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TCL > April 2009 Issue > Summaries of Selected Opinions

The Colorado Lawyer
April 2009
Vol. 38, No. 4 [Page  135]

© 2009 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals 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: www.cobar.org (click on "Opinions/Rules/Statutes").


No. 08-5028. Gross v. Hale-Halsell Co. 01/20/2009. N.D.Okla. Judge Kelly. WARN Act—Notice to Employees of Pending Layoffs—Unforeseeable Business Circumstance Exception—Causation—Commercially Reasonable Behavior.

Plaintiffs, former employees of the defendant company, sued under the Worker Adjustment and Retraining Notification Act (WARN Act), 29 U.S.C. §§ 2101 to -2109, which requires covered businesses to give sixty days’ advance warning of layoffs. The employer provided groceries to a major grocer, which indicated it would fire the employer unless it did a better job of filling the grocer’s orders. After months of negotiations and other efforts, including the employer’s attempt to get a loan, the grocer stopped doing business with the employer. The employer’s loan application was denied, and the company laid off 200 workers three days later.

The district court granted summary judgment to the employer, holding that the WARN Act’s exception for unforeseeable business circumstances applied and that the company gave notice to its employees "as soon as practicable," pursuant to the Act. The Tenth Circuit affirmed this holding, concluding that foreseeability requires an employer to exercise commercially reasonable business judgment, applying an objective test. The evidence did not suggest that the grocer’s decision to terminate the employer was reasonably foreseeable, given their long business relationship and the grocer’s stated hope that the employer’s loan would go through and that the employer would improve its performance.

The Circuit next rejected plaintiffs’ argument that the grocer’s decision was not the cause of the layoffs, holding that under these facts, the grocer’s withdrawal was the cause of the employer’s decision to lay off its workers. Finally, the Circuit determined that the employer did not violate the WARN Act’s requirement that it give as much notice as possible of an impending layoff. The employer took three days after the loan was denied to evaluate its continued viability and inform its workers of its layoff decision. The employer behaved in a commercially reasonable way. The district court’s judgment was affirmed.

No. 07-1209. AdvantEdge Business Group, LLC v. Thomas E. Mestmaker & Assoc., Inc. 01/22/2009. D.Colo. Judge Murphy. No Review of Interlocutory Order—Dismissal for Failure to Prosecute—Dismissal Without Prejudice.

Plaintiff filed suit, alleging various causes of action concerning a health insurance plan. The district court entered a partial summary judgment in favor of defendants. Some time later, plaintiff’s attorney informed the court that he had lost contact with his client and moved to withdraw. The district court ordered plaintiff to show cause why the case should not be dismissed. Plaintiff did not respond to the order, and the district court dismissed the case without prejudice for failure to prosecute. Plaintiff appealed, seeking to challenge the district court’s grant of partial summary judgment and its order of dismissal for failure to prosecute.

The Tenth Circuit affirmed the dismissal for failure to prosecute. The Circuit noted that even though the dismissal was without prejudice, such a dismissal can have the practical effect of a with-prejudice dismissal if the statute of limitations has run. Because plaintiff did not sufficiently address on appeal the applicable statutes of limitation, it waived this argument.

The Circuit then turned to the question of whether it had jurisdiction over the interlocutory order for partial summary judgment. The Circuit held that it had jurisdiction, because interlocutory orders generally merge into the final judgment. Adopting a prudential rule rather than carving out an exception to the merger doctrine, however, the Circuit held that in the usual case where a party fails to proceed on the merits, it may not obtain appellate review of interlocutory orders. The Circuit declined to review the interlocutory order and affirmed the judgment of dismissal.

No. 08-4078. United States v. Villegas. 02/02/2009. D.Utah. Judge Hartz. Consent to Search—Officer’s Hand Gesture—Calculation of "Pure or Actual" Methamphetamine in Mixture.

Defendant was convicted, inter alia, of one count of possession with intent to distribute 50 grams or more of actual or pure methamphetamine. He was arrested after a Utah state trooper stopped his car for drifting across the white fog line on the side of the road. The trooper noticed certain objects in the car suggestive of transportation of controlled substances.

Defendant became increasingly nervous while sitting in the patrol car, even though the trooper told him he would receive only a warning. When another officer arrived and questioned defendant, he gave inconsistent accounts of his travel plans.

The first trooper told defendant he was free to go and handed him the warning and his documents. As defendant exited the patrol car, the trooper said "hey" and gestured in such a way that defendant thought he was being told to stay. The trooper then questioned defendant about drugs in his car and asked for consent to search it.

The officers subsequently conducted a search of the car at the scene and conducted two dog sniffs, without success. They had defendant drive to a mechanic shop twenty-two miles away. The car was raised on a hoist and searched. As a result of the search, the officers found controlled substances.

On appeal, defendant argued that his consent to the search was invalid, because he did not consent to the questioning that led to the search. He argued that he answered the officer’s questions only because his hand gesture compelled him to stay. The district court found, based on a demonstration of the hand gesture, that it did not indicate a show of authority, but was vague or inconsequential. The Tenth Circuit upheld this finding, noting that it was a factual matter best left to the district court. Because the remaining circumstances pointed toward a voluntary grant of consent to search, the Circuit upheld the search.

Defendant also challenged a jury instruction that permitted the jury to convict him of possession with intent to distribute 50 grams or more of "actual or pure" methamphetamine. A government chemist testified that the material found in a package in his car was 85.1 percent pure methamphetamine. The package contained 439.5 grams of a crystalline substance. Multiplying this amount of material by the percentage of purity, the chemist concluded that there were 374 grams of actual or pure methamphetamine in the package.

Defendant contended that the government could convict him only for possession of actual or pure methamphetamine if the contents of the package were 100 percent methamphetamine. The Circuit disagreed with this position. The statute contains equal penalties for 50 grams or more of pure methamphetamine, or 500 grams or more of a mixture of a substance containing a detectable amount of methamphetamine. The government may use the actual quantity of methamphetamine found in a mixture to attempt to calculate the amount of "pure or actual" methamphetamine involved for purposes of meeting the 50-gram threshold. The Circuit therefore affirmed defendant’s conviction and sentence.

No. 07-3126. Burnett v. Southwest Bell Telephone, L.P. 02/03/2009. D.Kan. Judge Holmes. Record on Appeal Inadequate—Exhibits Not Available on Electronic Database—No Appellate Review.

Plaintiff appealed the grant of summary judgment in favor of defendant on her employment law claims. Although she filed an appellate appendix, plaintiff did not include in it the summary judgment motion or the response, even though these documents were the basis of the very order she sought to have reversed. Consequently, the Tenth Circuit could not determine what arguments plaintiff had preserved for appellate review. In addition, the appendix did not include the exhibits to the summary judgment pleadings, which were filed under seal. The district court relied on them in granting summary judgment, so without the exhibits, review of the judgment was impossible.

The Circuit can review documents on the district court’s electronic filing system, should it choose to do so; however, because these exhibits were filed under seal, they were unavailable absent a specific request to the district court. Moreover, even though the parties did not dispute the contents of the missing exhibits, the Circuit declined to consider reversing the district court without independently reviewing the exhibits. The Circuit admonished counsel that the failure to designate an adequate record may result, as here, in the court’s decision not to review the merits. The district court’s judgment was affirmed.

No. 08-2014. United States v. Navarrete-Medina. 02/10/2009. D.N.M. Judge McKay. Sentencing Guidelines—Reasonableness of Sentence—Re-entry by Deported Alien—Lawful Reason for Re-entry—Re-entry After Prior Crime as a Serious Offense.

Defendant pled guilty to unauthorized re-entry into the United States as a previously deported alien. The advisory Sentencing Guidelines (Guidelines) called for a range of imprisonment of seventy-seven to ninety-six months. Defendant asked the district court to depart or vary downward from this range, arguing that a lower sentence was warranted because he re-entered the United States to seek necessary medication for his HIV condition. The district court rejected his request and sentenced him at the top of the Guidelines range, based primarily on his extensive criminal history.

On appeal, defendant argued that his sentence was unreasonably long because: (1) his offense was motivated by his need for life-saving medications, and (2) his re-entry into the United States was a malum prohibitum offense involving a statutorily created wrong rather than a malum in se offense involving conduct that is inherently wrong. The Tenth Circuit concluded that defendant failed to rebut the presumptive reasonableness of his Guidelines sentence. The fact that defendant had a non-criminal motivation for re-entering the country without permission did not require a downward variance, particularly in view of his extensive criminal history. Also, his crossing of an international boundary did not require only a light sentence. Congress views the illegal re-entry of an alien who has committed a violent crime to be far more serious than a standard trespassing offense. The Circuit therefore affirmed his conviction and sentence.

No. 07-4118. United States v. Friedman. 02/10/2009. D.Utah. Judge Murphy. Sentencing Guidelines—Downward Departures—Departure from Career Offender Guideline.

Defendant was a serial bank robber who had spent nearly all of his adult life in custody for various robberies. While on supervised release for a 1999 bank robbery, he robbed Chase Bank in West Valley City, Utah. He pled guilty to this robbery. The case was assigned to the same district court judge who had handled the 1999 robbery conviction and was consolidated with proceedings to revoke defendant’s supervised release on the 1999 bank robbery conviction. A presentence report (PSR) calculated defendant’s advisory sentence two ways. If his crime was viewed solely as a robbery, his adjusted offense level would be nineteen, which when coupled with a Category V criminal history, resulted in a range of fifty-seven to seventy-one months’ imprisonment. If he was viewed as a career offender, however, the PSR calculated his offense level at twenty-nine and his criminal history category at six, resulting in an advisory range of 151 to 188 months. The PSR concluded that the career offender range was the correct one and that there was no information to suggest that either an upward or downward departure was appropriate.

Defendant submitted a lengthy letter to the district court, explaining that he had been in prison for all but twenty months of the previous twenty-seven years, and that the prison system had done nothing to prepare him for life in the free world on supervised release. He contended that he had robbed the Chase Bank to escape the pressures of life as a free man; that the "system" bore some responsibility for his conduct; that he was not a career criminal; and that the district court should consider an alternative to long-term incarceration in his case.

At sentencing, the district court noted defendant’s lack of remorse and consideration of the effect of his actions on his victims, in particular a young teller whom he had threatened. Defendant responded that he didn’t swear at the teller or use rough language. The district court expressed concern that ninety-four months out of the advisory range was based on defendant’s status as a career offender; stated it would not regard him as a career offender; told defendant he had to work on developing a "program" to rehabilitate himself; and applied a downward departure to sentence him to fifty-seven months’ imprisonment. (It also sentenced him to a consecutive thirty-seven months on revocation of his supervised release, but later lowered this sentence to twenty-four months because that was the maximum it was permitted to impose.) In the statement of reasons accompanying sentencing, the district court indicated that it had considered defendant’s changed attitude and that it was determined to allow him one more chance.

The government appealed from the downward departure. On appeal, the government argued that the district court’s sentence was substantively unreasonable. The Tenth Circuit agreed. Other than noting defendant’s change in attitude, the district court never identified how the nature of the Chase Bank robbery or defendant’s individual characteristics supported such a dramatically reduced sentence.

The Circuit noted defendant’s extraordinarily extensive recidivist history, his continuous pattern of criminal conduct beginning from the time he was a juvenile, and the fact that he had spent most of his adult life in prison. The record showed nothing in his criminal history to distinguish him in a positive way from other career offenders. Rather than showing remorse for his crimes or their effect on his victims, he spent a significant amount of time at sentencing blaming the "system" and asserted that a teller was not overly traumatized because he did not swear at her.

Although the district court noted that the bank robbery sentence would be followed consecutively by the sentence imposed on revocation of supervised release, it did not increase the bank robbery sentence when it was forced to lower the supervised release sentence from thirty-seven to twenty-four months, indicating that the supervised release sentence did not play a significant role in determining the sentence for the bank robbery. Finally, there was no evidence to support defendant’s contention that a shorter sentence would serve the interest of his rehabilitation. The Circuit therefore reversed defendant’s sentence and remanded for further proceedings.

No. 08-4086. United States v. Dozier. 02/11/2009. D.Utah. Judge O’Brien. Sentencing Guidelines—Criminal History Points—Revocation of Probation and Re-imposition of Sentence Due to Conduct Involving Instant Offense.

Defendant pled guilty to possession of a firearm by a convicted felon after he pointed a gun at a confidential source police had sent to purchase methamphetamine. His presentence report (PSR) calculated his total offense level at twelve. His PSR assigned him seven criminal history points, three of which were assigned due to a 2006 conviction for possession of a controlled substance. An additional two points were assigned because he was on probation for that controlled substance conviction when he committed the instant offense. His criminal history placed him in Category IV, resulting in an advisory Sentencing Guidelines (Guidelines) range of twenty-one to twenty-seven months’ imprisonment. (The district court reduced the advisory sentence to eighteen months by giving him credit for the five months he served in state custody for violating his probation.)

The Guidelines stated that when probation is revoked, the original term of imprisonment is added to any term of imprisonment imposed on revocation. The original term for the controlled substance offense was zero to five years, suspended after defendant served twenty days in jail and was placed on probation for thirty-six months. His probation was revoked due to the instant firearm possession charge, and his original sentence of zero to five years was reinstated. The PSR calculated the total incarceration time at five years and twenty days, and therefore assigned the three criminal history points.

On appeal, defendant argued that he should have received only one criminal history point, based either on the twenty days he originally served, or the thirty-six months’ probation he received. This would have significantly affected his sentence. With only five total criminal history points, his advisory range would have been fifteen to twenty-one months instead of twenty-one to twenty-seven months.

Defendant argued that the probation revocation was not part of a "prior sentence" that could be counted as prior criminal history because it was not imposed, as the Guidelines require, "for conduct not part of the instant offense." Revocation of his probation occurred because of the same conduct that resulted in the instant offense—his possession of the firearm. The Tenth Circuit disagreed. Incarceration resulting from a probation revocation is punishment imposed for the original offense, rather than for the conduct resulting in the revocation. Here, the entire sentence, both the time originally served and the time imposed as the result of revocation, counted as part of the prior sentence. The defendant’s sentence for the instant offense therefore was affirmed.

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