October 22, 2017

Archives for August 17, 2016

Tenth Circuit: Defendant Should Have Been Allowed to Allocute Before Sentencing But Error Not Plain

The Tenth Circuit Court of Appeals issued its opinion in United States v. Bustamante-Conchas on Monday, August 8, 2016.

Miguel Bustamenta-Conchas founded a heroin trafficking company with his friend, Baltazar Granados. Bustamenta-Conchas and Granados distributed heroin throughout the Albuquerque area and cooked heroin at the home Granados shared with his wife, Olga Fabiola Rosales-Acosta. The pair had a third co-conspirator, “Edgar,” who eventually left the conspiracy. Bustamenta-Conchas gave Granados a Glock for protection against Edgar. Bustamenta-Conchas controlled several homes in the Albuquerque area, one of which was a rental that he allowed two other co-conspirators to use to store cash and heroin. When the group was finally arrested in 2013, police found over 100 grams of heroin and $90,000 cash at the rented home. Another 100 grams of heroin was found at a nearby home owned by Bustamenta-Conchas, 9 kilograms of heroin was found at Rosales-Acosta’s home, and 1.17 kilograms and a Glock pistol were found at Granados’s home.

After a jury trial, Bustamenta-Conchas was found guilty of conspiracy to distribute and intent to distribute one kilogram or more of heroin. Prior to sentencing, his counsel presented mitigation evidence regarding Bustamenta-Conchas’s unstable childhood, abuse by uncles, and the death of his first child. At sentencing, Bustamenta-Conchas’s counsel challenged several of the factual findings in the presentence report, including the drug quantity report, which included all of the drugs and cash found at all of the properties. His attorney argued for the 10-year mandatory minimum sentence. The district court neglected to allow Bustamenta-Conchas to make a statement as required by F.R.C.P. 32(i)(4)(A)(ii). The district court accepted the findings in the presentence report but declined to accept the Guidelines range of 292-365 months, instead imposing a 240 month sentence and a $100,000 fine based on the mitigating factors presented by counsel.

On appeal, Bustamenta-Conchas argued the district court erred by attributing all of the drugs to him for purposes of his Guidelines calculation, enhancing his sentence due to his co-conspirator’s possession of a firearm, and failing to allow him to allocute before sentencing. The Tenth Circuit addressed the quantity argument first. The Circuit found that the district court could take into account “relevant conduct” of the defendant, including any acts related to the conspiracy. Bustamenta-Conchas argued that the district court failed to make a particularized finding as to the scope of the criminal activity he agreed to undertake. The Tenth Circuit found that he waived this argument by failing to preserve it in district court and failing to argue plain error on appeal.

The Tenth Circuit next turned to the dangerous weapon enhancement. Bustamenta-Conchas argued the district court relied on a clearly erroneous fact when determining that Granados possessed the firearm in connection with a drug conspiracy. Ms. Rosales-Acosta revealed in her interview with an investigator that Bustamenta-Conchas had given the weapon to Granados for protection against Edgar. Although she did not testify about the firearm, the investigator testified as to these facts. The Tenth Circuit held that the district court did not err in admitting this hearsay testimony. The Tenth Circuit found sufficient indicia of reliability as to the statements.

Finally, the Tenth Circuit addressed Bustamenta-Conchas’s claim that the district court reversibly erred by failing to allow him to allocute prior to sentencing. The Tenth Circuit evaluated the claim under plain error because he failed to object at sentencing. Both parties agreed that Bustamenta-Conchas met the first three prongs of plain error review, but the government contended that the error did not fundamentally undermine the fairness of the proceedings. The majority panel determined that because Bustamenta-Conchas’s counsel argued for a lesser sentence, cross-examined sentencing witnesses, and presented mitigating evidence, and because the district court ultimately imposed a below-Guidelines sentence, there was no plain error.

The Tenth Circuit affirmed the sentence. Judge Lucero wrote a thoughtful dissent; he would have held that failure to allow allocution is an error that fundamentally undermines the fairness of the criminal proceeding and therefore the sentence should have been reversed.

Tenth Circuit: Mixed Petition May Either Be Dismissed Without Prejudice or Denied on Merits

The Tenth Circuit Court of Appeals issued its opinion in Wood v. McCollum on Tuesday, August 16, 2016.

Michael Wood is an Oklahoma prisoner who was sentenced to life imprisonment without the possibility of parole after pleading guilty to first degree murder. He sought a writ of certiorari from the OCCA after his conviction, arguing he should be allowed to withdraw his plea and go to trial. The OCCA denied certiorari and rejected all five of his arguments. Wood then filed a federal habeas petition, which was referred to a federal magistrate judge for a report and recommendation (R&R). The magistrate judge identified seven grounds for relief, six of which were largely duplicative of the claims in Wood’s cert petition to the OCCA. The R&R identified one claim that was not exhausted, though.

Wood asked the district court to either retain jurisdiction while he exhausted his claim in state court or dismiss the petition without prejudice. The R&R recommended denying Wood’s request to hold the proceedings in abeyance while he exhausted his state claim and granting Wood’s request to dismiss without prejudice. The district court entered an order dismissing the petition with prejudice except as to the claim that was unexhausted, which the district court dismissed without prejudice.

On appeal, the Tenth Circuit found that the district court did not act in accordance with Circuit precedent. The district court should have either dismissed the entire petition without prejudice in order to allow the petitioner to exhaust state court remedies, or denied the entire petition on the merits. The Tenth Circuit noted that the district court’s approach was specifically foreclosed by precedent. After briefing, the Tenth Circuit reversed and remanded with instructions for the district court to vacate its judgment and dispose of Wood’s petition in a manner consistent with precedent.

Tenth Circuit: Unpublished Opinions, 8/16/2016

On Tuesday, August 16, 2016, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Lu v. University of Utah

United States v. Gronski

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