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Thursday, January 06, 2005

United States v. Munro,
No. 04-4051, ___ F.3d ___ (10th Cir. Jan. 5, 2005)(Utah).

Appeal of conviction for carrying firearm during commission of crime violence in violation of 18 U.S.C. § 924(c).

HELD: Use of computer to attempt to persuade minor to engage in illegal sexual acts in violation of 18 U.S.C. § 2422(b) is crime of violence. Therefore, defendant who carried firearm while attempting to meet with minor with whom he arranged sexual encounter via Internet chat room was properly convicted of carrying firearm during commission of crime violence in violation of 18 U.S.C. § 924(c).

Read the opinion here.
russwheeler 11:00 AM - [Link]
United States v. Wood,
No. 03-5188, 386 F.3d 961 (10th Cir. Oct. 18, 2004)(N.D. Oklahoma).

Appeal of sentence for burglary in Indian Country in violation of Indian Major Crimes Act at 18 U.S.C. § 1153.

HELD: Indian Major Crimes Act assimilates only state law definition and punishment for crime (i.e., second degree burglary). It does not assimilate entirety of state sentencing laws. Thus, district court properly declined to suspend defendant’s sentence as would have been permitted under Oklahoma sentencing law and correctly sentenced defendant under federal sentencing guidelines with Oklahoma law setting maximum and minimum terms of imprisonment.

Read the opinion here
russwheeler 10:45 AM - [Link]
United States v. Rodriguez-Gonzales,
No. 03-4254, 386 F.3d 951 (10th Cir. Sep. 2, 2004)(Utah).

Appeal of guilty plea and resulting conviction for possession of methamphetamine with intent to distribute and possession of firearm by unlawful user of controlled substance in violation of 21 U.S.C. § 8441(a)(1) and 18 U.S.C. § 922(g)(3).

HELD: Where defendant personally advised court that while he desired to plead guilty, he also desired to appeal court’s denial of motion to suppress, defendant was materially misinformed by his attorney’s open-court advice that he could obtain appellate review of suppression issue in collateral proceeding under 28 U.S.C. § 2255. Because defendant was materially misinformed as to consequences of plea (i.e., right to appellate review), guilty plea was not knowing or voluntary.

NOTE: This case was originally unpublished. It was published on motion of defendant-appellant.

Read the opinion here.
russwheeler 10:43 AM - [Link]
United States v. Esparza-Mendoza,
No. 03-4218, ___ F.3d ___ (10th Cir. Oct. 14, 2004)(Utah).

Appeal of district court’s denial of defendant’s motion to suppress evidence supporting conviction for illegal reentry to United States after prior deportation in violation of 8 U.S.C. § 1326.

HELD: Where defendant voluntarily spoke with police officer on porch of girlfriend’s house, officer’s direction to defendant to produce identification did not transform encounter into detention or seizure. Evidence did not indicate that officer used commanding or threatening manner, displayed weapon, touched defendant, or that officer would have arrested defendant if he again refused to produce identification or would have stopped him from simply going back into residence. Thus, reasonable person would have felt free to leave in lieu of responding to direction for identification. Accordingly, no detention or seizure for Fourth Amendment purposes.


(1) The district court in this case found that after the defendant refused to identify himself upon the officer’s initial request, the officer’s additional step of then directing him to answer constituted a detention for Fourth Amendment purposes. However, while the district court found that a Fourth Amendment detention or seizure occurred and the encounter was therefore no longer consensual, it nonetheless reached the novel conclusion that previously deported felons cannot assert Fourth Amendment claims. See United States v. Esparza-Mendoza, 265 F.Supp. 2d 1254, 1271 (D. Utah 2003)(explaining that previously deported alien felons do not have a “sufficient connection to this country” and therefore “stand outside ‘the People’ covered by the Fourth Amendment”). Unlike the district court, the Tenth Circuit found that the encounter remained consensual even after the officer demanded that the defendant identify himself. The Tenth Circuit therefore declined to reach the district court’s first-impression holding that previously deported felons cannot assert Fourth Amendment claims because they are not part of the “People” protected by the Fourth Amendment.

(2) In its analysis of the totality of the circumstances surrounding the front-porch encounter between the defendant and police officer, the Tenth Circuit relied in part on its decision in United States v. Abdenbi, 361 F.3d 1282, 1286, 1291-92 (10th Cir. 2004), where the court held in what might have been an even closer call that a defendant’s responses to questioning were voluntary in a situation where three officers gained entry into his apartment after awakening one roommate at 6:15 a.m., and then after finding defendant asleep in bed, proceeded to question him in bedroom).

Read the opinion here.
russwheeler 10:41 AM - [Link]
... Thursday, December 30, 2004
United States v. Markey,
No. 04-2044, ___ F.3d ___ (10th Cir. Dec. 29, 2004)(New Mexico).

Appeal of conviction for being felon in possession of explosives in violation of 18 U.S.C. § 842(i)(1).

HELD: Government need not show that device is actually able to explode in order to prove defendant knowingly possessed explosive in violation of 18 U.S.C. § 842(i)(1). Government need only prove that defendant knew he possessed dynamite or other chemical compound, mixture, or device that was primarily designed to function by explosion.

Read the opinionhere.
russwheeler 10:49 AM - [Link]
... Thursday, December 23, 2004
United States v. E.,
No. 03-2243, ___ F.3d ___ (10th Cir. Dec. 21, 2004)(New Mexico).

Juvenile’s appeal of conviction for fleeing an immigration checkpoint in excess of legal speed limit in violation of 18 U.S.C. § 758.

HELD: Stop sign does not create "speed limit." Therefore, failure to stop at stop sign at immigration checkpoint does not constitute operating a vehicle "in excess of the legal speed limit" in violation of statute making it crime to flee or evade immigration checkpoint in excess of legal speed limit.

Read the opinionhere.
russwheeler 2:23 PM - [Link]
United States v. Sanchez-Cruz,
No. 04-2008, ___ F.3d ___ (10th Cir. Dec. 21, 2004)(New Mexico).

Alien’s appeal of sentence for illegal reentry to United States in violation of 8 U.S.C. § 1326(a).


(1) Where judge incorrectly advised defendant at plea colloquy that he faced maximum sentence of twenty-four months, but defendant never argued at sentencing that if he had been correctly advised he faced 41-51 month sentence he would not have pled guilty, defendant failed to meet burden under "plain error" test of showing to reasonable probability that, but for judge’s erroneous advice, he would not have pled guilty and instead would have gone to trial.

(2) New rules concerning criminal prosecutions such as that announced by Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004), apply to cases pending on direct appeal. However, as with any criminal appeal, Blakely issue must be properly raised. Blakely claim is not properly raised on appeal when argued for first time in reply brief or in supplemental authorities letter under Rule 28(j) of the Federal Rules of Appellate Procedure. When new rule of law such as Blakely is decided after appellant has filed opening brief, appellant may seek permission to file supplemental brief addressing applicability of new rule to his appeal. Thus, in instance such as this, where defendant did not raise Blakely challenge to sentence in district court, and where defendant further failed to raise issue until reply brief on appeal, alleged Blakely error, if any, is reviewed only for plain error.

(3) Even assuming Blakely applies to federal sentencing guidelines (i.e., U.S.S.G. § 2L1.2(b)), application of sentence enhancement for illegal reentry after conviction for aggravated felony is constitutional. Rule stated in Blakely (i.e., facts necessary to increase sentence must be admitted or proved to jury) does not apply to sentence increases based on prior conviction. Blakely, does not overrule prior conviction exception to prohibition against sentence enhancements based on judicial fact-finding as articulated by Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and reaffirmed by Apprendi v. New Jersey, 530 U.S. 466, 489 (2000).

Read the opinionhere.
russwheeler 1:16 PM - [Link]
United States v. Hernandez-Baide,
No. 04-3101, ___ F.3d ___ (10th Cir. Dec. 20, 2004)((Kansas).

Appeal of sentence by deported alien for illegal reentry in violation of 18 U.S.C. § 1326(a) and (b)(2).

HELD: Because offense of illegal reentry is strict liability regulatory crime, not specific intent crime, an alien’s intent, motivation, or reason for illegally reentering country cannot serve as a basis for a downward departure at sentencing. Thus, fact that alien reentered United States without authorization after prior deportation in order to participate in judicial proceeding to prevent termination of parental rights over daughter, could not be used to invoke "lesser harms" downward departure provision of § 5K2.11 of the United States Sentencing Guidelines.

NOTE: Referring to the requirements of the Feeney Amendment to the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003, that all downward departures be reported to Congress, the district court judge in this case stated that:

[T]here was a time when I felt I was a little bit more free to do that [depart downward]; but now, as I understand it, if I grant a departure like this, it’s going to get reported. And I’m not worried about my job, but I think to be consistent with the law, I have to be able to justify it . . .

The Tenth Circuit used the judge’s statement as an "opportunity" to clarify the that the judge-reporting requirements of the Feeney Amendment, "as yet, have no effective section, are contingent on certain acts of the Attorney General, and appear to have been indefinitely suspended."

Read the opinionhere.

russwheeler 9:03 AM - [Link]
... Monday, December 20, 2004
United States v. Rogers,
No. 04-4048, ___ F.3d ___ (10th Cir. Dec. 17, 2004 Utah).

Government appeal of district court order suppressing firearm evidence and statements made by defendant under Miranda v. Arizona, 384 U.S. 436 (1966), in case involving unlawful possession of firearm in violation of 18 U.S.C. § 922(g)(8) and (9).

HELD: District court erroneously suppressed evidence and statements made by defendant by improperly relying on subjective impressions of defendant and police officers to determine whether defendant was in custody at time he made statements concerning presence and location of firearms in his home. Under totality of circumstances, where defendant voluntarily invited police into home as they assisted his girlfriend in removing belongings under civil protective order, defendant's freedom of action was not limited to degree associated with formal arrest. Because limitation on defendant's freedom of action did not rise to level of formal arrest, defendant was not in custody for Miranda purposes. Therefore, firearms and statements were not subject to suppression under Miranda.

Read the opinion here.

russwheeler 3:39 PM - [Link]
... Friday, December 10, 2004
United States v. Jones,
No. 03-3377, ___ F.3d ___(10th Cir. Dec. 8, 2004)(Kansas).

Appeal of conviction for possession of ammunition by convicted felon in violation of 18 U.S.C. 922(g).

HELD: Under Kansas statute, ten year prohibition against possession of firearm is triggered by conviction for a specified crime (i.e., aggravated assault on law enforcement officer) or release from imprisonment for such crime (absent expungement or pardon). Thus, where defendant had been convicted of aggravated assault on law enforcement officer in 1992 , but served no prison time, his right to possess firearm had not yet been restored at time he was found in possession of ammunition in 2000. Accordingly, 18 U.S.C. 922(g)(1)'s exception, permitting convicted felon to possess firearm or ammunition if his civil rights were restored, did not apply to defendant.

Read the opinion here.
russwheeler 4:59 PM - [Link]
United States v. Sandoval,
No. 03-4161, ___ F.3d ___ (10th Cir. Dec. 8, 2004)(Utah).

Appeal of district court's denial of defendant's motion to withdraw guilty plea to crime of illegal reentry of removed alien in violation of 8 U.S.C. 1326.

HELD: Because defendant's collateral attack on his prior deportation fails, he does not present "fair and just" reason for withdrawal of guilty plea. Therefore, district court did not abuse discretion in denying motion to withdraw plea.

Read the opinion here.

russwheeler 4:56 PM - [Link]

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