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TCL > November 2011 Issue > Summaries of Selected Opinions

November 2011       Vol. 40, No. 11       Page  135
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. 10-8086. United States v. Hernandez. 08/23/2011. D.Wyo. Judge Gorsuch. Sentencing Guidelines—Available Sentence on Revocation of Supervised Release—Maximum Term Permitted on Multiple Successive Revocations.

Defendant was convicted of possessing an unregistered firearm and sentenced to forty-six months in prison, followed by three years of supervised release. He served his prison sentence and began his term of supervised release. After he violated the terms of his supervised release, the district court revoked the supervised release and sentenced him to serve six more months in prison, followed by a new term of supervised release. Defendant again served his prison sentence and was placed on another term of supervised release, which he also violated. The district court revoked this supervised release and sentenced him to a twelve-month prison sentence and to a fourth term of supervised release. Defendant violated this term and the district court ordered him to serve eighteen months in prison, without a subsequent term of supervised release.

On appeal, defendant attempted to undo the final, eighteen-month prison sentence. He pointed to 18 U.S.C. § 3583(e)(3), which provides that a defendant whose supervised release term has been revoked cannot be required to serve more than two years if his or her offense, like defendant’s, is a class C felony. He argued that the prior terms he served after revocation should be aggregated, resulting in a total term served for the three prior revocations of twenty-one months. According to defendant, this meant he could be sentenced only to three more months for his current, fourth revocation. The Tenth Circuit disagreed. The statute provides for a limit of two years "on any such revocation," and provides for no credit for time served as the result of previous revocations.

The language providing for the limit "on any such revocation" was added to the statute in 2003 as a result of the PROTECT Act, a piece of legislation aimed primarily at deterring child sexual abuse. The portion of this legislation encompassing the amendment was entitled "Supervised Release Terms of Sexual Offenders." Acting on this information, defendant argued that non-sexual offenders should still get the benefit of aggregating any prior terms served as the result of previous revocations to determine whether the maximum sentence was met. However, the Circuit noted that the plain language applies to all offenders on any revocation, without exception.

Finally, defendant argued that he was trapped in a never-ending cycle of successive revocations. The Circuit disagreed. Although terms of supervised release cannot be aggregated, 18 U.S.C. § 3583(h) provides that the maximum term of supervised release a court can order as the result of a revocation sentence is limited to the term of supervised release authorized for the original offense, less any term of imprisonment imposed on revocation of supervised release. For purposes of this portion of the statute, successive terms of supervised release are aggregated. Once a defendant serves in prison a total amount of time that is more than the maximum authorized term of supervised release, he or she can no longer be sentenced to an additional term of supervised release, so the "cycle" ends at that point, just as it did in defendant’s case. Accordingly, the Circuit affirmed defendant’s conviction and sentence.

No. 10-6134. United States v. Coleman. 08/26/2011. W.D.Okla. Judge Tymkovich. Sentencing Guidelines—Armed Career Criminal Act—Use of Youthful Offender Act Convictions as "Serious Drug Offenses."

Defendant pleaded guilty to being a felon in possession of a firearm and ammunition. At sentencing, the district court determined that defendant’s three prior convictions for selling crack cocaine and marijuana, adjudicated under the Oklahoma Youthful Offender Act (YOA), constituted "serious drug offenses" for purposes of the Armed Career Criminal Act (ACCA). Accordingly, the court sentenced him under the armed career offender guidelines to a term of twenty years’ imprisonment.

On appeal, defendant argued that his drug-trafficking convictions, which he accrued as a juvenile offender, should not count as serious drug offenses. Defendant committed his offenses when he was 16. He was sentenced to ten years’ confinement for each offense, and was placed in the custody of the Oklahoma Department of Juvenile Affairs (OJA). After he escaped from OJA custody, a state court judge converted his YOA sentences to adult convictions and committed him to the custody of the Oklahoma Department of Corrections to serve the remainder of his sentences.

Under the ACCA, a serious drug offense includes a state law drug offense carrying a maximum term of imprisonment of ten years or more. Under the YOA, the maximum term a juvenile offender can receive is ten years’ imprisonment. If the juvenile conviction is converted to a criminal conviction, the maximum sentence for the adult conviction is ten years minus the time served in OJA custody. From this, defendant reasoned that his adult convictions necessarily carried a term of less than ten years, and therefore could not be serious drug offenses for purposes of the ACCA.

The Tenth Circuit disagreed. To determine whether a conviction is for a serious drug offense, a federal court should look to the maximum term prescribed by the relevant statute. In this case, the relevant statute was Oklahoma’s Trafficking in Illegal Drugs Act, not the YOA. It is the maximum punishment for any defendant, not the characteristics of a particular offender, that counts when determining whether a conviction qualifies as a serious drug offense. It also is the maximum penalty provided rather than the actual sentence that counts. Because the Trafficking in Illegal Drugs Act carries a maximum sentence of life imprisonment, defendant’s convictions under that statute constituted serious drug offenses for purposes of the ACCA.

No. 10-3002. Kansas Penn Gaming, LLC v. Collins. 09/1/2011. D.Kan. Judge Tymkovich. Standard for Dismissal for Failure to State a Claim—ClassofOne Equal Protection—County Nuisance Enforcement.

Kansas Penn Gaming, LLC (Kansas Penn) sued the Cherokee County Board of Commissioners and others under 42 U.S.C. § 1983 in this classofone equal protection lawsuit. Kansas Penn claimed that after it withdrew its casino development on land in Cherokee County, the County issued a notice asserting that the unkempt condition of its property violated nuisance laws and regulations. Believing the nuisance notice to be in retaliation for the casino dispute, Kansas Penn filed suit, alleging that the notice violated its right to equal protection by arbitrarily and maliciously singling it out for selective enforcement. The district court dismissed the case for failure to state a claim on which relief may be granted. Kansas Penn appealed.

The Tenth Circuit first elucidated the current standard for dismissal for failure to state a claim, discussing the Supreme Court’s formulation of the standard under Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The Circuit then addressed the equal protection claim, recognizing a classofone theory of equal protection in the zoning context, where the plaintiff alleges that it was intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. To prevail under this theory, the plaintiff must carry its substantial burden to show that the government action was irrational, abusive, and wholly unrelated to any legitimate state activity.

The Circuit held that Kansas Penn did not satisfy its pleading burden because (1) it did not support with factual content its claim that the condition of its property did not violate any laws; (2) it offered only conclusory allegations that other property owners were similarly situated; (3) although it sued the county commissioners as individuals, it failed to allege their personal participation, or any active involvement by the Board, as required for § 1983 liability; and (4) it did not allege that the nuisance notice was issued pursuant to a formal policy or show that it was authorized by a final policymaker. Accordingly, Kansas Penn’s complaint failed to state a claim. The district court’s judgment of dismissal was affirmed.

No. 103092. Helm v. Kansas. 09/07/2011. D.Kan. Judge Ebel. Sexual Harassment—Vicarious Employer Liability—Faragher/Ellerth Affirmative Defense

Plaintiff sued the State of Kansas (State) under Title VII, claiming that her supervisor, Judge Frederick Stewart, a state district court judge, had sexually harassed her for almost ten years. Although the State had a written policy prohibiting sexual harassment and a complaint procedure, plaintiff did not file a complaint. The chief judge terminated plaintiff’s employment because she stipulated to facts charging her with a felony. Thereafter, plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment. The EEOC dismissed the charge and plaintiff filed suit. The district court granted summary judgment to the State.

The issue before the Tenth Circuit was whether the State, as Judge Stewart’s employer, could be held vicariously liable for his alleged sexual harassment of plaintiff. The Faragher/Ellerth affirmative defense is available to an employer where (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).] The Circuit determined that the State was entitled to this defense, rejecting plaintiff’s assertions that (1) Judge Stewart was the State’s alter ego; (2) Judge Stewart’s harassment culminated in her termination (which would defeat the Faragher/Ellerth defense); and (3) genuine factual disputes precluded summary judgment. The district court’s summary judgment in the State’s favor was affirmed.

No. 10-9527. RiveraBarrientos v. Holder, Jr. 09/07/2011. Board of Immigration Appeals. Judge Tymkovich. Immigration—Asylum—Political Opinion—Membership in a Particular Social Group—Particularity Standard—Socially Visible.

The applicant is a native of El Salvador who sought asylum in the United States. In El Salvador, she refused to join a gang, and the gang viciously attacked her and threatened her with further violence if she continued to refuse to join. The applicant asserted that she was attacked by gang members because of her political opinion of opposing the gang’s agenda, and because of her membership in a particular social group. The Board of Immigration Appeals (BIA) denied asylum.

The Tenth Circuit found that substantial evidence supported the BIA’s determination that applicant had not been persecuted on account of her political opinion. To show persecution because of political opinion, an applicant must establish that the political opinion was at least one central reason for the persecution. Here, the evidence showed that it was equally likely that the attack was motivated by anger at applicant’s unwillingness to join the gang and their desire to coerce her into joining as it was by her political opinion.

The Circuit also considered applicant’s claim that she was entitled to asylum because the attack was based on her membership in a particular social group, which she argued was made up of women in El Salvador between the ages of 12 and 25 who resisted gang recruitment. The Circuit determined that this group could meet the particularity standard, but it did not meet the socially visible test; that is, whether the citizens of the applicant’s country would consider individuals with the pertinent trait to constitute a distinct social group, and whether the applicant’s community is capable of identifying an individual as belonging to the group. The BIA’s decision to deny asylum was affirmed.

No. 10-2060. United States v. Burleson. 09/12/2001. D.N.M. Judge Ebel. Fourth Amendment—Investigatory Stop—Scope of Stop Permitting Check for Warrants.

Defendant was indicted for possession of a firearm subsequent to a felony conviction. An officer discovered the firearm after he stopped defendant on a street in Roswell, New Mexico, shortly before midnight. The officer observed defendant and two companions exit an alleyway and begin walking down the middle of the street side-by-side. One of the individuals was carrying a pit bull without a leash. The officer decided to stop the individuals because (1) walking in the middle of the street is a violation of New Mexico law and a Roswell ordinance; and (2) they were carrying a dog that appeared to be older than a puppy, and dog thefts had been reported in the city. The officer stopped the individuals, told them they were not permitted to walk in the middle of the street, and asked them about the dog and asked for their names. He then performed a warrant check for each of them, using a portable radio attached to his belt. Dispatch reported that there was a warrant for defendant. The officer arrested him, at which point defendant revealed the existence of the weapons for which he was charged. The district court subsequently granted defendant’s motion to suppress the handguns the officer found, ruling that the officer exceeded the permissible scope of the detention when he ran the warrants check. The government appealed.

On appeal, the Tenth Circuit considered whether defendant was lawfully detained at the time the officer checked his name for warrants. It concluded that an officer may perform a warrants check on a pedestrian during the course of a lawful investigatory stop. The district court erred in concluding that the stop had been concluded by the time the officer ran the warrants check. The officer’s investigation continued after he told the individuals that walking in the street was illegal, because he had to assess their demeanor and determine whether a warning, a citation, or some other action was warranted. He also was entitled to ask questions about the dog they were carrying, and to obtain their names in case someone later reported the dog stolen. The three-to-five minute detention that occurred while he was obtaining this information was not unreasonable. Accordingly, the Circuit reversed the district court’s grant of defendant’s motion to suppress.

No. 10-3034. United States v. Blechman. 09/14/2011. D.Kan. Judge Ebel. Admission of Evidence—Hearsay—Double Hearsay Based on Account Information Submitted Over Internet and Not Verified—Harmless Error.

Defendant was convicted of mail fraud and conspiracy to commit mail fraud as the result of a bankruptcy fraud scheme in which he participated. He and a co-conspirator operated a business in which they were paid to temporarily halt home foreclosures by "attaching" foreclosure properties to fraudulent bankruptcies to take advantage of the Bankruptcy Code’s automatic stay provision. On appeal, defendant challenged the district court’s admission of an AOL record that connected him to an e-mail address used to communicate with his co-conspirator, as well as three federal court PACER records revealing that he had accessed fraudulent bankruptcy cases in Tennessee that were similar to the Kansas bankruptcies identified in the indictment. The Tenth Circuit held that the district court erred in admitting these documents under the hearsay rule, but that the error was harmless.

At trial, an investigator for AOL testified that account information the prosecution sought to introduce was kept in the regular course of business, made at or near the time of the information recorded, and made by a person with knowledge of AOL’s business. However, she admitted that AOL did not verify who originally input the subscriber information showing defendant’s name; it could have been inputted by anyone with a computer. The district court allowed the exhibit to be admitted as a business record, notwithstanding defendant’s objection. The district court also admitted information from a account showing that defendant used the AOL address as an alternate e-mail address, as well as e-mails exchanged between the AOL address and defendant’s co-conspirator that tended to show defendant’s participation in the scheme.

In addition, the district court admitted PACER information showing that defendant accessed PACER bankruptcy records using the same IP address as defendant’s Yahoo account. The government produced evidence from a surveillance camera showing that defendant’s mother had mailed documents to the U.S. Bankruptcy Court for the Western District of Tennessee, as well as a screen capture from PACER’s account maintenance application. The employee who sponsored the PACER screen capture admitted that he could not verify whether defendant was the person who accessed PACER over the Internet. Similarly, the government submitted business information from PACER showing that a PACER account had been used to access Tennessee bankruptcy cases similar to those used in the Kansas scheme.

Finally, the government admitted information showing that defendant purchased money orders and sent priority mail packages related to the fraudulent bankruptcy cases. The co-conspirator took the stand and denied knowing that any of the bankruptcies were fraudulent; he attributed all of the fraudulent bankruptcies to defendant.

The Tenth Circuit noted that both the AOL record and the PACER records were offered to prove that defendant was the registered owner of the AOL address and that he was associated with a PACER account used to access fraudulent bankruptcy cases in Tennessee. Thus, these records constituted hearsay. The district court admitted them under the business records exception. However, the records were double hearsay, because the information on the forms was provided by an outsider to the business and was itself hearsay within hearsay. Because neither AOL nor PACER made a meaningful effort to verify the identity of the person who submitted the information, the records should not have been admitted under the business records exception. Nevertheless, the error was harmless because other overwhelming evidence linked defendant to the AOL address, and because other overwhelming evidence linked defendant to the fraudulent bankruptcy scheme. The Circuit therefore affirmed defendant’s mail fraud-related convictions.

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