The Colorado Lawyer
Vol. 42, No. 3 [Page 121]
© 2013 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.
All material from The Colorado Lawyer provided via this World Wide Web server is copyrighted by the Colorado Bar Association. Before accessing any specific article, click here for disclaimer information.
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. 11-6339. United States v. Washington. 12/28/2012. W.D.Okla. Judge McKay. Armed Career Criminal Act—Prior Juvenile Adjudication as Predicate Violent Felony.
Defendant pleaded guilty to two firearms charges. At sentencing, the district court concluded that his prior violent felonies qualified him for an enhanced sentence under the Armed Career Criminal Act (ACCA or Act). Accordingly, it sentenced him to a minimum fifteen-year sentence under the Act. On appeal, defendant challenged the district court’s conclusion that his Oklahoma juvenile adjudication for pointing a weapon qualified as a predicate violent felony within the ACCA.
Defendant argued that the government failed to establish that his act of juvenile delinquency involved a violent felony. Under Oklahoma law, pointing a weapon can be either a misdemeanor or a felony. The felony charge requires the element that the defendant pointed the weapon for the purpose of threatening or injuring a person through either physical injury or intimidation. The Tenth Circuit examined defendant’s charging document, and determined that its language tracked the language of the felony offense. It further rejected defendant’s arguments that his juvenile adjudication must have been based on the misdemeanor offense because (1) the charging document used the term "pointing a weapon," which was closer to the title of the misdemeanor offense; (2) defendant’s sentence of five months was within the misdemeanor range of punishment; (3) court costs were not assessed at the standard level for juvenile felony adjudications; and (4) the court should apply the "rule of lenity" to construe the juvenile adjudication to refer to the misdemeanor offense.
The Circuit further rejected defendant’s argument that Oklahoma law prevents the treatment of a juvenile adjudication as a criminal conviction under the ACCA. State law does not govern federal court consideration of a defendant’s state juvenile court records when determining a sentence prescribed by federal law.
Finally, defendant argued that his juvenile adjudication could not be used as a predicate conviction because it had been dismissed by the juvenile court, rendering it a nullity. After defendant served a term of probation, the juvenile court had ordered the action dismissed on application by the district attorney. Under Oklahoma law, which determined what constituted a "conviction," a dismissed case would constitute a nullity only if it had been sealed, which did not happen here. The Circuit therefore concluded that the juvenile adjudication qualified as a violent felony and affirmed defendant’s conviction and sentence.
No. 11-1569. Auraria Student Housing at the Regency, LLC v. Campus Village Apartments, LLC. 01/04/2013. D.Colo. Judge Murphy. Appeal of Interlocutory Order—Motion to Dismiss—Private Parties.
Auraria Student Housing at the Regency, LLC (Regency) and Campus Village Apartments, LLC (Campus Village) each operated an apartment complex near the University of Denver. Campus Village had an agreement with the University whereby students were required to live in its apartments for two semesters. Regency sued Campus Village, alleging the residence restriction was an illegal conspiracy to monopolize, in violation of the Sherman Act. Campus Village moved to dismiss, arguing that the residency restriction was authorized by a state policy to displace competition with regulation, and thus it was not subject to the Sherman Act. The anticompetitive conduct must be at least a foreseeable result of state legislation. The district court concluded that the state legislation Campus Village relied on did not make the agreement sufficiently foreseeable to protect Campus Village. Consequently, the district court denied Campus Village’s motion to dismiss, and this appeal followed.
The Tenth Circuit noted that appellate jurisdiction is limited to district court judgments that are final. An order denying a motion to dismiss is not final where it ensures that litigation will continue. A small class of interlocutory orders are subject to immediate review if they conclusively determine the issue, resolve an important issue separate from the merits, and are effectively unreviewable on appeal from a final judgment. The third condition is not met merely by demonstrating that interlocutory review is necessary to avoid trial. Here, both litigants were private parties, which removed from the equation various public-service considerations, such as allowing public officials to perform their duties without fear of legal consequences. The Circuit repeated the Supreme Court’s caution against expanding collateral review, and rejected Campus Village’s arguments for interlocutory review. The Circuit held that the district court’s order denying Campus Village’s motion to dismiss was not an appealable final order. Accordingly, the appeal was dismissed.
No. 11-5130. Walters v. Wal-Mart Stores, Inc. 01/08/2013. N.D.Okla. Judge Lucero. Court Settlement—Enforceable—Separate Judgment Document—Extend Time for Notice of Appeal—Motion to Reconsider.
Plaintiff sued his former employer for discrimination. During a court settlement conference, the parties reached a settlement, but plaintiff’s counsel requested a modification of the written agreement. The parties then signed a separate document setting forth the terms and agreeing to sign a formal agreement within twenty days. Plaintiff later refused to sign the formal agreement. Eventually, the employer filed a motion to enforce the settlement. The district court granted the motion, concluding that the agreement made at the settlement conference was a complete, enforceable contract. This order disposed of the case, but the district court did not enter the judgment in a separate document. Plaintiff filed a motion to reconsider, which the district court denied. Proceeding pro se, plaintiff appealed.
The Tenth Circuit first addressed whether plaintiff’s notice of appeal was timely. Because the district court did not issue a separate judgment, the judgment was deemed entered 150 days after the order disposing of the case. Moreover, the order denying the motion to reconsider did not start the notice-of-appeal clock. Therefore, plaintiff was entitled to the 150-day period for constructive entry of judgment, and his notice of appeal was timely.
Applying state contract law, the Circuit then affirmed the district court’s ruling that the settlement agreement was enforceable. The fact that a formal document was drafted later did not undermine the parties’ agreement. The Circuit rejected plaintiff’s claim that he should have had twenty-one days to consider whether to sign the formal agreement under the Older Workers’ Benefit Protection Act. The twenty-one-day consideration provision does not apply to the settlement of a court case. The district court’s judgment was affirmed.
No. 12-1004. United States v. Holyfield. 01/08/2013. D.Colo. Judge Murphy. Prior Predicate Felony Convictions—Finality—Expiration of Time for Appeal.
A jury convicted defendant of conspiracy to distribute crack cocaine and powder cocaine, in violation of 21 USC § 841. The district court sentenced him to a mandatory minimum sentence of life imprisonment, because he had two or more prior felony convictions that were final as of the time he violated § 841. These convictions included a 1993 California conviction for transporting cocaine and a 1998 California conviction for possession of marijuana for sale. The Tenth Circuit affirmed defendant’s sentence on direct appeal. Defendant then filed a motion to vacate or correct his sentence pursuant to 28 USC § 2255, arguing that counsel had been ineffective on direct appeal in failing to argue, inter alia, that his 1988 conviction had not been final at the time he violated § 841.
On appeal, defendant renewed his argument that his 1988 conviction was not final at the time he violated § 841. The conviction occurred in July 1998, when defendant pleaded guilty to illegal marijuana possession. The California state court suspended imposition of his sentence and placed him on probation. The probation sentence carried the possibility that his felony conviction might be reduced to a misdemeanor. Defendant was still on probation when he violated § 841. However, his probation had been revoked by the time he was convicted of violating § 841, thus cutting off the possibility that his conviction would be reduced to a misdemeanor. Moreover, his time for appealing the 1998 conviction, which began running at the time he was placed on probation, had passed when he committed the § 841 offense. Because the time for appealing his 1998 conviction had passed by the time the conspiracy that gave rise to his § 841 conviction ended, defendant committed a violation of § 841 after his 1998 conviction became final. The Circuit therefore upheld the denial of his § 2255 motion.
No. 11-5114. United States v. De La Cruz. 01/09/2013. N.D.Okla. Judge Ebel. Search and Seizure—Articulable Suspicion of Criminal Activity—Request for Identification.
Defendant entered a conditional guilty plea to unlawfully reentering the United States after a deportation, reserving the right to appeal the denial of his motion to suppress evidence agents obtained from him as the result of a stop. Officers encountered defendant at a truck wash, where they were looking for a different suspect thought to be unlawfully in the United States. Defendant drove a car with dark-tinted windows to the truck wash to drop off a passenger after hours. One of the officers thought defendant resembled a photo of the suspect they were looking for. The officers activated their emergency lights and parked their vehicles to prevent defendant from leaving.
As it turned out, defendant had driven to the truck wash to drop off his brother, who worked there. An officer ordered defendant to turn off the engine to his vehicle, to place the keys on top of the car, and to exit the vehicle. Defendant complied, but his brother ran away. Two of the officers pursued and apprehended the brother, discovering that he was in the United States illegally. The third officer stayed with defendant and handcuffed him. When the officers returned, the officer with the photograph had a "pretty good idea" defendant was not the man in the photograph. He nevertheless ordered defendant to produce identification. Defendant presented a fake Oklahoma ID card. Using the information on the card, the officers discovered he was illegally in the United States and previously had been deported. After arresting and Mirandizing defendant, the officers obtained a statement from him confirming his immigration status.
On appeal, the Tenth Circuit rejected both of the district court’s bases for denying defendant’s suppression motion. First, it concluded the district court erred in determining that the officers had reasonable suspicion to continue to detain defendant to obtain his identification. The officers’ suspicion that defendant was the suspect they were looking for should have been dispelled after they returned from apprehending his brother and got a good chance to compare defendant with the photograph. Further, defendant’s brother’s flight could not be used to justify defendant’s continued detention. Defendant was not fleeing and, until he provided a fake ID, there was no evidence that he had engaged in any illegal activity or was illegally in the United States. His social interaction with his brother, consisting of driving him to work, did not give the officers reasonable suspicion to believe that he was unlawfully transporting an illegal alien.
The Circuit also rejected the district court’s alternative conclusion that even if there was an unlawful seizure, defendant’s identity need not itself be suppressed. Although a defendant may not seek to suppress his very identity and body from a criminal proceeding merely because of an unconstitutional arrest, he or she still may seek suppression of specific pieces of evidence, such as fingerprints or statements, that establish that identity. Here, defendant permissibly sought to suppress the information card he supplied to the agents and the information the agents learned as a result of that card. The Circuit therefore reversed the district court’s decision denying defendant’s suppression motion and remanded the case to the district court for further proceedings.
No. 11-6309. Dill Oil Company, LLC v. Stephens (In re Stephens). 01/15/2013. W.D.Okla. Judge Kelly. Bankruptcy—Absolute Priority Rule—First Impression—Chapter 11—Doctrine of Equitable Mootness—Rule Continues to Apply.
After the debtors filed for Chapter 11 bankruptcy, creditor Dill Oil Company, LLC (Dill) objected to confirmation of the proposed plan on the ground that it violated the absolute priority rule (APR). The APR bars junior claimants, including debtors, from retaining any interest in property when a dissenting class of senior creditors has not been paid in full. Dill held mortgages on the debtors’ real estate that were subject to existing mortgages on the properties. The debtors owed $1.8 million to Dill. Under the proposed plan, the Dills would be paid $15,000 as a secured creditor and the remaining claim would be unsecured. The Dills would receive a monthly payment for five years, totaling about 1% of their unsecured claim. The debtors would retain possession and control of their property.
Dill objected to the proposed plan and asserted that it violated the APR. The bankruptcy court rejected this argument and held that the 2005 bankruptcy code amendment abrogated the APR as to individual Chapter 11 debtors. The Bankruptcy Appellate Panel certified a direct appeal to the appellate court.
The Tenth Circuit rejected the debtors’ request to dismiss the appeal under the doctrine of equitable mootness, which applies when reaching the merits would be unfair or impractical. The Circuit evaluated several factors, including the public importance of this issue of first impression. The Circuit then considered the statutory language and Congress’s intent to determine whether, under the 2005 amendments, the APR continued to apply to Chapter 11 debtors. Finding no clear language or congressional intent, the Circuit held that the 2005 amendments did not repeal the APR. The bankruptcy court’s order confirming the plan was reversed and the case was remanded for further proceedings.
© 2013 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2013.