February 12, 2016

Tenth Circuit: Unpublished Opinions, 2/11/2016

On Thursday, February 11, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Stewart v. Colvin

Wahpekeche v. Colvin

Calhoun v. Colvin

Case summaries are not provided for unpublished opinions.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

Colorado Court of Appeals: Announcement Sheet, 2/11/2016

On Thursday, February 11, 2016, the Colorado Court of Appeals issued ten published opinions and 33 unpublished opinions.

People v. Luong

People v Sandoval

People v. Johnson

People v. Stotz

Town of Silverthorne v. Lutz

Core-Mark Midcontinent, Inc. v. Sonitrol Corp.

Williams v. Rock-Tenn Services, Inc.

People v. Sandoval

People in Interest of Z.P.S.

People in Interest of K.B.

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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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Tenth Circuit: Unpublished Opinions, 2/10/2016

On Wednesday, February 10, 2016, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Valois v. Commandant, USDB

Graham v. Taylor

Johnson v. Colvin

United States v. Flores

Berumen v. Colvin

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Statutory Rape Not Per Se Crime of Violence for Sentence Enhancement Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Madrid on Monday, November 2, 2015.

Jonathan Madrid pleaded guilty to possession of methamphetamine with intent to distribute in 2014. The presentence investigation report (PSR) classified him as a “career offender” subject to sentence enhancement due to his two prior convictions, one of which was a New Mexico conviction for cocaine trafficking and the other of which was a Texas conviction for statutory rape. The career offender enhancement changed his Guidelines sentencing range from 92-115 months to 188-235 months. He was sentenced to 188 months. He appealed his sentence, arguing the Texas conviction does not qualify as a “crime of violence” under U.S.S.G. § 4B1.1.

The Tenth Circuit noted that a conviction counts as a crime of violence when it (1) has as an element the use, attempted use, or threatened use of physical force; (2) is specifically enumerated in the Guidelines as a crime of violence; or (3) otherwise involves conduct that presents a risk of serious injury. Using the modified categorical approach, the Tenth Circuit analyzed the Texas statute under which Madrid was convicted to see if it fits the definition of crime of violence. The parties agreed that force was not an element of Madrid’s crime of conviction. The Tenth Circuit noted that the Guidelines specifically listed “forcible sex offenses” as crimes of violence, but held that statutory rape is not per se a forcible sex offense. The Tenth Circuit looked only to the elements of the charged offense, not the defendant’s actual conduct, to determine whether the offense was forcible. Because the Texas statute under which Madrid was convicted did not contain an element of force, the Tenth Circuit declined to look at Madrid’s actual conduct and found that his offense did not qualify as a forcible sex offense for Guidelines purposes.

Finally, the Tenth Circuit examined the residual clause of the Guidelines. Following the U.S. Supreme Court’s invalidation of the residual clause of the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), the Tenth Circuit found that the substantially similar Guidelines clause was invalid as unconstitutionally vague. The Tenth Circuit relied on Johnson‘s holding in stating “[t]he vagueness doctrine exists not only to provide notice to individuals, but also to prevent judges from imposing arbitrary or systematically inconsistent sentences.” Because the Guidelines’ residual clause was substantially similar to that of the ACCA, the Tenth Circuit found it did not provide adequate notice to defendants and allowed potential abuse by the judiciary.

The Tenth Circuit remanded with instructions for the district court to vacate Madrid’s sentence and resentence him consistent with its opinion.

Tenth Circuit: DEA Agent’s Removal of Luggage from Common Storage Area Constituted Illegal Seizure

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, November 9, 2015.

Kelvin Hill boarded an eastbound Amtrak train in Los Angeles. When it made a regularly scheduled stop in Albuquerque, DEA Agent Kevin Small boarded the train and entered the common luggage area. He found a small black and white “Coogi” brand bag with no tag. He took the suitcase into the passenger area and asked each passenger whose bag it was. No one responded, including Hill, so Agent Small deemed the bag abandoned. He searched the suitcase, finding a large quantity of cocaine as well as clothing linking the bag to Hill.

A grand jury indicted Hill of possession with intent to distribute 500 grams or more of cocaine. He moved to suppress the cocaine, asserting Small’s actions in taking the bag from the common luggage area and moving it about the coach amounted to an illegal seizure, rendering Hill’s abandonment of the bag invalid. The district court denied Hill’s motion, instead concluding Small did not seize the bag at any time before Hill abandoned it. Hill entered a conditional guilty plea, reserving the right to appeal the district court’s denial of his suppression motion.

On appeal, the Tenth Circuit analyzed the following question: “Did Small’s actions in removing Hill’s bag from the train’s common luggage area and carrying it through the coach as he questioned passengers constitute a seizure of the bag?” The Tenth Circuit concluded that it did. The Tenth Circuit found that Small’s actions interfered with Hill’s possessory interest in the bag, because by taking the bag for his own purposes, Small interfered with Hill’s right to access the bag for his own purposes, on his own time, and at the place where unchecked baggage is properly stowed. The Tenth Circuit noted that the more difficult question was whether Small’s interference was meaningful for Fourth Amendment purposes.

The Tenth Circuit could not find any case law dealing with a fact scenario similar to the one at hand. Instead, most cases dealing with luggage presented two situations: when luggage is seized directly from a person, or when it is seized while checked at an airport. The Tenth Circuit found that the owner’s possessory interest was greatest when the bag was in his or her direct control and least when the bag was checked. Because the scenario at hand was somewhere in-between those two points, the Tenth Circuit analyzed the facts independently, finding that Hill would have reasonably expected other passengers to perhaps shift his bag’s position but would not have expected anyone to carry the bag through the coach. The Tenth Circuit therefore concluded that Agent Smart’s actions constituted a seizure.

The Tenth Circuit reversed the district court’s decision and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 2/9/2016

On Tuesday, February 9, 2016, the Tenth Circuit Court of Appeals issued six published opinions and four unpublished opinions.

Gonzales v. Bernalillo County District Court

Reese v. AES Corp.

Intermountain Stroke Center, Inc. v. Intermountain Health Care, Inc.

Farris v. Garden City, Kansas

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

Colorado Supreme Court: Announcement Sheet, 2/8/2016

On Monday, February 8, 2016, the Colorado Supreme Court issued one published opinion.

Newman, LLC v. Roberts

The summary for this case is 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.

Colorado Supreme Court: Erroneous Denial of Challenge for Cause Does Not Require Automatic Reversal

The Colorado Supreme Court issued its opinion in Newman, LLC v. Roberts on Monday, February 8, 2016.

Civil Law—Jury—Overruling Challenges to Jurors—Harmless Error— CRCP 61—Stare Decisis.

The Supreme Court held that allowing a civil litigant fewer peremptory challenges than authorized, or than available to and exercised by the opposing party, does not by itself require automatic reversal. Instead, the reviewing court must determine whether the error substantially influenced the outcome of the case in accordance with C.R.C.P. 61. This conclusion follows from People v. Novotny, 2014 CO 18, in which the Court determined that the automatic reversal rule in the criminal context rested on the assumption that impairment of the ability to shape the jury through peremptory challenges affected a “substantial right” and thus warranted automatic reversal. This same assumption undergirds the Court’s parallel rule in the civil context, but, as it held in Novotny, subsequent developments in the law concerning harmless error analysis and the significance of the right to shape the jury have invalidated that assumption. As such, the Court rejected the automatic reversal rule in the civil context and overruled prior decisions to the contrary. See Blades v. DaFoe, 704 P.2d 317 (Colo. 1985); Safeway Stores, Inc. v. Langdon, 532 P.2d 337 (Colo. 1975); and Denver City Tramway Co. v. Kennedy, 117 P. 167 (Colo. 1911).

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

Tenth Circuit: Diversity Jurisdiction Requires Complete Diversity of Parties

The Tenth Circuit Court of Appeals issued its opinion in Grynberg v. Kinder Morgan Energy Partners, L.P. on Monday, November 2, 2015.

Celeste Grynberg, individually and on behalf of several trusts of which she is trustee, and Jack Grynberg petitioned the U.S. District Court for the District of Colorado to vacate an arbitration award entered against them in favor of Kinder Morgan Energy Partners L.P. and Kinder Morgan CO2 Company L.P. (Kinder Morgan entities). The Grynbergs alleged diversity jurisdiction since the amount in controversy was over $75,000, they were residents of Colorado, Kinder Morgan Energy Partners (KMEP) was a Delaware limited partnership with its principal place of business in Texas, and Kinder Morgan CO2 Company (KMCO2) was a Texas limited partnership with its principal place of business in Texas. The district court issued an order to show cause that said the Grynbergs’ petition did not adequately allege diversity jurisdiction because it did not properly identify the citizenship of the Kinder Morgan entities as of the filing date. In response, the Grynbergs explained that KMEP was a publicly traded Delaware master limited partnership (MLP) and KMCO2 was a Texas limited partnership wholly owned by KMEP. The Kinder Morgan entities responded and explained that KMEP had unitholders who were citizens of Colorado. The district court dismissed the action without prejudice based on lack of diversity jurisdiction.

On appeal, the Tenth Circuit analyzed the jurisdictional statutes and the citizenship of MLPs. The Tenth Circuit noted it could only find diversity jurisdiction if no plaintiff is a citizen of the same state as any defendant. The Tenth Circuit turned to the citizenship of MLPs and determined that an MLPs citizenship consists of its unitholders’ citizenship. First, the Tenth Circuit analyzed the long-standing rule regarding citizenship of corporations and unincorporated entities, finding that under Carden v. Arkoma Associates, 494 U.S. 185 (1990), an unincorporated entity’s citizenship is determined by the citizenship of its members. The Tenth Circuit next found that the narrow exception set forth in Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), did not apply because the entity at issue in Russell was wholly unique to Puerto Rico and resembled a corporation more than an unincorporated entity. The Tenth Circuit noted that the Supreme Court had declined to apply the Russell exception to any entities other than the type enunciated in Russell. Finally, the Tenth Circuit addressed the Grynbergs’ argument that applying Carden would preclude jurisdiction over MLPs, noting that these policy arguments were best addressed to Congress.

The Tenth Circuit affirmed the district court’s dismissal without prejudice.

Tenth Circuit: Unpublished Opinions, 2/8/2016

On Monday, February 8, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Jones v. Estep

Suarez-Sanchez v. Lynch

United States v. Brown

Maehr 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: Federal Health Insurance Contract’s Terms Preempt State Antisubrogation Statute

The Tenth Circuit Court of Appeals issued its opinion in Helfrich v. Blue Cross & Blue Shield Association on Thursday, October 29, 2015.

Lee Ann Helfrich is a federal employee enrolled in a federal-employee health insurance plan, the Blue Cross & Blue Shield Service Benefit Plan (Plan). In December 2012, she was involved in a car accident and suffered serious injuries. The Plan paid $76,561.88 in benefits for her injuries, and she settled with the other driver for his policy limits of $100,000. The Plan sought reimbursement of its benefits paid as a subrogated insurer. Helfrich filed a petition in Kansas state court against Blue Cross, arguing a state regulation prohibiting subrogation negated Blue Cross’s claims. Blue Cross removed to federal court and argued the Federal Employees Health Benefits Act of 1959 (FEHBA) preempted the federal regulation. Blue Cross moved for judgment on the pleadings, and the district court held that the Kansas antisubrogation law was preempted by 5 U.S.C. § 8902(m)(1). The district court granted Blue Cross’s motion and Helfrich appealed.

On appeal, the Tenth Circuit likened Helfrich’s situation to the situation presented in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), in which the Supreme Court set forth a test to determine whether federal law preempts state law. The Tenth Circuit found that Blue Cross contracted with the federal government pursuant to FEHBA to provide insurance benefits for federal employees, and its federal contract required it to seek reimbursement of costs paid that were ultimately reimbursed by a third party. The Tenth Circuit noted that Boyle introduced the Federal Tort Claims Act’s discretionary-function standard as a test to determine whether there was a significant conflict between state law and the term of a government contract, noting that state law must yield if such a conflict exists. The Tenth Circuit found that conflict present here, since the contract between Blue Cross and the government and the provision of quality health care to government employees are matters of federal concern. The Tenth Circuit found the Plan’s reimbursement provision served important functions that were undermined by Kansas’ antisubrogation provision, and noted that here, state law outright forbids Blue Cross from fulfilling its contractual obligations. The Tenth Circuit held that the government’s strong interest in uniformity required federal preemption, since states without an antisubrogation provision would end up financing health care costs for claimants in states with such provisions if preemption did not apply.

Blue Cross also argued that FEHBA’s preemption provision provided another ground for overriding the Kansas antisubrogation provision, and the Tenth Circuit agreed. The Tenth Circuit analyzed the language of the provision and found that Blue Cross’s reimbursement rights arose at the payment of benefits; if Helfrich had not pursued reimbursement from the other driver, Blue Cross reserved the right to do so on her behalf. Analyzing case law from its circuit and others, the Tenth Circuit found strong support for Blue Cross’s preemption argument.

The Tenth Circuit affirmed the district court. Judge Lucero wrote a concurrence, agreeing with the conclusion but disagreeing with the majority’s application of federal common law preemption.

Tenth Circuit: Unpublished Opinions, 2/5/2016

On Friday, February 5, 2016, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.

Kirby v. OCWEN Loan Servicing, LLC

Kieffer v. Denham

O’Connor v. Williams

United States v. Herrera

Steigelman v. McDaniel

United States v. Brooks

United States v. Anderson

Gambrill v. Unified Government of Wyandotte County

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