Sunday, September 22, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Sentencing enhancements

Want to preserve an objection to a sentencing enhancement? Object to the PSR's application of the enhancement. Object to the PSR's factfinding in support of the enhancement. Be specific. Restate the objection to both the factual findings and the legal conclusion with specificity at sentencing. Do not rely on government concessions in the plea agreement. These are the lessons of United States v. McClaflin, affirming the district court's independent factfinding (based on sworn victim statements), and imposition of a 6-level enhancement under USSG § 2B1.1 for substantial financial hardship to more than 25 victims.

Continuances

In McClaflin, the Tenth Circuit also held that the district court did not abuse its discretion when it refused to continue the defendant's sentencing hearing.

Sex offenses

In United States v. A.S., the Tenth Circuit tackled the interplay of Fed. R. Evid. 412 (governing admissibility of a victim's prior sexual behavior), Fed. R. Evid. 608 (limiting admission of specific instances of conduct), and the Sixth Amendment right of confrontation, finding no error in the district court's rulings in that case, and affirming A.S.'s sexual-assault conviction.

In a footnote, the Court observed that Rule 412 only applies to evidence being offered for specific purposes, and that it might not apply to evidence of prior false accusations (citing, among other sources, the Rule's advisory notes). The Court did not need to reach that question in A.S.

Juveniles

In A.S., the Tenth Circuit also examined at length sentencing under the Federal Juvenile Delinquency Act, rejecting the view (held by the Ninth Circuit) that juvenile sentences must be the least restrictive means of achieving rehabilitation and addressing the needs of the community. Read A.S. if you've got a juvenile client facing federal sentencing.

28 U.S.C. § 2255; ineffective assistance of counsel; Brady

In United States v. Holloway, the Tenth Circuit rejected the defendant's arguments that (1) he experienced a total breakdown with counsel resulting in ineffective assistance of counsel (breakdown not established under Romero factors); (2) his counsel ineffectively failed to object to a sentencing enhancement (objection not a clear winner and could have prejudiced Holloway); and (3) the government suppressed exculpatory evidence (exculpatory nature of evidence merely speculative--Holloway failed to seek discovery of it in his 2255 proceedings).

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