June 28, 2017

Tenth Circuit: Unpublished Opinions, 5/30/2017

On Tuesday, May 30, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Schubert

United States v. Bell

Chan v. Commissioner of Internal Revenue

Lomack v. Farris

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/26/2017

On Friday, May 26, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Haupt

Schwab v. State of Kansas

Iselin v. The Bama Companies, Inc.

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/25/2017

On Thursday, May 25, 2017, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

United States v. Aparicio

Wright v. State of Colorado

Hays v. Berryhill

United States v. Garcia

United States v. Mowery

McMiller v. Corrections Corp. of America

Booth v. Davis

Rollins v. Finch

Lee v. Berryhill

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 5/24/2017

On Wednesday, May 24, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. $112,061.00 in United States Currency

Morris v. Gracy

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: No Abuse of Discretion by Imposing Within-Guidelines Sentence after Variance Request

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wireman on February 28, 2017.

The issue in this case was whether the Defendant’s sentence was procedurally reasonable when the district court failed to address Defendant’s non-frivolous arguments for a downward variance from his within-United States Sentencing Guidelines sentence.

Defendant pled guilty to five counts of distributing child pornography and one count of possessing child pornography. Defendant had also emailed a friend non-pornographic images of children that he personally knew and claimed at the time he had sexually abused. Defendant had prior sexual offenses that involved children, including being convicted of five different sexually based crimes involving minors, four of which included physical sexual conduct with a minor.

Section 2G2.2 of the United States Sentencing Guidelines  set Defendant’s base level offense for his crimes and applied several other Specific Offense Characteristics under § 2G2.2 to Defendant, which increased his offense level. These SOCs included increases because (i) the material involved prepubescent minors; (i) he distributed material involving the sexual exploitation of a minor; (iii) the material involved sadistic or violent depictions; (iv) he engaged in a pattern of activity involving sexual abuse or exploitation of a minor; and (v) because he used a computer to distribute the material. The corresponding USSG range for Defendant’s crimes and the added SOCs was 210-262 months’ imprisonment.

In his sentencing memorandum to the district court, Defendant argued that he was entitled to a downward variance from the USSG range because § 2G2.2 was inherently flawed. Defendant argued that the Sentencing Commission did not depend on empirical data when drafting § 2G2.2, that the range for his crimes was “harsher than necessary,” and that the SOCs in § 2G2.2 were utilized so often that they applied in nearly every child-pornography case and therefore fail to distinguish between various offenders. The district court never specifically mentioned this memorandum at sentencing, but alluded to it.

The district court ultimately sentenced Defendant to concurrent terms of 240 months’ imprisonment on each of the six counts against him. The district court addressed the personal nature of the non-pornographic images the Defendant emailed to his friend as well as Defendant’s prior criminal history. After handing down the sentence, the district court asked Defendant if they had “anything further,” to which Defendant’s counsel stated that they did not.

On appeal, Defendant claimed that his sentence was procedurally unreasonable because the district court did not adequately address his critiques of § 2G2.2. Because Defendant did not contemporaneously object in the district court to the method by which the district court arrived at a sentence, including that the sentencing court failed to explain adequately the sentence imposed, the Tenth Circuit applied the plain error standard of review, rather than de novo review. The Tenth Circuit explained that it finds plain error only when there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The Tenth Circuit first addressed the first prong of the plain error standard, whether the district court committed error.  The Tenth Circuit first noted that a district court must explain its reasons for rejecting a defendant’s non-frivolous argument for a more lenient sentence. Further, the Tenth Circuit held that Defendant’s critiques of § 2G2.2 were non-frivolous. In fact, the Tenth Circuit addressed how many of its sister circuit courts, along with itself, have described arguments criticizing § 2G2.2 as “quite forceful.”

However, the Tenth Circuit stated the principle that whether a district court can functionally reject or instead must explicitly reject a defendant’s arguments depends on whether the sentence imposed is within or outside of the USSG range. If the sentence is varied upwards of the USSG range, the district court must specifically address and reject the defendant’s arguments for a more lenient sentence. If it is within the USSG range, then the district court does not need to specifically address and reject each of the defendant’s arguments, so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the USSG sentence actually conforms in the circumstances to the statutory factors.

In the Tenth Circuit, a within-guideline range sentence by the district court is entitled to a rebuttable presumption of reasonableness on appeal. The Tenth Circuit stated that this was true even if the USSG at issue arguable contains serious flaws or lacks an empirical basis.

In this case, the Tenth Circuit held that the district court was at least aware of Defendant’s arguments because the district court explicitly referenced Defendant’s sentencing memorandum at the sentencing hearing. Because the district court’s ultimate sentence was within the USSG range, the Tenth Circuit held that the district court did not need to explicitly reject Defendant’s arguments. The district court needed only to indicate that it did not rest on the guidelines alone, which the district court did. The district court stated that it relied on the USSG as well as Defendant’s extensive criminal history and the personal nature of the emailed images in determining Defendant’s sentence. The Tenth Circuit held that this acted as a functional rejection of Defendant’s policy disagreement with § 2G2.2. Therefore, the Tenth Circuit held that the district court did not err by not explicitly responding to Defendant’s arguments for a more lenient sentence. Because the district court did not err, the Tenth Circuit did not address the three remaining prongs of the plain error review.

The Tenth Circuit affirmed the district court’s sentence of Defendant.

Tenth Circuit Judge McKay wrote a concurrence to this decision. Judge McKay expressed his view that precedence requires a district court rejecting a defendant’s non-frivolous arguments to provide at least a general statement of its reasons for rejecting such arguments.  If the defendant’s arguments are that the USSG reflect an unsound judgment, Judge McKay states that the sentencing judge should go further to explain why he rejected those arguments. Here, the district court did not do as much.

Further, Judge McKay questioned the wisdom of applying the “reasonable” presumption to within-Guidelines sentences, regardless of a particular Guideline’s alleged lack of empirical support.  The Sentencing Commission did not use an empirical approach when developing § 2G2.2, and therefore Judge McKay believes that the Tenth Circuit should not presume the sentence’s reasonableness. Regardless, he agrees that the Majority followed the rules of the Tenth Circuit in applying the “reasonable” presumption as it stands.

Judge McKay believed that the district court erred, but he concurred in judgment because the Defendant still could not satisfy the requirement that the error affected his substantial rights. There was nothing on the record to suggest that the district court would have imposed a different sentence even if he explicitly considered Defendant’s arguments.

Tenth Circuit: Unpublished Opinions, 5/23/2017

On Tuesday, May 23, 2017, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Fisher v. Koopman

McCoy v. Allbaugh

Blough v. Rural Electrical Coop, Inc.

Davis v. GEO Group Corrections, Inc.

Faircloth v. Raemisch

Sawyer v. Kinlen

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

Tenth Circuit: Unpublished Opinions, 5/22/2017

On Monday, May 22, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Phung

Espinoza-Horiuchi v. Walmart Stores, Inc.

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

Tenth Circuit: Unpublished Opinions, 5/17/2017

On Wednesday, May 17, 2017, the Tenth Circuit Court of Appeals issued two published opinions and no unpublished opinion.

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

Tenth Circuit: Unpublished Opinions, 5/16/2017

On Tuesday, May 16, 2017, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Hatten-Gonzales v. Earnest

Yellowbear v. Norris

Singh v. Sessions

United States v. Bonat

Adkins v. Koduri

United States v. Jack

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

Tenth Circuit: Disability Appeals Council Not Required to Expressly Evaluate Treating Physician’s Report

The Tenth Circuit Court of Appeals issued its opinion in Vallejo v. Berryhill on February 28, 2017.

Vallejo applied for supplemental security income benefits alleging that she had been disabled for several months. The Social Security Administration denied her claim. She received a hearing with an administrative law judge, who issued a decision adverse to Vallejo. The next day, Vallejo’s treating physician, Dr. Ratner, completed his opinion, which stated that Vallejo was bipolar with an extreme level of impairment. Vallejo requested the Appeals Council to review the ALJ’s decision and submitted Ratner’s opinion with her request. The Appeals Council denied review, stating that it considered Ratner’s opinion and additional evidence but found the evidence did not provide a basis for changing the ALJ’s decision. This rendered the ALJ’s decision the Commissioner’s final decision.

Vallejo sought judicial review of the Commission’s final decision. The district court found that the Appeals Council erred in not properly articulating its assessment of Ratner’s opinion in denying Vallejo’s request for review. The court reasoned that the Appeals Council was required to either assign Ratner’s opinion controlling weight or articulate reasons for assigning it a lesser weight. Because neither the ALJ nor the Appeals Council expressly evaluated Ratner’s opinion, the district court reversed the Commissioner’s decision and remanded to the Appeals Council to either determine what weight to give Ratner’s opinion or to remand to an ALJ with directions to make such a determination.

The Tenth Circuit held that it had jurisdiction to hear this appeal because the district court’s remand was a sentence-four remand. The Tenth Circuit held this because the district court did not retain jurisdiction and the remand was not solely for consideration of new evidence that was not before the Commissioner.

The Tenth Circuit addressed the issue of whether the district court’s determination that the Appeals Council failed to apply the correct legal standard was an error.

The Tenth Circuit held that the Appeals Circuit was not required to expressly analyze the new evidence of Ratner’s opinion. Rather, the statutes or regulations only require the Appeals Council to “consider” the new evidence. The Tenth Circuit acknowledges that an express analysis from the Appeals Council would be helpful to judicial review. But, further states that nothing in the statutes or regulations requires the Appeals Council to provide that analysis.

Therefore, the Tenth Circuit reversed the district court’s order reversing the Commissioner’s final decision and remanding to the Appeals Council. The Tenth Circuit remanded to the district court with directions to address Vallejo’s remaining arguments and determine if the Commissioner applied the correct legal standards and if substantial evidence in the administrative record supported the Commissioner’s final decision.

Tenth Circuit: Unpublished Opinions, 5/15/2017

On Monday, May 15, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Esquibel

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

Tenth Circuit: No Fourth Amendment Violation Where Person with Apparent Authority Consented to Search

The Tenth Circuit Court of Appeals issued its opinion in Patel v. Hall on March 1, 2017.

On April 20, 1011, Officers Bubla and Hall arrived at Mr. Austin’s auto-repair business pursuant to a call from Ms. Austin regarding suspicious activity by their landlord, Plaintiff Chetan Patel. The officers were informed that several cars that Plaintiff brought in were missing their Vehicle Identification Number (VIN). Additionally, Mr. Austin told the officers that he suspected the VINs had been switched on certain vehicles.

The officers contacted the County Attorney’s Office after speaking with the Austins and were informed that the officers could permit the Austins to remove their belongings from the premises and seal the building pending a search warrant. The officers also photographed the trucks with missing or replaced VIN plates which Mr. Austin had pointed out to them. The officers sealed the building. The next morning, Mr. and Ms. Austin and their son submitted written statements to the police and swore to their truthfulness in front of a notary. The statements included instances where the Plaintiff told Mr. Austin he needed to remove Plaintiff’s vehicles off the premises “because they were starting to draw the state’s attention.”

Officer Hall was unable to immediately obtain a search warrant, as none of the judges in Big Horn County were available. Officer Hall contacted the County Attorney’s Office to inquire whether there was probable cause to arrest Plaintiff because Officer Hall believed Plaintiff might remove evidence from the premises. The County Attorney determined that there was probable cause to justify a warrantless arrest for felony VIN fraud. Plaintiff was arrested and the county court issued an arrest warrant the next day, along with a search warrant for the premises.

Pursuant to the search warrant, the officers discovered a syringe and white powder on a table in the premises. The officers left the building and obtained a new warrant to search for drugs as well as VIN plates inside the building. In total, the officers seized two loose VIN plates, a truck with switched VIN plates, a truck with a missing VIN plate, and an empty insurance envelope which was found laying on the floor with a claim number written on it. The officers also photographed several documents with VIN numbers written on them.

The charges against Plaintiff for felony VIN fraud were dismissed on October 4, 2011. In April 2014, Plaintiff filed the § 1983 complaint. Defendants argued they were entitled to qualified immunity. Plaintiff supplied an affidavit purportedly signed by Mr. Austin. Plaintiff’s two attorneys also submitted affidavits stating they met with Plaintiff and Mr. Austin when Mr. Austin allegedly made statements that differed from his original sworn police witness statement.

The district court granted summary judgment for Defendants and refused to consider the purported Mr. Austin affidavit. The district court also disregarded Plaintiff’s attorneys’ affidavits holding that the affidavits would make the attorneys material witnesses to the case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct.  The district court held that Plaintiff had not shown a constitutional violation relating to the search and seizure because (i) Mr. Austin consented to the initial search, (ii) the officers had probable cause to seize the shop while they obtained a search warrant, (iii) the subsequent search was conducted pursuant to a search warrant, and (iv) there was sufficient probable cause for Plaintiff’s arrest. The district court also rejected Plaintiff’s claim that the search was beyond the scope of the search warrant because Plaintiff had not shown the officer’s actions violated clearly established law. Finally, the district court dismissed Plaintiff’s state law claims with prejudice based on a procedural deficiency by Plaintiff and the state defense of qualified immunity.

The Tenth Circuit first addressed the district court’s grant of summary judgment in favor of Officer Hall on Plaintiff’s official-capacity claim. The claim requires evidence that the municipality “caused the harm through the execution of its own policy or customs or by those whose acts may fairly be said to represent official policy.” The police department at the time had no chief of police, and Officer Hall was the senior officer. The Tenth Circuit laid out the test to decide whether a government employee is a final policymaker whose actions can give rise to municipal liability. First, the employee must be constrained by policies not of his own making. Second, his decisions must be final. Finally, the policy decisions and actions must fall within the realm of the employee’s grant of authority.

The Tenth Circuit held that there was no evidence to indicate whether or not Officer Hall was meaningfully constrained by policies not of his own making, whether or not his decisions were final, or whether his actions fell within the realm of his grant of authority. Therefore, the Tenth Circuit held that Plaintiff failed to satisfy the municipal liability test. Simply because Hall was “in charge” before the new chief took office was not enough. The Tenth Circuit affirmed the district court’s grant of summary judgment on Plaintiff’s official-capacity claims.

The Tenth Circuit next addressed the claims against Defendants in their individual capacities. The Tenth Circuit held that because Defendants asserted qualified immunity, the burden shifted to Plaintiff to establish that the Defendants violated a constitutional right and that the right was clearly established at the time of the violation.

Plaintiff’s first claim was against Officers Hall and Bubla for violation of his Fourth Amendment right when they initially searched the shop without a warrant. The Tenth Circuit held that the search was conducted pursuant to consent. The Austins had actual or apparent authority to consent as both worked at the auto-repair business. Ms. Austin contacted police and both she and Mr. Austin were present when the officers were shown around the shop. Mr. Austin did not protest, and the Tenth Circuit held that this was non-verbal consent.

Next, Plaintiff argued that Officers Hall and Bubla violated his Fourth Amendment rights when they sealed the premises without a warrant or probable cause. The Tenth Circuit held that there was probable cause and therefore Plaintiff’s rights were not violated. Probable cause existed because of what the officers found during their initial search with the Austins, Plaintiff’s suspected criminal conduct, and what Mr. Austin had told the officers about his conversations with Plaintiff. Therefore, the Tenth Circuit held that the officers were justified in sealing the building.

Third, Plaintiff argued that Hall violated his Fourth Amendment rights by arresting him without a warrant. The Tenth Circuit held that the arrest was valid because Hall had probable cause to believe Plaintiff was fraudulently altering VIN Plates. The Tenth Circuit held that the factors justifying the warrantless seizure of the building also supported Plaintiff’s arrest.

Fourth, Plaintiff argues that the warrants to search his shop and for his arrest were defective because they were “procured with reckless insufficient information.” The Tenth Circuit stated that there only needs to be a “substantial probability” that the suspect committed the crime before making an arrest. The Tenth Circuit held that Plaintiff’s evidence did not dispute that there was a substantial probability. Further because the prior search was lawful due to consent, the Tenth Circuit held that there was probable cause for a warrant to search the shop based on the initial findings.

Fifth, Plaintiff argued that the officers exceeded the scope of the search warrant. The Tenth Circuit held that the first two ways alleged by Plaintiff were not supported by evidence. The third allegation was that the officers exceeded the scope by seizing an envelope found on the ground of the shop. The Tenth Circuit held that Plaintiff met his burden of showing that the officers were not entitled to qualified immunity on that issue. The warrant clearly specified what items were to be seized, and by seizing additional items, the officers acted unreasonably for Fourth Amendment purposes.

The Tenth Circuit next addressed the district court’s decision to disregard the affidavit purportedly signed by Mr. Austin and its holding that the attorneys’ affidavits were inadmissible based on Wyoming’s professional conduct lawyer-as-witness rule. The Tenth Circuit held that is did not need to consider whether the district courts holding was accurate because even if the information from Mr. Austin’s purported affidavit was considered, it would not have created a material dispute of fact to defeat the Defendant’s assertion of qualified immunity. Therefore, the Tenth Circuit held that any error by the district court regarding Mr. Austin’s affidavit was harmless.

Finally, the Tenth Circuit held that the district court erred in dismissing Plaintiff’s state law claims with prejudice. Because the district court did not explain why the defendants were entitled to the state qualified immunity, the Tenth Circuit remanded the issue for further consideration by the district court.

In sum, the Tenth Circuit reversed the grant of summary judgment as to the seizure of the envelope, remanded for further proceedings on the state qualified immunity issue, and affirmed the district courts grant of summary judgment in favor of all Defendants on the remaining claims.