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TCL > August 2012 Issue > Summaries of Selected Opinions

August 2012       Vol. 41, No. 8       Page  173
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. 11-3208. United States v. Justice. 05/30/2012. D.Kan. Judge Hartz. Possession of Firearm With Obliterated Serial Number—Possession of Firearm Facilitating Another Felony Offense.

Defendant pleaded guilty to possession of a firearm by a felon. The district court enhanced his Sentencing Guidelines offense level by four levels for possession of a weapon with an obliterated serial number, and by another four levels for possession of a firearm in connection with a felony offense. When arrested, defendant was found in a stolen truck with a loaded rifle and a loaded pistol within reach, and a small bag of methamphetamine in his right front pants pocket. The pistol’s serial number had been ground down with sandpaper or a tool, making it impossible for the officers to read, but a crime lab restored it with chemicals.

On appeal, defendant first argued that the serial number on the pistol had not been obliterated because it had not been entirely destroyed and had been restored through a chemical process. The Tenth Circuit disagreed. To "obliterate" can mean to make undecipherable or imperceptible rather than to eliminate entirely, and this definition better fits the Guidelines language and purpose. The Guidelines language targets both "altered" and "obliterated" serial numbers. A serial number need not be destroyed to be altered; however, it would be nonsensical to apply the Guidelines if the original number could be detected by scientific methods after an alteration but not after an attempted obliteration. Moreover, the purpose of the Guidelines enhancement is to discourage the use of untraceable weaponry. If a defendant cannot tell the difference between an attempted obliteration and an actual obliteration, it makes little sense to make the added punishment turn on that distinction.

Defendant next argued that there was insufficient evidence to show that his firearms possession facilitated his possession of the methamphetamine found in his pocket. The Circuit held that a firearm may facilitate an offense by emboldening the possessor to commit the offense. Here, a reasonable person could find that the loaded firearms within reach gave defendant a sense of security, emboldening him to venture from his home with drugs that someone might wish to take from him by force.

Defendant also argued that even if there was sufficient evidence of facilitation, the district court failed to make a sufficient finding that the firearms facilitated his possession of the methamphetamine. Because defendant did not raise this issue in district court, the Circuit reviewed only for plain error. Here, even if there was error, it was not plain, because neither the Supreme Court nor the Circuit has held that the district court must make a finding of facilitation before enhancing the defendant’s offense level. In any event, the probability of a different result was too slim to justify reversal and remand. The Circuit therefore affirmed defendant’s sentence.

No. 11-5132. United States v. Martinez-Zamaripa. 06/01/2012. N.D.Okla. Judge Murphy. Sentencing Guidelines—Crime of Violence—Indecent Proposal to a Child—Scope of Enumerated Offense of Sexual Abuse of a Minor.

Defendant pleaded guilty to being an alien present in the United States after deportation. The district court enhanced his recommended Sentencing Guidelines sentence sixteen levels based on his previous conviction of a crime of violence, citing his Oklahoma conviction for an indecent proposal to a child. The relevant Guideline included "sexual abuse of a minor" as a specifically enumerated offense constituting a crime of violence. Here, the definition of the offense of which defendant was convicted applied to "any oral . . . lewd or indecent proposal to any child under sixteen (16) years of age for the child to have unlawful sexual relations . . . with any person." The district court concluded that a conviction under this statute fit within the enumerated offense of sexual abuse of a minor.

On appeal, defendant argued that his crime of conviction did not fit the enumerated offense of sexual abuse of a minor. The Tenth Circuit disagreed. Although an indecent proposal to a child does not require any physical contact, psychological harm can occur without physical contact. Moreover, the offense of indecent proposal to a minor requires sexual conduct with knowledge of the child’s actual or virtual presence, therefore wrongly and improperly using the minor and thereby harming the minor. Accordingly, the crime of indecent proposal to a minor falls within the scope of the enumerated offense of sexual abuse of a minor, qualifying as a crime of violence within the meaning of the Guideline. The Circuit therefore affirmed defendant’s sentence.

No. 11-6005. United States v. Oakes. 06/05/2012. W.D.Okla. Judge Hartz. Breach of Plea Agreement—Resentencing Proceedings—Necessity of Defendant’s Consent to Form of Remedy.

Defendant pleaded guilty to one count of distributing cocaine base. His plea agreement provided that the government would not oppose his request that this sentence run concurrently with a federal sentence he was serving at the time. During the sentencing hearing, defendant’s counsel argued for a sentence concurrent with his existing sentence. The government’s attorney, however, who was not the one who had signed the original plea agreement, argued for a sentence to run consecutive to defendant’s existing sentence. The district court imposed a consecutive sentence, citing defendant’s conduct as a "dope dealer" and a "gang banger," as well as his having fathered four children out of wedlock. Defense counsel later notified the court that the government had breached the plea agreement by arguing for a consecutive sentence and requested resentencing by the same judge to a concurrent sentence. The district court noted the seriousness of the government’s breach of the plea agreement, but stated it would have imposed the same, consecutive sentence absent the government’s breach, because of the seriousness of defendant’s conduct. It struck defendant’s argument and reaffirmed the consecutive sentence.

On appeal, the Tenth Circuit considered the appropriate remedy for the government’s breach of the plea agreement. In general, such a breach calls for one of two remedies: (1) specific performance, which in this case would call for a new sentencing hearing at which the government would adhere to the plea agreement; or (2) an opportunity to withdraw the guilty plea. The choice of remedy rests with the court and not the defendant. Here, defendant did not seek to withdraw his plea and the prosecutor’s breach was not the sort of error that mandated withdrawal. Accordingly, the sole available remedy was resentencing. However, resentencing already had occurred. In district court, the government had apologized for its error, the court struck the improper statement, and the court explained why it would impose the same sentence despite the change in the government’s position.

The only remaining question was whether the same judge could properly conduct the resentencing. Although defendant now argued on appeal for resentencing by a new judge, his counsel had acquiesced in district court to resentencing by the same judge. The choice of a sentencing judge is not the kind of decision that can be made only by a defendant and not by his or her counsel. Thus, defendant was bound by his counsel’s acquiescence to resentencing by the same judge.

No. 11-1524. United States v. Avitia-Guillen. 06/06/2012. D.Colo. Judge Baldock. Expert Testimony Under FRE 702 and Daubert—Adequacy of Findings Concerning Disputed QualificationsFingerprint Expert’s Qualifications and Methodology.

Defendant was convicted of one count of being found in the United States after previously having been deported. At his trial, the government called a fingerprint expert from the Colorado Bureau of Investigation (CBI), who testified that defendant’s fingerprints matched those on his 1996 deportation records. The government laid a foundation for the expert’s testimony by showing that the expert had completed a semester-long fingerprint identification class at a community college; that she had been promoted to fingerprint examiner after serving as a fingerprint examiner intern; that about 50% of her time was devoted to fingerprint comparison; that she had examined thousands of fingerprints; and that she previously had qualified as a fingerprint comparison expert in state and federal court. On cross-examination, defense counsel elicited testimony that the expert had not been promoted to a "level 2 examiner"; had not published any peer-reviewed articles on fingerprint examination; had not conducted training to certify people as fingerprint examiners; was not qualified to examine latent fingerprints; and had not received any additional training since becoming a fingerprint examiner. Defense counsel then objected to her qualifications; the district court overruled the objection.

On appeal, defendant argued that the district court had erred by failing to create an adequate record demonstrating that it had satisfied its obligation under Federal Rule of Evidence (FRE) 702 to serve as a gatekeeper to ensure that the fingerprint testimony was both relevant and reliable. The Tenth Circuit disagreed. Because defendant objected in district court only to the expert’s qualifications and not to her methodology, only the adequacy of the findings concerning her qualifications would receive full de novo review. To fulfill its duties under FRE 702 and the Daubert test, the district court must make sufficient findings to permit the appellate court to determine whether it properly applied the relevant law. Here, the district court found that the expert was qualified to testify as a fingerprint examiner based on her "training, education, background and experience." This represented a sufficient finding to fulfill its gatekeeper function concerning the expert’s disputed qualifications.

Turning to defendant’s appellate challenge to the expert’s methodology, which it reviewed only for plain error, the Circuit found no plain error in the district court’s implicit determination that the testimony was based on reliable principles and methods that were reliably applied. The district court heard the expert describe her method of comparing fingerprint cards. Fingerprint comparison is a well-established method of identifying persons that the Circuit previously has upheld against a Daubert challenge. Nothing in this record showed the expert deviated from normal, reliable fingerprint comparison methods. Accordingly, the Circuit affirmed defendant’s conviction.

No. 11-1071. McDonald v. OneWest Bank, F.S.B. 06/11/2012. D.Colo. Judge Kelly. Colorado Foreclosure—CRCP 120 Proceeding—Holder of Debt May Foreclose—Notice of Appeal Tolled by Motion to Reconsider—Issue Not Covered by Notice of Appeal Not Considered.

Plaintiff took out a mortgage loan from IndyMac Bank, which later was operated in receivership by the FDIC. Plaintiff made payments on the loan until the FDIC sold IndyMac to OneWest. He then stopped making payments, because OneWest did not provide him evidence of its authority to collect the payments. OneWest provided him copies of the promissory note and deed of trust. OneWest foreclosed on the property and obtained a Rule 120 order to sell it. Plaintiff filed suit in state court, claiming OneWest was not entitled to payment, and the state court entered a default judgment quieting title in plaintiff. An appeal to the state court was pending when plaintiff filed the underlying federal lawsuit against OneWest, asserting claims for fraud and racketeering, as well as violation of various consumer-protection laws. The district court dismissed for failure to state a claim and denied plaintiff’s post-judgment motion for reconsideration. Plaintiff appealed.

The Tenth Circuit first addressed OneWest’s claim that the notice of appeal was untimely because, even though a motion for reconsideration may toll the time to file a notice of appeal, plaintiff’s failure to cite FRCP 59 or 60 did not toll the deadline. The Circuit rejected this argument, noting that the motion plainly sought relief from the judgment and tolled the time for filing a notice of appeal.

The Circuit then observed that the Rooker-Feldman doctrine does not apply to determinations in CRCP 120 proceedings, but declined to elaborate, because state proceedings were ongoing and the case could be resolved on other grounds [Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)]. Under Colorado law, non-judicial foreclosure based on a violation of a deed-of-trust provision can be accomplished by a holder of a promissory note who need not be its owner. As for plaintiff’s late-raised claim that the original note was not presented, this issue was not covered by the notice of appeal, so could not be considered by the Circuit. The district court’s judgment was affirmed.

No. 11-1160. Jaramillo v. Adams County School Dist. 14. 06/12/2012. D.Colo. Judge Kelly. Employment Race Discrimination—Pretext—Speculative Evidence Insufficient—Decision Maker—Honestly Held Business Judgment.

Plaintiff, a Hispanic female, sued her former employer for race discrimination. She was the principal of Hanson PreK8 School, at which 70% of the students are Hispanic. In 2008, the school district administration considered implementing a policy whereby students would be taught primarily in English, rather than in both English and Spanish. This policy was controversial in the Hispanic community and at Hanson. The school superintendent received a copy of an e-mail about a planned teachers’ meeting that contained false information stating that the district intended to eradicate all Spanish instruction, so she asked plaintiff who had provided the misinformation. Plaintiff refused to give the name. Progressive discipline did not result in plaintiff’s compliance with the request, so her employment was terminated based on the school board’s recommendation.

The district court assumed that plaintiff had established a prima facie case of race discrimination. The employer proffered a legitimate non-discriminatory reason for the adverse action—insubordination. The issue, therefore, was whether the reason was a pretext for discrimination. The district court found no pretext and granted summary judgment in favor of employer. Plaintiff appealed.

The Tenth Circuit rejected as speculative plaintiff’s evidence from the only dissenting board member, a Hispanic who opined that plaintiff’s termination was a product of institutional racism. Similarly, the court found insufficient the opinion of the human resources director as to what constituted insubordination because (1) plaintiff’s supervisor had given ample notice that failure to provide the name was insubordination; (2) the human resources employee was not a decision maker; and (3) the Circuit would not second-guess employer’s honestly held (even if erroneous) business judgment about what information is needed from an employee and the consequences of her failure to disclose it. The Circuit also rejected plaintiff’s "cat’s paw" claim that the school district was liable for the supervisor’s discrimination, because there was no evidence of discrimination. The district court’s judgment was affirmed.

No. 10-4151. Winzler v. Toyota Motor Sales U.S.A., Inc. 06/18/2012. D.Utah. Judge Gorsuch.

Plaintiff brought a class-action lawsuit against Toyota Motor Sales U.S.A., Inc. (Toyota), seeking a nationwide recall of certain Toyota automobiles because they had a defective part. She requested an order requiring Toyota to notify the owners of those automobiles and to repair the defects. The district court dismissed the case for failure to state a claim. Plaintiff filed an appeal at the same time Toyota announced a nationwide recall of the cars in question. The recall was governed by federal law and overseen by the National Highway Transportation Safety Administration (NHTSA). Toyota then moved to dismiss the appeal, claiming that the administrative process would result in the same relief plaintiff sought in her lawsuit.

The Tenth Circuit discussed the mootness doctrine, noting that the equitable relief plaintiff sought was subject to the court’s power to deny relief, unless she could show that relief was needed. Toyota was required by statute to notify all relevant car owners of the defect and to fix it without charge. In addition, Toyota was subject to the oversight of NHTSA, as well as to potential NHTSA penalties. Because other governmental agencies had committed to providing the relief plaintiff sought in her lawsuit, the Circuit determined there was no reason to resolve the case.

The Circuit noted that where there was some cognizable danger of recurrent violation, which requires more than the possibility of failure, the court would continue with the case. Plaintiff argued that Toyota might have misrepresented that it would fix the problem. The Circuit responded that by notifying NHTSA, Toyota started a statutorily mandated and administratively overseen national recall process, so the Circuit did not need to impose a remedy. Also, the Circuit could take judicial notice of those proceedings.

The Circuit then rejected plaintiff’s claims that the recall may be insufficient because it was a voluntary remedy, and that the statutory recall procedures may be inadequate. The Circuit held that the appeal was prudentially moot. The district court’s judgment was vacated and the case was remanded with instructions to dismiss the case as moot.

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