Sunday, February 9, 2020

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Unlawful reentry

A person charged with unlawful reentry may collaterally challenge the prior removal order that rendered reentry unlawful under 8 U.S.C. § 1326(d). But not if that prior removal order was expedited. At least not according to 8 U.S.C. § 1225(b)(1)(D), which purports to deprive courts of jurisdiction to consider collateral attacks on expedited removal orders.

Section 1225(b)(1)(D) is unconstitutional. So declared the Tenth Circuit in United States v. Gonzalez-Fierro, explaining that "it deprives a defendant like Gonzalez-Fierro of due process; that is, § 1225(b)(1)(D) allows the Government to use an unreviewed expedited removal order to convict a defendant of the § 1326(a) offense of unlawfully  reentering the United States after a prior removal."

Unfortunately for Mr. Gonzalez-Fierro, his collateral challenge fails under the strict terms of § 1326(d).

Pre-sentencing plea withdrawal

Did the law change between your client's plea and sentencing, and if so, did that change render your client's plea not knowing and voluntary? Check out United States v. Zayas (unpublished), holding that the district court should have granted a pre-sentencing motion to withdraw a plea on grounds that the defendant was not aware of the mens rea requirement required to prove her guilt (nope, not a Rehaif case, but an Assimilated Crimes Act case based on a New Mexico statute that, after Ms. Zayas's plea, the New Mexico Supreme Court interpreted as having a higher mens rea than precedent had previously held).

In the custody, care, or supervisory control of the defendant, USSG § 2A3.2(b)(1)

In United States v. Blackbird, the Tenth Circuit found error in the district court's application of this 4-level sentencing enhancement to Mr. Blackbird, who pleaded guilty to attempted sexual abuse of his 15-year-old granddaughter. Merely showing that Mr. Blackbird was the victim's grandfather was not enough; neither was showing that he exploited an opportunity when she was home alone. There was no evidence that Mr. Blackbird was babysitting or otherwise responsible for his granddaughter. Sentence vacated.

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