statement Herron’s status as a parolee, his urinalysis testing, and the parole agreement’s prohibition on having a gun. Several other witnesses testified on matters related to Herron being on parole.
(3) The parole officer testified that Herron had a violent history. Defense counsel moved for a mistrial. The judge instructed the jury to disregard that testimony. The court reviews the denial of a motion for mistrial for abuse of discretion. The court presumed the jurors would follow clear instructions.
(4) In assessing prosecutorial misconduct, the court first examines whether the conduct was improper, and if so, then determines whether the error was harmless beyond a reasonable doubt. Prosecutors have considerable latitude to respond to an argument made by opposing counsel. The prosecutor argued that the innocent possession defense did not apply to Herron’s case. While it is improper to argue that an acquittal in accordance with the court’s instructions would be an unacceptable result, the prosecutor did not exceed the bounds of propriety.
(5) A cumulative error analysis aggregates all errors found to be harmless, and analyzes whether their cumulative effect can no longer be determined to be harmless. There was no cumulative error here.
(6) Herron argues that the district court erred in ruling that a violation of the Colorado menacing statute qualifies as a violent felony under the ACCA, mandating a minimum 15-year sentence. Herron had three state convictions for menacing. The court reviews the district court’s ruling de novo. The ACCA defines a violent felony in part as the threatened use of physical force. The actual use of force is not necessary. The Supreme Court in Taylor stated that the court must use a formal categorical approach, looking only to the statutory definitions of prior offenses and not to the particular facts underlying those convictions. In Shepard, the Court held that, in certain circumstances, a court may look to documents and records pertaining to the offense. Herron’s convictions were for violent felonies. He knowingly placed or attempted to place another person in fear of imminent serious bodily injury ... by the use of a deadly weapon. This conduct easily satisfies the requirement of the threatened use of physical force against a person of another. A threat to kick or strike someone comes within the ACCA definition.
(7) The court reviews under the clearly erroneous standard the district court’s finding that a defendant is not entitled to the acceptance of responsibility reduction. The court’s refusal to grant the adjustment is entitled to great deference on review. Under the guidelines, the acceptance-of-responsibility adjustment should be granted if the defendant clearly demonstrates acceptance of responsibility for his offense. A conviction at trial does not automatically prevent the adjustment. When a defendant goes to trial to preserve an issue that does not relate to factual guilt, the adjustment may apply. Herron only stipulated to the first element of § 922(g) - that he was convicted of a felony. But he challenged the knowing - possession element. He also challenged the jurisdictional element of the offense regarding interstate commerce. And Herron never claimed that the trial was only to preserve issues unrelated to factual guilt.
(8) The district court did not violate the Sixth Amendment and Herron’s due process rights when it determined that he had three prior violent-felony convictions.
(9) After Booker, the courts are still required to consider the guidelines in determining sentences, but they are not required to impose a sentence within the guideline range.
(10) When a sentence is calculated solely upon facts admitted by the defendant, found by the jury, or based upon the fact of a prior conviction, but the guidelines are deemed mandatory, this is non-constitutional Booker error.
(11) Review here was for plain error. It is difficult to satisfy the fourth prong of this test. Although the district court sentenced Herron at the bottom of the guideline range, it gave no indication it would exercise greater leniency if given the chance. Herron could not satisfy the fourth prong of plain-error review.
Booker - Preserved by Blakely Objection, No Constitutional Error
Guilty Plea - Admission of Essential Elements
United States v. Marshall, 04-2301 (December 23, 2005)
Marshall appeals from his sentence imposed after a plea of guilty to possession with intent to distribute more than 50 grams of a substance containing methamphetamine. Under the guidelines, the actual amount of methamphetamine refers to the weight of methamphetamine contained in the mixture or substance. Over objection, the district court concluded the appropriate drug quantity was 17.4 grams (actual) and 19.6 grams (actual). Marshall argued that this violated his Sixth Amendment rights under Booker.
HELD: (1) Because Marshall preserved the error below under Blakely, that is sufficient to preserve sentencing error under Booker. Review is for harmless error. This case does not present constitutional Booker error because Marshall’s sentence was not enhanced based on judicial fact-finding. Marshall’s claim that he never admitted an intent to distribute methamphetamine found in his home is belied by his guilty plea. Such plea is an admission of all the essential elements of the charge. The government’s offer of proof and the guilty plea referred solely to drug amounts sold on one occasion and drugs found in Marshall’s residence the same day. The sale amounts were insufficient to meet the 50 gram quantity to which Marshall plead guilty. Therefore, Marshall’s plea necessarily admitted an intent to distribute all the drugs.
(2) Defense counsel’s efforts to parley the Blakely and Booker holdings to Marshall’s benefit were unavailing. There was no judicial fact finding and no Sixth Amendment violation. Nor was there prejudicial non-constitutional Booker error. Although Marshall was sentenced at the bottom of the guideline range, the government has shown that the district court would not have changed his sentence.
Acceptance of Responsibility - Motion by Government for Additional Level
Reduction
Plea Agreement
Booker - Non-Constitutional Error, Plain-Error Review
United States v. Moreno-Trevino, 04-4144 (December 28, 2005)
(Benjamin C. McMurray, FPD, Salt Lake City, Utah)
Moreno-Trevino plead guilty to one count of illegal reentry after deportation.
HELD: (1) Moreno-Trevino challenges the district court’s refusal to award him a three-level downward departure for acceptance of responsibility under §3E1.1. He argues that once the district court finds a defendant’s acceptance of responsibility under subsection (a), the government’s discretion to file a motion under subsection (b) is limited to a determination of whether his acceptance was timely. Moreno-Trevino argues that his plea was timely because he plead guilty three weeks after the indictment. He argues that the district court should have required the government to file the §3E1.1(b) motion because the government had no rational basis not to do so. The court reviews the standards regarding the government’s refusal to file a motion under §3E1.1 de novo. The government argues that its discretion is not limited to the timeliness of the acceptance of responsibility.
(2) The most analogous situation is that of a substantial assistance motion under §5K1.1. A prosecutor’s discretion is not unlimited. Federal courts have authority to review the refusal to file such motion and to grant a remedy if the refusal was based on an unconstitutional motive or was not rationally related to any legitimate government end. The circuit concluded that prosecutors should be afforded the same discretion under §3E1.1(b). Like §5K1.1, the circuit read §3E1.1(b) to confer on the government of power, not a duty. Neither of the circumstances where the court would provide a remedy is present here.
(3) Moreno-Trevino also argues that the government breached the plea agreement by failing to request the additional point. The court examines the nature of the promise in light of the defendant’s reasonable understanding of the promise. The court reviews de novo a claim that the government breached the plea agreement. The plea agreement required the government to recommend an appropriate adjustment based on what it believed about his acceptance of responsibility. The government did not believe that Moreno-Trevino warranted any adjustment for acceptance of responsibility. The plea agreement contained no commitment that the government would file a motion for an additional adjustment.
(4) Moreno-Trevino also raises a non-constitutional Booker error challenge. This is reviewed for plain error. The claim that Booker error is structural error was rejected in Gonzalez-Huerta. The court did not determine whether Moreno-Trevino satisfied his burden under the third prong because he could not satisfy the fourth prong of plain error review.
Admission of Evidence (Rule 404(b)) - Intent, Prior Conviction
Booker - Not Affect Statutory Mandatory Minimum
United States v. Cherry, 05-1043 (December 28, 2005)
Following a jury trial, Cherry was convicted of possession with intent to distribute five or more grams of crack cocaine. He was sentenced to a mandatory minimum 10 years imprisonment.
HELD: (1) Cherry argues that evidence of his prior conviction was inadmissible under Rule 404(b). Review is for abuse of discretion. The district court admitted testimony regarding Cherry’s prior conviction as evidence of his intent to distribute crack cocaine. Rule 404(b) explicitly contemplates the admission of evidence of prior convictions to establish intent. The evidence was clearly relevant. Intent was the only element of the crime at issue at trial. The district court explicitly considered the probative value of the evidence and its potential prejudicial effect. Although the conviction was five years old, the court reviews the facts and circumstances of each case to determine whether a prior act is stale, and the court noted that Cherry spent four of the five intervening years in prison and had no opportunity to commit other distribution offenses. Finally, the district court gave the jury an appropriate limiting instruction.
(2) Cherry argues that Booker renders statutory mandatory minimum sentences unconstitutional because such sentences preclude the application of the sentencing factors set forth in 18 U.S.C. § 3553(a). This argument is foreclosed by this circuit’s earlier opinion in Payton, as well as every other circuit to consider the issue.