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TCL > July 2005 Issue > Tenth Circuit Summaries

July 2005       Vol. 34, No. 7       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.


Judicial Estoppel—False Arrest—Plea Agreement

Johnson v. Lindon City Corp., No. 04-4067, 4/25/2005, D.Utah, Judge Kelly.

Plaintiffs were involved in a fight and were arrested. They entered pleas in abeyance, admitting they were guilty of assault. After they fulfilled the terms of their plea agreements, the charges were dismissed. Plaintiffs then filed this lawsuit for false arrest and imprisonment. The district court granted summary judgment in favor of defendants.

The Tenth Circuit Court invoked the doctrine of judicial estoppel, a discretionary remedy to prevent improper use of judicial machinery. The Court holds that plaintiffs’ admission that they had assaulted the police officers provided probable cause to arrest them, thus entitling defendants to qualified immunity and summary judgment. Plaintiffs could not now change their stories to the detriment of these defendants. The Tenth Circuit finds that these circumstances met the three criteria for judicial estoppel: (1) a party’s position is clearly inconsistent with its earlier position, (2) the change of position would create the perception that either the first or the second court was misled, and (3) the party changing position would derive an unfair advantage if not estopped. The district court’s judgment is affirmed.

ERISA—Fiduciary Duty—Payments to Employee-Benefit Plan—Bankruptcy Discharge

Navarre v. Luna (In re Luna, Debtors), No. 03-7060, 5/3/2005, E.D.Okla., Judge Tymkovich.

Plaintiffs are trustees of various employee-benefit funds who sued defendant to recover promised but unpaid ERISA employer contributions. The payments were owed as fringe benefits pursuant to a collective bargaining agreement. Due to financial difficulties, the employer failed to make the payments. It later filed for bankruptcy. The bankruptcy court held that the debt could be discharged in bankruptcy, and the district court affirmed.

The Tenth Circuit Court holds that the employer was not a fiduciary under ERISA and the debt was dischargeable in bankruptcy. It finds that in order for plaintiffs to prevail, they had to prove that the employer was a fiduciary by showing that the unpaid contributions were plan assets and that the employer exercised authority over the management of these assets. The Tenth Circuit finds that the contributions were plan assets, but the employer did not exercise authority over them, so it was not a fiduciary. The judgment of the district court is affirmed.

Motion to Substitute Counsel—Waiver of Right to Appeal—Ineffective Assistance of Counsel—Miscarriage of Justice

U. S. v. Porter, No. 04-4009, 5/3/2005, D.Utah, Judge Tymkovich.

Defendant pled guilty to a drug charge and a gun charge. His plea agreement limited his right to appeal his sentence. Prior to sentencing, defendant moved to substitute counsel because of an alleged breakdown in communications between himself and his court-appointed attorney. On appeal, defendant argues that the district court erred in denying his motion to substitute counsel, and that he is entitled to resentencing under United States v. Booker, 125 S.Ct. 738 (2005). The government argues that defendant cannot raise either issue on appeal because he waived his appellate rights. The Tenth Circuit Court of Appeals affirms the court’s denial of the motion to substitute counsel, and grants the government’s motion to enforce the plea agreement as to defendant’s sentence. Defendant’s motion to substitute counsel was not raised until after his guilty plea, because the breakdown in communications did not occur until after the plea had been entered. Thus, his appeal of the denial of the motion is not barred by virtue of the plea agreement. However, the court did not abuse its discretion in denying defendant’s motion to substitute counsel.

Next, the Circuit holds that defendant’s plea agreement precludes him from appealing his sentence. Defendant’s interpretation of the waiver clause contradicts the plain language of the plea agreement. The agreement contains a waiver exception that applies when the sentence imposed exceeds the maximum provided in the statute of conviction. This refers to the actual statute of conviction, not the statutory maximum as defined in Blakely v. Washington, 124 S.Ct. 2531 (2004), and U.S. v. Booker.

Also, defendant admitted the facts on which the district court determined his sentence. The defendant cannot establish that enforcement of his appellate waiver would result in a miscarriage of justice. The Circuit declines to address ineffective assistance of counsel, and the sentence does not exceed the statutory maximum in the statute of conviction. The waiver is not otherwise unlawful, and enforcement of the plea agreement does not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. The district court’s decision is affirmed, and the government’s motion to enforce the plea agreement is granted to the extent it pertains to defendant’s challenge to his sentence.

Condition of Probation—Employer Notification Requirement—U.S.S.G. §§ 5B1.3 and 5F1.5—Harmless Error—Informal Local Policy

U.S. v. Souser, No. 04-1101, 5/4/2005, D.Colo., Judge Tacha.

Defendant pled guilty to making false statements to the U.S. government. As part of her sentence, the court ordered defendant to inform her employer of her criminal history. She contested this employer notification requirement. The court held that this condition of probation could be applied consistently with the U.S. Sentencing Guidelines ("U.S.S.G." or "Guidelines"), and was required by local policy. Defendant appeals.

The Tenth Circuit Court of Appeals reverses. When defendant objected, the court held that the employer notification requirement was consistent with U.S.S.G. § 5B1.3, and was consistent with informal local policy. The Circuit holds that the district court erred in interpreting U.S.S.G. § 5B1.3 to provide that employer notification may be imposed as a condition of probation. The court should have considered U.S.S.G. § 5F1.5 (occupational restrictions). Because the district court did not find that the occupational restriction was the minimum necessary to protect the public, the record is insufficient to support imposing an employer notification requirement under U.S.S.G. § 5F1.5. The error, therefore, was not harmless. Finally, the district’s informal policy is in direct conflict with statutory and Guidelines rules governing probation and the imposition of occupational restrictions. The sentence is vacated and remanded for resentencing.

Waiver of Appellate Rights—Resentencing under Fed. R. Crim. P. 35(a)—Filing Fed. R. Crim. P. 35(a) Motion—Jurisdiction—Seven-Day Limit

U. S. v. Green, No. 04-5105, 5/6/2005, N.D.Okla., Judge Ebel.

Defendant pled guilty and was sentenced. More than seven days later, the district court, sua sponte, resentenced defendant to a lesser sentence. Defendant’s plea agreement provided that he waived all issues regarding the application of the U.S. Sentencing Guidelines. He was sentenced on June 24. On the same day, the Supreme Court announced Blakely v. Washington, 124 S.Ct. 2431 (2004). On June 30, defendant moved to correct his sentence under Fed. R. Crim. P. 35(a). On July 6, the court scheduled a hearing on the motion. On July 9, the court resentenced defendant, and imposed a lower sentence. Defendant appeals.

The Tenth Circuit Court holds that the district court lacked jurisdiction under Rule 35(a). The Circuit also holds that defendant’s waiver of his right to appeal, which was made before the decision in Blakely, is enforceable and bars consideration of any claims he may assert under United States v. Booker, 125 S.Ct. 738 (2005). The district court orally resentenced defendant, under Rule 35(a), more than seven days following the June 24 sentencing. The Rule is limited to seven days, so the district court lacked jurisdiction under the rule to resentence defendant. Filing a Rule 35(a) motion does not extend the district court’s jurisdiction to rule on the motion beyond the seven-day period.

Regarding defendant’s waiver of his right to appeal, all of defendant’s potentially meritorious arguments challenging his original sentence fall within the scope of his waiver. His waiver was knowing and voluntary. A defendant’s waiver of his appellate rights is not "otherwise unlawful" based on the subsequent issuance of Booker. Enforcing defendant’s waiver of his right to appeal will not result in a miscarriage of justice. In determining whether a sentence exceeds the statutory maximum, the Circuit applies the plain meaning of statutory maximum, meaning the maximum permitted by the statute of conviction. The Circuit does not apply the term as it is defined in Blakely and Booker. Finally, the enforcement of defendant’s waiver of his appellate rights is not determinative of defendant’s receiving a higher sentence, and does not therefore result in a miscarriage of justice. The conviction is affirmed and the case is remanded for the district court to vacate defendant’s later sentence and reinstate the original sentence.

Attorney Fees—Prevailing Party—Reasonable Fees—Billing Judgment—Prevailing Local Hourly Rates—Expenses—Aggressive Defense—Interest on Attorney Fees

Praseuth v. Rubbermaid, Inc., Nos. 03-3147, 03-3160, 03-3298 & 03-3299, 5/11/2005, D.Kan., Judge Friot.

Plaintiff sued her former employer under the Americans with Disabilities Act ("ADA"). A jury returned a verdict in her favor and awarded damages. The district court awarded attorney fees and expenses to plaintiff, but reduced the amounts requested by approximately two-thirds.

After affirming the judgment on the merits of the ADA claim, the Tenth Circuit Court considers the parties’ challenges to the attorney-fee award. It first notes that plaintiff was entitled to attorney fees pursuant to statute as a prevailing party and, therefore, her attorney was required to exercise billing judgment to winnow hours actually expended to hours reasonably expended. The losing party is not required to pay attorney fees incurred in educating the prevailing party’s attorneys about the law; for bringing attorneys up-to-date when they first began to work on the file; or for tasks that were unnecessary, irrelevant, or duplicative. On the other hand, if defendant engages in an aggressive litigation strategy, it may have to bear a portion of the attorney fees incurred by the other party in responding to that aggressiveness.

The Tenth Circuit also considers whether plaintiff received attorney fees for time spent on unsuccessful claims. The district court correctly found that her claims involved a common core of facts or related theories, and took into account the unsuccessful claims in making a discretionary reduction. In response to defendant’s challenge to hourly rates charged by plaintiff’s California attorneys, the Tenth Circuit states that rates above the prevailing local hourly rates should not be applied unless the party can show that the matter could not reasonably have been handled by counsel from the locality. The Court determines that incidental and necessary expenses, such as long-distance telephone charges and fees paid to investigative services, were properly allowed.

Finally, the Tenth Circuit finds no abuse of discretion in the district court’s decision to deny plaintiff’s request for interest on the attorney-fee award based on the equities. The district court’s judgment is affirmed.

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