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TCL > September 2008 Issue > Summaries of Selected Opinions

September 2008       Vol. 37, No. 9       Page  137
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. 07-8065. U.S. v. Brown. 06/23/2008. D.Wyo. Chief Judge Henry. Sentencing Guidelines—Enhancement for Prior Conviction—Uniform Code of Military Justice, Art. 134.

Defendant pled guilty to possession of child pornography under 18 U.S.C. § 2252A. His plea agreement specified that he would receive either five or ten years’ imprisonment, depending on whether the sentencing court treated his previous conviction under Article 134 of the Uniform Code of Military Justice (UCMJ) as a predicate sentence-enhancer under § 2252A. The district court determined that the prior conviction should be treated as a predicate enhancer, and sentenced defendant to ten years’ imprisonment.

On appeal, defendant argued that his prior conviction under Article 134 for distributing one or more visual depictions of a minor engaging in sexually explicit conduct, which he incurred when he was on active military duty, did not qualify as an enhancer under § 2252A. The Tenth Circuit Court agreed. Section 2252A(b)(2) provides for an enhanced sentencing range of no less than ten years’ imprisonment if the defendant "has a prior conviction under this chapter," or under various other federal or state laws, but it does not include a reference to Article 134 of the UCMJ.

Article 134 is a catch-all provision designed to punish those subject to it for, among other things, "all conduct of a nature to bring discredit upon the armed forces." In charging defendant under this statute, the military assimilated the elements of the crime of child pornography from § 2252. However, the conviction itself was obtained "under" Article 134, not § 2252. In addition, the charge and conviction and the court-martial order referred to Article 134, not § 2252.

The plain language of § 2252A does not include a prior conviction under Article 134. Although Congress included convictions under Article 120 of the UCMJ, it did not extend this treatment to convictions under Article 134. Therefore, under the principle expressio unis est exclusio alterius (to express or include one thing is to imply the exclusion of another), it must be presumed that Congress did not want to include Article 134 convictions among predicate convictions. Finally, applying the plain language of the statute this way does not lead to an absurd result. The Circuit accordingly reversed the district court’s imposition of the ten-year sentence and remanded for re-sentencing pursuant to the plea agreement.

No. 07-2136. U.S. v. Cerno. 06/24/2008. D.N.M. Judge Lucero. Admission of Evidence—Impeachment of Credibility—Use of Prior Acts—Minimal Use of Force as Mitigating Factor for Sentencing Purposes.

Defendant was convicted after a jury trial of five counts of aggravated sexual abuse and received a sentence of life imprisonment. On appeal, he challenged the admission of impeachment evidence during his cross-examination. He also argued that the district court erroneously enhanced his sentence and failed to consider certain factors that mitigated against a life sentence.

The five counts on which defendant was convicted charged him with using force to orally and digitally violate his 16-year-old niece. Prior to taking the stand at trial, defendant filed a motion in limine to exclude evidence relating to an incident in which the victim and others found him passed out on a couch as a pornographic videotape played on the television (exposure incident). The district court granted the motion in limine. During defendant’s testimony, he stated that he was an alcoholic but denied having any impairment of judgment due to his drinking. The district court then permitted the prosecutor to impeach defendant by asking him about the exposure incident.

The Tenth Circuit Court determined that the district court did not abuse its discretion by permitting testimony about the exposure incident. The incident was relevant because it impeached defendant’s assertions about the effect drinking had on his judgment. Although it was prejudicial to defendant, the district court permissibly concluded that the prejudice did not substantially outweigh the probative value of the evidence. Furthermore, because the evidence was admitted to impeach defendant’s credibility rather than to show his bad character, it was permissible under F.R.E. 404(b).

Defendant also made several arguments concerning his life sentence, one of which the Circuit found dispositive. The district court refused to consider the relatively minimal amount of force he used to commit the sexual abuse as a sentencing factor. A minimal quantum of force is sufficient to obtain a conviction under the statute; however, this does not make the quantum of force irrelevant as a sentencing consideration. Therefore, the district court committed procedural error in failing to consider defendant’s argument that the amount of force he used was minimal compared to other cases of sexual abuse. Moreover, the error was not harmless, because the district court’s comments at sentencing indicated that it was willing to consider any applicable factors that could have mitigated the sentencing level. Accordingly, the Circuit reversed defendant’s sentence and remanded for resentencing.

No. 07-6142. McPhail v. Deere & Co. 06/25/2008. W.D.Okla. Judge McConnell. Diversity Jurisdiction—Diverse Parties—Amount in Controversy—Oklahoma Products Liability.

Plaintiff’s husband was killed when he started a tractor by bypassing its malfunctioning circuitry. The tractor lurched backward and ran over him. Plaintiff sued the tractor’s manufacturer in state court. After the case was removed to federal court, the district court granted summary judgment to defendant, finding that although the tractor was unreasonably dangerous, a warning sticker affixed to the tractor provided sufficient warning to cure the tractor’s design defects.

On appeal to the Tenth Circuit Court, plaintiff challenged federal diversity jurisdiction, claiming that the parties were not diverse because identification of the "John Doe" defendants revealed that they and plaintiff were residents of the same state. However, she did not move to amend the complaint or to add necessary parties, so the district court correctly did not find that the parties were non-diverse.

Plaintiff also claimed that defendant failed to establish the amount in controversy. The Circuit noted that plaintiff did not allege in her state-court complaint any amount; therefore, the burden was on defendant to establish $75,000 in controversy. A defendant can do this by discovery, if there is time, given the thirty-day requirement to remove, or by its own affidavits on the likely cost of a plaintiff’s judgment. In addition, a plaintiff’s settlement position, although not admissible at trial, can establish the amount in controversy. Plaintiff’s attorneys refused to state a value for plaintiff’s case, but they did say that its value could well be in excess of $75,000. Consequently, the complaint, together with the background information, was sufficient to meet defendant’s burden to establish that more than $75,000 was in controversy.

On the merits, the Circuit determined that under Oklahoma products liability law, there remained an issue of material fact regarding the clarity and adequacy of the warning, in part, because it did not warn a user that the tractor’s transmission can engage even though the tractor appears to be in neutral. Among the issues was the fact that defendant anticipated that farmers would need to "bypass-start" their tractors to bring in their crops, and the warning failed to account for this need. The district court’s judgment was reversed and the case was remanded.

No. 07-2007. U.S. v. Munoz-Tello. 07/01/2008. D.N.M. Judge Ebel. Sentencing Guidelines—Upward Departures—Multiple Deaths—Recklessness.

Defendant pled guilty to four counts of transporting an illegal alien resulting in death after the Chevrolet Suburban he was driving rolled over, throwing all eleven illegal aliens he was transporting out of the vehicle and killing four of them. Evidence showed that: (1) none of the passengers was wearing a seatbelt; (2) the Suburban was built to transport a total of eight adults; and (3) defendant had instructed two 15-year-old passengers to lie down in the vehicle’s rear cargo area during the long overnight drive. In sentencing defendant, the district court increased his Sentencing Guidelines (Guidelines) base offense level for recklessly endangering his passengers, and departed upward from the Guidelines range because the accident resulted in four deaths. The calculations in the presentence report indicated an advisory Guidelines range of forty-six to fifty-seven months; however, the probation office reasoned that the four deaths were not adequately taken into consideration by the other Guidelines and therefore recommended a sentence of eighty-seven months for each count, to be served concurrently. The district court, however, sentenced defendant to ninety-six months on each count, to be served concurrently.

On appeal, defendant challenged both the increased base level and the district court’s upward departure. He contended that the base level should not have been increased by three levels for "intentionally or recklessly creat[ing] a substantial risk of death or serious bodily injury to another person," because the facts did not support the enhancement and because his conduct did not fall within the scope of the recklessness enhancement. The Tenth Circuit Court upheld the district court’s findings that the Suburban’s middle-row lap belts were not available to the passengers and that the Suburban was substantially overloaded and overcrowded, but rejected its finding that the overcrowding adversely affected the vehicle’s handling or maneuverability. Even though only two of the three challenged findings survived defendant’s challenge, the Circuit held that the district court permissibly found that defendant’s conduct satisfied the recklessness enhancement.

Defendant also argued that the upward departure was improper because the district court relied on United States v. Jose-Gonzalez, 291 F.3d 697 (10th Cir. 2002), for the proposition that multiple deaths and injuries are valid grounds for departure. However, Jose-Gonzalez had barred defendant from relying on evidence other than sentencing guidelines, policy statements, and official commentary to determine whether the Sentencing Commission (Commission) adequately accounted for a particular circumstance. Because the Supreme Court in United States v. Booker, 543 U.S. 220, 260-62 (2005), removed the portion of the sentencing statute that Jose-Gonzalez used to bar consideration of extrinsic evidence of what the Commission considered, defendant argued that this evidence should now be considered. However, the Circuit stated that even considering this extrinsic evidence, it did not help defendant’s case, because it only shows that the Commission believed that the Guidelines did not adequately take into account circumstances involving multiple deaths when setting the Guidelines range.

The Circuit also held that the number of deaths involved, along with serious injuries to other passengers, took this case "outside the heartland," thus justifying the upward departure. The record supported the factual basis underlying the departure, and the degree of the departure was reasonable. Accordingly, the Circuit affirmed defendant’s sentence.

No. 07-3256. Wachovia Dealer Servs. v. Jones (In re Jones). 07/07/2008. Bankruptcy Appellate Panel. Judge Tacha. Bankruptcy—Chapter 13—"910 Vehicle"—Debtor Keeps Vehicle and Pays Debt—Postpetition Interest.

Within 910 days of filing for Chapter 13 bankruptcy protection, debtor purchased a vehicle (910 vehicle) and the lender acquired a purchase money security interest in it. After filing for bankruptcy protection, debtor elected to keep the vehicle and pay off the balance due. The bankruptcy court rejected creditor’s claim for postpetition interest. The appeal was certified directly to the Tenth Circuit Court.

The Circuit held that a creditor secured by a 910 vehicle is entitled to postpetition interest to ensure that he or she is compensated for the decreasing value of the vehicle. This requirement is mandatory. If the creditor fails to object to a plan that does not provide for postpetition interest, the plan may be confirmed, because a failure to object is construed as acceptance. The bankruptcy court’s decision was reversed and the case is remanded.

No. 06-4310. Amundsen v. Jones. 07/15/2008. D.Utah. Judge Lucero. Driving Under the Influence—Reasonable Suspicion—Weaving—Driving Conduct Alone is Sufficient—Qualified Immunity—Failure to Cite Legal Authority Dooms Claim.

Plaintiff sued defendant, a police officer who stopped her for driving under the influence (DUI), alleging that the officer violated her right to be free from unreasonable searches and seizures. The officer noticed plaintiff weaving while driving on the highway and pulled her over. During the stop, the officer administered roadside sobriety tests. Plaintiff volunteered to undergo toxicology tests, which were negative for drugs and alcohol. The DUI charges were dropped and plaintiff filed suit. The district court denied the officer’s qualified immunity defense.

On appeal from the qualified immunity ruling, the Tenth Circuit Court first evaluated whether plaintiff’s driving justified the initial stop by providing reasonable suspicion of DUI. Recognizing that minor driving irregularities do not create a reasonable suspicion of DUI, the Circuit determined that the district court’s finding that plaintiff weaved repeatedly between the left and center lanes gave rise to a reasonable suspicion of DUI. The Circuit then considered whether the stop lasted longer than necessary to effectuate the purpose of the stop, which was to investigate a DUI. The officer’s use of field sobriety tests did not exceed the scope of the stop, and the officer was entitled to qualified immunity for the traffic stop. Moreover, the officer was entitled to summary judgment on the claim that the toxicology tests violated plaintiff’s Fourth Amendment rights, because plaintiff voluntarily consented to the toxicology tests. Even though plaintiff asserted that her consent was not voluntary, the Circuit rejected this argument because she failed to support it with legal authority on appeal and she did not plead it in the district court. The district court’s judgment was reversed and the case was remanded.

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