Not a CBA Member? Join Now!
Find A Lawyer Directory
Legal Directory

TCL > August 2006 Issue > Tenth Circuit Summaries

August 2006       Vol. 35, No. 8       Page  167
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: // (United States Courts link to the Tenth Circuit).

"Wobbler" Conviction Under California Statute—Circuit’s Misgivings About Sentence—Crime of Violence—Felony or Misdemeanor

U.S. v. Hernandez-Castillo, No. 05-2157, 06/06/2006, D.N.M., Judge McConnell.

Defendant pled guilty to reentry of a deported alien. The sentencing court enhanced defendant’s base offense level under the U.S. Sentencing Guidelines by sixteen points, finding that a prior conviction for engaging in sexual intercourse with a minor was a felony and a crime of violence. On appeal, defendant challenges the court’s application of this enhancement for a crime of violence.

When defendant was 18 years old, he was involved in a consensual sexual relationship with a 14-year-old girl. They had a child. The defendant has remained in contact with the woman and continues to help support her. Because of the age difference between the two, defendant was charged with state violations and pled guilty to having unlawful sexual intercourse with a minor more than three years younger than himself. He was deported, but returned to the United States.

The presentence report recommended that defendant’s base offense level be increased by sixteen levels because of this prior conviction. He argued that his prior conviction, which was a "wobbler" because it is punishable either as a felony or a misdemeanor under California law, was a misdemeanor, not a felony, and not a crime of violence.

The Tenth Circuit Court affirms the sentence, holding that there was no action taken that would reduce defendant’s conviction to a misdemeanor. Thus, the district court did not err in classifying defendant’s California wobbler conviction as a felony. Defendant’s conviction was for a crime of violence regardless of whether his relationship with the girl was consensual.

The Tenth Circuit points out, however, that it has grave misgivings about the appropriateness of this fifty-seven-month sentence. The sentence results from an enhancement for a consensual sexual relationship defendant had with a younger girl many years ago, with parental consent, when both were teenagers. In addition, defendant continues to support and maintain contact with the child and the mother. In reality, defendant committed no violence and he was punished at the level of a misdemeanor. This is a case where the application of the court’s discretion under U.S. v. Booker, 543 U.S. 220 (2005), could mitigate a sentence that does not fit the particular facts of the case. However, defendant’s lawyer did not challenge the reasonableness of the sentence, so it is affirmed.

Employment—Race Discrimination—Employer Liability Based on Employee’s Racism

Equal Employment Opportunity Commission v. BCI Coca-Cola Bottling Co. of Los Angeles, No. 04-2220, 06/07/2006, D.N.M., Judge McConnell.

On behalf of Stephen Peters, the Equal Employment Opportunity Commission ("EEOC") sued his former employer, alleging that it violated Title VII when it fired Peters on the basis of his race. It was undisputed that the person who made the decision to fire him was unaware that Peters is African American. Peters asserted that his supervisor’s racial animus caused him to give false information about Peters to the decision-maker and, therefore, the employer was liable for race discrimination. The district court granted summary judgment to the employer.

On appeal, the Tenth Circuit Court holds that an employer may be liable for the racial bias of a subordinate employee where the subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action. An employer can avoid liability by conducting an independent investigation of the allegations against an employee.

Applying the holding to this case, the Tenth Circuit concludes that there was sufficient evidence of racial bias by Peters’ supervisor for a reasonable fact-finder rationally to say that the stated nondiscriminatory reason for firing Peters was pretextual. Accordingly, the Tenth Circuit reverses the judgment in the employer’s favor, and remands the case for further proceedings.

Jurisdiction to Hear Appeal—Reasonableness of Sentence—Presumptively Reasonable Sentence—Split in Circuits

U.S. v. Cage, No. 05-2079, 06/08/2006, D.N.M., Judge Lucero.

This case concerns the limits of reasonableness in the context of sentencing decisions. The government appeals the district court’s decision sentencing defendant to six days in prison and three years of supervised release for drug offenses. Defendant pled guilty to two counts and the presentence report calculated her advisory guideline sentence range as forty-six to fifty-seven months. She moved for a downward departure, or "variance." The court sentenced the defendant to forty-six months in prison. However, aware of the Supreme Court’s pending decision in U.S. v. Booker, 543 U.S. 220 (2005), the court also fashioned an alternative sentence to be applied if the guidelines were found unconstitutional. This alternative sentence was six days in prison. After Booker was decided, the district court granted defendant’s motion to apply the alternative sentence. The government filed this appeal.

The Tenth Circuit Court reverses the district court’s sentencing decision. First, the Circuit concludes that it does have jurisdiction to hear this appeal. The government’s notice of appeal was timely, because the alternate sentence of six days was not a final sentence until the court entered the February 24 order making that sentence enforceable. The sentence must be reviewed for reasonableness.

In an issue of first impression, the Circuit must address whether a sentence that is extremely light when compared to the applicable advisory guidelines range was reasonable. This is a split among the federal circuits on the question whether sentences within the guideline range are presumptively reasonable. The Tenth Circuit has held that they are.

The Tenth Circuit holds that the discrepancy here between the advisory guidelines range and the actual sentence is both extraordinary and unreasonable for crimes of this level. The factors identified by the court may justify some discrepancy from the advisory guidelines range, but they are not dramatic enough to warrant such an extreme downward variance. The district court’s sentencing decision was unreasonable and it is reversed, with the case remanded for resentencing.

Sentence Enhancement Under U.S.S.G. § 2L1.1(b)(5)—Negligent Conduct—Recklessly Creating a Substantial Risk of Death or Serious Bodily Injury

U.S. v. Aranda-Flores, No. 05-4140, 06/13/2006, D.Utah, Judge Briscoe.

Defendant pled guilty to transporting illegal aliens within the United States. Defendant was driving with four passengers in his vehicle. He was smuggling them to their ultimate destination after they already had crossed the United States/Mexico border. He fell asleep at the wheel and his car collided with another vehicle in the oncoming lane of traffic. The driver of the other vehicle was killed. One of defendant’s passengers died, and the other three were injured.

Defendant pled guilty. At sentencing, the district court followed the presentence report, which recommended a six-level enhancement under U.S.S.G. § 2L1.1(b)(5) for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person. The court imposed a sentence of seventy-nine months. On appeal, defendant’s only argument is that the district court erred as a matter of law when it applied the six-level enhancement for recklessly creating a substantial risk of death or serious bodily injury under § 2L1.1(b)(5).

The Tenth Circuit Court reverses for vacation of defendant’s sentence and resentencing. The district court’s factual findings or the evidence underlying those findings do not support the six-level enhancement. The focus must be on defendant’s conduct, not the tragic deaths and injuries that resulted. There is no evidence that defendant had not slept prior to departing, or that he disregarded warnings of impending sleep during the trip. Driving for eight-and-a-half hours with only one break is not reckless conduct. At most, this may rise to the level of negligent conduct. The district court erred in applying this enhancement. The case is remanded to the district court for resentencing.

Social Security Disability—Attorney Fees—Remand to Agency—Benefits Awarded—Rule 60(b)(6)

McGraw v. Barnhart, No. 05-5079, 06/13/2006, N.D.Okla., Judge Ebel.

Claimant filed for social security disability benefits. The Social Security Administration denied benefits. On appeal to the federal district court, the court remanded to the agency for further proceedings. On remand, the agency awarded benefits to claimant. His attorney then filed a motion for attorney fees under the Equal Access to Justice Act ("EAJA") and the Social Security Act ("SSA"), based on a contingency-fee agreement with claimant. The federal district court awarded attorney fees under the EAJA, but not under the SSA, holding that the SSA did not permit the court to award attorney fees based on the agency’s favorable ruling. Claimant appealed the order denying attorney fees under the SSA.

The Tenth Circuit Court holds that the SSA does permit a district court to award attorney fees for work done in the district court, where the district court remands the case to the agency and the claimant ultimately is awarded benefits. The procedure to request attorney fees is to file a motion under Fed. R. Civ. P. 60(b)(6) within a reasonable time after the agency awards benefits to the claimant. The district court’s judgment is reversed and the case is remanded.

—Attorney-Client Privilege—Work-Product Doctrine—Selective Waiver

In re Qwest Communications International Inc., No. 06-1070, 06/19/2006, D.Colo., Judge Murphy.

Petitioner ("Qwest") filed a mandamus action in the Tenth Circuit Court, seeking an order preventing plaintiffs in a separate lawsuit from discovering documents Qwest had released to the Department of Justice and the Securities and Exchange Commission in the course of the agencies’ investigation of Qwest. The issue of first impression in the Tenth Circuit was whether Qwest waived the attorney-client privilege and work-product doctrine as to third-party civil litigants, by releasing privileged materials to federal agencies in the course of the agencies’ investigation of Qwest.

The Circuit declines to adopt a "selective waiver" doctrine that would permit Qwest to withhold the documents in question from the third-party litigants. The Circuit recognizes the general rule that release of documents covered by the attorney-client privilege or the work-product doctrine waives the confidentiality of the documents released. In this case, therefore, Qwest’s release of the challenged documents to the government agencies waived the privileges as to the third-party litigants.

In rejecting Qwest’s suggestion of a selective waiver doctrine, the Circuit notes that the record did not establish a need for a rule of selective waiver to assure cooperation with law enforcement. The Circuit also determines that it would not be unfair to Qwest to deny selective waiver.

Finally, the Circuit rejects amici’s argument that selective waiver was necessary in the modern corporate culture of waiver to cooperate with prosecutors. Qwest’s petition for a writ of mandamus is denied.

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at