U.S. v. Meacham, 2009 WL 1492548 (5/29/09) (Published) - The 10th could decide whether the d. ct. abused its discretion in refusing to hold an evidentiary hearing regarding a motion for new trial based on a claim of ineffective assistance of counsel, even though ordinarily the 10th prefers to leave ineffective assistance claims to collateral proceedings. The d. ct. did not abuse its discretion because the defendant's assertion that trial counsel had refused to allow him to testify was not supported by an affidavit and was not sufficiently detailed. It was not clear how counsel prevented the defendant from testifying. An evidentiary hearing might show what happened, but making the bare conclusory allegation that counsel "refused to let" the defendant testify was insufficient to entitle the defendant to a hearing.
On the bright side, the d. ct. erred in sentencing for possession of destructive devices in 2 respects: (1) the two-level enhancement for being a prohibited person under § 2K2.1(a)(4)(B) was not warranted because the defendant's misdemeanor conviction for battery was not a misdemeanor crime of domestic violence under § 922(g)(9). The relevant Kansas battery statute allowed for a conviction based solely on "physical contact," which does not amount to the "physical force" required to constitute a § 922(g)(9) crime of violence, as held in U.S. v. Hays, 526 F.3d 678 (10th Cir. 2008). (2) The d. ct. mistakenly counted the defendant's firearms, in addition to the destructive devices, in finding there were 8 or more firearms involved under § 2K2.1(b). Firearms cannot be counted unless the defendant was prohibited from possessing them, which, as explained under (1), he was not. Most importantly, the 10th found the errors warranted reversal under the plain error standard, finding a reasonable probability the errors affected the sentence, since the sentence imposed, while a downward departure from the incorrect guideline range, was above the high end of the correct range. The likelihood of a lower sentence was enough to satisfy the third and fourth prongs of the plain error test.
U.S. v. Warren, 2009 WL 1492546 (5/29/09) (Published) - A police officer's search of a parolee's home without probable cause or a warrant was okay because the police officer acted under the direction of a parole officer [who coincidentally happened to be his wife]. The defendant was incorrect when he claimed Colorado law precluded police officers from assisting in parole searches. Troublingly, although the 10th did not rely on the doctrine, it took some time to explain the "totality of circumstances" basis for a police search of parolees, even when parole officers are not involved, given parolees' lower expectations of privacy.
U.S. v. Chavez-Quintana, 2009 WL 1396808 (5/20/09) (unpub'd) - Excellent outcome based on U.S. v. Flores-Figueroa, 129 S. Ct. 1886 (2009). The government did not present sufficient proof that the defendant knew the social security number he fraudulently used belonged to another person. That, as the government argued, it might be difficult to prove that matter, is irrelevant. It didn't do it. End of story. 18 U.S.C. § 1028A(a)(1) conviction reversed.
U.S. v. Collamore, 2009 WL 1385938 (5/19/09) (unpub'd) - The postal employee defendant did not have a reasonable expectation of privacy in his car parked in a restricted, nonpublic area of Postal Service property because the posted Postal Service policy stated that vehicles and their contents brought into the area were subject to inspection. Also, the defendant did not object to the scope of the search while it was being conducted in his presence.
U.S. v. Tapia-Cortez, 2009 WL 1385939 (5/19/09) (unpub'd) - the 10th rejects the contention that the presumption of reasonableness does not apply to a within-reentry-guideline-range sentence because the reentry guidelines are not based on empirical data and experience. Without addressing how arbitrary those guidelines are, the 10th asserts the presumption applies to promote uniformity, which interest is served no matter how irrational the particular guideline is.
U.S. v. Banuelos-Alfaro, 2009 WL 1395457 (5/20/09) (unpub'd) - The 10th suggests that to overcome the presumption of reasonableness of a guideline-range sentence, a defendant should provide empirical data to support his claim that the criminal history category overstates the seriousness of his criminal record.
Cook v. McKune, 2009 WL 1385943 (5/19/09) (unpub'd) - It was not contrary to clearly established S. Ct. law for the Kansas court to hold that a juror learning the defendant had been convicted at his first trial was not inherently prejudicial.