June 19, 2013

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Tenth Circuit: Defendant’s Sentence for Cocaine Distribution and Revocation of Supervised Release Affirmed

June 18, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Dunbar on Monday, June 17, 2013.

Defendant appealed his cocaine distribution conviction and the revocation of supervised release. He raised four challenges: (1) that the district court conducted an inadequate inquiry into his request for new counsel and abused its discretion in denying his request; (2) that the district court abused its discretion in failing to construe his pro se pleading and various oral protests as motions to withdraw his plea; (3) that his plea was not knowing and voluntary because his counsel had given him inaccurate information; and (4) that his sentence on revocation of supervised release was procedurally and substantively unreasonable.

The Tenth Circuit held as follows: first, the district court conducted an adequate inquiry into Defendant’s request for new counsel, and did not abuse its discretion in denying the request because defense counsel’s explanation could persuade a reasonable jurist that counsel’s performance had been satisfactory and that any failures of communication had been Defendant’s fault. Second, the court did not err in declining to treat Defendant’s pro se pleading and oral statements as motions to withdraw his plea because Defendant was represented by counsel who did not make a timely motion to permit withdrawal of the plea and Defendant’s statements in any event were unclear or untimely. Third, Defendant did not raise in district court a challenge to the validity of his plea, and there was no plain error because the pertinent facts were not established in the record. And fourth, as to Defendant’s sentence on violation of the terms of supervised release, he failed to show plain error with respect to the procedural reasonableness of his sentence and his sentence was not substantively unreasonable.

AFFIRMED.

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Tenth Circuit: Sentence Enhancements Appropriate Where Defendant Pled Guilty to Trafficking of Counterfeit Goods

June 12, 2013 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Zhou on Monday, June 10, 2013.

In 2009, federal agents began investigating Shengyang Zhou for selling counterfeit weight loss products to consumers throughout the United States. Over the course of the investigation, which lasted several years, undercover agents purchased tens of thousands of pills containing Sibutramine, a Schedule IV non-narcotic controlled substance that was at the time approved by the FDA only for the treatment of obesity in a patented drug commonly known as “Meridia.” Mr. Zhou’s pills were packaged and labeled as the weight loss drug “Alli.” The genuine product is manufactured by the pharmaceutical company Glaxo Smith Kline (GSK) and contains Orlistat. Mr. Zhou also packaged thousands of boxes of the Sibutramine labeled as “Super Slim” and “Meizitang,” two products listed in FDA alerts as containing ingredients that could put consumers’ health at risk.

Ultimately, at a meeting in Hawaii, a federal agent handed Mr. Zhou a stack of U.S. currency that was purportedly part of the $55,000 the agents had promised to pay him that day in exchange for a large shipment of counterfeit weight loss pills. Mr. Zhou was arrested after he accepted the money.

During a series of post-arrest interviews, Mr. Zhou told agents that he had been planning on completing a 10,000 unit order of counterfeit Alli and shipping the products to the undercover agents. He acknowledged that the contents of the capsules he had been distributing, and had been preparing to provide, did not contain the same ingredient as genuine Alli but instead contained Sibutramine.

Mr. Shengyang Zhou pled guilty to trafficking and attempted trafficking of counterfeit goods in violation of 18 U.S.C. § 2320 and § 2. He was sentenced to eighty-seven months’ imprisonment and three years’ supervised release, and he was ordered to pay restitution of $507,567.

Mr. Zhou raised four issues on appeal, and they were all objections to sentence enhancements.

A. Infringement Amount

Mr. Zhou first contended the district court erred in imposing a 14-level enhancement to his offense level by miscalculating the “infringement amount” under U.S.S.G. § 2B5.3(b)(1). He contended the court erred by including the not-yet-completed order of 10,000 bottles of counterfeit Alli without making findings regarding whether the sentencing guidelines provision on “attempt,” U.S.S.G. § 2X1.1, was satisfied.

The fact that the counterfeit Alli packaging was virtually indistinguishable from the authentic items supports the district court’s application of the 14-level enhancement. Samples of this packaging were sent to GSK employees who determined that, while counterfeit, the packaging was identical to or substantially indistinguishable from genuine packaging materials.

B. Mr. Zhou as Organizer or Leader

Mr. Zhou contested the four-level enhancement for being an “organizer or leader” under U.S.S.G. § 3B1.1(a), claiming the court failed to articulate the factual basis for this enhancement. Finding no clear error, the Tenth Circuit found that the record supported the district court’s conclusion that he was a leader or organizer for purposes of § 3B1.1(a). The record included Mr. Zhou’s statements to the agents that he owned two companies producing and distributing the counterfeit weight loss drugs, that he was “the boss” of this enterprise, and that he had no other partners in the venture.

C. Conscious or Reckless Risk of Death or Serious Injury

Mr. Zhou challenged the district court’s application of the two-level increase based on U.S.S.G. § 2B5.3(b)(5), asserting there was insufficient evidence he was consciously aware of a risk of death or serious bodily injury, and arguing the court failed to apply the correct standard of “recklessness” in making this determination.

The Tenth Circuit found no clear error in the district court’s finding that Mr. Zhou was consciously aware of both the FDA alerts describing the serious health risks posed generally by drugs containing Sibutramine, and the warnings specifically addressing the health risks of the counterfeit Alli he was producing and distributing. In light of this uncontested evidence, it was appropriate to add the two-level increase to Mr. Zhou’s offense level in accordance with § 2B5.3(b)(5).

D. Restitution

Mr. Zhou’s final argument was that the district court erred in ordering him to pay $417,396.39 in restitution to GSK under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. To the extent Mr. Zhou made legal arguments he failed to raise in district court, the Tenth Circuit found no  egregious or obvious and substantial legal error. A district court has broad discretion in crafting a restitution order under the MVRA. In sum, although the Tenth Circuit doubted there was any error at all, it affirmed the restitution order “because if there was error, it was not ‘clear or obvious under current law.’”

AFFIRMED.

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Colorado Court of Appeals: Defendant’s Prior Felony Convictions were “Grave and Serious” and Merited Habitual Offender Sentence Enhancer

June 9, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Foster on Thursday, June 6, 2013.

Sex Offender Registration—Evidence—Prior Act—Character—Sentence Enhancer—Habitual Criminal Sentence—Undue Delay—Due Process.

Defendant appealed the judgment entered on a jury verdict finding him guilty of one count for failure to register as a sex offender. He also appealed the proportionality of the twelve-year sentence imposed under the habitual criminal statute. The judgment and sentence were affirmed.

Defendant contended that the trial court erred by admitting evidence of his previous failure to register as a sex offender. Defendant’s knowledge of the registration requirements relates to whether he knowingly failed to register as a sex offender. Because this evidence was relevant and was not unfairly prejudicial, the trial court did not abuse its discretion by admitting this evidence.

Defendant also contended that the trial court erred in deciding that the prior offense sentence enhancer had been proven, rather than submitting a special interrogatory on this issue to the jury. However, defense counsel chose to have the court, not the jury, decide the enhancer. Because of defense counsel’s affirmative conduct, invited error precludes review of the trial court’s decision not to submit the prior conviction aggravator to the jury.

Defendant contended that record evidence was insufficient to support the conclusion that he “established a residence” and was present at his new address. Although defendant introduced evidence to the contrary, the record contains sufficient evidence to support the jury’s verdict, including the fact that defendant told the Department of Corrections more than two weeks before his arrest that he had changed his residence and provided his new address, which he referred to as his home.

Defendant also challenged his twelve-year habitual criminal sentence as “grossly disproportionate” under the Eighth Amendment, alleging that none of his prior felonies was grave and serious. Although defendant’s triggering offense was not grave and serious under the circumstances, the felonies underlying the sentence collectively were grave and serious. Therefore, because defendant’s sentence did not raise an inference of gross disproportionality, the sentence was affirmed.

Defendant further contended that “the excessive and undue delay in the Attorney General’s filing of the Answer Brief” constituted a denial of due process. Because defendant did not demonstrated prejudice, he was not entitled to relief.

Summary and full case available here.

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Colorado Court of Appeals: Sentence of Life Without Possibility of Parole Unconstitutional for Juvenile Offender

June 9, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Valles on Thursday, June 6, 2013.

Juvenile—Direct File Statute—Unconstitutional—Speedy Trial—Continuance—Hearsay—Sentence—Parole.

Defendant Alberto Valles appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of one count first-degree extreme indifference murder and four counts of attempted extreme indifference murder. He also appealed the sentence imposed. The judgment was affirmed, the sentence was vacated, and the case was remanded.

Valles was a member of a gang that was feuding with another gang. When Valles was 17 years old, he fired multiple rifle shots at rival gang members in another car. One of the shots hit R.S., fatally wounding him.

On appeal, Valles argued that a previous version of Colorado’s direct file statute, which allowed prosecutors to directly file criminal charges against certain juveniles in district court, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Specifically, Valles contended that a jury was required to make the factual findings required by the direct file statute—that he was a juvenile and that he was alleged to have committed, and was convicted of, a class 1 felon—before the prosecution could file charges in the district court. The direct file statute, however, involves a prosecutor’s pretrial exercise of discretion, not a post-trial finding of fact. Therefore, Apprendiand Blakelydo not apply to the direct file statute.

Valles asserted that the trial court violated his statutory and constitutional rights to a speedy trial by granting the prosecution a continuance six weeks beyond his statutory speedy trial date. The record supports the trial court’s findings that (1) a material witness’s live testimony was unavailable; (2) the prosecution used due diligence to secure it; and (3) it would be available at a later date. Therefore, the trial court did not abuse its discretion by extending Valles’s statutory speedy trial date and granting the prosecution’s requested continuance. Furthermore, the trial court did not err by denying Valles’s motion to dismiss for violation of his constitutional right to a speedy trial.

Valles also asserted that the trial court abused its discretion and violated his rights under the Confrontation Clauses of the U.S. and Colorado Constitutions by admitting hearsay evidence that exculpated the co-conspirator/declarant and inculpated Valles. The statement, however, fell within the hearsay exception allowing the introduction of statements against self-interest and was admissible.

Valles contended that the trial court erred by sentencing him to life without the possibility of parole, because the sentence was unconstitutional. The Eighth Amendment of the U.S. Constitution forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Accordingly, defendant’s sentence as to life imprisonment was affirmed, but it was vacated to the extent it denied him the possibility of parole. The trial court was directed on remand to sentence Valles to life in prison with the possibility of parole after forty years.

Summary and full case available here.

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Tenth Circuit: 28 U.S.C. § 2255 Motion Challenging Federal Sentence Not Second Motion So Prior Authorization to File Not Required

May 17, 2013 by Leave a Comment

The Tenth Circuit published its opinion in In re Weathersby on Tuesday, May 14, 2013.

Keith V. Weathersby filed a motion for authorization to file a second or successive motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Weathersby was convicted of two federal drug offenses in March 2002 and sentenced to 292 months in prison. The Tenth Circuit affirmed his conviction and sentence on direct appeal. He then filed a § 2255 motion for relief that the district court dismissed as untimely. After filing other motions and appeals, Weathersby alleged he successfully attacked six state court convictions that were used in calculating his federal sentence and sought to file another § 2255 motion challenging his federal sentence.

The Antiterrorism and Effective Death Penalty Act (AEDPA) limits second or successive motions under § 2255, requires that a defendant obtain circuit-court authorization before filing a second or successive motion, and limits the grounds for authorization. The Tenth Circuit found persuasive the reasoning of the Eleventh Circuit in a similar case and held that if the state court did not vacate Weathersby’s convictions until after his first § 2255 proceeding was concluded, this motion would not be a second motion. Given that the basis for challenging his federal sentence did not exist until the state court vacated the sentences, his proposed § 2255 claim did not exist at the time of the first § 2255 motion. The court dismissed the motion for authorization as unnecessary.

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Colorado Court of Appeals: Defendant’s Daughter Rightly Named as Protected Person Under Mandatory Protection Order Despite Dismissal of Charge

May 13, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Sterns on Thursday, May 9, 2013.

Mandatory Protection Order—Victim—Plea Agreement—Sentencing Range.

Defendant appealed from the trial court’s mandatory protection order and sentence. The order and sentence were affirmed.

Defendant was charged with three counts of solicitation to commit second-degree murder for contracting to have his daughter, his ex-wife, and her current husband killed. Before trial, defendant and the prosecution reached a plea agreement in which defendant agreed to plead guilty to an added count of second-degree attempted murder, with his ex-wife and her husband as the only named victims, as well as a crime of violence sentence enhancer, in exchange for dismissal of all other charges. At the plea hearing, the trial court accepted defendant’s plea and entered a mandatory protection order, naming defendant’s ex-wife, her husband, and defendant’s daughter as protected persons.

On appeal, defendant contended that the trial court lacked statutory authority to name his daughter as a protected person in the mandatory protection order. Adding or dropping a single charge within a multi-charge case does not dispose of the case. Thus, when the trial court dismissed the charge involving defendant’s daughter, it did not thereby dispose of the action against defendant. The action continued pursuant to the plea agreement. Accordingly, the trial court’s mandatory protection order properly included defendant’s daughter.

Defendant also contended that the trial court abused its discretion by sentencing him to a twenty-four-year term of imprisonment. Because this sentence falls within the range agreed to under defendant’s plea agreement, defendant is not entitled to appellate review of this issue.

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HB 13-1323: Requiring Clarification by Court if Mittimus Does Not Specify Whether Sentences to be Served Consecutively or Concurrently

May 8, 2013 by Leave a Comment

On April 29, 2013, Rep. Claire Levy and Sen. Lucia Guzman introduced HB 13-1323 - Concerning Requiring the Department of Corrections to Obtain Clarification if a Court-Issued Mittimus Omits Instruction Concerning Whether a Defendant’s Sentences are to be Served Consecutively or Concurrently. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill states, as amended, if the state department of corrections (department) receives custody of a defendant who is sentenced to serve two or more terms of incarceration in the custody of the department, and any mittimus concerning the defendant’s sentence or sentences does not clearly indicate whether the defendant’s sentences are to be served consecutively or concurrently, the department shall seek clarification in writing from the court regarding the defendant’s sentence or sentences. The department shall seek such clarification not more than two business days after the department’s receipt of the mittimus.

A court that receives a written request for clarification from the department shall respond to the department and clarify the mittimus in writing not more than two business days after receiving the request. The court shall provide a copy of the court’s response to the counsel of record for the prosecution and the defense.

Until the department obtains clarification of the mittimus from the court, the department shall not make any determination of the defendant’s parole eligibility date or mandatory release date.

Before remitting any mittimus to the department of corrections sentencing a defendant to the custody of the department, a court shall confirm that the mittimus properly reflects the sentencing order of the court and includes all necessary information regarding the sentence and any information as to whether a sentence is to be served concurrent with, or consecutive to, the sentence for any other count or any other case.

The bill was introduced in the House on April 29 and passed out of the Judiciary Committee on April 30. The House approved the bill on 2nd Reading May 2 and the 3rd Reading on May 3. The bill was introduced in the Senate on May 3 and passed out of the Judiciary Committee and 2nd Reading on the same day. The bill awaits 3rd Reading in the Senate on Monday, May 6.

Since this summary, the bill passed Third Reading in the Senate and will be sent to the governor for signature.

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Tenth Circuit: District Court Lacked Jurisdiction to Modify Defendant’s Sentence Under Fed. R. Crim. P. 35(a)

May 7, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Luna-Acosta on Friday, May 3, 2013.

In August 2011, the government filed an information charging Adrian Luna-Acosta with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b). He entered a plea agreement under which the government agreed to a downward departure of his offense level for the purposes of sentencing. The resulting range was thirty-three to forty-one months’ imprisonment. Luna-Acosta contended that when the government offered the plea agreement, it told him that it anticipated the range to be twelve to eighteen months’ imprisonment.

Defense counsel raised this issue at sentencing, but the court stated it nevertheless would sentence Luna-Acosta to the higher range. Defense counsel also raised the issue that new sentencing guidelines would take effect on November 1, 2011, regarding supervised release on this offense. The court agreed and continued the hearing. At the next sentencing hearing on November 16, the court sentenced Luna-Acosta to the lower range of twelve months imprisonment.

More than five months later, the district court reversed course. Without warning to either party, the district court entered a written judgment imposing a sentence of thirty-three months’ imprisonment without supervised release. The court explained that it lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. Luna-Acosta appealed.

On appeal, Luna-Acosta argued that the district court lacked jurisdiction under Fed. R. Crim. P 35(a) to modify his twelve-month sentence.

Under Fed. R. Crim. P. 35(a), a district court “may correct a sentence that resulted from arithmetical, technical, or other clear error” “[w]ithin 14 days after sentencing.” The rule defines “sentencing” as “the oral announcement of the sentence.” Fed. R. Crim. P. 35(c). This 14-day time limit is jurisdictional.

The pivotal issue on appeal was when the “oral announcement” of the sentence occurred for purposes of Rule 35. Once the oral announcement of the sentence becomes final, it can only be modified within the 14 days following sentencing, and even then only in limited circumstances.

In this case, these “sentencings” resulted in three different outcomes: on October 19, 2011 (open court): 33 months’ imprisonment, 2 years’ supervised release; on November 16, 2011 (open court): 12 months’ imprisonment, no supervised release; and on April 26, 2012 (written judgment): 33 months’ imprisonment, no supervised release.

The Tenth Circuit adopted the standard of the Fifth Circuit, where a sentence is not final—and Rule 35(a) does not apply—when there is “no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished.” United States v. Meza, 620 F.3d 505, 509 (5th Cir. 2010).

In Meza, the Fifth Circuit concluded that the district court’s change of a sentence immediately after it first announced a sentence was not a modification that must comply with Rule 35(a). The court refused to impose the “draconian rule” that “the district court’s initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to sentence criminal defendants and immediately vests such jurisdiction with this court.”

Applying this “formal break” standard to the case at bar, the Tenth Circuit concluded that the sentence was not final until the end of the second hearing held on November 16, 2011. Most important was the very fact the district court continued the first hearing on October 19 without finalizing all of the terms of the sentence.

Because the sentence was not final for the purposes of Fed. R. Crim. P. 35(a) at the end of the first hearing on October 19, the district court had jurisdiction to impose the twelve-month sentence at the second hearing on November 16. However, the district court lacked jurisdiction under Rule 35(a) when it altered that twelve-month sentence of imprisonment in its written judgment on April 26.

Accordingly, the Tenth Circuit REVERSED and REMANDED with instructions to vacate the thirty-three month sentence and file a written judgment consistent with the orally announced sentence of twelve months.

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Colorado Court of Appeals: Defendant’s Conviction Affirmed But Case Remanded for Longer Sentence

April 30, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lahr on Thursday, April 25, 2013.

Aggravated Robbery—Other Act Evidence—Relevance—Illegal Sentence—Extraordinary Risk Crime.

Defendant Jacob John Lahr appealed the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO). The People appealed the district court’s sentence. The judgment was affirmed, the aggravated robbery sentence was vacated, and the case was remanded for entry of a corrected sentence.

According to the prosecution’s evidence, defendant stole a car, robbed a Motel 6, robbed a Fascinations store, and later stole an SUV. Defendant contended that the district court erred by incorrectly applying the second part of the Spototest for admission of other act evidence. [See People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990).] Defendant’s theory of the case was that another person committed both the Motel 6 robbery and the SUV theft. However, there were sufficient similarities between the two robberies. Therefore, the district court did not abuse its discretion when it ruled that evidence of the Fascinations robbery was logically relevant, because it tended to make more probable the material fact that defendant was the person who robbed the Motel 6 and/or stole the SUV.

Defendant also contended that the district court erred by denying his motion for a new trial. A verdict form regarding the POWPO charge against defendant, which was part of a bifurcated case, was inadvertently given to the jury. The court told the jurors that the POWPO verdict form had been included in error and asked them to hand their copies to the bailiff. Assuming the court gave an instruction to disregard the form, the reference was clearly not so prejudicial that any resulting prejudice could not have been remedied by the instruction. Further, even if the court did not so instruct, the reference was not so prejudicial that the drastic remedy of declaring a mistrial was required. Therefore, any error was harmless, and the district court did not abuse its discretion by denying defendant’s motion for a new trial.

The People contended that the district court imposed an illegal sentence for defendant’s aggravated robbery conviction. Aggravated robbery is a class 3 felony and is an extraordinary risk crime that is subject to the modified presumptive sentencing range. The court imposed a forty-eight-year prison sentence for defendant’s aggravated robbery conviction. However, CRS § 18-1.3-801(2) required a sentence of sixty-four years for a defendant convicted of aggravated robbery and adjudicated a habitual criminal. Therefore, the district court’s sentence for the aggravated robbery conviction was illegal and the case was remanded to the district court for resentencing.

Summary and full case available here.

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Tenth Circuit: Man Who Confessed to Aiding al-Quada in 9/11 Attacks Not Entitled to Good Conduct Time for When He Was Held as Enemy Combatant

April 26, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Al-Marri v. Davis on Wednesday, April 24, 2013.

On December 12, 2001, the FBI arrested Ali Saleh Kahlah al-Marri as a material witness to the September 11, 2001 terrorist attacks against the United States.

President George W. Bush later declared Mr. al-Marri to be an enemy combatant. He was transferred to a Naval Brig where he was detained for almost six years. Mr. al-Marri was eventually transferred to civilian custody, where a federal grand jury indicted him on two counts of providing material support or resources to a designated foreign terrorist organization (al-Qaeda). On April 30, 2009, Mr. al-Marri pled guilty to one count of providing material support or resources to a designated foreign terrorist organization.

Prior to sentencing, the Bureau of Prisons (BOP) indicated that under 18 U.S.C. § 3585(b), it would only grant prior custody credit for the time Mr. al-Marri spent in pretrial criminal detention after he was transferred to civilian custody. BOP was unwilling to credit Mr. al-Marri for the 71 months he was held as a material witness and an enemy combatant.

Taking into account the BOP’s indication that it would deny Mr. al-Marri credit for the 71 months, the sentencing court reduced the period of confinement (180 months) by 71 months to reflect the periods of time for which he would not be credited by the BOP. The court further reduced the sentence by nine months to reflect the severe conditions at the Naval Brig.

After sentencing, pursuant to 18 U.S.C. § 3624(b)(1), the BOP credited Mr. al-Marri for both periods spent in pretrial criminal detention (totaling 745 days), but refused to grant prior custody credit for the 71 months during which he was held as an enemy combatant.

Mr. al-Marri filed a § 2241 petition in the district court seeking a statutory calculation of GCT for the 71 months he was detained or, in the alternative, a calculation as an equitable remedy for his allegedly unconstitutional detention. The district court denied the petition. Mr. al-Marri appealed.

On appeal, Mr. al-Marri contended he was entitled to Good Conduct Time (GCT) for the 71 months he was held as an enemy combatant, either statutorily under 18 U.S.C. § 3624(b), or as an equitable remedy.

Statutory Entitlement to Good Time Credit

This argument is foreclosed by the Supreme Court’s decision in United States v. Wilson, 503 U.S. 329 (1992). Wilson held that a sentencing court does not have authority to grant prior custody credit under § 3585. Instead, that authority is vested with the Attorney General, acting through the BOP.

Mr. al-Marri was detained because the President declared him to be an enemy combatant; he was not detained for an alleged violation of the federal criminal code. Similarly, Mr. al-Marri was held as a material witness—not as punishment for providing material support to a terrorist organization. The purpose of his detention was preventative rather than punitive. In short, the Court reasoned, Mr. al-Marri’s 71-month detention as an enemy combatant did not constitute “prior custody” as required by § 3585(b), and he was therefore ineligible for Good Conduct Time.

Next, Mr. al-Marri argued that if the 71-month sentencing reduction did not constitute “prior custody” under § 3585(b), the period should still be awarded because it is ‘time served’ and therefore part of the ‘term of imprisonment’ within the meaning of the GCT. The Tenth Circuit held that the Bureau of Prison’s calculation of Good Conduct Time for Mr. al-Marri comported with the most natural reading of the statute—that it applies only to time served under the actual sentence. The Court therefore deferred to the BOP’s interpretation.

Good Time Credit as an Equitable Remedy

The Tenth Circuit held the district court did not abuse its discretion in declining to reconsider Mr. al-Marri’s argument that the BOP’s refusal to calculate GCT for his unlawful detention entitled him to equitable relief.

AFFIRMED.

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Tenth Circuit: Court Denied Prisoner’s Successive Motion for Relief Under 28 U.S.C. § 2255

April 25, 2013 by Leave a Comment

The Tenth Circuit published its opinion in In re: Leo D. Graham on Tuesday, April 23, 2013.

In 2000, Leo D. Graham pleaded guilty to one count of armed bank robbery. He did not appeal, but later he unsuccessfully sought relief under 28 U.S.C. § 2255. He then moved for authorization to file a second § 2255 motion based on Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012).

Congress has placed strict limitations on successive § 2255 motions, requiring that a movant obtain this court’s authorization before filing in district court. See 28 U.S.C. § 2255(h). To obtain authorization based on Frye and Lafler, Mr. Graham must show that these decisions establish “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.”

To date, however, every circuit court to consider the question has held that Frye and Lafler do not establish a new rule of constitutional law. Both Frye and Lafler concern the Sixth Amendment right to the effective assistance of counsel in the plea bargaining process. In each case, the Court reached its decision by applying the well-established principles regarding the assistance of counsel that were initially set forth in Strickland v. Washington, 466 U.S. 668 (1984).

The Tenth Circuit denied authorization.

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Colorado Court of Appeals: Defendant Who Committed Non-Homicide Crimes as a Juvenile Sentenced Correctly Because Opportunity Exists for Parole

April 17, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lucero Jr. on Thursday, April 11, 2013.

Crim.P. 35(b)—Sentencing—Juvenile—Life Without Parole.

Defendant appealed the trial court’s order denying his Crim.P. 35(b) post-conviction motion seeking reduction of his aggregate eighty-four-year sentence for non-homicide crimes he committed as a juvenile. The order was affirmed.

In 2008, defendant was convicted of conspiracy to commit first-degree murder, attempted first-degree murder, and two counts of second-degree assault. The sentences for all were aggravated as crimes of violence. Defendant was 15 at the time of the incident giving rise to his convictions, but he was charged and tried as an adult.

On appeal, defendant asserted that his sentence violates the Cruel and Unusual Punishments Clause of the federal constitution’s Eighth Amendment and article II, § 20 of the Colorado Constitution. In Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010),the U.S. Supreme Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes. Defendant argued that his sentence constitutes a de facto LWOP sentence. Defendant will be eligible for parole when he is 57 years old. Because defendant’s sentence provides a meaningful opportunity for release, however, it does not amount to LWOP.

Summary and full case available here.

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