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TCL > February 2003 Issue > Tenth Circuit Summaries

February 2003       Vol. 32, No. 2       Page  115
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Downward Departure—Possession of Firearm While Subject to Domestic Violence Protective Order—Ignorance of Statute —Second Amendment—Commerce Clause—Use of Weapons for Sporting or Collection Purposes

U.S. v. Bayles, Nos. 01-4092 & 01-4097, 11/15/02, D.Utah, Judge Henry.

Defendant pled guilty to possessing a firearm while subject to a domestic violence protective order, in violation of 18 U.S.C. § 922(g)(8). Because defendant was unaware of that statute, the district court granted a seven-level downward departure and imposed a sentence of twenty-four months’ probation. The government appeals the downward departure. In a cross-appeal, defendant argues that his conviction violates the Second Amendment and the Commerce Clause of the U.S. Constitution. He also argues that the district court erred by rejecting his contention that his guns were used solely for sporting purposes or lawful collection, thereby denying his request for a reduction in the offense level. This conviction arises from a protective order that does not impose restrictions on defendant’s possession of firearms. His attorney advised him that federal law might require him to not possess firearms. Defendant admitted that he owned numerous rifles and handguns, and he was arrested and charged with possessing firearms while subject to a protective order. He moved to dismiss the indictment on the ground that the statute violated his constitutional rights. The court denied the motion and defendant entered a guilty plea, conditional on his right to appeal that ruling. The district court denied defendant’s request for a reduction in the offense level based on his alleged use of the weapons for sporting or collection purposes. The court did rule in his favor on his motion for a downward departure, based on the fact that he received bad legal advice, and that this was aberrant behavior.

The Tenth Circuit Court holds that § 922(g)(8) does not infringe defendant’s right to bear arms under the Second Amendment, and does not violate the Commerce Clause. The district court did not err in refusing to reduce defendant’s offense level under USSG § 2K2.1(b)(2) (sporting purposes). Two of the weapons were handguns that were not possessed for sporting or collections purposes, and defendant carried ammunition with the handguns. The Court also holds that the district court abused its discretion in imposing a downward departure. Regarding the court’s rationale that defendant’s conduct was outside the heartland of the statute, the Court holds that defendant’s ignorance of the statute does not remove his conduct from the heartland, and therefore is not a permissible basis for departure. The conviction is affirmed. Defendant’s sentence is vacated and the case is remanded for resentencing.

Age Discrimination in Employment Act—Federal Employees—Emotional Damages—Sovereign Immunity—Attorney Fees

Villescas v. Abraham, No. 01-1389, 11/27/02, D.Colo., Judge Anderson.

During the time the plaintiff was an employee of the Department of Energy, he testified on behalf of a coworker against the agency in proceedings alleging discrimination. The plaintiff was then subjected to an exceptionally intrusive investigation into his private life and alleged wrongdoing on the job. He sued the agency, alleging retaliation, in violation of Title VII and the Age Discrimination in Employment Act ("ADEA"). A jury found in the agency’s favor on the Title VII claim. Following a bench trial on the ADEA claim, the district court awarded damages to the plaintiff for humiliation and emotional distress, plus attorney fees. The Secretary of the Department of Energy appealed.

The Tenth Circuit Court recognizes that federal employees were covered by the 1974 amendment to the ADEA, codified at 29 U.S.C. § 633a, which provides for somewhat different treatment of federal employees than private employees. The Court rejects the plaintiff’s claim that retaliation claims are an exception to the general rule that separate damages for emotional distress are not available in ADEA cases. The Court holds that § 633a does not waive the sovereign immunity of the United States from an ADEA action seeking solely compensatory damages for emotional distress arising from retaliation for engaging in protected conduct. The reversal of the compensatory damages award also required reversing the attorney fee award because the plaintiff was not a prevailing party. The district court’s judgment is reversed.

Illegal Reentry After Deportation Under 8 U.S.C. § 1326—Sentence Enhancement Under U.S. Sentencing Guidelines—Prior Conviction—Consideration of Entire Prior Record

U.S. v. Soto-Ornelas, No. 01-6411, 12/3/02, W.D.Okla., Judge Henry.

Defendant appeals his sentence, imposed after he pled guilty to illegal re-entry after deportation. He had at least two prior convictions. His 1992 conviction was for burglary of a dwelling. His 1994 conviction was for unlawful possession of cocaine. The burglary conviction would require a sixteen-level enhancement to his sentence under the sentencing guidelines. The drug charge would require an eight-level enhancement. The conviction listed in the indictment was the drug charge. The issue on appeal is whether the burglary conviction could be used to enhance defendant’s sentence under 8 U.S.C. § 1326(b)(2), or whether the enhancement should be based on the drug charge. The district court used the burglary conviction to enhance defendant’s sentence.

The Tenth Circuit Court affirms. First, the prior conviction set out in the indictment does not control which prior conviction can be used to enhance a defendant’s sentence under § 1326. Second, there is no authority to support the position that only the immediately preceding felony is relevant. The court can, and should, take into account the defendant’s entire prior record. The judgment is affirmed.

Dismissal of Case as Sanction—Attorney’s Repeated Violations of Court Orders—Attorney as Agent

Gripe v. City of Enid, No. 01-6430, 12/4/02, W.D.Okla., Judge Hartz.

The plaintiff filed a civil rights suit against the defendant. His attorney missed several deadlines. The district court warned him twice that continued failure to comply with court orders and rules could result in dismissal of the case. Thereafter, the plaintiff’s attorney failed to appear at a court-ordered pretrial conference, and the court dismissed the case as a sanction. The district court held that dismissal was warranted due to the attorney’s continued failure to comply with court orders and rules, as well as the inconvenience and expense to the other parties.

The plaintiff appealed, arguing that he should not be penalized for his attorney’s failures. The Tenth Circuit Court notes that the district court had considered the appropriate factors of prejudice to the other parties, interference with the judicial process, culpability of the litigant, warning that dismissal was likely, and the efficacy of lesser sanctions. As for culpability of the plaintiff, the Court observes that the record did not indicate what, if anything, the plaintiff knew of his attorney’s derelictions. Nevertheless, it was appropriate for the plaintiff to be bound by the mistakes of his attorney-agent. The district court’s order dismissing the case as a sanction was affirmed.

Summary Judgment—Failure to File Response—Response Waived by Local Rule—Sanctions as Alternative

Reed v. Nellcor Puritan Bennett, No. 01-3116, 12/6/02, D.Kan., Judge Baldock.

The plaintiff sued her former employer, alleging violation of the Americans With Disabilities Act. Even though he received extensions of time to comply with discovery deadlines, the plaintiff’s attorney did not meet the deadlines, nor did he respond timely to the defendant’s motion for summary judgment. The district court granted the defendant’s summary judgment motion on the ground that no response was filed within twenty days, as required by the local rule.

On appeal, the Tenth Circuit Court holds that the local rule must be applied in a manner consistent with Fed.R.Civ.P. 56, which requires the court to examine whether the motion for summary judgment demonstrates that there are no material issues of fact and the moving party is entitled to judgment as a matter of law. If not, summary judgment is not appropriate, even if no response was filed. The plaintiff’s failure to respond, however, waived her right to controvert the facts asserted in the summary judgment motion. Tenth Circuit Court further holds that summary judgment is available as a sanction for failing to prosecute the case, but the district court must first evaluate the prejudice to the opposing party, interference with the judicial process, and the culpability of the litigant. The case is remanded for a determination of whether summary judgment was appropriate under Rule 56, or, in the alternative, an evaluation of the factors for imposing sanctions.

Habeas Appeal—Death Penalty—Due Process Violation—Admission of Psychiatric Report During Guilt Phase

Ellis v. Mullin, No. 01-6004, 12/10/02, W.D.Okla., Judge Ebel.

Defendant is a schizophrenic man who went on a ninety-minute killing spree in Oklahoma, killing three people and wounding four. He received three death sentences after trial in the state court. His direct appeal was denied. He filed this habeas petition in federal district court, and the court rejected all of his claims. Among other things, in this habeas appeal, defendant argues that the trial court improperly excluded critical evidence of his insanity, in violation of Chambers v. Mississippi, 410 U.S. 284 (1973). Before trial, the court ordered that defendant be examined by doctors at the Oklahoma department of mental health. The psychiatrist prepared a discharge report in which he diagnosed defendant as schizophrenic, and made numerous relevant observations. During the guilt phase of defendant’s trial, his sole strategy was to argue that he was insane when he committed the murders. The trial court refused to introduce the psychiatrist’s report into evidence.

The Tenth Circuit Court reverses, holding that the trial court’s exclusion of the psychiatrist’s pre-trial diagnosis of schizophrenia denied him due process under Chambers. The report did bear upon defendant’s sanity at the time of the incident, and the report was exculpatory, thereby implicating the fundamental fairness of the trial, because it would have created reasonable doubt that did not exist without it. For these reasons, defendant’s due process right to present evidence critical to his defense was violated by the court’s exclusion of the report during the guilt phase of the trial. The district court judgment is reversed insofar as it denied habeas relief as to the guilt phase of defendant’s trial. The writ is granted, subject to the condition that the state retry defendant within a reasonable time or be subject to further federal proceedings to consider his release.

"Knock and Announce" Rule of 18 U.S.C. § 3109—Reasonable Delay—Time of Day—"Useless Gesture" Doctrine

U.S. v. Gallegos, No. 02-4012, 12/11/01, D.Utah, Judge Kelly.

Defendant entered a conditional guilty plea to one drug count and one gun count. He reserved his right to appeal the district court’s order, which denied in part and granted in part his motion to suppress evidence obtained from a search of his residence, a safe deposit box, and two storage sheds. The magistrate judge recommended that the motion be granted as to evidence seized pursuant to the search of one storage shed, but denied as to all other evidence. The district court adopted the magistrate judge’s report and recommendation in its entirety. Defendant raises several arguments on appeal, including the argument that the officers executing the warrant violated the "knock and announce" rule in 18 U.S.C. § 3109.

At around 4:00 a.m., a member of the law enforcement team began knocking on the front door of defendant’s residence, identifying the team as police and FBI. After waiting five to ten seconds, the team began trying to breach the door with a battering ram. They entered, and the officers assigned to secure the second floor found defendant exiting a bedroom with a loaded handgun, which he dropped at the officers’ direction. Defendant was taken into custody. He argues that the officers executing the warrant violated the "knock and announce" rule of § 3109, asserting that even if the officers properly announced their presence and purpose, he lacked sufficient time either to grant or refuse entry to the officers.

The Tenth Circuit Court reverses, holding that the officers failed to comply with the requirements of § 3109, and evidence obtained during the ensuing search must be suppressed. The statute permits officers to forcibly enter a residence if, after announcing their presence and purpose, they are refused entry. The question here is whether an objectively reasonable officer would believe that he was refused admittance based on the facts and circumstances known to him at the time of entry. Under the circumstances known to these officers—the time of day, the absence of any activity in the house, and the known upstairs location of the bedroom—no objectively reasonable officer would believe that defendant refused admittance within five to ten seconds. Even without those factors, the five-to-ten-second interval pushes the limits of what is reasonable in knock and announce cases. The fact that defendant was later found with a gun—a fact discovered after the forcible entry—cannot justify the unreasonably short waiting period. Thus, the "useless gesture" doctrine does not apply. The order is reversed and the case is remanded.

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

Full copies of the Tenth Circuit decisions summarized in each issue are available on the CBA website at (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.

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