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TCL > February 2008 Issue > Summaries of Selected Opinions

February 2008       Vol. 37, No. 2       Page  109
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”).

Nos. 06-1504 & 06-1516. Weise v. Casper. 11/20/2007. D.Colo. Judge Kelly. Appellate Jurisdiction—Interlocutory Appeal—Qualified Immunity—Collateral Order Doctrine—Fact Issues—Discovery.

Plaintiffs were ejected from a public appearance by President George W. Bush. They contended they were ejected because a bumper sticker on their car, which said, "No Blood For Oil,"expressed a viewpoint contrary to that of the President’s. Plaintiffs brought a Bivens action, alleging violation of their constitutional rights against the two private parties serving as volunteers who ejected them. [Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).] Defendants moved to dismiss, claiming they were entitled to qualified immunity. The district court denied the motion and permitted limited discovery on the question of whether defendants were acting at the direction and close supervision of federal officials. Defendants filed an interlocutory appeal challenging the order denying their motion to dismiss, claiming that the doctrine of qualified immunity protected them from discovery.

The Tenth Circuit held that it did not have jurisdiction over the appeal. It recognized that the collateral order doctrine grants an appellate court jurisdiction to review interlocutory decisions denying qualified immunity based on issues of law. However, pretrial determinations of evidentiary sufficiency regarding qualified immunity are not immediately appealable. Here, the Tenth Circuit determined that the appeal did not present a purely legal question. Rather, the district court was unable to determine whether defendants were entitled to assert a qualified-immunity defense in the first instance and ordered discovery on the issue. Defendants would not be precluded from renewing their defense on summary judgment after further factual development. The district court made no ruling on the merits of defendants’ motions; it merely allowed discovery. Accordingly, the interlocutory order was not appealable. The appeal was dismissed for lack of jurisdiction.

No. 07-3002. United States v. Baker. 12/06/2007. D.Kan. Chief Judge Tacha. Jury Instructions—"Innocent Possession" Defense—Sentencing—Armed Career Criminal Enhancement—Predicate Offenses—Restoration of Civil Rights.

Defendant was convicted of being a felon in possession of ammunition after he was arrested on two outstanding Bench warrants. Two stolen speed loader devices with live ammunition were discovered in his pocket during a search incident to the arrest. At trial, he testified that he found the bullets on the ground after a party and picked them up to turn them in to police. He saw an officer sitting in a patrol car and approached the officer to give him the bullets, but the officer arrested him on the Bench warrants before he could do so.

On appeal, defendant challenged the district court’s refusal to give an "innocent possession" jury instruction. The instruction would have informed the jury that "innocent possession" was a defense if defendant obtained the ammunition innocently and held it with no illicit purpose, and that defendant took adequate measures to rid himself of its possession as promptly as reasonably possible. The district court determined that the instruction was not warranted on the evidence presented.

The Tenth Circuit agreed. The pertinent statute, it noted, prohibits "knowing" possession of ammunition, rather than willful possession. Thus, defendant’s motivation in possessing the bullets was irrelevant. The Tenth Circuit has recognized a defense of "necessity" to possession of contraband; however, such a defense did not apply here because the instruction defendant offered did not require the jury to find that he had no legal alternative to violating the law. Congress had not created a broader "innocent possession" defense.

Defendant also challenged his sentencing as an armed career criminal. Although he had the requisite three prior burglary convictions, he contended that one of these convictions should not be counted as a predicate offense because his civil rights were restored as to that conviction under Kansas law. The Tenth Circuit noted that restoration of civil rights disqualifies a conviction as a predicate offense for Armed Career Criminal enhancement purposes only if the right to possess firearms has been restored. In Kansas, release from imprisonment does not automatically restore the right to possess firearms until five years have elapsed. Based on the timing of defendant’s burglary convictions, there was never a five-year period between the time of his first felony conviction and the time he was convicted of being a felon-in-possession when he was out of state custody; thus, his right to possess firearms never was restored. The Tenth Circuit therefore upheld the sentencing enhancement.

No. 06-3163. United States v. Mumma. 12/07/07. D.Kan. Chief Judge Tacha. Sentencing Guidelines—Variances—Prior Conduct and Conduct While on Bond.

Defendant pled guilty to one count of making a false statement to a financial institution and one count of bankruptcy fraud. She was charged with providing a false Social Security number to obtain a line of credit at a bank in Olathe, Kansas, and with falsely failing to report the Olathe account in her bankruptcy filing. A presentence report (PSR) showed that she had five prior convictions for passing worthless checks; three prior arrests for passing worthless checks; a conviction for impairing a security interest by selling a car without the consent of the secured party; and a two-count conviction for forgery. This criminal history placed her in category III for advisory U.S. Sentencing Guideline purposes, resulting in an advisory sentencing range of six to twelve months’ imprisonment.

The day before sentencing was scheduled, the district court received an e-mail from a probation officer in Florida, indicating that while defendant was out on bond in this case, she had defrauded two Florida residents. The testimony at the subsequent sentencing hearing showed that defendant and her husband obtained approximately $12,175 from a neighboring Florida couple by falsely representing that they needed certified checks (1) to complete the purchase of their home, (2) to register a vehicle in Florida, and (3) to replace checks that had bounced because a former business partner had emptied their account. Further, after the victims helped defendant and her husband by creating a sub-account for them at their credit union, defendant transferred money from the victims’ account into her sub-account without the victims’ permission, and overdrew the sub-account. Defendant and her husband moved away without repaying the money.

The district court concluded that this conduct could not be considered "relevant conduct" with regard to the offenses charged; however, it found that it could nevertheless be considered as a sentencing factor under 18 U.S.C. § 3553(a). The court then sentenced defendant to forty-eight months’ imprisonment, which was thirty-six months and 300 percent higher than the top of the Sentencing Guidelines range.

On appeal, defendant contended that the sentence was substantively unreasonable. The Tenth Circuit determined that even if the variance from the Sentencing Guidelines range could be considered "extreme" on a percentage basis, the sentence was reasonable. That bankruptcy fraud and making a false statement to a financial institution are serious crimes was insufficient in and of itself to justify the variance. Other facts, however, did justify the variance. Defendant’s prior criminal history comprised almost entirely crimes of fraud and deceit. She was a "habitual prevaricator" who had not been deterred by her prior run-ins with the law or her appearance in federal court. Her behavior while out on bond highlighted her disregard for the law and the district court. Under these "dramatic" facts, the Tenth Circuit upheld the forty-eight-month sentence.

No. 06-1426. Casey v. City of Federal Heights. 12/10/2007. D.Colo. Judge McConnell. Excessive Force—Nonviolent Misdemeanor—Constitutional Violation—Duty to Stop Other Officers—Clearly Established Law.

After losing his case on a traffic ticket in the Federal Heights Municipal Court, plaintiff took the court file with him to his truck to get money to pay the traffic fine. On his way back to the courthouse, Officer Sweet grabbed him and threw him to the ground. Officer Sweet did not tell plaintiff he was under arrest. Soon other officers arrived and Officer Lor fired a taser gun at plaintiff. Eventually, plaintiff entered a guilty plea to the misdemeanor of "obstructing government operations" and received a deferred sentence. He then sued Officers Sweet and Lor, as well as the City of Federal Heights and its police chief, alleging that he was subjected to excessive force. The district court ruled that the force was not excessive. Plaintiff appealed.

The Tenth Circuit evaluated whether the officers’ actions were objectively reasonable, in light of the circumstances confronting them. It considered the severity of the crime, whether the suspect posed an immediate threat, and whether the suspect was actively resisting arrest or attempting to flee. The Tenth Circuit concluded that plaintiff’s crime was not severe, if it amounted to a crime at all, and that the eyewitness accounts indicated that plaintiff was neither an immediate threat nor resisting arrest. The Circuit also concluded that a reasonable jury could find Officer Sweet’s use of force to be excessive and therefore unconstitutional. In addition, by failing to prevent Officer Lor from "tasering" plaintiff, Officer Sweet could be found to have violated the affirmative constitutional duty to stop other officers from using unconstitutionally excessive force. The Tenth Circuit also determined that a reasonable jury could find that Officer Lor’s use of the taser gun was excessive. Furthermore, the law clearly was established that this amount of force was excessive under these circumstances, so neither officer was entitled to qualified immunity from trial. Finally, because the district court’s dismissal of the municipal and supervisory defendants was based on its finding that the force was not excessive, those claims also were remanded. The district court’s judgment was reversed and the case was remanded.

No. 07-3000. Redmond v. Lentz & Clark, P.A. (In re Wagers). 12/12/2007. Bankruptcy Appellate Panel, Per Curiam. Bankruptcy—Debtor’s Counsel Fees—Prepetition Funds—Postpetition Legal Services—Contingent Interest Included in Debtor’s Estate.

Shortly before filing his Chapter 7 bankruptcy petition, debtor assigned to his attorneys (the Firm) as a retainer all refunds he might receive for past tax years. Postpetition, debtor received tax refunds exceeding $50,000, which were delivered to the Firm. The Firm then paid itself from those funds for postpetition services rendered on behalf of the debtor. The bankruptcy trustee objected, and sought to recover the retainer funds that had not been applied to prepetition fees. The bankruptcy court ruled that the retainer funds were not property of the estate, so the Firm could keep the funds.

The Bankruptcy Appellate Panel (BAP) reversed. The Tenth Circuit formally adopted the BAP’s opinion. Relying on Lamie v. United States Trustee, 540 U.S. 526 (2004), the Circuit held that in a Chapter 7 case, payment of attorney fees from estate assets is authorized only if the attorney is employed by the trustee and approved by the court, which the Firm was not. A tax refund attributable to the prepetition portion of the year in which the bankruptcy petition is filed is estate property. The assignment in this case was intended to pay attorney fees as they were incurred; thus, it was not a full transfer of ownership. Kansas state law dictates that an advance fee retainer to be earned by future services is the property of the client, so it is property of the client’s bankruptcy estate. Accordingly, the refunds were part of the estate, and the Firm was not permitted to use prepetition funds to pay its postpetition fees. The BAP’s decision was affirmed.

No. 07-5003. United States v. McComb. 12/18/2007. N.D.Okla. Judge Gorsuch. Sentencing Guidelines—Departures and Variances—Procedural and Substantive Reasonableness—Health-Related Concerns.

Defendant was involved with an extensive, multi-year conspiracy to distribute methamphetamine in Oklahoma. He pled guilty to one count of possession of methamphetamine with intent to distribute. At sentencing, his offense level was calculated at 33 and his criminal history at category I, yielding an advisory Sentencing Guidelines range of 135 to 168 months’ imprisonment. Defendant did not challenge this calculation, but sought both a downward departure under the Guidelines and a downward variance from the Guidelines range, based on his failing physical and mental health brought on by a severe stroke that he suffered after the criminal conduct in question but before his arrest.

The district court held an evidentiary hearing at which both the prosecution and the defense presented testimony concerning defendant’s condition. It then denied the requests for departure or variance and imposed a sentence of 135 months, at the low end of the Guidelines range.

The district court cited several factors in reaching this sentence. First, it noted the seriousness of defendant’s offense and its wish to avoid sentencing disparities between defendant and his codefendants, and between defendant and others convicted of similar offenses. Second, the district court cited evidence to show that defendant’s condition was not as extreme as he presented it. Third, the district court indicated that the Bureau of Prisons had responded to its inquiry about defendant’s condition by indicating that it could appropriately provide for his health-related needs. Finally, the court found it necessary to incarcerate defendant to keep him from associating with his ex-wife who, according to witnesses, was a heavy drug user and addict.

On appeal, defendant contended that his sentence was unreasonable for two reasons. From a procedural standpoint, he complained that the district court had failed to address his request for a variance in any detail. Although the court addressed in detail the motion for a departure, it merely added in response to an inquiry by defendant’s attorney that the request for a variance would be denied for the same reasons. Because defendant made no contemporaneous objection to this procedure, the Tenth Circuit indicated it would be reviewed only for plain error. However, the Circuit saw no error at all in the district court’s procedure. Because the sentence the district court imposed fell within the Guidelines range, it was required only to provide a general statement of the reasons for its imposition of the sentence. Here, the district court held an evidentiary hearing and received testimony on the issue of whether to vary and to depart, expressly acknowledged its power to depart or vary from the Guidelines range, and stated it had considered the 18 U.S.C. § 3553(a) factors that are associated with variance requests. The reasons the district court gave for denying a departure were procedurally sufficient to justify the denial of a variance, as well.

Defendant also challenged the substantive reasonableness of his sentence. He argued that the facts and circumstances of his physical and mental infirmities were so dramatic that the district court abused its discretion by denying a departure or variance. The district court could have relied on these health-related concerns to diverge from the Guidelines, but it was not required to do so. Defendant failed to show that the factors the district court cited were clearly erroneous or that the sentence resulted from legal error. The Tenth Circuit therefore upheld defendant’s sentence.

No. 07-3072. United States v. Shurtz. 12/19/2007. D.Kan. Judge McConnell. Narcotics—Elements of Possession and Distribution Crimes—Proof of "Stimulant Effect on Central Nervous System."

Defendant was convicted of various methamphetamine-related drug and firearm offenses after the police conducted three controlled drug purchases involving a confidential informant. He argued that he was entitled to acquittal because the government failed to prove that the quantity of methamphetamine involved would have a stimulant effect on the central nervous system, as required for "Schedule II substances" listed in a pertinent federal regulation concerning controlled substances.

On appeal, the Tenth Circuit first addressed whether the phrase, "having a stimulant effect on the central nervous system," as used in the regulation, was descriptive or limiting. The Tenth Circuit rejected defendant’s argument that the regulation limited the provision to cases where the methamphetamine appeared in a quantity or concentration proven to have the prohibited effect. Such a reading of the statute would violate both congressional intent and long-standing practice, because it would infer a quantity limitation where no such limitation was affirmatively stated. A more reasonable reading of the regulation was that the language concerning "stimulant effect" referred to a category denominated by a term based on its effect on users, as opposed to other categories based on the chemical or biological composition of the substance. The Tenth Circuit further noted that every other federal court of appeals to have addressed the issue had reached this same conclusion.

Defendant further argued that his interpretation of the regulation was supported by the prior placement of methamphetamine in Schedule III of 21 U.S.C. § 812(c), where it was described with additional language to include substances containing "any quantity of methamphetamine." The defendant contended that because the regulation dropped this "any quantity" language, and courts should construe that deletion to have meaning, the regulation required more than just "any quantity"; it mandated that there be a sufficient quantity present to have a stimulant effect. The Tenth Circuit stated, however, that the more plausible explanation for the deletion of the "any quantity" language was that it was redundant. Unlike some of the other drug listings, Schedule II drug listings (including methamphetamine) do not depend on drug quantity or concentration.

The government did not need to offer proof at trial that the quantity of methamphetamine involved would have a stimulant effect on the central nervous system. Defendant’s convictions therefore were affirmed.

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