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TCL > August 2010 Issue > Summaries of Selected Opinions

August 2010       Vol. 39, No. 8       Page  167
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: (click on "Opinions/Rules/Statutes").

No. 09-6016. Emann v. Latture (In re Latture). 05/20/2010. Bankruptcy Appellate Panel. Judge Baldock. Bankruptcy Appeal—Time to File Notice of Appeal—Late Notice—No Jurisdiction.

Plaintiff Emann obtained a judgment against defendant Latture. Latture subsequently filed for bankruptcy protection. The bankruptcy court found Emann’s claim nondischargeable and granted judgment in his favor. Latture filed a notice of appeal to the Bankruptcy Appellate Panel (BAP) eleven days after the bankruptcy court entered its judgment. The rules require the notice to be filed within ten days. The BAP ruled that the late notice of appeal was a jurisdictional defect and dismissed Latture’s appeal.

The Tenth Circuit explained how to count ten days from a judgment. Addressing whether a timely notice of appeal is jurisdictional, the Circuit concluded that it is.

Latture claimed that he was deprived of an opportunity to file a request for an extension of time for excusable neglect because the BAP docketed his appeal, thus giving him no reason to think his appeal was untimely. This argument was unavailing, however, because the BAP entered a show cause order on timeliness within the time for requesting an extension. The BAP’s order dismissing the appeal was affirmed.

No. 09-2040. United States v. Smith. 06/03/2010. D.N.M. Judge Tymkovich. Presentment Requirement—Six-Hour Safe Harbor for Confessions—Supervised Release Condition Limiting Contact With Children and Disabled Adults.

A jury convicted defendant of sexual assault in Indian Country. He was sentenced to a term of imprisonment followed by supervised release.

Defendant and his victim attended a party located in the Navajo Nation. The victim, who had consumed alcohol and drugs, fell asleep on a couch at around 2:00 a.m., and awoke to find defendant having sex with her. She fled to a neighbor’s trailer, where she told the neighbor, "Help me, help me. He raped me." She then called police.

Defendant was arrested the same morning by tribal police based on Navajo charges. He then was questioned by law enforcement officials and confessed to sexually assaulting the victim. Three days later, a federal arrest warrant was obtained for defendant and he was tried and convicted of the assault in federal court.

On appeal, defendant first argued that the district court should have suppressed his confession because it was not knowing and voluntary and because he was not promptly taken before a federal magistrate judge. The Tenth Circuit disagreed. Defendant was arrested at around 7:30 a.m. the morning of the offense and was interviewed beginning at 11:00 a.m. During the interview, he did not appear to be intoxicated and did not smell of alcohol, and there was no evidence of coercion by the officers. Federal law requires that a prisoner be promptly brought before a magistrate judge, and accords a safe harbor for confessions made during the six-hour period between arrest and confession where presentment to a federal magistrate is delayed. Here, defendant was not arrested for a federal offense until two days after his tribal arrest and confession, and the six-hour safe harbor clock did not begin to run until his federal arrest. Even if the tribal arrest were used to start the clock, at most only five hours and ten minutes elapsed between the arrest and his confession.

The Circuit also upheld admission of the victim’s hearsay statement, under the excited utterance exception, that she had been raped. It rejected defendant’s claim that insufficient evidence was presented that he acted knowingly, in light of his confession and the general intent requirement of the crime. It also rejected his claim that insufficient evidence was presented that the victim was unable to communicate unwillingness to participate in the sexual act.

Finally, the Circuit rejected defendant’s challenge to conditions of supervised release limiting his contact with children and disabled adults. Although the victim was neither a child nor a disabled adult, defendant took advantage of her when she was in a vulnerable situation. This supported imposition of a condition protecting other vulnerable persons whom defendant might be tempted to victimize in the future. Defendant remained free to seek modification of this condition in the case of his own minor child. The Circuit therefore affirmed defendant’s conviction and sentence.

No. 09-3296. United States v. Adame-Orozco. 06/04/2010. D.Kan. Judge Gorsuch. Reentry to United States After Prior Removal—Collateral Challenge to Aggravated Felony Conviction.

Defendant pled guilty to illegally reentering the United States after a prior deportation, reserving his right to appeal the denial of his challenge to the prior deportation proceedings. While possessing valid permanent resident status, he committed a number of crimes, including two counts of selling cocaine, to which he pled guilty in Kansas state court. He appeared before an immigration judge (IJ), who explained to him that because the drug felonies were aggravated felonies, the IJ had no discretion to permit defendant to remain in the United States. The IJ gave defendant a continuance, however, to attempt to undo his guilty plea to the cocaine charges.

He was unsuccessful in doing so. The state court denied his attempt to withdraw his guilty plea on the same day that the Board of Immigration Appeals (BIA) denied his immigration appeal. Defendant was deported. He did not pursue an appeal of the BIA’s decision in federal court, but he did file a notice of appeal in state court announcing his intention to challenge that court’s rejection of his collateral attack on his drug convictions. His state court appeal apparently fell dormant. He was discovered living in Kansas and was charged with illegally reentering the country after a conviction for an aggravated felony.

On appeal, defendant argued that his conviction was illegal because the earlier deportation proceedings were statutorily deficient. A defendant-alien may mount a collateral attack against a prior deportation order if, among other things, "the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review" (18 U.S.C. § 1326(d)(2)). Here, defendant contended that the deportation proceedings deprived him of the opportunity for judicial review because they failed to provide him sufficient time to pursue state court efforts to undo his aggravated felony convictions before he was deported.

The Tenth Circuit explained that § 1326(d)(2) provides the opportunity to attack the prior deportation order only (1) with respect to the deportation proceedings at which it was issued; and (2) by arguing how those proceedings deprived him of judicial review of the deportation order itself. A collateral attack on the underlying judgment of conviction for the aggravated felony is not included within these categories. Defendant may seek to set aside his aggravated felony conviction under state or federal criminal law, but the government need not wait until these avenues are exhausted before deporting him. The Circuit therefore affirmed defendant’s conviction and sentence.

No. 08-7096. Duvall v. Georgia-Pacific Consumer Prods., L.P. 06/09/2010. E.D.Okla. Judge Ebel. Americans with Disabilities Act—When Position is Vacant—Reasonable Accommodation.

Plaintiff, who suffers from cystic fibrosis, worked in the shipping department of defendant’s paper mill. When the employer outsourced its shipping department, plaintiff transferred to another department, but could not work there because of the paper dust in the air. As a reasonable accommodation, plaintiff asked to be transferred back to his job in the shipping department; however, his job had been filled by a temporary contract worker. Plaintiff sued under the Americans with Disabilities Act (ADA), claiming that by refusing to transfer him back to the shipping department, the employer had failed to reasonably accommodate his disability. The district court granted summary judgment in favor of the employer, holding that the shipping department position was not "vacant" under the ADA.

The Tenth Circuit first acknowledged that the ADA prohibits an employer from discriminating against a qualified individual on the basis of disability. The employer must make reasonable accommodations, including reassignment to a vacant position. The Circuit then discussed the scope of the duty of reassignment and defined the statutory term "vacant" as a position that would be available for a similarly situated nondisabled employee to apply for and obtain.

Applying those rules to plaintiff’s situation, the Circuit determined that he had failed to carry his burden to identify a vacant position, reassignment to which would serve as a reasonable accommodation. The shipping department position was not available to any employee to apply for and obtain. Consequently, because plaintiff’s evidence did not create a genuine issue of fact on this question, summary judgment in employer’s favor was appropriate. The district court’s judgment was affirmed.

No. 09-6070. Porter Trust v. Rural Water Sewer & Solid Waste Mgmt. Dist. No. 1. 06/09/2010. W.D.Okla. Judge Ebel. Removal to Federal Court—Statute Authorizes Removal From State Court—Removal From Agency not Authorized—Attorney Fees Awarded.

Plaintiffs filed a petition with the local Board of County Commissioners seeking to de-annex their land from defendant water district. The water district removed the action to federal court based on a federal question, arguing that plaintiffs’ case depended on a federal statute being inapplicable to the proposed de-annexation. Plaintiffs moved to remand, asserting that the federal court lacked subject matter jurisdiction over the dispute. The federal district court remanded to the Board and awarded attorney fees to plaintiffs.

The water district appealed the attorney fee award. The Tenth Circuit noted that appellate jurisdiction generally is lacking over remand orders, but does extend to a review of an attorney fee award. The Circuit stated that fees should be awarded only where the removing party lacked an objectively reasonable basis for seeking removal. The plain language of the removal statute, 28 U.S.C. § 1441, permits removal only from a "state court." The Circuit applied the statute’s plain language, rather than the functional test. Although the Board exercises a judicial function, it is an administrative rather than a judicial entity. Therefore, it is not a state court under § 1441. The water district did not show an objectively reasonable basis for seeking removal. Accordingly, the district court did not abuse its discretion in awarding attorney fees to plaintiffs. The district court’s judgment was affirmed.

No. 09-2035. United States v. Silva. 06/14/2010. D.N.M. Judge Briscoe. Armed Career Criminal Act—Violent Crime Applied to Burglary, Aggravated Assault Offenses.

Defendant pled guilty to possession of a firearm and ammunition after conviction of a felony. Finding that he had three prior violent felony convictions, the district court sentenced him under the Armed Career Criminal Act (ACCA). On appeal, defendant contended that the ACCA did not apply to him because two of his three convictions were not violent felonies.

Defendant had been convicted in New Mexico state court of burglary. Burglary that fits the generic definition of "burglary" qualifies as a violent felony for ACCA purposes. Defendant contended, however, that the generic definition was inapplicable to his prior conviction because the indictment pertaining to that conviction showed that he was charged with entering a shed, which is not a permanent structure designed for human habitation. The Tenth Circuit disagreed. The Supreme Court has made it clear that the scope of the "building or other structure" element of generic burglary is limited to burglary of a building or other enclosed space, which would include a storage shed.

Defendant also challenged the use of a prior New Mexico conviction for aggravated assault, contending that the definition of this offense included conduct that did not have "as an element the use, attempted use, or threatened use of physical force against the person of another," as required by the ACCA (see 18 U.S.C. § 924(e)(2)(B)(i)). The Circuit disagreed. Threatening or engaging in menacing conduct toward a victim, with a weapon capable of producing death or great bodily harm, constitutes a threat of the use of violent force because it communicates to the victim that the aggressor will potentially use violent force against the victim in the near future. The Circuit therefore affirmed defendant’s sentence.

No. 09-2239. United States v. Sanchez. 06/15/2010. D.N.M. Judge Tymkovich. Fourth Amendment—Consent to Search Given by Minor Child With Joint Access to Premises.

Defendant pled guilty to possession with intent to distribute more than 100 kilograms of marijuana, reserving his right to appeal the denial of his motion to suppress the marijuana as the fruit of an illegal search. While he was on probation for drug offenses, officers received a tip that defendant was living beyond his means and had recently purchased a new home and car. They traveled to his home to conduct a home visit, and found him absent, but found his 15-year-old daughter present. She gave the officers permission to search the home. During the search, officers noticed clothing in the closet that appeared to be gang-related. One of the officers looked in a clothes hamper and discovered approximately $100,000 in cash, which he believed to be drug proceeds. After calling for backup, the officers completed the search of the home, unaccompanied by the daughter. An officer smelled marijuana in the garage and saw bricks and packages of marijuana in plain view. In all, officers found more than 100 kilos of marijuana in the garage. The district court suppressed the money found in the hamper but refused to suppress the marijuana.

On appeal, defendant argued that his daughter could not and did not validly give consent to the search of his premises. The Tenth Circuit disagreed. The daughter had actual authority to consent to a search because she had joint access to the house with defendant. She had access to the entire house and was in charge of the premises when the officers arrived. Moreover, her consent to the search was voluntary. There was no evidence of coercion, she freely showed officers around the house, and there is no per se rule against a minor’s consenting to entry onto private property. The daughter was a relatively sophisticated teenager who was routinely in charge of the family’s house and her younger brother.

Defendant also argued that because the hamper search was ruled illegal, any subsequent discovery was fruit of the poisonous tree and tainted by the illegal search. The Circuit disagreed. Defendant failed to show that the marijuana had anything to do with the hamper search or that it would not have come to light but for the government’s unconstitutional conduct. The minor’s consent would have included the garage, where the marijuana was in plain view. The Circuit therefore affirmed the district court’s denial of defendant’s motion to suppress.

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