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TCL > December 2010 Issue > Summaries of Selected Opinions

December 2010       Vol. 39, No. 12       Page  115
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. 09-2304. United States v. Leyva-Matos. 09/21/2010. D.N.M. Judge Baldock. Plea Agreement—Waiver of Right to Appeal—Government’s Use of Immunized Information at Sentencing as Breach of Plea Agreement That Vitiates Waiver.

Defendant pled guilty to possessing marijuana with intent to distribute and conspiring to possess marijuana with intent to distribute. As part of his plea agreement, defendant waived his right to appeal and, in exchange for the government’s promise not to use the information he provided against him at sentencing, he agreed to provide information about the crimes with which he and his co-defendant were charged. The Sentencing Guidelines (Guidelines) specifically provide for enforcement of assurances of this kind by restricting the use of such information at sentencing.

At sentencing, government provided certain statements defendant had made during post-plea debriefings that it had promised not to use against defendant. This information was provided for purposes of the court’s consideration of a downward departure for defendant’s substantial assistance. However, the district court used the information to enhance defendant’s sentence. Defendant argued that this use of the information violated his plea agreement with the government.

On appeal, the Tenth Circuit considered whether defendant’s appeal waiver was enforceable, requiring dismissal of the appeal. Defendant argued that its enforcement would represent a miscarriage of justice. He contended that his sentence was "otherwise unlawful," meaning that enforcement of the waiver would seriously affect "the fairness, integrity or public reputation of judicial proceedings," because information was used against him that should have been restricted from use at sentencing.

The Circuit disagreed. It noted that the inquiry is not whether the sentence itself is unlawful, but whether the waiver was unlawful or unenforceable. Defendant had not established such an unlawful waiver. Although the Guidelines permit the government to agree to restrictions for sentencing purposes in the use of information provided by defendant, an exception is made where this information is used in calculating a downward departure, which favors defendant. Although the district court may have gone beyond this permissible use of the information in enhancing defendant’s sentence, the government provided the information in accordance with the Guidelines and did not breach its agreement with defendant. Accordingly, the Circuit found no miscarriage of justice, applied the waiver, and dismissed the appeal.

No. 09-2094. Raymond v. Astrue. 09/28/2010, nunc pro tunc, 12/15/2009. D.N.M. Judge Gorsuch. Originally an unpublished decision; ordered published on 09/28/2010. Social Security Disability—Number of Jobs Available—National Economy.

Plaintiff filed for disability benefits under the Social Security Act. An administrative law judge (ALJ) found that plaintiff could not perform his past work, but that he retained the residual functional capacity to perform other work, including that of rental clerk. Rental clerk jobs were available in significant numbers in the national economy. Accordingly, it was determined that plaintiff was not disabled. He appealed to the district court, which upheld the determination.

On appeal to the Tenth Circuit, plaintiff argued that the ALJ erred in finding him not disabled. The Circuit first rejected plaintiff’s arguments that the ALJ erred in finding him not credible and in weighing a physician’s opinion.

The Circuit then addressed plaintiff’s argument that even if he could perform other jobs, there was not a significant number of those jobs available in the regional economy. The Circuit held that the statutory "significant number of jobs" standard looks to the national economy rather than to the regional economy. Because there were 1.34 million rental clerk jobs in the national economy, the ALJ did not err in concluding that there was a significant number of jobs plaintiff could perform. Consequently, he was not disabled under the Social Security Act. The district court’s judgment was affirmed.

No. 08-3313. United States v. Washington. 09/30/2010. D.Kan. Judge Seymour. Sixth Amendment—Ineffective Assistance of Counsel in Connection With Presentence Interview.

Defendant was indicted for three counts of distribution of cocaine and one count of using or carrying a firearm in connection with a crime. A jury convicted him of possessing and distributing 61.98 grams of cocaine base, but acquitted him of the firearm charge. Prior to sentencing, defendant attended a presentence interview with the probation officer assigned to his case. His counsel did not accompany him to this meeting, or advise him concerning the purpose or legal significance of the interview. At the interview, defendant admitted to a pattern of drug distribution that the probation officer used to assign an additional 2.5 kilograms of cocaine to defendant.

Defendant received a total sentence of 120 years. The Tenth Circuit affirmed his conviction and sentence on direct appeal. After some procedural maneuvering, defendant filed this proceeding under 28 U.S.C. § 2255, eventually including a claim that his counsel had been constitutionally ineffective by failing to accompany him to the meeting with the probation officer, or at least to advise him of the nature and probable consequences of the meeting.

On appeal, the Circuit distinguished its prior precedent in United States v. Gordon, 4 F.3d 1567 (10th Cir. 1993). The Circuit held that a counsel’s representation can fall below the Sixth Amendment’s objective standard of reasonableness as a result of counsel’s failure to understand the basic structure and mechanics of the Sentencing Guidelines. Here, counsel did not advise defendant concerning relevant conduct, because counsel simply did not understand its significance in the sentencing scheme. Though defendant did not have a right to counsel’s presence at the presentencing interview, he did have a right to counsel’s advice concerning the impact of relevant conduct on the sentencing process. Counsel’s performance therefore was deficient.

Moreover, this deficient performance prejudiced defendant, because his admissions during the presentence interview resulted in his loss of a downward adjustment pursuant to the 2007 crack cocaine amendments, which do not apply if the offense involved 4.5 kilograms or more, a total he would not have had but for the 2.5 kilograms attributed to him as a result of the presentence interview. Accordingly, the Circuit reversed the district court’s denial of relief, and remanded the case for further proceedings.

No. 08-1272. Kokins v. Teleflex, Inc. 10/14/2010. D.Colo. Judge Holmes. Colorado Products Liability—Defective Design—Jury Instructions—Consumer Expectation Instruction—Risk–Benefit Instruction—Statutory Rebuttable Presumption That Product is Not Defective.

Plaintiffs Karen Kokins, a park ranger, and her employer, the City of Westminster, sued the maker and seller of a boat steering cable, alleging the cable was defectively designed and unreasonably dangerous. Kokins was injured while on duty patrolling a lake by boat when the steering cable snapped, throwing her overboard and severely injuring her ankle. A jury returned a verdict in defendant’s favor. Plaintiffs appealed, claiming the district court erred in two jury instructions: (1) it failed to give the appropriate instruction for determining whether a product is defectively designed; and (2) it instructed the jury regarding a Colorado statutory presumption of non-defectiveness.

The pivotal issue was whether the boat’s steering cable was defectively designed. The parties disagreed on jury instructions. Plaintiffs requested that the jury be instructed on the "consumer expectation" test (product is dangerous beyond that contemplated by the ordinary purchaser) and the risk–benefit test (product is unreasonably dangerous if the risks of a challenged design outweigh its benefits). The district court gave only the risk–benefit test instruction. In addition, over plaintiffs’ objection, the court gave an instruction that there is a presumption that a product is not defective once it has been on the market for ten years (this cable had been on the market since the 1960s).

The Tenth Circuit found no error in the district court’s decision not to give the consumer expectation instruction. Colorado law requires that where a case is defined primarily by technical and scientific information, the court must use only the risk–benefit test. The court may not use the consumer expectation test, and it may not simultaneously use both tests. Here, the case involved primarily technical and scientific information, so the court was compelled to give only the risk–benefit test instruction.

The Circuit also upheld the district court’s decision to give the ten-year rebuttable presumption instruction, pursuant to CRS § 1321403. Anticipating what the Colorado Supreme Court would do, the Circuit ruled that the plain text of the statute directs that once a showing by a preponderance of the evidence has been made concerning the facts giving rise to the statutory presumption, an instruction regarding the presumption must be given. The district court’s judgment was affirmed.

No. 10-2089. United States v. Rendon-Alamo. 10/19/2010. D.N.M. Judge Gorsuch. Sentencing Guidelines—Enhancement for Prior Offense—Prior Sentence Imposed Included Term Imposed After Probation Violation.

Defendant pled guilty to illegal re-entry into the United States after a prior deportation. In calculating his advisory sentence under the U.S. Sentencing Guidelines (Guidelines), the district court assessed a sixteen-level enhancement under § 2L1.2, based on his prior conviction for a drug trafficking offense. The district court reasoned that this level of enhancement was required, because his criminal record included a term of imprisonment exceeding thirteen months for the prior drug offense. The district court’s Guidelines calculation resulted in a sentencing range of forty-six to fifty-seven months. The court departed downward by five months from the bottom of the recommended Guidelines range, and awarded defendant a sentence of forty-one months.

On appeal, defendant argued that he did not qualify for the sixteen-level enhancement, because his original sentence on the drug trafficking offense had been for only nine months plus a period of probation. Although he later violated his probation and was sentenced to an additional term of six months, defendant argued that this was a separate sentence that could not be added to his nine-month sentence for purposes of applying the sixteen-level enhancement for a prior term of imprisonment exceeding thirteen months.

The Tenth Circuit disagreed. In 2003, the U.S. Sentencing Commission (Commission) added commentary to § 2L1.2, defining the term "sentence imposed" to include any term given on revocation of probation. To "include" means to add or aggregate. This made the additional six months a portion of the sentence imposed, resulting in a sentence of fifteen months, which qualified for the enhancement.

The Circuit noted that the district court was not free to disregard the Commission’s interpretation when conducting its Guidelines calculation, nor was the Commission bound in developing its interpretation by prior judicial decisions reaching a contrary result. The Circuit therefore affirmed defendant’s sentence.

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