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TCL > May 2003 Issue > Tenth Circuit Summaries

May 2003       Vol. 32, No. 5       Page  127
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

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 are available on the CBA website at http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.

Prior Conviction for Crime Punishable by Imprisonment Exceeding One Year—Retroactive Application of State Supreme Court Decision Regarding State Sentencing Guidelines—State Felony Aggravated Assault—Separate Sentences for Revocation of Probation—Application Note 11 to U.S.S.G. § 4A1.2

U.S. v. Norris, No. 02-3047, 2/19/03, D.Kan., Judge Kelly.
Defendant appeals his guilty plea and sentence. When he pled guilty to one count of possession of a firearm by a convicted felon, he reserved his right to appeal the district court’s order denying his motion to dismiss the indictment for lack of a qualifying conviction. He also argues that at sentencing, the court erroneously calculated his criminal history category and mistakenly applied a four-level enhancement for possessing a firearm in connection with another felony.

The Tenth Circuit Court of Appeals affirms. The Court holds that the district court correctly denied defendant’s motion to dismiss the indictment for lack of a qualifying conviction, under 18 U.S.C. § 922(g)(1). Under this statute, the prior conviction must be for a crime punishable by imprisonment for a term exceeding one year. Under the sentencing guidelines for the state of Kansas, defendant’s two prior offenses carried presumptive maximum sentences of seven and nine months, respectively. However, at the time, Kansas law permitted upward departures by the trial court to double the maximum of the presumptive imprisonment term. Even though the state judge did not depart, the convictions were "punishable" by terms exceeding one year if the court had departed. These prior convictions qualified, because where a departure sentence could exceed one year, the underlying offense qualifies as a crime punishable by imprisonment for a term exceeding one year. Defendant notes that in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), the Kansas Supreme Court held that this statutory scheme for imposing upward departure sentences was unconstitutional, but that the opinion was not retroactive to cases that were final before the date of the decision in Apprendi v. New Jersey, 530 U.S. 466 (2002). Because defendant’s state convictions were final before the cut-off date in Gould, the decision in that case has no effect on either the validity of his convictions or their classification for purposes of § 922(g)(1). The Court holds that the district court correctly applied a four-level enhancement to defendant’s base offense level on the ground that his possession of a firearm was in connection with another felony offense. The government placed in evidence, as an admission, a paragraph of defendant’s plea agreement. The court held that the witness’s unrebutted statement was sufficient to justify application of the enhancement. This evidence was sufficient to warrant application of the enhancement. Finally, the court did not err in calculating defendant’s criminal history category. Where a state court has imposed multiple sentences on a revocation of probation, regardless of whether they are to be served consecutively or concurrently, Application Note 11 to U.S.S.G. § 4A1.2 does not apply, and the sentencing court must calculate the defendant’s criminal history category in accordance with subsection (k). The judgment is affirmed.

Habeas Corpus—Constitutional Right to Present a Defense—Scientific Support for Expert’s Methods—Right of Confrontation

Morris v. Burnett, No. 01-1248, 2/19/03, D.Colo., Judge Hartz.
The U.S. District Court for the District of Colorado granted petitioner’s application for a writ of habeas corpus under 28 U.S.C. § 2254, ruling that the state court violated his constitutional right to present a cogent defense during his trial for sexual assault on a child. Respondents appeal. The trial court’s alleged errors arise from its refusal to allow the testimony of proposed defense expert Dr. Bebensee and its restriction on defense counsel’s cross-examination of Detective Betz. The charge arose from the accusation of the 12-year-old victim that petitioner had fondled him.

The Tenth Circuit Court of Appeals reverses. The state trial court based its exclusion of Dr. Bebensee’s testimony on its finding that the doctor essentially would be expressing an opinion on the victim’s credibility. The state appeals court agreed. The Tenth Circuit Court holds that petitioner did not rebut by clear and convincing evidence the presumed correctness of that finding. The federal district court erred in granting habeas relief on the basis of petitioner’s claim that the trial court unconstitutionally excluded Bebensee’s testimony. Petitioner’s due process right to present a defense was not violated by exclusion of the testimony, especially in light of petitioner’s failure in state court to present scientific support for the expert’s methods. As for the restrictions on Betz’ cross-examination, the Tenth Circuit Court holds that the state court did not unreasonably apply federal law in holding that petitioner’s right of confrontation was not violated. The federal district court’s judgment is reversed.

Notice of Dismissal Self-Executing—Plaintiff Has Absolute Right to Dismiss Before Defendant Serves Motion—No Court Order Required

Janssen v. Harris, No. 01-6127, 2/25/03, W.D.Okla., Judge Briscoe.
Plaintiff filed suit through counsel. The district court granted defendants’ motion to disqualify counsel on February 14, 2001. Plaintiff filed a pro se letter requesting dismissal on March 15, 2001, before defendants filed an answer or a summary judgment motion. The district court entered an order of dismissal on March 21, 2001. Plaintiffs’ attorneys appealed the order disqualifying them, counting March 21 as the start of the time to file a notice of appeal. Defendants argued that the appeal was untimely because the time ran from March 15, the date of the pro se letter requesting dismissal.

The Tenth Circuit Court holds that the dismissal was effective on March 15, the date the plaintiff filed his pro se letter seeking dismissal. Under Fed.R.Civ.P. 41(a)(1)(i), a plaintiff has an absolute right to dismiss without prejudice, and no action is required by the court. The order of dismissal was superfluous. Because the notice of appeal was not filed timely, the Tenth Circuit Court is without jurisdiction. The appeal is dismissed.

ERISA—Welfare-Benefit Plan—Non-solicitation Agreement—Prior Notice of Plan’s Terms

Cirulis v. UNUM Corp. Severance Plan, No. 01-3362, 3/5/03, D.Kan., Judge Lucero.
Plaintiff sued his former employer ("UNUM") to recover severance benefits under a welfare-benefit plan governed by ERISA. The plan administrator denied benefits because plaintiff refused to sign a non-solicitation agreement prohibiting him from soliciting UNUM employees to terminate their employment with UNUM. The district court entered summary judgment in UNUM’s favor.

The Tenth Circuit Court notes that plaintiff did not learn of the terms of the required agreement until two months after he was notified that his job would be terminated. The plan made two oblique references to an "Agreement and General Release," but it did not inform employees that severance benefits would be conditioned on a non-solicitation agreement. Therefore, the Tenth Circuit Court holds that the imposition of new conditions that did not appear on the face of the plan constituted arbitrary and capricious conduct. The summary judgment in UNUM’s favor is reversed and the case is remanded.

CERCLA—Contribution to Cleanup as Operator or Arranger—Connection Required Between Operator and Facility

Raytheon Constructors Inc. v. ASARCO Inc., Nos. 00-1500 & 00-1530, 3/11/03, D.Colo., Judge Seymour.
Raytheon Constructors Inc. ("Raytheon") sought a declaratory judgment that it was not liable under CERCLA for the costs of cleaning up the Rawley Mine in Saguache County, Colorado. ASARCO Inc. counterclaimed, arguing that Raytheon was liable as the successor-in-interest to one of the original shareholders of the mine. The district court held Raytheon liable for CERCLA contribution as an "operator" or "arranger." Raytheon appealed.

The Tenth Circuit Court applies United States v. Bestfoods, 524 U.S. 51 (1998), and determines that Raytheon could be held liable only if the operation and arrangement functions of the Rawley Mine were attributable directly to Raytheon’s predecessor in its capacity as a stockholder. An "operator" must have a connection with the facility, not just with a subsidiary or shareholder. Here, the acts of Stearns, who served as president of the Rawley Mine board and also as president of Raytheon’s predecessor, were crucial to the determination of CERCLA liability. The Tenth Circuit Court recognizes that Stearns’ actions were in his capacity as an executive of the Rawley Mine board and could not be attributed to Raytheon’s predecessor. Therefore, Raytheon was not liable under CERCLA. The district court’s judgment is reversed.

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