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TCL > June 2004 Issue > Tenth Circuit Summaries

June 2004       Vol. 33, No. 6       Page  129
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.


Removal to Federal Court—Remand to State Court—Review by Appeal—Not Mandamus

Farmland National Beef Packing Co. v. Stone Container Corp., Nos. 04-3015 & 04-3028, 3/2/04, D.Kan., Per Curiam.

This antitrust suit, originally filed in a state court, was removed to federal court by the twelve defendant companies. However, two defendant-company names did not appear in the signature block. Therefore, plaintiff filed a motion to remand, which the district court granted for lack of unambiguous unanimous consent to removal. Defendants appealed and also filed a petition for a writ of mandamus. Plaintiff moved to dismiss the appeal or mandamus petition for lack of appellate jurisdiction.

The Tenth Circuit Court determines that the district court’s order remanding the removed case was reviewable under limited circumstances. The question presented here was whether the merits should be considered within defendants’ mandamus petition or within their appeal. The Tenth Circuit Court holds, for remand orders that are reviewable, that review is by appeal, not mandamus.

Waiver of Right to Appeal—Plea Agreement—Statutory and Constitutional Subject Matter Jurisdiction—Mootness

U.S. v. Hahn, No. 01-2301, 3/4/04, D.N.M., Per Curiam.

Defendant entered into a plea agreement in which he waived the right to appeal his sentence. The district court held that it was required to impose on defendant a sentence to be served consecutively with an earlier sentence. Defendant appealed, arguing that the district court had discretion to sentence him to concurrent sentences. The case was set for en banc review to address the issue of plea agreements that contain a waiver of the defendant’s right to appeal the district court’s sentence and the underlying conviction.

The Tenth Circuit Court holds that it has statutory subject matter jurisdiction under 28 U.S.C. § 1291 over sentencing appeals, even when defendant has waived his right to appeal in an enforceable plea agreement. Second, an appeal challenging the enforceability of an appellate waiver is not moot, because the Court has the power to afford the legally cognizable relief—voiding the plea—that is being requested by a party. Thus, the Court has both statutory and constitutional subject matter jurisdiction over appeals when a criminal defendant has waived his appellate rights in an enforceable plea agreement. The Court adopts four principles to be considered in resolving this type of appeal: every circuit enforces at least some forms of appellate waivers; contract principles govern plea agreements; a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the district court’s whim; and appellate waivers benefit the government by saving the costs of prosecuting appeals. The Court then adopts a three-prong analysis. In reviewing appeals brought after a defendant has entered into an appeal waiver, the court should determine: (1) whether the disputed appeal falls within the scope of the waiver; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. In so doing, the Court adopts a new procedure for the government to file a "Motion for Enforcement of the Plea Agreement." In this case, the Court holds that the appeal is within the scope of the waiver, the waiver was knowing and voluntary, and enforcing the waiver does not result in a miscarriage of justice, so the waiver is enforced. The appeal is dismissed.

Sentencing Enhancements Under the Sentencing Guidelines—U.S.S.G. § 2L1.1(b)—Causation—Double Counting—Outcome Enhancement—Conduct Enhancement

U.S. v. Cardena-Garcia; U.S. v. Garcia-Suarez, Nos. 02-1189 & 02-1199, 3/26/04, D.Colo., Judge O’Brien.

The issue presented involves the propriety of the cumulative application of sentencing enhancements. Defendants appeal their sentences, imposed under the United States Sentencing Guidelines ("U.S.S.G."). After illegally entering the United States from Mexico, defendants purchased a van to transport seventeen illegal aliens to Illinois. Nineteen people were in a van designed to hold seven passengers. In an accident that occurred in Colorado while the van was traveling between 10 and 15 miles per hour in a 75 mile-per-hour zone, six of the illegal immigrants were killed and others were seriously injured. The state patrol allocated 40 percent of the fault to defendant Cardena-Garcia. Both defendants pled guilty to transporting aliens unlawfully present in the United States for financial gain, resulting in death. Defendants objected to the sentencing enhancements imposed under U.S.S.G. § 2L1.1(b)(5) and (b)(6). The district court overruled their objections and increased their offense level by three levels (intentionally or recklessly creating a substantial risk of death or serious bodily injury to another) and eight levels (deaths occurred during the offense).

The Tenth Circuit Court of Appeals holds that U.S.S.G. § 2L1.1(b)(6) contains no causation requirement, and declines to impose one. Defendants argue that the application of both (b)(5) (conduct enhancement) and (b)(6) (outcome enhancement) constituted impermissible double counting, because there was only one act—the overcrowding of the van. The Court disagrees, holding that each subsection focuses on separate and distinct considerations: conduct and outcome. An outcome enhancement is required because of the death and serious injuries, regardless of fault. Defendants’ conduct—the overcrowding of the van and slow speed—was an appropriate enhancement under (b)(5). The sentence is affirmed.

"Downward Departure—Atypical Conduct—Rehabilitation Efforts—Diminished Capacity—Extent of Departure

U.S. v. Nunemacher, No. 02-3380, 3/30/04, D.Kan., Judge McKay.

The government appeals the district court’s decision to depart downward from the applicable United States Sentencing Guidelines range in a child pornography case. Defendant pled guilty and his sentence range was twenty-seven to thirty-three months in prison. The Presentence Report recommended no grounds for departure. At sentencing, the district court departed downward and imposed a sentence of five years’ probation, based on the limited duration of the offense, voluntary termination of illegal activities, diminished capacity, and post-offense rehabilitation. The government argues that the district court erred in finding valid grounds for departing downward, or in the alternative, that the court’s extent of departure was unreasonable.

The Tenth Circuit Court reverses. The Court relied on atypical conduct, rehabilitation efforts, and diminished capacity. Regarding atypical conduct, the Court holds that defendant’s atypical conduct could be considered sufficiently exceptional to warrant a departure. The offense was limited in duration, defendant voluntarily terminated the conduct before law enforcement contact, and defendant cooperated with law enforcement. As to post-offense rehabilitation, however, nothing shows that defendant’s rehabilitation efforts have been extraordinary, as required under the guidelines. This basis for departure was impermissible. Regarding diminished capacity, the record does not show significant impairment specific to the offense itself, which is required by the guideline. Finally, the record does not establish why the court thought that an eight-level departure resulting in probation was warranted instead of the minimum sentence of twenty-seven months in prison. The court did not use a reasonable methodology hitched to the sentencing guidelines. The court relied on some permissible considerations that may have removed defendant from the heartland of the guidelines, but failed to provide an acceptable rationale that the departure it chose was reasonable. The sentence is reversed and remanded.

Relation Back Doctrine—Statute of Limitations—Misnamed Defendant: "John Doe"—Equitable Tolling

Garrett v. Fleming, No. 03-1143, 3/30/04, D.Colo., Judge Anderson.

Plaintiff, a federal prisoner, filed a complaint in 1996 alleging excessive force and denial of medical care by correctional officers arising out of a prison yard incident in 1995. He named as defendants the prison director and thirty "John Does," representing correctional officers whose names he did not know. The complaint was dismissed for failure to exhaust administrative remedies. In 1998, plaintiff filed an amended complaint that listed the new prison director and six "John Does" as defendants. In 1999, he amended again to add six correctional officers by name. In response to a motion to dismiss, invoking Colorado’s two-year statute of limitations for personal injury actions, the plaintiff claimed his later complaints related back to the one filed in 1996. The district court granted the dismissal motion, holding that the relation-back doctrine did not apply. The district court also denied plaintiff’s request for equitable tolling of the statute of limitations.

The Tenth Circuit Court holds that the relation-back doctrine of Fed.R.Civ.P. 15(c) cannot be used to replace "John Doe" with a named party, because the rule is intended only to correct a mistake concerning the identity of the proper party. A plaintiff’s designation of an unknown defendant as "John Doe" in the original complaint is not a defect that Rule 15(c) was meant to address. Therefore, the amended complaints did not relate back to the date of the original complaint. The Tenth Circuit Court also holds that equitable tolling was not required, because plaintiff had not established that defendants had deliberately concealed information from him. The district court’s judgment is affirmed.

Arbitration Clause—Federal Policy Favoring Arbitration—Doubts Concerning Scope of Agreement Resolved in Favor of Arbitration

National American Insurance Co. v. SCOR Reinsurance Co., No. 03-6079, 4/5/04, W.D.Okla., Judge McKay.

Both parties are insurance companies. National American Insurance Co. ("National") sued SCOR Reinsurance Co. ("SCOR"), alleging that SCOR was liable, as reinsurer, on two surety bonds. SCOR moved to dismiss and to compel arbitration based on a treaty between the parties that governed their relationship and contained an arbitration clause. National asserted that a separate agreement for the surety bonds in question did not require arbitration. The district court denied SCOR’s motion.

The Tenth Circuit Court recognized a liberal federal policy favoring arbitration agreements, noting that disputes should be resolved in favor of arbitration. It determines that the broader treaty containing an arbitration clause controlled the limited agreement, but even if the two documents were deemed ambiguous as to arbitration, the rule requiring doubts to be resolved in favor of arbitration would require arbitration. The district court’s order is reversed and the case is remanded with instructions to dismiss and arbitrate.

Reasonable Suspicion—Reasonableness of Questioning—Search of Package Without Warrant—Probable Cause

U.S. v. Oliver, No. 02-4187, 4/6/04, D.Utah, Judge Hartz.

The government appeals the district court’s grant of defendant’s motion to suppress evidence seized during a traffic stop. Sergeant Bauer stopped defendant on a traffic stop. When defendant opened the glove box to get the rental agreement, Bauer saw a package six inches long wrapped in brown paper. Bauer said that this was consistent with the packaging of drugs. Defendant tried to push the package farther into the glove box and underneath some papers. At Bauer’s direction, defendant took out the package and placed it on the seat. He was arrested. At the station, without obtaining a search warrant, Bauer opened the package and found that it contained methamphetamine. Defendant was indicted for possessing methamphetamine and for using or carrying a firearm. He moved to suppress the drug discovered, arguing that Bauer lacked reasonable suspicion to inquire about the package in the glove box. The magistrate judge recommended that defendant’s motion be granted, because the package was not obviously contraband; Bauer lacked reasonable suspicion to ask about its contents; and defendant’s reaction to Bauer’s questioning was the fruit of an illegal inquiry. The district court adopted the Report and Recommendation and granted defendant’s motion to suppress. The government appeals.

The Tenth Circuit Court reverses. The issue is whether Bauer’s questions about the package violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Court holds that they did not. The questions were reasonable and were prompted by and directly related to defendant’s objectively suspicious behavior of trying to push the package farther into the glove box. The overarching reasonableness standard is met here. Regarding defendant’s challenge to the search of the package at the police station, the Court holds that if there was probable cause to believe defendant’s package contained contraband at the time it was seized from his vehicle, no warrant was necessary for the later search. Here, there was probable cause to believe that the package in the vehicle contained contraband. The court’s order is reversed and the case is remanded.

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