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TCL > July 2006 Issue > Tenth Circuit Summaries

July 2006       Vol. 35, No. 7       Page  145
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: // (United States Courts link to the Tenth Circuit).

Upward Departure—Lack of Notice—Constructive Notice—No Requirement to Specify Arguments that Would Have Been Made

U.S. v. Calzada-Maravillas, No. 05-5029, 04/17/2006, N.D.Okla., Judge Briscoe.

Defendant pled guilty to reentry of a deported alien after former conviction of an aggravated felony. The Presentence Report ("PSR") did not identify any factors that would warrant a departure from the guideline calculations. The district court departed upward at sentencing, without giving defendant any notice and acting sua sponte, and sentenced defendant to fifty-eight months in prison. The court stated that defendant’s criminal history category did not adequately reflect the seriousness of his conduct. The court described, as aggravating factors, the fact that three prior sentences were not used in calculating the criminal history category, that defendant was a recidivist, and that it was likely that he would reenter the United States, having done so eight times in the past. Defendant objected to the lack of notice, and to the departure. The issue on appeal is whether the district court erred in departing upward without giving defendant notice, in violation of F.R.C.P. 32(h), and U.S. v. Burns, 501 U.S. 129 (1991).

The Tenth Circuit vacates the sentence and remands the case for resentencing. Under Rule 32 and Burns, the district court must give advance notice to the defendant of its intent to depart. The departure here was based on both guideline and non-guideline rationales, but the Circuit’s decision is limited to the lack of notice of the guideline upward departure. The Circuit declines to decide whether the notice requirement also applies to non-guideline departures under the factors listed in 18 U.S.C. § 3553(a). The notice requirement applies to departures under part K or U.S.S.G. § 4A1.3. The mere listing of the defendant’s criminal history in the PSR did not give the defendant constructive notice of the upward departure. The Circuit holds that the government has failed to demonstrate that the error is harmless, regardless of the burden of proof. In addition, the defendant is not required to specify the arguments that he would have made if he had received notice, especially where, as here, the defendant objected and review is for harmless error. The case is remanded with directions to vacate the sentence and resentence the defendant.

Rooker-Feldman Doctrine—State Proceedings Final—Absolute Immunity for Administrative Actors—State Sovereign Immunity—Americans with Disabilities Act

Guttman v. Khalsa, No. 03-2244, 04/19/2006, D.N.M., Judge Lucero.

Plaintiff’s medical license was revoked in state court proceedings. Claiming the revocation violated the Americans with Disabilities Act ("ADA"), plaintiff filed suit in federal court against members of the medical board and the State of New Mexico, seeking to overturn the state court’s decision. The federal district court granted summary judgment to the defendants, applying the Rooker–Feldman doctrine, which prohibits a federal court from setting aside a state court judgment. [Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of appeals v. Feldman, 460 U.S. 462 (1983).] In the alternative, the district court held that the individual defendants were protected from suit by absolute immunity and the State was entitled to sovereign immunity. Plaintiff appealed.

The Tenth Circuit holds that the Rooker–Feldman doctrine did not bar the federal suit because, under recent Supreme Court law, the doctrine applies only to final state court proceedings. Here, the state appellate process had not ended before plaintiff filed his federal suit, because his petition for certiorari to the state Supreme Court was pending. Accordingly, the Tenth Circuit reverses the district court’s application of the Rooker–Feldman doctrine. However, the court affirms the ruling that the individual defendants were entitled to absolute immunity because they were acting in their quasi-judicial and prosecutorial capacity. The Tenth Circuit remands the question of sovereign immunity for the district court to determine whether the State of New Mexico violated Title II of the ADA and whether Congress abrogated sovereign immunity as applied to the class of conduct in this case. The district court’s judgment is affirmed in part and reversed in part and the case is remanded.

Waiver of Issues—Forfeiture of Issues—Restriction of Access to the Courts—Jury Instruction on Elements of Transmitting in Interstate Commerce a Communication Containing a Threat—Mens Rea

U.S. v. Teague, No. 04-2071, 04/21/2006, D.N.M., Judge Hartz.

A jury convicted defendant of transmitting in interstate commerce a communication to James Locatelli, his former attorney, which contained threats. Years after defendant’s divorce proceeding was final, he began sending Locatelli multiple e-mails of an increasingly threatening nature. Defendant’s explanation was that he was trying to get the attention of the FBI; he was pressing Mr. Locatelli’s "buttons" so Locatelli would report the threats to the FBI. At sentencing, the court imposed a supervised release condition that defendant have "No contact with the victims and no contact with agencies or the court unless through counsel." Defendant’s counsel had suggested to the sentencing court that the condition be broadened to include "any courts." On appeal, defendant argues that the district court erred by imposing this special condition of supervised release, and by instructing the jury incorrectly on the elements of the offense.

The Tenth Circuit affirms. In light of the sentencing transcript, where defense counsel actually suggested that the court’s proposed special condition be expanded, the Circuit concludes that the defendant’s claimed right to access to the courts was waived below. His challenge to this special condition, therefore, will not be reviewed on appeal. Regarding the challenge to the jury instruction on the elements of the offense, the defendant did not object below, so review is for plain error. He cannot meet that standard. On the issue of the mens rea requirement under the statute, there is a split of authority in the circuits. The Tenth Circuit holds that none of the other Circuits would reject the elements instruction given here, so there is not plain error. The judgment is affirmed.

Damages for Pain and Suffering and Loss of Consortium—Amounts Do Not "Shock the Judicial Conscience"—No Comparison to Awards in Similar Cases

Dolenz v. United States, No. 03-6350, 04/24/2006, W.D.Okla., Judge Briscoe.

Mr. and Mrs. Dolenz sued the United States under the Federal Tort Claims Act for injuries Mr. Dolenz sustained in an automobile accident with a government vehicle. Following a Bench trial, the district court entered judgment in plaintiffs’ favor and awarded various damages, including $4 million to Mr. Dolenz for pain and suffering, loss of enjoyment of life, and disfigurement. The court also awarded to Mrs. Dolenz $2 million for loss of consortium. The defendant appealed, challenging those damages awards.

The Tenth Circuit states that it would not compare the amounts awarded here with amounts awarded in similar cases. The issue is whether the amounts shocked the judicial conscience. After reviewing Mr. Dolenz’s injuries and bleak prognosis, as well as Mrs. Dolenz’s sacrifices and emotional distress, the Tenth Circuit finds that the amounts awarded were not so excessive that they shocked the judicial conscience. The district court’s judgment is affirmed.

Appellate Jurisdiction Over Guideline Sentences—Court’s Reasoning Stated on the Record

U.S. v. Sanchez-Juarez, No. 05-2295, 05/03/2006, D.N.M., Judge Anderson.

Defendant pled guilty to illegal reentry by a deported alien after conviction of an aggravated felony, as well as aggravated identity theft. The advisory guideline sentence range was forty-one to fifty-one months’ imprisonment, after sixteen levels had been added for his prior offense of alien smuggling, for which he had served 194 days in prison. The conviction on the aggravated identity theft offense required the imposition of a consecutive two-year prison term.

Defendant moved for a lower sentence, arguing that other courts, in reentry cases, had been granting lower levels based on the relatively minor nature of the prior aggravated felony. He also argued that his case presented exceptional family circumstances; that sentencing disparity occurred due to "fast-track" programs in other jurisdictions; and that a deportable alien faces more severe restrictions in prison than a non-alien citizen.

The district court sentenced the defendant to forty-one months on count one, plus the mandatory two years on count two. On appeal, the defendant argues that the district court erred by failing to state reasons for the sentence it imposed, and that his sentence was unreasonable in light of the sentencing factors in 18 U.S.C. § 3553(a). The government argues that the Tenth Circuit lacks jurisdiction to hear the defendant’s appeal because his sentence falls within the guidelines range.

The Circuit remands the case to the district court with instructions to vacate the defendant’s sentence, and resentence him after holding a hearing. On the jurisdictional question, the Circuit holds that unreasonable sentences, whether they are within or outside the advisory guidelines range, are "imposed in violation of law" and reviewable under 18 U.S.C. § 3742(a)(1). The meaning of that term is broadened for sentences imposed after United States v. Booker, 543 U.S. 220 (2005). Thus, the Circuit has jurisdiction to review this sentence.

Reviewing for the reasonableness of the sentence, at defendant’s sentencing hearing, the court stated no reasons for the sentence it imposed, other than noting that it had reviewed the Presentence Report’s factual findings and considered the guidelines applications then citing defendant’s misconduct. At no time did the district court refer to the § 3553(a) factors. The pre-Booker requirement that district courts provide sufficient reasons to allow meaningful appellate review of their discretionary sentencing decisions continues to apply post-Booker. The court here did not provide sufficient reasons for the sentence to allow meaningful appellate review. There is at least one argument presented by the defendant that was not clearly meritless and was raised at sentencing, so the case is remanded for the district court to vacate the defendant’s sentence and resentence him following a hearing.

Right to Counsel in Civil Cases—Employment Discrimination—Title VII—Remedy is Legal Malpractice Lawsuit

Nelson v. Boeing Co., No. 05-3156, 05/03/2006, D.Kan., Judge

Plaintiff sued his former employer for employment discrimination under various statutes, including Title VII. He was represented by retained counsel, but the attorney’s performance allegedly was inadequate. The district court entered summary judgment in defendant’s favor. Plaintiff appealed, arguing that his trial attorney’s deficient performance was ground for reversal.

The Tenth Circuit reviews the general rule in civil cases that the ineffective assistance of counsel is not a basis for appeal or retrial. The right to the effective assistance of counsel applies only to criminal and immigration cases, due to the serious consequences of bad lawyering in those cases. Plaintiff claimed that Title VII itself created a right to the effective assistance of counsel by authorizing the court to appoint an attorney. The Tenth Circuit rejects this interpretation, concluding that Congress did not intend to create such a right. Rather, a Title VII plaintiff who loses because his attorney’s performance was deficient can file a legal malpractice lawsuit to recoup the damages to which he was entitled, including damages for the loss of equitable relief, such as reinstatement. The district court’s judgment is affirmed.

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