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TCL > April 2013 Issue > Summaries of Selected Opinions

April 2013       Vol. 42, No. 4       Page  103
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: (click on "Opinions/Rules/Statutes").

No. 11-2140. United States v. Caiba-Antele. 01/23/2013. D.N.M. Judge Seymour. Guideline Sentencing—Use of Child Witness Statements to Police Concerning Unrelated Sex Offenses—Sufficient Indicia of Reliability.

Defendant pleaded guilty to reentry of a removed undocumented immigrant. He initially entered into a Rule 11(c)(1)(C) plea agreement that set the parameters of his sentence as part of the agreement. At sentencing, however, the district court noted that defendant had been charged in New Mexico state court with five counts of criminal sexual penetration of a child under age 13, and one count of criminal sexual penetration of an adult by force or coercion. These charges had been dropped to spare the alleged victims the psychological harm they would suffer by testifying at trial. The district court therefore rejected the proposed plea agreement and instructed the United States to provide more information about the dropped charges. Defendant then pleaded guilty without a plea agreement.

A revised pre-sentence report detailing the facts underlying the dropped state charges was prepared. The district court held an evidentiary hearing at which detectives and a state prosecutor who had been involved in the sex abuse charges against defendant testified concerning their interviews with the children, and transcripts of these interviews were presented. The district court found these witnesses credible, and concluded that defendant had more likely than not committed the acts of sexual abuse and rape of which he had been accused. Had defendant been convicted of these offenses, the district court concluded, his Sentencing Guidelines sentencing range would have been forty-six to fifty-seven months, in contrast to the range of eight to fourteen months. After considering the statutory sentencing factors and defendant’s other misconduct, including immigration violations and traffic offenses, the district court varied upward from the advisory Guidelines sentencing range and sentenced defendant to fifty-one months of imprisonment, to be followed by a three-year term of supervised release.

The Tenth Circuit rejected defendant’s argument that the sentence violated his Sixth Amendment rights because it was significantly higher than the recommended range and was based on facts found by the judge rather than those determined by a jury or admitted by defendant. Such an argument was foreclosed by Circuit precedent. The Circuit also rejected defendant’s argument that the hearsay evidence presented at sentencing lacked a sufficient indicia of reliability to be used against him, particularly given the absence of physical evidence. The Circuit held that the testimony of the law enforcement agents, including their statements supporting the victims’ credibility, exhibited the necessary indicia of reliability. The Circuit affirmed defendant’s sentence.

No. 11-1441. United States v. Ruby. 01/29/2013. D.Colo. Judge Tymkovich. Revocation of Supervised Release—Use of Hearsay Testimony at Sentencing.

Defendant had completed his prison sentence for being a felon in possession of a firearm and was serving a term of supervised release. During his term of supervised release, he was convicted in state court of third-degree assault. The district court revoked his supervised release and sentenced him to eighteen months’ imprisonment, to be followed by twelve months of supervised release.

The assault charge resulted from an automobile accident. Defendant was traveling in a car with three other individuals that crashed into a tree. After the crash, defendant and his girlfriend got out of the car. There was some shouting and physical contact between them. A passerby testified she saw what appeared to be defendant yelling at his girlfriend and she saw defendant throw her twice to the ground. The girlfriend testified to a more brutal assault by defendant and assigned responsibility for the crash to him. At sentencing, the district court considered the Supervised Release Violation Report, which was based on the offense report completed by the police department that narrated the girlfriend’s version of events. Her version was supported by statements from other witnesses in the car. She described defendant punching her both before and after the crash. Defendant objected to these statements and provided a narrative that cast his actions in a more innocent light and blamed his girlfriend for the accident. The district court, however, found this narrative incredible and credited the version contained in the Violation Report.

On appeal, defendant argued that the district court erred in considering hearsay testimony from the Violation Report at his revocation hearing without making a finding that the interests of justice did not require the witnesses to appear to be cross-examined, and that as a result, it based his sentence on unreliable hearsay testimony. Applying plain error review, the Tenth Circuit disagreed. First, defendant had stipulated to having violated his supervised release conditions, so the hearsay evidence was relevant only to his sentencing. Although a district court must make an "interests of justice" determination before considering hearsay evidence during the guilt phase of a revocation hearing, this limitation does not extend to the sentencing phase of a revocation hearing. Second, the hearsay statements on which the district court relied showed sufficient indicia of reliability, including corroboration by relatively neutral witnesses. Defendant did not testify at the sentencing hearing to a contrary set of facts or present any witnesses who contradicted his girlfriend’s version. The district court also was permitted to rely on evidence of a previous assault on the girlfriend to help establish sufficient reliability to permit the use of hearsay evidence at sentencing. The Circuit affirmed the district court’s judgment.

No. 09-4216. Burnett v. Mortgage Electronic Registration Systems, Inc. 02/01/2013. D.Utah. Judge Seymour. Nonjudicial Foreclosure—Fair Debt Collection Practices Act—Successor Trustee—Failure to State a Claim.

To finance the purchase of her home, plaintiff obtained a loan, signed a promissory note, and secured it with a trust deed to the home. Defendant Mortgage Electronic Registration Systems (MERS) was named in the trust deed as the beneficiary nominee for the lender and the lender’s successors. The trust deed also allowed MERS to foreclose on and sell the home if plaintiff defaulted on her payment obligations.

Plaintiff defaulted and MERS appointed defendant Woodall as successor trustee. Woodall instituted non-judicial foreclosure proceedings, and ultimately effected the sale of plaintiff’s home. Plaintiff sued, asserting violations of the Fair Debt Collection Practices Act (FDCPA) and Utah state law. The district court dismissed her complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). She appealed.

The Tenth Circuit first addressed plaintiff’s claim that defendants violated the FDCPA by initiating a non-judicial foreclosure without having a right to possess the property. The FDCPA prohibits a "debt collector" from taking property by non-judicial action, absent an enforceable security interest. The Circuit rejected this claim. The trust deed, which plaintiff signed, granted MERS the right to foreclose and sell the property, and also to appoint a successor trustee.

The Circuit also rejected plaintiff’s argument that MERS was legally required to obtain express authorization from the successor lenders who acquired the debt from the original lender. Because the trust deed explicitly allowed MERS to foreclose, Woodall also was so authorized. He had a present right to possession of the property; therefore, he did not violate the FDCPA by initiating foreclosure proceedings.

Next, the Circuit rejected plaintiff’s allegations that defendants failed to send her the required notices, finding that the allegations were as too conclusory, vague, and confusing to state a claim. The Circuit also rejected plaintiffs’ claims that defendants violated Utah’s consumer protection laws. The district court’s dismissal order was affirmed.

No. 12-8014. Schanzenbach v. Town of LaBarge. 02/07/2013. D.Wyo. Judge Hartz. Takings Claim—Ripeness—Just Compensation—Variance Request—Procedural Due Process—Protected Property Interest—National Manufactured Housing Construction and Safety Standards Act.

Plaintiff wanted to install mobile manufactured homes on properties he owned in the town of LaBarge, Wyoming. After initially granting him a building permit, the town council enacted an ordinance banning the installation of any manufactured home older than ten years (Ten-Year Rule). Plaintiff’s homes were older than ten years. The town council denied his applications for a building permit, a variance, and a conditional-use permit to install the homes. Plaintiff sued the town of LaBarge and its council, asserting constitutional claims and a claim that the Ten-Year Rule was preempted by the National Manufactured Housing Construction and Safety Standards Act. The district court granted summary judgment to defendants, and plaintiff appealed.

The Tenth Circuit held that the takings claim was not ripe. A takings claim is not just the taking of property; it proscribes taking without just compensation. Ripeness prevents courts, through avoidance of premature adjudication, from entangling themselves in abstract agreements. Similar to standing, ripeness focuses on whether the harm has matured sufficiently to warrant judicial intervention. Two conditions must be satisfied: (1) the governmental agency must have reached a final decision regarding the application of the regulations to the property at issue (a takings claim may be dismissed as unripe if the plaintiff has not requested a variance from the challenged property restriction); and (2) the plaintiff must have sought just compensation through state procedures and been denied relief. Plaintiff satisfied the first condition but failed to meet the second, because Wyoming state law permits an inverse-condemnation action in state court against a defendant who has taken or damaged one’s land.

Plaintiff’s procedural due process claim was based on the town council’s first granting a permit, then two weeks later revoking it without giving notice. Noting that this claim does not depend on whether revocation of the permit constituted a compensable taking, the Circuit held that this claim was ripe. The Fourteenth Amendment forbids the government from depriving a person of his or her property without due process of law; however, the basis of such a claim must be a constitutionally protected property interest that was injured or revoked without procedural protections. Plaintiff did not have a protected property interest in the building permit; thus, his due-process claim was properly dismissed. Finally, the Circuit held that the Ten-Year Rule was not preempted by the Manufactured Housing Act. The district court’s judgment was affirmed.

No. 12-3005. United States v. Battle. 02/12/2013. D.Kan. Judge Lucero. Resentencing Under Amended Crack Cocaine Guidelines—District Court’s Ability to Recalculate Drug Quantities.

Defendant was convicted of conspiracy with intent to distribute 50 or more grams of cocaine base. At his original 1998 sentencing, the district court found that he was responsible for at least 1.5 kilograms of crack cocaine and assigned him a Sentencing Guidelines base sentencing offense level of 38. At the time of his sentencing, 1.5 or more kilograms of crack incurred the highest Guideline base offense level. The district court noted that although defendant’s counsel had done its best to challenge the drug quantities attributable to him, it could not attribute less than 1.5 kilograms without doing serious violence to the facts in the case. The court then assigned defendant a total offense level of 42 and a criminal history category of II, and sentenced him to 360 months’ imprisonment.

In 2011, defendant filed an unopposed motion under 18 USC § 3582(c)(2) to reduce his sentence based on an amendment to the crack cocaine Sentencing Guidelines. Under the amended Guidelines, a finding that he was responsible for 1.5 kilograms of crack would result in a base offense level of 34 and a Guideline sentencing range of 262 to 327 months. The district court, however, denied him a revised sentence based on this range, reasoning that its statements at the original sentencing that he was responsible for "well in excess of 1.5 kilograms" and had engaged in a conspiracy to distribute several kilograms permitted it to make an additional quantity calculation. Looking to portions of the pre-sentence report that attributed 1.6 kilograms of crack to two of defendant’s co-conspirators, and 1.8 kilograms to another co-conspirator, the district court combined these figures and attributed 3.4 kilograms of crack to defendant. Based on this figure, it assigned him a revised base level of 36, and sentenced him to 324 months.

On appeal, the Tenth Circuit noted the general rule that § 3582(c)(2) proceedings do not represent a full resentencing of the defendant. Nevertheless, a previous sentencing finding that "at least" 1.5 kilograms of crack were attributable to defendant did not bind the district court to a finding of exactly 1.5 kilograms in a subsequent § 3582(c)(2) proceeding in which it became necessary to determine the exact quantity to be attributed to him. In such a case, the district court may look to its previous factual findings to make supplemental calculations of drug quantity. The Circuit found it unnecessary to determine whether a district court may make new findings of fact in determining the amended Sentencing Guidelines range. In this case, the district court’s supplemental drug quantity calculations, assigning 3.4 kilograms of crack to defendant, were unsupported by the facts it found at his original sentencing. In particular, the pre-sentence report had not attributed the entire amounts of crack to defendant that some of his co-conspirators had admitted to possessing. Moreover, there was some overlap between the quantities possessed by the co-conspirators. The Circuit reversed and remanded the case to the district court for further proceedings.

No. 12-2041. Smith v. McCord. 02/15/2013. D.N.M. Judge Gorsuch. Legal Malpractice—Excessive Force—Arrest—Failure to Address Qualified Immunity Defense—Summary Judgment.

Plaintiff, aged 75, was in his home when he saw several police cars and emergency vehicles in front of his house. He went out and asked an officer whether something was wrong. The officer responded by telling plaintiff to go back inside. Plaintiff mumbled a remark about not being able to find out what was happening in his front yard. Plaintiff alleged that the officer then told him to put his hands on the top of his car and that he was under arrest. Because the car was hot, plaintiff jerked his hands away, and the officer kicked his legs out from under him. While on the ground, two other officers allegedly placed their knees on plaintiff’s back and legs, injuring him further.

Plaintiff filed suit against the officers under 42 USC § 1983, alleging that they used excessive force in the arrest. The officers claimed they were entitled to qualified immunity, but plaintiff’s lawyer did not address this defense. Once raised, qualified immunity requires the plaintiff to show that the defendants violated a constitutional right and that the right was clearly established. Consequently, the district court granted summary judgment in favor of the officers.

The Tenth Circuit affirmed, because plaintiff’s lawyer had not made the required showing on qualified immunity. Parties are usually bound by their lawyers’ actions or inactions. The Circuit noted that other remedies may include administrative sanctions against the lawyer, as well as malpractice claims.

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