Montez v. McKinna, 99-1347 (April 3, 2000)

Montez is in a private correctional facility in Colorado. He filed a habeas petition pursuant to 28 U.S.C. § 2241. He claimed his transfers from a Wyoming state operated prison to a private Texas correctional facility, and from there to a private Colorado correctional facility, violated various federal and state laws and federal constitutional provisions. The district court treated the petition as filed under § 2254, and determined that Montez had failed to exhaust state remedies and therefore dismissed.

HELD: 

(1) Although the typical route for challenging custody pursuant to a state court judgment is § 2254, a state prisoner may also bring a habeas action under § 2241. It is difficult to tell whether Montez challenges the validity of his conviction, so as to be raised under § 2254, or is an attack on the execution of his sentence, which should be filed under § 2241. If construed as a § 2254 petition, the action should have been filed where Montez was convicted and sentenced, but as a § 2241 petition, it was properly filed in the District of Colorado. The court treated the petition as one arising under § 2241.

(2) Claims of state law violations are not cognizable in a federal habeas action.

(3) Neither federal constitutional provisions nor any federal law prohibits the transfer of an inmate from one state to another.

(4) A habeas petitioner is generally required to exhaust state remedies, whether his action is brought under § 2241 or § 2254. The law is unclear whether a federal court may deny, on the merits, an unexhausted § 2241 petition, as § 2254(b)(2) expressly permits. The court found it would not be inconsistent to apply the policy of § 2254 to deny the claim on the merits.

(5) Under the AEDPA, a certificate of appealability (COA) is needed to appeal the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, or the final order in a § 2255 proceeding. A federal prisoner proceeding under § 2241 does not need a certificate of appealability. It is not clear the same is true for a state prisoner proceeding under § 2241. The circuit held a state prisoner must obtain a COA to appeal the denial of a habeas petition, whether the petition is filed pursuant to § 2254 or § 2241. The more onerous burden on state prisoners is consistent with notions of comity and deference to state adjudicatory procedures. Montez is entitled to a COA only upon making a substantial showing of the denial of a constitutional right. He cannot satisfy this burden. Therefore the court denied the COA and dismissed the appeal.

Three Strikes (18 U.S.C. § 3559) - Life Imprisonment, Robbery, Non-Qualifying Felony, Burden of Proof

United States v. Smith, 98-1188 (April 4, 2000); (Jeffery R. Edelman, Denver, Colorado)

Smith appeals his sentence of life imprisonment and the constitutionality of 18 U.S.C. § 3559(c), the federal three strikes statute.

HELD: 

(1) We review de novo a sentence enhancement pursuant to § 3559(c). That statute states a district court must sentence a defendant to life imprisonment, if he is convicted in federal court of a serious violent felony, and has been convicted on separate prior occasions of two or more serious violent felonies in federal or state court. Robbery, as defined in 18 U.S.C. § 2113, generally qualifies as a serious violent felony. However, § 3559 treats robbery as a non-qualifying felony, if the defendant establishes by clear and convincing evidence that no firearm or other dangerous weapon was used in the offense, and no threat of use of a firearm or other dangerous weapon was involved.

(2) Smith argues the government should be required to establish his prior convictions beyond a reasonable doubt. This is foreclosed by the circuit's decision in O'Berle.

(3) Section 3559(c) is a sentencing enhancement statute. Therefore, due process requires only that a court sentence the defendant in proceedings that are fundamentally fair. The legislative branch may allocate the burden of proving an affirmative defense to the defendant. The burden shifting scheme does not violate due process.

(4) The circuit did not reach the challenge to the weight of § 3559(c)(3)(A)'s proof burden. Under any standard, he could not establish exemptions from the three strikes enhancement. The government introduced evidence of three prior convictions. The defendant produced evidence which could call into question only one of these prior convictions, leaving the defendant still with three strikes.

Counterfeit (18 U.S.C. § 513) - Review of Statute, Effect on Interstate Commerce, Jurisdictional Element;  Indictment - Sufficiency

United States v. Kovach, 99-4112 (April 4, 2000)

Kovach was convicted of uttering and possessing counterfeit securities in violation of 18 U.S.C. § 513(a).

HELD: 

(1) The constitutionality of a statute is reviewed de novo. The statute requires proof of at least one of the three interstate jurisdictional nexuses identified in Lopez. Section 513(a) falls within the third Lopez category - those activities that substantially affect interstate commerce. The government must demonstrate that a defendant uttered or possessed a counterfeit or forged security which operates in, or the activities of which affect, interstate or foreign commerce. This statute contains a jurisdictional element which insures, through a case by case inquiry, that the crime involves the forging or counterfeiting of securities of an economic enterprise engaged in interstate commerce. The amount at issue in this case, $6,400, was significant, but the court said its conclusion would be the same even if that amount were considered de minimus. Considered in the aggregate, this conduct would have a substantial effect on interstate commerce.

(2) Questions regarding the sufficiency of an indictment are reviewed de novo. An indictment must contain all the essential elements of the charged offense. Section 513 defines the term "organization" more narrowly than the common definition, and constitutes a legal term of art which expressly incorporates the interstate element. Therefore, its use is sufficiently definite in the indictment.

(3) Absent extraordinary circumstances, this court will not consider an issue on appeal not decided first in the district court. Assuming appellate review is justified, it is clear under stipulated facts that Kovach's conduct satisfied the necessary interstate nexus.

Jury - Extraneous Information, Hearing, Judge's Contact, Remand;  Search - Incident to Lawful Arrest, Containers, Citation, Private Citizen;  Motion to Suppress - Evidence at Pre-Trial Hearing, Evidence at Trial, Need to Object at Trial;  Admission of Evidence - Foundation, Chain of Custody;  Instructions - Viewed as a Whole, Defense Theory, Lesser Included;  Amount of Drugs - No Change in Offense Level;  Firearm Enhancement (§2D1.1(b)) - Physical Proximity, Possession by Co-Conspirator;  Use of Minor in Offense (§3B1.4)

United States v. Humphrey and Regan, 98-8001, 98-8002 (April 4, 2000)

Humphrey and Regan were convicted of conspiracy and possession of methamphetamine with intent to distribute. About three months after the trial, defendants asked the judge to investigate an allegation of juror misconduct. One juror said another juror brought up something about Humphrey's reputation during deliberations. The judge held two hearings to investigate the allegations. From the evidence, the judge could figure out which juror had said this. The foreperson testified no statement was made by a juror concerning Humphrey's reputation.

HELD: 

(1) How and whether to have a hearing on a claim that jurors were improperly exposed to extraneous information is within the trial court's discretion. The court must investigate sufficiently to assure itself the constitutional rights of the defendant have not been violated. Although the court took this matter seriously, the circuit was convinced it had to remand for further proceedings. The judge abused his discretion in limiting the investigation and the scope of his findings.

(2) The judge made the parties aware that he had contact with the foreperson, but it was not until a motion for reconsideration that this formed a basis of a request for new trial. This issue is waived.

(3) Review of the district court's ultimate ruling on a motion to suppress is de novo. Under New York v. Belton, officers may search any containers, open or closed, in the passenger compartment of a vehicle incident to a lawful arrest of an occupant. In Knowles, the Supreme Court held the Fourth Amendment does not permit a search incident to citation. Bolton created a bright line rule and therefore this search is valid.

(4) The Fourth Amendment does not apply to searches by private parties absent governmental involvement. The district court's determination whether a private citizen was acting as an agent for the government is a fact finding reviewed only for clear error.

(5) The legality of a warrantless police search, following a private search, is determined by the scope of the initial private search. Unless a party asks the district court to reconsider its decision at trial, the circuit would not consider trial evidence which undermines a district court decision rendered at a pre-trial suppression hearing. Here, the trial testimony arguably supported suppression of the evidence on a legal basis different from that argued in the motion to suppress, and the defendant must object at trial and inform the trial court of the new legal basis for excluding the evidence.

(6) If a proffered exhibit is unique, readily identifiable and relatively resistant to change, the foundation need only consist of testimony that the evidence is what its proponent claimed. The chain of custody need not be perfect. Deficiencies in the chain of custody go to the weight of the evidence.

(7) The circuit reviews de novo whether the instructions as a whole adequately apprise the jury of the issues and governing law. The district court did not err in refusing to give the proffered instruction. The instructions as given adequately state the applicable law, and provided the necessary basis for consideration of the defense theory.

(8) A defendant must properly request a lesser included offense instruction, the elements of the lesser must be a subset of the charged offense, the element required for the greater charged offense that is not an element of the lesser offense must be in dispute, and the evidence must be such that the jury could rationally acquit the defendant on the greater and convict on the lesser. Review is de novo. Refusal to give defendant's requested instruction on simple possession was legal error and an abuse of discretion under this principle. A defendant is entitled to a lesser included offense instruction if there is any evidence fairly tending to bear upon the lesser included offense. The jury could have decided to hold Regan responsible merely for a possession violation in view of the small amount of methamphetamine in her purse. The evidence implicated Humphrey more strongly than Regan.

(9) The government must prove drug quantities by a preponderance at sentencing. A challenge to the drug amount calculation is an issue of fact reviewed for clear error. The government relied on the trial evidence and an officer testified. Any error in the estimate would be harmless unless the defendants could challenge enough evidence to reduce the total to less than three kilograms so that level 34 would not apply. Even assuming testimony was insufficient to support inclusion of six pounds of methamphetamine, this is harmless because the evidence was clearly sufficient to support an estimate of at least one pound for purposes of the offense level.

(10) The adjustment under §2D1.1(b)(1), possession of a dangerous weapon, applies if the weapon were present, unless it is clearly improbable that the weapon was connected with the offense. The government has the initial burden of proving proximity to the offense. The defendant can avoid the enhancement if he proves it is clearly improbable that the weapon was connected to the offense. Humphrey emphasized the requirement of physical proximity, and the fact that his arrest occurred miles from the garage where the loaded pistol was found. The district court's findings were not clearly erroneous. Regan emphasizes the lack of direct connection between her and the weapon. But the question is whether Humphrey's possession of the weapon in connection with the conspiracy was reasonably foreseeable to Regan.

(11) Humphrey's offense level was increased for use of a minor to commit the offense under §3B1.4. The court reviews the district court's findings of fact for clear error, and gives due deference to the district court's application of the guidelines to the facts. Although Humphrey used methamphetamine with Judith, this proof is insufficient to support a finding that he used Judith in connection with his drug trafficking activities.

Motion to Suppress - Standing, Review Standard, Search, Detention

HELD: 

(1) Ramirez lacked standing to challenge the constitutionality of the trunk search, because he was a non-owner driver and the actual owner of the vehicle was present.

(2) The court accepts the district court's fact findings on a motion to suppress, unless those findings are clearly erroneous. The court reviews de novo the ultimate determination of reasonableness. Although a defendant may lack standing to challenge the search, he may contest the lawfulness of his own detention, and seek to suppress evidence found in the vehicle as fruit of the illegal detention. A defendant must establish the detention violated his Fourth Amendment rights and must demonstrate a factual nexus between the illegality and the challenged evidence. Ramirez failed to prove that factual nexus.

Motion to Suppress - Review Standard;  Search - Smell of Burnt Marijuana, Passenger Compartment, Trunk, Probable Cause, Innocent Facts, Scope of Consent;  Pat-Down - Reasonable Suspicion

United States v. Wald, 99-4044 (April 10, 2000)

The question is whether probable cause to search a car's trunk exists when a law enforcement officer smells burnt methamphetamine in the vehicle, but the officer finds only evidence which is as consistent with innocent activity as with suspicion of drug usage. The circuit reversed the district court's denial of Wald's suppression motion.

HELD: 

(1) The court accepts the district court's findings unless clearly erroneous on a motion to suppress. The determination of reasonableness is reviewed de novo.

(2) The smell of burnt marijuana emanating from a vehicle provides probable cause to search the passenger compartment. If that search fails to uncover corroborating evidence of contraband, there is not probable cause to search the trunk. This rule is premised on the common sense notion that the smell of burnt marijuana is indicative of drug use. That does not take place in the trunk of a vehicle.

(3) A law enforcement officer may conduct a warrantless pat down search of a person if the officer harbors an articulable and reasonable suspicion that the person is presently armed and dangerous. A pat down can not be justified because the officer is looking for drugs. Therefore, the court could not consider the pipes uncovered during the pat down as contributing to probable cause to search the trunk.

(4) In undertaking the probable cause determination, some facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous. For example, the presence of open maps in the passenger compartment is entirely consistent with innocent travel. The presence of only two pieces of luggage for two people on a weekend trip to Las Vegas is not suspicious. Nervousness is of limited significance.

(5) Whether a search remains within the boundaries of the scope of consent given is a question of fact to be determined from the totality of the circumstances. Wald's consent did not include the search of the trunk. Wald's initial consent was not general, but rather was limited to a quick look inside the vehicle.

Haugh v. Booker, 99-3333 (April 12, 2000)

Haugh plead guilty to charges including § 924(c). He filed a pro se habeas petition pursuant to 28 U.S.C. § 2241, challenging his firearms conviction under the Bailey case. The district court dismissed the case stating that the proper remedy was § 2255.

HELD: 

(1) A § 2241 petition attacks execution of a sentence rather than its validity, and must be filed in the district where the prisoner is confined. A § 2255 petition, which attacks the legality of detention, must be filed in the district court that imposed the sentence. Haugh never filed a § 2255 motion with the Massachusetts federal court that sentenced him. Haugh was convicted in 1995. The Bailey decision was handed down in December 1995. Bailey vacated a conviction on direct appeal, and did not address whether the issue could be raised on collateral review. In May 1998, the Supreme Court resolved the split in the circuits and held that a defendant may raise a Bailey claim on collateral review. See Bousley.

(2) The statute of limitations in the AEDPA for a § 2255 motion runs from the latest of the date in which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Not until Bousley did the Supreme Court make the Bailey decision retroactively applicable to cases on collateral appeal. Therefore the statute of limitations did not begin to run until May 18, 1998. Therefore, the circuit agreed that § 2255 is the appropriate remedy, but disagreed that the action would be time barred.

(3) Because a § 2255 motion must be brought in the district in which the defendant was sentenced, the Kansas federal district court lacked jurisdiction. Jurisdictional defects that arise when a suit is filed in a wrong federal district court may be cured by transfer under 28 U.S.C. § 1631, which requires a court to transfer such an action if the transfer is in the interests of justice. Haugh would be time- barred if the court upheld dismissal and he had to file a new proceeding, a factor which the courts have recognized as militating in favor of transferring in the interests of justice. However, the court may take a peak at the merits to avoid raising false hopes and wasting judicial resources. Haugh's claim for relief is without merit, where he is only entitled to relief by showing he is actually innocent. Haugh could be found guilty of aiding and abetting the use or carrying of a firearm.

Motion to Suppress - Review Standard;  Wiretap - Recording Conversation in Patrol Car

United States v. Turner, 99-8057 (April 18, 2000); (James A. Barrett, FPD, Cheyenne, Wyoming)

Turner entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court had denied his motion to suppress his conversation with a companion recorded in the back seat of a highway patrol car.  Turner was stopped by Wyoming Highway Patrol due to a severe crack in the windshield and front end damage affecting a headlight. Turner produced a drivers license and registration, but no proof of insurance. The patrolman asked Turner to accompany him to the patrol car. Then he returned Turner's documents and issued a citation for lack of proof of insurance. Turner gave consent to search the car. The patrolman asked Turner to sit in the back of the patrol car "for safety reasons." The patrolman also asked the passenger to join Turner. The patrolman had activated a tape recorder to record the conversation between Turner and Grooms, in which they made inculpatory statements regarding guns in the car.

HELD: 

(1) When reviewing an order granting or denying a motion to suppress, the court accepts fact findings unless clearly erroneous, and views the evidence in the light most favorable to the government. The circuit rejected the argument that the recording of Turner's conversation in the patrol car violated Title 3 of the Omnibus Crime Control and Safe Streets Act of 1968. The court held that neither Title 3 nor the Fourth Amendment recognizes an expectation that communications in a patrol car are not subject to interception. Whether an individual is in custody does not affect an expectation of privacy in a police car. In addition, the patrol car bristled with electronics apparent to the occupants. Although the patrolman indicated sitting in the car was for Turner's safety, this was done in the course of a legitimate law enforcement traffic stop. Under the facts of this case, the possible feeling of safety did not create an exception to the rule.

Guideline Interpretation - Review Standard;  Supervised Release - Conditions, Factors to Consider, Reasons on the Record

United States v. Zanghi, 99-1526 (April 18, 2000);  (Susan L. Foreman, Boulder, Colorado and John M. Richilano, Denver, Colorado)

Zanghi plead guilty to conspiracy to defraud the United States in violation of 18 U.S.C. § 371. The court granted the government's motion for downward departure, and sentenced Zanghi to six months imprisonment, followed by three years of supervised release, the first six months of which were to be in home detention.

HELD: 

(1) The circuit reviews the district court's application of the guidelines for errors of law, giving due deference to its application of the guidelines to the facts. Conditions of supervised release are reviewed for abuse of discretion. 18 U.S.C. § 3583(c) sets forth several factors intended to guide the judge's decision about whether to impose supervised release and the length and conditions of supervised release, and directs the court to consider the factors set forth in § 3553. Section 3583(d) deals with special conditions of supervised release not enumerated in the statute. The district court's obligation to explain its sentencing decisions on the record stems from 18 U.S.C. § 3553(c). While not requiring specific findings on each enumerated factor, a sentencing court's failure to give any reason for its decision falls short of its statutory obligation. In this case, the court did not explain why it imposed a three year term of supervised release, and why it imposed the conditions it did.

Identification - Suggestiveness, Reliability;  Three Strikes - No Time Limit For Predicate Convictions

United States v. Bredy, 99-6119 (April 18, 2000);  (Theresa Brown, FPD, Oklahoma City, Oklahoma)

Bredy was convicted and sentenced for four armed robberies and firearms violations. He was sentenced under the three strikes statute.

HELD: 

(1) The ultimate conclusion of the constitutionality of identification procedures is a mixed question of law and fact subject to de novo review, and the district court's fact findings are reviewed for clear error. In evaluating the constitutionality of a pretrial identification procedure, the court first considers whether the procedure was unnecessarily suggestive. If the court finds that it was, then the court examines, under the totality of the circumstances, whether the identification was reliable even though the confrontation procedure was suggestive. A pretrial identification procedure does not violate due process, unless it is so unnecessarily suggestive that it is conducive to irreparable mistaken identification. The circuit doubted that the show up in this case was unnecessarily suggestive, but assuming it was, the circuit proceeded to the linchpin question of reliability of the identification. Several witnesses, employees and customers of the Homeland Grocery Store, saw the robber get into his car, and police pulled over the car and arrested the defendant. The police drove him back to the Homeland Grocery Store where four of the five witnesses positively identified him as the robber, and the other witness indicated she was fairly certain. Prior to the identification procedure, all the witnesses gave the police virtually identical descriptions of the robber.

(2) When evaluating the reliability of an identification, courts consider the opportunity of the witnesses to view the criminal at the time of the crime, the witnesses' degree of attention, accuracy of the prior descriptions, level of certainty, and length of time between the crime and confrontation. The witnesses had ample opportunity to view the robber. The witnesses' attention was focused primarily on the robber, the descriptions were virtually identical, the witnesses were unequivocal in identifying the defendant as the robber, and the witnesses identified him 30 minutes after the robbery.

(3) There is no time limit on convictions to be used as strikes under the three strike statutes, 18 U.S.C. § 3559(c). The circuit reviews de novo the decision to impose a sentence under the three strike statute. Several circuit courts have rejected various challenges to the three strikes statute. The three strikes statute's lack of time limitations on predicate convictions does not violate substantive due process.

Sufficient Evidence - Review Standard;  Sentencing - Rule 32, Specific Findings, Calculation of Amount of Money Laundered;  Failure to Object - Plain Error Review;  Acceptance of Responsibility

United States v. Lorson, 98-5151 (April 13, 2000);  (Vicki Mandell-King, FPD, Denver, Colorado)

(Order and Judgment)

HELD: 

(1) In reviewing the sufficiency of the evidence to support a jury verdict, the court reviews the record de novo and asks whether, taking the evidence in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt. Conspiracy, mail fraud, wire fraud and money laundering all require intent as an element of the offense. The evidence was sufficient to show that intent.

(2) Rule 32 states that for any matter controverted at a sentencing hearing, the court must make either a finding or a determination that no finding is necessary because the controverted matter will not be taken into account. Lorson failed to raise the Rule 32 objection below, so review is for plain error. The failure to make specific findings under Rule 32 does not rise to that level. Lorson's other argument regarding the error in calculating the laundered funds was not raised below and is reviewed for plain error. The record does not indicate the district court committed plain error in finding the amount of laundered funds.

(3) The court reviews the district court's legal interpretation of the guidelines de novo and fact findings for clear error. The record reflects the district court did not rule, as a matter of law, that Lorson was ineligible for the acceptance of responsibility reduction simply because he went to trial. The district court merely noted it was difficult, but not impossible, to go to trial and receive that reduction. The court could not conclude the district court ruled, as a matter of law, that this reduction was not available. A district court's decision regarding whether a defendant has accepted responsibility is a fact determination reviewed for clear error.

Sentencing - Concurrent or Consecutive, Prior Conviction Taken Into Account (§5G1.3)

Contreras plead guilty to bank robbery in violation of 18 U.S.C. § 2113(a) and received a sentence of 151 months.

HELD: 

(1) A district court has discretion to sentence a defendant to consecutive or concurrent sentences. Review of the district court's interpretation of the guidelines is de novo. Subsection (b)'s central aim is to insure that no defendant is punished twice for the same offense. It does not apply in this case, because the district court did not fully take the May 1998 conviction into account. The district court used two other convictions to establish career offender status. Therefore §5G1.3(c) applies, and grants the district court discretion to impose either a concurrent or consecutive sentence upon a defendant subject to an undischarged term of imprisonment.

Guideline - Interplay With Statute, Life Imprisonment and § 924(c);  Rule of Lenity - Ambiguity

United States v. Bazille, 99-5170 (April 20, 2000);  (Stephen J. Knorr, FPD, Tulsa, Oklahoma)

Bazille was convicted of three counts of using a firearm during a crime of violence (§ 924(c)), and two counts of Hobbs Act robbery (18 U.S.C. § 1951). He received a life sentence plus 497 months. On appeal he challenges the life sentence on count four, imposed for a second or subsequent conviction of § 924(c).

HELD: 

(1) The current version of § 924(c) provides that a person convicted of a second § 924(c) violation shall be sentenced to a term of not less than 25 years. This language became part of the statute as a result of the November 1998 amendments. The underlying robberies took place in December 1998. Section 2K2.4(a)(1998) states that for a § 924(c) conviction, the term of imprisonment is that required by statute. The guideline was drafted prior to the changes in the statute. A sentencing guideline does not become inapplicable simply because the underlying statutory punishment was changed. To the extent the amendment to § 924(c) creates an ambiguity when read in connection with the guideline, under the rule of lenity, the court interprets the ambiguous statute in favor of the defendant. The district court was clearly not required to sentence Bazille to life imprisonment. Therefore the case is remanded.

Competency to Stand Trial - Test, Fact Question;Self-Representation - Unequivocal, Timely, Purpose of Delay, Waiver of Counsel;Three Strikes - Life Imprisonment, Robbery, Non-Qualifying, Categorical Approach, Prove Specific Facts, Burden of Proof Standard

United States v. Mackovich, 99-2006, 99-2179 (April 25, 2000);  (Vicki Mandell-King, FPD, Denver, Colorado)

Mackovich was convicted of armed bank robbery, and using and carrying a firearm during a crime of violence. He was sentenced under the three strikes law. On appeal, he raised incompetency to stand trial, denial of right to represent himself, and error as a matter of law in sentencing him to life imprisonment.

HELD: 

(1) It is well settled that trying an incompetent defendant violates due process. The test for competency is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Competency to stand trial is a factual determination that can be satisfied only if it is clearly erroneous. The district court may rely on a number of factors, including medical opinions and the court's observation of the defendant's comportment. The district court's finding that Mackovich was competent was not clearly erroneous. The presence of some degree of mental disorder does not necessarily mean a defendant is incompetent to stand trial. Even when a defendant is competent at the beginning of a trial, the court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.

(2) A criminal defendant has the constitutional and statutory right to self-representation. He must clearly and unequivocally assert his intentions. This must be done in a timely fashion, and he must knowingly and intelligently relinquish the benefits of representation by counsel. To insure that the waiver is knowing and intelligent, the trial judge should conduct a thorough and comprehensive formal inquiry. Review of historical facts in connection with the request to proceed pro se is for clear error, but the court reviews de novo whether a constitutional violation has occurred. In ambiguious situations created by a defendant's vacillation or manipulation, the court gives primacy to the right to counsel. The circuit found that the request was merely for delay and an abuse of judicial process.

(3) The three strikes statute, § 3559(c), requires life imprisonment when a defendant is convicted of a serious violent felony, if he has previously been convicted of two or more serious violent felonies. Robbery is generally considered a serious violent felony. However, not all serious violent felonies count as strikes. The statute provides that a crime is non-qualifying, if the defendant establishes by clear and convincing evidence that no firearm or other dangerous weapon was used in the offense, and no threat of use of a firearm or other dangerous weapon was involved. The Taylor categorical approach does not apply. The language of the three strikes statute, as distinguished from the ACCA, unmistakably requires courts to look at the specific facts underlying the prior offense.

(4) Mackovich also urged that the requirement in § 3559 of proof by clear and convincing evidence violates due process. The court did not address the due process challenge, finding that Mackovich did not even muster a preponderance of the evidence that he did not use the weapon. In contrast, through offense reports and other documents, the government established Mackovich did use a dangerous weapon.

Downward Departure - Substantial Assistance, Government Motions Necessary

United States v. Maldanado-Acosta, 99-2136 (April 25, 2000)

The circuit held that under §5K2.0, a sentencing court does not have authority to grant a downward departure for substantial assistance without the required motion from the government pursuant to §5K1.1. In holding thus, the circuit joined other circuits.

Motion to Suppress - Review Standard;  Inculpatory Statement - Miranda, Custody, Seizure at Fixed Border Check

United States v. Hudson and Riness, 99-2165 (April 25, 2000); (Barbara A. Mandel, FPD, Las Cruces, New Mexico, Richard B. McClarkin, Albuquerque, New Mexico)

This is an appeal by the United States from the district court's order suppressing statements to border patrol agents. The circuit reversed, concluding that Hudson and Riness were not in custody at the time they made the statements. In order to satisfy Miranda, the suspect must be in custody and the questioning must meet the legal definition of interrogation.

HELD: 

(1) In reviewing a district court's ruling on a motion to suppress, the court accepts fact findings unless clearly erroneous, and views the evidence in the light most favorable to the prevailing party. Whether Hudson and Riness were in custody is a question of law reviewed de novo.

(2) Police officers are not required to administer Miranda warnings to everyone. Instead, Miranda only applies when an individual is subject to custodial interrogation. A stop at a fixed border check point constitutes a Fourth Amendment seizure, because a reasonable person would not believe she is free to leave. A seizure does not necessarily render a person in custody for purposes of Miranda. An unrevealed subjective intent of law enforcement officers is irrelevant to the question of custody. All of the questions concerned vehicle ownership, cargo, destination, and travel plans, and were reasonably related to the border patrol agents' duty to prevent smuggling of contraband.

Firearm Enhancement - Double Counting, Enhancements Under §2B3.1, Physical Restraint With Gun

United States v. Pearson, 99-5143 (April 28, 2000)

Pearson was convicted of armed bank robbery, and using and carrying a firearm in connection with that. At sentencing, the district court applied a two-level enhancement under §2B3.1(b)(4)(B), for physically restraining bank personnel with a gun during commission of a bank robbery. He claimed this is double counting because of the sentence on the § 924(c) conviction.

HELD: 

(1) The court reviews application of the guidelines de novo. Other circuits have held that double counting does not occur in this situation, and the Tenth Circuit agreed. The Commission intended this guideline section to apply where a victim is restrained during a robbery, whether or not the restraint involved a gun. The conduct of pointing a gun directly on someone to physically restrain him is even more egregious than otherwise using, brandishing, displaying or possessing a gun during the course of a robbery. In a similar context, the circuit had previously held in United States v. Rucker, that no impermissible double counting occurs because enhancements for use of a firearm under §2B3.1(b)(2)(B), and for physical restraint with a gun during a robbery under §2B3.1(b)(4)(B), involved two distinct acts and punished two distinct harms.

Aliens (8 U.S.C. § 1326) - Collateral Attack or Deportation Proceeding, Tape Unavailable, Burden of Proof, Right to Appeal

United States v. Arevalo-Tavares, 99-1415 (April 26, 2000); (Warren R. Williamson, FPD, Denver, Colorado)

Defendant was convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326. On appeal, he claims the district court erred in denying his motion to dismiss the indictment on the ground that his prior deportation proceedings violated due process.

HELD: 

(1) A collateral attack on the constitutional validity of deportation proceedings in a § 1326 prosecution presents a mixed question of law and fact that is reviewed de novo. A defendant must show, in a collateral challenge to a prior deportation hearing, that the deportation hearing was fundamentally unfair and deprived him of a direct appeal. Even where a deportation hearing tape is unavailable, the burden of proof is on the defendant based on the presumption of regularity that attaches to a final deportation order. Defendant's motion for extension of time indicates that he was advised of his right to appeal and the time period in which to do so. The immigration judge's order, denying the motion for enlargement of time, specifically states that the defendant was advised of his right to appeal and reserved that right. The circuit concluded that the defendant failed to meet his burden of proving he was denied his right to appeal the 1991 deportation order. The record indicates he waived his right to appeal by failing to file a timely appeal, and he made this waiver after receiving sufficient notice of his right.