Case Summaries and Commentary by Federal Defenders of the Tenth Circuit

Williams v. Jones, 2009 WL 3284847 (10/14/09) (Published) - Good news. The 10th denies rehearing en banc 7-4 where the panel had held a defendant should get relief that puts him back in the position where he would have been had his counsel not unethically threatened to withdraw if he took the plea offer. The dissent (Judges Gorsuch, Tacha, O'Brien and Tymkovich) would have held that the subsequent fair trial rendered harmless any ineffective assistance of counsel and that no S. Ct. case says bad advice to reject a plea offer is a violation of the 6th Amendment. The concurrence authored by Judge Kelly and joined by Judges Henry and Holmes says the obvious flip-side of Hill v. Lockhart is that bad advice to reject a plea offer can constitute ineffective assistance. They also contend that the remedy to the violation must be tailored to the injury, requiring putting the defendant back where he would have been if he had accepted the plea offer.

U.S. v. Challoner, 2009 WL 3286128 (10/14/09) (Published) - The 10th gives a cramped reading of what constitutes ineffective assistance of appellate counsel. Counsel is deficient only if counsel omits an issue that is "obvious." It can't be just a winner. It has to be a "dead-bang winner." In this case, the double jeopardy argument that you can't be convicted of § 844(h) and § 924(c) based on the same underlying offense "may well be nonfriviolous" but it requires a "non-obvious" extension of current law. So, no dice.

Weatherford v. Taylor, 2009 WL 3164727 (10/5/09) (unpub'd) - A decision in favor of a prisoner [or rather a prisoner's estate] in a § 1983 case. The prisoner alleged enough to indicate the prisoner's symptoms were such that the jail official knew the risk to the prisoner and recklessly chose to disregard it. The prisoner loudly complained about his severe chest pain and other inmates tried to get help for him and the official just checked on him periodically to see if he was still alive, but didn't seek medical help for him. The prisoner eventually died of a heart attack.

Bloom v. McPherson, 2009 WL 3166959 (10/5/09) (unpub'd) - And yet another decision in favor of a prisoner in a § 1983 case. The prisoner stated enough to get relief for cruel and unusual punishment when he alleged nurses cleared him for kitchen work, despite his medical disability [unspecified] that precluded such work.

U.S. v. Villa, 2009 WL 3182993 (10/6/09) (unpub'd) - The drug dog was reliable enough to establish probable cause, even though 30 of the 60 times the dog alerted in the past, the officer found no drugs. There was still PC because the officer also testified that 99% of the times there were no drugs the subject of the search admitted drugs had in the past been kept where the dog alerted [note: 99% of 30 is 29 2/3 out of 30; one of the subjects must have almost admitted drugs were there]. In any event, what matters most with respect to the dog's reliability is its training, not its actual performance. In other words, if you've gone to a good law school, it doesn't matter much how you actually represent your clients. There was no implication of the 4th Amendment when the dog sniffed a car in a public place in front of the sheriff's office. The d. ct. did not err in refusing to order records of the dog's reliability. Enough information was learned on cross.

U.S. v. Archuleta, 2009 WL 3182995 (10/6/09) (unpub'd) - From a positive perspective, some upbeat news in that, although defense counsel told the court there were no objections to the PSR, counsel had only forfeited, not waived, the appellate argument that the carjacking enhancement did not apply. The 10th ruled there was no error because taking car keys, as opposed to the car itself, from the person, constituted carjacking for the § 2B3.1(b)(5) enhancement.

U.S. v. Cook, 2009 WL 3182991 (10/6/09) (unpub'd) - This is a case where some of our upward-variance-loving judges can get their ideas. The 10th affirms an upward variance from 37-46 months to 84 months for having a bad criminal history record, a mere 24 points..

Lucero-Carrera v. Holder, 2009 WL 3287541 (10/14/09) (unpub'd) - The 10th indicates a willingness to give an expansive meaning to when an offense is "related to forgery" to constitute an aggravated felony. The 10th notes "relating to" has been given an expansive meaning. But, in any event the Colorado forgery in this case is close to the commonly understood meaning of forgery---falsely making, completing, altering or uttering a written instrument. This is different from using a genuine document, which the 9th Circuit has held is not a forgery.

U.S. v. Riggans, 2009 WL 3166955 (10/5/09) (unpub'd) - Unsurprising, but just something that bothers me. The 10th notes that a sentence shorter than the stat max the defendant got "may have been sufficient but not greater than necessary to satisfy the goals of sentencing," but the d.ct. had a wide range of discretion to pick the sentence it did. In other words, the d. ct. has the discretion to violate § 3553(a)'s mandate to impose a sentence as low as possible to meet the sentencing goals.

Redmon v. Wiley, 2009 WL 3262020 (10/13/09) (unpub'd) - The BOP's decision to preclude the prisoner from early release based on his participation in the Residential Drug Abuse Program ("RDAP") because he had a prior aggravated battery conviction was okay. The BOP regs say a person with an aggravated assault can't get early RDAP release. The prisoner's aggravated battery was close enough, upon reference to the FBI's Uniform Crime Reports definition that BOP uses, to be considered an aggravated assault. He didn't have to have used a weapon to be disqualified from RDAP.

U.S. v. Gibson, 2009 WL 3193527 (10/7/09) (unpub'd) - The defendant had no standing to assert a state's rights under the 10th Amendment in his challenge to SORNA.