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TCL > March 2007 Issue > Tenth Circuit Summaries

March 2007       Vol. 36, No. 3       Page  135
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 (CBA) and are not the official language of the Court. The CBA 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).

U.S. Sentencing Guidelines—Upward Departure—Use of Prior Arrests not Leading to Conviction

U.S. v. Mateo, No. 05-2266, 12/26/2006, D.N.M., Judge Tacha.

The defendant pled guilty to one count of being a felon in possession of a firearm and ammunition. The district court calculated his sentencing range under the U.S. Sentencing Guidelines at fifteen to twenty-one months. After considering the sentencing factors under 18 U.S.C. § 3553(a), however, the district court departed upward significantly and imposed a sentence of 120 months’ imprisonment, the statutory maximum.

On appeal, the defendant argued that the district court erred by considering facts contained in the presentence report (PSR) concerning his prior arrests that did not result in convictions. He also contended that the sentence the district court imposed was unreasonable. The Tenth Circuit upheld the sentence.

The defendant’s PSR contained records of five previous convictions and at least seven other arrests within a ten-year period. The prior crimes for which the defendant had been arrested included attempted murder, aggravated battery with a deadly weapon, armed robbery, conspiracy, and kidnapping. The district court characterized the defendant’s arrest record in three states as demonstrating a "pattern of and commitment to a criminal lifestyle" that it found "consistent with criminal activity and patterns one typically sees for armed career criminals." Accordingly, it awarded defendant the statutory maximum sentence.

The Tenth Circuit noted that although the defendant contested the application of the Sentencing Guidelines in the presentence report, he did not object to any of the factual statements contained in the report, including the factual descriptions pertaining to his multiple prior arrests. Consideration of these facts, which implicated the background, character, and conduct of the defendant, was permissible in determining the adequacy of the advisory Sentencing Guidelines range. Additionally, the district court’s reference to "armed career criminals" was not an impermissible use of an inapplicable section of the Sentencing Guidelines; rather, it was a legitimate use of analogy to develop a guidepost for sentencing the defendant. Finally, the magnitude of the divergence from the Sentencing Guidelines range was not unreasonable under the Circuit’s proportionality analysis, given the frequency of the defendant’s significant contacts with the criminal justice systems in three different states over a relatively short period of time.

Immigration—Convert Habeas Petition to Petition for Review—Aggravated Felony—Retroactive Change in Law

Gonzalez-Gonzalez v. Weber, No. 04-1181, 12/27/2006, D.Colo., Judge Holloway.

The petitioner, an alien who had been granted lawful permanent residence, was ordered deported to Mexico after he entered a guilty plea in 1997 to possession of cocaine with intent to distribute. The Immigration and Naturalization Service (INS) determined that the offense involved an "aggravated felony," which required deportation. When the INS commenced removal proceedings, the petitioner sought and received a new plea agreement on the ground that his attorney had not informed him of the deportation consequences of his plea. The new plea in 1999 was to simple possession, which the petitioner believed was not an aggravated felony under the immigration rules. The INS did not act on the petitioner’s case for three years, during which time the law on what crimes qualified as aggravated felonies changed. In 2002, the INS determined that the simple possession conviction was an aggravated felony and pursued deportation. The petitioner filed a habeas petition with the federal district court, which was granted. The INS appealed.

The Tenth Circuit applied the REAL ID Act, enacted May 11, 2005, while this case was pending. The REAL ID Act directs that this type of challenge be brought as a petition for review in the court of appeals, rather than as a habeas proceeding in the district court. Accordingly, the court converted the proceeding to a petition for review, noting that this procedure applies to appeals taken either by the government or by the alien. On the merits, the Tenth Circuit applied recent U.S. Supreme Court law, and held that the petitioner’s conviction was not conduct punishable as a felony under federal law, so did not qualify as an aggravated felony. The petition for review was granted.

U.S. Sentencing Guidelines—Immigration—Prior Removal After Conviction of Aggravated Felony—Finality of Conviction

U.S. v. Saenz-Gomez, No. 06-2148, 01/02/2007, D.N.M., Judge Briscoe.

The defendant pled guilty to illegal re-entry after removal from the United States, following a conviction for an aggravated felony. His sentence was enhanced because he previously had been removed from the United States after his conviction for the aggravated felony. On appeal, the defendant contended that the enhancement was improper, because his aggravated felony conviction was not final at the time he illegally re-entered the United States.

The defendant was sentenced in state court on April 23, 2003 for possession with intent to distribute heroin and conspiracy to distribute heroin, defined as aggravated felonies under the immigration laws. On May 2, 2003, he was deported to Mexico. On May 20, 2003, his counsel in the state court action filed a timely notice of appeal from his conviction. While his appeal was pending before the New Mexico Court of Appeals, defendant entered the United States illegally and was removed from this country. He was subsequently found illegally in this country, while his petition for a writ of certiorari was pending before the New Mexico Supreme Court, and charged with illegal reentry following removal subsequent to conviction of an aggravated felony. He argued on appeal that because the appeals process had not been exhausted at the time of his May 2003 removal, the prior removal was not "subsequent to a conviction for commission of an aggravated felony" within the meaning of 8 U.S.C. § 1326(b)(2) (permitting the imposition of a twenty-year sentence), and did not require a twelve-level enhancement for a previous deportation "after a conviction for a felony drug trafficking offense" described in § 2L1.2 of the U.S. Sentencing Guidelines.

Examining the definition of "conviction" found in 8 U.S.C. § 1101(a)(48)(A), the Tenth Circuit determined that by its plain language, all that is required is "a formal judgment of guilt of the alien entered by a court." The New Mexico state court’s written judgment and sentence, filed on April 23, 2003, qualified as such a conviction. Because the defendant was removed nine days after the conviction was entered, he was subject to the enhancement, notwithstanding the fact that his appellate remedies had not yet been exhausted. The Tenth Circuit upheld the defendant’s sentence.

Distribution of Child Pornography—Active Versus Passive Participation—Shared Computer Folders—"Knowingly"

U.S. v. Shaffer, No. 06-3145, 01/03/2007, D.Kan., Judge Gorsuch.

The defendant was convicted after a jury trial of possession and distribution of child pornography. The evidence showed that he maintained an account with Kazaa, a peer-to-peer computer application that allows users to trade computer files through the Internet. Kazaa creates a shared folder on the user’s computer that can be used to download files from other users of the service, and from which other users can download files. The defendant was charged and convicted after Kansas special agents found nineteen image files and twenty-five videos containing child pornography in the defendant’s Kazaa shared folder. At trial, he gave an interview with a special agent in which he acknowledged maintaining child pornography in his Kazaa folder.

On appeal, the defendant contended that there was insufficient evidence presented at trial to sustain his conviction for distribution of child pornography. He contended that by maintaining such materials within his Kazaa folder, he did not actively distribute them to others and was only a passive participant in the process.

Applying various dictionary definitions of "distribute," the Tenth Circuit determined that defendant "distributed" child pornography. Making such pornography available to other Kazaa users, the Circuit reasoned, was akin to being the owner of a self-service gas station, accessible by others with a credit card, even if there is no attendant on duty. The Circuit further noted that the defendant had the option of preventing downloads from his shared folder, but did not use it.

The defendant next argued that the district court erred by excluding testimony proffered by his expert witness. The witness would have testified that the defendant was on a "porn fishing expedition" and did not mean to seek or disseminate illegal child pornography. The Tenth Circuit held that the district court did not abuse its discretion in excluding the proposed testimony, because it went to the ultimate issue in the case—whether the defendant "knowingly" possessed and distributed the child pornography.

The defendant further challenged the district court’s admission of evidence of a written narrative found on his computer, entitled "House of Incest." He contended that because this narrative was not a video or pornographic image it was protected First Amendment material that was irrelevant to the crime charged and its admission was unduly prejudicial. The Tenth Circuit disagreed. The narrative, which involved a story about adult sex with children, was offered to rebut the defendant’s contention that he did not knowingly possess or distribute child pornography. Moreover, the district court gave a limiting instruction prohibiting the jury from using the narrative for improper propensity purposes.

Finally, the defendant contended that the district court incorrectly instructed the jury concerning the distribution count. Two of the instructions, offered by the defendant, asked whether he "knowingly . . . distributed" child pornography. The government’s proposed instruction asked whether the defendant "knowingly and intentionally distributed and caused to be distributed" child pornography, a requirement not found in the statute that imposed a higher standard of proof on the government. The district court gave all three instructions, apparently confusing the jury, which sent a note asking the district court to explain the discrepancy. In response, the government asked the district court to have the jury focus on the language in the instructions offered by the defendant.

The defendant asked the court instead to tell the jury to focus on the instructions as a whole, which it did. On appeal, the defendant contended that this confused the jury. Applying the plain error test (because the defendant failed to object at trial), the Tenth Circuit found no error at all. If anything, the district court’s additional instruction to the jury increased the burden on the government. The Tenth Circuit affirmed the judgment of the district court.

Fourth Amendment—Unlawful Search—Forced Blood Test—Qualified Immunity—Law Clearly Established—Pre-Verdict Rule 50 Motion Prerequisite to Post-Verdict Motion for Judgment—Waiver

Marshall v. Columbia Lea Regional Hosp., No. 05-2173, 01/09/2007, D.N.M., Judge Henry.

The appellants are two police officers who forced the plaintiff to submit to a blood test after they arrested him for driving under the influence, a misdemeanor, and after he already had passed two breathalyzer tests. After a jury trial, the jury found that the officers had violated the plaintiff’s Fourth Amendment rights and awarded him compensatory and punitive damages. The officers then renewed their qualified immunity claim, raised in their pretrial motions, but not in a pre-verdict Rule 50(a) motion. The district court denied the motion. The officers appealed.

The Tenth Circuit examined whether the officers’ failure to move for judgment as a matter of law based on qualified immunity before the verdict precluded the claim. A preverdict motion is a prerequisite to a postverdict motion under Rule 50(b). But because the plaintiff did not raise this issue in his appellate brief, it was deemed waived, and the court addressed the merits.

The officers conceded that they had violated the plaintiff’s Fourth Amendment rights by ordering a warrantless, nonconsensual blood test for a misdemeanor, but they argued that the law was not clearly established at the time they did so. Consequently, they maintained that they were entitled to qualified immunity, which shields a public actor from suit and/or liability where the plaintiff did not allege the deprivation of a constitutional right or the right was not clearly established at the time of the deprivation. In evaluating whether the plaintiff’s right was clearly established, the Tenth Circuit noted that preexisting law must give "fair warning" that an officer’s conduct would violate constitutional rights.

The court discussed Supreme Court authority, holding that a warrantless, nonconsensual blood test is unreasonable unless supported by both probable cause and exigent circumstances. Here, the fact that the plaintiff had passed two breathalyzer tests negated any claim of exigency. Because the officers had fair warning that exigent circumstances were required under federal law, they were not entitled to qualified immunity.

The Tenth Circuit also held that the blood test was unreasonable under New Mexico state law. The judgment of the district court was affirmed.

ERISA—Dual Roles as Administrator and CEO—Fiduciary Duties—Business Judgments—Issues Raised in Trial Court—Waiver

Holdeman v. Devine, No. 05-4302, 01/17/2007, D.Utah, Judge Briscoe.

The plaintiff represented a class of former employees of a Nevada casino who were entitled to benefits from a health insurance plan (Plan) covered by ERISA. The defendant was an administrator and fiduciary of the Plan, as well as the chief executive officer (CEO) of the casino business. The business weathered various financial ups and downs until, ultimately, it declared bankruptcy, leaving unpaid the medical bills of the plaintiff class. The plaintiffs sued the administrator/CEO, alleging that he breached his fiduciary duties under ERISA. The district court held a Bench trial and entered a judgment in the defendant’s favor.

On appeal, the Tenth Circuit discussed the law relating to one who acts in the dual role of administrator and CEO. Recognizing that the defendant conceded that he was a fiduciary, the court noted that the issue of fiduciary liability depended on whether he made the challenged decisions as an ERISA fiduciary or as the CEO. The court held that the defendant’s decisions on how to distribute the casino’s assets were business decisions, not fiduciary ones. In particular, the defendant did not have any authority, in his role as Plan fiduciary, to make decisions regarding the casino’s allocation of its assets and revenue. He had that authority only as CEO. Therefore, the Tenth Circuit held that the defendant had not breached his fiduciary duties in making the allocation-of-funding decisions.

The Tenth Circuit then turned to issues the district court failed to address. First, the court considered whether they were raised in the district court. Those issues presented in the plaintiffs’ trial and posttrial briefs were preserved for appeal; the remaining issues were waived. The court remanded the unaddressed issues to the district court for its consideration. The judgment was affirmed in part and reversed in part, and the case was remanded.

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