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TCL > December 2011 Issue > Summaries of Selected Opinions

December 2011       Vol. 40, No. 12       Page  119
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. 10-9547. Luevano v. Holder, Jr. 09/30/2011. Board of Immigration Appeals. Judge O’Brien. Immigration—Due Process—Exclusionary Rule—Jurisdiction—Continuance—Approved Sibling Visa Petition—Backlog for Visa Approval.

Petitioner was stopped at a sobriety checkpoint, where he admitted that he was in the United States illegally. Eventually, removal proceedings were instituted against him. He sought dismissal of the proceedings, claiming his due process rights were violated because he was stopped and questioned solely because of his ethnicity. He also requested a continuance pending issuance of a visa based on his approved application for a sibling visa. The immigration judge (IJ) refused to dismiss the case. He also denied a continuance because petitioner’s visa would not be granted for several years. The Board of Immigration Appeals (BIA) affirmed. Petitioner appealed.

The Tenth Circuit noted that the rule requiring exclusion of illegally obtained evidence does not apply in civil deportation proceedings; however, pursuant to BIA procedure, evidence will be excluded if its use would be fundamentally unfair. Petitioner’s evidence in support of his due process claim was insufficient to warrant relief. Moreover, even if he had shown a due process violation, his relief would have been limited to suppression of evidence, not dismissal of the proceedings.

The Circuit also considered petitioner’s claim that the IJ abused his discretion in denying a continuance to await issuance of a visa. An illegal immigrant may be entitled to a visa if his or her visa petition had been filed by a citizen relative before April 30, 2001. Even if a visa petition has been approved, however, the number of visas granted each year is limited by law. There is a backlog, which resulted in a delay of several years before petitioner’s visa would be issued. Under the circumstances, the IJ did not abuse his discretion in denying a continuance. The petition for review was denied.

No. 10-2211. Henry v. Storey. 10/03/2011. D.N.M. Judge Kelly. Civil Rights—Traffic Stop—Racial Profiling—Excessive Force—Pointing a Weapon—Jury Instruction.

Plaintiff, an African American, was stopped at night while driving a rental car. He was ordered out of the car at gunpoint, handcuffed, and placed in a police car. After the officers ascertained that the car was reported stolen in error, plaintiff was released. He sued the officers, asserting that they had engaged in racial profiling and had used excessive force by pointing their weapons at him. The district court granted judgment as a matter of law (JMOL) on two claims and the case went to trial on the remaining claims. The jury returned a verdict in favor of the officers. Plaintiff appealed, challenging the JMOL in favor of Officers Storey and Fangio, and asserting error in the district court’s refusal to give his proposed jury instruction to the effect that the officers’ compliance with standard operating procedures could not be considered in determining whether they used excessive force.

The Tenth Circuit first addressed the excessive-force claim based on Officer Storey’s pointing a gun at plaintiff. Plaintiff testified that he saw several officers pointing guns at him, but he could not say that Officer Storey was one of them. Officer Storey testified that his gun was holstered because he was using the public address system at the time. Therefore, it was doubtful that the evidence was sufficient to establish that Officer Storey had used excessive force. Moreover, even if plaintiff’s evidence could establish that Officer Storey pointed his weapon at him, the officer’s actions did not constitute excessive force because they were reasonable under the circumstances.

As for the claim that Officer Fangio engaged in racial profiling by checking the rental car’s plates in the police computer, it was Officer Storey who ran the plates. Officer Fangio could not be held liable for Officer Storey’s allegedly discriminatory action.

Finally, the Tenth Circuit found no error in refusing plaintiff’s proffered jury instruction because other instructions adequately instructed the jury. The judgment was affirmed.

No. 10-2263. United States v. Marrufo. 10/18/2011. D.N.M. Judge Matheson. Guideline Sentencing—Possession of Firearm by Convicted Felon—Enhancement for Possession in Connection With Another Felony Offense—Tampering With Evidence by Hiding Firearm as "Other Felony Offense."

Defendant was convicted in federal court of being a felon in possession of a firearm and in state court of tampering with evidence by hiding the same firearm. The district court added four offense levels to his sentence calculation for using and possessing the firearm in connection with another felony offense. He argued on appeal that the district court should not have increased his offense level because his possession of the firearm did not facilitate his "tampering with the firearm."

The charges arose out of an alleged shooting incident. A jury acquitted defendant of most of the charges lodged in state court, but convicted him of two counts of tampering with evidence, one for changing his clothes after the shooting, and another for hiding the semi-automatic .380 pistol he allegedly used to shoot the victims. Defendant also pleaded guilty in federal court to being a felon in possession of a firearm. The district court concluded that he possessed the firearm "in connection with" the state tampering-with-evidence offense, based on his hiding the firearm.

On appeal, the Tenth Circuit noted that the only issue was whether the possession of the firearm was "in connection with" defendant’s tampering-with-evidence offense. According to the U.S. Sentencing Guidelines (Guidelines) Application Note to § 2K2.1(b)(6), "in connection with" means to "facilitate"—that is, to make easier. Possessing physical evidence makes tampering easier. Thus, defendant’s possession of the firearm facilitated his hiding the firearm, and the district court appropriately applied the base level enhancement. This was true even though defendant only hid the firearm to avoid detection for the federal crime he had already committed.

No. 10-2273. United States v. Chavez. 10/18/2011. D.N.M. Judge Matheson. Fourth Amendment—Probable Cause for Arrest—Indicia of Reliability—Attempt as "Controlled Substance Offense" for Career Offender Enhancement.

Defendant pleaded guilty to one count of possession with intent to distribute cocaine, reserving the right to appeal the denial of his motion to suppress the cocaine. The district court sentenced him as a career offender under the Guidelines based on his prior conviction for attempted drug trafficking.

On appeal, defendant first challenged the district court’s denial of his motion to suppress. The cocaine was found after a stop at a Wal-Mart parking lot. The police were dispatched to the parking lot after a Wal-Mart employee reported a disturbance in the store’s parking lot involving individuals located in or around a white Cadillac and a black pickup truck. When Officer McColley arrived, he stopped the Cadillac and spoke to the driver (defendant).

The officer observed that defendant’s eyes were bloodshot and watery, and he detected an odor of alcohol emanating from defendant. When a second officer arrived on the scene, the Wal-Mart employee told him that he had observed defendant urinating in the parking lot and that he saw defendant and a man in the passenger seat throw shot-sized liquor bottles into the parking lot.

Defendant admitted to having been drinking, and field sobriety tests confirmed his intoxication. Officer McColley discovered that defendant’s driver’s license had expired, and warned him that he was very close to arresting him. After defendant refused to consent to a search of his vehicle, Officer McColley again warned defendant that he was very close to being arrested for driving while intoxicated (DWI).

Twenty-seven minutes after initiating the stop, Officer McColley called a drug-sniffing dog to the scene. Once the dog arrived, defendant gave the officers permission for the dog to search the interior of the Cadillac. When he denied permission for the dog to search inside the trunk, the officers arrested him for DWI. They towed the Cadillac away. They searched the car the next morning, finding approximately a one-third pound of cocaine.

On appeal, the Tenth Circuit held that (1) Officer McColley had reasonable suspicion to conduct the traffic stop at the outset, based on the tip from the Wal-Mart employee, which bore sufficient indicia of reliability to justify the stop; and (2) because Officer McColley had probable cause to arrest defendant for DWI, it was permissible for him to extend the scope of the initial traffic stop by waiting for the drug dog to arrive. The Circuit therefore upheld the denial of defendant’s motion to suppress.

Defendant also argued that the district court erred in concluding he qualified as a career offender under the Guidelines, based on a previous conviction for attempted drug trafficking. The issue was whether this conviction qualified as a "controlled substance offense" under Guidelines § 4B1.1. Commentary in the Guidelines manual provided that a "controlled substance offense" included an attempt to commit such an offense. However, defendant argued that in promulgating this commentary, the U.S. Sentencing Commission exceeded its authority. The Circuit rejected this argument, holding that the Sentencing Commission acted within the broad grant of authority provided by Congress. Accordingly, the Circuit affirmed defendant’s conviction and sentence.

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