|The Colorado Lawyer|
Vol. 41, No. 5 [Page 121]
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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. 11-2071. San Juan Coal Co. v. Int’l Union of Operating Engineers. 03/06/2012. D.N.M. Judge Lucero. Arbitration Agreement—Arbitrator’s Interpretation—Colorable, Extrinsic Evidence.
Plaintiff entered into an arbitration agreement with defendant union to determine whether certain union members were entitled to holdover pay. The arbitrator concluded that the union members were entitled to the extra pay. On review, the district court set aside the arbitral award.
The Tenth Circuit held that the district court had improperly substituted its interpretation of the arbitration agreement. Even though the district court’s interpretation was not flawed or illogical, the arbitrator’s interpretation must be upheld wholly unless it is without any textual basis. Because the arbitrator’s interpretation was colorable, it would be upheld. Moreover, the district court improperly looked to extrinsic evidence of the parties’ intent. The district court’s judgment was reversed and the case was remanded with instructions to enter an order of enforcement.
No. 11-2030. United States v. McGaughy. 02/29/2012. D.N.M. Judge Tymkovich. Grant or Denial of § 2255 Relief as Jurisdictional—Jurisdiction to Grant Rule 35(a) Motion After Fourteen-Day Period—Procedural Default of § 2255 Claim.
Defendant pleaded guilty to possession with intent to distribute marijuana and was sentenced to forty-six months’ imprisonment. Months later, he filed a motion under 28 U.S.C. § 2255, alleging ineffective assistance of counsel at sentencing. The government agreed to re-sentence defendant. Again, the district court sentenced defendant to forty-six months and dismissed his § 2255 motion as moot. Defendant filed another motion to correct his sentence under both § 2255 and C.R.Crim.P. 35(a), arguing that the government had provided materially false information at re-sentencing concerning whether he had attempted to cooperate with the government. The district court denied the motion.
On appeal, the Tenth Circuit considered whether the district court had jurisdiction to re-sentence defendant without expressly granting his § 2255 motion. It determined the district court had such jurisdiction because it is the grant or denial of relief that constitutes the critical action on a § 2255 motion. The re-sentencing here therefore constituted a de facto grant of the motion. In light of this, though the dismissal of the motion was procedurally erroneous, it did not constitute a jurisdictional error under § 2255.
The Circuit next considered whether the district court had jurisdiction regarding the Rule 35(a) motion, even though more than fourteen days had passed between the date the alleged error occurred and the date the district court ruled. Rule 35(a) gives courts only fourteen days to correct a sentencing error. Here, defendant timely filed the motion but the district court did not rule on it until several weeks later. The issue was whether this fourteen-day time period is jurisdictional. The Circuit held that it is. The fourteen-day time limit acts as an integral part of the statutory grant of authority to modify an imposed term of imprisonment. The district court therefore lacked jurisdiction to rule on defendant’s Rule 35(a) claim after the fourteen-day limit had expired.
Finally, the Circuit considered whether the district court properly dismissed the new § 2255 claim on procedural grounds. The district court found that defendant should have raised his claim by filing a direct appeal after the re-sentencing. The Circuit agreed; defendant alleged neither good cause for failing to file an appeal, nor that a miscarriage of justice would result if his § 2255 claim were not considered. The Circuit therefore affirmed the denial of the § 2255 claim, vacated the denial of the Rule 35(a) claim, and remanded the case with instructions to dismiss the Rule 35(a) claim for lack of subject-matter jurisdiction.
No. 10-1499. United States v. Mendoza-Lopez. 02/24/2012. D.Colo. Judge Murphy. Recommended Sentence—Right to Allocution—Partial Denial of Right by Limiting Issues to be Addressed—Plain Error.
Defendant pleaded guilty to one count of unlawful re-entry after removal from the United States. The Presentence Investigation Report (PSR) calculated his recommended Sentencing Guidelines sentence at seventy months. He filed motions for a downward departure, arguing that criminal category V over-represented the seriousness of his record, and for a variance, challenging the PSR’s recommended sixteen-level increase in his base offense level.
At sentencing, his counsel argued the motions, and the district court denied them. The court then announced its intention to sentence within the Sentencing Guidelines range, and invited defendant and his counsel to address "where within that range this Court should sentence." Counsel again argued for the departure and variance. For his part, defendant apologized for re-entering the country and stated he had children in Mexico who needed him to support them by working.
The government argued for a sentence at the bottom of the Sentencing Guidelines range. The district court noted its sympathy that defendant had a wife and two small children who needed him back home, and sentenced him to seventy months—the bottom of the Sentencing Guidelines range.
On appeal, defendant argued that the district court had violated his right to allocution by definitively announcing its intention to impose a sentence within the advisory Sentencing Guidelines sentencing range before inviting him to speak. Because defendant did not raise this objection before the district court, the Tenth Circuit reviewed only for plain error. Here, the district court did not plainly err in announcing (before permitting defendant’s allocution) its intention to sentence within the Sentencing Guidelines range. The court’s announced intention alone was insufficient to show that it prematurely adjudged his sentence. The district court did plainly err, however, in inviting defendant to address only where in the Sentencing Guidelines range it should sentence. The Circuit’s precedent appears to presume prejudice for allocution errors. Defendant arguably satisfied the third prong of the test for plain error, but failed to satisfy the fourth prong of the plain error test by showing that the error "seriously affected the fairness, integrity, or public reputation of judicial proceedings." The error did not totally deny defendant his right to allocution. He was permitted to apologize for the offense and to argue that his children needed his support. Moreover, the district court relied on this information in arriving at defendant’s ultimate sentence. Finally, defendant failed to show what else he would have said that might have persuaded the district court to grant him a shorter sentence. The Circuit therefore affirmed defendant’s sentence.
No. 11-2139. Romero v. Story. 02/23/2012. D.N.M. Judge Baldock. Unlawful Arrest—Excessive Force—Qualified Immunity—Appellate Jurisdiction—Probable Cause.
After a citizen reported that a Hispanic male had vandalized his car and later entered a specified apartment, three officers went to plaintiff’s apartment, where they grabbed him from behind, caused him to hit the floor, and handcuffed him. Plaintiff chipped a tooth and cut his lip in the fall.
Plaintiff sued the officers, alleging unlawful arrest and excessive force in violation of his civil rights. The officers moved for summary judgment based on the defense of qualified immunity. The district court found that the officers did not have reasonable suspicion to detain plaintiff, but did not decide the excessive-force claim, believing the outcome of the excessive-force claim depended on the outcome of the unlawful-arrest claim. The officers appealed.
The Tenth Circuit noted that qualified immunity shields government officials from civil liability for damages where their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Ordinarily, the denial of qualified immunity is not appealable. However, such a ruling can be appealed where, as here, it turns on an issue of law and can be resolved based on the facts that the district court determined were sufficiently supported for purposes of summary judgment.
The Circuit held that the officers did not have probable cause to arrest plaintiff, so he adequately alleged the violation of a constitutional right. The Circuit also held that this right was clearly established, so the officers were not entitled to qualified immunity on the unlawful-arrest claim.
The Circuit ruled that when a case involves claims of both unlawful arrest and excessive force arising from a single encounter, the district court must consider both the justification the officers had for the arrest and the degree of force used. Therefore, because the district court did not rule on qualified immunity for the excessive-force claim, the case was remanded for an evaluation of that claim. The district court’s judgment was affirmed in part and reversed and remanded in part.
No. 11-5063. World Publishing Co. v. U.S. Dep’t of Justice. 02/22/2012. N.D.Okla. Judge Kelly. Freedom of Information Act—Mug Shots—Privacy Interest—Public Interest in Disclosure.
Plaintiff, a newspaper publisher, requested six booking photographs (mug shots) under the Freedom of Information Act (FOIA). The government withheld the mug shots under the FOIA exemption that prevents release of records compiled for law enforcement purposes where release reasonably could be expected to constitute an unwarranted invasion of personal privacy. Plaintiff filed suit. The district court denied plaintiff’s requests for discovery and granted summary judgment in favor of the government.
The Tenth Circuit applied the three-part test for determining whether such records are exempt from disclosure: (1) whether the information was gathered for a law enforcement purpose; (2) whether there is a personal privacy interest at stake; and, if so, (3) whether the privacy interest outweighs the public interest in disclosure. Neither party disputed that the first criterion was met. The Circuit determined that pretrial detainees have some privacy interest in their mug shots, and that the privacy interest outweighed the public’s interest in disclosure because disclosure would not further the public’s interest in monitoring or deterring government misconduct. Therefore, the mug shots were exempt from disclosure.
Finally, the Circuit found no abuse of discretion in the district court’s treatment of plaintiff’s discovery requests. The judgment of the district court was affirmed.
No. 10-3191. United States v. Damato. 02/22/2012. D.Kan. Judge Lucero. Sentencing Guidelines—"Relevant Conduct"—Temporal Gap Between Past Conduct and Current Offense.
Defendant pleaded guilty without a plea agreement to conspiracy to distribute 100 kilograms or more of marijuana. A Presentence Investigation Report (PSR) attributed 782 kilograms of marijuana to him, based primarily on statements by his co-conspirators concerning transactions that occurred between 2003 and 2006. After the government objected to the PSR’s calculation, contending that defendant was responsible for greater quantities of marijuana during this time period and during earlier time periods, the district court held an evidentiary hearing at which a government witness testified. This witness identified seventeen transactions during the 2003 to 2006 time period, as well as two other transactions involving defendant and his co-conspirators—one in 1990 and one in 1995—that the government contended should be considered relevant conduct. In calculating defendant’s sentence, the district court counted these two transactions as relevant conduct over defendant’s objection.
On appeal, defendant’s sentencing argument turned on whether the 1990 incident in which two of his co-conspirators were arrested while trying to purchase 1,200 pounds of marijuana from a Drug Enforcement Agency agent should be counted as relevant conduct. This depended on whether the transaction qualified as "part of the same course of conduct or common scheme or plan as the offense of conviction." The government relied exclusively on the "same course of conduct" test. The Tenth Circuit applies this test by examining the degree of similarity of the offenses, the regularity of the offenses, and the time interval between the offenses, using a sliding-scale approach. Here, treating conduct separated from the offense of conviction by thirteen years as part of the same course of conduct would be unprecedented. Also, the government did not make a showing of "regularity" that would connect this offense to later acts in furtherance of the conspiracy.
The Circuit noted that evidence regarding defendant’s activities between 1990 and 2003 was exceedingly sparse, and there was no evidence of regularity between 1995 to 2003. Finally, although the 1990 transaction shared some characteristics with the later conduct, there were several important differences between the transactions included in the conspiracy and the 1990 transaction. Therefore, the 1990 transaction failed the sliding-scale test as a whole and should not have been considered relevant conduct under the "same course of conduct" test.
Although the government had not argued that the 1990 transaction should be considered relevant conduct under the "common scheme or plan" test, the Circuit determined that it should consider this alternative theory because the parties had had a fair opportunity to develop the factual record and the decision on this question involved only questions of law. Applying the test, the Circuit noted similarities between the 1990 transaction and the offense of conviction, including a conspiracy involving the same individuals. There was sufficient evidence of defendant’s role in the 1990 transaction to apply the "common scheme or plan" test and to determine that transaction constituted relevant conduct.
The Circuit also determined that defendant qualified as a leader or organizer of the conspiracy and that his sentence was substantively reasonable in comparison to sentences his co-conspirators received. The Circuit therefore upheld his conviction and sentence.
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