|The Colorado Lawyer|
Vol. 40, No. 2 [Page 97]
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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. 10-1199. United States v. Alvarez-Bernabe. 11/30/2010. D.Colo. Judge Anderson. Empirical Basis for Sentencing Enhancement—Inquiry by District Court in Sentencing Proceedings.
Defendant pleaded guilty to one count of illegally reentering the United States, after previously having been deported following an aggravated felony conviction. He had been deported twice and had re-entered the United States following those deportations. Prior to his most recent deportation, he was convicted of felony possession of a controlled substance with intent to distribute it, an aggravated felony.
The presentence report (PSR) recommended his base offense be increased by sixteen levels, because the felony drug trafficking offense for which he was convicted resulted in a sentence greater than thirteen months. The PSR also assigned him to criminal history category IV, based on his prior convictions for driving while impaired and misdemeanor harassment. The district court denied his request to vary downward from the advisory Sentencing Guidelines range on the grounds that the sixteen-level enhancement was unwarranted and unreasonable, and that his criminal history category substantially over-represented the seriousness of his criminal history. It sentenced him to fifty-seven months, at the bottom of the Guidelines range.
On appeal, defendant argued that his sentence was unreasonable. He attacked the automatic sixteen-level increase because it lacks "an articulated justification" and because it creates "unwarranted sentencing disparities." The Tenth Circuit rejected both arguments. The Sentencing Commission need not provide a justification for the design or scope of an enhancement. The district court’s duty to develop an appropriate sentence does not obligate it to duplicate the efforts of the Sentencing Commission in determining an empirical basis for a statutorily based Guidelines enhancement.
Defendant argued that the sixteen-level enhancement creates unwarranted disparities because it does not require the court to examine the length of the sentence (as long as it exceeds thirteen months); the type or quantity of the drug involved in the prior drug trafficking conviction; or the defendant’s role in the prior offense. In defendant’s case, however, these arguments were unavailing, because he received much more than a thirteen-month sentence; his prior conviction involved methamphetamine; and the drugs were found in his residence, on his person, and in his car. Moreover, a thirteen-month sentence ensures that the prior crime was serious and significant in any event.
The district court considered the appropriate factors, and its sentence within the Guidelines range was presumptively reasonable. The Circuit therefore affirmed defendant’s sentence.
No. 09-5154. United States v. Becker. 12/01/2010. N.D.Okla. Judge Lucero. Child Pornography—Mandatory Minimum Sentence Based on Previous Conviction "Related to" Specified Crimes or Conduct.
Defendant pleaded guilty to receipt of child pornography and possession of child pornography. If he had a previous conviction "relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward," the statute under which he was convicted subjected him to mandatory minimum sentences of ten and fifteen years for the respective crimes to which he pleaded guilty.
His presentence report (PSR) recommended application of the mandatory minimums, based on his prior conviction of an Illinois state charge of Indecent Solicitation of a Child. The indictment for this Illinois crime charged that he had solicited over the Internet someone whom he believed was a child under the age of 17 to perform oral sex. In reality, the person with whom he corresponded by e-mail was a police officer, and he was arrested when he traveled to Illinois to meet her for sex. The district court concurred with the PSR and applied the mandatory minimum sentences.
On appeal, defendant argued that the mandatory minimums did not apply, because his prior conviction (1) was for an inchoate crime, and therefore was not "relating to" the listed sexual offenses; and (2) was for soliciting a police officer, and therefore was not "relating to" a crime involving a minor or ward. The Tenth Circuit rejected these arguments. The phrase "relating to" carries a broad meaning. The district court need not apply a "categorical" approach, asking whether the statutory elements of the prior offense match the requirements of the statute, but may look to the particular facts underlying the defendant’s conviction to determine whether the statute’s requirements have been satisfied.
Turning to the facts of defendant’s prior offense, the Circuit determined that his Illinois conviction fit within the broad definition of "relating to." The crime for which he was convicted required the intent to commit the types of acts explicitly listed in the federal statute. The fact that the targeted victim was an adult law enforcement officer was immaterial, because factual impossibility generally is not a defense to the crime of attempt. Here, defendant intended to sexually assault or sexually abuse a child; therefore, his crime stood in some relation to sexual abuse of a minor, and application of the mandatory minimums was entirely appropriate. The Circuit therefore upheld application of the statute’s mandatory minimums to defendant’s sentence.
No. 09-4211. United States v. Frownfelter. 12/01/2010. D.Utah. Judge Lucero. Plea Bargain Agreement—Government’s Right to Void Agreement Based on Frustration of Purpose or Mutual Mistake.
Defendant pleaded guilty to a single misdemeanor count of theft of government funds. He kept adoption subsidy assistance payments from the state of Utah to which he was not entitled. The count to which he pleaded guilty charged him with the unlawful receipt of $559, below the $1,000 threshold that would have made his offense a felony. At sentencing, the government erroneously characterized his offense as a felony, reasoning that each count of the original eleven-count indictment incorporated the language of its introductory paragraphs, which alleged that defendant had received $24,596, in excess of the felony threshold. Notwithstanding defendant’s objections at sentencing, the district court convicted him of a felony and sentenced him to a year and a day in prison. After defendant began serving his sentence, the government conceded that he had in fact pleaded guilty to a misdemeanor, not a felony.
On appeal, the government urged that as a proper remedy for the conceded error, the plea agreement should be voided and the original indictment should be reinstated. Defendant argued, however, that the Tenth Circuit should vacate his felony conviction and remand so that he could be convicted of and sentenced for a misdemeanor. The government argued that under contractual principles, the plea agreement should be voided for frustration of purpose and/or mutual mistake. It had not made these arguments in district court, however, and the Circuit found no precedent for applying plain error review to the government’s argument. Instead, it exercised its discretion to proceed directly to the merits of the government’s contentions, in the interest of judicial efficiency.
Under equitable principles applicable to interpretation of plea agreements, the government’s arguments failed. The plea agreement should not be voided under a "frustration of purpose" theory, because the government failed to show that the felony/misdemeanor distinction was central to the basis of the plea agreement, and because the government assumed the risk under the contract that defendant would rely on the plain text of the statute of conviction to interpret the agreement. The agreement was not void under a theory of mutual mistake, because there was no mistake regarding the basic assumption on which the contract was made. Even though both the government and defendant originally believed that the count to which defendant pleaded guilty was a felony, there was no indication that the distinction between a misdemeanor and a felony was a basic assumption of the plea agreement. The government also did not show that the mistake had a material effect on the agreed exchange, or that it should not bear the risk of the mistake. Moreover, defendant satisfied his obligations under the plea agreement, and the government did not show a basis to void the agreement. The Circuit therefore set aside defendant’s felony conviction and remanded for entry of a misdemeanor conviction and a misdemeanor sentence.
No. 09-2271. US Airways, Inc. v. O’Donnell. 12/03/2010. D.N.M. Chief Judge Briscoe. Federal Preemption—Regulation of Alcoholic Beverages on Airlines—Twenty-first Amendment—Balancing.
Plaintiff, an interstate airline carrier, sought an injunction against state officials from regulating its alcoholic beverage service to passengers. The district court ruled that federal law did not preempt a New Mexico state law regulating alcoholic beverages, and granted summary judgment in favor of defendants. The airline appealed, claiming express and implied federal preemption, invoking the Federal Aviation Act (FAA).
The Tenth Circuit held that the state regulatory scheme was impliedly preempted because it fell within the field of aviation safety that Congress intended federal law exclusively to occupy. However, the Twenty-first Amendment, which prohibits the importation of liquor into a state in violation of state laws, required the state’s core powers to be balanced against the federal interests underlying the FAA. The key inquiry in balancing state and federal interests is whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-first Amendment that the regulation trumps the federal policies. Accordingly, the case was reversed and remanded for the district court to conduct a Twenty-first Amendment balancing.
Nos. 09-6143 & 09-6182. Bryson v. City of Oklahoma City. 12/06/2010. W.D.Okla. Judge McKay. Municipal Liability—Forensic Chemist—Policy or Custom—Deliberate Indifference—Causal Link Required.
Plaintiff was convicted of a 1983 rape and kidnapping he did not commit based on the forensic evidence given at his trial by Joyce Gilchrist, a police chemist. He served twenty years before being released based on exculpatory DNA test results. The scientific evidence available at his trial showed that Gilchrist should have excluded him as a suspect in 1983.
Plaintiff sued Gilchrist and her employer, the City of Oklahoma City (City), and obtained a $16.5 million judgment against Gilchrist. The district court held, however, that the evidence did not support a finding of municipal liability. Plaintiff appealed the summary judgment in favor of the City.
The Tenth Circuit explained that to hold a municipality liable under 42 U.S.C. § 1983 for injuries inflicted by its employee, a plaintiff must show the existence of a municipal policy or custom that had a direct causal link to the injury. Plaintiff asserted that he had satisfied this requirement by showing that the City had failed to adequately train or supervise its employees, and that this failure resulted from deliberate indifference to the injuries that may have been caused. Observing that the City may have been deficient in training and supervising Gilchrist, the Tenth Circuit emphasized that this deficiency must rise to the level of deliberate indifference to be actionable. The City had received no complaints regarding its forensic chemists’ work at the time of plaintiff’s trial. Even though criticisms of Gilchrist came to light in 1986, that evidence was irrelevant to plaintiff’s claims based on his 1983 conviction. Although plaintiff asserted that the City was liable for his continued incarceration after 1986, the Circuit held that the link between the City’s alleged failure to supervise Gilchrist and the constitutional injury suffered by plaintiff was too attenuated to support a finding of municipal liability. The Circuit rejected plaintiff’s ratification-theory argument based on the City’s praise and promotion of Gilchrist, as well as his claim that he had established a custom of manipulating evidence based on a former police chief’s remarks. The district court’s judgment was affirmed.
No. 10-6153. Constien v. United States. 12/09/2010. W.D.Okla. Judge Hartz. Separate Judgment Document—Jurisdiction—Failure to Serve With Process—Dismissal of Action Without Prejudice—No Abuse of Discretion.
Plaintiff sued various governmental agencies, asserting that the government had reduced her Social Security disability checks to make payments on her student loans. The district court dismissed the case without prejudice because plaintiff did not serve defendants with process in accordance with F.R.C.P. 4. Plaintiff appealed.
The Tenth Circuit addressed defendants’ challenge to appellate jurisdiction on the ground that the judgment was not final because the dismissal had not been set forth on a separate document. The judgment was final, however, because a dismissal for failure of service dismisses the entire action, and the lack of a separate judgment document only extends the time to file a notice of appeal. Having established jurisdiction, the Circuit discussed the requirements for service of process on the United States and its agencies, officers, and employees. The district court ruled that plaintiff could not act as her own process server and ordered her to effect proper service. When she failed to do so, the district court dismissed her case. The Circuit held that the dismissal was not an abuse of discretion. The district court’s judgment was affirmed.
No. 10-2030. United States v. Reese. 12/10/2010. D.N.M. Chief Judge Briscoe. Possession of Firearms by Persons Subject to Domestic Protective Order—"As-Applied" Challenge Under Second Amendment.
Defendant was charged with possessing firearms while being subject to a domestic protection order. He successfully raised an as-applied challenge to the indictment on the ground that the statute violated his Second Amendment right to keep and bear arms. The government appealed from the dismissal of the indictment.
The evidence showed that defendant’s ex-wife obtained a protection order against him after she alleged that he physically assaulted her, pointed a handgun at her, and threatened to kill her. Defendant denied these allegations, but agreed to the imposition of the order. The state court that entered the order made no findings concerning the allegations. The protection order required defendant to surrender all firearms, ammunition, permits, and/or licenses to the local police department. As part of his divorce proceedings, the protection order was extended for fifty years, or until either party obtained modification of the order. Defendant was later arrested and charged with possessing firearms after he allegedly assaulted his new wife and police found large quantities of guns in his home and place of business. The district court dismissed the indictment because it found that the restriction on owning firearms in the fifty-year order of protection was not narrowly tailored to serve the government’s interest of reducing domestic violence, and therefore violated defendant’s Second Amendment rights.
On appeal, the Tenth Circuit first determined that the challenged law imposed a burden on conduct falling within the scope of the Second Amendment’s guarantee. It then turned to the question of whether the government had met its burden of showing that the statute prohibiting possession of firearms served an important objective that was advanced by means substantially related to that objective. Defendant did not seriously dispute that the objective of keeping firearms out of the hands of people who have been judicially determined to pose a credible threat to the physical safety of a family member, or who have been ordered not to use physical force against an intimate partner or child, is an important objective.
The Circuit therefore turned to the "means" test. It determined that given the existence of the protective order, to which defendant consented and which satisfied the statutory requirements, the government had shown that application of the possession statute advanced its important objective by means substantially related to that objective.
Finally, the Circuit determined that defendant was precluded from mounting a collateral attack on the merits of his underlying state protective order in these federal criminal proceedings. It therefore reversed the district court’s dismissal of the indictment and remanded for further proceedings.
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