|The Colorado Lawyer|
Vol. 42, No. 10 [Page 121]
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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: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 12-2129. United States v. Orona, Jr. 07/31/2013. D.N.M. Judge Lucero. Armed Career Criminal Act—Use of Juvenile Conviction as Predicate Offense.
A jury convicted defendant of being a felon in possession of a firearm. The district court sentenced him to an extended sentence under the Armed Career Criminal Act (ACCA), finding that he had three prior convictions for either a crime of violence or a controlled substance offense. One of the three prior offenses was a juvenile adjudication in which defendant admitted to aggravated assault and shooting at or from a motor vehicle. He was arrested on the charges when he was 17 years old and was convicted. He was committed to the custody of the Children, Youth & Families Department for two years. The district court rejected his argument that it was unconstitutional to rely on a juvenile adjudication as a predicate offense under the ACCA, but it departed downward from the advisory Sentencing Guidelines sentence because of the juvenile offense.
On appeal, defendant argued that use of a juvenile conviction as a predicate offense under the ACCA categorically violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The Tenth Circuit disagreed. An Eighth Amendment categorical analysis requires the court to examine two factors: (1) whether there is a national consensus against the sentencing practice at issue; and (2) whether the punishment in question violates the Constitution, based on the court’s understanding of the Eighth Amendment’s text, history, meaning, and purpose. Addressing the first factor, the Circuit held that state courts have not reached a meaningful consensus concerning the manner in which juvenile adjudications may be considered in adult sentencing proceedings. Two states treat juvenile adjudications as convictions for purposes of broadly applicable habitual offender states, and at least seventeen others allow prior juvenile adjudications to enhance a sentence in at least some circumstances. At least twenty-three additional states permit the sentencing court to consider prior juvenile adjudications in selecting a sentence within the statutory range. On the other hand, thirty-one states do not enhance statutory sentencing ranges based on prior juvenile adjudications. Given this lack of consensus, the Circuit proceeded to the second factor of the categorical analysis.
Defendant argued that his case was similar to Supreme Court cases prohibiting use of the death penalty or life imprisonment without parole as a sentence for crimes committed when a defendant was a juvenile. The Circuit disagreed. A repeat-offender law punishes only the last offense committed by the defendant; therefore, the defendant is being punished only for his or her adult conduct.
Use of the ACCA enhancement serves adult penological goals. Its punishment is not grossly disproportionate to the firearms offense. Moreover, the ACCA’s residual clause, defining a "violent felony," is not unconstitutionally vague. The Circuit therefore upheld defendant’s conviction and sentence.
No. 12-3141. United States v. Esquivel-Rios. 08/02/2013. D.Kan. Judge Gorsuch. Fourth Amendment—Reasonable Suspicion for Traffic Stop Based on "Unreliable" Computer Database.
Defendant was convicted of federal drug charges after a Kansas state trooper’s search of his minivan yielded evidence of a secret compartment containing more than a pound of methamphetamine. The trooper conducted the search after stopping the minivan for an invalid Colorado temporary registration tag. Before stopping the minivan, the trooper called in the temporary tag number to a dispatcher, who replied, "[T]hat’s a negatory on record, not returning." The trooper then stopped the minivan and obtained defendant’s consent to search. The district court denied defendant’s motion to suppress evidence of the drugs, finding that the trooper had reasonable suspicion that the minivan was displaying a forged tag after the dispatcher was unable to confirm its registration with Colorado authorities.
On appeal, defendant argued that the evidence found during the stop should be suppressed. He noted that after telling the officer that the tag was "not returning," the dispatcher had added that "Colorado temp tags usually don’t return." The issue the Tenth Circuit faced was whether the officer had reasonable suspicion to stop the minivan, given the evidence that the database the dispatcher consulted frequently produced negative ("no return") results. This issue required consideration of whether the computer’s "no return" report, considered in light of the dispatcher’s comment, qualified as particularized evidence of criminal activity. Absent specific indications of why Colorado temporary tags don’t usually "return"—whether the result is due to an actual forgery or an innocent bureaucratic failure to enter the tags in the database—it is problematic for a court to find reasonable suspicion in a case where the stop is based solely on the database. The Circuit therefore remanded the case for further consideration, including, if necessary, further fact-finding on the issue of the reliability of the database. It rejected defendant’s other claims of error, involving the admission of evidence of prior drug deals, the admission of expert testimony concerning the meaning of "Santa Muerte" to drug traffickers, and prosecutorial misconduct.
No. 12-7053. United States v. Naramor. E.D.Okla. 08/12/2013. Judge Hartz. Sentencing Guidelines—Use of Prior Conviction Allegedly Obtained in Violation of Right to Counsel and Without Mental Competency.
Defendant pleaded guilty to mailing a threatening communication to a state court judge. The district court varied upward from the recommended sentencing range and sentenced him to sixty months’ imprisonment, the statutory maximum. On appeal, defendant raised several sentencing issues.
First, defendant argued that the district court erred in awarding him criminal history points for a prior state-court assault conviction. He argued that this conviction should not have been used against him because he had no attorney during the previous proceeding and had not waived his right to counsel. To request court-appointed counsel, defendants in the Oklahoma county where defendant was convicted must have filled out an application and have paid a $40 application fee. Defendant did not apply for court-appointed counsel, and he represented himself at the bench trial on the assault charge. Some evidence supported defendant’s claims. Although the state court judge ordered him to undergo a mental competency exam and defendant was evaluated as competent, there was no evidence that the judge had specifically found him competent to stand trial, or found that he had waived his right to counsel. Defendant later wrote the threatening letters to his trial judge that formed the basis for his federal court conviction, after which he was judged mentally incompetent and given mental-health treatment.
The Tenth Circuit held that the district court did not clearly err in using defendant’s state sentence in calculating his criminal history category. Defendant pointed to no affirmative evidence to overcome the presumption that the state court had properly inquired concerning the knowing and intelligent nature of his waiver of counsel. The evidence also did not show that he was incompetent at the time of trial. Moreover, the district court could reasonably reject the argument that defendant had waived his trial counsel solely because the process of applying for counsel was too burdensome. The appointment-of-counsel form itself was not complex or difficult to fill out; defendant stated during his first competency interview that he did not have counsel at his trial because he did not want representation; and defendant successfully applied for court-appointed counsel after he was rearrested.
The Circuit also affirmed on the remaining issues that defendant raised. The government permissibly withdrew its motion for an acceptance-of-responsibility reduction after defendant wrote a threatening letter to the sentencing judge. The sentencing court did not impose or lengthen defendant’s sentence to promote rehabilitative goals. Finally, defendant’s sentence was not substantively unreasonable; the district court permissibly cited defendant’s history of violence, inability to control his anger, and history of being noncompliant with medication at times during his psychiatric evaluation as evidence that he posed an actual danger to the public. Accordingly, the Circuit affirmed defendant’s sentence.
No. 12-1095. Grosvenor v. Qwest Corp. 08/14/2013. D.Colo. Judge Lucero. Arbitration—Interlocutory Appellate Jurisdiction—Explicit Motion to Compel Arbitration Required—Appeal Dismissed.
Plaintiff sued Quest Corporation, claiming Qwest violated its "price for life guarantee" by raising the price for Internet service after he signed up. Qwest moved to compel arbitration under the Federal Arbitration Act (FAA). The district court denied the motion and set a hearing to determine whether the arbitration agreement was enforceable. The parties then both filed motions for partial summary judgment. Notably, Qwest’s motion did not seek an order to compel arbitration, but stated it would move for such an order in a future filing. Plaintiff asserted that any arbitration agreement was illusory. The district court denied summary judgment, ruled that the agreement to arbitrate was illusory and unenforceable, and set the case for trial. Qwest filed a notice of appeal from the order denying summary judgment, relying on the FAA to establish jurisdiction over this non-final order.
The Tenth Circuit held that to properly invoke appellate jurisdiction under the FAA, a movant must explicitly move to stay litigation and/or compel arbitration, or it must be unmistakably clear from the motion that the movant seeks relief provided for in the FAA. Qwest did not satisfy this standard, so there was no interlocutory appellate jurisdiction. The Circuit rejected Qwest’s argument that it could not have appealed the district court’s initial order denying arbitration, because that court had not yet determined whether an arbitration agreement had been made. The FAA does not require a final determination of the merits of the arbitration, but permits an appeal from an order denying a motion to compel arbitration. Qwest should have filed an explicit motion to compel, rather than asking for partial summary judgment. Therefore, because appellate jurisdiction was lacking, the appeal was dismissed.
Nos. 11-8090 & 11-8098. Queen v. TA Operating, LLC. 08/20/2013. D.Wyo. Judge Ebel. Judicial Estoppel—Bankruptcy Discharge—Concealment of Civil Suit From Bankruptcy Court—Inconsistent Position—Unfair Advantage—Mistake—Inadvertence—Dismissal.
Plaintiffs Richard and Susan Queen (Queens) filed suit against defendant TA Operating, LLC (TA) in federal court based on injuries Richard Queen sustained when he slipped and fell in a parking lot operated by TA. While that action was pending, the Queens filed for Chapter 7 bankruptcy protection in California, but did not disclose the federal lawsuit to the bankruptcy court. TA pointed this out, and the Queens amended their bankruptcy filings to include the federal lawsuit, but estimated its value as $400,000, far below the $1.5 million they had claimed in the lawsuit. They also asserted that the federal lawsuit was exempt. The Queens were granted a no-asset discharge in the bankruptcy filing. In the federal lawsuit, TA moved to dismiss on the ground of judicial estoppel, because the Queens had not disclosed the federal lawsuit in the bankruptcy case. The district court granted dismissal.
The Tenth Circuit affirmed, finding that the Queens adopted an inconsistent position that was accepted by the bankruptcy court and would receive an unfair advantage if not estopped from pursuing the federal lawsuit. The Circuit rejected the Queens’ arguments of mistake and inadvertence. The record showed that they had knowledge of the federal lawsuit and a motive to conceal it from the bankruptcy court. The district court’s dismissal was affirmed.
No. 12-6234. Wells v. Colvin. 09/19/2013. W.D.Okla. Judge Baldock. Social Security Disability—Non-Severe or Mild Mental Impairments—Evaluation of Ability to Work.
Claimant’s application for social security disability benefits was denied. The administrative law judge (ALJ) determined that her alleged mental impairments were non-severe or "mild," so he did not include them when deciding on her residual functional capacity (RFC), which is what a claimant can do despite his or her impairments. The district court affirmed the agency’s decision.
The Tenth Circuit held that pursuant to the applicable regulations, (1) the ALJ must consider the combined effect of all of claimant’s medically determinable impairments, whether severe or non-severe; (2) a finding of non-severity cannot substitute for a proper RFC analysis; and (3) the ALJ must explain how the evidence supports each conclusion based on the medical and non-medical evidence. Here, the ALJ failed to consider claimant’s non-severe or mild mental impairments when determining her RFC. Accordingly, the district court’s judgment was reversed and the case was remanded for further proceedings.
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