|The Colorado Lawyer|
Vol. 34, No. 1 [Page 151]
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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: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.
Indian Major Crimes Act—Assimilated Range of Punishment Under Federal Law—State Minimum and Maximum Sentences
U. S. v. Wood, No. 03-5188, 10/18/04, N.D.Okla., Judge Baldock.
The issue on appeal is whether the U.S. Sentencing Guidelines ("Guidelines"), or generally-applicable state sentencing laws, apply when a defendant is convicted under the Indian Major Crimes Act ("Act"). Under the Act, state law defines the element of the crime and the range of punishment.
Defendant is a Native American who pled guilty to one count of second-degree burglary in Indian Country, in violation of the Act. Burglary is not defined and punished by federal law. In Oklahoma, the minimum sentence for second-degree burglary is two years. The pre-sentence report set defendant’s Guidelines range at 0–6 months. Defendant sought a suspended sentence and probation, which are available under Oklahoma law. The district court ruled that it lacked discretion to suspend defendant’s sentence under the Guidelines, because federal law assimilated only the range of punishment between the minimum and maximum sentences in the state statute and not the suspension and probation provisions. Because the Guidelines range fell below the minimum state sentence, the court sentenced defendant to the minimum of two years in prison. Defendant appeals.
The Tenth Circuit affirms. A district court must sentence any defendant found guilty of violating a federal criminal statute, including the Act, under the Guidelines. When sentencing defendants for assimilated crimes, federal courts do not assimilate state sentencing laws if those laws conflict with the Guidelines. The Guidelines here deny a district court the discretion to suspend a prison sentence, so that option is not available to defendants convicted of violating the Act and sentenced under the Guidelines.
The Act requires courts to impose sentences for assimilative crimes within the maximum and minimum terms established by state law. Because the maximum of defendant’s Guidelines range fell below the minimum of her statutory range, the district court properly sentenced defendant to the two-year minimum.
Illegal Reentry Following Deportation—Crime of Violence—Felony Driving Under the Influence
U. S. v. Torres-Ruiz, No. 03-4160, 11/2/04, D.Utah, Judge Briscoe.
Defendant appeals the sentence he received after he pled guilty to illegal reentry following deportation. The issue on appeal is whether the district court erred in classifying defendant’s prior California conviction for felony driving under the influence ("DUI") as a "crime of violence" under U.S.S.G. § 2L1.2.
Defendant was deported in 2000. In 2003, he was arrested in Utah. In his pre-sentence report, he was assessed sixteen levels based on the prior California conviction for felony DUI. The report characterized this conviction as a crime of violence. The issue on appeal is whether this characterization was correct.
The Tenth Circuit reverses the district court. A crime of violence is defined as an offense that has as an element of use, attempted use, or threatened use of physical force against the person of another, and lists examples, which do not include DUI. Addressing the California statute, the issue is the elements, not the underlying circumstances of the crime. The third element of the offense is whether a violation of law or neglect of duty committed by a person driving with a blood alcohol content of .08 percent or higher was a cause of bodily injury to a person other than the impaired driver. This element can be satisfied by negligent conduct.
The issue becomes whether § 2L1.2(b)(1)(a) defines crime of violence as containing an intent requirement. The Tenth Circuit concludes that the phrase "crime of violence," as used in the sentencing guidelines, incorporates an intent requirement that cannot be satisfied by negligent conduct. Thus, defendant’s prior California DUI conviction does not qualify as a crime of violence. The district court erred. Defendant’s sentence is vacated and the case is remanded for resentencing.
Removal to Federal Court—Federal Preemption—Fraud—ERISA—Labor Management Relations Act—National Labor Relations Act—Remand to State Court
Felix v. Lucent Tech., Inc., No. 03-6112, 10/26/04, W.D.Okla., Judge Ebel.
Plaintiffs, a group of defendant’s former employees, sued in a state court, alleging the employer defrauded them by lying to them about an early retirement benefits package. Plaintiffs were told that the offer made to them, which they accepted, was the best they could expect; yet employees who did not retire received a better offer a few months later. Defendant removed the case to federal court, asserting that plaintiffs’ claims were completely preempted by various federal statutes. The district court denied plaintiffs’ motion to remand to the state court, and they appealed.
Addressing whether the Employee Retirement Income Security Act ("ERISA") preempted plaintiffs’ claims, the Tenth Circuit discusses the difference between "conflict preemption" (the state law has only a peripheral connection with an ERISA plan) and "complete preemption" (the federal law displaces entirely any covered state cause of action). Only complete preemption will support removal to federal court. Here, the claims were not completely preempted, because plaintiffs sought money damages for alleged fraud, not benefits from a pension plan.
The Tenth Circuit also holds that plaintiffs’ claims were not preempted by the Labor Management Relations Act, because the claims did not require interpretation of a collective bargaining agreement. Finally, even if the National Labor Relations Act preempted the claims, the federal court would not have jurisdiction, because cases preempted by that law must be filed with the National Labor Relations Board. The case is remanded with directions to remand to the state court.
Preservation of Issue for Appeal—Jury Instruction—Supplementation of Defective Brief or Record Inadequate—Trial Evidentiary Rulings Correct—Jury Finding that Plaintiff Not Terminated Mooted Question of State-Law Preemption
Allan v. Springville City, No. 03-4180, 11/8/04, D.Utah, Chief Judge Tacha.
Plaintiff left her job because she was pregnant, even though her employer told her that, as a part-time employee, she did not qualify for maternity leave. Employer treated plaintiff’s departure as a resignation. Plaintiff sued, alleging wrongful termination and due process violations. The district court ruled that the wrongful termination claim was preempted by Utah state law, and held a jury trial on plaintiff’s procedural due process claim, asserting she had been terminated in violation of the employer’s personnel manual. The jury returned a verdict in favor of employer, finding specifically that plaintiff had not been terminated.
On appeal, plaintiff claimed that the district court erred in instructing the jury. Her appellate brief did not cite to the record to show where she had objected to the instruction, however, and the brief’s appendix did not include the transcripts showing the objection, as required by court rules. The Tenth Circuit denies plaintiff’s request to supplement the appendix, noting the inadequacy of this remedy.
Consequently, the Tenth Circuit refuses to reach the merits of this claim. The Court rejects plaintiff’s evidentiary challenges, finding that the evidence was properly treated at trial. Finally, the Court holds that the issue of whether plaintiff’s wrongful termination claim was preempted by Utah state law was moot, because the jury found that she had not been terminated. The district court’s judgment is affirmed.
Preliminary Injunction—Heightened Standard—Historically Disfavored Preliminary Injunctions
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, No. 02-2323, 11/12/04, D.N.M., On Rehearing En Banc, Per Curiam.
Plaintiff organization uses hoasca for religious purposes. Hoasca is a controlled substance. In this litigation, plaintiff invoked the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, to obtain declaratory and injunctive relief to prevent the government from prohibiting it from importing hoasca, and from prosecuting individual members of plaintiff organization. The district court granted plaintiff’s motion for a preliminary injunction. An appellate panel affirmed.
On en banc review, the Tenth Circuit decided to maintain a heightened standard for granting any of the three historically disfavored preliminary injunctions: (1) preliminary injunctions that alter the status quo, (2) mandatory preliminary injunctions, and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. Any of these must be more closely scrutinized to assure that the exigencies of the case support the granting of such an extraordinary remedy, and the movant must make a strong showing on both the likelihood of success on the merits and on the balance of harms. The divided court affirmed the district court’s preliminary injunction.
Federal Jurisdiction—Independent Basis Required—Federal Nature of Underlying Judgment Insufficient
Ellis v. All Steel Construction, Inc., No. 03-6130, 11/15/04, W.D.Okla., Judge Ebel.
Plaintiff obtained a judgment in federal court against Interstate Builders, Inc. ("Interstate") for delinquent plan contributions under the Employee Retirement Income Security Act ("ERISA"), a federal statutory scheme. In this case, plaintiff sued All Steel Construction ("All Steel"), as the alter-ego successor of Interstate, to enforce the judgment. The district court found that All Steel was Interstate’s alter-ego successor and was liable for the judgment against Interstate.
The Tenth Circuit holds that this judgment enforcement action required its own jurisdictional basis, independent of the federal character of the underlying judgment. This was a "garden-variety" judgment-enforcement action. There were no allegations or evidence that All Steel exercised any control over Interstate’s operations during the time the underlying ERISA obligation arose or that All Steel was directly liable for the ERISA obligation. Therefore, there was no federal jurisdiction. Consequently, the district court’s judgment is vacated and the case is remanded with directions to dismiss it.
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