TENTH CIRCUIT DECISIONS
AUGUST 2006
Cotten v. Wood, 06-6038 (August 4, 2006)
Cotten, a state prisoner, sought habeas relief pursuant to 28 U.S.C. § 2241, as a result of a disciplinary hearing which he argued violated his due process right.
HELD: (1) Oklahoma inmates have a liberty interest and earn good time credits and therefore Cotten is entitled to due process protection. He received the process he was due.
(2) After his first amendment claim, that is a challenge to conditions of confinement and should be raised in a civil rights actions pursuant to 42 U.S.C. § 1983 after exhaustion of administrative remedies. It is not a cognizable ground for habeas corpus relief.
(3) To receive a certificate of appealability, an appellant must make a substantial showing of the denial of constitutional right. You must demonstrate that reasonable juris could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. The appeal was dismissed.
United States v. Scarborough, 06-7013
Scarborough is a federal prisoner, appearing pro se, who sought relief pursuant to 28 U.S.C. § 2255. He had pleaded guilty to drug charges and moved to withdraw his plea which was denied. At sentencing, he objected to a two level enhancement for possessing a firearm and requested the acceptance - of - responsibility reduction. The district court denied those requests.
Scarborough in a direct appeal waived issues concerning denial of his motion to withdraw plea, and the sentencing errors with respect to the firearm enhancement and acceptance - of - responsibility reduction. On appeal, the Circuit found that the district court did not abuse it’s discretion in denying the motion to withdraw a plea, that the two level firearm enhancement did not constitute plain error and that Scarborough was not entitled to the reduction for acceptance of responsibility. The complaint about the firearm enhancement included a Blakely objection. Blakely had not been decided at the time of sentencing but was raised on appeal and did not meet the plain - error standard.
Following the direct appeal, Scarborough filed a 2255 motion for resentencing under Blakely, and claimed ineffective assistance of counsel.
HELD: (1) The Court held that Scarborough was not entitled to relief under Blakely because § 2255 motion is a collateral attack and Blakely does not apply retroactively on collateral review.
(2) The district court had held that Scarborough should have raised his ineffective assistance of trial counsel on direct appeal, and the Court agreed. The failure to raise the ineffectiveness claim on direct appeal bars him from raising the issue in his § 2255 motion unless he can show cause excusing his procedural default or a fundamental miscarriage of justice.
(3) Scarborough’s claim of ineffective assistance of appellate counsel and failure to submit a transcript of sentencing to the appellate court is meritless.
(4) To grant a certificate of appealability, Scarborough must make a substantial showing of the denial of a constitutional right. He must demonstrate that reasonable juris could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. The court dismissed the appeal.
United States v. Cheromiah, 05-2168 (August 2, 2006)
Cheromiah plead guilty to conspiring to possess with intent to distribute 50 kilograms or more of marijuana. She was a passenger in a van stopped by a border patrol agent near the border on a road known to be used by smugglers. The border patrol agent determined that the passengers were United States citizens, but the agent also detected the odor of dryer sheet, a product sometimes used to mask the odor of drugs. After a consensual search, the agent discovered nearly 120 pounds of marijuana. In pleading guilty Cheromiah reserved her right to appeal the denial to the motion to suppress.
HELD: (1) In reviewing the denial of a motion to suppress, the court considers the evidence in a light most favorable to the prevailing party, and accepts the district court’s fact findings unless clearly erroneous. The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo.
(2) Border patrol agents on roaming patrol are permitted to stop vehicles on __________ they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the occupants are involved in criminal activity. Reasonable suspicion does not rise to the level required for probable cause and falls considerably short of satisfying a preponderance standard. In determining whether there is a reasonable suspicion to stop a car in the border area, officers may consider a number of factors including the characteristics of the area, the proximity of the border, the usual patterns of traffic on the road, previous experience of the agent with alien traffic, information about recent illegal border crossings, the driver’s behavior, aspects of the vehicle, such as a station wagon with concealed compartments, and the appearance of the vehicle is heavily loaded.
(3) In evaluating an officer’s decision to stop a vehicle, this Court does not evaluate and reject each factor and isolation. The totality of the circumstances must be taken into account. In consideration of the totality of the circumstances, it was reasonable to stop the vehicle.
(4) Investigative detention of a vehicle and its occupants must be reasonably related in scope to the circumstances to justify the stop. Occupants may be detained if, during the course of the stop, the agent develops an objectively reasonable and articulable suspicion that the occupance are engaged and some other illegal activity, or if the encounter becomes consensual. The initial purpose of the stop was to see if the van was carrying illegal aliens. Once the agent opened the side door, as the district court found, to confirm that no one else but the four U.S. citizens were in the van, he smelled the dryer sheets and at that point reasonable suspicion existed so that the continued detention of the vehicle was reasonable.
United States v. Christensen, 05-4115 (August 7, 2006)
Christensen pleaded guilty to possession of a firearm by a convicted felon. Is sentenced with enhanced under the ACCA. He did not appeal. He did file a § 2255 action claiming that his sentence violated Booker and Shepard. The district court ruled that Booker does not apply to cases on collateral review, and whether a prior conviction constitutes a crime of violence is a question of law not implicated by Booker. The district court did not consider, did not address Shepard.
HELD: (1) Christensen must first obtain the certificate of appealability. He is entitled to a COA only if he makes a substantial showing of the denial of a constitutional right. To satisfy the standard, petitioner must demonstrate that reasonable jurors could debate whether (or) for that matter, agree that (the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.
(2) Christensen concedes that Booker is not retroactive. This leads to Shepard claim. But a COA cannot be granted on a nonconstitutional claim. Shepard holds that a sentencing court may only look to the statutory definition, charging document, written plea agreement, transcript of plea colloquy and any explicit fact finding by the trial judge to which the defendant assented to determine whether a prior conviction qualifies as a predicate offense under the ACCA. The Shepard holding is truly a matter of statutory interpretation.
If the Court were to consider Shepard as holding being compelled by the Constitution, then Christensen would front the Teague problem. Initial habeas petitions based upon a new rule of constitutional law are barred by Teague. That is, a new rule of constitutional law does not apply to cases that have become final before the new rules are announced. The term “new rule” is somewhat imprecise. Teague’s nonretroactivity doctrine applies not only to § 2254 petitions by state prisoners but also to § 2255 motions. Christensen’s appeal became final well before Shepard was decided. And the decision before Shepard from the Supreme Court, Taylor, is also purely a matter of statutory interpretation.
(2) New substantive rules do apply retroactively on procedural rule do not and this a procedural rule. Nor does Shepard constitute a water shed procedural rule. The court dismissed the appeal.
United States v. Gonzales, 05-1313 (August 7, 2006)
(Warren R. Williamson, FPD, Denver, Colorado)
Gonzales, a former postal service employee was charged with embezzling the contents of mail in violation of 18 U.S.C. § 1709. At trial, she tendered a proposed jury instruction which would have required the government to prove that she removed the contents of the mail with intent to convert the contents to her own use. The district court refused to give that instruction and the jury convicted her on both counts.
HELD: (1) A district court’s refusal to give a request to jury instruction is reviewed for abuse discretion. The Court reviews the instructions de novo to determine whether, taken as a whole, the accurately state the governing law.
(2) Whether removal of the contents of mail in violation of § 1709 requires specific felonious intent to convert the contents to one’s own use is a question of first impression. As where there any questions to statutory interpretation, the court begins with the statutory text. The statute does not specifically define a term, the Court construes the term in accordance with it’s ordinary meaning. The term “removed” does not encompass any intent to convert. The use of the disjunctive “or” indicates that “steals” and “remove” are to have different meanings. Because the plain, unambiguous language of the statute criminalize is removing the contents of mail regardless of the defendant’s intended use of the contents, the Court did not need to examine the statute’s legislative history. Because the statute does not require proof of specific intent to convert the contents, the district court’s refusal to give the proposed instruction was not error.
United States v. Cordova R-Arevalo, 05-2013
Cordova plead guilty to illegal reentry after deportation. The PSR recommended a 16 level enhancement under § 2L1.2, treating his prior Colorado conviction for third degree assault as a felony crime of violence. Cordova did not contest the enhancement but rather argued that Colorado classifies his prior conviction as a misdemeanor, and therefore he should be sentence with a two year cap.
HELD: (1) A Colorado third degree assault is categorically a crime of violence under § 4B1.2. But the Colorado third degree assault statute does not necessarily include the use or threatened use of physical force as required by § 2L1.2, and therefore it’s application is subject to review under Shepard. See Perez-Vargas. But Cordova did not claim that the third degree assault is not a crime of violence. Though the PSR treated the Colorado conviction as a crime of violence, it did not refer to judicial documents detailing the elements of the offense.
(2) At issue in this case is the definition of the word “felony” in § 1326(b). The quote reviews de novo, the district court’s interpretation of the statute. The court quickly disposed of Cordova’s factual dispute as to the classification of his offense. His argument miscasts a legal conclusion as a factual dispute. The prior conviction is the relevant “fact.” The specific acts of misconduct giving rise to the conviction are not relevant facts. The fact based inquiry is forbidden by the categorical approach that must be followed with respect to prior convictions. Cordova conceived that the guideline definition of the term “felony” controls for purposes of sentence calculation. But he argues that the calculation of the sentence under the guideline does not author the statutory cap. He argues that the state definition should control.
(3) The purpose of the inquiry is to determine whether Congress intended to use “felony” to refer to the state’s classification or a broad federal concept. The court looked to the common understanding and historical use of the word. The congress is clearly define the felony by the terms of the maximum punishment attributable to an offense. Such construction furthers the congressional quest for uniformity in federal sentencing. Should the meaning of the word “felony” default to state definitions, this purpose would be undermined.
(4) After Cordova’s sentencing, the Supreme Court decided Booker. Cordova’s case is distinguishable from Trujillo-Terrazas. Cordova has failed to rebut the presumption of reasonableness so that any error in the district court’s use of mandatory guidelines was harmless.
United States v. Wehling, 05-1416 (August 8, 2006).
(Wade H. Eldridge, Denver, Colorado)
Wehling is tried and convicted of conspiracy to possess with intent to distribute methamphetamine and to distribute methamphetamine. He was sentenced to 18 months imprisonment followed by 3 years supervised release. He moved for a new trial based on newly discovered evidence which the district court denied four years later. While the motion was pending, he was free on a personal recognizance bond. Recognizing that the motion had been pending for almost four years, the government requested a status conference in June 2005. Wehling filed a motion seeking resentencing in light of Booker, which had been decided while the motion for new trial was pending. He requested to be resentenced to probation for time already served. The district court granted the motion for resentencing but denied his motion for new trial on the basis that the new evidence was merely impeaching. Wehling was again sentenced to 18 months imprisonment, followed by 3 years of supervised release. He moves to dismiss for lack of jurisdiction, arguing that the district court’s delay in ruling on his motion for new trial deprived the court of jurisdiction and constituted a denial of speedy trial and due process of law. Wehling filed a notice of appeal before the district court ruled on his motion to dismiss for lack of jurisdiction.
HELD: (1) The ten day time period for Wehling to file a notice of appeal began to run when the district court entered it’s order denying the motion for new trial. To comply with time earned _________ requirements and preserve his appeal of the sufficiency of the evidence, Wehling was required to file a notice of appeal by September 6, 2005. At that time, the district court had not yet ruled on the motion to dismiss for lack of jurisdiction.
(2) Review the sufficiency of the evidence to support a conviction, the court reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, and rational trier of facts could have found the defendant guilty beyond a reasonable doubt.
(3) To prove conspiracy, the government must show two or more persons agreed to violate the law, the defendant need the essential objectives of the conspiracy, the defendant knowingly and voluntarily participated in the conspiracy, and the alleged co-conspirators were interdependent. To prove knowledge of the essential objectives, the government does not have to show the defendant knew all the details or all the members of the conspiracy. The government presented sufficient evidence. Evidence to prove knowledge.
(4) Interdependence exists when each alleged co-conspirator depends on the successful operation of each link in the chain to achieve the common goal. It is irrelevant that Wehling never actually provided large quantities of methamphetamine. The essence of a conspiracy is an agreement to violate the law.
(5) Jurisdictional questions are reviewed de novo. Success on the jurisdictional claim would not affect the conviction or the original sentence. During the dependency of the motion to new trial, a valid, final sentence existed. Sentencing was not indefinitely postponed.
(6) In evaluating claims of unreasonable delay, the court reviews questions of law de novo and questions of facts of clear error. By filing a notice of appeal, Wehling deprived the district court of jurisdiction to rule on the motion to dismiss. The circuit generally does not consider issues on appeal that were not ruled on below. But under the unique facts here, the Court concluded it need not remand. This is because, even accepting Wehling’s allegations are true, he has not demonstrated a speedy trial or due process violation. The Sixth Amendment guarantees all criminal defendants the right to a speedy trial. This right applies from arrest through sentencing. Protection against unreasonable delay in the appellate process is simply provided by the Fifth Amendment right to due process of law. Wehling’s claim does not fit squarely into either category. Nonetheless, the interest in protection against unreasonable delay through both arrest and sentencing and the appellate process are endangered by delay in deciding a motion for new trial. Faded memories or misplaced evidence may impaired a defendant’s ability to adequately defend himself. Delay may also produce anxiety or drain a defendant’s financial resources. Because of these concerns, the Court saw no reason to exempt a motion for new trial from protection against unreasonable delay. Newbarker the Supreme Court identifies four factors that should be assessed: the length of delay, reason for the delay, defendant’s assertion of the right, and prejudiced to the defendant. The length of delay functions as a triggering mechanism. The delay is 3 years and 8 months as presumptively prejudicial. The reason for the delay weighs against the government in proportion to the degree the government caused the delay. But there is no intentional delay by the government. Wehling did not file a motion asserting his right to a decision without unreasonable delay until after the district court had denied this motion for new trial. This factor weighs against him. As to prejudice, Wehling was released on personal recognizance, so his liberty was not greatly restricted. The alleged prejudice is minimal. Because the first two factors do not compensate for the third a timely assert this right or alleged substantial prejudice, Wehling has failed to established the delay deprived him of a speedy trial or due process of law.
United States v. Rodriguez-Delma, 05-3297 (August 9, 2006)
Rodriguez-Delma plead guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana and possession of a firearm during and in relation to a drug trafficking crime. The district court applied a four level enhancement for organizer or leader.
HELD: (1) Rodriguez-Delma first argues that the government breached the plea agreement by providing the district court with information concerning his activities in a criminal enterprise. The government had agreed to not oppose the base offense level do not oppose that the base offense level not be increased for role in the offense. A claim that the government has breached the plea agreement is a question of law reviewed de novo, even where the defendant fails to object at the time of the alleged breach. The court will examine the promise, the nature of the promise and evaluate the promise in light of the defendant’s reasonable understanding of the promise at the time of the plea. General principals of contract law define the government’s obligations under the agreement, looking to the express language and construing any ambiguities against the government.
(2) The record shows that the government was authorized to inform the court about all the conduct of the defendant without limitation. The words used by the government were factually accurate, and legally neutral. Moreover the government repeatedly stated it did not oppose Rodriguez-Delma receiving no enhancement for his role. The government did not breach the plea agreement.
(3) Rodriguez-Delma argues that the district court failed to comply with Rule 32 in relying on the PSR to make the fact findings for the role on offense enhancement. To invoke the district court’s fact-finding obligation, the defendant is required to make specific allegations of factual inaccuracy. Arguments that challenge the district court’s application of the guidelines to the facts and not the facts themselves do not trigger any obligation on the court to make specific findings. The statement by Rodriguez-Delma was insufficient to trigger the facts-finding obligation. In addition, he did not dispute the facts when a district court questioned him. The fact that he objected to the conclusion in the PSR is not sufficient to imply that a controverted matter exist.
Howard v. Ulibarri, 05-2346 (August 9, 2006)
(Madeline S. Cohen, FPD, Denver, Colorado)
This is an appeal from the denial of habeas relief sought pursuant to 28 U.S.C. § 2254. The state appeals because the district court had found Howard’s petition timely, holding that his motion or modification of sentence tolled the one-year statute of limitation under AEDPA.
HELD: (1) The one-year statute of limitation is tolled while a properly filed application for state post conviction or other collateral review with respect to the pertinent judgment or claim is pending. The question is whether a New Mexico Rule 5-801(B) motion for modification of sentence tolls the statute. In Robinson the Circuit held that it properly filed Rule 35(b) motion under Colorado Law tolls the one-year limitation. That rule is substantively identical to the New Mexico Rule in question here. Robinson held that motions for post-conviction or other collateral review are not limited to constitutional challenges to the conviction but extend to challenges to the sentence. The Court was bound by the Circuit precedent in Robinson.
United States v. Contreras-Ramos, 05-4227 (August 9, 2006)
Contreras-Ramos plead guilty to possession of methamphetamine with intent to distribute. He waived his right to appeal his sentence in the plea agreement. Counsel filed an Anders brief and the government did not submit a brief but wrote a letter to the court agreeing that the appeal is barred by the appeal waiver.
HELD: (1) A defendant’s waiver of the right to appeal maybe waived by the government. Where the government explicitly cites an appeal waiver in a letter to the court in response to an Anders brief, the waiver is not waived and must be enforced if the waiver meets the requirement upon Hahn. The government successfully has invoked its right under the plea agreement.
(2) The waiver is enforceable if Contreras-Ramos knowingly and voluntarily agreed to the waiver. There is no suggestion that the waiver was not knowingly or voluntarily made.
(3) The plea agreement allowed Contreras-Ramos to appeal a sentence only if it were imposed in violation of law or was unreasonable in light of the factors under § 3553(a). The sentence at the low end of the guideline range is presumptively reasonable, and no reason is presented as to why the district court should have departed from the guidelines.
United States v. Hunt, 05-6023 (August 9, 2006)
Hunt was indicated on 55 counts of security and forgery and 41 counts of money laundering. These charges were based on a series of checks he wrote transferring more than $2 million dollars from his employer’s bank accounts to private accounts under his control. He used the funds to engage in commodities speculation and to buy a boat. Later he altered carbon duplicates of the checks to make it appear they had been written to a different payee. Over the course of two trials, he fabricated a document purporting to authorize the payments and then attempted to bribe a witness. He was convicted on all counts, sentenced to serve 63 months and to pay millions of dollars in restitution and forfeiture.
HELD: (1) The case turns on whether a check written by an agent with check - writing authority and signed using his own name qualifies as “forged” under 18 U.S.C. § 513 because the agent exceeded the bounds of his contractual authority with the principal. The 41 counts of money laundering depend on underlying unlawful activity and forgery is the only other crime with which Hunt was charged. The court looked at the statutory definition of the term “forged” and construed it in light of the two leading Supreme Court cases on forgery statutes, looked at the legislative history of § 513. The common law definition of forgery excluded false agency endorsements. Hunt’s actions do not fit the common - law definition of forgery.
(2) § 513(c)(2) defines the term “forged.” The Supreme Court decision in Gilbert and Moskal point in two different directions. But Moskal involves the different statute and the term “falsely made.” And the facts are distinguishable. The facts of Hunt’s case more closely resembled Gilbert where the Court held the defendant had not committed forgery because he merely lacked authority to sign checks as an agent for his clients. The statutory definition extends to all “falsely completed” social securities. But the statute does not treat all falsely completed securities as forged. The definition requires that the document must purport to be genuine but in fact be non-genuine. Congress did not need to add that requirement if it intended that any document falsely completed to fit within the definition. The statutory definition does not deviate meaningfully from the common - law definition of forgery.
(3) It is not necessary to resort to legislative history when statutory language is unambiguous. But the court found it useable in this case to insure that the Circuit found it would be useful to insure its interpretation is support by Congress’ purpose. The 1981 Senate report confirms that Congress did not intend the § 513 to reach instruments signed by an agent using his own name, where the _________________ is an implied assertion of authority to act on behalf of another. The Court reluctantly reversed the conviction.
United States v. McCullough, 05-3270 & United States v. Mosely, 05-3280 (August 10, 2006)
McCullough and Mosely were convicted after jury trial of various drugs and weapons charges.
HELD: (1) Sufficiency of the evidence with a legal issue reviewed de novo.
(2) A conspiracy in violation of 21 U.S.C. § 846 requires the government to prove an agreement with another person to violate the law, knowledge of the essential objectives of the conspiracy, knowing and voluntary involvement, and inter-dependence.
(3) In determining whether there was an agreement to commit an unlawful act, the critical inquiry of whether the circumstances, acts and conduct of the parties were of such a character that the minds of reasonable men may conclude there from that an unlawful agreement existed. In addition, the jury could reasonably have found that Mosely was well aware of the objectives of the conspiracy and was and knowing and voluntary participant in allowing McCullough to use her home for purposes of drug trafficking. Inter-dependence exists where each co-conspirator’s activities constituted essential and integral steps to the realization of a common elicit goal. Mosely supplied a reasonably safe and secure residence from McCullough to use for engaging and drug trafficking activities.
(4) To convict Mosely of violating 21 U.S.C. § 856(a)(2), the jury had to find that she managed and controlled the residence as an owner and knowingly and intentionally made the residence available for use for storing and distributing drugs. The jury’s acquittal of Mosely on counts charging possession of narcotics with intent to distribute on a specific date was not inconsistent with the § 856 conviction. The jury could have believed her testimony that by June 9, 2003, she had been staying with friends and was unaware of the various drugs found in the residence. In any event, consistency in the verdict is not required.
(5) Ordinarily the Court reviews claims of multiplicity de novo, but where the issue was not raised pretrial, review is for plain error. Multiplicity refers to multiple counts which covers the same criminal behavior. Multiplicitous counts may result in multiplicitous convictions. The test for multiplicity is whether the individual acts in the counts at issue are prohibited or only the course of conduct which they constitute. If the former, then each act is punished separately. If the later, there can be but one penalty. When multiplicitous convictions are found, the only remedy is to vacate one of the underlying convictions and the sentence based upon it. Commission of a substantive offense and a conspiracy are separate crimes because the essence of conspiracy is an agreement. The conviction for conspiracy under § 846 in maintaining a place under § 856 are not multiplicitous. All those holdings they related to Mosely’s appeal.
Mosely’s Appeal.
McCullough’s Appeal. When reviewing the denial of a motions to suppress, the Court views the evidence in the light most favorable to the government and accept the district court’s fact findings unless clearly erroneous. The ultimate determination of reasonableness is reviewed de novo. The district court concluded that the active burglar alarm, combined with other evidence at the scene of the residence created an exigency that justified the warrantless entries into the home. An officer may lawfully enter an residence without a warrant under the exigence circumstances exception when the officer reasonably believes a burglary is in progress. The Circuit held that the officer had a particularize and objective basis for concluding but there was a probability that a burglary was in progress.
(6) At trial, the government presented testimony from five convicted felons. Four months after the conviction, McCullough sent a letter to the court saying he had discovered that the five witnesses had conspired to provide false testimony. He attached letters from nine inmates stating that they had heard the five witnesses say that they were providing false testimony in order to get a downward departure. The district court held a multi day evidentiary hearing at which six of the nine inmates testified and the government presented the five cooperating witnesses. The district court denied the motion for new trial stating it did not believe McCullough’s witnesses. A motion for new trial based on newly discovered evidence is not favorably regarded and should be granted only with great caution. To prevail a defendant must prove the evidence was discovered after trial, the failure to learn of the evidence was not due to lack of diligence, the new evidence was not merely impeaching, is material to the principal issues and is of such nature that in a new trial it would probably produce an acquittal. The denial of a motion for new trial based on newly discovered evidence is reviewed for abuse of discretion. The district court found that McCullough had satisfied all of these factors, including that the evidence was not merely impeaching, but found that it was not sufficient to produce an acquittal. The district court did not abuse its discretion.
(7) The district court’s denial of a motion for judgment of acquittal is reviewed de novo. In order to prove guilt of possession with intent to distribute drugs, the government must prove that the defendant possessed the drugs, knew he possessed and intended to distribute or dispense them. Possession of a control substance can be either actual or constructive. Constructive possession exists when a person knowingly has ownership, dominion, or control over the narcotics and premises where the narcotics are found.
(8) In order to establish the “in furtherance” element of § 924(c), the government must show that the weapon furthered, promoted or advanced a drug trafficking crime. Several factors may facilitate proof that the defendant intentionally kept a firearm available for use if needed during a drug transaction. These factors includes the type of drug activity, accessibility of the firearm, type of firearm, legal status of the firearm, whether it was loaded, the proximity of the firearm to the drugs with drug profits, and the time and circumstances under which the firearm is found.
(9) At the time of sentencing McCullough made a general objection to the extreme disparity that has afforded crack cocaine pursuant to the guidelines. He argued there was no legitimate basis for the harsher treatment. The district court overruled the objection. The district court found a reasonable basis for the disparity in treatment of crack. Under Booker the court reviews the sentence for reasonableness. Sentences must be reversed when unreasonable considering the factors under § 3553(a). Reasonableness has both procedural and substantive components. Because there is no challenge to the calculation, the sentence imposed is reasonable from a procedural perspective and is considered presumptively reasonable for a substantive perspective. The defendant rebut this presumption by demonstrating that the sentence is unreasonable in light of the other sentencing factors in § 3553(a). Prior to Booker the Tenth Circuit like other circuits, reject a challenges to the disparity between crack and powder. A sentence post-Booker is not unreasonable merely because of a district court’s refusal to deviate from the advisory guideline range based on this disparity. Based on this authority, the district court did not err in refusing to impose a lower sentence based on the disparity.
United States v. Olivares-Rangel, 04-2194 (August 11, 2006)
(Barbara A. Mandel, FPD, Las Cruces, New Mexico)
Olivares-Rangel was charged with being an illegal alien present in the United States after having been previously deported and having been convicted of an aggravated felony. He moved to suppress physical evidence and statements. The district court granted the motion concluding that the stop and subsequent arrest of Olivares-Rangel at the trailer park violated the Fourth Amendment. The government appealed only the legal question of whether identity-related evidence could be suppressed as fruits of a poisonous tree, and was not appealing the conclusion that the Border Patrol lack probable cause to arrest the defendant. Accordingly, the government waived the issue of probable cause by failing to raise it. The district court determined that the finger prints and statements at the Border Patrol station must be suppressed as fruit of the poisonous tree applying the factors set forth in Brown v. Illinois, regarding defendant’s statements, the court noted that Miranda warnings had not been given. The district court also concluded that the government had not met its burden that the evidence would have been inevitably discovered. The government did not appeal on this point. The district court rejected the argument the government makes on appeal, that the body or identity of a defendant is never itself suppressible as fruit of an unlawful arrest, based on Lopez-Mendoza (S.Ct.). The district court held that Lopez-Mendoza was inapplicable because the Supreme Court was speaking about jurisdictional challenges under the Fourth Amendment and not evidentiary challenges to tainted identity evidence. Finally, the district court suppressed the contents of the A-file which included Olivares-Rangel’s criminal and immigration records.
HELD: (1) The district court’s decision suppressed evidence under the Fourth Amendment is a question of law reviewed de novo.
(2) When a defendant has shown that evidence is the fruit of the poisonous tree, showing the __________ factual nexus between the illegal search and the challenged evidence, the government may avoid suppression by proving that the contested evidence is not the fruit of a poisonous tree. The government may show that a particular item that the evidence would have been inevitably discovered, was discovered to independent means, or was so _________ from the illegality as to dissipate to taint of the unlawful conduct. Although the government argued inevitable discovery and attenuation of the taint below, it did not reassert those doctrines on appeal but instead takes the position that evidence of identity of a defendant is never suppressible as fruit of an unlawful arrest.
(3) In Lopez-Mendoza, the Supreme Court held that the body or identity of a defendant in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest. The questions presented were whether an illegal arrest deprived the immigration court of jurisdiction over the respondent’s person and whether the exclusionary rule would be extended to apply to civil deportation proceedings. The Lopez-Mendoza Court held that the immigration court retained jurisdiction because an illegal arrest has no bearing on subsequent deportation, and it was in this context that the court noted that the body or identity of a defendant is not suppressible. Illegal police activity affects only the admissibility of evidence and not the jurisdiction of the court. The Lopez-Mendoza Court also held that the exclusionary rule does not apply to civil deportation proceedings. The Tenth Circuit agreed with the Eighth Circuit’s conclusion that the “identity” language in Lopez-Mendoza referred only to jurisdictional challenges and did not foreclose suppression of all identity-related evidence. Lopez-Mendoza merely says that a defendant cannot suppress the entire issue of his identity but still may seek suppression of specific pieces of evidence.
(4) Finger print evidence maybe suppressed if obtaining them was the objective of the illegal arrest.
(5) The Circuit then turned its attention to determining whether the general exclusionary rule requires suppression of Olivares-Rangel’s statements, finger prints and his A-file, but it must do so only if the government preserved for appeal its argument against suppression under the general exclusionary rule. The government did not reassert its argument with regard to the defendant’s statement. Did not reassert on appeal the argument made below regarding the defendant’s statement and therefore the Circuit did not disturb the district court’s conclusion.
(6) As to finger prints, the government on appeal does expand its argument beyond Lopez-Mendoza. The Circuit held that finger prints administratively taken in conjunction with an arrest for purposes of confirming the identity of the person arrested and routinely determining the criminal history and outstanding warrants of the person arrested are sufficiently unrelated to the unlawful arrest so that they are not suppressible. But the Circuit reversed and remanded because the factual record is insufficient to determine whether the unconstitutional arrest was purposely exploited in order to develop critical evidence of criminal conduct to be used against the defendant. Certain routine administrative procedures like finger printing and photographing, are incidental events accompanying an arrest. It is considered elementary that a person in custody maybe required to submit to finger printing. Finger prints taken as part of a routine booking procedure will not ordinarily be poison fruit and should not be suppressed. This is not to say that such evidence is never suppressible. Courts must focus on the purpose of an illegal arrest and subsequent finger printing. Davis and Hayes (S. Ct. cases) requires suppression of finger print evidence only when the illegal arrest was for the purpose obtaining finger prints without a warrant or probable cause. Therefore if an illegal arrest was purposefully exploited for the purposes of obtaining finger prints, that evidence must be suppressed. In the absence of evidence of this purpose, finger prints taken as a part of a routine booking procedure are not the fruit of a poisonous tree.
(7) There is no evidence in the record to support the government’s assertion that the illegal arrest was not in part for the purpose of obtaining finger prints to link Olivares-Rangel to criminal activity. The Circuit remanded for an evidentiary hearing.
(8) The next question is whether independent government records must be suppressed as fruits of the poisonous tree if the illegal arrest brings to the attention of authorities the fact that an individual is present in the United States and subsequent check of independently created records reveals an individual’s immigration or prior criminal record. While the fruit of the poisonous tree doctrine applies only when the defendant has standing regarding the Fourth Amendment violation, the law imposes no separate standing requirement regarding the evidence which constitutes the fruit of the poisonous tree. Standing is determined by whether a defendant’s Fourth Amendment rights were violated, not whether the defendant had a reasonable expectation of privacy in the evidence alleged to be poisonous fruit. The Tenth Circuit rejected the notion that the fruit of the poisonous tree doctrine applies only when the defendant has standing regarding both the violation which constitutes the poisonous tree and separate standing regarding the evidence which constitute the fruit of that tree. If the finger prints are determined to be suppressible it will be because of a determination that the finger prints were illegally obtained for an investigative purpose. Under such circumstance, the A-file is inextricably linked to the finger prints and if one is fruit of the poisonous tree (the unconstitutional arrest), then the other is as well.
(9) Evidence gained through exploitation of illegal police conduct must be suppressed unless that evidence would have been inevitably discovered. Whether defendant’s A-file should be suppressed will also be decided on remand.
United States v. Ehang, 05-3341 (August 14, 2006)
(Ronald E. Wurtz, FPD, Topeka, Kansas)
Ehang was convicted of possession with intent to distribute cocaine and ecstacy and sentenced to 180 months imprisonment.
HELD: (1) The court reviews de novo and a claim of insufficiency of the evidence to support a conviction. Ehang’s decision to jump back into her car and speed away after she had been stopped at a 130 mph, disobeying the officer’s direction, strongly conveys guilt. Flight is suggestive of wrong doing. Testimony of Ehang generally nervous behavior is another factor the jury could consider. The Circuit will not reweigh conflicting evidence or consider the credibility of witnesses. Therefore the evidence was sufficient.
(2) Whether the district court performed its gate keeping function in admitting the expert testimony of the detective is reviewed for abusive discretion. While the district court has discretion in the manner in which it conducts its Daubert analysis, there is not discretion regarding the actual performance of the gate keeper function. The district court overruled Ehang’s objections to the detective’s qualification and a linguist on the basis that the detective is a native Mandarin Chinese speaker with has spoken English since he was 10 years old. The district court thus performed its gate keeping function.
United States v. Schuler, 05-8067 (August 14, 2006)
Schuler was convicted of 24 counts of mail fraud.
HELD: (1) In determining whether the evidence is sufficient the court reviews the record de novo asking whether the evidence, both direct and circumstantial, taken with the reasonable inferences to be drawn therefrom, and viewed in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt. The elements of mail fraud are a scheme or artifest to defraud or obtain property by means of faults of fraudulent pretenses, representations, or promises, and intent to defraud, and use of the mail to execute the scheme. The scheme must be described with particularity and is not sufficient in this regard to merely plead the statutory language. The indictment sets forth four pages of detail and the jury was carefully instructed on mail fraud. Because direct proof for fraudulent intent is often unavailable, courts have long permitted fact finders for rely on circumstantial evidence, including evidence of actual or contemplated harm. Intent to defraud may be inferred from the misrepresentations, knowledge of a false statement as well as whether the defendant profited or converted money to his own use. The evidence was sufficient to convict for mail fraud. It is irrelevant whether certain individuals could have obtain a refund. Mail fraud does not require successful completion of the scheme to defraud. Actual showing of loss is not required.
(2) Upon a defendant’s motion, the court may strike surplusage from the indictment. Rule 7(d). Schuler did not make such a motion so review is for plain error under the familiar four part test. Surplusage in an indictment may be disregarded.
(3) Evidentiary rulings are reviewed for abuse of discretion. Federal Rule of Evidence 1006 allows the use of summaries when the contents of voluminous writings cannot conveniently be examined in court. The materials upon which the summary is based need not themselves be admitted into evidence. Admission of summaries is condition on the requirement that the evidence upon they are based, even if not admitted, must be admissible.
(4) Once the defendant takes the stand, her credibility is at issue. Under Rule 608(b) Fed.R.Evid., it is within the discretion of the district court to decide whether defendant may be cross examined about prior conduct concerning her character for truthfulness, always subject to the balancing test of Rule 403. Specific instances of the conduct of a witness may not be proved by extrinsic evidence. A matter is material as it could not have been introduced into evidence for any purpose other than impeachment. The false tax return and credit card applications were not collateral; they had already been admitted into evidence by stipulations.
(5) The confrontation clause guarantees the right to physical face those who testify against the defendant and the right to conduct cross examination. Alleged errors are subject to harmless error analysis. To preserve the right for constitutional harmless review error, a defendant must object based on the Sixth Amendment. Schuler did not object to the testimony of McKee via telephone. The matter was addressed during a jury instruction conference. It was not error for McKee to testify by telephone because she took an ought, with subject to cross examination, her testimony was uncontroverted and subject to a finding of absolute proof by the district court.
(6) The court reviews a jury instruction de novo when an objection is made at trial. Reversal is warranted only when the _________ given instruction is prejudicial in view of the entire record. An instruction that recapitulates the evidence in the light most favorable to the defendant is not appropriate. It was not necessary to give an instruction as to the meaning of “guarantee.”
(7) Cumulative error analysis nearly aggregates all errors that individually have been found to be harmless and analyzes whether the cumulative effect of the errors was such that they can no longer be determined to be harmless.
United States v. Bruce, 05-2150
(Michael A. Keefe, FPD, Albuquerque, New Mexico)
Bruce was charged with assault with a dangerous weapon with intent to do bodily harm and assault resulting in serious bodily injury. He was found guilty. At trial Bruce conceded that he and Long fought on the day of the assault but denied beating him with a weight lifting object or a shock absorber. He also contested whether the injuries were serious. Bruce did not testify at trial. Bruce requested a lesser included offense instruction on assault by striking, beating or wounding. At sentencing the PSR author did not address any special terms of supervised release but at sentencing the court ordered that Bruce must submit to a search of his person, property or automobile to insure compliance with conditions of supervision and must inform anyone with whom he resides that may be subject to a search at a reasonable time and a reasonable manner. The district court did not offer any rationale for imposition of the special condition.
HELD: (1) A defendant may be found guilty of an offense necessarily included in the offense charged. A defendant is entitled to an instruction on a lesser crime if the evidence justifies the instruction. The defendant must request the instruction, the elements of the lesser included offense must be a subset of the charged offense, the element required for the greater offense that is not an element of the lesser must be in dispute, and the evidence must be such that a rational jury could acquit the defendant on the greater offense and convict on the lesser offense.
(2) Assault by striking, beating, or wounding is not a lesser included offense of assault with a dangerous weapon. Assault by striking, beating or wounding requires a physical touching. By the same reasoning, assault by striking, beating or wounding is not a lesser included offense of assault resulting in serious bodily injury. Bruce’s argument is that the district court failed to give, sua sponte, a lesser included offense instruction on simple assault. Bruce did not request such an instruction. He had only sought one for assault by striking, beating, and wounding.
(3) Bruce’s request for instruction on assault by striking, beating or wounding is not a “proper request” preserving for appeal his argument that he was entitled to an instruction on a simply assault.
(4) The court did not decide whether the failure to make such a request for simple assault instruction is entitled for review for plain error. Assuming plain error review applies, if claim fails under the four part test.
(5) It is doubtful that the district court committed error of any kind in not instructing on simple assault as to the two counts of assault with a dangerous weapon with intent to commit serious bodily injury. Simple assault is a lesser included offense of assault with a dangerous weapon. But Bruce cannot demonstrate that both elements differentiating the two offenses are in dispute. Those two elements are intent to commit bodily harm and use of a dangerous weapon. Because Bruce admitted that he disputed only the dangerous weapon element, he was not entitled to a simple assault instruction as to the assault with a dangerous weapon. In any event plain error analysis is not the appropriate situation under which to reconsider the Johnson holding in which this Court held this to be the case.
(6) Assuming that Bruce has demonstrated a plain error affecting his substantial rights, he does not assess by the fourth prong of plain-error review. The government’s case was strong.
(7) Bruce also failed to demonstrate plain error in sua sponte failing to instruct on simple assault as to the count of assault with _________ serious bodily injury. Again he fails to satisfy the fourth prong of plain-error review. For Long to have suffered serious bodily injury, the jury was told that the assault must have resulted in a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty. The doctor’s testimony established that Long would suffer a life long disfigurement.
(8) As to special condition of supervised release, the special condition involved the liberty interest, and because there is no obvious nexus between special condition and the crimes of conviction, Bartsma controls and requires a remand to the district court for new sentencing proceeding after proper notice to Bruce of the potential applicability of the suspicion-search condition. Bartsma hold that the district court’s failure to provide prehearing notice of the intent to impose a special condition requires further proceedings. A challenge to the rack of notice of a condition is preserved, despite an objection, because the lack of notice short circuits these significance of any opportunity to comment. Bartsma did make clear that pre-hearing notice of all special conditions is not required. Notice of a special condition is required when a condition implicates the liberty interest and there is a lack of any obvious nexus between the condition and the crime of conviction. The Court here held that this is one of the highly unusual cases where a prehearing notice was required. Here Bruce would be subject to a search whenever the probation officer chooses and there is no obvious nexus between the condition and the crime. The suspicion was - searched condition is neither or required condition of supervised release, a discretionary condition, nor a standard condition. It is not a condition required or recommended to be imposed by the guideline. The nexus propose by the government is far too attenuated to remove this case from the ambit of Bartsma.
United States v. Copeman, 04-7099 (August 16, 2006)
Copeman was convicted of drug and firearms offenses. His convictions were upheld on direct appeal. In this related appeal, he challenged the district court’s denial of his post conviction and motion pursuant to Rule 41, Federal Rules of Criminal Procedure, seeking return of certain property seized by Oklahoma Law Enforcement Officers during the investigation.
HELD: (1) Rule 41 is an equitable remedy available only if the movant can show irrefutable harm and inadequate remedy at law. The property has been continuously in a physical custody of the state and was subject of state judicial - forfeiture proceedings. When Copeman filed his motion. Copeman does not suggest that any of the property was ever considered potential evidence for his federal prosecution. The district court dismissed the motion, ruling that the United States does not currently and actual constructive possession of the property, and the defendant has an adequate remedy at law in the state court. The circuit reviews the district court’s denial of a Rule 41 motion for abuse of discretion. The district court did not abuse its discretion. Property seized and held by the state is not in constructive possession of the United States for purposes of Rule 41 unless it is being held for potential use as evidence in the federal prosecution. When state avenues of relief are open to the movant, he cannot show an inadequate remedy at law. Whether or not the state judicial - forfeiture proceedings do not provide an adequate remedy because Copeman will carry a greater burden of persuasion does not render the state remedy inadequate.
United States v. Hernandez-Garduno, 04-2224 (August 21, 2006)
United States v. Ramos-Espino, 04-2226
United States v. Ortego-Enriquez, 04-2348
These three appeals present the question of whether previous Colorado misdemeanor convictions for third-degree assault constitute crimes of violence under §2L1.2 when the defendants were sentenced to less than one year in prison. Each pleaded guilty to illegal re-entry. The district court did not apply the crime of violence enhancement to Hernandez or Ramos and Ortega argues the enhancement should not have been applied in his case.
HELD: (1) First the Court had to address whether the appeals of Hernandez and Ramos were rendered moot upon deportation. The Court held the completion of a sentence and deportation does not moot the government’s appeal of an improper sentence. Although neither defendant can appear for resentencing without re-entering the country illegally, if either does return, he would be subject to arrest and imprisonment for the remainder of the sentence. The defendants point out that 8 U.S.C. § 1101 defines an aggravated felony as one for which the term of imprisonment is at least one year even though the application note to § 2L1.2 defines a felony as an offense punishable by imprisonment for a term exceeding one year. The circuit held that the terms are defined in the application notes, and the notes are authoritative unless they are unconstitutional, violate a federal statute, or are inconsistent with the guidelines. The Circuit pointed out that the guidelines employ a different definition for “felony” for purposes of subsection (b)(1)(A) than the definition of “aggravated felony” for purposes of subsection (b)(1)(C). The reference to 8 U.S.C. § 1101(a)(43) applies only to subsection (b)(1)(C). Therefore the district court erred in concluding that Hernandez’ and Ramos’ prior convictions were not felony crimes of violence, but the court correctly found that Ortega’s prior conviction was a felony crime of violence.
(2) A new legal theory can be considered on appeal if it presents an alternative ground for affirming a lower court ruling on a pure question of law. Hernandez and Ramos argue that their Colorado third-degree assault convictions were not crimes of violence under § 2L1.2(b)(1)(A). In Perez-Vargas, this Court had used the categorical approach of Sheapard and Taylor to hold that the Colorado third-degree assault is not necessarily a crime of violence, because the Colorado statute includes actions which may cause only the impairment of a mental condition and as a result, not all third-degree assaults involve the use, attempted use, or threatened use of physical force. Therefore the Circuit remanded the cases to the district court for it to review the documents appropriate under the categorical approach to determine whether the prior convictions fall within the definition of “crime of violence” under § 2L1.2 if the district court concludes the prior convictions were crimes of violence, a 16-level enhancement is proper. If the district court determines there is not sufficient evidence to find that the prior convictions were crimes of violence, it should apply a four-level enhancement for a prior felony conviction.
(3) Where a defendant raises a Sixth Amendment objection at sentencing, the Court reviews the error for harmlessness. The government concedes that the error in Ortega’s was not harmless and the Circuit agreed. The district court had expressed great reluctance in imposing the 37-month sentence at the low end of the guidelines, characterizing it as “terribly unfair.”
United States v. Cordova, 05-6093, 05-6094 (August 22, 2006)
William P. Earley, FPD Oklahoma City, Oklahoma
Cordova stipulated that he failed to comply with terms of supervised release. The district court revoked Cordova’s supervised release and sentenced him to 36 months incarceration. Each of the violations to which Cordova stipulated were grade C violations under § 7B1.1. The court determined the guideline ranges for violating supervised release under § 7B1.4 and 18 U.S.C. § 3583(e)(3). The district court sentenced Cordova to the statutory maximums -- 24 months on the first conviction and 12 months as to the second and ordered them to run consecutively.
HELD: (1) Cordova cannot contest the original imposition of supervised release, as such an attack cannot be made in an appeal of the revocation of supervised release.
(2) Cordova argues that under Apprendi, the district court could not make the findings of guilt by a preponderance. He did not raise these issues before the district court so that review is for plain error.
(3) Supervised release is part of the penalty for the initial offense. Once the original sentence has been imposed, further proceedings with respect to that sentence are not subject to the Sixth Amendment. Jury trial rights to not attach to revocation proceedings. The Circuit agreed with the Second Circuit’s decision in Carlton and rejected the constitutional challenge raised.
(4) Furthermore, Booker made clear that the Sixth Amendment does not prohibit sentences based solely on facts admitted by the defendant. Cordova admitted the facts establishing that he violated the terms of supervised release.
(5) Cordova next argues that the district court failed to articulate the basis for imposing a sentence higher than that recommended by the guidelines and failed to explain why it ordered the two sentences to run consecutively (NOTE: The opinion says concurrently, but this must be a typographical error.) Sentences in excess of that recommended by Chapter 7 policy statements will be upheld if it can determine from the record to have been reasoned and reasonable. As to the second argument, the Circuit recently noted an apparent incongruence in its precedent as to the applicable standard of review of imposition of consecutive sentences. It is unclear post-Booker whether such decisions should be reviewed for reasonableness or an abuse of discretion. The Circuit held it need not explore “the exact contours of our post-Booker standard of review because the district court did not abuse its discretion and the sentence was both procedurally and substantively reasonable.”
(6) In imposing a sentence following revocation of supervised release, a district court is required to consider both Chapter 7’s policy statements as well as the § 3553(a) factors. The court is not required to individually consider each factor, nor need it recite any magic words. Here, the court clearly indicated that Cordova’s repeated violations of the terms of supervised release and the court’s familiarity with his inability to conform his behavior to those terms were significant factors in sentencing. The court also noted Cordova’s ongoing substance abuse problems. The district court also has discretion to impose consecutive sentences.
United States v. Garcia, 05-4031
Garcia entered a conditional plea of guilty to possession of methamphetamine with intent to distribute an appeal for denial of his motion to suppress.
HELD: (1) A defective notice of appeal should not warrant dismissal for one of jurisdiction where the intent to appeal may be reasonably inferred from the notice and the defect has not materially misled the appellee.
(2) When reviewing a district court’s denial of a motion to suppress, the Court accepts the district court’s findings of fact unless they are clearly erroneous. The ultimate determination of reasonableness under the Fourth Amendment is subject to de novo review. The Court reviews the district court’s determination of reasonable suspicion de novo.
(3) There are three general types of encounters between citizens and police: consensual encounters, investigative detentions, and arrest. This case involves an investigative detention. The police searched Garcia’s person during an investigative detention. Investigative detentions are Fourth Amendment seizures of limited scope and duration and must be supported by reasonable suspicion. Garcia does not challenge the officers entry into and protective sweep of Ross’s apartment. He concedes that the discovery of the drugs on the floor would be sufficient under Terry to justify a temporary detention of Garcia to investigate the offense. The only question is whether the patdown was unjustified. Even when an initial stop is justified, the Court still must assess the reasonableness of the patdown. Police officers are authorized to take reasonable steps to secure their safety and maintain the status quo. The purposes of a limited patdown is not to discover evidence, but to allow the officer to pursue the investigation without fear of violence. An officer may patdown a suspect if he has reasonable suspicion that a frisk would be necessary to protect himself. The Court applies the reasonable suspicion standard through a filter of common sense and ordinary human experience. The facts warranted the police in reasonably suspecting that Garcia was armed and dangerous. Connection with drug transactions can support a reasonable suspicion that a suspect is armed and dangerous. An apparent gang connection provides an additional reason to uphold the district court’s conclusion in the case.
United States v. Paredes, 05-4081 (August 22, 2006)
HELD: (1) Paredes first argues the district court erred as a matter of law in applying the enhancement under § 2F1.1 to his sentence. The district court’s fact-finding is reviewed for clear error and its legal interpretations de novo. The two-level enhancement is proper if the defendant relocated a fraudulent scheme to another jurisdiction to evade law enforcement. The Court held that the testimony was sufficient to establish that the relocation was for that purpose. One can participate in the relocation without relocating oneself. The guideline only requires that the defendant have participated in the relocating; he need not have been the driving force.
(2) Reasonableness review encompasses the reasonableness of the length of the sentence as well as the method by which it was calculated. A sentence imposed within a properly calculated guideline range is presumed reasonable.
(3) The Court does not require a ritualistic incantation of the § 3553(a) factors. Although the district court did not sufficiently mention the § 3553(a) factors, Paredes also did not make a non-frivolous argument that those factors warranted a below-guideline sentence that would have triggered the district court’s obligation to address the factors on the record.
(4) On appeal, Paredes argues that the materials presented to the district court implicated several of those factors, but the defense did not mention any of the factors or make an argument that the statute justified a below-guideline sentence.
(5) The Sixth Amendment is violated if the district court applies the guidelines in a mandatory fashion. It is not error for the district court to give the guidelines heavy weight.
United States v. Torres, 06-1062 (August 28, 2006)
Raymond P. Moore and Lynn C. Hartfield, FPD Denver, Colorado
Torres pled guilty to illegal re-entry after previous deportation for an aggravated felony. Torres’ offense level was increased by 16 levels based on the previous felony kidnaping conviction. At sentencing, he requested a variance from the guideline range, contending that his case was unusual because the felony conviction was almost 20 years old, occurring when he was much younger. The district court noted the seriousness of the prior offense. Defense counsel pointed out that Torres served just over two years for the offense and may have been one of the less culpable persons involved in that offense and that in the last 20 years there have been no felony allegations against him, and no real police contacts other than drinking and driving offenses. The district court noted that the kidnaping conviction could not be included in the criminal history calculation but has bearing on the other sentencing factors because of the seriousness of the offense, and also noted Torres’ multiple violations of the immigration laws.
HELD: (1) Torres argues the district court erred in increasing his sentence by 16 levels. This was not raised below and is reviewed for plain error. The definition of a crime of violence in the commentary of §2L1.2 sets no time limit on the age of the prior conviction, but other provisions in the commentary explicitly state that they apply without regard to the date of conviction. Torres relies on the canon of construction expressio unius est exclusio alterius, and argues that because the definition does not list the time restriction otherwise imposed by the guidelines it was error for the court to use the prior conviction, which was conceded by all the parties to be time-barred under §4A1.2. The Circuit rejected this argument, relying in part on an Eleventh Circuit decision. The Circuit held that the commentary evinces an intent to treat all prior convictions the same, regardless of age. And in any event, if the district court erred, the error was not plain.
(2) Torres also argues that his sentence was unreasonable. The government argued that the Circuit should review the claim only for plain error because Torres did not specifically object to the reasonableness of the sentence in district court. The Circuit held that it requires reasonableness in two respects -- the length of the sentence as well as the method by which the sentence was calculated. The Circuit explained that it has previously held that when the defendant fails to object to the method, review is only for plain error. But when the claim is that the sentence is unreasonably long, the Circuit does not require the defendant to object in order to preserve the issue. Instead the Court reviews merely for “reasonableness” of the sentence’s length. At sentencing Torres argued that the § 3553(a) factors warranted a sentence lower than the guidelines. The district court considered these contentions and noted countervailing considerations. The Circuit held that the 41-month sentence imposed was reasonable.
United States v. Chavis, 05-6001 (August 29, 2006)
Chavis appeals his convictions of 11 counts of mail fraud and conspiracy.
HELD: (1) Chavis claims the district court violated his right to counsel by permitting Mr. Cantrell to withdraw. In the brief, Chavis argued he had a right to counsel, but at oral argument, Chavis’ attorney conceded that Chavis had no such right. There is no constitutional right to a hybrid form of representation. Counsel argued that Chavis had relinquished his right to proceed pro se and had retained Mr. Cantrell as lead counsel. The Circuit held that the bounds of authority for co-counsel and a pro se defendant were not exceeded in this case. Chavis was undoubtedly presenting his case in his own way, maintained ultimate control, and proceeded pro se throughout.
(2) The sufficiency of the evidence is a question of law reviewed de novo. To establish guilt under the mail fraud statute, the government had to prove a scheme or artifice to defraud or to obtain money by means of false and fraudulent pretenses, intent to defraud, and use of the United States mail to facilitate the scheme. Chavis’ argument as to insufficient evidence of intent is frivolous.
(3) As to the conspiracy charge, the government must prove an agreement with another person to violate the law, knowledge of the essential objective of the conspiracy, knowing and voluntary involvement, and interdependence. Two co-defendants pled guilty to mail fraud before testifying, clearly showing they knew they were distributing false promises.
(4) A defendant is not guilty of mail fraud if he in good faith believed the plan would succeed, that promises made would be kept and representations carried out. Chavis requested, but did not tender, a good-faith instruction. The district court denied the request, ruling there was insufficient evidence to support the instruction. A defendant in a mail fraud case is entitled to a good-faith instruction if he requests it and there is sufficient evidence to support the theory. The Circuit noted that it is the only Circuit to so hold, and that other Circuits hold that a district court is not required to give a separate good-faith defense instruction in a fraud case because a finding of the intent to defraud, an element of the crime, necessarily implies there was no good-faith. This Court was bound by its prior en banc decision. Chavis was not entitled to a good-faith instruction.
(5) Chavis’ trial was conducted before Booker but after Blakely. Blakely had cast doubt on whether a judge could find the facts necessary for enhancements under the guidelines. After the jury returned its verdict, the district court recessed to finalize jury instructions for fact-findings related to sentencing. At the end of the recess, Chavis stated he waived any involvement by the jury in the sentencing proceeding and did not object to the findings in the PSR. On appeal, he nonetheless argued that the guidelines were applied mandatorily. He did not raise this argument in the district court, so review is for plain error. The fourth prong of plain-error review is not satisfied where there is no record evidence to support a lower sentence.
United States v. Branson, 06-3038 (August 29, 2006)
Branson pled guilty to child possession of child pornography. He argues that his sentence was no reasonable because a sex-offender evaluation showed he is not a threat to the public safety, he had accepted responsibility for the crime, expert testimony proffered by the government was not persuasive because those experts had not evaluated him, the district court did not consider the sentencing factors under § 3553(a), and he received a much higher sentence than he would have received had he been prosecuted by the state. The Circuit held that Branson had not rebutted the presumption of reasonableness. The district court considered the factors under § 3553(a). A sentence is not unreasonable simply because it is harsher than a state-court sentence would have been. Adjusting a federal sentence to conform with a state sentence would create disparities within the federal system, something that § 3553(a)(6) is designed to discourage. The sole concern under that statutory subsection is the sentencing disparities among federal defendants.