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TCL > February 2007 Issue > Tenth Circuit Summaries

February 2007       Vol. 36, No. 2       Page  129
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 Katherine Campbell and Frank Gibbard, 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).

Sentencing Guidelines—Downward Departure—Sentencing Disparity

U.S. v. Martinez-Trujillo, No. 05-4122, 11/20/2006, D.Utah, Judge Hartz.

In the Prosecutorial Remedies and Other Tools to End the Exploitation of Chidren Today (PROTECT) Act of 2003, Congress authorized "fast-track" sentencing programs in participating judicial districts. These programs permit defendants to obtain a downward departure in their U.S. Sentencing Guidelines offense level in exchange for pleading guilty and waiving their right to file certain motions, as well as their right to appeal.

The defendant pled guilty to illegal reentry by a previously deported alien. A fasttrack sentencing program was not available in the judicial district where he was prosecuted. The defendant therefore was ineligible for the downward departure associated with a fasttrack program.

The federal sentencing statutes require the sentencing court to avoid unwarranted sentencing disparities among defendants with similar records who are found guilty of similar conduct [18 U.S.C. § 3553(a)(6)]. Citing this statute, the defendant argued on appeal that he should be entitled to the advantages of fast-tract sentencing to avoid an unwarranted sentencing disparity.

The Tenth Circuit disagreed. The court explained that in the PROTECT Act, Congress specifically permitted the departure associated with fast-track sentencing only in participating districts, implicitly determining that any disparity thus created between sentences in participating and nonparticipating districts was "warranted."

The Tenth Circuit also rejected defendant’s argument that because the fast-track program is now available in the District of Utah, it should be applied to him retroactively, because his sentence had not become final by the time the program was adopted. The court noted that defendant already had exercised one of the rights that defendants waive when they go through the fast-track process—the right to appeal. Also, the decision to place a defendant on the fast track rests with the U.S. Attorney, who represented at oral argument that he would not offer the defendant such an opportunity now if the case were remanded to the district court. The judgment was affirmed.

Late Notice of Appeal—No Appellate Jurisdiction—Appeal Dismissed

Alva v. Teen Help, No. 04-4012, 11/22/2006, D.Utah, Judge O’Brien.

The district court granted summary judgment in favor of defendants. Plaintiffs’ attorney filed a notice of appeal by placing it in a Utah district court after-hours drop box. The court’s time stamp reflected that the notice of appeal was filed at 12:06 a.m. on the day after it was due. On its own motion, the Tenth Circuit Court raised the issue of whether the appeal was timely. It concluded that the requirement of a timely notice of appeal in a civil case is not a claim-processing rule subject to forfeiture, but a jurisdictional prerequisite to appellate review. The court held that the court’s time stamp controlled; therefore, the appeal was untimely.

The Tenth Circuit reaffirmed the long-standing rule that a timely notice of appeal is mandatory and jurisdictional, distinguishing two recent Supreme Court cases appearing to call that precedent into doubt. Consequently, because plaintiffs failed to file a timely notice of appeal, the appellate court was without jurisdiction. The appeal was dismissed.

Guilty Pleas—Waiver of Right to Appeal

U.S. v. Young, No. 05-3238, 11/28/2006, D. Kan., Judge Beam* (*Hon. C. Arlen Beam, U.S. Circuit Judge, Eighth Circuit Court of Appeals, sat by designation and authored this opinion).

The defendant pled guilty to one count of conspiracy to distribute and to possession with intent to distribute five grams or more of cocaine base. In his plea agreement, he waived his right to appeal. Although dissatisfied with his sentence, the defendant did not file a timely appeal. Instead, after the time for appeal had expired, he filed a motion requesting leave to file an appeal out of time. The district court denied this motion. Defendant then filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255, alleging that his attorney, though instructed to do so, had failed to file a timely appeal from the judgment and sentence.

The government responded with a motion to enforce the waiver contained in the plea agreement. The district court denied the government’s motion and held an evidentiary hearing, after which it vacated its challenged judgment and sentence and reentered judgment on the same terms. Defendant timely appealed from the reentered judgment. The government again filed a motion to enforce the plea agreement, this time in the Court of Appeals.

In opposing the government’s motion, defendant contended that by failing to take an appeal after the district court denied its first motion to enforce the waiver, the government had waived its right to enforce the waiver in the Court of Appeals. The Tenth Circuit rejected this argument. The district court’s denial of the government’s first enforcement motion, it explained, did not conclusively determine the government’s arguments in the motion to enforce, but merely set the stage for an evidentiary hearing on the defendant’s § 2255 motion. Once the district court granted the defendant a second chance to appeal, the government properly exercised its opportunity to file a motion to enforce the plea agreement in the Court of Appeals.

Defendant also contended that the appeal waiver was no longer binding, because the government had breached the plea agreement. The Tenth Circuit acknowledged that breach of a plea agreement could permit an appeal, notwithstanding a defendant’s waiver of his right to appeal. It concluded, however, that defendant had failed to show that the government breached the agreement. Although the government had agreed not to request an upward departure from the U.S. Sentencing Guidelines range, this did not preclude it from arguing that defendant had been a leader in the conspiracy and that he was a career offender, which are matters for adjustment rather than departure under the Sentencing Guidelines.

Taking up the merits of the government’s motion to enforce, the Tenth Circuit rejected the defendant’s contention that his plea had not been knowing and voluntary. Counsel’s alleged failure to advise defendant concerning the potential application of the career offender provision was not ineffective assistance that would entitle him to relief. Moreover, the district court had advised defendant that its calculation of his sentence could differ markedly from his attorney’s and that defendant was waiving his right to appeal from disagreements about which the Sentencing Guidelines applied.

Defendant also failed to demonstrate prejudice—that, absent the alleged errors, he would not have pled guilty—or that enforcement of the plea agreement would result in a miscarriage of justice. The Tenth Circuit therefore enforced the plea agreement and dismissed the appeal.

Sentencing Guidelines—Upward Divergence—Sentencing Disparity

U.S. v. Shaw, No. 05-6074, 12/06/2006, W.D.Okla., Judge Tymkovich.

Defendant pled guilty to bank robbery. He and an accomplice jumped over the counter at the bank and pushed two tellers, knocking one of them to the floor. Defendant then went into the bank manager’s office and punched him in the face, knocking out a front tooth and loosening five or six more.

The court sentenced defendant’s accomplice to 105 months’ incarceration, based on the mandatory sentencing guidelines then in effect. Before defendant was sentenced, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), holding that the U.S. Sentencing Guidelines must be treated as advisory, rather than mandatory. Defendant’s advisory Sentencing Guidelines range, based on the pre-sentence report, was fifty-seven to seventy-one months. The district court, after hearing testimony from the injured bank manager and argument from the government and defendant, diverged upwardly from this calculation and imposed a 105-month sentence.

The district court explained that it would be unfair to give defendant, who actually struck the bank manager, a lesser sentence than his co-defendant. Moreover, although the Sentencing Guidelines assigned a greater number of criminal history points to the co-defendant’s history, there was virtually no difference between the underlying conduct and circumstances of the two men’s criminal history. The co-defendant had committed the bank robbery while he was in parole or within two years of his release from incarceration; defendant had acted within ten days after he left formal supervision on supervised release from his prior offense.

On appeal, the defendant argued that the thirty-four-month upward divergence made his sentence unreasonable. The Tenth Circuit disagreed. The greater sentence was reasonable because (1) the defendant committed the offense shortly after release from supervision from a prior offense; and (2) the defendant’s conduct was more serious than his co-defendant’s, because he actually punched the bank manager in the face. Moreover, the district court had explained the reasons for the divergence from the Sentencing Guidelines range. The Tenth Circuit therefore upheld the defendant’s sentence.

Rooker-Feldman Doctrine—Younger Abstention—Domestic Relations—No Federal Jurisdiction

Chapman v. Oklahoma, No. 06-5064, 12/19/2006, N.D.Okla., Judge Tymkovich.

Plaintiff filed suit in federal court alleging constitutional violations in the Oklahoma family court system on behalf of himself and others adjudicated to be a noncustodial parent. The district court dismissed, holding that the Rooker-Feldman doctrine barred federal jurisdiction. [District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).]

On appeal, the Tenth Circuit Court ruled that Rooker-Feldman does not apply if the federal suit was filed before the end of the state court appeals process. Because plaintiff’s state appeal had not been concluded, Rooker-Feldman did not bar federal jurisdiction. But the Younger abstention doctrine required the federal court to abstain from hearing plaintiff’s claims. [Younger v. Harris, 401 U.S. 37 (1971).] Those claims met the three factors to apply Younger abstention: (1) there is an ongoing state proceeding; (2) the state provides an adequate forum; and (3) the state proceedings involve important and traditional state interests. In particular, the subject of domestic relations belongs to state law, not federal law. The district court’s judgment of dismissal was affirmed and modified to reflect dismissal without prejudice.

Employment Tax—Interest—Abatement—Unreasonable Delay—Deficiency—Statutory Construction—Deference to Agency Interpretation

Scanlon White, Inc. v. Commissioner of Internal Revenue, No. 06- 9000, 12/19/2006, U.S. Tax Court, Judge Hartz.

Taxpayer applied for abatement of accrued interest on its unpaid employment taxes. It claimed that 26 U.S.C. § 6404(e) authorized the abatement. Section 6404(e) permits abatement of interest attributable to unreasonable errors and delays by the Internal Revenue Service (IRS). Taxpayer sought abatement because the IRS had unreasonably delayed for four years its compromise offer to pay its past-due employment taxes. The tax court granted summary judgment to the IRS.

The Tenth Circuit Court considered whether § 6404(e) applies to employment taxes and held that it does not. The court rejected taxpayer’s argument that its failure to pay employment taxes was a "deficiency" covered by § 6404(e). The statute’s definition of "deficiency" refers to an understatement of tax liability rather than an underpayment. Taxpayer’s obligation was the amount it withheld from employee wages, so it was not an understatement of tax. Nevertheless, any ambiguity in the meaning of "deficiency" has been resolved by the IRS Commissioner’s consistent interpretation that § 6404(e) does not apply to the abatement of interest on unpaid employment taxes. The Tenth Circuit deferred to the Commissioner’s reasonable interpretation of the statute. Accordingly, the court held that the Commissioner lacked authority to abate interest under § 6404(e) with respect to taxpayer’s employment taxes. The judgment of the tax court was affirmed.

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