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TCL > June 2012 Issue > Summaries of Selected Opinions

June 2012       Vol. 41, No. 6       Page  109
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. 11-6135. United States v. Hunt. 03/21/2012. W.D.Okla. Judge Tymkovich. Authorized Sentence on Revocation of Supervised Release—Use of Aggregation to Establish Length of Sentence After Repeated Revocations.

After serving a forty-one-month sentence on firearm charges, defendant began serving a three-year term of supervised release. He failed to comply with the drug-testing condition of his supervised release, and the district court revoked his supervised release and sentenced him to a year and a day in prison, followed by two more years less one day of additional supervised release. Defendant served his prison term and was released on supervised release. He again violated a condition of his release. The district court revoked this supervised release and sentenced him to another year and a day in prison, followed by an additional two years less one day of supervised release.

After serving his prison sentence, defendant violated drug-testing requirements of his supervised release. This time, the district court sentenced him to an outpatient drug treatment program. He violated the terms of this placement, so the district court sentenced him to an inpatient drug treatment facility. After he was discharged from this program for violent behavior toward other patients and staff, the district court revoked his supervised release for a third and final time and sentenced him to eighteen months in prison with no additional supervised release.

On appeal, defendant argued that the time he spent in prison as the result of his previous revocations should be credited toward the maximum amount of time he was required to serve as a result of the third supervised release revocation. The Tenth Circuit disagreed. Although it is true that a prisoner convicted of a Class C felony, such as defendant, can be sentenced only to a maximum supervised release period of three years, this does not mean that the sum of all prison terms imposed for violation of supervised release also is three years.

The plain language of 18 U.S.C. § 3583(e)(3) does not require courts to aggregate previous revocation imprisonment sentences when calculating a new sentence for a violation of supervised release conditions. Also, reading such an aggregation requirement into the statute is not necessary to limit the district court’s ability to sentence defendants for violating supervised release conditions. Other sections of the statute require the district court to credit defendants for previous revocation sentences when imposing new periods of supervised release. These sections, together with other provisions in the statute setting maximum sentences on revocation tied to the underlying offense, create a limit to the amount of supervised release and revocation imprisonment defendants can be subjected to in the event they repeatedly violate the conditions of their release. This being the case, defendant’s eighteen-month sentence was proper because his underlying crime was a Class C felony and the district court was authorized to impose a sentence of up to two years in prison for a violation of his conditions of supervised release. Accordingly, the Circuit affirmed the judgment and sentence of the district court.

No. 11-3296. United States v. Viera. 03/28/2012. D.Kan. Judge Matheson. Scope of Appeal Waiver—Attorney’s Alleged Ineffectiveness in Failing to Appeal as Instructed.

Defendant pleaded guilty to various drug charges involving possession and distribution of methamphetamine. His plea agreement contained a waiver of his right to "appeal or collaterally attack" any matter in connection with the prosecution, his conviction, or the components of the sentence to be imposed. Approximately eighteen months after he pleaded guilty, defendant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion included several claims of ineffective assistance of counsel, including a claim that counsel had failed to file an appeal as defendant instructed. The district court denied relief but granted a certificate of appealability (COA) on the failure-to-appeal issue.

On appeal, the Tenth Circuit considered whether the claim that defendant’s attorney failed to file an appeal as instructed was barred by the appeal waiver. The waiver analysis required the Circuit to determine whether (1) the disputed claim fell within the scope of the appeal waiver; (2) defendant knowingly and voluntarily waived his appeal rights; and (3) enforcing the waiver would result in a miscarriage of justice. The Circuit found all three criteria satisfied.

First, the plea agreement waived collateral review. Although such a waiver does not prevent a defendant from bringing a § 2255 petition based on an ineffective assistance of counsel claim challenging the validity of the plea or the waiver, counsel’s failure here to appeal did not undermine the validity of the plea or waiver. The Circuit distinguished previous cases granting defendants an appeal in spite of the waiver. In those cases, unlike this one, the government had failed to raise the waiver issue. Second, there was nothing in the record here to suggest that defendant’s waiver of post-conviction rights was unknowing or involuntary. Finally, there was no indication that enforcement of the waiver would result in one of the narrow circumstances constituting a miscarriage of justice under Tenth Circuit precedent.

The Circuit also rejected other arguments defendant raised in an effort to obtain an extended COA. Defendant argued that his plea was involuntary because he entered into it under the mistaken belief that he would not be deported and that he would be eligible for a one-year sentence reduction on completion of a residential drug abuse program (RDAP). The deportation claim failed because defendant did not show that, absent counsel’s alleged failure to advise him that he would be deported, he would have gone to trial. Also, he had expressed an intention to leave the United States permanently. His RDAP claim also failed, because he admitted at his change of plea hearing that no one had made him any promises or guarantees about his sentence and he acknowledged that counsel’s predictions concerning his sentence could be wrong. Accordingly, the Circuit upheld the district court’s denial of § 2255 relief and denied his application for an extended COA.

No. 10-4150. Sabourin v. Univ. of Utah. 04/06/2012. D.Utah. Judge Hartz. Family and Medical Leave Act—Interference—Retaliation—Insubordination and Vindictiveness—Independent Reasons for Termination.

Plaintiff sued his former employer, the University of Utah (University), claiming that his position was eliminated and he was fired while on leave for family care, in violation of the Family and Medical Leave Act (FMLA or Act). His position was funded by grants procured by the University.

In early May 2006, plaintiff was assigned a project to respond to an audit concerning the handling of grants. On May 31, plaintiff’s supervisor sent a memo to the human resources department stating that on June 30, plaintiff’s position would be eliminated in a reduction in work force because of a depletion in grant money. Defendant was not told of the decision at this time. On June 6, plaintiff applied for and received approval for leave under the FMLA to care for his minor children. He took with him his University laptop computer and various official documents so he could complete the audit response at home. He also deleted all of his electronic files from the University server prior to leaving. Plaintiff was informed of the decision to eliminate his position on June 13.

Despite repeated requests that he return all University property in his possession, including the documents and electronic files necessary to complete an after-action report, plaintiff did not return them. On June 15, the University instituted disciplinary proceedings against plaintiff for his refusal to return University materials. Plaintiff returned his University laptop on June 22, but he had deleted crucial files and programs from it. Further demands for the return of the materials were fruitless. Plaintiff’s employment was terminated on June 30.

Plaintiff filed suit against the University, alleging that the University had (1) violated the FMLA by eliminating his position and terminating his employment; (2) breached his employment contract; (3) wrongfully terminated his employment for whistle blowing; and (4) deprived him of liberty and property without due process. The district court granted the University’s motion for summary judgment. Plaintiff appealed, claiming the University had interfered with his FMLA rights and retaliated against him for exercising those rights.

The Tenth Circuit noted that the FMLA prohibits an employer from denying or interfering with rights provided under the Act, such as time off to care for family members. The Act also forbids an employer from discharging an individual for opposing any practice made unlawful by it. However, even if plaintiff could show the elements of an interference claim, the University still would prevail if it showed that he would have been dismissed regardless of his request for, or taking of, FMLA leave. The Circuit concluded that the undisputed facts showed that the University made the decision to eliminate plaintiff’s position before he sought FMLA leave and that he was fired for insubordination and vindictiveness while on leave (not because he took FMLA leave). Thus, the University satisfied its burden to defeat both the retaliation and interference claims. The district court’s judgment was affirmed.

No. 10-2213. Elliott v. Martinez. 04/09/2012. D.N.M. Judge Hartz. Due Process Clause—Liberty Interest—State Statute—Notice to Grand Jury Targets—Procedural Rights—Substantive Interests.

Plaintiffs were targets of a state grand jury proceeding. A New Mexico statute required the district attorney to give them four days’ notice before they were called to testify before the grand jury, but the notices they received required their testimony sooner than four days. Plaintiffs sued the district attorney, asserting that the failure to provide the required notice denied them liberty interests. The district court granted defendant’s motion to dismiss for failure to state a claim.

The Tenth Circuit held that a statutory right to particular procedures is not a liberty interest. The Due Process Clause of the U.S. Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. To determine whether due process has been violated, a court asks (1) whether the plaintiff has shown the deprivation of an interest in life, liberty, or property; and (2) whether the government’s procedures in depriving the plaintiff of that interest comported with due process.

The Circuit held that the first step was not satisfied. Liberty and property rights are substantive rights, not rights to procedure. Here, plaintiffs collapsed the distinction between the interest protected and the process that protects it. The requirement that notice be given is not a substantive limitation on official discretion, but a procedural one. When a state provides procedures to protect a constitutional liberty interest, the state does not thereby create a new constitutional right to the procedures. Accordingly, noncompliance with those procedures does not violate due process. The district court’s judgment was affirmed.

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