October 30, 2014

Tenth Circuit: Unpublished Opinions, 10/1/2014

On Wednesday, October 1, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Jenkins

Johnson v. Evans

Brown v. Rios

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: ALJ’s Opinion was Well Reasoned and Considered All Evidence so Reversal Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Hendron v. Colvin on Friday, September 5, 2014.

Linda Hendron applied for disability benefits three times. The first application, filed in 1999, was denied on the merits. The second application, filed in 2001, was denied on the basis of res judicata. The third application, which is the subject of this appeal, was filed in June 2009, based on a date of disability of November 1, 1995. The agency denied the claim, again based on res judicata, and Ms. Hendron requested a hearing before an administrative law judge (ALJ).

The ALJ held a hearing at which Ms. Hendron testified. The ALJ considered 19 medical exhibits that had not been previously considered. After the hearing, the ALJ issued findings of fact, concluding that Ms. Hendron was not disabled as of the date she was last insured, December 31, 1995. The ALJ found that although Ms. Hendron could not return to her former employment as a nurse, she was capable of the full range of sedentary activities. The Appeals Panel denied review. Ms. Hendron appealed to the district court, which reversed and remanded the ALJ’s decision, concluding that the ALJ failed to cite evidence that Ms. Hendron could perform the full range of sedentary work during the relevant time period. The Commissioner appealed to the Tenth Circuit.

The Tenth Circuit found that the ALJ’s decision was reasonable and that the ALJ considered all the evidence before making a well-reasoned decision on the merits. Ms. Hendron contends that the ALJ’s decision did not support the residual functional capacity determination with a narrative statement addressing each aspect of sedentary work, essentially contesting the form of the ALJ’s decision but not the sufficiency of the evidence. The Tenth Circuit found that the evidence was more than sufficient to support the ALJ’s determination, and reversed the district court’s judgment. The case was remanded for reinstatement of the ALJ’s decision determining Ms. Hendron not to be disabled during the relevant time period.

Tenth Circuit: Writ of Mandamus Inappropriate Absent Clear and Indisputable Injury

The Tenth Circuit Court of Appeals issued its opinion in In re RBS Securities, Inc. on Thursday, September 4, 2014. The panel decided, sua sponte, that its original order dated August 25, 2014, be published with a slight modification.

The National Credit Union Administration Board brought a number of actions against RBS Securities and other defendants in the District of Kansas, the Central District of California, and the Southern District of New York. RBS and the other defendants moved to centralize the litigation in the District of Kansas, but the Judicial Panel on Multidistrict Litigation (JPML) denied the request due to dissimilarities between litigants. However, the JPML offered alternatives to consolidation, including informal cooperation between the attorneys to minimize duplicative discovery. The parties developed a Master Discovery Protocol (MDP) at a joint hearing between the three districts. Judge Cote from New York relayed that she would be the coordination judge for the MDP. RBS objected.

RBS petitioned the Tenth Circuit to strike Section 2 of the MDP, in which Judge Cote was designated the coordination judge, through a mandamus petition. The Tenth Circuit found that mandamus was a drastic remedy which it could not support. Referring to the MDP, the Tenth Circuit noted that the Kansas court required signature of a Kansas judge on all orders, and RBS’s right to mandamus was therefore not clear and indisputable. The motion was denied.

Tenth Circuit: Sentence Outside Guidelines Range Not Subject to Reduction

The Tenth Circuit Court of Appeals issued its opinion in United States v. White on Tuesday, September 2, 2014.

Joseph White was indicted on 16 gun- and drug-related counts. In exchange for White pleading guilty to possession of a firearm in furtherance of a drug trafficking crime, the prosecution agreed to drop the remaining charges, including the drug-trafficking offense underlying his guilty plea. The Presentence Investigation Report recommended the statutory minimum 60 month sentence, but the district court advised the parties via letter that it was considering an upward departure for White’s dismissed charges, including some crack cocaine offenses. Following a hearing, the sentencing court varied upward from the 60 month sentence by 87 months, for a total sentence of 147 months. The Tenth Circuit upheld his sentence on direct appeal.

In 2010, Congress enacted the Fair Sentencing Act, which lowered the Guidelines ranges for crack cocaine offenses. Had the lower sentencing ranges for crack offenses been in place when White was originally sentenced, and had the judge employed the same reasoning he employed in his upward departure, White’s conduct would have merited an upward departure of 37-46 months, rather than 70-87 months. White petitioned the district court to reduce his sentence accordingly, but the district court responded that the FSA’s amendments did not affect his applicable Guidelines range of 60 months. White appealed.

The Tenth Circuit, first admonishing that sentence modifications are to be the exception and not the rule, discussed the authority of a district court to modify a sentence that was imposed outside the Guidelines range. Because only the 60-month sentence was imposed based on the Guidelines range, it was outside the district court’s authority to amend the 87 month upward departure based on the new sentencing rules for crack offenses. The Tenth Circuit upheld the sentence.

Tenth Circuit: Unpublished Opinions, 9/30/2014

On Tuesday, September 30, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Liu v. Holder

Lammle v. Ball Aerospace & Technologies Corp.

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

Tenth Circuit: Unpublished Opinions, 9/29/2014

On Monday, September 29, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Veren v. U.S. Department of Justice

Dumas v. Colvin

United States v. Martinez

United States v. Powers

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

Tenth Circuit: Sanctions Reversed for Lack of Notice and Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Melot on Friday, September 26, 2014.

Katherine Melot (plaintiff) and her husband Billy owe the government millions of dollars in federal taxes, and Billy is serving a prison sentence for tax crimes. The tax debt led the government to foreclose on the Melots’ properties. The Melots tried to stop the foreclosures using fraudulent methods — namely, by asserting liens on the property in the name of Stephen Byers, an incarcerated and destitute person. The liens and Byers’ motion to intervene in the foreclosure proceedings were signed by Mrs. Melot and they were mailed from the address of a friend of the Melots. The government suspected fraud and, at the hearing on the motion to intervene, presented evidence tending to show the scheme between Melot and Byers.

At the hearing, Mrs. Melot’s counsel requested notice prior to the imposition of any sanctions, and the magistrate noted that the Melots would be noticed on any hearing regarding the contempt. The magistrate certified criminal contempt by the Melots. More than a year later, the district court issued an order addressing the contempt certifications, and, recognizing the costs of prosecuting a criminal contempt matter, declined to order contempt, instead imposing the following sanctions: (1) removal of Mrs. Melot and her children from the property; (2) reimbursement of the government’s costs for the hearing; (3) striking the Melots’ pending motions, responses to motions, and requests for stays; and (4) imposing filing restrictions.

Mrs. Melot appealed the sanctions, arguing the district court violated the Fifth Amendment’s Due Process clause by imposing sanctions without giving the Melots notice and an opportunity to be heard. The Tenth Circuit agreed. Sanctions cannot be imposed without notice that sanctions are being considered by the court and a subsequent opportunity for the defending party to be heard. Although the magistrate had provided notice of the possibility of criminal contempt, there was no notice of the imposition of sanctions. The Tenth Circuit reversed the district court’s sanction order and remanded for further proceedings, noting that the district court was not barred from re-imposing sanctions after proper notice and hearing.

Tenth Circuit: Unpublished Opinions, 9/26/2014

On Friday, September 26, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Williams v. Patton

United States v. Melot (Billy)

United States v. Melot (Katherine)

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

Tenth Circuit: Unpublished Opinions, 9/25/2014

On Thursday, September 25, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Collvins v. Hennebold

Stewart v. Oklahoma Office of Juvenile Affairs

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

Tenth Circuit: Unpublished Opinions, 9/24/2014

On Wednesday, September 24, 2014, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Herget

Rudnick v. Falk

Benton v. Town of South Fork

Moreno v. Taos County Board of Commissioners

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

Tenth Circuit: No Fourth Amendment Violation in Search of Abandoned Bag

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tubens on Tuesday, September 2, 2014.

Peter Tubens was on a Greyhound bus in Utah en route to Philadelphia when Utah Highway Patrol officers and their drug-sniffing dogs stopped the bus during a routine drug interdiction activity. Both dogs alerted to one bag in the luggage compartment marked as Tubens’. One officer entered the bus and asked for Mr. Tubens in a loud, clear voice, but Tubens did not respond. After checking all the passengers’ tickets, the police located Tubens and questioned him. Because of his suspicious behavior and knowledge that drug traffickers tend to move drugs between their checked bags and carry-ons, the officers asked to search Tubens’ carry-ons. Tubens said he did not have any, but another passenger said Tubens had been putting a bag in the carry-on area. Officers found a paper bag and CD case on Tubens’ seat, neither of which contained drugs. The officers, by this time quite suspicious of Tubens, asked everyone on the bus to claim their carry-ons, after which there was one bag remaining. The officer asked in a loud, clear voice if the bag belonged to anyone, but no one claimed it. They asked Tubens if the bag was his and he denied ownership. They proceeded to search the bag and found two cylinders containing meth as well as two prescriptions belonging to Tubens. He was charged with possession of methamphetamine with intent to distribute and sentenced to 240 months’ imprisonment. Tubens appealed, arguing that the evidence obtained by searching the bag should be suppressed because it was obtained in violation of the Fourth Amendment.

The Tenth Circuit disagreed. The officers’ initial stop and dog sniff was a lawful investigation, and no justification was needed. Even assuming the officers’ search required reasonable suspicion, they had ample reason to be suspicious of Tubens, given the dogs’ positive reactions to the bag and Tubens’ evasive behavior. No Fourth Amendment violation precipitated Tubens’ abandonment of his bag. And, because Tubens unequivocally proclaimed the abandoned bag was not his, he lacked standing to challenge its search. The district court’s judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 9/23/2014

On Tuesday, September 23, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Chen v. Holder

United States v. Gilchrist

United States v. Lake

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