Russ' Test Blog Number Two

District court reasonably denied competency hearing where defendant’s behavior was merely odd and disruptive

2009-05-28T10:01:00.001-04:00

COMPETENCE
United States v. Landers,
No. 08-6105, ___ F.3d ___ (10th Cir. May 5, 2009)(W.D. Oklahoma).

Appeal of convictions for conspiring to impede federal officials in performance of their duties and for mailing threatening communications in violation of 18 U.S.C. §§ 372 and 876.

HELD: District court did not err by not ordering competency hearing. District court reasonably determined there was insufficient cause. While defendant’s courtroom behavior was disruptive, it was not hysterical or out of control. Defendant’s outbursts were limited to scripted presentations calculated to disrupt court proceedings and register continued protest against federal government. Nevertheless, while defendant advanced his anti-government claims by disruptive behavior and unusual pro se filings, nothing before the court suggested an inability to consult with his lawyer with a reasonable degree of rational understanding or suggested an inability to form a rational understanding of the proceedings against him.

Read the opinion here.

Due process is not violated by denial of second competency hearing where defendant’s trial behavior is insufficient to show competence compromised

2009-05-28T09:19:00.000-04:00

DUE PROCESS/COMPETENCE
United States v. Cornejo-Sandoval,
No. 08-2070, ___ F.3d ___ (10th Cir. May 5, 2009)(New Mexico).

Appeal of convictions for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

HELD: District court did not violate defendant’s due process rights, and therefore, abuse its discretion, by denying him a second competency hearing. A reasonable judge situated in the same position as this judge would find insufficient cause to believe defendant’s competence was compromised. Defendant’s behavior, as observed by the judge during trial, was consistent with a pretrial psychological evaluation and his attorneys’ pretrial experience (i.e., defendant was a difficult client, highly suspicious of his lawyers).

Read the opinion here.

Foreclosure price of fraudulently financed property may be used to determine victim’s loss for restitution purposes

2009-05-27T09:02:00.001-04:00

RESTITUTION
United States v. James,
No. 08-1292, ___ F.3d ___ (May 5, 2009)(Colorado)

Appeal of restitution order entered in conjunction with conviction for wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 2 and 1343.

HELD: Under Mandatory Victim Restitution Act at 18 U.S.C. § 3663(A), methods other than fair market price may be used to calculate property value for determining amount of restitution (e.g., foreclosure price or replacement price). In this instance, foreclosure price most closely reflected actual loss to victim. Therefore, district court’s use of foreclosure price to determine victim’s loss was neither error, nor unreasonable.

Read the opinion here.

Sentencing guidelines limitation on district court authority to reduce sentence is not result of unlawful delegation of congressional power

2009-05-27T08:31:00.001-04:00

SENTENCING
United States v. Dryden,
No. 08-3310, ___ F.3d ___ (Apr. 30, 2009)(Kansas).

Defendant’s appeal of district court’s denial of motion to reduce sentence brought under 18 U.S.C. § 3582(c)(2).

HELD: USSG § 1B1.10(a)(2)’s limitation on a district court’s authority to reduce a defendant’s sentence is not an unlawful delegation of congressional power to the Sentencing Commission to constrain the resentencing jurisdiction of the district courts.

Read the opinion here.

Jury instruction requiring showing of effect on interstate commerce is inappropriate when jurisdictional element is interstate travel of firearm

2009-05-22T10:41:00.001-04:00

JURY INSTRUCTION
United States v. Urbano,
No. 08-3147, ___ F.3d ___ (10th Cir. Apr. 29, 2009)(Kansas).

Appeal of conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

HELD: Title 18 U.S.C. § 922(g)(1) does not require an individual showing of an effect on interstate commerce. All that is necessary is proof the firearm has traveled across state lines in the past. Consequently, in felon-in-possession firearms cases brought under § 922(g)(1), when government’s only evidence on jurisdictional element is interstate travel of weapon, district courts should not give Tenth Circuit Pattern Criminal Jury Instruction 1.39, which requires a showing of some effect on interstate commerce.

Read the opinion here.

Good faith exception to exclusionary rule may be applied where agent’s reliance on defective search warrant to search computer was reasonable

2009-05-22T09:01:00.000-04:00

SEARCH & SEIZURE
United States v. Otero,
No. 08-2154, ___ F.3d ___ (10th Cir. Apr. 28, 2009)(New Mexico).

Government appeal of district court order suppressing evidence.

HELD: Where search warrant for search of computer lacked particularity and was therefore invalid, officer’s reliance on warrant was objectively reasonable in light of facts that she first sought approval of Assistant U.S. Attorney, warrant was approved by magistrate, and agent’s actions in conducting search showed that she limited scope of search to specific evidence related to suspected crimes. Because officer’s reliance on warrant was reasonable, good faith exception to exclusionary rule applied and district court erred by applying exclusionary rule to suppress evidence.

Read the opinion here.

Unobjected procedural sentencing error is reviewed only for plain error

2009-05-22T08:18:00.000-04:00

SENTENCING
United States v. Uscanga-Mora,
No. 07-4248, ___ F.3d ___ (10th Cir. Apr. 24, 2009)(Utah).

Appeal of two-level sentence enhancement under USSG § 3B1.1(c) for being leader-organizer of criminal activity.

HELD: If defendant does not object to sentence, but has been afforded an opportunity to do so, and if objection would not be futile, unobjected procedural sentencing error is reviewed only for plain error. Defendant’s substantive objection that there was insufficient evidence to support sentence enhancement for being leader-organizer did not specifically alert district court that its statement of reasons for imposing the enhancement was procedurally inadequate. Accordingly, defendant’s claim that judge’s statement of reasons was inadequate is reviewed for plain error.

Read the opinion here.

Magistrate may rely on opinion of officer as to location of contraband or other evidence when making probable cause determination for search warrant

2009-05-12T08:24:00.000-04:00

SEARCH & SEIZURE
United States v. Biglow,
No. 08-3155, ___ F.3d ___ (10th Cir. Apr. 20, 2009)(Kansas).

Government appeal of district court’s order suppressing evidence in prosecution for drug and firearms violations.

HELD: District court erred by suppressing evidence by wrongly concluding that government’s search warrant affidavit failed to establish probable cause necessary to search defendant’s home. To establish nexus between suspected criminal activity and place to be searched sufficient to provide probable cause for search warrant, officer-affiant seeking warrant need not draw explicit connection between suspect’s activities and his residence. That is, nexus between place to be searched and suspected criminal activity requires neither hard evidence nor an officer’s personal knowledge of illegal activity at place to be searched. Rather, sufficient nexus is established once affidavit for search warrant describes circumstances that would cause person of reasonable caution to believe that articles sought are at particular place. Accordingly, magistrate judge may rely on opinion of law enforcement officers as to where contraband or other evidence may be kept such as officer’s statement that certain evidence – in his professional experience is likely to be found in a defendant’s residence (e.g., an officer’s observation that, in his professional experience, drug dealers often keep evidence related to their unlawful activities at home).

Read the opinion here.

Magistrate may rely on opinion of officer as to location of contraband or other evidence when making probable cause determination for search warrant

2009-05-12T08:20:00.001-04:00

Federal sentence is not reduced if crime committed while on probation for state conviction, but probation period is shortened nunc pro tunc

2009-05-12T08:06:00.004-04:00

SENTENCING
United States v. Pech-Aboytes,
No. 08-4124, ___ F.3d ___ (10th Cir. Apr. 17, 2009)(Utah).

Appeal of sentence for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

HELD: District court properly concluded that defendant was ineligible for safety valve sentence reduction under 18 U.S.C. § 3553(f) and USSG § 5C1.2. If defendant commits federal offense while serving probation for state conviction, but obtains after-the-fact nunc pro tunc correction to sentence in state court in which probation period is terminated before commission of federal offense, defendant is nevertheless deemed to have committed federal offense while on probation for state crime and therefore does not qualify for safety valve sentencing relief if basis for nunc pro tunc shortening of state probation period is unrelated to innocence or error of law.

Read the opinion here.

Multiple overlapping sentence enhancements are proper for felonious possession of firearm if firearm was stolen during course of burglary

2009-05-12T08:03:00.000-04:00

SENTENCING
United States v. Morris,
No. 07-8099, ___ F.3d ___ (10th Cir. Apr. 14, 2009)(Wyoming).

Appeal of sentence enhancements imposed under USSG §§ 2K2.1(a)(4)(A) and 2K2.1(a)(b)(6) for being felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

HELD: In sentencing for conviction as felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), application of two-level sentence enhancement under USSG § 2K2.1(a)(4)(A), because firearm was stolen, and application of four-level enhancement for use or possession of firearm in connection with another felony offense (i.e., burglary in which rifle was stolen) under USSG § 2K2.1(a)(b)(6), was not impermissible double counting. Interpretive commentary to sentencing guidelines is binding on district courts, and relevant commentary applicable to guidelines used in this case specifically permit application of two-level enhancement for possession of stolen firearm and four-level enhancement for use or possession of firearm in connection with another felony offense (burglary).

Read the opinion here.

Possession of unregistered firearm in violation of National Firearms Act is not crime of violence for sentencing purposes under 18 U.S.C. § 924(c)(3)

2009-05-12T08:00:00.000-04:00

STATUTORY CONSTRUCTION
United States v. Serafin,
No. 07-8086, ___ F.3d ___ (10th Cir. Apr. 14, 2009)(Wyoming).

Appeal of sentence imposed under 18 U.S.C. § 924(c)(3)(B) for possessing unregistered short-barrel rifle in violation of National Firearms Act at 18 U.S.C. § 924(c)(1).

HELD: Possession of unregistered firearm is not crime of violence for sentencing purposes under 18 U.S.C. § 924(c)(3)(B). Section 924(c)(3)(B)’s scope is limited to active, violent crimes that pose substantial risk that force may be used during course of offense. Mere unlawful act of possession of unregistered firearm does not by its nature involve substantial risk that physical force will occur during course of committing offense.

Read the opinion here.

Witness testimony of assault victim lying on ground while bleeding from head was insufficient evidence for serious injury sentence enhancement

2009-05-12T07:56:00.001-04:00

SENTENCING
United States v. Egbert,
No. 07-4180, ___ F.3d ___ (10th Cir. Apr. 14, 2009)(Utah).

Appeal of sentence for conspiracy to interfere with civil rights and aiding and abetting the interference with federally protected activity stemming from racially motivated assault in violation of 18 U.S.C. §§ 2, 241, and 245(b)(2)(C).

HELD: District court erred by enhancing defendant’s base offense level by finding victim suffered serious bodily injury. Even though witnesses described victim being beaten to ground and left unmoving with bleeding from head, this evidence was insufficient to show "serious bodily injury," where "serious bodily injury," as opposed to mere "bodily injury" is defined as "protracted impairment of function of bodily member, organ, or mental faculty."

Read the opinion here.

Ohio conviction for third-degree burglary is violent felony for sentencing under Armed Career Criminal Act

2009-05-12T07:52:00.000-04:00

SENTENCING
United States v. Scoville,
No. 07-8094, ___ F.3d ___ (10th Cir. Apr. 8, 2009)(Wyoming).

Appeal of sentence for being felon in possession of firearm in violation of 18 U.S.C. § 924(g)(1) and (a)(2).

HELD: Ohio conviction for third-degree burglary is violent felony for sentencing under Armed Career Criminal Act. As defined by Ohio statute, third-degree burglary causes serious potential risk of physical injury to another.

Read the opinion here.

Crime of obstructing grand jury does not require proof that altered documents provided under subpoena were relevant to grand jury’s investigation

2009-04-10T11:34:00.000-04:00

STATUTORY CONSTRUCTION
United States v. Erickson,
No. 08-4025, ___ F.3d ___ (10th Cir. Apr. 6, 2009)(Utah).

Appeal of conviction for obstructing and impeding federal grand jury in violation of 18 U.S.C. § 1503.

HELD: In prosecution for offense of obstructing and impeding federal grand jury, government need not prove as element of offense that alterations of documents made in response to grand jury subpoena were relevant to grand jury’s investigation. Defendant is not entitled to protection from prosecution under § 1503 simply because he or she misjudges scope or purpose of grand jury’s investigation and submits fraudulent information that could not affect actual investigation. First, impossibility is not defense to § 1503 offense. Second, alterations made to documents by defendant and submitted to grand jury in this case were intended to deprive grand jury of evidence that it had determined was relevant to its investigation.

Read the opinion here.

Partially obscured registration sticker on license tag provides reasonable suspicion for traffic stop

2009-04-10T10:20:00.000-04:00

SEARCH & SEIZURE
United States v. Orduna-Martinez,
No. 07-3298, ___ F.3d ___ (10th Cir. Apr. 3, 2009)(Kansas).

Appeal of conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), based on claim that district court improperly denied motion to suppress drug evidence found during traffic stop.

HELD: District court did not err by denying defendant’s motion to suppress cocaine. Kansas trooper had reasonable suspicion of criminal activity sufficient to justify traffic stop based on partial obstruction of registration decal on defendant’s vehicle’s Ohio license plate. Registration decal is part of license plate and under Kansas law all of license plate must be legible.

Read the opinion here.

Defendant’s check disbursing funds from wire fraud scheme to co-defendant is insufficient to show concealment element of money laundering

2009-04-01T11:03:00.000-04:00

SUFFICIENCY OF EVIDENCE
United States v. Caldwell (Gayle),
No. 07-6254, ___ F.3d ___ (10th Cir. Mar. 30, 2009)(W.D. Oklahoma).

Appeal of convictions for wire fraud and money laundering arising from scheme involving mortgage loan fraud in violation of 18 U.S.C. §§ 1343 and 1956(a)(1)(B)(i).

HELD: Under circumstances where defendant’s marketing company received funds from wire fraud scheme, no reasonable juror could have found beyond reasonable doubt that check from defendant’s company to her co-defendant husband was designed in whole or in part to conceal or disguise ownership or control of proceeds of wire fraud. Quick disbursement confirmed that funds were always intended to go to other participants in scheme and whole point of using defendant’s company to hold and disburse funds was to make it appear that company had earned the money. Money laundering conviction reversed.

Read the opinion here.

Proper joinder of co-defendants in non-conspiracy case does not require that all defendants be charged in each count

2009-04-01T10:12:00.000-04:00

TRIAL/JOINDER
United States v. Caldwell (Charles),
No. 07-6251, ___ F.3d ___ (10th Cir. Mar. 30, 2009)(W.D. Oklahoma).

Appeal of convictions for using wire communications in scheme to defraud mortgage lenders in violation of 18 U.S.C. § 1343.

HELD: Joinder of defendant’s trial with multiple co-defendants was proper where there were a number of common threads and much common evidence connecting offenses charged in indictment. Fact that no conspiracy was charged is of no consequence. Rule 8(b) of the Federal Rules of Criminal Procedure, governing joinder, provides that not all defendants need be charged in each count. Accordingly, joinder in non-conspiracy cases is not conditioned on all defendants being charged in each count.

Read the opinion here.

Oklahoma conviction for battery on police officer is crime of violence for purpose of career offender sentence enhancement

2009-03-31T10:22:00.000-04:00

SENTENCING
United States v. Williams,
No. 08-3159, ___ F.3d ___ (10th Cir. Mar. 18, 2009)(Kansas).

Appeal of sentence for bank robbery in violation of 18 U.S.C. § 2113(a).

HELD: District court did not err by imposing career offender sentence enhancement under USSG §§ 4B1.1 and 4B1.2 for defendant’s prior Oklahoma conviction for battery on police officer. As defined by Oklahoma statute, battery on police officer involves purposeful, aggressive, and violent conduct that by its nature creates serious potential risk of physical injury. Such crime, therefore, categorically qualifies as crime of violence under § 4B1.2(a)(2)’s definition.

Read the opinion here.

Corrupt persuasion of witness requires showing that intent was to cause witness to present false or misleading testimony or to prevent testimony

2009-03-31T10:16:00.001-04:00

STATUTORY CONSTRUCTION
United States v. Baldridge,
No. 07-5121, ___ F.3d ___ (March 18, 2009)(N.D. Oklahoma).

Appeal of multiple convictions including conviction for corruptly persuading another person to hinder, delay, or prevent testimony in an official proceeding in violation of 18 U.S.C. § 1512(b).

HELD: The "corruptly persuades" element of crime of corruptly persuading another person to hinder, delay, or prevent testimony of any person in an official proceeding requires government to prove that defendant’s act of persuasion was performed voluntarily with intent to bring about false or misleading testimony or with intent to prevent testimony with hope or expectation of some benefit.

Read the opinion here.

Wyoming conviction for burglary may be used for sentencing under Armed Career Criminal Act

2009-03-18T08:39:00.001-04:00

SENTENCING
United States v. Gonzales,
No. 06-8082, ___ F.3d ___ (10th Cir. Mar. 16, 2009)(Wyoming).

Appeal of sentence imposed under Armed Career Criminal Act, 18 U.S.C. § 924(e), for being felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

HELD: District court did not err by determining that defendant’s prior Wyoming burglary conviction was burglary for purposes of sentencing under Armed Career Criminal Act at 18 U.S.C. § 924(e). Fact that Wyoming burglary statute included vehicles among places that could be burglarized did not remove Wyoming conviction for burglary from category of burglaries that could be used for sentence enhancement because in this instance charging information and record of plea colloquy made clear that conviction was for burglary of building.

Read the opinion here.

Texas crime of third degree sexual assault is crime of violence for federal sentence enhancement purposes

2009-03-11T09:30:00.001-04:00

SENTENCING
United States v. Rooks,
No. 07-7029, ___ F.3d ___ (10th Cir. Mar. 4, 2009)(E.D. Oklahoma).

Appeal of sentence for being felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1).

HELD: District court did not err by enhancing defendant’s sentence by finding that defendant's prior conviction for Texas crime of third degree sexual assault was conviction for crime of violence. Texas crime of third degree sexual assault involving penetration of victim without victim’s consent constitutes “crime of violence” for sentence enhancement purposes of U.S.S.G. § 4B1.2(a).

Read the opinion here.

Prosecutor’s potentially improper closing arguments were harmless in light of their brevity, strength of case, and curative jury instructions

2009-03-11T09:22:00.000-04:00

TRIAL
United States v. Rogers,
No. 07-6299, ___ F.3d ___ (10th Cir. Mar. 3, 2009)(W.D. Oklahoma).

Appeal of convictions for: (1) conspiracy to distribute crack cocaine; (2) possession with intent to distribute crack cocaine; (3) possession of handguns in furtherance of drug-trafficking conspiracy; (4) being felon in possession of firearm and ammunition, in violation of 21 U.S.C. §§ 846, 841(a)(1), 18 U.S.C. §§ 924(c)(1)(A), 922(g)(1).

HELD: If prosecutor’s comments during closing argument in which prosecutor referred to police officer being armed with cross on his belt as well as arguing that officer patrolling hotel hallways for drug dealers and prostitutes was doing so to keep tourist area of city safe for families and visitors were improper, they were harmless beyond reasonable doubt. Jury was instructed that prosecutor’s comments were not evidence, bulk of comments were supported by evidence of record, case against defendant was otherwise very strong, and prosecutor’s narrative was just small piece of lengthy closing argument and simply not egregious enough to have influenced jury to convict on grounds other than evidence presented.

Read the opinion here.

Bounty hunters conducting search for bail jumper are not state actors for Fourth Amendment purposes when acting for profit and without police help

2009-03-10T09:12:00.000-04:00

SEARCH & SEIZURE
United States v. Poe,
No. 07-6237, ___ F.3d ___ (10th Cir. Mar. 3, 2009)(W.D. Oklahoma).

Appeal of convictions and sentence for: (1) possession of firearm and ammunition after previous felony conviction; (2) possession of methamphetamine with intent to distribute; and (3) possession of firearm in furtherance of drug trafficking crime in violation of 18 U.S.C. § 922(g)(1), 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 924(c)(1)(A).

HELD: Bounty hunters acting without assistance of law enforcement and for own pecuniary gain are not state actors for Fourth Amendment purposes when conducting search during course of seeking out bail-jumper. Mere involvement in bail-bond industry is insufficient to qualify bounty hunter actions as state action. For bounty hunter search of private residence to rise to level of state action requires government knowledge or government acquiescence in search before it occurs. When private individual conducts search not acting as government agent or in concert with government agent, Fourth Amendment is not implicated, no matter how unreasonable the search.

Read the opinion here.

Sentence reduction based on retroactive amendment of sentencing guidelines is not appropriate if downward variance was given at original sentencing

2009-03-10T09:08:00.001-04:00

SENTENCING
United States v. Brown,
No. 08-8043, ___ F.3d ___ (10th Cir. Feb. 27, 2009)(Wyoming).

Appeal of district court’s denial of defendant’s motion to reduce sentence under 18 U.S.C. § 3582(c)(2) because of retroactive modification to United States Sentencing Guidelines that lowered sentences for crack cocaine offenses.

HELD: District court did not abuse discretion by denying defendant’s motion brought under 18 U.S.C. § 3582(c)(2). In this instance, on defendant’s motion at original sentencing, district court varied downward from guidelines range to reduce sentence in order to account for cocaine/crack cocaine sentencing disparity. Thus, defendant essentially received same sentence reduction at his original sentencing as he would have been afforded under later-amended but retroactive guidelines. Generally, sentence reduction is not appropriate if defendant has already received downward variance at original sentencing.

Read the opinion here.

District court may exclude expert testimony without Daubert hearing when record is sufficient to allow proper reliability determination

2009-03-09T10:34:00.000-04:00

EVIDENCE
United States v. Nacchio,
No. 07-1311, ___ F.3d ___ (10th Cir. Feb. 25, 2009)(en banc)(Colorado).

Appeal of multiple convictions for insider trading.

HELD: District court fulfilled its duty as gatekeeper and did not abuse its discretion by excluding expert testimony. District court developed sufficient record, made concrete reliability determination, and made specific findings, particularly, that defendant did not carry his burden of showing reliability under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). District court does not err by excluding expert testimony without conducting Daubert hearing when record is adequate to allow proper reliability determination.

Read the opinion here.

Formal evidentiary hearing is not required to probe prosecutor’s intent for actions leading to mistrial to determine whether retrial is barred

2009-03-09T09:32:00.001-04:00

Mistrial/Double Jeopardy
United States v. Tafoya,
No. 08-2113, ___ F.3d ___ (10th Cir. Feb. 24, 2009)(New Mexico).

Appeal of district court’s denial of defendant’s motion to dismiss indictment.

HELD: District court did not abuse discretion by denying defendant’s request for formal evidentiary hearing to determine whether prosecutor’s actions that prompted successful defense motion for mistrial should also bar retrial. To determine whether prosecutor goaded defense into moving for mistrial and thus determine whether retrial is barred, district court must determine prosecutor’s intent was to subvert protections afforded by Double Jeopardy Clause. If district court judge is satisfied with prosecutor’s explanation and by what she witnessed in overseeing trial, there is no need for formal evidentiary hearing to probe prosecutor’s intent.

Read the opinion here.

Evidence of possession of tools of drug trade may be sufficient to support inference of illegal drug distribution

2009-03-09T08:55:00.000-04:00

SUFFICIENCY OF EVIDENCE
United States v. Winder,
No. 07-6208, ___ F.3d ___ (10th Cir. Feb. 24, 2009)(W.D. Oklahoma).

Appeal of convictions and sentence for: (1) possessing marijuana and cocaine base with intent to distribute; (2) carrying two firearms during and in relation to federal drug trafficking offense; and (3) being felon possession of two firearms in violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 924(c)(1)(A), and 18 U.S.C. § 922(g)(1).

HELD: Where evidence found in defendant’s van included (1) firearms and ammunition, (2) baggies containing drugs packaged for individual sale, (3) empty baggies of varying sizes, and (4) a digital scale, evidence was sufficient to show that defendant was engaged in distribution of illegal drugs. These items are all commonly recognized as tools of drug trade and therefore, may support inference of drug distribution activity.

Read the opinion here.

Sentence imposed on revocation of probation relates to original act of conviction, not act underlying revocation

2009-02-19T09:29:00.001-05:00

SENTENCING
United States v. Dozier,
No. 08-4086, ___ F.3d ___ (10th Cir. Feb. 11, 2009)(Utah).

Appeal of sentence for possession of firearm by convicted felon.

HELD: Where probation is revoked in state proceeding based on same conduct forming basis of federal offense, imposition of original sentence in state proceeding is attributable to original act of conviction, not act underlying revocation. Thus, five year sentence imposed on defendant following revocation of probation was not part of the "instant offense" and federal district court properly considered it in determining defendant’s criminal history.

Read the opinion here.

Guilty plea may be knowing and voluntary even if defendant denies requisite intent

2009-02-18T10:22:00.002-05:00

PLEA
United States v. Vidal,
No. 07-2026, ___ F.3d ___ (10th Cir. Feb. 13, 2009)(New Mexico).

Appeal of conviction obtained by guilty plea for possession with intent to distribute more than 500 grams of methamphetamine.

HELD: Defendant’s guilty plea was knowing and voluntary despite her oral statements at plea hearing denying knowledge of drugs and intent to distribute. There was strong factual basis for guilt in record supporting government’s case that possession of drugs was knowing and intentional and district court adequately sought to resolve any apparent conflict between defendant’s oral statements and written plea. Specifically, district court ensured that defendant understood that government had to prove intent, but despite that, and even with her denial of intent, she desired to plead guilty solely on grounds that she believed government could prove her intent to possess and distribute. In other words, without expressly doing so, defendant entered Alford plea as described in North Carolina v. Alford, 400 U.S. 25, 37 (1970)(allowing guilty plea under which defendant consents to imposition of prison sentence even if he is unwilling or unable to admit his participation in acts constituting crime).

Read the opinion here.

District court abused discretion by disregarding guidelines and sentencing defendant with extensive criminal history as if he were not career offender

2009-02-17T10:46:00.000-05:00

SENTENCING
United States v. Friedman,
No. 07-4118, ___ F.3d ___ (10th Cir. Feb. 10, 2009)(Utah).

Government’s appeal of defendant’s sentence for bank robbery in violation of 18 U.S.C. § 2113(a).

HELD: District court abused its discretion by significantly varying downward from guidelines range to sentence defendant as if he were not career offender. In light of defendant’s extensive criminal history, failure to accept full responsibility for crime, and failure to appreciate impact of uninterrupted pattern of criminal conduct, the below-guidelines range fifty-seven month sentence imposed by district court fails to reflect seriousness of bank robbery, fails to promote respect for law, fails to provide just punishment for offense, fails to afford adequate general deterrence, and fails to specifically deter future criminal conduct on part of defendant.

Read the opinion here.

When appellant challenges expert testimony given at trial, he must specifically identify the objectionable testimony for Court of Appeals

2009-02-17T10:42:00.001-05:00

APPELLATE PROCEDURE
United States v. Vazquez,
No. 08-4044, ___ F.3d ___ (10th Cir. Feb. 10, 2009)(Utah).

Appeal of conviction for possession of methamphetamine with intent to distribute.

HELD: When an appellant challenges admissibility of expert testimony given at trial, court of appeals task is limited to considering specific testimony being challenged. Court of appeals has no obligation to review trial transcript to find occasions where expert testimony was erroneously admitted. Appellant must provide specific guidance regarding what testimony was improper.

Read the opinion here.

Unless district court’s allegedly erroneous decision on issue is contrary to authority from Supreme Court or this Circuit, error is not plain

2009-02-13T11:53:00.000-05:00

SENTENCING
United States v. Baum,
07-6257, ___ F.3d ___ (10th Cir. Dec. 22, 2008)(amended by order Feb. 10, 2009)(W.D. Oklahoma).

Appeal of convictions and sentence for wire fraud and money laundering in violation of 18 U.S.C. §§ 1343 and 1957.

HELD: District court did not commit plain error in sentencing by finding defendant intended $1.4 million loss to victims where no authority from Supreme Court or this Circuit clearly defines intent as requiring either knowledge that loss is virtual certainty or that loss is only probable. When no authority from the Supreme Court or this circuit compels determination that there was error and there is contrary authority in other circuits, the error can rarely be plain.

Read the opinion here.

Disobeying police officer by running from property being searched violates Oklahoma officer-obstruction statute and is grounds for arrest and search

2009-02-13T11:04:00.000-05:00

SEARCH & SEIZURE
United States v. Sanchez,
No. 08-5047, ___ F.3d ___ (10th Cir. Feb. 10, 2009)(N.D. Oklahoma).

Appeal of district court’s denial of suppression motion.

HELD:

(1) Person who is outside of residence being searched under authority of search warrant may be detained and searched by police executing warrant. An officer's authority to detain persons incident to search is categorical. It does not depend on quantum of proof justifying detention or extent of intrusion to be imposed by seizure.

(2) Person who is outside of residence being searched under authority of search warrant but runs away after being told to “get down” by police violates Oklahoma statute prohibiting obstruction of an officer. He thereby provides grounds for arrest and search of his person incident to arrest.

(3) For purposes of search-incident-to-arrest, arrest begins with detention in connection with search, not when defendant is later formally advised he is under arrest for specific crime (i.e., obstruction, resisting arrest, etc.).

Read the opinion here.

Upward variation from sentencing guidelines is not abuse of discretion if court gives reasoned consideration to statutory sentencing factors

2009-02-11T10:55:00.000-05:00

SENTENCING/PLEA AGREEMENT
United States v. Yanez-Rodriguez,
No. 08-2100, ___ F.3d ___ (10th Cir. Feb. 10, 2009)(New Mexico).

Appeal of sentence for illegal re-entry to United States as breach of plea agreement.

HELD:

(1) District court did not abuse its discretion by varying upward from the sentencing guidelines range despite government’s plea-agreement recommendation for low-end guidelines range sentence. Where district court decides to vary upward after giving careful, reasoned, and reasonable consideration to sentencing factors enumerated in 18 U.S.C. § 3553(a), there is no abuse of discretion.

(2) Where plea agreement bound government to recommend sentence at low end of guidelines range, and government acknowledged that obligation to district court, nothing in plea agreement prohibited government from defending against downward departure or variance from sentencing guidelines range. Therefore, government’s argument and aggressive cross-examination of defense psychologist about whether defendant was danger to other people and would continue to violate societal norms was not breach of plea agreement.

Read the opinion here.

Health-related reason for illegal re-entry to U.S. by alien with extensive criminal history is insufficient to justify downward sentence adjustment

2009-02-11T10:04:00.000-05:00

SENTENCING
United States v. Navarette-Medina,
No. 08-2014, ___ F.3d ___ (10th Cir. Feb. 10, 2009)(New Mexico).

Appeal of sentence for unauthorized re-entry to United States by previously deported alien.

HELD: District court did not abuse its discretion by declining to vary downward from sentencing guidelines based on defendant’s professed health-related reason for unlawful re-entry to United States (i.e., to obtain HIV medications). In light of defendant’s extensive criminal history, district court’s refusal to vary downward was not arbitrary, whimsical, or manifestly unreasonable.

Read the opinion here.

Trial court is not compelled to find defendant competent to waive right to counsel merely because court finds him competent to stand trial

2009-02-09T10:51:00.000-05:00

TRIAL/MENTAL COMPETENCE & RIGHT TO WAIVE COUNSEL
United States v. DeShazer,
No. 07-8023, ___ F.3d ___ (10th Cir. Feb. 6, 2009)(Wyoming).

Appeal of convictions for interstate stalking and carrying firearm during crime of violence in violation of 18 U.S.C. §§ 2261A and 924(c)(1)(A)(ii).

HELD: District court did not err by finding defendant competent to waive right to counsel and represent himself at trial even where insanity was only viable defense. Under Indiana v. Edwards, ___ U.S. ___, 128 S.Ct. 2379 (2008), courts may constitutionally insist on representation by counsel for defendant competent enough to stand trial, but who suffers mental illness to point he is not competent to conduct trial proceedings by himself. Conversely, however, a trial court is not compelled to find defendant competent to waive right to counsel simply because court finds him competent to stand trial.

Read the opinion here.

Plain error in sentencing need not be remedied if it does not seriously affect fairness, integrity, or reputation of judicial proceedings

2009-02-04T09:51:00.000-05:00

SENTENCING
United States v. Franklin-El,
No. 07-3257, ___ F.3d ___ (10th Cir. Feb. 3, 2009)(Kansas).

Appeal of convictions and sentence for healthcare fraud and obstruction of justice in violation of 18 U.S.C. § 1347, and 18 U.S.C. § 1518(a).

HELD: District court committed plain error by applying sentencing principles no longer in effect at time defendant was sentenced. Nevertheless, court of appeals will not exercise discretion to correct error in this instance because defendant fails to show that error seriously affects fairness, integrity, or public reputation of judicial proceedings for the following reasons: (1) defendant makes no specific claim of Booker error; (2) sufficient evidence supports counts of conviction and sentence was substantively reasonable; (3) there is no indication sentence is insufficiently supported by evidence; (4) record shows district court considered sentencing factors of 18 U.S.C. § 3553(a) and defendant fails to show that further consideration of § 3553(a) factors warrants variance; and (6) judge’s comments from bench did not establish that judge would impose significantly lighter sentence on remand.

Read the opinion here.

Conviction for possession of methamphetamine does not require showing that total quantity of possessed substance is 100% pure methamphetamine

2009-02-03T16:33:00.000-05:00

JURY INSTRUCTION/STATUTORY CONSTRUCTION
United States v. Villegas,
No. 08-4078, ___ F.3d ___ (10th Cir. Feb. 2, 2009)(Utah).

Appeal of conviction for possession with intent to distribute 50 grams or more of actual or pure methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and § 841(b)(1)(A)(viii).

HELD: District court properly instructed jury on drug quantities necessary for conviction. Title 21 U.S.C. § 841(b)(1)(A)(viii)’s threshold of “50 grams of methamphetamine” does not mean entire substance must consist of 100% pure methamphetamine. Rather, the statutory language refers to the amount of methamphetamine present in a mixture such that the mixture contains at least 50 grams of methamphetamine. For example, a 439.5 gram package of crystalline material that a small sample shows is 85.1% methamphetamine means that there are 374 grams of actual or pure methamphetamine in the package (i.e., 439.5 grams x 85.1% = 374 grams).

Read the opinion here.

Defective lesser-included offense jury instruction in capital case is not harmless error; writ is warranted

2009-01-30T15:05:00.001-05:00

HABEAS
Taylor v. Workman,
No. 07-7030, ___ F.3d ___ (10th Cir. Jan. 30, 2009).

Appeal of district court’s denial of Oklahoma prisoner’s habeas petition.

HELD: District court wrongly denied writ. Oklahoma Court of Criminal Appeals finding of harmless error in erroneous jury instruction on lesser-included offense of second-degree murder was contrary to clearly established federal law as determined by United States Supreme Court.

Read the opinion here.

Crime of being deported alien found in United States is continuing offense from time of reentry until time defendant is found

2009-01-13T09:39:00.000-05:00

SENTENCING
United States v. Villarreal-Ortiz,
No. 07-3321, ___ F.3d ___ (10th Cir. Jan. 12, 2009)(Kansas).

Appeal of conviction and sentence for being deported alien found in United States in violation of 8 U.S.C. § 1326.

HELD: Crime of being deported alien found in United States is continuing offense and in case of surreptitious entry, crime is committed when defendant voluntarily reenters country and continues to be committed until defendant is found. Because defendant was continuing to commit offense of being found in United States while he was on probation for state offense, federal district court judge properly increased his criminal history points under U.S.S.G. § 4A1.1(d).

Read the opinion here.

District court did not abuse discretion in calculating restitution amount for sales of fraudulently repaired aircraft engines

2009-01-12T11:53:00.001-05:00

RESTITUTION/EVIDENCE
United States v. Parker,
No. 07-6239, ___ F.3d ___ (10th Cir. Jan. 9, 2009)(W.D. Oklahoma).

Appeal of convictions and sentence for conspiracy to commit fraud involving aircraft parts, making false statements involving aircraft parts, and mail fraud in violation of 18 U.S.C. § 38(a)(3), 18 U.S.C. § 38(a)(1)(C), and 18 U.S.C. § 1341.

HELD:

(1) District court did not abuse its discretion in calculating restitution award amount under Mandatory Victim Restitution Act (MVRA) at 18 U.SC. § 3664. Under MVRA, restitution must be for actual loss, and any amount greater than actual loss constitutes abuse of discretion. Here, district court properly concluded that fraudulently repaired aircraft engines sold by defendant did not retain substantial core-value, but were essentially worthless. Therefore, restitution amount reflected actual loss to victims and district court’s method for determining restitution amount satisfied MVRA requirement of obtaining reasonable determination of appropriate restitution by resolving uncertainties with view toward achieving fairness to victims.

(2) District court did not abuse its discretion by allowing limited questioning by government on cross-examination of defendant’s character witnesses where questions consisted of hypothetical questions such as "would you change your opinion of the defendant if you found out he had been selling unairworthy aircraft engines?" Prosecution may ask hypothetical questions of "have you heard" variety when character witness testifies about personal opinion of defendant’s character as opposed to offering testimony limited to defendant’s general reputation in community.

Read the opinion here.

Government must prove more than mere proximity in order to obtain conviction for felonious possession of firearm

2009-01-12T11:49:00.000-05:00

SUFFICIENCY OF EVIDENCE
United States v. Hooks,
No. 08-7021, ___ F.3d ___ (10th Cir. Jan. 9, 2009)(E.D. Oklahoma).

Appeal of conviction for being felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1) and (2).

HELD: Evidence did not support defendant’s conviction for possession of firearm as prior convicted felon where evidence consisted of nothing more than defendant’s presence in vehicle occupied by four persons, ambiguous recorded statements made to co-defendant, and location where firearm was found by side of road. Government’s evidence established defendant’s proximity to firearm, but failed to show defendant’s knowledge of weapon or dominion or control over it as opposed to other occupants of vehicle.

Read the opinion here.

Officers may ask safety-related questions prior to Miranda warnings if person attempts to stuff object under car seat and refuses to show hands

2009-01-12T11:45:00.001-05:00

SEARCH & SEIZURE/MIRANDA
United States v. DeJear,
No. 07-6281, ___ F.3d ___ (10th Cir. Jan. 9, 2009)(W.D. Oklahoma).

Appeal of district court’s denial of motion to suppress evidence and statements.

HELD: District court properly denied defendant’s motion to suppress evidence and statements obtained during streetside detention by police prior to defendant receiving Miranda warnings. Combination of defendant’s attempts to stuff something under car seat and his initial refusal to show his hands established objectively reasonable grounds for officers to believe that defendant might have weapon and someone other than police might gain access to that weapon and inflict harm with it. Thus, under Quarles officer/public safety exception to Miranda rule, officer could ask defendant what he was "stuffing" without first administering Miranda warnings.

Read the opinion here.

Good faith exception to exclusionary rule applies only if neutral third party, not law enforcement, is responsible for error leading to illegal search

2009-01-07T11:17:00.001-05:00

SEARCH & SEIZURE
United States v. Clarkson,
No. 08-4054, ___ F.3d ___ (10th Cir. Jan. 6, 2009)(Utah).

Appeal of district court’s denial of defendant’s motion to suppress evidence found during traffic stop.

HELD:

(1) Police officer’s mistaken reliance on dog sniff for probable cause to search car is not entitled to good faith exception where searching officer was told by dog’s officer-handler that dog was trained for drug detection but was not told that dog had not been formally certified. Good faith exception to exclusionary rule for illegal searches applies only where neutral third party (e.g., judge, magistrate, court clerk), not law enforcement authority, is responsible for error leading to Fourth Amendment violation.

Were the good faith exception to apply in this circumstance, the improper police conduct of conducting a search with an untrained or unreliable dog would not be effectively deterred. Such a rule would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it. Allowing the good-faith exception to apply in this situation would therefore contravene the purpose of the exclusionary rule.

(2) Drug dog’s successful completion of training course and current certification is satisfactory to establish dog’s reliability for purpose of concluding that officer’s reliance on dog for probable cause to search was justified. Nevertheless, while successful completion of training course and current certification is satisfactory method for establishing dog’s reliability, it is not only means. Dog’s reliability may also be established by other evidence.

Read the opinion here.

To excuse procedural default of claim in § 2255 proceeding, defendant must show prejudice resulting from appellate attorney’s deficient performance

2009-01-07T10:56:00.000-05:00

COLLATERAL REVIEW
United States v. Hollis,
No. 07-3293, ___ F.3d ___ (10th Cir. Jan. 6, 2009)(Kansas).

Appeal of district court’s denial of motion to vacate sentence brought under 28 U.S.C. § 2255.

HELD: District court properly denied defendant’s § 2255 motion because he failed to demonstrate that his appellate attorney’s deficient representation resulted in prejudice necessary to excuse procedural default of Sixth Amendment claim brought under Apprendi v. New Jersey, 530 U.S. 466 (2000).

Read the opinion here.

Disparate sentences among co-defendants are permissible when disparities are explainable by facts on record

2008-08-29T09:39:00.000-04:00

SENTENCING
United States v. Haley,
No. 07-5041, 529 F.3d 1308 (10th Cir. Jun 25, 2008)(N.D. Oklahoma).

Appeal of sentence for conspiracy to distribute cocaine and distributing cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); 846; 21 U.S.C. § 841(a)(1), (b)(1)(C).

HELD: District court did not abuse its discretion by refusing downward sentencing variance under 18 U.S.C. § 3553(a)’s sentencing factors, despite large disparity between defendant’s sentence and sentence of co-defendant whose conduct was arguably more culpable. District court may consider sentencing disparities between co-defendants, but disparate sentences are permitted when disparity is explainable by facts on record. Here, disparity is easily explained by two facts. First, defendant was repeat career offender whereas co-defendant was not. Thus, Defendant and co-defendant were not co-defendants with similar records who had been found guilty of similar conduct. Second, co-defendant was given downward adjustment in sentence for acceptance of responsibility. Co-defendant’s decision to plead guilty and accept responsibility and assist government does not create unwarranted disparity under § 3553(a)(6).

Read the opinion here.

Eighteen month sentence for possession of child pornography is reasonable under defendant’s unique circumstances

2008-08-29T09:33:00.000-04:00

SENTENCING
United States v. Huckins,
No. 07-3220, 529 F.3d 1312 (10th Cir. Jun 25, 2008)(Kansas).

Government appeal of district court’s sentence of eighteen month term of imprisonment for conviction resulting from guilty plea to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

HELD: District court did not abuse its discretion in granting downward variance from sentencing guidelines range that resulted in eighteen month sentence for possession of child pornography because under defendant’s unique circumstances, sentence was reasonable. Under 18 U.S.C. § 3553(a)(1), defendant’s history and characteristics must be factored into final sentencing calculus. Here, district court considered numerous factors pertaining to defendant’s history and characteristics that counterbalanced what court acknowledged was an especially serious offense. Specifically, the court considered that defendant: (1) had no real criminal record; (2) was going through difficult time with significant depression when he committed offenses; (3) committed offenses over short period of time; (4) had not repeated offenses; (5) obtained licenses for employment and maintained steady employment prior to being charged; (6) consistently improved his life through his own efforts and those of his family; (7) did not occupy a position of trust with children; and (8) demonstrated repeated remorse and an exceptional understanding of how his conduct has affected his life and lives of his family.

Read the opinion here.

Judge may call and question witness at sentencing hearing to inquire into sentence enhancement facts even without request by either party

2008-08-29T06:36:00.000-04:00

SENTENCING
United States v. Scott,
No. 07-6111, 529 .3d 1290 (10th Cir. Jun 24, 2008)(W.D. Oklahoma).

Appeal of sentence for transporting minor across state lines for purpose of prostitution in violation of Mann Act, 18 U.S.C. § 2423(a).

HELD: District court neither violated defendant’s due process rights nor abused its discretion by calling FBI agent as witness at sentencing hearing and questioning him about facts relevant to leadership role and vulnerable victim sentence enhancements. A judge does not show actual bias simply by calling witness whose testimony proves more helpful to one party than the other. Furthermore, while court asked leading questions, those questions by themselves do not demonstrate impermissible bias. A judge may interrogate witness in manner reasonably thought to bring about just result.

Read the opinion here.

Oklahoma DUI conviction is not crime of violence for sentence enhancement purposes under sentencing guidelines

2008-08-29T06:32:00.000-04:00

SENTENCING
United States v. Tiger,
No. 07-5027, ___ F.3d ___ (10th Cir. Jun 24, 2008)(N.D. Oklahoma).

Appeal of career offender sentence enhancement for bank robbery in violation of 18 U.S.C. § 2113(a).

HELD: Oklahoma felony offense of driving under the influence (DUI) is not crime of violence for sentencing purposes under U.S.S.G § 4B1.2(a).

Read the opinion here.

District court erred by not considering minimal amount of force used by defendant in committing sex abuse offenses

2008-08-28T06:43:00.001-04:00

SENTENCING
United States v. Cerno,
No. 07-2136, 529 F.3d 926 (10th Cir. Jun 24, 2008)(New Mexico).

Appeal of convictions and sentence for five counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(a).

HELD: District court committed procedural error by imposing life sentence while refusing to consider as mitigating factor minimal amount of force used by defendant in committing sex abuse crimes.

Sentencing law simply does not foreclose a court's individual consideration of the specific nature and circumstances of the offense conduct at issue, including whether the offense committed was more or less heinous than offenses committed by other defendants convicted under the same statute. Indeed, the sentencing statute mandates that a court consider the "nature and circumstances of the offense" in fashioning a sentence "sufficient, but not greater than necessary" to accomplish the sentencing goals outlined in the sentencing statute.

Read the opinion here.

Defendant’s substantial assistance to government is only factor that may justify sentence below mandatory minimum

2008-08-27T06:49:00.000-04:00

SENTENCING
United States v. A.B.,
No. 06-2164, ___ F.3d ___ (10th Cir. Jun 24, 2008)(New Mexico).

Appeal of sentence for possessing methamphetamine with intent to distribute and possessing firearm in connection with drug trafficking crime in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. § 924(c).

HELD: When sentence is fixed by statute, any exception to statutory sentence must also be given by statute. Therefore, because 18 U.S.C. § 3553(e) provides that only defendant’s substantial assistance to government may support downward departure below mandatory minimum sentence, sentencing guidelines considerations cannot justify sentence below mandatory minimum.

United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed2d 621 (2005), cured constitutional infirmity of mandatory application of federal sentencing guidelines and dealt with scope of district court’s sentencing discretion under those guidelines. Booker did not cast constitutional doubt on statutory mandatory minimums.

Read the opinion here.

Conviction under UCMJ’s catchall provision for discreditable conduct cannot serve as sentence enhancer for federal child pornography conviction

2008-08-26T06:48:00.001-04:00

SENTENCING
United States v. Brown,
No. 07-8065, ___ F.3d ___ (10th Cir. Jun 23, 2008)(Wyoming).

Appeal of sentence for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

HELD: District court erred by using defendant’s previous conviction under Article 134 of Uniform Code of Military Justice (UCMJ) to enhance sentence for possession of child pornography in violation of 18 U.S.C. § 2252A. First, defendant’s previous conviction under UCMJ Article 134 was conviction for conduct of nature to bring discredit upon the armed forces (i.e., possession of child pornography in violation of 18 U.S.C. § 2252A). It was not conviction for violation of 18 U.S.C. § 2252A itself. Second, plain language of § 2252A does not include UCMJ Article 134 convictions as sentence enhancers.

Read the opinion here.

District court erred by imposing occupational restriction as condition of supervised release

2008-08-25T06:51:00.000-04:00

SENTENCING
United States v. Wittig,
No. 07-3051, ___ F.3d ___ (10th Cir. Jun 17, 2008)(Kansas).

Appeal of sentence for conspiracy, bank fraud and money laundering.

HELD:

(1) Although it would have been error for the district court to use intended loss and gross receipt values to calculate sentencing guidelines range, where those amounts had already been attributed to another defendant, it was not error to use those values as guideposts to assist the district court in its exercise of discretion in varying from guidelines to meet sentencing requirements of 18 U.S.C. § 3553(a).

(2) District court abused its discretion by imposing occupational restriction as special condition of supervised release in which defendant was prohibited from being employed as executive and further prohibited from engaging in any financial agreements or negotiations in professional capacity without court approval. Occupational restriction is infirm because: (1) it was not based on any reasonably direct relationship between defendant's profession and conduct relevant to offense of conviction; (2) it was not based on any finding that defendant would continue to engage in unlawful conduct similar to that for which he was convicted; and (3) district court failed to consider any less restrictive alternatives.

Read the opinion here.

Search of cab of tractor-trailer rig based on drug dog alert was valid search because it was independent of earlier unlawful search of trailer

2008-08-25T06:47:00.001-04:00

SEARCH & SEIZURE
United States v. Forbes,
No. 07-2191, ___ F.3d ___ (10th Cir. Jun 17, 2008)(New Mexico).

Appeal of district court’s denial of defendant’s motion to suppress drug evidence seized at border crossing checkpoint.

HELD: Where border agent searched interior of trailer of tractor-trailer rig without consent, warrant, or probable cause and found no incriminating evidence, a later canine alert provided independent source of suspicion, and thus probable cause, sufficient to search interior of tractor where marijuana was discovered. Marijuana found in tractor portion of tractor-trailer was admissible because it was discovered through means independent of any unconstitutional action that the agents may have taken during search of trailer. Independent source doctrine does not require two separate searches, but instead only requires lawful, genuinely independent source providing constitutional basis for the agents' disputed activities.

Read the opinion here.

Defendant’s unsuccessful attempts to plead guilty to less than all counts charged do not justify sentence adjustment for acceptance of responsibility

2008-08-22T06:52:00.000-04:00

SENTENCING
United States v. Martin,
No. 07-2090, ___ F.3d ___ (10th Cir. Jun 9, 2008)(New Mexico).

Appeal of convictions and sentence for aggravated sexual abuse and assault in Indian Country in violation of 18 U.S.C. §§ 2241(a), 113(a)(3), 113(a)(6), and 1153.

HELD: Defendant was not entitled to downward adjustment of sentence for acceptance of responsibility under USSG § 3E1.1 where he was convicted of two counts of brutally assaulting common-law wife and two counts of rape but had attempted to plead guilty to the assault counts and those pleas were rejected because he refused to admit his specific intent in committing the assaults was to cause bodily injury.

Read the opinion here.

Transferring stolen funds by wire to out of state investment account after fraudulent scheme is complete cannot constitute wire fraud

2008-08-21T06:27:00.000-04:00

INDICTMENT/WIRE FRAUD/BRADY
United States v. Redcorn,
No. 06-5206, ___ F.3d ___ (10th Cir. Jun 9, 2008)(N.D. Oklahoma).

Appeal of convictions for embezzlement from a health care benefit program, wire fraud, and money laundering in violation of 18 U.S.C. §§ 669, 1343, and 1957(a).

HELD:

(1) Indictment’s prefatory factual allegations that are inconsistent with one count of a multi-count indictment cannot warrant dismissal of that count. Each count in an indictment is regarded as if it was a separate indictment. Therefore, an indictment need not contain introductory or prefatory matter at all. Accordingly, if an indictment does contain such content, that content is superfluous unless expressly incorporated into one of the counts.

(2) Where defendants fraudulently moved funds from health insurance company bank account into their personal accounts at the same bank, fraudulent scheme was complete. Therefore, transferring those funds from personal bank accounts in Oklahoma to investment accounts in Florida could not constitute wire fraud. That defendants chose to transfer part of their stolen money to broker in Florida is incidental to fraudulent scheme. For example, defendants could have decided to spend money on luxury vacation. Without closer connection to mechanism of their fraud, what defendants did with stolen money after obtaining it cannot be an essential part of scheme sufficient to support independent charge of wire fraud.

(3) It was not plain error for district court to deny defendant’s motion for new trial based on claim of newly discovered evidence where evidence in possession of state insurance regulatory agency had not been turned over to defendant until after trial and defendant alleged for first time on appeal that government violated duty under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose exculpatory evidence. Federal prosecutors may not be held responsible for omissions of state regulatory agency, an arm of a different government.

Read the opinion here.

Police entry to defendant’s locked home did not exceed scope of consent where defendant requested search and used no words limiting scope of consent

2008-08-20T07:13:00.000-04:00

SEARCH & SEIZURE
United States v. Pikyavit,
No. 07-4113, ___ F.3d ___ (10th Cir. Jun 4, 2008)(Utah).

Appeal of conviction for being felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1).

HELD: District court’s determination that police stayed within scope of consent given by defendant when they entered his locked home by slipping door lock was not clearly erroneous. Where defendant was in jail for involvement in brawl near his home and initiated contact with police to have them search his home for evidence he believed would exculpate him on the fight-related charges (i.e., blood and hair), reasonable officer would have understood defendant to consent to: (1) entry to the home even if doors were locked; and (2) search rooms other than kitchen and living room.

* Without words of limitation or condition, reasonable inference from defendant’s conversation with officers was that he impliedly consented to search of home even if doors locked.

* Once generalized consent to search is given, police may use reasonable means to enter location to be searched.

Read the opinion here.

Defendant’s character evidence is admissible as relevant to defense involving state of mind

2008-08-20T07:08:00.002-04:00

EVIDENCE
United States v. Yarbrough,
No. 06-5229, ___ F.3d ___ (10th Cir. Jun 3, 2008)(N.D. Oklahoma).

Appeal of convictions for obstructing an official proceeding, conspiring to obstruct an official proceeding, and providing unlawful notice of search or seizure warrant in violation of 18 U.S.C. §§ 1512(c)(2), 1512(k), and 2232(c).

HELD: District court abused its discretion by not admitting defendant’s proffered character evidence. Under Rules 404(a)(1) and 405(a) of the Federal Rules of Evidence, defendant’s character evidence is admissible in cases where sole issue for jury is whether defendant undertook his undisputed acts with prohibited state of mind. Because district court’s error deprived defendant of important evidence relevant to sharply controverted question central to his defense (i.e., state of mind), defendant’s substantial rights were affected and he is entitled to new trial.

Read the opinion here.

Crime defined by statute that includes mens rea of recklessness does not qualify as crime of violence for sentence enhancement purposes

2008-08-14T07:01:00.001-04:00

SENTENCING
United States v. Zuniga-Soto,
No. 06-2364, ___ F.3d ___ (10th Cir. Jun 3, 2008)(New Mexico).

Appeal of sentence after plea of guilty to crime of illegally re-entering United States in violation of 8 U.S.C. § 1326.

HELD:

(1) District court erred in determining that defendant had been convicted of crime of violence under Texas statute for assaulting public servant. A statute that includes mens rea of recklessness does not satisfy use of physical force requirement set out in sentence enhancement provisions of U.S.S.G. § 2L1.2 . Therefore, under Texas assault statute, which defines crime as “intentionally, knowingly, or recklessly cause[ing] bodily injury to another,” state need not have proved that defendant actively employed physical force, but instead could have obtained conviction on mere showing that defendant recklessly used physical force. Thus, by including mens rea of recklessness in definition of offense, use of force was not element of conviction for assault against public servant.

(2) Sentence enhancement provision at U.S.S.G. § 2L1.2 for any prior conviction that has as an element the use, attempted use, or threatened use of physical force, limits scope of proper inquiry to statutory definition of prior offense and does not permit examination of facts behind conviction.

Read the opinion here.

Wyoming conviction for misdemeanor battery is not necessarily conviction for crime of violence as contemplated by federal firearm possession statute

2008-08-13T08:31:00.001-04:00

STATUTORY CONSTRUCTION
United States v. Hays,
No. 07-8039, ___ F.3d ___ (10th Cir. May 20, 2008)(Wyoming).

Appeal of conviction for possession of firearm after conviction of misdemeanor crime of domestic violence in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).

HELD: Defendant’s conviction for possession of firearm after having been convicted of misdemeanor crime of domestic violence is reversed. Because Wyoming battery statute proscribes “rude, insolent or angry touching,” it does not categorically satisfy definition of “misdemeanor crime of domestic violence” found in 18 U.S.C. 921(a)(33)(A) because it embraces conduct that does not include use or attempted use of physical force. Wyoming’s misdemeanor assault and battery statute, therefore, does not satisfy “use of physical force” element of 18 U.S.C. 921(a)(33)(A)(ii)’s definition of misdemeanor crime of domestic violence.

Read the opinion here.

Court Interpreters Act applies equally to grand jury proceedings and trials

2008-08-12T07:44:00.000-04:00

STATUTORY CONSTRUCTION
United States v. Hasan,
No. 06-5234, ___ F.3d ___ (10th Cir. May 20, 2008)(N.D. Oklahoma).

Appeal of conviction for perjury before grand jury in violation of 18 U.S.C. § 1623.

HELD: Court Interpreters Act at 28 U.S.C. § 1827 applies with equal force to grand jury proceedings and trials. District court committed plain error by finding that defendant qualified for interpreter for trial, but not revisiting its earlier decision finding that defendant did not qualify for interpreter during grand jury proceeding.

Read the opinion here.

False statement to probation officer preparing presentence investigation report is prosecutable offense under 18 U.S.C. § 1001(a)

2008-08-11T09:42:00.002-04:00

STATUTORY CONSTRUCTION
United States v. Manning,
No. 07-5035, ___ F.3d ___ (10th Cir. May 16, 2008)(N.D. Oklahoma).

Appeal of conviction for making false statement on matter within jurisdiction of executive, legislative, or judicial branch of government in violation of 18 U.S.C. § 1001(a).

HELD: Defendant’s statement to probation officer that omitted mention of his $40,000 401(k) retirement account is prosecutable offense under 18 U.S.C. § 1001(a) for making false statement on matter within jurisdiction of judicial branch. Statement is not excepted under judicial function exception of § 1001(b) which exempts statements made by party to judge or magistrate.

Read the opinion here.

Arrest for deportation does not trigger Speedy Trial Act unless defendant demonstrates primary purpose for arrest was to hold for future prosecution

2008-08-06T10:46:00.000-04:00

SPEEDY TRIAL
United States v. Pasillas-Castanon,
No. 07-5101, ___ F.3d ___ (10th Cir. May 13, 2008)(N.D. Oklahoma).

Appeal of indictment and conviction for knowingly possessing counterfeit green card in violation of 18 U.S.C. § 1546(a).

HELD:

(1) Deportation proceedings are civil matters. Therefore, arrests and detentions made in connection with civil deportation proceedings do not trigger Speedy Trial Act (18 U.S.C. § 3161(b)). Because defendant’s initial arrest was for civil matter (i.e., deportation), Speedy Trial Act’s thirty-day time limit was not triggered. Time limit was triggered later when U.S. Marshals arrested defendant in connection with criminal offense of illegally possessing counterfeit green card.

(2) Civil arrest or detention may trigger Speedy Trial Act if law enforcement authorities collude with state or civil officials to detain defendant as mere ruse for later prosecution. Ruse exception may be applied, however, only when defendant demonstrates that primary or exclusive purpose of civil detention was to hold him for future prosecution. Mere fact that detaining authorities are aware that other potential criminal charges are available does not trigger exception. There must be evidence showing that detention is for primary or exclusive purpose of furthering criminal prosecution and if detaining authorities have lawful basis for civil detention, defendant is not entitled to invoke exception.

Read the opinion here.

District court may afford considerable weight to sentencing guidelines but may not apply presumption of reasonableness to guidelines

2008-08-06T10:07:00.000-04:00

SENTENCING
United States v. Zamora-Solorzano,
No. 07-3205, ___ F.3d ___ (10th Cir. May 13, 2008)(Kansas).

Appeal of sentence for conspiracy to possess methamphetamine with intent to distribute and using firearm in furtherance of drug trafficking in violation of 21 U.S.C. § 841(a), 18 U.S.C. § 2, and 18 U.S.C. § 924(c).

HELD: Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), does not preclude district court from affording considerable weight to a guidelines sentence in any given case. Rather, Rita prohibits application of legal presumption that guidelines sentence should apply.

gravitational pull [towards a Guidelines sentence at the district court level] that reduces sentencing disparity-so long as it does not rise to the level of mandate-is neither unconstitutional nor undesirable.

Read the opinion here.

Proof that defendant only aided or abetted commission of crime will support conviction on indictment for substantive offense

2008-08-05T10:16:00.002-04:00

Aiding-and-Abetting
United States v. Ellis,
No. 06-6340, ___ F.3d ___ (10th Cir. May 12, 2008)(W.D. Oklahoma).

Appeal of conviction for bank robbery.

HELD: Aiding and abetting is not an independent crime. However, aiding-and-abetting statute applies implicitly to all federal offenses and even though defendant is charged with commission of substantive offense, proof that he or she only aided or abetted commission of crime will support indictment.

Read the opinion here.

Driving below speed limit does not, without more, constitute obstructing or impeding traffic

2008-08-05T09:54:00.002-04:00

SEARCH & SEIZURE
United States v. Valadez-Valadez,
No. 06-2341, __ F.3d __ (10th Cir. May 12, 2008)(New Mexico).

Appeal of district court’s denial of defendant’s suppression motion made in connection with conditional guilty plea to transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(1), and (a)(1)(A)(v)(II).

HELD: Under totality of circumstances, State Police Officer did not have reasonable suspicion to stop defendant for impeding traffic in violation of New Mexico traffic statute. District court erred by not suppressing evidence seized as result of that traffic stop.

* Driving at speed moderately below speed limit does not, without more, constitute obstructing or impeding traffic.

* Vehicles cannot be stopped on “reasonable suspicion” that driver will commit traffic infraction in future.

Read the opinion here.

Bald Eagle Protection Act and its regulations are least restrictive means of pursuing government's compelling interest in preserving bald eagle

2008-07-24T10:54:00.001-04:00

STANDARD OF REVIEW
United States v. Friday,
No. 06-8093, ___ F.3d ___ (10th Cir. May 8, 2008)(Wyoming).

Government appeal of dismissal of indictment for shooting bald eagle in violation of Bald and Golden Eagle Protection Act at 16 U.S.C. § 668(a).

HELD:

(1) Whether a governmental interest is compelling within meaning of Religious Freedom Restoration Act, and whether means used by government to achieve that interest are least-intrusive means required by Act, are both questions of law that are reviewed de novo on appeal.

(2) District court erroneously dismissed indictment by concluding that government permit process for taking bald eagle was so maladministered that any application for such permit by defendant would have been a futile act. Because defendant did not apply for permit to take bald eagle, he cannot complain of any delay he might have experienced. Any delay in the permitting process that might have burdened his exercise of tribal religion, even if he could prove, based on the experience of others, that it would likely have been excessive, did not affect him.

Read the opinion here.

Unreasonable warrantless intrusion into home in violation of Fourth Amendment may occur by conduct other than physical entry

2008-07-23T12:25:00.002-04:00

SEARCH & SEIZURE
United States v. Reeves,
No. 07-8028, ___ F.3d ___ (10th Cir. May 7, 2008)(Wyoming).

Appeal of conviction based on conditional guilty plea to charge of being felon in possession of firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

HELD: District court erred in denying defendant’s motion to suppress evidence based on claim of unreasonable search and seizure resulting from warrantless doorstep arrest. Specifically, Court of Appeals held:

(1) Warrantless intrusion into home in violation of Fourth Amendment may occur by conduct other than physical entry.

(2) It is location of arrested person, not location of arresting officers that determines whether arrest occurs in home. Accordingly, arrest occurred in defendant's home where officers were positioned outside of door but defendant was still standing inside room when he opened door.

(3) When defendant opened motel room door at 3:00 a.m. after police officers pounded on it and window for twenty minutes while loudly identifying themselves as police, defendant opened door in response to show of authority by police and was therefore seized inside his home. Seizure occurred because a reasonable person under these circumstances would not feel free to ignore the officers’ implicit command to open the door.

(4) Where unlawful arrest occurs and consent to search is coerced, government bears burden of demonstrating voluntariness of later-obtained consent as well as break in causal connection in order to remove taint of illegality from seized evidence. In case where district court did not address taint issue when ruling on suppression motion and government neither seeks remand for additional fact finding nor argues facts bearing on question nor addresses question of whether there was break in causal relationship between unlawful arrest and the subsequent search, court of appeals cannot find that government met burden of showing that connection between illegality and consent was broken sufficient to avoid suppression of evidence under exclusionary rule.

Read the opinion here.

Drug dog’s failure to fully alert during sniff-test does not negate probable cause for search where remaining circumstances support such finding

2008-07-22T11:03:00.000-04:00

United States v. Munoz-Nava,
No. 06-2247, ___ F.3d ___ (10th Cir. May 6, 2008)(New Mexico).

Government appeal of district court’s below guidelines range sentence and defendant’s cross appeal of district court’s denial of suppression motion where defendant was convicted for possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).

HELD:

(1) Drug dog’s failure to fully alert during sniff-test of defendant’s boots does not negate probable cause when other circumstances support such finding. Dog’s pre-alert behavior changes may be considered as one piece in totality of circumstances analysis (i.e., unusual weight of boots, bulge, lack of wear, fresh glue, and similarities to boots used by smugglers and seized in same area by same DEA agent).

(2) District court did not abuse its discretion in deviating downward from guidelines sentencing range. District court’s reliance on defendant’s extraordinary family circumstances and exemplary conduct during pretrial release to determine that he was unlikely to reoffend and that he was sufficiently deterred from future criminal activity was supported by record. Sentencing judge has greater familiarity with case and defendant than Court of Appeals or Sentencing Commission. District court is therefore in superior position to find facts and judge their import under 18 U.S.C. § 3553(a) in an individual case. Accordingly, Court of Appeals must give due deference to district court's § 3553(a) sentencing determinations.

Read the opinion here.

Requiring defendant to don sunglasses for jury’s comparison to images of bank robber does not necessarily violate defendant’s due process rights

2008-06-26T06:31:00.000-04:00

TRIAL
United States v. Thompson,
No. 07-5103, __ F.3d __ (10th Cir. May 5, 2008)(N.D. Oklahoma).

Appeal of conviction for armed bank robbery, use of firearm during crime of violence, and possession of firearm after conviction of a felony in violation of 18 U.S.C. § 2113(a), (d), 18 U.S.C. § 924(c)(1)(A)(ii) , 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e).

HELD: If there is a very substantial likelihood of irreparable misidentification under an in-court identification procedure, district court should take eyewitness credibility issue from the jury. In this instance, however, district court’s order directing defendant to don sunglasses for jury’s comparison to bank robber shown in videotape did not violate defendant’s due process rights when considered in light of evidence of defendant’s guilt and court’s efforts to lessen suggestiveness of in-court identification procedure.

Read the opinion here.

Proof of knowledge of shotgun’s barrel length is not required for application of sentencing guidelines provisions pertaining to shotguns

2008-06-26T06:27:00.001-04:00

SENTENCING
United States v. Saavedra,
No. 07-2192, ___ F.3d ___ (10th Cir. May 1, 2008)(New Mexico).

Appeal of sentence for being an addict or unlawful user of a controlled substance in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(3)

HELD:

(1) Application of Sentencing Guideline § 2K2.1(a)(5), which provides base offense level of 18 for possession of shotgun with barrel shorter than 18 inches, does not require showing that defendant knew barrel was shorter than 18 inches. Unlike element of conviction, showing of knowledge is not required for either statutory or guidelines sentencing provisions. Under USSG § 2K2.1(a)(5), therefore, it is enough for the government to show that weapon’s characteristics fall within guideline.

(2) District court erred in determining defendant’s criminal history category by including municipal ordinance firearms conviction in calculation. Local ordinance violation may be included in defendant’s criminal history calculation only if it would also constitute violation of state law. In this instance, violation of ordinance might or might not have been violation of state law. Presentence Report contains no evidence detailing which section of ordinance defendant violated, nor does it show nature of conduct of which he was a convicted, nor did district court conduct any inquiry into the matter. Under these circumstances, where it is not possible to determine whether violation of ordinance also constituted violation of state law, district court committed procedural error in calculating defendant's criminal history category.

Read the opinion here.

Giving away small amount of marijuana without remuneration is not simple possession and therefore not lesser-included offense of distribution

2008-06-26T06:25:00.000-04:00

JURY INSTRUCTION
United States v. Eddy,
No. 07-5081, ___ F.3d ___ (10th Cir. April 29, 2008)(N.D. Oklahoma).

Appeal of conviction for possession of marijuana with intent to distribute and for distribution of marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D).

HELD:

(1) District court’s failure to instruct jury on lesser included offense is not constitutional error.

(2) District court did not err by not instructing jury sua sponte that simple possession of marijuana was a lesser included offense of distribution. Title 21 U.S.C. § 841(b)(4) does not define simple possession as distributing a small amount of marijuana without remuneration. Rather, it merely defines a mitigation exception for sentencing purposes for conviction of marijuana distribution in violation of 21 U.S.C. § 841(b)(1)(D). Accordingly, distributing small amount of marijuana without remuneration is not simple possession and, therefore, is not lesser-included offense of distribution charge.

Read the opinion here.

Innocent possession defense unavailable against charge of being felon-in-possession of ammunition

2008-06-26T06:22:00.000-04:00

AFFIRMATIVE DEFENSE
United States v. Baker,
No. 07-3002, ___ F.3d ___ (10th Cir. Feb. 28, 2008)(Kansas)(ordered published April 29, 2008)

Appeal of convictions for being felon in possession of ammunition and possession of stolen ammunition , in violation of 18 U.S.C. § 922(g)(1), and 18 U.S.C. § 922(j).

HELD: Defendant charged with crime of being felon in possession of ammunition, 18 U.S.C. § 922(g)(1), may not invoke the affirmative defense of “innocent possession.” By prohibiting knowing, as opposed to willful possession of firearm or ammunition, Congress intended that felon possessing firearm or ammunition always will be guilty once he knowingly possesses a weapon, without regard to how or why he came into possession or for how long possession was retained, even if intent was to retrieve firearm or ammunition from area where children were playing with further intent to take weapon to police.

NOTE: Rehearing denied by three judge panel (one judge dissenting). En banc rehearing denied (one judge dissents and four would grant rehearing).

Read the opinion, orders denying rehearing and en banc rehearing, and dissents here.

Under Hobbs Act, extortion includes exploitation of fear of economic loss in order to obtain property to which exploiter is not entitled

2008-06-26T06:19:00.000-04:00

STATUTORY CONSTRUCTION
United States v. Vigil,
No. 07-2060, ___ F.3d ___ (10th Cir. April 29, 2008)(New Mexico).

Appeal of conviction for attempted extortion in violation of Hobbs Act, 18 U.S.C. § 1951.

HELD:

(1) Where government presented evidence that defendant attempted to force contract bidder to hire political crony as condition for receiving state contract, reasonable jury could conclude evidence demonstrated defendant attempted to extort property by obtaining bidder’s intangible right to make business decisions free from outside pressure and to decide with whom to work. Under Hobbs Act, extortion includes exploitation of fear of economic loss in order to obtain property to which exploiter is not entitled. Cognizable property rights under Hobbs Act include intangible property rights including right to contract with party of one’s choosing, right to make business decisions free from outside pressure, and right to decide with whom to work.

(2) Under Hobbs Act, extortion may be proved where payments are made to third party. Thus, where state government official attempted to require that bidder hire political crony as condition of award of contract, official was attempting to obtain money from bidder by directing payments to third party.

Read the opinion here.

Miranda warnings are not necessary where defendant is told during interrogation that she could be arrested, but also told she is free to leave

2008-05-07T06:05:00.000-04:00

SEARCH & SEIZURE
United States v. Jones,
No. 07-4141, ___ F.3d ___ (10th Cir. Apr. 23, 2008)(Utah).

Appeal of conviction for possessing iodine knowing it would be used to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(c) and 846.

HELD: District court did not err by denying defendant’s motion to suppress statements made to federal agent. Agent’s statement to defendant during course of interrogation that he could arrest her did not vitiate his earlier statement to her that she was not under arrest and could leave at any time. Because defendant was free to leave, encounter with agent was not custodial and Miranda warnings were unnecessary.

Read the opinion here.

Collateral order doctrine does not permit review of interlocutory appeal of district court’s refusal to permit religious freedom defense in drug trial

2008-05-06T06:31:00.000-04:00

APPEAL
United States v. Quaintance,
No. 07-2137, ___ F.3d ___ (10th Cir. Apr. 15, 2008)(New Mexico).

Appeal of district court’s order denying dismissal of indictment and granting government’s motion prohibiting defendants from raising defense that Controlled Substances Act constituted substantial burden on their their exercise of religion in violation of Religious Freedom Restoration Act.

HELD: Defendants’ appeals are not appeals from final order and are therefore interlocutory in nature and must satisfy requirements of collateral order doctrine. Rights asserted in this appeal can be vindicated by appellate review after district court has entered final judgment. District court’s orders denying dismissal of indictment and granting government’s motion are therefore not reviewable under collateral order doctrine.

Read the opinion here.

District court must explain reasons for imposing sentence that is different from guideline range

2008-05-06T06:25:00.001-04:00

SENTENCING
United States v. Pena-Hermosillo,
No. 06-8075, ___ F.3d ___ (10th Cir. Apr. 15, 2008)(Wyoming).

Government appeal of district court’s decision to sentence defendant to 121 months in prison, well below applicable sentencing guidelines range, for possession of methamphetamine and cocaine with intent to distribute.

HELD: District court erred in denying sentence enhancements sought by government for defendant’s leader/manager role and use of minor in drug trafficking activities. In addition to improperly denying introduction of actual evidence relevant to enhancements, district court did not make procedurally adequate ruling on disputed issues. Moreover, even under district court’s alternative rationale invoking 18 U.S.C. § 3553 sentencing factors to sentence below guidelines advisory range, sentence imposed was procedurally unreasonable because court’s short explanation did not justify extent of variance. District court has discretion to vary from sentencing guidelines and tailor sentence in light of statutory concerns, but court has obligation to explain specific reason for imposing sentence different from guideline range.

Read the opinion here.

Pending application seeking lawful immigration status does not alter alien’s current unlawful status and thereby permit alien to possess firearm

2008-05-01T12:06:00.000-04:00

STATUTORY CONSTRUCTION
United States v. Ochoa-Colchado,
No. 07-4023, ___ F.3d ___ (10th Cir. Apr. 11, 2008)(Utah).

Appeal of conviction for possession of firearm by alien unlawfully in United States in violation of 18 U.S.C. § 922(g)(5)(A).

HELD: Filing of application for adjustment of unlawful immigration status to lawful status does not alter alien’s unlawful status during pendency of application. Therefore, despite defendant’s pending application for adjustment of immigration status and despite possession of valid temporary employment authorization document issued in connection with that application, defendant was still unlawfully present in United States for purposes of 18 U.S.C. § 922(g)(5)(A)’s prohibition against firearm possession by alien unlawfully in United States.

Read the opinion here.

Assuming 40% drop in fair market value per vehicle is reasonable when determining economic loss resulting from odometer tampering

2008-05-01T12:03:00.000-04:00

SENTENCING
United States v. Sutton,
No. 07-1223, ___ F.3d ___ (10th Cir. Apr. 3, 2008)(Colorado).

Appeal of sentence for mail fraud and odometer tampering in violation of 18 U.S.C. § 1341, 49 U.S.C. §§ 32703(2) and 32709(b), and 18 U.S.C. § 2.

HELD: District court’s method of calculating economic loss resulting from odometer tampering was proper where court multiplied number of vehicles by $4000 or 40% of average purchase price paid per vehicle by each victim. Declaration by vehicle valuation expert that “not actual mileage” title diminishes vehicle fair market value by 40%-50% provided reasonable basis for estimating loss at 40% of average purchase price.

Read the opinion here.

Defendant lacks standing to challenge search of rental van he was driving where he is not authorized renter or driver of vehicle

2008-05-01T12:01:00.001-04:00

SEARCH & SEIZURE
United States v. Worthon,
No. 07-3122, ___ F.3d ___ (10th Cir. Apr. 1, 2008)(Kansas).

Appeal of conviction for possession of marijuana with intent to distribute by challenging district court’s denial of motions to suppress evidence found during highway traffic stop.

HELD: Defendant lacked standing to challenge search of duffle bags found in van he was driving because van was rental vehicle and he was not named on rental agreement as renter or authorized driver and made no showing that any arrangement had been made with rental company that would have allowed him to drive vehicle legitimately. Because defendant was not in lawful possession of vehicle, he had no legitimate expectation of privacy in searched areas.

Read the opinion here.

Lay witness testimony may establish jurisdictional fact that crime scene was located in Indian country

2008-04-30T06:35:00.001-04:00

JURISDICTION
United States v. Lamy,
No. 07-2048, ___ F.3d ___ (10th Cir. Apr. 1, 2008)(New Mexico).

Appeal of convictions for aggravated sexual abuse in Indian country in violation of 18 U.S.C. § 1153.

HELD: Indian country situs is essential element of crime charged under 18 U.S.C. § 1153 and must be proved beyond reasonable doubt. Indian country includes all land within limits of any Indian reservation under jurisdiction of United States Government. Therefore, where lay witnesses who had either worked or lived on Zuni reservation were questioned in present tense about location of house where sexual assaults occurred as being on Zuni reservation land, but questions were asked and answered in context of timeframe of crime, jury could reasonably conclude that witnesses possessed requisite familiarity with boundaries of reservation and that house was within reservation boundaries at time of crime.

Read the opinion here.

Even though state court sentence provides for concurrent service of federal and state sentences, state court’s decision cannot alter federal sentence

2008-04-30T06:14:00.000-04:00

HABEAS/SENTENCING
United States v. Eccleston,
No. 07-2123, ___ F.3d ___ (10th Cir. Mar. 31, 2008)(New Mexico).

Appeal of district court’s denial of prisoner’s habeas application seeking to have state and federal sentences run concurrently and in federal custody

HELD: Prisoner’s habeas application seeking to have state and federal sentences run concurrently lacks merit because nothing in federal sentence suggests it is to be served before or concurrently with any state sentence. Although prisoner’s state sentence provides for concurrent service of federal and state sentences, state court’s decision cannot alter federal court sentence. Determination of whether prisoner’s federal sentence would run consecutively to his state sentence is federal matter which cannot be overridden by state court provision for concurrent sentencing on a later-obtained state conviction.

Read the opinion here.

Allegation of government’s use of perjured testimony may permit abatement of appeal so defendant may proceed under 28 U.S.C. § 2255 in district court

2008-04-29T06:33:00.000-04:00

APPEAL/COLLATERAL REVIEW
United States v. Rangel,
No. 06-2161, ___ F.3d ___ (10th Cir. Mar. 26, 2008).

Order abating appeal of conviction for possession of cocaine with intent to distribute while defendant pursues relief under 28 U.S.C. § 2255 in district court.

HELD: Where defendant raises substantial question about integrity of government’s prosecution and seeks hearing in district court to establish that government’s knowing use of perjured testimony by case agent deprived him of fair trial, defendant has presented that highly unusual case in which motion under § 2255 is appropriate while appeal from conviction is pending.

When, as in the exceptional facts of this case, the collateral claim casts such a dark shadow on a pivotal aspect of the direct appeal and, at the same time, implicates the fundamental fairness of the trial and propriety of the Government's actions, it is our view that the concerns for justice are best served by prompt inquiry either confirming or dispelling the suspicion of irregularity raised.

(quoting United States v. Taylor, 648 F.2d 565, 572 (9th Cir. 1981)).

Read the opinion here.

To qualify for “safety valve” sentence adjustment, defendant must disclose offense-related information to prosecutor, not probation officer

2008-04-28T06:35:00.002-04:00

SENTENCING
United States v. Cervantes,
No. 06-4172, ___ F.3d ___ (10th Cir. Mar. 24, 2008).

Appeal of sentence for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) where district court refused to apply “safety valve” adjustment to defendant’s sentence as provided at 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.

HELD:

(1) District court did not err by refusing to grant defendant “safety valve” sentence adjustment for truthfully providing to government all information and evidence concerning offenses that were part of same course of conduct or of common scheme or plan as required by 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Defendant does not meet requirements of “safety valve” provisions by disclosing evidence to probation officer during presentence investigation. Presentence report may not be considered as “information and evidence” provided to government for purposes of “safety valve” adjustment under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, because “government” means prosecuting authority, or Assistant U.S. Attorney, not probation officer.

(2) Representations of counsel are insufficient in absence of stipulations to support “safety valve” sentence adjustment to sentence.

Credibility determinations cannot be based upon which lawyer is more believable. Absent a favorable recommendation from the government, a defendant needs to put on evidence at the sentencing hearing to meet his burden of showing that he truthfully and fully disclosed everything he knew and to rebut government claims to the contrary. This evidence may include proffer documents, stipulated facts, or, in all likelihood, testimony from the defendant or a representative of the government subject to cross-examination.

It is axiomatic that he who has the burden of proof must put on some evidence at a sentencing hearing to allow the district court to find, by a preponderance of the evidence, that he is eligible for the safety-valve adjustment.

Read the opinion here.

Evidence of intoxication-induced amnesia not relevant to defense of being in U.S. illegally after prior deportation

2008-04-28T06:31:00.000-04:00

EVIDENCE
United States v. Hernandez-Hernandez,
No. 07-2028, ___ F.3d ___ (10th Cir. Mar. 21, 2008)(New Mexico).

Appeal of conviction of being “found in” United States illegally after prior deportation in violation of 8 U.S.C. § 1326(a) and (b).

HELD: District court’s decision to exclude evidence of defendant’s intoxication-induced amnesia was correct because proffered evidence was not relevant to any fact at issue in defendant’s defense, especially defense attacking mens rea (mental element) of the charged offense. Mens rea required to secure a conviction for being unlawfully “found in” United States is limited and no intent to break law, whether characterized as “specific intent” or “general criminal intent,” must be proved. Defendant’s proffered proof of intoxication and inability to remember how he came to United States did “not make it any more or less likely that he was (innocently) carried across the border against his will or (culpably) intended the physical actions that transported him to the United States. Had defendant’s proffered evidence included any evidence suggesting he was taken across border against his will, it would have been properly admissible. However, inviting jury to guess about defendant’s mode of arrival in United States based on absence of proof (i.e., “complete vacuum in his memory”) is another, and the district court properly ruled it out of bounds. Relevant evidence does not include the suggestion of speculative possibilities.”

Read the opinion here.

District court improperly excluded expert witness testimony because defendant’s Rule 16 disclosure did not explain witness’s methodology

2008-04-24T06:36:00.000-04:00

EVIDENCE
United States v. Nacchio,
No. 07-1311, ___ F.3d ___ (10th Cir. Mar. 17, 2008)(Colorado).

Appeal of convictions for insider trading in violation of 15 U.S.C. §§ 78j, 78ff, and 17 C.F.R. §§ 240.10b-5, and 240.10b5-1.

HELD:

(1) District court abused discretion by excluding defendant’s expert witness because defendant’s witness disclosure under Rule 16 of Federal Rules of Criminal Procedure did not provide full explanation of witness’s methodology sufficient to satisfy Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). A Rule 16 disclosure need not provide a full explanation of the witness's methodology, so it is wrong to demand that such a disclosure satisfy Daubert.

(2) It is abuse of discretion to exclude expert witness because his methodology is unreliable without allowing proponent to present any evidence of what methodology would be. Proponent bears burden of establishing admissibility of evidence under Rule 702 of Federal Rules of Evidence, but must be given opportunity to do so before testimony may be ruled inadmissible.

Read the opinion here.

Report of possible assault made by unidentified person in face-to-face encounter with police justifies stop of vehicle seen departing scene

2008-04-24T06:34:00.000-04:00

SEARCH & SEIZURE
United States v. Sanchez,
No. 06-2329, ___ F.3d ___ (10th Cir. Mar. 17, 2008)(New Mexico).

Appeal of district court’s denial of defendant’s motion to suppress evidence that led to defendant’s plea of guilty to being felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(A)(2).

HELD: Police had reasonable suspicion of criminal activity sufficient to justify investigatory stop of vehicle they saw quickly leaving residence where (1) the residence was near location identified as site of assault by unidentified woman who flagged them down and (2) neighbors were pointing at vehicle as police approached. Neither unidentified woman nor pointing neighbors were anonymous tipsters. The woman reported the assault to police in face-to-face encounter, thus putting her anonymity at risk and allowed police an opportunity to evaluate her credibility and demeanor. Neighbors divulged enough information about themselves to be capable of identification by standing outside their homes throughout stop and allowed themselves to be questioned by officers. In addition to being readily identifiable by police, they were also known to the occupants of the vehicle and exposed themselves to risk of retaliation by their conduct.

Read the opinion here.

Date of last act of evasion, not due date of taxes, triggers statute of limitation for tax evasion

2008-04-24T06:31:00.000-04:00

STATUTE OF LIMITATIONS/TAX EVASION
United States v. Thompson,
No. 06-4232, ___ F.3d ___ (10th Cir. Mar. 12, 2008)(Utah).

Appeal of convictions and sentence for conspiracy to defraud United States, tax evasion, and corruptly endeavoring to interfere with administration of internal revenue laws.

HELD:

(1) Because evasive acts following filing of tax return may be part of offense, it is date of latest act of evasion, not due date of taxes that triggers statute of limitations. Holding otherwise would reward defendant for successfully evading discovery of tax fraud for period of six years after date returns filed.

(2) Where evidence supported lesser -included offense jury instruction for misdemeanor tax evasion, trial court’s failure to issue that instruction was not error in the absence of request from defendant. However, even if plain error analysis is applied, there is no noticeable plain error. Under plain error standard, non-constitutional error will not be noticed unless it is particularly egregious and court’s failure to notice would result in miscarriage of justice. Therefore, where there was more than enough evidence to support defendant’s conviction for tax evasion, and Defendant did not show that “miscarriage of justice” resulted from district court's failure to instruct on lesser-included offense of misdemeanor tax evasion, error, if any, was not noticeable.

(3) Evidence was sufficient to show: (1) that foreign commission checks were personal income, rather than loans or payments to taxpayers' corporations; (2) that failure to report personal income was willful; (3) that defendant spouse entered into conspiracy to defraud United States; (4) willfulness and agreement, as required to convict defendant attorney of conspiracy to defraud.

(4) Application of 2001 Sentencing Guidelines for crimes committed in 1989 did not violate Ex Post Facto Clause because offenses continued after date on which 2001 Guidelines became effective.

(5) Defendant did not show requisite prejudice to support claim of due process violation by government in obtaining ex parte order compelling attorney to testify to grand jury under crime/fraud exception to attorney-client privilege.

(6) Severance was not warranted.

(7) Tax loss amounts were properly calculated in determining base offense level for sentencing.

Read the opinion here.

Defendant’s perjury sentence was properly hitched to guidelines sentence for murder where perjury occurred before grand jury investigating murder

2008-04-14T06:37:00.004-04:00

SENTENCING
United States v. Olsen,
No. 06-4307, ___ F.3d ___ (10th Cir. Mar. 11, 2008)(Utah).

Appeal of convictions and sentence for perjury in violation of 18 U.S.C. § 1623(a).

HELD: Regardless of standard of proof applied (i.e., preponderance, clear and convincing, or beyond reasonable doubt) evidence showed that defendant perjured himself before grand jury investigating victim’s disappearance and possible murder. Defendant’s perjury, therefore, related to crime of murder. Consequently, district court correctly applied sentencing guideline for second-degree murder as cross-referenced offense underlying the perjury to determine defendant’s sentencing base offense level of 38.

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Appeal waiver is not enforceable if government breaches plea agreement

2008-04-14T06:21:00.000-04:00

APPEAL/PLEA AGREEMENT
United States v. Rodriguez-Rivera,
No. 06-3386, ___ F.3d ___ (10th Cir. Mar. 11, 2008)(Kansas).

Appeal of convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii).

HELD: Appeal waiver in plea agreement is not enforceable if government breaches agreement. In this case, however, government’s arguments concerning defendant’s related offense conduct and supervisory role sentence enhancement, as well as arguments against acceptance of responsibility sentence reduction, were either required or permitted by express language of plea agreement. Therefore, government did not breach plea agreement and appeal waiver is enforceable against defendant.

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Subscriber information provided to internet service provider is not protected by Fourth Amendment privacy expectation

2008-04-14T06:12:00.000-04:00

SEARCH & SEIZURE
United States v. Perrine,
No. 06-3336, ___ F.3d ___ (10th Cir. Mar. 11, 2008)(Kansas).

Appeal of convictions for distributing child pornography, receiving child pornography, and possessing child pornography in violation 18 U.S.C. § 2252(a)(2); 18 U.S.C. § 2252(a)(2); of 18 U.S.C. § 2252(a)(4)(B).

HELD:

(1) Subscriber information (name, address, etc.,) provided to internet service providers is information voluntarily transmitted to third-parties. It is therefore not protected by Fourth Amendment’s privacy expectation.

(2) Where defendant had peer-to-peer software installed on home computer permitting anyone on internet to access certain folders on computer and such access could expose subscriber information to outsiders, such action vitiated any expectation of privacy in computer and contents.

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State assault conviction for drugging victim is not crime of violence for guidelines sentencing purposes

2008-04-09T06:44:00.001-04:00

SENTENCING
United States v. Rodriguez-Enriquez,
No. 07-2033, ___ F.3d ___ (10th Cir. Mar. 10, 2008)(New Mexico).

Appeal of sentence for illegal reentry of deported alien previously convicted of aggravated felony in violation of 8 U.S.C. § 1326(a)(1), (a)(2), (b)(2).

HELD: Drugging by surreptitious means does not involve use of physical force. Therefore, Colorado conviction for second-degree assault (drugging a victim) does not constitute crime of violence for sentencing purposes under USSG § 2L1.2(b)(1)(A)(ii).

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Government’s failure to certify that appeal is not taken for purpose of delay presents non-jurisdictional question of whether appeal should be heard

2008-04-07T12:43:00.000-04:00

APPELLATE PRACTICE/SEARCH & SEIZURE
United States v. Lopez,
No. 07-3159, ___ F.3d ___ (10th Cir. Mar. 4, 2008)(Kansas).

Government appeal of district court order suppressing drug evidence.

HELD: Government’s failure to certify that appeal of adverse suppression decision was not taken for purpose of delay, and that suppressed evidence was substantial proof of material fact, does not deprive court of appeals of jurisdiction. Rather, government’s failure presents court with discretionary question of whether appeal should be heard. Purpose of certification requirement is to ensure that government attorneys conduct thorough and conscientious analysis of case before deciding to appeal. Where uncontested affidavits showed that several government attorneys considered and discussed case over extended period of days and showed further that written memorandum analyzing appeal was prepared, government did in fact undertake reasoned pre-appeal analysis of proposed appeal and thereby acted in substantial compliance with certification rule.

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Compelled disclosure of work-product or attorney-client material is redressable only if party took steps to preserve confidentiality

2008-04-07T12:41:00.000-04:00

PRIVILEGE/APPELLATE PRACTICE/EVIDENCE
United States v. Ary,
No. 06-3383, ___ F.3d ___ (10th Cir. Mar. 4, 2008)(Kansas).

Appeal of conviction and sentence for mail and wire fraud, theft of government property, transportation of stolen property, and money laundering stemming from transactions involving space artifacts belonging to science museum.

HELD:

(1) In case of involuntary disclosure of material allegedly covered by work-product doctrine or attorney client privilege, party asserting privilege must pursue all reasonable means to preserve material’s confidentiality. On appeal, court of appeals will take into account circumstances surrounding disclosure, and will examine specificity with which party identified material, whether protection was asserted in a timely fashion, and whether additional steps, such as judicial action, were necessary for protection.

(2) 10th Cir. R. 28.1 requires parties to cite to place in the record where evidence can be found. A 600-page range does not satisfy this requirement.

(3) Science museum’s computer and paper inventory records of items contained in collection of historic space artifacts were properly admissible under business records exception to hearsay rule at Rule 803(6) of Federal Rules of Evidence where testimony of museum curators established that those records were kept in course of regularly conducted business activity, and it was regular practice of museum curators to make such records.

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District court may consider sentencing disparities between defendants when deciding to vary from guidelines sentencing range

2008-04-07T12:39:00.001-04:00

SENTENCING
United States v. Smart,
No. 06-6120, ___ F.3d ___ (10th Cir. Mar. 4, 2008)(W.D. Oklahoma).

Government appeal of district court’s downward variation from sentencing guidelines range in case in which defendant was convicted of inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct in violation of 18 U.S.C. § 2251(a).

HELD:

(1) Defendant is not entitled to variance from presumptively reasonable guidelines sentence merely because he received larger sentence than codefendant. However, district court may consider disparities between defendants when deciding to vary from guidelines sentencing range in order to avoid unwarranted sentencing disparities among similarly situated defendants.

(2) Under "abuse of discretion" standard of review, court of appeals must give both formal and practical deference to sentencing court’s assessment of facts under 18 U.S.C. § 3553(a) and may not assume that sentencing guidelines perfectly express the § 3553(a) sentencing factors in an individual case in face of district court’s conclusion to contrary.

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Variance from guidelines sentencing is permissible if crack/powder sentence disparity is greater than necessary to meet statutory sentencing purposes

2008-04-07T12:06:00.000-04:00

SENTENCING
United States v. Trotter,
No. 05-3487, ___ F.3d ___ (10th Cir. Mar. 3, 2008)(Kansas).

Remand from Supreme Court in appeal of sentence for possession of crack cocaine with intent to distribute.

HELD: In light of Supreme Court’s decision in Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558 (2007), district court’s denial of defendant’s request for variance from guideline sentencing range was incorrect to extent it was based on belief that defendant’s crack/powder sentence disparity argument could not constitute valid reason for varying from sentencing guidelines. Under Kimbrough, it is not abuse of discretion for district court to conclude that harsher sentence directed by sentencing guidelines for crack cocaine offense (versus powder cocaine offense) yields sentence greater than necessary to meet 18 U.S.C. § 3553(a)’s sentencing purposes.

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Counterfeit checks and account numbers printed on them are not account access devices for purposes of enhancing sentence under USSG § 2B1.1

2008-04-02T07:44:00.001-04:00

SENTENCING
United States v. Tatum,
No. 07-7053, ___ F.3d ___ (10th Cir. Mar. 3, 2008)(E.D. Oklahoma).

Appeal of sentence for uttering a counterfeit check with the intent to deceive an organization in violation of 18 U.S.C. § 513(a).

HELD: District court erred by imposing six-level sentence enhancement under USSG § 2B.1(b)(10) for use of "device" or "device-making equipment" to obtain access to money, goods, services, or initiating transfer of funds. Counterfeit checks and account numbers printed on those checks by defendant as part of fraudulent scheme are not access devices as contemplated by statutory definition.

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Presumption of reasonableness of sentence cannot be overcome by alleging that inconsistencies may exist with sentences given other defendants

2008-04-02T07:39:00.001-04:00

SENTENCING
United States v. Tindall,
No. 07-8038, ___ F.3d ___ (10th Cir. Mar. 3, 2008)(Wyoming).

Appeal of sentence for assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153.

HELD: Defendant cannot overcome presumption of reasonableness of sentence by pointing out that some alleged inconsistencies exist in how other defendants may have been sentenced within circuit. Title 18 U.S.C. § 3553(a)(6) speaks in terms of needing to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. Because defendant failed to explain how his circumstances, criminal history, and conduct are similar to those with whom he seeks to draw a comparison, court of appeals cannot meaningfully decide whether alleged disparities are truly unwarranted.

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Sua sponte application of FRAP Rule 4(b) is inappropriate where there is no waste of judicial resources and no inordinate delay

2008-03-03T16:31:00.000-05:00

APPEAL
United States v. Mitchell,
No. 05-2052, _ F.3d _ (10th Cir. Feb. 29, 2008)(New Mexico).

Opinion on remand from Supreme Court in appeal of conviction for possession of more than 100 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

HELD:

(1) While Rule 4(b) of Federal Rules of Appellate Procedure, which requires filing notice of appeal within ten days of judgment, is similar to a statute of limitations, the time bar imposed by the rule is not necessarily for exclusive benefit of litigants as are statutes of limitation. Rule 4(b) differs from other time bars such as statutes of limitation in that it plays important role in ensuring finality of criminal conviction and finality serves interests of judicial administration and society.

Because Rule 4(b) implicates important judicial interests beyond those of the parties, court of appeals may raise its time bar sua sponte. This power, however, is limited and should not be invoked when judicial resources and administration are not implicated and the delay has not been inordinate.

(2) Defendant’s notice of appeal was one day late. The violation of Rule 4(b), however, did not cause any waste of judicial resources, nor did it constitute an inordinate delay in appellate claim processing. Therefore, raising the rule’s time bar sua sponte would be inappropriate.

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