Sunday, November 3, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Restitution

Two important tips when measuring restitution in a case involving child sex-trafficking, from the Tenth Circuit's decision last week in United States v. Anthony:

First, know that under both the Mandatory Victims Restitution Act and the Trafficking Victims Protection Reauthorization Act, the defendant's conduct must be the but-for cause of the victim's harm, and the defendant must have proximately caused the harm. This is true notwithstanding Paroline (which involved a different Act). Insist that the district court disambiguate overlapping harms and distinguish between any past harms caused by others and the present harms caused by your client.

Second, know the scope of your client's conspiracy: "restitution liability for a conspiracy with a non-fatal variance is measured by the scope of the smaller conspiracy proved at trial rather than the conspiracy charged in the indictment."

Habeas/Capital Punishment

Harris v. Sharp is a hefty 99-page decision in a capital habeas case out of Oklahoma state court. The result is a remand to the district court for an evidentiary hearing on Mr. Harris's claim that counsel was ineffective in failing to seek a pretrial hearing on his (in)eligibility for the death penalty (on grounds of intellectual disability). Along the way, the Tenth Circuit rejects Mr. Harris's claims respecting jury instructions, closing arguments, and victim testimony.

Issue Preservation

In United States v. Carter, the Tenth Circuit reminds us that it will not review a procedural sentencing error that the defendant affirmatively waived in the district court. What counts as a waiver? Unequivocally withdrawing an objection, in this case.

The Tenth Circuit also reminds us in Carter that it will not (typically) review a factual sentencing error if that error was either waived (affirmatively withdrawn/rejected) or simply forfeited (not raised).

Lesson learned? Make all factual and procedural sentencing objections in the district court, and reassert them with particularity at the end of the sentencing hearing. Otherwise, your client will be out of luck on appeal.

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