Monday, November 11, 2019

Tenth Circuit Breviaries

Image result for police reportLast week at the Tenth Circuit:

Sentencing facts

"[P]olice reports are not inherently reliable." So the Tenth Circuit reminded us last week in United States v. Padilla, an unpublished decision vacating the defendant's sentence and remanding for resentencing on the record as it now stands. The problem? The district court relied on a police report not in evidence, over Mr. Padilla's reliability objections, to establish relevant conduct. But district courts cannot presume a police report reliable for sentencing purposes. They must find "that the specific document at issue contains sufficient indicia of reliability to support the probable accuracy of the information sought to be established." Read Padilla for a survey of cases discussing the use of police reports at sentencing.

Sentencing objections

Also read the 2 1/2 page footnote starting at page 4 of Padilla for a discussion of what is required (and what's not required) to preserve objections to factual findings at sentencing. And then, just to be safe, continue to object as often and on as many grounds as possible.

Removal proceedings/unlawful reentry

In Lopez-Munoz v. Barr, the Tenth Circuit held that alleged regulatory and statutory defects in a notice to appear for removal proceedings (which omitted the time and place for the hearing) did not deprive the immigration court of jurisdiction over Ms. Lopez-Munoz's removal proceedings (the question left open in Pereira v. Sessions, 138 S.Ct. 2105 (2018)).

Second or successive 2255 based on Davis

The Tenth Circuit authorized a second or successive 2255 petition based on Davis in in re Mullins, a decision all 2255 practitioners should read.

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