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TCL > January 2008 Issue > Summaries of Selected Opinions

January 2008       Vol. 37, No. 1       Page  115
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit 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. They 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: (click on “Opinions/Rules/Statutes”).

No. 06-1427. Nichols v. Board of County Commissioners. 10/22/2007. D.Colo., Judge Briscoe. Zoning Decisions—Collateral Estoppel—Colorado Law—Issue Actually and Necessarily Litigated—Procedural and Substantive Due Process—Protected Property Interest Required.

Plaintiffs own the Bueno Tiempo Ranch in La Plata County, Colorado. They received a discretionary permit from the Board of County Commissioners (Board) to construct a lake on their property, but were prohibited from selling topsoil directly from the site and from processing the material on-site. VanDenBerg, another landowner in the area, entered into a settlement agreement with the Board that allowed him to process and sell topsoil from his property. Plaintiffs then sought modification of their permit, claiming they were entitled to the same terms as VanDenBerg. The Board denied plaintiffs’ request. Plaintiffs filed suit, asserting that their procedural and substantive due process rights were violated and that collateral estoppel required the Board to give them the same terms as VanDenBerg. The district court granted summary judgment to the Board.

The Tenth Circuit Court held that Colorado law governed the issues concerning collateral estoppel. The doctrine did not apply here, however, because the VanDenBerg settlement did not meet the first element of the collateral estoppel test: the issue to be precluded must be identical to an issue actually litigated and necessarily adjudicated in the prior proceeding. The issues were not actually litigated, because the parties settled. The Tenth Circuit also rejected plaintiffs’ due process claims, holding that they did not have a protected property right in the approval of their request to modify the permit, because issuance of a permit was discretionary with the Board. The VanDenBerg settlement did not affect the discretionary nature of the Board’s decisions in other cases. The district court’s judgment was affirmed.

No. 06-4022. United States v. Serawop. 10/25/2007. D.Utah, Judge Henry. Restitution—Mandatory Victims’ Restitution Act—Loss of Future Income Included Within Restitution.

Defendant was convicted of one count of voluntary manslaughter relating to the death of his 3-month-old daughter. The court sentenced him to 120 months’ imprisonment. After obtaining expert testimony concerning the daughter’s anticipated lifetime earnings, the district court ordered defendant to pay restitution to her estate under the Mandatory Victims’ Restitution Act (MVRA). The expert calculated her lifetime earnings at $308,633, based on: (1) her high school education; (2) starting work at age 17; and (3) being employed for the balance of her working life. The district court then added $17,118, undisputed by defendant, to reflect the present value of her tribal stipend, for a total amount of $325,751.

In a prior appeal, the Tenth Circuit reversed defendant’s conviction but did not reach his sentencing issues involving the restitution order. Defendant then pled guilty to voluntary manslaughter in exchange for a sentence of ninety-six months. The district court again imposed the restitution award of $325,751. Defendant appealed, raising a number of challenges to the restitution order.

Defendant first argued that the MVRA limits restitution to funeral expenses and "related services" when the victim dies, leaving the victim to pursue civil remedies for amounts such as lost wages. The Tenth Circuit acknowledged that the MVRA is poorly drafted on this point, concluding that a reasonable reading of the statute as a whole permits a victim to recover lost income in addition to funeral expenses.

Defendant next argued that because the MVRA is concerned with "reimbursing" a victim for losses, an award of restitution should not include loss of future income, which has not yet been earned and cannot be restored to the victim. The Tenth Circuit noted, however, that the word "reimburse" cannot be read in isolation. The MVRA specifically permits a victim to recover income that is lost due to a crime resulting in bodily injury. If the victim dies, the estate can recover in that victim’s place. This reading of the statute implements Congress’s purpose—to make offenders pay full restitution to their victims.

Defendant next asked the Tenth Circuit to apply the rule of lenity to construction of the MVRA. The Tenth Circuit refused to do so, because the statute unambiguously requires restitution of lost income to the victim of a crime of violence. Even if the MVRA is ambiguous on whether lost income encompasses future lost income, the statute does not inflict criminal punishment, and therefore is not subject to the rule of lenity.

Defendant argued that the MVRA requires an award of actual, rather than speculative, loss. The Tenth Circuit agreed that the MVRA does not provide an award for incidental or consequential damages, for pain and suffering, or for speculative damages; however, it held that the district court acted within its discretion in crafting an award that included lost income. An award of lost future income for a deceased infant is permitted under the MVRA. If the district court determines that the process of calculating such an award is excessively laborious and complex, it also has the discretion to decline to grant such an award.

Finally, defendant challenged the district court’s method of calculating the lost future earnings. He argued that the district court should have included, as the expert did in his initial calculations, a discount for the baby’s gender and race as a female American Indian. The Tenth Circuit held that the district court acted within its discretion in refusing to discount the child’s earnings on the basis of race and gender. Both defendant and the government also argued that the district court should have offset the award by the victim’s cost of personal consumption. The Tenth Circuit disagreed; the district court acted within its discretion in determining that the expert’s projections concerning consumption were too wide-ranging to be of any use in determining actual loss. Accordingly, the Tenth Circuit affirmed the restitution order.

No. 06-4303. United States v. Angel-Guzman. 10/30/2007. D.Utah, Judge McConnell. Guideline Sentencing—Appellate Review—"Reasonableness" Standard—Downward Departures.

Defendant pled guilty to knowingly transporting illegal aliens within the United States. The probation office prepared a presentence report (PSR) detailing his six prior misdemeanor convictions, which included four alcohol-related offenses, assault with a deadly weapon, and infliction of corporal injury on a spouse. The resulting criminal history score included two points for committing offenses while on parole and one point for committing offenses less than two years after release from confinement, putting defendant in criminal history category V. The resulting U.S. Sentencing Guideline (U.S.S.G.) range called for a sentence of imprisonment of thirty to thirty-seven months.

At sentencing, defendant requested a downward departure, claiming that the PSR exaggerated the seriousness of his criminal history. He asserted that the assault charge was the result of his throwing a bottle in self-defense, and that the spousal injury conviction stemmed from an incident in which he pulled his wife’s hair. The district court declined to depart downward, and sentenced him at the low end of the U.S.S.G. range to thirty months’ incarceration.

On appeal, defendant argued that the sentence the district court imposed was unreasonable, because his criminal history level failed to take into account what he argued was the minor nature of his previous offenses. The Tenth Circuit began its analysis by considering in some detail the effect of the Supreme Court’s most recent U.S.S.G. case, Rita v. United States, 127 S.Ct. 2456 (2007). Interpreting Rita, which concerned the reasonableness of a within-guidelines sentence, the Tenth Circuit discerned the following principles: (1) federal appellate courts may apply a presumption of reasonableness to district court sentences that fall within the recommended U.S.S.G. range; (2) the Supreme Court’s statement in Rita that reasonableness review "merely acts whether the trial court abused its discretion," does not represent a departure from the Tenth Circuit’s approach to appellate review of sentencing decisions, which has always been regarded as "deferential"; (3) the presumption of reasonableness applies only to appellate review, leaving the district courts with the responsibility to consider all relevant circumstances in determining whether the advisory U.S.S.G. sentencing range is reasonable; and (4) defendant has a right to notice and a meaningful opportunity to be heard at sentencing, and a district court must specifically explain why he imposes a sentence outside the U.S.S.G. range.

Turning to the specific sentence imposed in this case, the Tenth Circuit began by applying the presumption of reasonableness. The district court’s sentence was within the U.S.S.G. range and thus was presumed to be reasonable. Even under the new, advisory U.S.S.G. regime, the Tenth Circuit lacked jurisdiction to review defendant’s argument that the district court should have granted his request for a downward departure. This is because the district court recognized that it had the authority to depart downward, but exercised its discretion not to do so.

To the extent that defendant argued that his sentence was substantively unreasonable even though within the U.S.S.G. range, because the true nature of his criminal history was less serious than category V implies, the Tenth Circuit rejected his argument. The district court could consider the fact that defendant had four alcohol-related convictions and that his prior probationary periods had been revoked or terminated six times. Moreover, the circumstances of the current offense suggested defendant’s "experienced and callous engagement in alien smuggling." The fact that defendant received sentences in state court "on the very low end" for his previous offenses was not demonstrably relevant, given that the record did not show how the sentences he received compared to those received by others, or what reasoning the state court judges employed. Finally, although the federal sentencing judge remarked that he had no idea how defendant had avoided deportation after so many convictions and that he had been fortunate that his criminal history record was not worse, given the nature of his offenses, these statements were permissible considerations as part of the decision not to depart downward. The Tenth Circuit upheld defendant’s sentence.

No. 07-4068. United States v. Redcap. 11/05/2007, D.Utah, Judge Murphy. Sentencing Guidelines—Revocation of Supervised Release—Departures—Notice Required.

Defendant was given a thirteen-month sentence after he violated the terms of his supervised release. He admitted consuming alcohol in violation of his supervised release conditions. Based on his criminal history category and the nature of the violation, the policy statement in Chapter 7 of the U.S. Sentencing Guidelines (U.S.S.G.) recommended a sentence of four to ten months. The district court, however, imposed a thirteen-month sentence.

On appeal, defendant complained that the district court had not given proper notice of its intention to "depart" upwardly from the U.S.S.G. policy statement. The Tenth Circuit noted its previous holdings that a sentencing court is under no obligation to give notice before imposing a sentence in excess of the Chapter 7 sentence range. Defendant argued, however, that the court should reconsider its prior holdings in light of its recent holdings that notice is required for variances under the now-advisory sentencing guidelines.

The Tenth Circuit explained that these holdings do not apply to revocation sentences, because Chapter 7’s policy statements concerning revocation sentences do not function the same way as the once-mandatory sentencing guidelines. The Sixth Amendment concerns involved in recognizing the advisory nature of the U.S.S.G. are not present in cases of revocation of supervised release. Revocation proceedings are not part of a criminal prosecution and do not afford a defendant the full panoply of rights applicable to such a prosecution. In supervised release proceedings, the government does not have the full burden of an adversarial criminal trial. Moreover, supervised release is governed by Criminal Procedure Rule 32.1, which does not contain a notice requirement. The Tenth Circuit therefore upheld defendant’s sentence.

No. 06-2317. United States v. Garduño. 11/06/2007. D.N.M., Judge Murphy. Timeliness of Appeal—Tolling of Time Period—Timeliness of Motion to Withdraw Guilty Plea.

Defendant pled guilty to involuntary manslaughter and assault resulting in serious bodily injury based on her role in a fatal car accident. She was sentenced to thirty-three months’ imprisonment, followed by two years’ supervised release. The district court entered its judgment and sentence on August 4, 2006. It granted defendant’s pro se motion for extension of time to appeal. On September 6, 2006, her new attorney filed an entry of appearance on her behalf and moved to withdraw her guilty plea. On October 26, 2006, the district court denied the motion as untimely under Fed. R. Crim. P. 11. Defendant appealed from both the order denying her motion, and from the August 4, 2006 judgment and sentence.

The Tenth Circuit first addressed whether defendant’s motion to withdraw her guilty plea was timely. Fed. R. Crim. P. 11 states that once the district court has imposed sentence, defendant may not withdraw her guilty plea, which can be set aside only on direct appeal or collateral attack. Defendant argued that this rule was inapplicable in her case. She asserted that because she had not begun to serve her sentence at the time she filed her motion, her sentence had not yet been "imposed." The Tenth Circuit rejected this argument, holding that defendant’s sentence was "imposed" when it was announced; therefore, her motion to withdraw her plea was untimely.

Turning to defendant’s appeal from the district court’s sentence, the Tenth Circuit noted recent Supreme Court authority holding that the time limitations in Fed. R. App. P. 4(a)(1)(A) and 4(a)(6) are jurisdictional, and not subject to waiver. The applicable rules here—Rules 4(b)(1)(A) (setting a ten-day deadline for filing a notice of appeal by a defendant in a criminal trial) and 4(b)(4) (permitting an extension of the appeal deadline)—do not have statutory grounding and are nonjurisdictional claim-processing rules that can be waived if not asserted by the government. In the instant case, however, the government asserted the rules and they were not waived. Defendant’s appeal was untimely.

Defendant argued that her motion to withdraw her guilty plea was the functional equivalent of a motion for new trial and therefore tolled her time to appeal under Rule 4(b)(3)(A). The Tenth Circuit disagreed. There is no indication in Rule 4(b) that motions other than those enumerated may toll the time for filing a notice of appeal. She further argued that even if her notice of appeal was untimely, it should go forward, because the district court induced the delay by entertaining her motion to withdraw her guilty plea, bringing her within a "unique circumstances" exception previously recognized by the Tenth Circuit. The court determined that this case did not qualify for the "unique circumstances" rule, because no action by defendant, if properly done, could have tolled the time limitation, and the district court did not give her any assurances regarding timeliness.

Defendant’s notice of appeal was untimely. The government objected in its response brief. The objection was itself timely and effective. The Tenth Circuit therefore dismissed the appeal of the August 4, 2006 judgment as untimely, and affirmed the order denying defendant’s motion to withdraw her guilty plea.

No. 06-4187. Simmons v. Uintah Health Care Special Serv. Dist. 11/06/2007. D.Utah, Judge Gorsuch. Municipal Liability—Official Policy or Custom—Actions of Policymakers.

Plaintiff was terminated from her position as the administrator of a nursing home governed by defendant, a political subdivision (District) whose final and authoritative policymaking body is the Administrative Control Board (Board). Before terminating an employee, the official policy required the Board to follow certain designated procedures, which were not followed when the Board terminated plaintiff’s employment. Plaintiff filed suit under 42 U.S.C. § 1983, for wrongful termination without due process of law. Following a Bench trial, the district court found that the District could not be held liable for the Board’s failure to follow the official procedures, and entered a judgment in favor of the District.

The Tenth Circuit disagreed, holding that a municipality can be held liable for actions taken by final policymakers, even when that action is contrary to official policies. To hold otherwise would encourage policymakers to flout their own policies or enact policies they intend to disregard. The court reaffirmed that a municipality can be held liable for actions taken by employees in compliance with an official policy or custom, and that municipalities cannot be held liable for unauthorized actions by their employees.

The Tenth Circuit rejected the District’s argument that the summary judgment should be affirmed, because plaintiff did not strictly comply with the District’s post-separation grievance procedures. A plaintiff who was terminated from employment under § 1983 is not required to exhaust administrative remedies. Finally, the court ruled that plaintiff’s suit was not foreclosed by the district court’s finding that the District would have fired her even if the Board had followed the official policies. This finding bears on the extent of plaintiff’s damages, but not on the District’s liability. The judgment was reversed and remanded.

No. 06-3331. Medical Supply Chain, Inc. v. Neoforma, Inc. 11/16/
2007. D.Kan., Judge Hartz. Appellate Jurisdiction—Notice of Appeal—Timeliness—Motion to Reconsider—Separate Document Rule.

Under the federal civil procedure rules, a notice of appeal must be filed within thirty days after the judgment being appealed, and ordinarily a judgment must be set forth on a separate document. If a separate document is not entered, then the judgment is entered 150 days after the order disposing of the parties’ claims. An order disposing of a motion to reconsider does not require a separate document. Here, the district court entered an order dismissing plaintiff’s complaint on March 7, 2006, but did not enter a separate judgment. On March 14, 2006, plaintiff filed a motion to reconsider. On August 7, 2006, the district court entered an order denying various motions, including the motion to reconsider. Plaintiff filed its notice of appeal on September 8, 2006, appealing the order denying reconsideration.

The Tenth Circuit held that the notice of appeal was late and therefore appellate jurisdiction was lacking. The time to appeal the order denying reconsideration began running on August 7, so the September 8 notice of appeal, filed thirty-two days later, was untimely. The Tenth Circuit noted that a separate document was not required. In addition, even if the time to appeal the original dismissal order was relevant, 150 days from the March dismissal order was August 4—three days before the order appealed from was issued. The court then rejected plaintiff’s arguments that the time limit should not apply, because the district court "struck" the motion to reconsider and because the order also disposed of additional motions. Finally, the Tenth Circuit determined that the order striking the motion to reconsider was not an interlocutory order leading up to, and merged with, a final order that could have been appealed. The appeal was dismissed.

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