Monday, September 28, 2020

Tenth Circuit Breviaries

Sentencing: minor role, USSG § 3B1.2(b)

Litigating a minor-role reduction for your client? Read United States v. Delgado-Lopez. There the Tenth Circuit held that a district court considering whether to grant a minor-role reduction should not: (1) speculate about the economics of the drug-trafficking scheme; (2) consider the defendant's refusal to cooperate; or (3) fail to consider the defendant's culpability relative to other participants (unless the only evidence in support of the reduction is the defendant's testimony and the district court properly finds that testimony not credible).

Sentencing: disparities and issue preservation generally

18 U.S.C. § 3553(a)(6) obligates the district court to consider, at sentencing, "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Native Americans convicted of assault in Indian country under the Major Crimes Act face higher sentences under federal law than they would under state law. Because of the Act's conferral of federal jurisdiction over certain crimes within Indian country, the Act disproportionately affects Native Americans. Can a sentencing court consider this disproportionate effect when sentencing a Native American person convicted under the Act?

Nope---at least not under Section 3553(a)(6). So said the Tenth Circuit in United States v. Begay, citing binding Circuit precedent holding that the purpose of Section 3553(a)(6) is to prevent disparities among federal defendants, period.

BUT the Tenth Circuit suggested that the disparity at issue in Begay might be relevant to other sentencing factors, or even the basis for an equal-protection argument. Alas, counsel for Mr. Begay did not sufficiently raise or argue these other bases for considering the disparity in his case. Sentence affirmed.

Sentencing: substantial risk of death or serious bodily injury, § 2K1.4(a)(1)(A)

This guideline requires an actual risk, not just an intended one. But the district court found an actual risk here, and so Mr. Ansberry's base-offense level stands. United States v. Ansberry.

Sentencing: terrorism enhancement, § 3A1.4

"[F]or a § 3A1.4 terrorism enhancement based on the defendant’s retaliation against government conduct to apply, the conduct retaliated against must objectively be government conduct." United States v. Ansberry (emphasis added) (in other words, it is not enough that the defendant subjectively believed the conduct was government conduct).

Sentencing: official victim enhancement, § 3A1.2(a)

This enhancement may only be based on "facts immediately related to the offense of conviction," and not on broader relevant conduct. United States v. Ansberry. The government charged Mr. Ansberry with using or attempting to use a weapon of mass destruction against any person or property. But Mr. Ansberry only pleaded guilty to attempting to use the WMD against property. An offense against government property does not automatically victimize government employees.

Thursday, September 24, 2020

How to vote when you are in jail

Happy belated National Voter Registration Day. It’s hard to imagine any election more important than the one that looms just 40 days away. As we all prepare to vote, it’s important to remember that many of our pretrial clients are also eligible and want to vote,* even if in pretrial detention. But the logistics of voting from jail make it tougher for them to do so. You can help by answering their questions and providing the needed forms.

The Kansas FPD is partnering with ACLU of Kansas to get information and materials to potential voters in the jails. We are grateful that many of the Kansas jails, including CoreCivic, Shawnee, Jackson, Sedgwick, Wyandotte, and Butler have agreed to allow Voting Rights flyers (below) to be posted and have let us provide stacks of the forms used to register and to request ballots.

In order to help answer questions from your clients, below is the basic information about who is eligible to vote and when the forms to register and request a ballot must be submitted.

The general eligibility requirements are:

·        U.S. citizen   

·        Kansas resident

·        18 years old on date of the election

·        Completed terms of any felony sentence

·        Not claiming eligibility to vote elsewhere/under another name

·        Not excluded from voting by any court

The deadlines are:

·        Register to vote: postmarked by October 13

·        Request absentee ballot: received by October 27

·        Vote by absentee ballot:  postmarked by November 3

You can find the form to register here and the form to request a ballot here.

Happy voting.

*See Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev., 193, 212–15 (2004) (research links pro-social activities like voting to desistence in crime; individuals interviewed about losing the right to vote express a feeling of being an “outsider” because they cannot vote; and empirical studies show some correlation between voting and lower recidivism). And kudos to Assistant Federal Public Defender Carl Folsom for finding this article and using it in a recent (and successful?) motion for early termination of supervised release.

Tuesday, September 22, 2020

Torres v. Madrid: What is a seizure?

Even with the uncertainty and acrimony surrounding the nomination of a new Supreme Court justice, one thing is certain: the first Monday in October is upon us, and with it the 2020 term of the Supreme Court. Below we begin a survey of cert grants.

In Torres v. Madrid, the question is this: what qualifies as a seizure under the Fourth Amendment? To resolve an entrenched circuit split, the Court granted cert to determine whether an unsuccessful attempt to use physical force is a seizure.

The question seems somewhat anodyne, but the facts are not. The New Mexico State police went to arrest the plaintiff as she got into her car early one morning. Not realizing it was the police, she believed she was the victim of a carjacking and tried to escape. Police fired some 13 shots as she drove away, striking her twice in her back. Police claimed she was driving toward them, placing them in danger, but trajectory analysis showed all shots were fired from the sides or at the rear of the vehicles. She managed to drive herself to the hospital, where she was later charged and placed under arrest. She pleaded no contest to three felonies, and then sued police for use of excessive force. 

The lower court dismissed, granting qualified immunity to the police, and the Tenth Circuit affirmed. Specifically, the circuit court found that “a suspect’s continued flight after being shot by police negates a Fourth Amendment claim.” In other words, because she did not voluntarily stop for carjackers or because the police did not completely incapacitate her, law enforcement escapes any liability for shooting her in the back.

Even if Ms. Torres prevails on this seizure issue, she will still have to prove that police conduct violated “clearly established” law at the time of the conduct in 2014 to overcome qualified immunity that protects police from the consequences of their misconduct. With the  increasingly loud calls for qualified immunity reform, it will be interesting to see whether the court allows qualified immunity to continue. Justice Sotomayor said in Kisela v. Hughes that qualified immunity “tells officers that they can shoot first and think later,” and "it tells the public that palpably unreasonable conduct will go unpunished.” In this case, law enforcement amici briefs complain about unduly chilling police conduct. The NAACP LDF brief counters, “Today, far too many police officers continue to draw and use guns as a means of unjustified control of African-Americans, rather than for valid law enforcement reasons. The 10th Circuit’s decision leaves these countless people without recourse.” 

The case, originally set March 2020, will be argued October 14, 2020.


Monday, September 21, 2020

Justice Ruth Bader Ginsburg

Thanks to Lindsay Runnels at Morgan Pilate LLC for this guest blog.

 My heart is broken, and I expect yours is, too. Justice Ruth Bader Ginsburg leaves behind an immeasurable legacy and a void so deep which, in this moment, feels overwhelming. 

 I felt a special connection to her even though we never met. Perhaps it is because her pioneering litigation played a defining role in my ability to become a lawyer at all. Where would I be if the law did not permit me to take out loans to pay for law school? Instead, I went to law school without incident and the trajectory of my life, and I expect the lives of many of you, was changed forever. No American was more instrumental in the fight for gender equality or in the defense of reproductive rights. A visionary, she invented an entirely new area of the law based on gender equality. We know it wasn’t just women who benefited, though.  It was single parents, naval cadets, a long-overdue recognition that love is love, her tireless defense of the right to vote, and her strong voice that reminded those with power that the due process clause applies just the same to the powerless. She was a champion for so many. This loss feels personal because it is.

 The leader of the liberal wing of the court became a cultural icon for a reason, I think. The Notorious RBG was known to us. Her idiosyncrasies, her love of opera, the unlikely—though obviously genuine—friendship with Justice Scalia, and the endearing partnership with Marty—it all felt so known and knowable. And it is the personal that made her a brilliant litigator, a force of righteousness on the bench, and a beloved American hero to a broad coalition of Americans from civil rights lawyers to little girls and everyone in between. She knew the law was personal. She understood that what the Court does matters in the everyday lives of Americans because she had once been unseen and unwelcome. Her ability to see the humanity embedded in the legal questions presented to her made her a justice we could rely on for an open mind and a fair shake.

 We have studied her briefs and the opinions that lifted and inspired us. And when we lost, we poured over her dissents that mapped out the better way. We never searched long to find the words that connected directly with our own lives. And maybe there lies our heartache. We are familiar. Familiar with the sustained and mounting assault on the rights of the vulnerable, the poor, the disenfranchised, the forgotten. We know how much this fragile moment needs her. She held America to its promise that ‘We the People’ means all the people, and at a time when this promise is tethered by a thread, this wound is deep. 

 The dissenter’s hope, she said, is “that they are writing for tomorrow.” She inspired so many to fight like hell, so that is what we will do. We will continue—armed with her legacy—to hold the constitution to its promise of equal justice for all. May her memory be a blessing. And a revolution. 

Wednesday, September 9, 2020

Tenth Circuit Breviaries

Recently at the Tenth Circuit:

Fourth Amendment

May officers stop a car for a civil (as opposed to a criminal) traffic infraction? Is probable cause (as opposed to reasonable suspicion) required to support such a stop? Yes, as to the first question; maybe, as to the second. That's my reading of United States v. Meadows. In Meadows, the Tenth Circuit found nothing special about a Utah equipment-violation statute that would take it out of the running for traffic stops: "Because we find that officers may initiate a traffic stop based on probable cause of a Utah equipment violation—even assuming Utah decriminalized that violation—the traffic stop here was reasonable." (Mr. Meadows did not contest the existence of probable cause.) 

If you have been following recent critiques of the qualified-immunity doctrine as applied in civil suits involving police misconduct, take a look at Judge Lucero's dissent from the denial of rehearing en banc in Cox v. Wilson: "Because the panel decision in this case exponentially expands in this circuit the judicially created doctrine of qualified immunity into an all-purpose, no-default, use-atany-time defense against asserted police misconduct, and because it clearly demonstrates so much of what is wrong with qualified immunity, I requested that my colleagues review the panel decision en banc. From the denial of that request, I respectfully dissent" (joined by Judge Phillips).

Using a taser without adequate warning against a misdemeanant who has ceased actively resisting arrest is unreasonable. Emmett v. Armstrong (reversing grant of qualified immunity in excessive-force suit).


In United States v. Mobley, the Tenth Circuit found an international-parental-kidnapping indictment sufficiently specific where it included all elements of the charged offenses, even if it did not include names, locations, or means.

Brandishing a firearm, 18 U.S.C. § 924(c)

Evidence that an accomplice brandished a firearm was sufficient to sustain this aider/abettor's 924(c) conviction. United States v. Bailey.

Extortionate communications & kidnapping, 18 U.S.C. § 875(b)

"Kidnapping" under Section 875(b) does not encompass international parental kidnapping (and threatening that kind of kidnapping therefore cannot serve as the basis for an extortionate-communications conviction). So said the Tenth Circuit in Mobley. Read Mobley for a history of federal kidnapping statutes from baby Lindbergh to the present.

Judicial recusal, 28 U.S.C. § 455

In Mobley, the Tenth Circuit also held that the sentencing judge's email to the defendant's mother about sentencing did not require recusal.

Sentencing: Use of violence, USSG 2D1.1(d)(2)

In United States v. Zuarte-Suarez, two out of three Tenth Circuit panel judges agreed in an unpublished order and judgment that the district court did not plainly err when it enhanced Ms. Zuarte-Suarez's methamphetamine-trafficking sentence for use-of-violence. Judge Phillips published his dissent "because of the importance of relevant conduct in federal sentencings and the need for rulings explaining how it works. Unwarranted Guidelines enhancements lead to unwarranted prison time." Read both opinions in Zuarte-Suarez for competing views of what evidence and intent are necessary to establish this enhancement.

Restitution, 18 U.S.C. § 3663

No restitution was authorized in Mobley for the father's attorney's fees incurred in an effort to retrieve his children from Russia: "Section 3663 delineates specific authorizations for restitution orders and the one relied on here, subsection (b)(4), is not met by expenses that are merely 'related to' the offense. More is required: the expenses must be 'related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense[.]' § 3663(b)(4) (emphasis added)."

Criminal forfeiture

"[A] district court may base a judgment’s forfeiture amount on the value of the fraudulently obtained merchandise at the time a defendant acquired it. We further hold that a district court may not reduce or eliminate criminal forfeiture because of restitution. Finally, we reaffirm our holding that in personam money judgments representing the amount of unlawful proceeds are appropriate under the criminal forfeiture statutes." United States v. Channon.

Sex-offender registration

The Colorado Sex Offender Registration Act does not violate the Eighth Amendment or substantive due process as applied to the plaintiffs in Millard v. Camper (and the district court erred in holding otherwise).

First Step Act & Fair Sentencing Act

Read United States v. Mannie if you haven't already, and if you are representing anyone on a First Step Act motion or appeal involving the retroactive application of the Fair Sentencing Act. In Mannie, the Tenth Circuit addresses eligibility (it has nothing to do with the guidelines calculation), the right to a hearing (it's discretionary), and the standard of review on appeal (abuse of discretion).