|The Colorado Lawyer|
Vol. 35, No. 5 [Page 141]
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From the Courts
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 Katherine 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: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit).
Possession of a Firearm—Reasonableness Standard of Review After U.S. v. Booker—Rebuttable Presumption—Reconsidered Sentence Used in Criminal History Calculations
U.S. v. Kristl, No. 05-1067, 02/17/2006, D.Colo., Per Curiam.
Defendant pled guilty to possession of a firearm after having been convicted of a felony. The district court held that the applicable sentence range under the United States Sentencing Guidelines ("Guidelines") was twenty-four to thirty months, and sentenced him to twenty-eight months in prison.
The Tenth Circuit Court first addressed the "reasonableness" standard of review after United States v. Booker, 125 S.Ct. 738 (2005). The Circuit held that a sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness. Either defendant or the government may rebut the standard by showing that the sentence is unreasonable when viewed against the other factors in 18 U.S.C. § 3553(a).
Applying this two-step approach, the Circuit must decide whether the district court considered the applicable Guidelines range, reviewing its legal conclusions de novo and its factual findings for clear error. If the district court properly does so and sentences defendant within that range, the sentence is presumptively reasonable and defendant can rebut the presumption by demonstrating that the sentence is unreasonable.
As to defendant’s specific Guidelines challenges, the question is whether a reconsidered sentence that was based on Rule 35(b) has any legal effect for purposes of a defendant’s criminal history calculations under the Guidelines. The Circuit held that the district court erred in adding three criminal history points under § 4A1.1(a) for this conviction without finding that the original sentence was reconsidered merely for good behavior. The sentence was reversed and the case was remanded.
Motion to Suppress—Visibility of Temporary Registration Tag at Night—Limited Scope of Detention
U.S. v. Edgerton, No. 05-3167, 02/22/2006, D.Kan., Judge Baldock.
The district court denied defendant’s motion to suppress evidence that was seized arising from her unlawful detention. She appealed that ruling.
A state trooper stopped defendant’s vehicle at night because he could not read her car’s temporary registration tag while in transit. A subsequent search of her vehicle revealed cocaine. Defendant pled guilty to a drug offense but reserved her right to appeal the district court’s denial of her motion to suppress.
The Tenth Circuit reversed. The issue is whether the unobscured temporary Colorado registration tag, which was displayed consistently with Colorado law in the rear window of defendant’s vehicle, but illegible from a distance because it was nighttime, constituted a violation of Kansas law, thereby justifying defendant’s continuing detention. The trooper’s initial stop of defendant’s vehicle was proper, because his suspicion that defendant was violating Kansas law governing the display of license plates was objectively reasonable. However, the detention went beyond its limited scope once the trooper identified the posting in the rear window of defendant’s vehicle as a valid Colorado temporary registration tag. The only reason the tag’s "manner of display" under the statute was purportedly unlawful was because it was dark and the state trooper could not see or read it. Once the trooper was able to read the tag and deem it unremarkable, any suspicion that defendant had violated a statute dissipated, because the tag was "in a place and position to be clearly visible," as required. The district court’s order was reversed.
Motion to Suppress—Prior Record Known at Time of Traffic Stop—Reasonable Suspicion—Sentence Enhancement Under U.S.S.G. § 2K2.1(b)(4)—Altered or Obliterated Serial Number
U.S. v. Laughrin, No. 04-2207, 03/02/2006, D.N.M., Judge Hartz.
Defendant appealed the district court’s denial of his motion to suppress, arguing that the officer lacked reasonable suspicion to stop his car. He also contended that the district court erroneously sentenced him when it applied a two-level enhancement for possessing a firearm with an altered or obliterated serial number.
An officer recognized defendant buying gas and followed him, but did not observe any traffic violations. Even so, the officer stopped defendant based on his knowledge of defendant’s driving record. He had conducted previous traffic stops of defendant, including one or more occasions when defendant was driving with a suspended license. However, the officer had not seen defendant for at least twenty-two weeks. When the officer stopped defendant’s car, he found that defendant had a valid driver’s license. He also found a gun inside the car. Defendant moved to suppress the shotgun. The district court denied the motion, holding that because of his prior record, it was "not unreasonable for the officer to have concluded that, again, the defendant is driving on a suspended license."
The Tenth Circuit reversed. The officer’s knowledge of defendant’s prior driving offenses was not sufficient to create reasonable suspicion that he was driving without a valid license on the day of the stop. Regarding defendant’s sentence, he argued that the district court erred in applying a two-level increase to his base offense level under U.S.S.G. § 2K2.1(b)(4), on the basis that the shotgun "was stolen, or had an altered or obliterated serial number." In fact, the shotgun was manufactured before 1969, the year when serial numbers became required by law, so it had never had a serial number; therefore, it was impossible to alter or obliterate the serial number.
The reasoning of other circuits, adopted by the Tenth Circuit, provides that § 2K2.1(b)(4) prohibits its application when the defendant possessed a weapon that had never borne a serial number. The Sentencing Commission is in apparent agreement with these decisions. The district court’s denial of the motion to suppress evidence was reversed. The sentence was vacated and the case was remanded.
Arbitration Award—Preclusive Effect—Antitrust—Standing—Injunctive Relief
B-S Steel of Kansas, Inc. v. Texas Indus., Inc., No. 04-3327, 02/28/2006, D.Kan., Judge Anderson.
Plaintiff sued four steel manufacturers, alleging that they engaged in price discrimination, in violation of the Robinson-Patman Act, 15 U.S.C. § 13. The district court ordered the claims against one of the defendants to be arbitrated, pursuant to an agreement to arbitrate. The arbitration panel ruled in favor of defendant. The district court then held that the arbitration award was binding as to all defendants, and granted summary judgment to them. The court also ruled that plaintiff did not have standing to seek injunctive relief.
On appeal, plaintiff argued that the arbitration agreement was invalid. The Tenth Circuit rejected defendants’ argument that plaintiff waived this claim by not appealing it earlier. Plaintiff was precluded from appealing the district court’s order affirming the arbitration award while the case remained pending. Nevertheless, the Tenth Circuit upheld the validity of the arbitration agreement. The Court also affirmed the application of collateral estoppel to bar re-litigation of the claims that actually were litigated before the arbitration panel, despite the fact that the claims covered different time periods.
The Tenth Circuit also held that plaintiff lacked standing to pursue injunctive relief. A plaintiff may have standing if it can demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a violation likely to continue or recur. Here, plaintiff had stopped doing business with defendants and failed to show any possibility that it might resume purchasing from them in the future. Accordingly, plaintiff did not have standing to pursue injunctive relief under the Robinson-Patman Act. The district court’s judgment was affirmed.
Appellate Jurisdiction—Time Limits—Notice of Appeal—Tolling Motion—Must State Grounds for Relief—Unique or Exceptional Circumstances—Abuse of Discretion
Allender v. Raytheon Aircraft Co., No. 05-3081, 03/09/2006, D.Kan., Judge McConnell.
Plaintiff sued her former employer under the Family and Medical Leave Act for terminating her due to excessive absences. The district court granted summary judgment in defendant’s favor. Plaintiff then filed a cursory motion under Fed. R. Civ. P. 59(e), which the district court converted to a Rule 60(b) motion, because the supporting brief was not filed within ten days after the judgment The district court denied the motion. Four months after the judgment, plaintiff filed a notice of appeal.
The Tenth Circuit held that the notice of appeal, filed more than thirty days after the judgment, was too late to confer appellate jurisdiction. The post-judgment motion did not toll the time to file the notice of appeal, because only a motion properly filed within ten days of the judgment can toll the time. Plaintiff’s motion did not state the grounds for relief, as required by Fed. R. Civ. P. 7(b)(1), and the supporting brief was filed more than ten days after the judgment. Moreover, the district court’s grant of additional time to file the supporting memorandum was not a unique circumstance, because the rules prohibit an extension of time to file a Rule 59(e) motion. Accordingly, the Tenth Circuit lacked jurisdiction to review the summary judgment order.
The Tenth Circuit also ruled that the Rule 59(e) motion was properly converted to a Rule 60(b) motion, because the grounds for relief (the brief) were not filed within ten days of the judgment. Relief under Rule 60(b) is appropriate only in exceptional circumstances, which were not present here. Therefore, the district court did not abuse its discretion in denying the motion. The judgment was affirmed.
Sanctions—Attorney Fees Awarded Against Attorney—Multiplication of Proceedings
Steinert v. Winn Group, Inc. (In re Gage), No. 04-3392, 03/13/2006, D. Kan., Judge McConnell.
Appellant-attorney represented plaintiff, who sued an employment agency for sending him on a job interview he claimed violated his rights against involuntary servitude and peonage, among other things. During the course of the litigation, appellant sought more than thirty-four extensions of time to file pleadings. Eventually, defendant moved to dismiss for failure to prosecute. The district court gave appellant two days to oppose the motion, and cautioned him that he and/or his client could be liable for attorney fees if he did not comply. Appellant filed a response, and then sought other further extensions of time during the litigation, until the district court granted both defendant’s motion to dismiss some claims and plaintiff’s motion to dismiss the rest.
The district court then granted defendant’s motion for attorney fees under 28 U.S.C. § 1927 for multiplying the proceedings, and awarded $20,677.22 against plaintiff’s attorney. He appealed.
The Tenth Circuit rejected the appellant’s argument that the district court’s failure to award attorney fees under 42 U.S.C. § 1988 or Fed. R. Civ. P. 41(a)(2) precluded an award under § 1927, due to the significant differences among the three fee provisions. Next, the Court held that appellant had received adequate due process through the district court’s caution and defendant’s various motions. The Court also held that § 1927 does not contain the safe-harbor and separate-motion requirements of Fed. R. Civ. P. 11.
Appellant argued that he should not be sanctioned for requesting extensions because the district court granted them. The Tenth Circuit noted that appellant had misrepresented the reasons for requesting those extensions, so his deception negated any good-faith finding. Finally, the Tenth Circuit determined that § 1927 applies only to multiplication of proceedings, so to the extent attorney fees were awarded relative to initiating the lawsuit, the fees should be deducted. The district court’s order was affirmed in part and reversed in part, and the case was remanded.
Federal Jurisdiction—State-law Claims—Federal Land Grant
Nicodemus v. Union Pacific Corp., Nos. 02-8016 & 02-8017, 03/14/2006, D. Wyo., Chief Judge Tacha.
Plaintiffs are owners of land in Wyoming over which defendant railroad has various rights-of-way granted by federal land-grant statutes. This dispute arose when the railroad contracted with telecommunications providers to install fiber-optic cables in the rights-of-way over plaintiffs’ land. Plaintiffs contended that the rights-of-way were for railroad operations only. They sued, seeking various forms of relief arguably based solely on state law. The district court dismissed the case for lack of federal jurisdiction.
On appeal, the Tenth Circuit reviewed the principles governing federal jurisdiction over state-law claims. Here, the construction of the federal land grant was the only legal or factual issue contested in the case. Therefore, the question involved a substantial federal issue. Moreover, federal common law applied to resolve the dispute, and providing a federal forum would not disrupt the division of labor between state and federal courts. Accordingly, the federal courts had jurisdiction. The district court’s order was reversed.
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