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TCL > October 2007 Issue > Summaries of Selected Opinions

October 2007       Vol. 36, No. 10       Page  169
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) 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 CBA and are not the official language of this 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:

No. 06-2311. U.S. v. Carrasco-Salazar. 07/30/2007. D.N.M., Judge Kelly. Appeal and Error—Waiver Versus Forfeiture—Plain Error Review.

Defendant pled guilty to unlawful entry by an alien previously convicted of an aggravated felony. The probation department prepared a presentence investigation report (PSR) that recommended a sixteen-level enhancement to his base offense level, based on his prior conviction in Minnesota for a crime of violence (fourth-degree criminal sexual conduct). This resulted in a sentencing range of seventy-seven to ninety-six months’ imprisonment.

Defendant objected to the enhancement, contending that fourth-degree criminal sexual conduct is not categorically a crime of violence because it includes acts that would not constitute crimes of violence. The probation department bolstered its argument for the enhancement by obtaining a copy of the Minnesota complaint and a copy of Minnesota court records indicating that defendant pled guilty to a subsection of the statute that applies only when the perpetrator uses force or coercion to accomplish the sexual contact.

At sentencing, the district court sustained defendant’s objection to two of the criminal history points assessed against him. This reduced the sentencing range to seventy to eighty-seven months’ imprisonment. Defendant raised no objection to the district court’s announcement of a tentative sentence of seventy months’ imprisonment. The court then imposed sentence.

On appeal, defendant attempted to resurrect his argument that the sixteen-level enhancement was improper. He argued that the district court erred in adopting the PSR’s characterization of his previous Minnesota conviction as a "crime of violence."

The Tenth Circuit began its analysis by distinguishing waiver from forfeiture. Forfeiture occurs when a party fails or neglects to raise an argument. A party that has forfeited a right may obtain relief for plain error. Waiver occurs when a party intentionally relinquishes a known right. A party that has waived a right is not entitled to appellate relief, even through review for plain error.

In this case, defendant waived his challenge to the enhancement by affirmatively stating that the objection had been resolved when asked about it by the district court. Accordingly, he was precluded from challenging the enhancement, and the Tenth Circuit affirmed his sentence.

No. 06-4230. U.S. v. Cortez-Galaviz. 07/31/2007. D.Utah, Judge Gorsuch. Search and Seizure—Automobile Searches—Computer Database Containing Proof of Insurance Information.

Defendant pled guilty to possession with intent to distribute illegal drugs, reserving his right to challenge on appeal the traffic stop that led to discovery of the drugs. The drugs were discovered following a stakeout of a duplex that, according to a confidential informant, housed a drug dealing operation. During the stakeout, an officer saw defendant speak with another person, then enter the front passenger door of a white Ford Explorer, which drove away. The officer followed the vehicle and typed its license plate number into his squad car computer. He received a message, highlighted in red, informing him that the car’s insurance information was not found in the database, and recommending that he request proof of insurance. The database he queried was part of a program adopted by the Utah State Legislature and implemented by a private contractor that matches insurance information provided by insurance companies with registration information provided by the Utah Motor Vehicle Division.

Following his usual practice in such cases, the officer stopped the car to ask the driver about insurance status. A passenger in the rear seat started to reach underneath the seat. The officer asked him to keep his hands on the headrest in front of him. The passenger initially complied but, as the driver searched for registration and insurance information, he again reached under the seat. Concerned for his safety, the officer opened the rear passenger door, and found drugs in plain view. He arrested the passenger and, after discovering more drugs, arrested the driver and defendant.

On appeal, defendant argued that the officer violated the Fourth Amendment by stopping the vehicle without a reasonable suspicion of criminal activity. The Tenth Circuit determined, however, that the stop complied with the Fourth Amendment. The officer had both particularized and objective information that suggested a traffic violation. Although absence of insurance information did not definitively indicate criminal activity, its suggestive ambiguity justified the officer’s decision to warrant a traffic stop.

Defendant argued that the absence of a listing in the database was insufficiently indicative of criminal activity, because in Utah, even non-owner drivers may operate a vehicle if they have their own insurance. Assuming this is an accurate statement of Utah law, the Tenth Circuit responded that common sense and ordinary experience suggest that the vehicle’s owner is ordinarily also its driver. It would be unreasonable to expect an officer to know the identity of the driver, as well as the vehicle’s insurance status.

To defendant’s contention that the database frequently gives inaccurate information, the Tenth Circuit responded that the record was not sufficiently developed to determine the frequency of "false negatives" or the reasons the database did not reflect that the car had been insured by an unidentified person prior to the time of the stop. The officer relied on information available on the database that was twenty days old, which did not result in Fourth Amendment violation.

No. 06-2184. U.S. v. Ruiz-Rodriguez. 08/01/2007. D.N.M., Judge Ebel. Sentencing Guidelines—"Crime of Violence"—Categorical Approach.

Defendant pled guilty to unlawful reentry into the United States after deportation, subsequent to a conviction for commission of an aggravated felony, and received a sentence of forty-one months’ imprisonment. On appeal, he argued that the portion of his sentence based on a prior conviction of a "crime of violence" was improper because his crime did not meet the U.S. Sentencing Guideline definition of a crime of violence.

The previous conviction at issue was for first-degree false imprisonment, as defined by Nebraska law. Because false imprisonment is not an offense enumerated in the Guidelines that automatically qualifies as a crime of violence, the enhancement would apply only if Nebraska law defined false imprisonment as having as an element the use, attempted use, or threatened use of physical force against the person of another. The district court consulted the amended information from the Nebraska offense, noting that it charged defendant with knowingly restraining or abducting the victim under terrorizing circumstances or circumstances that exposed her to risk of serious bodily injury.

Under the Guideline definition applicable here, found in Guideline section 2L1.2(b)(1)(A), the Tenth Circuit noted that a crime of violence does not include crimes that present only a risk of physical injury. Rather, a crime of violence must include as an element the use, attempted use, or threatened use of physical force against the person of another. However, the Nebraska statutory definition of false imprisonment permits a conviction where the defendant did not exercise force at all, but restrained the victim by use of deception. The district court therefore improperly applied the crime of violence enhancement to defendant on the record before it. Because the Nebraska statute does not categorically require use of force, the Guideline enhancement would be appropriate only if a review of the charging documents, the plea agreement, the transcript of the plea colloquy, or documentation of the judge’s factual findings in the prior offense’s proceeding indicated that the conviction necessarily meant the defendant engaged in the required element of force. Here, the district court only reviewed the amended information and the judgment and sentence. Accordingly, on remand, the government should be permitted to present additional documents to permit the district court to determine whether the prior conviction was for a crime of violence.

No. 06-1128. U.S. v. Vera-Flores. 08/07/2007. D.Colo., Judge Murphy. Appeal and Error—Mootness—Deportation and Supervised Release.

Defendant pled guilty to one count of possession of a firearm by an illegal alien. He received a sentence of imprisonment for twelve months and one day, to be followed by three years’ supervised release. He sought a downward departure from the U.S. Sentencing Guideline sentencing range, which the district court denied. He then appealed, challenging the sentence imposed by the district court and contending that the government breached the plea agreement by opposing a below-Guideline sentence.

During the pendency of his appeal, the Tenth Circuit learned that defendant, who was a citizen of Mexico and was illegally in the United States, had served his prison sentence and had been deported. The court issued an order to show cause why the case should not be dismissed as moot, either because defendant’s deportation had rendered the case moot, or because of the lack of a concrete possibility that the district court would impose a lesser sentence of supervised release on remand.

The Tenth Circuit noted that under ordinary circumstances, a defendant who has served his term of imprisonment but is still serving a term of supervised release may challenge his sentence if his unexpired term of supervised release could be reduced or eliminated by an appellate ruling in his favor. In this case, however, defendant was no longer in the United States, was no longer under any obligation to report to a probation officer, and was not under the supervision or control of the probation office. His deportation had eliminated all practical consequences associated with serving a term of supervised release. The fact that defendant might re-enter the United States during the pendency of his supervised release if he obtained permission from the Attorney General to do so was too remote a possibility to create a case and controversy. The Tenth Circuit therefore dismissed the appeal.

No. 06-3250. Riggs v. Airtran Airways, Inc. 08/08/2007. D.Kan., Judge Kelly. Age Discrimination—Summary Judgment—Right to Jury Trial—Direct and Circumstantial Evidence—Pretext.

Plaintiff sued her former employer, claiming she was discharged in violation of the Age Discrimination in Employment Act. Employer responded that it had fired her for being rude to customers and impersonating a supervisor. The district court applied the McDonnell Douglas, 411 U.S. 792, 802 (1973) burden-shifting scheme and held that plaintiff had not demonstrated that employer’s reason for discharging her was a pretext for discrimination. Accordingly, the district court entered summary judgment in favor of the employer.

On appeal, plaintiff argued that applying the McDonnell Douglas paradigm on summary judgment violated the Seventh Amendment right to a jury trial, because it permitted the judge to resolve facts, including whether other employees were similarly situated to plaintiff. The Tenth Circuit rejected this argument, stating that, as in any summary judgment evaluation, the district court must determine whether one party has failed to produce sufficient evidence to carry its burden of persuasion. The court stated that the word "proffer" accurately describes the burden on plaintiff at the summary judgment stage. Therefore, the district court properly evaluated whether plaintiff had adduced enough evidence that she and other employees were similarly situated to support an inference of discrimination.

The Tenth Circuit then discussed direct and circumstantial evidence of discrimination, and concluded that plaintiff had not proffered enough evidence to create a jury question regarding pretext. The district court’s judgment was affirmed.

No. 05-4192. Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co. 08/10/2007. D.Utah, Judge Holmes. Case Dismissed as Sanction for Failure to Prosecute—Dilatory Discovery Tactics—Death of Critical Witness During Litigation—Failure to Preserve Issue in Trial Court Forfeits Appellate Review—No Abuse of Discretion.

In 1995, plaintiff (Ecclesiastes), a corporation controlled by John Z. DeLorean, sued defendants for breach of contract. In 1999, DeLorean and one of defendants filed for bankruptcy protection, and the case was administratively closed. In 2002, Ecclesiastes moved to reopen the case and to dismiss the bankrupt parties.

Defendants filed a motion to dismiss for failure to prosecute under Fed. R. Civ. P. 41(b). The district court denied the motion, but instructed the parties to proceed with all dispatch. Then, defendants served Ecclesiastes with a deposition notice pursuant to Fed. R. Civ. P. 30(b)(6), directing it to identify and produce a corporate designee. Ecclesiastes requested postponement of the deposition.

During the next ten months, defendants’ counsel attempted to complete the deposition. Both sides agreed that DeLorean was the only witness who could testify about the issues in the case. Defendants made numerous attempts to depose him, but before they could do so, DeLorean died, thus denying defendants an opportunity to preserve his critical testimony.

Defendants renewed their Rule 41(b) motion to dismiss, which the district court granted. The court dismissed the case with prejudice as a sanction for Ecclesiastes’s discovery-related dilatoriness.

The Tenth Circuit first rejected Ecclesiastes’s argument that the dispute was not covered by Rule 41, but instead by Rule 37, which pertains to discovery disputes. Ecclesiastes’s failure to raise this issue in the trial court forfeited appellate review.

The Tenth Circuit then addressed the dismissal order, applying the five traditional factors: (1) Ecclesiastes’s failure to preserve DeLorean’s critical testimony prejudiced defendants, because they were prevented from learning facts to aid them in defending Ecclesiastes’s claims and in proving their counterclaims; (2) the degree of interference with discovery warranted dismissal, given Ecclesiastes’s litany of dilatory conduct and lack of good faith; (3) Ecclesiastes was sufficiently culpable based on its admission that DeLorean was the crucial corporate deponent, its decision to withdraw him eight months after designating him, and its knowledge of DeLorean’s advanced age and fragile health; (4) addressing the fourth factor, whether Ecclesiastes was given advance notice that the case would be dismissed as a sanction, the Tenth Circuit rejected the argument that actual notice is required, holding that constructive notice is sufficient; and (5) due to the incurable loss of DeLorean’s unique and critical testimony, the court held that a lesser sanction was not available. The district court’s order dismissing the case with prejudice was affirmed.

No. 06-3305. Van Deelen v. Johnson. 08/14/2007. D.Kan., Judge Gorsuch. First Amendment—Right to Seek Redress of Grievances—"Public Concern" Applies Only to Public Employees—Qualified Immunity—Established Precedent.

Plaintiff sued his local board of county commissioners and several county officials, claiming they violated his First Amendment right to petition the government for the redress of grievances. He alleged that the county officials threatened and intimidated him into dropping various tax assessment challenges. The district court held that plaintiff’s claims did not address matters of "public concern," and granted summary judgment to defendants. Plaintiff appealed.

The Tenth Circuit held that the public concern requirement does not apply to a private citizen’s right to petition for the redress of grievances. Public concern is relevant only to First Amendment claims of public employees. Plaintiff demonstrated the three required elements of a First Amendment right-to-petition claim: (1) plaintiff was engaged in constitutionally protected activity; (2) defendants’ action caused plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) defendants’ action was substantially motivated as a response to plaintiff’s constitutionally protected conduct. Defendants argued that they were entitled to qualified immunity, which shifted the burden to plaintiff to demonstrate that defendants violated a constitutional or statutory right that was clearly established.

The Tenth Circuit held that plaintiff met these criteria, rejecting defendants’ argument that the law was not clearly established because local precedent differed from long-standing Supreme Court and circuit case law. The district court’s judgment was reversed and remanded.

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