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TCL > September 2005 Issue > Tenth Circuit Summaries

September 2005       Vol. 34, No. 9       Page  169
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.

Bankruptcy—Proof of Claim Required—Notice—Disputed or Contingent Claim—Discharge—Appeal Dismissed

Jaurdon v. Cricket Communications, Inc., No. 02-5127, 6/20/2005, N.D.Okla., Judge McConnell.

Plaintiffs’ suit against Cricket Communications, Inc. ("Cricket") was dismissed and plaintiffs filed an appeal. While the appeal was pending, Cricket filed for bankruptcy. Plaintiffs did not file a claim in the bankruptcy, even though formal notice of the bankruptcy proceedings had been sent to them.

The Tenth Circuit Court determines that plaintiffs held a claim against Cricket, even though Cricket owed them no money because plaintiffs had lost in district court. The definition of a "claim" includes contingent or disputed claims, so the definition applied to plaintiff’s situation. Because the requisite notice was sent to plaintiffs, their failure to file a claim in the bankruptcy proceedings resulted in a discharge of their claims by operation of law when Cricket’s reorganization plan was confirmed. The appeal is dismissed.

Voluntary Dismissal Without Prejudice—Conditions for Re-filing—Legal Prejudice—Consider Equities—No Abuse of Discretion

Brown v. Baeke, No. 04-3326, 6/23/2005, D.Kan., Judge Briscoe.

In this diversity medical malpractice case, plaintiffs lost one of their medical expert witnesses due to a conflict problem. In response to defendant’s motion for summary judgment, plaintiffs requested a dismissal without prejudice, which would allow them to re-file the case if and when they secured an alternate medical expert. The district court dismissed the case without prejudice, and imposed several conditions to re-filing, such as requiring plaintiffs to reimburse defendant for costs incurred as a result of the re-filing and ordering that the discovery materials from the dismissed case be transported to the re-filed case. Defendant appealed, arguing that the dismissal should have been with prejudice.

The Tenth Circuit Court notes its appellate jurisdiction, finding that the voluntary dismissal was a final judgment adverse to the defendant. The Court evaluates whether the district court had abused its discretion in granting the voluntary dismissal to determine if the defendant had suffered "legal prejudice." Legal prejudice does not arise simply because a second action has been or may be filed against the defendant, which is often the reason for dismissing a case without prejudice. Legal prejudice is a practical inquiry based on the following factors, considering all of the equities: the opposing party’s effort and expense in preparing for trial, excessive delay and lack of diligence by the moving party, insufficient explanation of the need for a dismissal, and the present stage of the litigation. The Tenth Circuit finds that the district court’s order properly applied these factors and was not an abuse of discretion. The district court’s judgment is affirmed.

Federal Arbitration Act—Forum Clause in Arbitration Agreement—Power to Compel Arbitration—Compel Arbitration in Designated Forum

Ansari v. Qwest Communications Corp., No. 04-1262, 7/12/2005, D.Colo., Judge McKay.

The parties entered into a contract containing an arbitration clause stating that any dispute shall be settled by arbitration in Washington, D.C., under the Commercial Arbitration Rules of the American Arbitration Association. Plaintiff filed suit in a Colorado federal court and defendant moved to compel arbitration in Colorado. The district court ruled that it had no authority to compel arbitration either in Colorado or Washington, D.C. Defendant appealed.

The Tenth Circuit first holds that the Federal Arbitration Act ("FAA") conferred jurisdiction over an appeal from an order denying a petition to compel arbitration. The court also holds that under § 4 of the FAA, where the parties agreed to arbitrate in a particular forum, only a district court in that forum has authority to compel arbitration. Accordingly, the Colorado federal district court correctly declined to order arbitration. The arbitrability of plaintiff’s claims must be decided by a court in the chosen forum, Washington, D.C. The district court’s judgment is affirmed.

Restitution—Re-Opening of Restitution Award—Mandatory Victims Restitution Act—Victim and Witness Protection Act

U. S. v. Bedonie, No. 04-4103, 6/27/2005, D.Utah, Judge McKay.

In this appeal, the Tenth Circuit addresses whether the district court had jurisdiction to re-open its restitution order, on its own motion, under either the Mandatory Victims Restitution Act ("MVRA"), the Victim and Witness Protection Act ("VWPA"), or Fed. R. Crim. P. 35(a). The order is reversed and the case is remanded.

Defendant caused a car accident that killed one of her passengers. She pled guilty to involuntary manslaughter. The Presentence Report recommended that the district court impose restitution of $4,185 for funeral expenses, and the victim’s mother requested reimbursement for the services of a medicine man. Defendant was sentenced to pay both amounts. A week later, the court revoked its previous judgment. The court said that it was legally obligated to order restitution for the victim’s future lost income and transportation expenses of the victim’s representative, under the MVRA. The court amended the judgment under Fed. R. Crim. P. 35(a). The court amended the judgment again, increasing the amount of future lost income. The district court held that restitution was mandatory because defendant’s offense of involuntary manslaughter is a crime of violence, triggering the MVRA, and that even if it was not a crime of violence, it acted within its discretion under the VWPA to award restitution.

The Circuit rules that nothing in 18 U.S.C. § 3664(d)(5) or Rule 35(a) authorizes the district court, acting sua sponte, to re-open a restitution order after sentencing, in order to apply the MVRA or the VWPA, when there was no predicate conclusion of uncertainty or a "holding open" of a restitution issue. Because the court did not commit clear error in failing to award lost income restitution at sentencing, it lacked jurisdiction under Rule 35(a) to re-open the issue for the purpose of imposing a new restitution award. Therefore, the order is reversed and the case is remanded.

Blakely v. WashingtonUnited States v. BookerShepard v. U.S.—Appellate Waiver—Armed Career Criminal Act

U. S. v. Taylor, No. 04-6174, 6/28/2005, W.D.Okla., Judge Tymkovich.

Defendant pled guilty to being a felon in possession of a firearm, and waived his right to appeal his sentence. At sentencing, the district court made findings of fact that enhanced defendant’s sentence under the U.S. Sentencing Guidelines. After defendant filed this appeal, the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), and U.S. Booker, 125 S.Ct. 738 (2005). Defendant argues that the appellate waiver in his plea agreement does not apply, that his sentence violated Booker, and that the opinion in Shepard v. U.S., 125 S.Ct. 1254 (2005), requires a remand for further proceedings.

The Tenth Circuit affirms. First, the appellate waiver does not apply because it contained an exception for "Tenth Circuit or Supreme Court cases decided after the date of this agreement that are held by the Tenth Circuit or Supreme Court to have retroactive effect." As to Booker error, the Circuit holds that defendant cannot satisfy the third prong of the plain error test. The district court did not misapply the "in connection with" language of U.S.S.G. § 4B1.4(b)(3).

Regarding the Shepard argument, the Circuit agrees that a remand is necessary to determine whether the government can provide evidence as to defendant’s prior violent crime convictions and, if the government cannot do so, to resentence defendant. The sentence is affirmed in part and remanded in part.

Anders Brief—Ordering Adequate Record—U.S. v. Booker—Collateral Attack on a Prior Conviction

U. S. v. Delacruz-Soto, No. 04-2086, 7/12/2005, D.N.M., Judge Ebel.

Defendant pled guilty to a charge of being an alien found in the United States, in violation of 8 U.S.C. §§ 1326(a)(1) & (2) and (b)(2). On appeal, defense counsel filed an Anders brief [Anders v. California, 386 U.S. 738, 744 (1967)].

The Tenth Circuit first reminds counsel who file Anders briefs of their responsibility to provide the court with a sufficient record so that the Circuit can conduct its review of the record to look for reversible error. Here, counsel did not order transcripts of the guilty plea and sentencing hearings. Defendant has presented a sentencing claim under U.S. v. Booker, 125 S.Ct. 738 (2005). He also argues that the district court erred in finding that a previous felony was a crime of violence, justifying a sixteen-level increase in defendant’s offense level, when defendant asserts that he is innocent of that felony.

The Tenth Circuit affirms. As to Booker error, the Circuit holds that defendant cannot meet the fourth prong of the plain error test. Second, with the exception of a collateral attack based on the complete denial of counsel, a district court sentencing a defendant under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(A) cannot consider a collateral attack on a prior conviction. Finally, defendant’s sentence does not violate the Eighth Amendment. Conviction and sentence are affirmed.

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