Vol. 35, No. 6
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 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).
Motion to Suppress—Curtilage—Use of Prior State Conviction to Determine Application of 18 U.S.C. § 3553(f)—Deprivation of Sixth Amendment Right to Counsel
U.S. v. Tolase-Cousins, Nos. 04-2218, 04-2264, 03/16/2006, D.N.M., Judge Ebel.
Defendants pled guilty to drug charges that arose after police discovered marijuana plants growing in their backyard. On appeal, they argued that the conduct of the police violated the Fourth Amendment because the sideyard through which police made their observations, through a hole in a fence, was within the curtilage of their house.
As to sentencing, defendant Kurt Cousins argued that the district court should not have used a 1996 state court misdemeanor conviction in calculating his criminal history category, because the conviction was obtained without counsel and thus violated the Sixth Amendment. Consideration of this conviction rendered Kurt Cousins ineligible for ‘safety valve’ sentencing relief under 18 U.S.C. § 3553(f).
The Tenth Circuit Court affirmed in part and vacated in part, with a remand for resentencing. On the Fourth Amendment issue, the Tenth Circuit applied the four factors required to determine whether a particular area is within the curtilage: (1) the proximity of the area to the house; (2) whether the area is included within an enclosure surrounding the home; (3) the use to which the area is put; and (4) the steps taken by residents to protect the area from observation. The Tenth Circuit concluded that the district court did not commit clear error in finding that defendants’ sideyard did not fall within the curtilage of their home, so the presence of police in this area did not violate the Fourth Amendment.
Regarding the sentence, the Tenth Circuit held that defendant Cousins can challenge the constitutionality of his state court conviction on Sixth Amendment grounds in this federal sentencing proceeding, when the purpose of the challenge is to establish eligibility for safety valve consideration under 18 U.S.C. § 3553(f). The state court sentence imposed here was essentially a suspended sentence, and by depriving defendant Cousins of the benefit of counsel, the South Carolina court violated his Sixth Amendment rights. It therefore was error for the district court to use this conviction to calculate defendant’s criminal history category. The order on the motion to suppress was affirmed, but the case was remanded with instructions to the district court to vacate the sentence and resentence defendant Cousins.
Information Under 21 U.S.C. § 851(a)(1)—Jurisdictional Claim—Claim-Processing Rule—Service by Fax—Waiver of Issue on Collateral Review
U.S. v. Flowers, No. 04-3206, 3/22/06, D.Kan., Judge McKay.
Defendant pled guilty to a drug conspiracy count. Before he entered his plea, the government filed an information in the district court describing defendant’s prior felony drug conviction. The purpose of this information was to raise the statutory minimum sentence. To satisfy the requirement under 21 U.S.C. § 851(a)(1) that defendant be served, the government faxed a copy of the information to defendant’s attorney. Relying on this information, the district court sentenced defendant to the statutory mandatory minimum sentence of 240 months. Defendant argued on appeal that the district court lacked jurisdiction to impose an enhanced sentence under § 851, because the government failed to properly serve the information. Defendant did not make this objection in the district court or file a direct appeal on that ground. The issue was before the Tenth Circuit on collateral review.
"The question for the Tenth Circuit was whether § 851(a)(1) is jurisdictional in nature. Jurisdictional defects cannot be procedurally defaulted or forfeited during the course of litigation. The Tenth Circuit found that § 851(a)(1) is not jurisdictional; defendant may not advance his argument that he was not served with the information in a timely fashion. Instead, § 851(a) and its requirements fall within the category of a claim-processing rule. In so holding, the Tenth Circuit expressly overruled previous decisions that have improperly designated § 851(a)’s requirements as jurisdictional. The judgment was affirmed.
Tax Lien—Court Order Not Necessary—Abusive Pleadings—Civility and Respect Required—Pro Se Litigants Not Excused
Kyler v. Everson, No. 05-5185, 04/03/2006, N.D.Okla., Chief Judge Tacha.
Plaintiff filed a claim in state court for slander of title based on Internal Revenue Service ("IRS") tax liens against his property, claiming they were invalid absent a court order. The IRS removed the case to federal court, where plaintiff’s claims were dismissed. Plaintiff appealed. The IRS filed a motion for $8,000 in sanctions.
The Tenth Circuit rejected plaintiff’s argument that a court order was required to authorize the tax liens, noting that these liens arise automatically on assessment of a tax, pursuant to statute. Turning to the IRS’s request for sanctions, the Tenth Circuit considered the substance and spirit of plaintiff’s multiple filings. At all stages of the proceedings, he accused government officials and court officers of criminal conduct. Using disrespectful language, he contended that they colluded to injure, defraud, and extort him. Consequently, the Tenth Circuit granted the motion for sanctions of $8,000, as authorized by Fed.R.App.P. 38 and 28 U.S.C. § 1912. The Tenth Circuit emphasized that the filings of pro se and counseled litigants will be scrutinized equally to prevent abuses and to ensure a level of civility that displays respect for the courts and the law. The judgment was affirmed and sanctions were imposed on plaintiff.
Jurisdiction to Remand to State Court After Removal—Defect in Removal Procedure—Civil Rights Exception
Miller v. Lambeth, No. 05-3207, 04/11/2006, D.Kan., Judge Hartz.
The Secretary of the Kansas Department of Transportation sued defendant in state court to enjoin his operation of a junkyard without a proper certificate. The state court entered a judgment against defendant. More than a year later, defendant filed a notice of removal to federal court. The federal district court remanded the case to the state court because the removal was untimely.
The Tenth Circuit Court held that it lacked jurisdiction over the appeal. Pursuant to 28 U.S.C. § 1447, remands for lack of subject matter jurisdiction or defects in the removal procedure are not reviewable on appeal, unless the case involves a civil-rights claim stated in terms of racial equality. Although defendant alleged that the Kansas official violated his civil rights by regulating his junkyard, his claims did not involve racial equality. Therefore, the Tenth Circuit was without jurisdiction to review the remand order. The appeal was dismissed.
Return of Judgment Debtor’s Assets After Losing on Appeal
Strong v. Laubach, No. 05-6207, 04/11/2006, W.D.Okla., Judge Kelly.
"Plaintiffs obtained a judgment against defendant and garnished his workers’ compensation proceeds. Defendant sought relief from the garnishment, claiming his workers’ compensation benefits were exempt. In an earlier appeal, the Tenth Circuit agreed with defendant and held that all of the workers’ compensation benefits were exempt under Oklahoma law. While the appeal was pending, plaintiffs continued to levy on those benefits, given that defendant did not seek a stay of execution or file a supersedeas bond. On remand, the district court ordered plaintiffs to return all of the garnished funds. They appealed.
The Tenth Circuit affirmed, noting that both sides took risks by their respective positions during the first appeal. The Tenth Circuit was not persuaded by plaintiff’s arguments that it would be unfair to permit defendant to recover the money, even though he did not post a supersedeas bond. Rather, because plaintiffs received funds to which they were not entitled, they were required to disgorge them. The district court’s judgment was affirmed.
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