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TCL > June 2005 Issue > Tenth Circuit Summaries

June 2005       Vol. 34, No. 6       Page  151
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.

Harmless Error—Sentencing Based on Judicial Findings—Advisory Federal Sentencing Guidelines—Mandate Rule—Scope of Remand

U. S. v. Lang, Nos. 02-4075, 02-4091, 02-4103, 02-4128, 04-4165, 04-4175, 4/12/05, D.Utah, Judge Seymour.

This opinion resolves the appeals of both defendants from their resentencings and the remand from the Supreme Court of Lang, which remanded for further consideration in light of United States v. Booker, 125 S.Ct. 738 (2005). The cases have been consolidated.

Defendant was an employee of the federal district court. She took home from work a copy of a sealed document and discussed its contents with her husband, who then disclosed to others information from the sealed document regarding a narcotics investigation. Both parties were convicted of drug offenses, and Mrs. Lang was convicted of unlawfully removing a document from a federal clerk’s office.

In Lang I, the Tenth Circuit Court affirmed the convictions, but held that the district court had erred in departing downward at sentencing. At resentencing, the defendants argued that under the new decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), their Sixth Amendment rights were violated when their sentencings were based on judicial findings that increased their punishment. The court declined to apply Blakely to the federal Sentencing Guidelines and used its initial offense level calculations. The Langs appeal their resentencing.

After briefing in this appeal, the Supreme Court decided Booker, which made the Guidelines advisory in all cases. Defendants preserved their Sixth Amendment claims when they raised the issue at resentencing.

The Circuit holds that because of the mandate rule, review is for harmless error. There is nothing limiting the scope of the remand so as to prevent the district court from considering defendants’ Sixth Amendment claim at resentencing. The general mandate that was issued did not contain anything specific to limit a district court’s authority at resentencing on remand.

Because the defendants preserved their Sixth Amendment claim at resentencing, their claim is reviewed for harmless error. At resentencing, the increases in their sentences were based on facts not found by a jury, in violation of the Sixth Amendment. The government has not asserted that the error in this case was harmless. The opinion in Lang I is reinstated except to the extent that the sentencing issues are impacted by this decision, and the case is remanded with directions to vacate the sentences and resentence consistent with Booker.

Sanction—Dismiss Jury Verdict—Perjury—Court’s Inherent Power

Chavez v. City of Albuquerque, No. 03-2195, 3/29/2005, D.N.M., Judge Blackburn.

Plaintiff sued the city of Albuquerque and one of its police officers, alleging the officer used excessive force when he directed his police dog to apprehend him. Throughout discovery, plaintiff maintained that he was not the subject the police were looking for. On the witness stand, however, he admitted that he, in fact, was the suspect. A jury returned a nominal verdict in plaintiff’s favor, but the district court set aside the verdict as a sanction for plaintiff’s admitted perjury. He appealed.

The Tenth Circuit Court holds that the court has the inherent power to vacate a judgment when a fraud, such as perjury, has been perpetrated on the court. Because dismissal is a harsh sanction, it is appropriate only in cases of willfulness, bad faith, or some fault of the sanctioned party.

Ordinarily, a party should be warned that dismissal is likely, but because the perjurious testimony was given under oath, an additional warning would have been superfluous. Accordingly, the Tenth Circuit found no abuse of discretion. The district court’s order was affirmed.

Plain Error Under U.S. v. Booker—Sufficiency of Evidence—Severance—"Lulling Letters"—Expert Testimony—Reduction for Acceptance of Responsibility

U. S. v. Dazey, Nos. 03-6187, 03-6205, 03-6208 & 03-6228, 4/13/05, W.D.Okla., Judge McConnell.

Defendants appeal the sufficiency of the evidence of their convictions of wire fraud, securities fraud, and money laundering, along with other issues. Defendant Dazey’s sentence is vacated under United States v. Booker, 125 S.Ct. 738 (2005), and remanded for resentencing.

Defendants were involved in a fraudulent investment company. Defendant Crafts was the leader, certified public accountant, and leading sales and customer service representative. Defendant Dazey was the international financier.

The Circuit holds that there was sufficient evidence to support the convictions. The court did not abuse its discretion in refusing to sever Griffith’s case from that of the other defendants. Even if the court erred in admitting investor notes without a proper foundation, the error is harmless. The court did not abuse its discretion in admitting evidence of "lulling letters." Any error in closing argument does not satisfy the plain error standard of review. Any error in admitting expert testimony was harmless. It was not clearly erroneous for the district court to deny the request for a two-level reduction for acceptance of responsibility.

After oral argument, Dazey moved to file a supplemental brief, arguing that his sentence was invalid under Blakely v. Washington, 124 S.Ct. 2531 (2004). The Circuit now considers his argument in light of Booker. Because Dazey did not raise the issue in the district court, review is for plain error. The court sentenced defendant with certain enhancements that were decided only by the judge. These facts increased Dazey’s sentence beyond the maximum authorized by the jury’s verdict, and constitute Sixth Amendment error. Plain error is applied less rigidly when reviewing a potential constitutional error. The four prongs of the plain error test are satisfied here. There is a reasonable probability that a jury evaluating the evidence presented at trial would not determine, beyond a reasonable doubt, that Dazey could reasonably foresee the full extent of the losses. There also is a reasonable probability that if the district court had not thought itself mandatorily bound by the U.S. Sentencing Guidelines, it might have found that Dazey’s conduct warranted a lower sentence. The convictions are affirmed. Dazey’s sentence is affirmed as to the arguments raised in his first brief, but is vacated and remanded in light of Booker.

Plain Error—Structural Error—Advisory or Mandatory Nature of U.S. Sentencing Guidelines—Non-Constitutional Error Under U.S. v. Booker

U. S. v. Gonzalez-Huerta, No. 04-2045, 4/8/05, D.N.M., Judge Tacha (En Banc).

Defendant appeals his sentence. The Court of Appeals ordered supplemental briefing and argument, en banc, on the question of whether mandatory application of the U.S. Sentencing Guidelines is reversible error under United States v. Booker, 125 S.Ct. 738 (2005). Defendant pled guilty to illegal reentry into the United States, and was sentenced to fifty-seven months in prison. At sentencing, the district court relied only on defendant’s prior conviction and the facts admitted in determining his maximum sentence.

The Tenth Circuit upholds the sentence. This case involves error by the court applying the Guidelines in a mandatory rather than advisory fashion, as now required by Booker. This is a non-constitutional Booker error. The burden is on defendant to establish plain error. The error here satisfies the first two prongs of the plain error test because it was clear error. However, it does not satisfy the fourth prong of that test—whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Also, the error is not structural and is not presumed prejudicial. The sentence is affirmed.

Non-Constitutional Error Under U.S. v. Booker—Plain Error Test—Judge’s Remarks

U. S. v. Trujillo-Terrazas, No. 04-2075, 4/13/05, D.N.M., Judge McConnell.

Defendant appeals his sentence for illegal reentry into the United States after deportation. The Supreme Court decisions in Blakely v. Washington, 124 S.Ct. 2531 (2004), and U.S. v. Booker, 125 S.Ct. 738 (2005) apply. At sentencing, the district judge expressed reservations about imposing the sentence required by the U.S. Sentencing Guidelines, which were mandatory at the time. One source of the hesitation was the innocuous nature of defendant’s prior conviction for third-degree arson.

Applying the plain error test, the Tenth Circuit reverses defendant’s sentence, although this error was not constitutional in nature. Under the third prong of that test, applying the factors listed in 18 U.S.C. § 3553(a) to this case provides a strong indication that if the district court had applied the Booker framework, defendant’s sentence would have been lower. He has shown a reasonable probability that he would receive a lesser sentence under the new sentencing regime. Under the fourth prong of the test, to allow the discrepancy between the new sentencing framework and the actual sentence given would call into question the fairness, integrity, and public reputation of judicial proceedings. The sentence is vacated and the case is remanded.

Sufficiency of Evidence of Conspiracy

U. S. v. Dunmire, No. 04-3002, 4/5/2005, D.Kan., Judge McKay.

Defendant appeals her conviction of conspiracy to distribute more than fifty grams of crack cocaine. The evidence of the conspiracy consisted of defendant’s presence at the residence of a drug dealer and her participation in a drug deal for 2.97 grams of crack cocaine. The government presented considerable evidence of other drug deals involving a drug dealer, but defendant was not seen with him during those drug deals, was never contacted to set a up a drug purchase, and another dealer involved had never seen defendant prior to the date of the single drug sale.

The Tenth Circuit reverses the conspiracy conviction. The government presented no evidence to the jury from which it could reasonably and logically infer that the amount of drugs defendant agreed to distribute totaled five or more grams of crack cocaine. The case requires a leap from inference to inference to demonstrate the mere possibility that defendant conspired to possess with intent to distribute five of more grams of crack cocaine. The conviction is reversed and remanded.

Removal to Federal Court—Jurisdiction—Counterclaim or Defense Insufficient—Attorney Fees—Grounds to Disqualify Judge

Topeka Housing Authority v. Johnson, No. 04-3348, 4/18/2005, D.Kan., Judge Hartz.

The Topeka Housing Authority ("THA") filed an eviction action against plaintiff in a Kansas state court. Asserting violations of his federal rights protected by the Fair Housing Act and the Americans with Disabilities Act, plaintiff removed the case to federal court. The federal district court granted THA’s motion to remand, because the original complaint did not arise under federal law. The district court also awarded THA $500 in attorney fees and costs. Plaintiff appealed.

The Tenth Circuit held that a case may be removed to federal court only if the federal court would have had jurisdiction over the case if it had been filed there originally. A federal defense or counterclaim is insufficient to confer federal jurisdiction. Therefore, the order to remand the case to state court was correct, because the federal courts lacked subject-matter jurisdiction.

The federal court did have jurisdiction, however, to review the award of attorney fees and costs. Removal was improper, so the district court did not abuse its discretion in making this award. Finally, the Tenth Circuit holds that, despite his repeated complaints about the fairness and integrity of the district judge, plaintiff did not carry his heavy burden of showing judicial bias or misconduct. The award of fees to THA is affirmed and the appeal is dismissed.

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