Unpublished Decisions October 17, 2012

U.S. v. Maschino, 2012 WL 4801247 (10/10/12) (Okl.) (unpub'd) - The d. ct. reversibly erred in its sentencing in 2 respects. First, the d.c t. added incorrectly. It said it was upwardly departing 12 to 14 months because the defendant had as many criminal history points as someone in an imaginary criminal history category VIII, 2 categories up from category VI,and it figured each extra category was worth 6 or 7 extra months of prison time. But the d. ct. imposed a 60-month term when the top of the guideline range was 41 months, You do the math. [It's much harder when you do it with Roman numerals]. Second, § 4A1.3(a)(4)(A) calls for increasing the offense level, not the criminal history category, when the defendant deserves to be in a criminal history category higher than VI.

U.S. v. Harrington, 2012 WL 4786764 (10/9/12) (Col.) (unpub'd) - In the course of upholding the imposition of a sentence consecutive to a state sentence, the 10th says something possibly helpful in the relevant conduct context. It opines that the defendant's attempted murder with a firearm that he burglarized from a pawn shop was not relevant conduct with respect to the federal charge of possession of the many firearms that he burglarized from the pawn shop. The 10th also observes that § 3553(a)(6)'s anti-unwarranted-disparity provision does not refer to disparities between the sentence the defendant received and a hypothetical sentence he might have received had he been charged differently. [What about comparison to a hypothetical person in similar circumstances who was not the defendant?]

U.S. v. Sullivan, 2012 WL 4801107 (10/10/12) (Okl.) (unpub'd) - The government did not waive its right to enforce the appeal waiver when it acquiesced in a stay of the d. ct.'s sentence pending appeal. The defendant waived his right to appeal the sex-offender probation conditions. The defendant waived the right to appeal "any sentence permitted by statute." Probation conditions are parts of a sentence. The conditions were within the court's statutory power to impose. It didn't matter that the defendant wasn't aware of the possibility of receiving sex offender conditions, since he was convicted of a drug offense. At the plea hearing the defendant was told probation conditions could be imposed. The 10th emphasizes the defendant's waiver did not place him completely at the d. ct.'s mercy. The d.ct. could not have imposed a sentence unauthorized by statute or that constituted cruel and unusual punishment. For example, if the defendant did not have a prior sex offender conviction, the defendant would have an argument. So, there's fodder for arguments against an appeal waiver in the future.

U.S. v. Alvarado, 2012 WL 4801104 (10/10/12) (Ut.) (unpub'd) - The 10th finds no mistrial was warranted, despite the admission of irrelevant evidence of the defendant physically abusing his girlfriend. The defendant was charged with encouraging and inducing his girlfriend to enter the U.S. illegally and causing her bodily injury during and relation to that offense. The d. ct. sua sponte ruled that the abuse the girlfriend testified about was not related to her illegal entry, and so removed the bodily injury issue from the jury. The d.ct. did not abuse its discretion in denying the motion for a mistrial because: (1) the government did not act in bad faith; (2) the d. ct. and the prosecutor told the jury to disregard the abuse evidence ["ignore the elephant in the room"]; and (3) the evidence was strong against the defendant. Troublingly, the 10th suggests Maestas v. U.S.. 341 F.2d 493 (10th Cir. 1965) [reversal, despite curative jury instructions, where a witness mentioned the defendant had been in prison], might not be good law any more in light of the more recently announced reversal standard described in U.S. v. Lamy, 521 F.3d 1257 (10th Cir. 2008). [But older cases are the superior precedent, right?]. There was no plain-error violation of the Double Jeopardy Clause when the court allowed the trial to go on after acquitting the defendant of the charge in the indictment, which included the bodily-injury allegation. There was only one applicable circuit case out there and the 5th Circuit has ruled the "injury factor" is an element of the offense, not a sentencing factor. So the defendant was legitimately convicted of a lesser-included offense.

Morton v. Progressive Northern Insurance Company, 2012 WL 4801110 (10/10/12) (Okl.) (unpub'd) - The d. ct. did not commit a clear abuse of discretion when it granted an extension of time to appeal where the plaintiff's attorney's wife, who was his law firm's sole secretary and paralegal, was the victim of a battery and the injuries and medical treatment distracted the attorney and negatively affected his firm.

U.S. v. Caldwell, 2012 WL 4820730 (10/11/12) (Col.) (unpub'd) - The pro se defendant's notice of appeal was late, warranting dismissal of the appeal. It didn't matter that the government's motion to dismiss for a tardy notice of appeal was also filed late. The pro se defendant didn't raise that issue until his reply brief.

U.S. v. Williams, 2012 WL 4801241 (10/10/12) (Kan.) (unpub'd) - That the petitioner had low cognitive function was not enough to trigger equitable tolling of the habeas statute of limitations. He needed an adjudication of incompetence or institutionalization for mental incapacity for tolling to apply.

Wishneski v. Dona Ana County, 2012 WL 4801338 (10/10/12) (N.M.) (unpub'd) - The plaintiff did not establish the sort of substantial risk of serious harm necessary to establish an 8th Amendment claim where he contended the Dona Ana County Detention Center guards' repeated use of extremely loud buzzers for count caused the plaintiff emotional distress and mental anguish.