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TCL > March 2005 Issue > Tenth Circuit Summaries

March 2005       Vol. 34, No. 3       Page  115
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 accessible from the CBA website, http: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.


Downward Departure Under U.S. Sentencing Guidelines ("U.S.S.G.") § 5K2.11—Illegal Reentry Under 8 U.S.C. § 1326—Strict Liability Offense—Mens Rea Element

U. S. v. Hernandez-Baide, No. 04-3101, 12/20/04, D.Kan., Judge Brorby.

Defendant pled guilty to illegal reentry of a deported alien previously convicted of an aggravated felony under 8 U.S.C. § 1326. The district court sentenced her to twenty-four months’ imprisonment. Defendant challenges her sentence, arguing that the district court erred by not applying a downward departure for mitigating circumstances concerning a lesser harm, because she risked returning to the United States to settle a parental rights custody battle over her 11-year-old daughter. Defendant’s counsel sought the "lesser harms" downward departure, based on defendant’s claim that she entered the country illegally to avoid a perceived greater harm involving termination of her parental rights. The district court denied the departure, finding that it lacked discretion to grant it.

The Tenth Circuit Court decides that because the district court unambiguously stated that it lacked discretion to depart under U.S.S.G. § 5K2.11 it has jurisdiction. The Circuit resolves de novo the issue whether § 5K2.11 downward departures may apply to those convicted under § 1326. The statute is a regulatory measure with neither express mens rea element nor Congressional intent to include a mens rea element. Thus, a deported alien who makes an unauthorized entry into this country is strictly liable for such criminal conduct regardless of the underlying motivation for the illegal entry.

Because § 1326(a) is not a specific intent crime, an alien’s intent, motivation, or reason for illegal entry into the country cannot be a basis for departure under U.S.S.G. § 5K2.11. Specific intent should not be used to minimize the resulting sentence. The district court correctly held that it lacked authority to make the requested downward departure. The conviction and sentence are affirmed.

Illegal Reentry Following Deportation—Plea Colloquy—Maximum Sentence—Unconstitutional Judicial Fact-Finding—Timeliness of Notice of Appeal—Plain Error

U. S. v. Sanchez-Cruz, No. 04-2008, 12/21/04, D.N.M., Judge Tacha.

Defendant pled guilty to a charge of illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). At his plea colloquy, defendant was told that he faced a maximum sentence of twenty-four months. At sentencing, however, the court factored in defendant’s prior criminal history and sentenced him to forty-one months.

Defendant appeals his sentence on the grounds that the district court erred in sentencing him to a term greater than the maximum stated at the plea colloquy, and that his sentence was enhanced based on unconstitutional judicial fact-finding under Blakely v. Washington, 124 S.Ct. 2531(2004). The government asserts that defendant’s appeal was not timely filed, and that his sentence was correct.

The Tenth Circuit affirms, holding that the ten-day limit for filing a notice of appeal excludes weekends and legal holidays; so, defendant’s notice of appeal was timely filed. As to the error under Fed.R.Crim.P. 11, the Circuit holds that in the absence of an objection at the sentencing hearing, review is only for plain error. At sentencing, defendant did not argue that his sentence should be twenty-four months on the basis that twenty-four months was the maximum stated at the plea colloquy. Defendant cannot establish that the error affected his substantial rights, the third prong of the plain error test.

Regarding the impact of Blakely, the Circuit notes that this argument was raised for the first time in the reply brief, when it should have been filed in a supplemental brief. Even so, the two arguments—that the enhancement under U.S.S.G. § 2L1.2(b) was unconstitutional because it was based on a fact neither admitted nor found by a jury, and that the Guidelines are unconstitutional as a whole—fail plain error review because neither shows that an actual error has occurred. The Circuit holds that Almendarez-Torres, 523 U.S. 224 (1998), is still controlling law.

Finally, the Circuit rejects defendant’s argument that the Guidelines are unconstitutional as a whole. The conviction and sentence are affirmed.

Felon in Possession of Explosives—Right to Present a Defense—Dynamite’s Ability to Explode—Relevant Evidence—Statutory Definition of Explosive

U. S. v. Markey, No. 04-2044, 12/29/04, D.N.M., Judge Tacha.

Defendant pled guilty to being a felon in possession of explosives, in violation of 18 U.S.C. § 842(i)(l). He reserved his right to appeal the district court’s order precluding him from presenting evidence that the dynamite he possessed could not actually explode.

Defendant was given four sticks of dynamite by an acquaintance who found them in a dumpster. Defendant tested one stick and concluded that the dynamite was incapable of exploding. He was charged after police found the other three sticks in his apartment. Defendant unsuccessfully moved to dismiss the indictment based on the evidence that it was incapable of exploding.

The district court granted the government’s motion in limine, precluding defendant from continuing to present that evidence, including evidence of defendant’s failed attempt to detonate the fourth stick of dynamite. The district court held that an explosive need not explode or be capable of exploding in order to trigger 18 U.S.C. § 824(i)(l).

Defendant argues on appeal that the court’s order precluding him from presenting such evidence violated his rights to present a defense under the Fifth and Sixth Amendments. The right to present a defense is limited to presenting relevant evidence. The issue becomes whether the government can prove that defendant knowingly possessed explosives. It must prove that defendant knew the objects he possessed had the characteristic that brought them within the statutory definition of an explosive.

Based on its reading of the statute, the Circuit holds that the government need not show that a device is actually able to explode in order to prove that a defendant knowingly possessed an explosive under the statute. It need only prove that defendant knew he possessed dynamite or other chemical compound that was primarily designed to function by explosion. Evidence concerning defendant’s belief whether the dynamite could explode is irrelevant, and did not interfere with his right to present a defense. The conviction is affirmed.

Attorney Fees Denied—Discretionary Decision—Remand to State Court—Legitimate Grounds to Remove

Martin v. Franklin Capital Corp., No. 02-2048, 12/30/04, D.N.M., Judge Seymour.

Plaintiffs filed a class-action suit in a state court. Defendants removed the case to federal court. In a prior appeal, the Tenth Circuit Court held that the punitive damages claims of all plaintiffs could not be aggregated to meet the minimum amount to invoke federal jurisdiction, so the case must be remanded to the state court. Thereafter, plaintiffs sought an order requiring defendants to reimburse their attorney fees incurred in the federal court proceedings. The district court denied attorney fees.

The Circuit holds that the district court did not abuse its discretion in denying attorney fees to plaintiffs. At the time defendant removed the case to federal court, it possessed legitimate grounds on which to believe punitive-damage claims could be aggregated in a class action suit in order to satisfy the amount-in-controversy requirement. Therefore, notwithstanding the fact that case law later clearly rejected that position, the order denying attorney fees was appropriate. The district court’s order is affirmed.

Americans with Disabilities Act—Hostile Work Environment Claim Recognized—Threshold Condition Not Met

Lanman v. Johnson County, No. 03-3316, 12/30/04, D.Kan., Judge Kelly.

"Plaintiff sued her former employer under the Americans with Disabilities Act ("ADA"), alleging a hostile work environment based on her belief that her co-workers and supervisors viewed her as mentally disabled. The district court granted the employer’s motion for summary judgment.

The Tenth Circuit Court compares the similar language in the ADA and Title VII, and concludes that Congress intended disability-based discrimination to be treated as expansively as gender-based discrimination. Accordingly, the Court holds that a hostile work environment claim is actionable under the ADA.

In this case, however, plaintiff failed to establish the threshold condition that she is a "qualified individual with a disability." She asserted that her employer "regarded" her as having a disability, but the evidence was insufficient to resist summary judgment on her claims that the employer believed she was unable to perform a suitable job or that she was unable to interact with co-workers in general. Therefore, the Court does not need to determine whether her work environment was hostile. The district court’s judgment is affirmed.

CERCLA—Response Costs—Hazardous Substances—Cleanup Required for Recovery

Young v. United States, No. 02-7133, 1/4/05, E.D.Okla., Judge Baldock.

Plaintiffs purchased land, at a substantially reduced price, adjacent to a Superfund site. After the purchase, they expended funds for a survey and professional opinions on the potential risks to humans from the property. They learned that the property contained hazardous substances. They took no action to contain the release of, or to clean up, the hazardous substances. They sued, under CERCLA, for the costs of responding to the hazardous substances allegedly released from the Superfund site. The district court entered a judgment in favor of defendants.

The Tenth Circuit Court notes that CERCLA requires cleanup of hazardous waste sites and imposition of the costs on the responsible parties, in that order. Here, because plaintiffs did not perform any cleanup of their property, they were not entitled to recover their expenses, even though the expenses could be considered preliminary steps taken in response to the discovery of hazardous substances. The fact that plaintiffs actually did nothing to clean up the hazardous substances precluded their recovery under CERCLA. The district court’s judgment is affirmed.

Crime of Violence—Persuading a Minor to Engage in Illegal Sexual Acts by Using a Computer Connected to the Internet —Carrying a Firearm During Commission of a Crime of Violence

U.S. v. Munro, No. 04-4051, 1/5/05, D.Utah, Judge Tymkovich.

Defendant was convicted of using a computer to attempt to persuade a minor to engage in illegal sexual acts, and carrying a firearm during the commission of a crime of violence. After ongoing sexual Internet chats with an undercover police officer who identified herself as a 13-year-old girl, defendant arranged to meet with her at a school. When defendant arrived at the school, police arrested him. During a search incident to the arrest, they found a handgun in defendant’s pocket.

After being indicted, defendant moved to dismiss the firearms charge, arguing that he did not commit a crime of violence. The court denied his motion and a jury convicted defendant of both offenses.

The Tenth Circuit Court affirms. First, the government presented sufficient evidence at trial from which a reasonable juror could have found that defendant was guilty of attempting to persuade a minor to engage in sexual acts, by using a computer connected to the Internet. The next issue is whether it is a crime of violence under 28 U.S.C. § 2422(b) to use a device of interstate commerce to persuade a minor to engage in sexual acts, and then attempt to meet that minor for the purpose of engaging in such sexual acts. The Circuit holds that it is a crime of violence. The government presented sufficient evidence to convict defendant of carrying a firearm during the commission of a violent crime. The remainder of defendant’s arguments are rejected. The convictions and sentence are affirmed.



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