December 21, 2014

Colorado Court of Appeals: Announcement Sheet, 12/18/2014

On Thursday, December 18, 2014, the Colorado Court of Appeals issued four published opinions and 35 unpublished opinions.

People v. Young

LR Smith Investments LLC v. Butler

Southern Colorado Orthopaedic Clinic Sports Medicine & Arthritis Surgeons, P.C. v. Weinstein, M.D.

Nixon v. City & County of Denver 

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 12/18/2014

On Thursday, December 18, 2014, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Karsten v. Camacho, P.A.

Singer v. Steidley

United States v. Troy A. Bong

United States v. Morain

United States v. Truby

United States v. Mendoza-Haro

Fleck v. Commissioner of Internal Revenue

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 12/17/2014

On Wednesday, December 17, 2014, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Menge v. AT&T, Inc.

Jones v. Wyoming State Penitentiary Warden

United States v. Storey

Waltman v. Georgia-Pacific, LLC

Barber v. McKune

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 12/16/2014

On Tuesday, December 16, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Fogle v. Infante

United States v. McKneely

United States v. Tenderholt

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 12/15/2014

On Monday, December 15, 2014, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Montez v. Lampert

United States v. Cooper

United States v. Pinson

Hughes v. Oliver

Avalon Care Center-Federal Way, LLC v. Brighton Rehabilitation, LLC

Brown v. Colvin

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 12/12/2014

On Friday, December 12, 2014, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

United States v. Foster

Sanders v. Dowling

Green v. Patton

Bruton v. United States

Jackson v. McCollum

Krumm v. Holder

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

Tenth Circuit: Concurrent Sentences Are Not Coterminous When They Begin at Different Times

The Tenth Circuit Court of Appeals issued its opinion in Brown v. Parker on Wednesday, November 12, 2014.

Mr. Brown was imprisoned for two sentences, one from Tulsa County and one from Muskogee County. Both sentences were two years, and the second one (Muskogee County) was to run concurrently with the first (Tulsa County), although they did not begin at the same time. Mr. Brown believed the sentences should end at the same time, so when he completed the first sentence, he expected to be released from prison, but he had not yet completed his Muskogee County sentence. Upon his eventual release, he sued under 42 U.S.C. § 1983, alleging that authorities had refused to release him when his Muskogee County sentence ended. In support, Mr. Brown relied on an order from the Muskogee County judge, which stated that the Muskogee County sentence was to end when the Tulsa County sentence ended. The district court granted summary judgment to defendants and Mr. Brown appealed.

The Tenth Circuit, though sympathetic to Mr. Brown’s plight, found the district court had ruled correctly. Mr. Brown’s sentences were concurrent, but not coterminous, and coterminous sentences are illegal under Oklahoma law. The magistrate judge in Muskogee County had said that the Muskogee sentence would end when the Tulsa sentence ended, but there was no basis in Oklahoma law for him to make this statement, so it had no legal effect and was a nullity. The district court had two options with regard to the order: disregard it or attempt to make it conform to Oklahoma law. It chose the latter. The district court found that the Muskogee sentence was to end in January 2013, two years after the beginning of the Tulsa sentence. Since Mr. Brown was released far before this date, the district court found no error and summary judgment was appropriate.

Tenth Circuit: Constitutional Claims Impermissible in Sentence Reduction Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gay on Wednesday, November 12, 2014.

In 1998, Alondo Gay was indicted on eight counts, including having distributed 245.3 grams of cocaine base. He pled guilty to that charge in exchange for dismissal of the remaining charges. The probation office prepared a presentence report using the 1998 sentencing guidelines, which held Mr. Gay accountable for 9,636.88 grams of cocaine base. He qualified for a base offense level of 38. The final PSR added four additional levels for a total offense level of 42. Initially, Mr. Gay objected to several factual findings in the PSR, but withdrew his factual objections at the sentencing hearing for a 3-level reduction. His guidelines sentencing range was 262 to 327 months’ imprisonment, and he was sentenced to 262 months.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the sentencing disparity between cocaine base and cocaine powder from a 100:1 ratio to a 33:1 ratio. In 2008, Amendment 706 was made retroactively applicable. Then, in August 2010, Congress enacted the Fair Sentencing Act, which further reduced the sentencing disparity ratio to 18:1. The Sentencing Commission adopted another retroactive amendment in response to the Fair Sentencing Act, which reduced the offense levels for offenses involving between 2.8 and 8.4 kg of cocaine base from 38 to 36.

In light of the sentencing changes, Mr. Gay filed a motion under § 3582(c)(2) to reduce his sentence. The district court denied his motion, finding him ineligible for relief because his sentence was based on a greater quantity of cocaine base than was affected by the amendments. Mr. Gay appealed, contending the application of his sentence under the 100:1 ratio violated his Fifth Amendment Due Process rights, and that the length of his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Tenth Circuit characterized his appeal as an impermissible attempt to collaterally attack his sentence. The only relief allowed in a § 3582(c)(2) proceeding is sentence modification, not argument of constitutional claims. Mr. Gay should have raised his constitutional arguments in direct appeal. The Tenth Circuit conducted a plain error review and found none. Mr. Gay’s sentence was affirmed.

Colorado Court of Appeals: Announcement Sheet, 12/11/2014

On Thursday, December 11, 2014, the Colorado Court of Appeals issued no published opinion and 38 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 12/11/2014

On Thursday, December 11, 2014, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Kouadio v. Holder

United States v. Greenwood

Sherrod v. Bonner

Bueno v. Timme

United States v. Oyegoke-Eniola

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

Colorado Supreme Court: Burden of Proof Does Not Shift Under Res Ipsa Loquitur

The Colorado Supreme Court issued its opinion in Chapman, M.D. v. Harner on Monday, December 8, 2014.

Allocation of the Burden of Proof Under Res Ipsa Loquitur.

In this case, the Supreme Court clarified the proper allocation of the burden of proof under the doctrine of res ipsa loquitur. Specifically, the Court resolved the tension between its fifty-six-year-old precedent in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96-97 (1958), which held that the burden of proof shifts to the defendant once a plaintiff makes a prima facie showing of res ipsa loquitur, and the more recent adoption of CRE 301, which indicates that rebuttable presumptions such as res ipsa loquitur shift onto the defendant only the burden of production and not the burden of proof. After determining that this issue has remained unsettled since the adoption of CRE 301, the Court held that the burden of proof does not shift to the defendant under res ipsa loquitur. Accordingly, the Court reversed the court of appeals’ judgment.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Forum Selection Clause Presents Question of Whether Jurisdiction is Reasonable Under Circumstances of Case

The Colorado Supreme Court issued its opinion in In re Nickerson v. Network Solutions, LLC on Monday, December 8, 2014.

CAR 21 Original Proceeding in Civil Case—Motion to Set Aside Default Judgment—Forum Selection Clause.

In this CAR 21 original proceeding, the Supreme Court held that the trial court erred in setting aside a default judgment as void for lack of jurisdiction due to a contractual forum selection clause purporting to divest Colorado courts of jurisdiction over the matter. A forum selection clause in a contract does not divest a court of personal or subject matter jurisdiction but instead presents the question of whether it is reasonable for the court to exercise its jurisdiction in the particular circumstances of the case. The Court also held that the trial court erred by failing to conduct an evidentiary hearing on damages before entering default judgment. The Court made this rule absolute and remanded the case to the trial court for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.