Sunday, December 29, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment

In case you were wondering, "an officer's gratuitous use of excessive force [here, a "rough ride" to the police station] against a fully compliant, restrained, and non-threatening misdemeanant arrestee is unreasonable---and therefore violates the Fourth Amendment." McCowan v. Morales (affirming district court's denial of qualified immunity).

USSG 4B1.2(b) career-offender drug predicate

In United States v. Faulkner, the Tenth Circuit held that the Oklahoma crime of endeavoring to manufacture a controlled substance "sweeps more broadly than the generic definition of attempt," and it was error for the district court to treat this crime as a career-offender predicate.

Unfortunately for Mr. Faulkner, his lawyer did not object to this error at sentencing. And thus he lost his appellate bid for resentencing because while the district court erred, the error was not plain.

18 U.S.C. 3663A restitution

A district court may not order restitution for losses related to, but not arising directly from, the defendant's offense(s) of conviction. And thus the defendant convicted of possessing/receiving/concealing 3 stolen firearms in United States v. Mendenhall could not be ordered to pay restitution to a pawn shop for losses related to his theft of dozens of other firearms.

Supervised release: grading violations under USSG 7B1.1

Want to know more about how violations of state law are graded in federal supervised-release-violation proceedings? Read United States v. Rodriguez.

Thursday, December 26, 2019

Mississippi judge: ICE cannot detain immigrant during criminal prosecution

In August 2019, ICE raided six chicken-processing plants in Mississippi and detained hundreds of people, including Ms. Baltazar-Sebastian. Two weeks later, she was indicted for misuse of a Social Security number. A federal magistrate judge found that she was not a danger or a flight risk, and released her on bond. But Ms. Baltazar-Sebastian was not released. ICE immediately took her into custody and transferred her to a detention facility in Louisiana for removal proceedings. Motions were filed. The United States asked for reconsideration. ICE got involved. Main Justice got involved.

Judge Carlton Reeves, a judge in the Southern District of Mississippi, held that ICE's detention of Ms. Baltazar-Sebastian violates the release order and has no legal basis. He rejected any argument that the Bail Reform Act and immigration laws were in conflict: the Bail Reform Act requires release if a person is not a danger or a flight risk, and the immigration statute doesn't require otherwise. Judge Reeves rejected the United States' argument that an ICE detainer is an "exception" that creates different rules. In Ms. Baltazar-Sebastian's circumstances (no aggravated felony, no prior removal), immigration detention is permissive (ICE detainer or no), and allows for detention only for removal purposes. But the detention can't be for removal purposes because immigration regulations don't allow for removal during a criminal prosecution. (Border defense lawyers will already know that ICE has a different interpretation of these regulations). Judge Reeves also distinguishes or rejects decisions from circuit courts that have allowed alien-defendants to be detained by ICE, despite a release order in a parallel criminal prosecution.

There is a lot in this opinion. It is worth a read if you come across this situation, as many of us will. Ramped-up immigration enforcement leads not just to more criminal cases, but to increasingly complex difficulties stemming from parallel criminal prosecutions and removal proceedings.

Sunday, December 22, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Evidentiary issues

In United States v. Brewington, the Tenth Circuit rejected claims that the district court erroneously excluded emails (some were never offered—listing them in a pretrial report wasn’t enough—and the exclusion of others was harmless), and erroneously limited a witness’s testimony (the witness testified, and the limits on her testimony were reasonable).

Jury instructions on lesser-included offenses

In United States v. Waugh, a drug-distribution case, the Tenth Circuit rejected Mr. Waugh’s claim that the district court should have instructed his jury on the lesser included offense of simple possession. The Court based its decision on “the substantial evidence supporting a distribution theory” and “the complete lack of evidence supporting a personal use theory.”  

Which sentencing guidelines again?

To avoid an ex post facto violation, the district court must apply the guideline version in effect when the offense was committed if a newer version would increase the defendant’s sentencing range. The controlling date is when the offense ended. USSG § 1B1.11 cmt. n.2. In Brewington, the district court applied a post-offense amendment that increased Mr. Brewington’s guidelines range. This was plain error necessitating a remand for resentencing.

Obstruction of justice, USSG § 3C1.1

So your client wants to testify at trial. What advice do you give? Whatever else, that advice should include a warning that if the client testifies and is convicted, the district court might enhance the client’s sentence for obstruction of justice if the district court concludes that the client willfully gave false testimony about a material matter. That was the fate of the defendant in United States v. Fernandez-Barron, a fate upheld by the Tenth Circuit in a lengthy decision discussing both the willfulness and materiality prongs of obstruction.

28 U.S.C. § 2241

Image result for MARIJUANA HORSESince 2014, Congress has passed an appropriations rider every year stating that no appropriated funds may be used by the Justice Department to prevent states from implementing their own laws legalizing acts relating to medical marijuana. Aaron Sandusky was convicted in federal court of trafficking marijuana. He filed a habeas petition under 28 U.S.C. § 2241 arguing that his offense conduct was compliant with California state law, and that, during any time that a marijuana appropriations rider is in effect, the BOP cannot expend funds to incarcerate him. The district court dismissed, holding that § 2241 was not the right vehicle for the claim.

The Tenth Circuit reversed. Because Mr. Sandusky challenged only the execution of his sentence (not the validity of his conviction or sentence), § 2241 was the right vehicle. The case now goes back to the district court for proceedings on the merits of the appropriations-rider claim—an issue that the Tenth Circuit points out will be one of first impression.

Sunday, December 15, 2019

Tenth Circuit Breviaries

It's been a quiet couple of weeks at the Tenth Circuit. The Court has not published any new decisions in criminal appeals. But last week it issued an order publishing its previously unpublished opinion in United States v. Fagatele. In Fagatele, the Court held that Utah third-degree aggravated assault is a crime of violence under USSG 4B1.2(a)'s elements clause.

Wednesday, December 4, 2019

The Case of the Polite Bank Robber

Bank robbers get a two-level sentencing enhancement for making a death threat. But all bank robberies involve some explicit or implicit threat of harm. So, says the 11th Circuit, we must distinguish between "less bad" bank robberies and worse ones when we decide who qualifies for the death-threat enhancement. This unarmed robber walked into two different banks, gave the tellers notes asking for money and telling them he "had kids to feed," and then "bargained pleasantly" for the money. Even though his notes stated that "no one would get hurt" if the tellers gave him the money, he never stated or implied that he had a weapon, and the tellers did not act as if they feared him. The court held that his actions would not have caused a reasonable person to fear for their life, and he should not have received the enhancement. 

In fact, in this case the government agreed that the robber should not have received the death-threat enhancement. The 11th Circuit appointed a lawyer as amicus to defend the district court's ruling.

Sunday, December 1, 2019

Tenth Circuit Breviaries

The Tenth Circuit did not publish any decisions in any direct criminal appeals last week.

Habeas practitioners will want to read Davis v. Sharp, affirming the denial of 28 U.S.C. 2254 relief to an Oklahoma state capital defendant. Sharp discusses anticipatory procedural bars, procedural default, and defense counsel's obligations with respect to investigating and presenting mental-health claims at trial.

Tuesday, November 26, 2019

Do border searches of electronic devices require reasonable suspicion?

The "border search" exception to the Fourth Amendment's warrant requirement allows "routine searches" at an international border without a warrant or any suspicion. A couple of weeks ago, we told you about United States v. Williams, in which the Tenth Circuit declined to decide whether reasonable suspicion is required to conduct a forensic search of a person's laptop seized at an international border. The Court held that Mr. Williams would lose either way, because there actually was reasonable suspicion to search his computer.

Other courts have held that suspicion is required to support a search of a phone or laptop at the border. Recently, in Alsaad v. McAleenan, a Massachusetts district court held that suspicionless searches of personal electronic devices seized at the border violate the Fourth Amendment.  The court emphasized that the border search exception is based the need to discover contraband in violation of customs and importing rules at the border, not to search for general evidence of crime. The court held that both a basic search of an electronic device and a more advanced (or "forensic") search are "non-routine" searches at the border, and thus require reasonable suspicion. But the court rejected the plaintiffs' argument that the higher probable-cause standard must be met.

Note: because Alsaad is a civil case, it does not deal with the good-faith exception that can be an additional obstacle in a criminal case in this developing area.

Sunday, November 24, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Preserving sufficiency issues, both at trial and on appeal

In United States v. Leffler, the Tenth Circuit reminded us that it will consider a sufficiency argument forfeited (and subject to plain-error review on appeal) if it is different from the sufficiency argument made during a Rule 29 motion at trial. And it will consider the argument waived (and not reviewable at all) if appellate counsel does not argue it under the plain-error standard.

Let us consider ourselves warned.

Fourth Amendment/Fifth Amendment: consent

In United States v. Armando Martinez (unpublished), the Tenth Circuit reversed a district court order suppressing evidence, finding that an encounter between Mr. Armando Martinez and a Border Patrol agent was consensual. That encounter included some version of the following questions, asked in a conversational tone while the agent was standing about three feet away:

Image result for border patrolGood morning, I'm a Border Patrol agent.
Are you a United States citizen?
Are the people in your car your family?
Can I talk to them?

These questions, under the totality of other circumstances discussed by the Court, did not render the encounter a seizure.

Tuesday, November 19, 2019

Second Chair applications due December 1

Image result for "two chairs"Applications for the 2020 Kansas Federal Public Defender's Second Chair program are due December 1, 2019. The year-long program will take place in Wichita beginning in January. Inquiries should be sent to Laura Shaneyfelt at

Second Chair is a training and mentoring program for attorneys who want to apply for the CJA panel but lack the requisite experience. The program, led by the FPD, includes guideline workshops and an intensive six-part orientation that covers all phases of a federal criminal case. Each participant will be assigned to a more experienced mentor attorney to shadow on select cases.

Participants should plan to commit from 80 to 120 hours throughout the year. Compensation at the rate of $70 per hour is provided courtesy of the Bench-Bar Committee.

Sunday, November 17, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment

Must border searches of personal electronic devices be supported by reasonable suspicion? Maybe. Maybe not. Either way, there was reasonable suspicion for such a search in United States v. Williams

(Non)admissibility of exculpatory suicide note

In United States v. Hammers, the district court excluded a coconspirator's suicide note, in which the author took full responsibility for the charged fraud. The Tenth Circuit affirmed.

First, the statements in the note were not admissible as statements against interest under Fed. R. Evid. 804(b)(e), because (1) the author "had no intention of sticking around to face criminal prosecution"; and (2) the statements were not sufficiently corroborated.

Second, the statements were not admissible under the residual hearsay exception in Fed. R. Evid. 807, because the note did not offer sufficient guarantees of trustworthiness.

Third, the statements were not admissible under the defendant's Fifth and Sixth Amendment rights to present a defense because the district court did not abuse its discretion in excluding the note.

Sufficiency of evidence

In Hammers, the Tenth Circuit also rejected the defendant's argument that the evidence was insufficient to support his convictions. Here the Court reminds appellate practitioners that it will resist arguments asking the Court "to weigh conflicting testimony or evaluate the credibility of the witnesses."

Prosecutorial misconduct

The Hammers Court also rejected the defendant's claims of prosecutorial misconduct, holding that even if the government made improper statements, those statements did not prejudice the defendant.

Obstruction of justice, USSG 3C1.1

In Hammers, the Tenth Circuit reviews the elements of the obstruction-of-justice enhancement, and finds them met in this case. Read Hammers for a reminder of these elements.

Disruption of governmental function, USSG 5K2.7

Finally in Hammers, the Tenth Circuit held that a defendant convicted of embezzling federal program funds may be subject to an upward departure for disrupting a governmental function over double-counting objections (and the departure was factually supported here).

Wednesday, November 13, 2019

Can factual errors constitute plain error on appeal?

As we noted last week, the Tenth Circuit recently reminded us in United States v. Carter that it will not “typically” review a factual error at sentencing if that error was not raised first in the district court. The Court explained the reason for this rule: “when a defendant properly raises the disputed factual issues in the district court, a record sufficient to permit adequate review is thereby developed, but, when a defendant fails to raise the issue below, we have no factual record by which to review the district court’s factual determinations.”

Let's take a longer look at this precedent. In 2015, Justice Sotomayor, joined by Justice Breyer, addressed this issue in a statement respecting the denial of certiorari in United States v. Carlton. Carlton involved a factual error underlying a sentencing enhancement. The enhancement was based on witness testimony that simply did not contain the facts supporting the enhancement. No one discovered the error until appeal. The Fifth Circuit affirmed the sentence based on circuit precedent holding that “factual errors are never cognizable on plain-error review.”

Justice Sotomayor argued that this precedent is “misguided.” She wrote that neither the Supreme Court’s plain-error precedent nor Rule 52 distinguish between legal and factual errors. To the contrary, the Supreme Court has generally held that a per se approach to plain-error review is “flawed.” Justice Sotomayor also stated that no other circuit, beyond the Fifth Circuit, has a per se rule that factual errors cannot be plain error. She identified the Tenth Circuit as applying a rule somewhat like the Fifth’s. But, she noted, citing United States v. Dunbar, 718 F. 3d 1268, 1280 (10th Cir. 2013), “even the Tenth Circuit’s rule is subject to an exception in cases. . . where the appellant can establish the certainty of a favorable finding on remand.” She urged the Fifth Circuit to “rethink its approach to plain-error review.”

Take a look at these cases if you find yourself in a factual bind on appeal.

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.

Wednesday, November 6, 2019

Probation officer's sentencing recommendation cannot always be confidential (in the DC Circuit)

Many judges have a policy of not disclosing the probation officer's sentencing recommendation to anyone other than the judge. But the DC Circuit has held that such a policy is impermissible. In that case, the defendant filed an unopposed motion for disclosure of the recommendation. The district court denied the motion, based on its policy of always treating the recommendation as "confidential." Federal Rule of Criminal Procedure 32(e)(3) allows a district court to “direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence.” But, the DC Circuit held, this rule requires a court to "exercise discretion in deciding whether to withhold the recommendation. . . based on case-specific reasoning rather than on a uniform policy." The court vacated and remanded for resentencing.

Sunday, November 3, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:


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.

Thursday, October 31, 2019

Pretrial release: so your client has a drug problem

It happens now and then that our clients struggle with addiction. But you can convert that problem into a reason for pretrial release. First, take your time, obtain an evaluation, and ask your expert to make treatment recommendations. Then access available treatment plans.

Second, pitch the effectiveness of drug treatment. Alternatives to detention “should be recommended” when a defendant “presents a specific risk of pretrial failure that can be addressed by an ATD. For example, a person with a substance abuse problem may be appropriate for drug testing, assessment, or treatment based on their specific situation.” Marie VanNostrand, Pretrial Risk Assessment in the Federal Court, 73 Federal Probation 3, 23 (Sept. 2009).

Drug treatment works. In a landmark publication, the Office of the Surgeon General recently issued a report canvassing addiction in America. U.S. Department of Health and Human Services, Office of the Surgeon General, Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health (Nov. 2016). As the then-Surgeon General explained in his preface to the report, “[w]e . . . need a cultural shift in how we think about addiction. For far too long, too many in our country have viewed addiction as a moral failing. . . . We must help everyone see that addiction is not a character flaw – it is a chronic illness that we must approach with the same skill and compassion with which we approach heart disease, diabetes, and cancer.” Id. at v.

Even “serious substance use disorders can be treated effectively, with recurrence rates equivalent to those of other chronic illnesses such as diabetes, asthma, or hypertension. With comprehensive continuing care, recovery is an achievable outcome.” Id. at 7-5. With treatment, more than “25 million individuals with a previous substance use disorder are estimated to be in remission. Integrated treatment can dramatically improve patient health and quality of life, reduce fatalities, address health disparities, and reduce societal costs that result from unrecognized, unaddressed substance use disorders among patients in the general health care system.” Id.

A carefully prepared pretrial plan might make your client one of these success stories. Use your resources, take your time, and argue the science.

---Kirk Redmond

Wednesday, October 30, 2019

Pretrial release: the weight of the evidence

How exactly does the weight of the evidence of guilt influence a pretrial release decision? An interesting opinion from the District of Utah recently explored that question.

In United States v. Lizardi-Maldanado, 275 F.Supp.3d 1284, 1292 (D. Utah 2017), Judge Furst concluded that the weight of the evidence is relevant only to the extent that it demonstrates your client will be a danger to the community or a serious risk of flight. She explained that to “avoid falling down the rabbit-hole into the world of ‘[s]entence first—verdict afterwards’  the Court should consider the strength of the evidence only in terms of how that evidence bears on the risk of nonappearance and the risk of harm to the community.” Id. at 1272. And Judge Furst isn’t alone in this view. See, e.g., United States v. Hunt, 240 F.Supp.3d 128, 134 (D. D.C. 2017); United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010). To obtain detention, the government can’t just assert that the evidence of guilt is strong; it has to link that assertion to the ultimate questions of danger and flight.

---Kirk Redmond

Tuesday, October 29, 2019

Pretrial release: dealing with the presumption

Thanks to everyone who attended the Kansas FPD’s pretrial release conference in Lawrence last week (and congratulations again, Laura Shaneyfelt). We’re marking the occasion with some posts highlighting issues in pretrial release litigation, and will start by discussing the presumption.

As you know, 18 U.S.C. § 3142(e) creates a presumption of detention in certain cases. When the presumption of detention applies, “the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991). When the “defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.” Id. This raises two questions:

Can detention be based solely on the presumption?

One of the first Kansas district courts to take a deep dive into the Bail Reform Act responded with an emphatic no. In United States v. Cox, 635 F.Supp. 1047 (D. Kan. 1986), the court found that heavy reliance on the presumption would render the Bail Reform Act unconstitutional. While “the Act’s provisions allowing for pretrial detention are constitutional, that constitutionality is impinged when the government seeks to justify detention solely by virtue of the presumption.” Id. at 1051. Consequently, “the presumption, even unrebutted, is insufficient standing alone to meet the burden of clear and convincing evidence.” Id. at 1052.

How much evidentiary weight should the rebutted presumption carry?

We say none; the research says we’re right. The “presumption does a poor job of assessing risk, especially compared to the results produced by actuarial risk assessment instruments such as the PTRA.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 Federal Probation 52, 61 (Sep. 2017). The presumption fails to “correctly identify defendants who are most likely to be rearrested for any offense, rearrested for a violent offense, fail to appear, or be revoked for technical violations.” Id. at 60. So when you’ve rebutted the presumption, argue the empirical evidence. Even in cases where the presumption initially applied, that fact tells the court nothing about whether your client is a danger to the community or poses a serious risk of flight.

---Kirk Redmond

Sunday, October 27, 2019

"[J]ust a flinch reaction"

It’s fun to attend trial, isn’t it? Just don’t get too caught up in the action.

In Hayes v. Skywest Airlines, Inc., the Tenth Circuit affirmed a summary criminal contempt order against a legal secretary who gestured to a witness for her office’s client not to answer a question during cross-examination by counsel for the opposing party.

The secretary explained both in the district court and on direct appeal that the gesture “was just a flinch reaction.” The district court didn’t believe her, and the Tenth Circuit affirmed, finding that the evidence supported the district court’s determination that the gesture was willful:

“This intentional behavior may have resulted from a momentary lapse in judgment and may have been quickly regretted, but the mere fact that conduct is spur-of-the-moment does not mean it cannot also be willful.”

So the next time you start feeling a bit hopped-up as you watch a trial unfold, be sure to sit on your hands and zip your lips.

Thursday, October 17, 2019

"[D]ue process might require a higher standard"

The Tenth Circuit has long held that sentencing facts in the "ordinary case" need only be proven by a preponderance of evidence. United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008). But the Tenth Circuit has also "reserved the question of whether, in some extraordinary or dramatic case, due process might require a higher standard of proof." Id.

A recent Ninth Circuit decision provides new inspiration to press this argument. In United States v. Valle, the Ninth Circuit held that the government was required to prove the defendant's continuous presence in the United States by clear and convincing evidence before his illegal-reentry guidelines range could be significantly increased under USSG §§ 2L1.1 and 4A1.1.

There are possibly two circuit splits at work here:

First, whether the higher standard ever applies. The Tenth Circuit says "maybe," while the Ninth Circuit says "yes."

Second, when that higher standard applies. The Tenth Circuit says it might apply "in some extraordinary or dramatic case." The Ninth Circuit, in contrast, applies the higher standard to any fact that has "an extremely disproportionate impact on the sentence." This standard may not sound very different from the Tenth Circuit's, but the Tenth Circuit appeared to reject it in Olsen. The standard comes into play in the Ninth Circuit when circumstances favor it, taking into consideration (among other factors) "whether the increase in the number of offense levels is less than or equal to four," and "whether the length of the enhanced sentence more than doubles the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence."

Whether you have an "extraordinary or dramatic case," or just one where a guidelines enhancement has a significant impact, argue that the facts necessary to trigger that enhancement must be proved by clear and convincing evidence.* And let us know what happens.

*Or go all out, and argue that the constitutional protections of due process, notice, and jury factfinding beyond a reasonable doubt apply to facts that (dramatically/significantly) increase the minimum and maximum penalties prescribed by the advisory sentencing guidelines, notwithstanding United States v. Cassius, 777 F.3d 1093 (10th Cir. 2015). See Jones v. United States, 135 S.Ct. 8 (2014) (“any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge”) (Scalia, J., dissenting from denial of certiorari, joined by Thomas, J., and Ginsburg, J.); Gall, 552 U.S. at 60 (Scalia, J., concurring) (“The door remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”); United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J.) (observing that it is “questionable” to assume “that a district judge may either decrease or increase a defendant’s sentence (within the statutorily authorized range) based on facts the judge finds without the aid of a jury or the defendant’s consent. It is far from certain whether the Constitution allows at least the second half of that equation.”); see also Kathryn M. Zainey, The Constitutional Infirmity of the Current Federal Sentencing System: How the Use of Uncharged and Acquitted Conduct to Enhance A Defendant’s Sentence Violates Due Process, 56 Loy. L. Rev. 375 (2010) (arguing that the “process of enhanced sentencing based on uncharged and acquitted conduct is patently unconstitutional, even if the ultimate sentence remains within the statutory range of the offense for which the defendant was originally convicted”).

Monday, October 14, 2019

Tenth Circuit Breviaries

Just one published criminal case from the Tenth Circuit last week:

Sufficiency of evidence of drug dealing

In United States v. Duran, the Tenth Circuit held that the evidence was sufficient to support Mr. Duran's drug-distribution, conspiracy, and telephone-count convictions. The opinion contains an interesting discussion of what evidence will suffice absent controlled purchases or the actual observation of drugs. Here, the evidence consisted primarily of recorded telephone calls, as interpreted by law-enforcement witnesses.

Evidentiary issues

The Duran Court rejected Mr. Duran's relevance, prejudice, hearsay, and foundational challenges to law-enforcement testimony about his involvement in previous controlled buys.

The Court further rejected Mr. Duran's opinion, hearsay, and prejudice challenges to an officer's lay interpretation of code words on the recorded telephone calls, reminding us that "[l]aw-enforcement agents can ordinarily testify that the defendants were engaged in drug trafficking because this testimony constitutes opinion evidence on a fact issue." And the Court held that an agent's expert interpretation of the code words was also properly admitted.

Wednesday, October 9, 2019

2nd Cir: Guidelines sentence in terrorism case inadequately explained

In United States v. Pugh, 937 F.3d 108 (2nd Cir. 2019), the defendant was convicted of attempting to provide material support to a foreign terrorist organization (by attempting to join ISIS) and obstruction of justice (by destroying USB drives and data). The guidelines range was 360 to 420 months. The district court imposed consecutive statutory-maximum sentences on each count, 180 months on the material support conviction and 240 months for obstruction, for a total of 420 months--a guidelines sentence. The 2nd Circuit affirmed the convictions but vacated the sentence, finding that the district court had not adequately explained it. A district court generally need not give a lengthy explanation for a guidelines sentence. And the court made two pages of comments prior to imposing the sentence. But, the 2nd Circuit says, most of the discussion was about the defendant's guilt, not the appropriate sentence. The panel emphasizes that the defendant was convicted of multiple counts and the sentencing judge did not articulate why an already lengthy statutory-maximum sentence on one count was not sufficient, before imposing consecutive statutory-maximum sentences. Because of the procedural error, the panel did not reach the issue of substantive reasonableness.

Judge Calabresi concurred, to highlight how the government was able to use an obstruction of justice conviction to more than double the available sentence. The concurrence explains that a sentence for obstruction must reflect the seriousness of the obstruction conduct. It should not be used to punish conduct underlying a different count, because the government or the court is dissatisfied with the statutory maximum on the other count. This discussion hints, if reimposed, the sentence may be substantively unreasonable as well. Or, at least, one judge may think so.

Sunday, October 6, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit . . .

USSG § 4B1.2(b)

A "counterfeit substance" under this guideline is a noncontrolled substance that is passed off as a controlled substance. It is not a controlled substance that has been fraudulently or without authorization mislabeled or misbranded. So declared the Tenth Circuit, joining the five other circuits to have addressed this issue, in United States v. Thomas.

Plurality opinions

What’s the mandate of a plurality opinion when “two of the three panel judges share some common rationale, yet ultimately reach different outcomes, and a different combination of two judges reach a common outcome by using different rationales”? It's the outcome that matters, says Harte v. Johnson County Board Comm'rs, round two of a Fourth Amendment lawsuit that we've blogged about before.

Jury-selection issues

Read Harte also for a reminder of how hard it is to win jury-selection claims on appeal. When it comes to juror bias, for instance, "the deference due to district courts is at its pinnacle." And Batson claims have always been an uphill battle on appeal, and a losing battle in this case.

Wednesday, October 2, 2019

Confession without corroboration is insufficient proof of guilt

The Seventh Circuit reminds us that “It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.” In this 18 U.S.C. § 924(a)(1) case, the defendant confessed to two ATF agents that he lied to a firearms dealer by stating that he was buying two firearms for himself, when he was really purchasing them for someone else. At trial, the government presented the testimony of one of the ATF agents who heard the confession. The Seventh Circuit found there was insufficient proof of guilt because there was no independent evidence corroborating the confession. The defendant even confessed twice. But, says the court, “the government cannot rely on a second uncorroborated confession as independent evidence corroborating an initial one, particularly where the second does nothing to fortify the truth of the confession by offering further corroboration that a crime was committed.”

Sunday, September 29, 2019

SCOTUS 2019 term preview

The kids are back in school, the days are getting shorter, the nights are getting cooler, and you know what that means: It's Supreme Court season! The Court will hold its first conference of the term this week, and issue its first orders and hold oral argument next week. Here are the cases to be argued this term (so far) that we're watching (descriptions taken directly from the question presented in each petition for certiorari):

Second Amendment

New York State Rifle & Pistol Association Inc. v. City of New York: Whether [New York] City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

Fourth Amendment

Kansas v. Glover: [W]hether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.


Sharp v. Murphy (held over from last term for reargument): Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).


Kelley v. United States: Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

Immigration-related state prosecutions

Kansas v. Garcia: 1. Whether IRCA expressly preempts the States from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.

2. [Question by the Court] Whether the Immigration Reform and Control Act impliedly preempts Kansas’s prosecution of respondents.

Insanity defense

Kahler v. Kansas: Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

Unanimous verdict

Ramos v. Louisiana: Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?  


Holguin-Hernandez v. United States: Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

Shular v. United States: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act?

McKinney v. Arizona: 1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.
The first question was stated more broadly within the petition as follows: Whether a court must apply the law as it exists today, rather than as it existed at the time a defendant’s conviction first became final, when correcting a defendant’s sentence or conducting a resentencing.


Mathena v. Malvo: Did the Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

Bannister v. Davis (cert granted on pro se petition): [Question by the Court] Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U. S. 524 (2005). 
For a deeper dive into this term's criminal cases, check out SCOTUSblog's analysis here.

Wednesday, September 25, 2019

"May it please the Court"

Good morning, Your Honors, my name is ___, attorney for ___.

May I proceed, Your Honor? My name is ___, and I represent ___.

Good morning Your Honors and counsel, [name] from ___, appearing for ___.

Thank you, Your Honors, may it please the Court, my name is ___, appearing on behalf of ___.

Thank you Your Honor and may it please the Court, [name], for the appellants here.

Thank you, Your Honors, good morning, may it please the Court, counsel, my name is ___, and I'm appearing on behalf of appellant ___.

May it please the Court, good morning.


These are just a few of the introductions made by litigants before oral argument to the Tenth Circuit this month. How do you introduce yourself to the Court? Do you invoke the traditional phrase "May it please the Court"? Do you acknowledge counsel on the other side? Do you state your name and who you represent? The Tenth Circuit's Practitioner's Guide does not require any particular greeting, but it does instruct counsel that, "[a]t the beginning of the argument, counsel should identify themselves to the court."

The Supreme Court takes the opposite approach. Its Guide for Counsel instructs that after the Chief Justice has recognized you by name, "you may acknowledge the Court by the usual: 'Mr. Chief Justice and may it please the Court. . . .' Do not introduce yourself or co-counsel." The "may" makes the greeting sound optional, but Supreme Court practitioners use it with near uniformity.

Whether you use that traditional greeting in the Tenth Circuit or other courts is up to you. Judges who have addressed the issue say it doesn't hurt, and it may be a useful icebreaker. Two pieces of advice: make it short (you don't want to waste valuable argument time on an introduction), and know what you're going to say ahead of time so that you don't hem and haw during your very first statements to the Court.

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.


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.


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).

Thursday, September 19, 2019

Playpen dissent: good faith doesn't apply where agents "deliberately or recklessly misled the magistrate"

The majority opinion in United States v. Taylor, out of the 11th Circuit, joins a chorus. It finds that a warrant related to the Playpen child-pornography investigation exceeded the magistrate judge’s jurisdiction under Federal Rule of Criminal Procedure 41(b) (since amended), but declines to suppress any evidence under the good-faith exception to the exclusionary rule. Ten other courts of appeal have reached a similar result. The notable part is Judge Tjoflat's dissent, which concludes that the good-faith exception cannot apply because the FBI agents "deliberately or recklessly misled the magistrate" in the warrant application.

If you’re not familiar with the investigation, Playpen was a child-pornography-distribution site. The FBI arrested the site administrator then covertly continued operating the site from a server in Virginia. To snare users, the FBI employed the Network Investigative Technique, or “NIT,” malware. The malware piggybacked on downloads from the site, invaded the host computer, and forced the computer to send its IP address and other information back to the FBI. The FBI could then identify the user. To deploy the NIT via the Playpen site, FBI agents submitted a search-warrant application to a magistrate judge in the Eastern District of Virginia. The warrant authorized transmission of the NIT from the site, which would then conduct digital searches of each user's computer.

The dissent concludes that the officers knew or should have known of a jurisdictional problem with the warrant, which sought to conduct searches in dozens of districts outside the judge's authority. But the warrant application falsely and repeatedly told the magistrate judge that the searches would take place in the district and "buried" the implication that most searches would in fact occur in other districts. Because the agents at least recklessly misled the magistrate judge by obfuscating the jurisdictional issue, the dissent would not apply good faith. The majority's approach, says the dissent, "essentially gives officials permission to try to hoodwink magistrates: they can make false statements to the court so long as they include enough information to uncover their chicanery. If the magistrate fails to spot the issue, officials can cloak themselves in good faith reliance and execute the warrant without fear of suppression."

Multiple Playpen cases are pending or probably will be pending on petitions for certiorari to the Supreme Court. Will one judge’s dissent persuade the Court that eleven circuits have gotten this wrong?

Sunday, September 15, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Image result for medication"Take prescribed medication as directed"

This stock condition of supervised release got the axe last week from the Tenth Circuit in United States v. Malone:

We consequently take this opportunity to make it clear that this condition, on its face, is an impermissible infringement into a defendant’s significant liberty interests without the justifying support of particularized findings.
* * *
Probation offices and courts in this circuit must be precise and discerning in their imposition of such conditions and may only include a broad mandate to ‘take prescribed medication as directed’ when it is accompanied by particularized findings that justify it.
Multiplicity of child-pornography charges

In United States v. Elliott, the Tenth Circuit held that 18 U.S.C. § 2252A(a)(5)(B) (the child-pornography statute) precludes “distinct charges for each electronic device or medium simultaneously possessed.” In other words, five charges for possessing child pornography on five devices, in the same place, at the same time, violates the rule against multiplicity. For purposes of this analysis, possession of a Dropbox account is treated as found not where Dropbox’s servers are located, but “in the same location as the device from which it is accessed.”

Thursday, September 12, 2019

Officer testimony about pretextual stops leads to suppression

The lesson from the suppression order in United States v. Coleman, No. 2:18-cr-00219, 2019 WL 4262506 (D. Nev. Sept. 9, 2019) might be: put the officer on the stand. In this case, the officer testified about his unit's practice of using traffic stops to search suspected gang members.

Officers from the Las Vegas "violent crime" or "vc" unit stopped Coleman for driving with high beams on. Officer Ostorga got his identification, asked about his criminal history (prior convictions for robbery, battery and weapons possession), and asked him about gang affiliation. Ostorga remarked that "I am just going to keep asking you until you tell me." Coleman said he had previously been a member of a gang. The officers found no outstanding warrants but did discover that Coleman was on federal supervised release. They decided to contact the probation officer to see if they could get permission to search the car, which was apparently not successful. After remarking that he was not concerned about his safety, Ostorga ordered Coleman out of the car anyway. He frisked Coleman and found nothing. He ordered Coleman to stand in front of the patrol car and visibly inspected Coleman's car with a flashlight, and found nothing. He then asked "Be cool if I search it?" and Coleman did not respond. Ostorga asked again "What's up? You okay if I search it?" Coleman said yes. Eventually Ostorga removed a panel from interior and found a handgun.

The district court suppressed the gun. The court found that Ostorga impermissibly extended the traffic stop by ordering Coleman out of the car, not for any safety reason or traffic-stop purpose, but to continue to search for drugs or guns. In fact, the court noted, searching the car was the officer's purpose from the beginning of the stop, consistent with the vc unit's use of traffic stops for "proactively searching for guns, drugs, and other gang-related contraband." The court also found that the consent was not voluntary, since Coleman had been frisked and searched, was out of his car with his hands on the hood of the patrol car, the officers retained his identification, and Ostorga asked twice for permission after Coleman tried to avoid responding.

Evidence suppressed.

Sunday, September 8, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment: reasonable mistake of law

In United States v. Romero, the Tenth Circuit held that a police officer did not have probable cause to arrest Mr. Romero for obstructing an officer under a state law, as that law has been interpreted by the courts.

Image result for reasonable mistakeThe Tenth Circuit further held that any mistake of law by the arresting officer was unreasonable. A couple of highlights:

First, recall that the Supreme Court held that reasonable suspicion may rest on a mistake of law in Heien v. North Carolina. As the Tenth Circuit pointed out in Romero, the Tenth Circuit has yet to decide whether Heien applies to probable-cause determinations (the Court merely assumed this point without deciding it in Romero).

Second, an officer's mistake of law must be reasonable. Here, the law at issue had been interpreted several times, and the officer could not have reasonably mistaken it as applicable to Mr. Romero's conduct.

Jury instructions on lesser-included-offenses

In United States v. Antonio, the Tenth Circuit found no error in the district court's step-down instructions to only consider involuntary manslaughter if the jury did not unanimously find the defendant guilty of second-degree murder.

And the Tenth Circuit found no error in the district court's refusal to instruct the jury to consider “the boundary which separates the two crimes of murder and manslaughter.”

 Magistrates: authority to accept guilty pleas?

The Tenth Circuit has long held that "federal magistrate judges can accept and enter guilty pleas in criminal proceedings where the parties have consented to appearing before the magistrate judge." But other circuits disagree when it comes to felony pleas, and for good reasons. In United States v. Garcia, Chief Judge Tymkovich, writing for the panel majority, acknowledged those reasons and rang the certiorari bell: "Regardless of how we, as a circuit, continue to handle these matters, the Supreme Court will have the final word." Stay tuned . . . .

Indian Country

Want to learn more about subject matter jurisdiction and Indian Country? Read United States v. Antonio (finding evidence of territorial jurisdiction sufficient, and no procedural error).

Crimes of violence; 18 U.S.C. § 924(c); 28 U.S.C. §2255 timeliness; actual innocence

From United States v. Bowen:

"In short, we hold that United States v. Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court held that 18 U.S.C. § 924(c)(3)(B) is void for vagueness, created a new substantive rule that is retroactively applicable on collateral review, and we conclude that Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A). Therefore, Bowen is actually innocent of 18 U.S.C. § 924(c)(1). The parties have agreed in this case that, if Bowen is actually innocent, his § 2255 motion is timely. Because Bowen is entitled to relief under § 2255, we REVERSE the district court’s dismissal of Bowen’s § 2255 motion and REMAND with instructions to VACATE his § 924(c)(1) conviction."