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TCL > May 2008 Issue > Summaries of Selected Opinions

May 2008       Vol. 37, No. 5       Page  157
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. 06-3324. Morris v. St. John National Bank (In re Haberman). 02/22/2008. BAP. Judge Gorsuch. Bankruptcy—Secured Interest—Trustee’s Avoidance—Value—Property Interest.

Before filing for bankruptcy protection, debtors borrowed money from St. John National Bank (Bank), giving a security interest in their automobile to secure the loan. The Bank failed to perfect its security interest, so after debtors filed for Chapter 7 bankruptcy protection, the bankruptcy trustee avoided the security interest and preserved the avoided interest for the benefit of the bankruptcy estate. The question then became what interest the estate received—the value of the automobile ($2,000) or the value of the loan owed to the bank ($3,200). The bankruptcy court and the Bankruptcy Appellate Panel (BAP) held that the estate was entitled only to the value of the automobile. The trustee appealed.

The Tenth Circuit noted that the trustee has the power to avoid liens and transfers for the benefit of the estate. In doing so, he steps into the shoes of the former lienholder, with the same rights in the collateralized property. Drawing a distinction between property rights and rights under a contract, the Circuit held that the interest passing to the bankruptcy estate is a property interest. Accordingly, the trustee takes for the estate only the value of the property put up as collateral, not the amount due under the contract. Therefore, the trustee was entitled to collect $2,000 for the benefit of the estate. The BAP’s judgment was affirmed.

No. 06-9572. Martin v. Mukasey. 02/26/2008. BIA. Judge Seymour. Immigration—Fugitive Disentitlement Doctrine—Appeal Dismissed.

Petitioner was ordered removed to England. He appealed, but absconded before the appeal was heard. He pursued his appeal through counsel, but did not present himself to the immigration authorities or make any information known to them about his whereabouts after he was ordered removed.

The Tenth Circuit determined that petitioner’s failure to appear for a scheduled appointment or to provide his current address rendered him a fugitive in his immigration appeal. The court applied the fugitive disentitlement doctrine, which permits a court to dismiss a petitioner’s appeal if he flees while the appeal is pending. The court noted that even if it did issue a decision, there was no guarantee that the judgment would be executed.

In addition, the court held that a fugitive should not be able to use the judicial system and simultaneously avoid it. Also, dismissal of the appeal would serve a deterrent function and advance an efficient, dignified appellate practice. The Circuit further held that the doctrine is constitutional and discretionary. The appeal was dismissed.

No. 05-2052. United States v. Mitchell. 02/29/2008. D.N.M. Judge Murphy. Timeliness of Notice of Appeal—Sua Sponte Consideration—Inordinate Delay.

This case came before the Tenth Circuit on remand from the U.S. Supreme Court. Defendant, who had been convicted of possession of marijuana with intent to distribute, had filed his notice of appeal one day outside the ten-day period provided by the Federal Rules of Appellate Procedure (Federal Rules). Contemporaneously with the filing of his notice of appeal, he requested an extension of time to file based on excusable neglect, which the district court granted.

Acting sua sponte, the Circuit raised the issue of timeliness of the notice of appeal, concluded as a matter of law that its untimeliness was not the result of excusable neglect, and dismissed the appeal. The Supreme Court vacated this decision in light of Bowles v. Russell, 127 S.Ct. 2360, 2366 (2007), in which it held that the ten-day time period for appeal contained in F.R.App.P. 4(b) is not jurisdictional, but involves an inflexible claim-processing rule that must be enforced when properly invoked by the government.

On remand, the Circuit considered a first impression issue: whether it had the power to raise the timeliness issue sua sponte, given the nonjurisdictional nature of F.R.App.P. 4(b). It discerned a rule in prior cases: a court may invoke a timeliness bar sua sponte when the rule protects judicial interests beyond those of the parties. The time limits contained in the Federal Rules met this test. They are different, the court stated, from statutes of limitations, which generally are not invoked sua sponte. These appellate time limits serve the interest of judicial administration by minimizing uncertainty and avoiding the waste of judicial resources caused by undue delay. The court therefore concluded that it could raise the time bar sua sponte.

Turning to defendant’s notice of appeal, the Circuit noted that it was only one day late and that the delay caused neither a waste of judicial resources nor any inordinate delay in appellate claim processing. Consequently, it would be inappropriate to raise the untimeliness of the appeal sua sponte.

The court proceeded to the merits of the appeal, determining that the search of defendant’s trailer did not violate the Fourth Amendment. The court therefore affirmed the district court’s original order denying suppression of the marijuana located during the search.

No. 07-8038. United States v. Tindall. 03/03/2008. D.Wyo. Judge Tymkovich. Guideline Sentencing—Factual Challenges to Presentence Report—"Life-Threatening" Injury—Sentencing Disparities.

Defendant pled guilty to assault resulting in serious bodily injury. The facts detailed in the presentence report (PSR) showed that defendant chased his victim and hit him on the back of the head, causing him to fall on steps leading to a house. He then jumped on top of the victim and hit him in the head at least three more times before leaving the scene. The victim’s family took the victim to the emergency room, where the treating doctor opined that the arterial laceration to the back of the victim’s head had posed a substantial risk of death at the time of the injury because of the amount of blood loss, and that the victim would have died if left untreated.

In sentencing defendant, the district court applied a seven-level enhancement under the Sentencing Guidelines for causing a life-threatening injury. On appeal, defendant challenged the enhancement on three grounds.

First, defendant argued that the district court had improperly failed to resolve his factual challenge to the PSR, as required by F.R.Crim.P. 32. The Tenth Circuit concluded that the only factual dispute raised by defendant involved whether the doctor had exaggerated in stating the victim lost "half his blood." Because the district court did not rely on this exaggeration in determining that the injury was life-threatening, no resolution of a factual dispute was required.

Second, defendant argued that there was insufficient evidence to establish that his victim had suffered a life-threatening injury. Applying plain error review due to defendant’s failure to raise this argument in the district court, the Circuit concluded that the treating doctor’s statement that the injury posed a substantial risk of death at the time of injury because of blood loss provided sufficient evidence to support the enhancement. The fact that defendant received treatment and did not die did not establish the absence of a "life-threatening" injury. Although the treating doctor did not use the phrase "life-threatening" to describe the injury, this was irrelevant, for such characterization is the function of the district court, not a treating physician.

The Circuit also rejected defendant’s argument that "a substantial risk of death" is contained within the statutory definition of "serious bodily injury" and therefore did not justify the enhancement. This argument, it stated, conflates the statutory definition of serious bodily injury with the specific determination of the appropriate advisory sentence within the statutory range.

Finally, defendant argued that district courts within the Tenth Circuit differ in how they apply the five-level Sentencing Guidelines enhancement for "serious bodily injury" versus the seven-level enhancement for "life-threatening bodily injury" that he received. The Circuit analyzed this argument for both procedural and substantive reasonableness. Procedurally, the sentence passed muster because the district court provided an adequate explanation for the sentence. Substantively, defendant failed to demonstrate a nationwide sentencing disparity among defendants with similar records found guilty of similar conduct, which was required to prove that the district court imposed a substantively unreasonable sentence. The Circuit therefore affirmed defendant’s sentence.

No. 07-7053. United States v. Tatum. 03/03/2008. E.D.Okla. Judge McKay. Sentencing Guidelines—Counterfeit Check as "Access Device" Warranting Enhancement.

Defendant pled guilty to uttering a counterfeit check with intent to deceive an organization. The presentence report included a proposed six-level offense level enhancement, either because defendant used or possessed "device-making equipment" or because he produced or trafficked an unauthorized or counterfeit "access device." Device-making equipment is defined as "any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device." [18 U.S.C. § 1029(e)(6).] An access device is defined in 18 U.S.C. § 1029(e)(1) as "any card, plate, code, account number, . . . or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds. . . ."

Defendant used a computer to produce the bogus checks. The district court concluded that the account numbers printed on the counterfeit checks were access devices, and that the counterfeit checks could themselves be considered access devices.

The Tenth Circuit disagreed with the district court’s reasoning. It concluded that a check is a "transfer originated solely by paper instrument" and therefore falls outside the definition of an "access device." The legislative history makes it clear that Congress did not want to include passing forged checks within the ambit of § 1029. The fact that a bank account number was involved did not bring the paper check within the statutory definition. The Circuit therefore reversed defendant’s sentence. In light of its conclusion that the enhancement did not apply, the court found it unnecessary to address defendant’s additional argument that the computer and scanner used to produce the checks were not "device-making equipment."

No. 07-2033. United States v. Rodriguez-Enriquez. 03/10/2008. D.N.M. Judge Hartz. Sentencing Guidelines—Crime of Violence—Use of "Physical Force" by Drugging Victim.

Defendant pled guilty to one count of illegal reentry by a deported alien previously convicted of an aggravated felony. The district court applied a sixteen-level enhancement in calculating the advisory Sentencing Guidelines (Guidelines) range, concluding that defendant previously had been convicted of a crime of violence. Under the Guidelines, the enhancement is appropriate if a defendant has been convicted of certain enumerated crimes or if he or she has been convicted of an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." [U.S.S.G. § 2L1.2, cmt. 1(B)(iii).]

The offense for which defendant was convicted—second-degree assault—is not an enumerated offense, and therefore applies only if it involves the use, attempted use, or threatened use of physical force against another person. Defendant was convicted of a form of second-degree assault that involves drugging a victim. [CRS § 18-3-203(1)(e).] On appeal to the Tenth Circuit, defendant argued that this nonconsensual administration of a drug should not be characterized as "the use of physical force."

The Circuit noted that even if drugging involves the use of force, the Guidelines require that the force be "physical," relying on how the force was generated. "Physical" here, the court concluded, refers to impact achieved by mechanical rather than chemical means. Thus, drugging a victim is not a "crime of violence," because it does not involve the use of mechanical means constituting "physical force." The Circuit therefore reversed defendant’s conviction and remanded for resentencing.

No. 07-6011. Gann v. Rinehart. 03/11/2008. W.D.Okla. Judge Kelly. Political Patronage—First Amendment—Nonaffiliation Protected—Right Clearly Established—No Qualified Immunity.

Plaintiff sued her former employer for firing her after he was elected county commissioner. She claimed he violated her First Amendment rights by engaging in political patronage. She did not support either defendant or his opponent. After the election, defendant replaced plaintiff with a person who had campaigned for him. The district court denied defendant’s request for qualified immunity, and he appealed.

The Tenth Circuit addressed whether defendant was entitled to qualified immunity by evaluating whether plaintiff alleged that her constitutional rights were violated and the law was clearly established. The court observed that political patronage is the practice of permitting public employees to keep their jobs only if they support the favored political party. The practice may violate the First Amendment where the employee is discharged due to his or her political beliefs, affiliation, or nonaffiliation, unless his or her work requires political allegiance.

Plaintiff must show that political patronage was a substantial or motivating factor in the discharge. If she does, the burden shifts to defendant to prove that the discharge would have occurred regardless of any discriminatory political motivation.

The Circuit held that discrimination based on political nonaffiliation is just as actionable as discrimination based on political affiliation. Accordingly, it was irrelevant that plaintiff did not campaign for defendant’s opponent. Furthermore, plaintiff alleged the necessary causal link between her lack of political activity and her discharge by claiming that she did not campaign for defendant, while her replacement did. Finally, the court held that the law was clearly established. Therefore, defendant was not entitled to qualified immunity. The district court’s order was affirmed.

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