June 23, 2017

Archives for May 12, 2016

Professional Paradigms New and Old (Part 7): Traumatic Transformation, and What Do You Do When Your Paradigm is Done Shifting?

Professional paradigm shifts require transformation not just for the profession’s culture, but for the individuals in it.

wired%20to%20createIn their book Wired to Create: Unraveling the Mysteries of the Creative Mind, authors Scott Barry Kaufman and Carolyn Gregoire identify several ways individual paradigm-shifting transformation gets started. One is inspiration, which they say comes in three stages:

The first stage is that unsolicited moment when we feel inspired, “by a role model, teacher, experience, or subject matter.”

“Next comes transcendent awakening — a moment of clarity and an awareness of new possibilities.

“Which leads to the third hallmark feature of inspiration: a striving to transmit, express, or actualize a new idea, insight, or vision.” (Emphasis in original.)

Individual paradigm shifts are also prompted by traumatic life events, resulting in what psychologists call “posttraumatic growth.” Again from Wired to Create:

After a traumatic event, such as a serious illness or loss of a loved one, individuals intensely process the event—they’re constantly thinking about what happened, and usually with strong emotional reactions.

[T]his kind of repetitive thinking is a critical step toward thriving in the wake of a challenge… we’re working hard to make sense of it and to find a place for it in our lives that still allows us to have a strong sense of meaning and purpose.

I have personal experience with both inspiration and trauma. As I wrote a couple weeks ago, “I have a personal, real-time, vested interest in change because I’ve been on a steep personal transformation learning curve for nearly a decade — for all sorts of reasons I’ve written about in my books, my personal blog, and sometimes in this column.” Learning, writing, and conducting workshops about the psychological and neurological dynamics of transformation has been has been my way of being proactive about something I’ve come to call “traumatic transformation.”

ApocalypseIn fact, I just finished a new book that completes my decade-long intensive on personal transformation. As always, I’ve learned a lot writing it, but the most startling discovery is that paradigm shifts don’t go on forever: a time actually comes when the new fully replaces the old. Now that I’ve finished it, I can see that writing the book was in part a way for me to bring closure to my years of personal paradigm shifting.

That being the case, I’ve decided that it’s time for me to set aside my transformation journey and let its lessons play out for awhile. Which is why, after today’s post, I’m going to take an indefinite vacation from writing this column. At this point, I have no fresh thoughts to add to what I’ve been writing about for the past several years. Instead of repeating myself, I want to take a break and see if anything new comes up. If so, I’ll come back and share it.

In the meantime, my endless thanks to the Colorado Bar Association and CBA-CLE and to my fabulous editor Susan Hoyt for letting me trot out my research and theories and personal revelations in this forum. And equally many thanks to those of you who’ve read and thought about and sometimes even taken some of these ideas to heart and put them into practice.

On the wall above the desk where I write, I have a dry-mounted copy of the very last Sunday Calvin and Hobbes comic strip, which I cut out of the newspaper the morning it ran. (Speaking of paradigm shifts, remember newspapers?) There’s a fresh snow, and our two heroes hop on their sled and go bouncing down a hill as Calvin exults, “It’s a magical world, Hobbes ol’ buddy… Let’s go exploring!”

I suspect Calvin and Hobbes are still out there, exploring. I plan to join them.

You?

Apocalypse: Life On The Other Side Of Over was just published yesterday. It’s a free download from the publisher, like my other books. Or click on this link or the book cover for details.

And if we don’t run into each other out there exploring, feel free to email me.

 

Tenth Circuit: Possession of Stolen Property is Crime Involving Moral Turpitude

The Tenth Circuit Court of Appeals issued its opinion in Obregon de Leon v. Lynch on Tuesday, December 22, 2015.

Cristian Eduardo Obregon de Leon was a native citizen of Guatemala who entered the United States without inspection in September 1997. In 2007, he adjusted his status to that of a lawful permanent resident (LPR). In 2011, he was charged with and pleaded guilty to four offenses in Oklahoma state court: (1) one count of operation of a chop shop, (2) four counts of possession of vehicles with altered identification numbers, (3) four counts of possession of a stolen vehicle, and (4) two counts of receipt of stolen property.

In January 2013, the Department of Homeland Security filed a Notice to Appear, charging that Mr. Obregon was removable for committing a crime involving moral turpitude (CIMT). Mr. Obregon admitted the factual allegations at hearing but denied removability, arguing his crimes did not qualify as CIMTs. The Immigration Judge ultimately found that all four crimes counted as CIMTs and concluded he was not eligible for waiver relief. Mr. Obregon appealed, and a single BIA judge dismissed his appeal, concluding that the stolen property offenses counted as CIMTs because they required a mens rea of knowing the property was stolen.

Mr. Obregon appealed to the Tenth Circuit, arguing none of his convictions counted as CIMTs and that he should be eligible for waiver because he adjusted to LPR status after entering the United States. The Tenth Circuit first evaluated the term “crime involving moral turpitude,” and determined it was quintessentially ambiguous. However, following several other circuits and BIA precedent, the Tenth Circuit found that possession of stolen property satisfies the scienter element to create a CIMT. Mr. Obregon argued there must be intent to permanently deprive the rightful owner of the property, but the Tenth Circuit disagreed, finding Mr. Obregon’s “application of legal imagination” did not suffice to show that the requisite scienter was permanent deprivation. The Tenth Circuit affirmed the BIA’s determination that Mr. Obregon’s possession of stolen property crimes were crimes involving moral turpitude.

However, as to Mr. Obregon’s argument that he was eligible for waiver because he adjusted his status to that of LPR after entering the United States, the Tenth Circuit agreed. Following recent Tenth Circuit and BIA precedent, the Tenth Circuit ruled that the plain language of the waiver statute barred application for waiver only for those who received LPR status before or upon entering the United States.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: District Court’s Application of Sentencing Enhancements Procedurally Reasonable

The Tenth Circuit Court of Appeals issued its opinion in United States v. Craig on Tuesday, December 22, 2015.

Christopher Craig participated in a conspiracy from January 2006 until December 2012 in Kansas City, Missouri, the general purpose of which was the distribution and sale of marijuana and cocaine. In August 2012, Craig orchestrated the armed robbery of a rival drug-dealer by recruiting his two cousins, DaRyan Pryor and Arterrius Pryor, to actually commit the robbery, while Craig remained in the driver’s seat of the get-away vehicle. During the course of the robbery, DaRyan Pryor was fatally shot by the rival drug-dealer. In November 2013, a grand jury charged Defendant Christopher Craig with three separate counts as part of a twenty-seven-count indictment containing nine other co-defendants. The first count charged Defendant with conspiring to manufacture and distribute cocaine and marijuana, and maintaining a drug-involved premises. The other two counts charged Defendant with using a communication facility to commit this conspiracy. The indictment, however, did not list either DaRyan or Arterrius as co-conspirators, and Defendant was not charged with the murder of DaRyan Pryor.

After Defendant pleaded guilty to the three charges against him, the Presentence Investigation Report (“PSR”), relying on the United States Sentencing Guidelines Manual (“Sentencing Guidelines”), suggested the district court should take DaRyan’s death into account when determining Defendant’s sentence by applying a murder cross-reference under the Sentencing Guidelines. Second, the PSR recommended the district court impose a leadership enhancement under the Sentencing Guidelines because Defendant organized the armed robbery of the rival drug-dealer that resulted in DaRyan’s death. Third, stemming from Defendant’s refusal to provide a court ordered voice exemplar, for which Defendant was held in contempt of court, the PSR moved the district court to apply the obstruction of justice enhancement under the Sentencing Guidelines.

The district court ultimately applied the murder cross-reference, the leadership enhancement, and the obstruction of justice enhancement, resulting in Defendant’s total offense level to be calculated as a level 43, the maximum level allowed under the Sentencing Guidelines. Combined with Defendant’s category III criminal history, this corresponded to a sentence of life imprisonment for the conspiracy count and 48 months’ imprisonment for the communication facility counts. Defendant appealed the sentencing order, arguing the district court erred in applying the murder, leadership, and obstruction of justice enhancements, as well as arguing the sentence of life imprisonment is substantively unreasonable.

The Tenth Circuit Court of Appeals upheld the district court’s sentencing order and application of the murder cross-reference, leadership enhancement, and obstruction of justice enhancement. With respect to the murder cross-reference, the Tenth Circuit concluded the preponderance of the evidence suggested DaRyan’s death was in furtherance of the overarching drug-trafficking conspiracy. As such, DaRyan’s death resulting from the attempted robbery was “relevant conduct” under the Sentencing Guidelines, and therefore, the Tenth Circuit concluded the district court did not err in applying the murder cross-reference.

After concluding the attempted robbery was relevant conduct to Defendant’s underlying conspiracy conviction, the court began its analysis of the leadership enhancement by noting that the leadership role need only be over “one or more participants” of a “criminal activity” of “five or more participants.” The Tenth Circuit concluded the district court did not err in applying the leadership enhancement, for the evidence presented at the sentencing hearing supports its finding that Defendant led one of the participants (DaRyan) of a criminal activity (the underlying conspiracy) that involved five or more participants (at least nine other participants).

With respect to the enhancement for obstruction of justice, Defendant argued his plea of guilty eliminated any obstruction of justice that may have occurred. The Tenth Circuit rejected this argument, reasoning Defendant attempted to make prosecution against him more difficult in refusing to provide a voice exemplar the Government had a legal right to possess because he knew it could be used to identify his voice in incriminating situations, and his subsequent guilty plea did not purge him of this refusal. Therefore, the Tenth Circuit held the district court did not error in applying the obstruction of justice enhancement.

Lastly, the Tenth Circuit held the district court did not abuse its discretion in imposing a sentence of life imprisonment on Defendant, as Defendant’s life sentence was not substantively unreasonable, considering the fact that Defendant organized an attempted robbery that resulted in the death of a man over whom he had a significant amount of control and influence.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 5/11/2016

On Wednesday, May 11, 2016, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

United States v. Waldo

Chapman v. Lampert

United States v. Murphy

Brennan v. United States

United States v. Carrasco-Ortiz

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.