May 27, 2017

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.

Colorado Court of Appeals: Pattern of Abuse Convictions were Sentence Enhancers to Substantive Acts

The Colorado Court of Appeals issued its opinion in People v. Wiseman on Thursday, April 20, 2017.

Sexual Assault on a ChildIllegal SentencingConsecutive Sentences—Concurrent Sentences—Sentence EnhancersColorado Sex Offender Lifetime Supervision Act of 1998—Double Jeopardy—Due Process—Laches—Speedy Sentencing—Cruel and Unusual Punishment.

A jury found Wiseman guilty of acts constituting sexual assault on a child under the age of 15 by one in a position of trust. Wiseman received four sentences, three of which were to run consecutively, and one to run concurrent to two others. While Wiseman was incarcerated in the Department of Corrections (DOC), the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to 46 years imprisonment.

On appeal, Wiseman contended that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. Counts seven and eight did not encompass “additional” substantive crimes for which one or more separate sentences could be imposed; they acted as mere sentence enhancers for counts one and three. Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred. As to the types of sentences, concurrent sentencing is required when offenses are supported by identical evidence. Here, Wiseman’s convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court’s discretion. The district court, therefore, erred in concluding that it was statutorily required to impose consecutive sentences.

Wiseman requested that the case be remanded for reinstatement of the original judgment of conviction and sentences. But Wiseman’s crimes were punishable by indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). Thus, Wiseman’s original and revised sentences were both illegal, and a remand for the imposition of a “legal” indeterminate sentence under SOLSA is required: Wiseman must be sentenced for each conviction to an indeterminate sentence having a minimum term of a certain number of years and a maximum term of life imprisonment.

Wiseman objected to the imposition of another sentence that could expose him to the potential of serving life in prison. He asserted that imposing an indeterminate sentence at this point in time, over 15 years after he was initially sentenced, violated double jeopardy, due process, laches, speedy sentencing, and cruel and unusual punishment principles. Because Wiseman was put on notice by the statute that his offense would be subject to an indeterminate sentence, he lacked a legitimate expectation of finality in his original sentence. Thus, correcting the illegal sentence does not violate double jeopardy. There is no due process violation because Wiseman has no fundamental right to avoid serving a lawful sentence of which he should have been aware, and the State of Colorado has legitimate interests in the correct application of its laws and avoiding the precedential risk of irregular enforcement of its laws. The doctrine of laches is not applicable in the context of a Crim. P. 35(a) motion to correct an illegal sentence. The court of appeals found no basis on which Wiseman may assert that resentencing him would violate a constitutional right to speedy sentencing under Crim. P. 32(b). Lastly, the court disagreed that the imposition of a legal, indeterminate sentence would constitute cruel and unusual punishment because (1) Wiseman’s premise that he had an expectation that he would be immediately released on parole under his original sentence is wrong, and (2) such a claim cannot be predicated on the negligence of executive agencies or the courts in failing to impose or correct a sentence at a much earlier date.

The sentence was vacated and the case was remanded with instructions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Crime of Violence Sex Offense Sentence Cannot be Reduced to Probation

The Colorado Court of Appeals issued its opinion in People v. Al-Turki on Thursday, April 6, 2017.

Colorado Sex Offender Lifetime Supervision Act—Probation—C.R.S. § 18-1.3-406(1)(a) and (b)—Crime of Violence—Sex Offender.

Al-Turki was convicted under the Colorado Sex Offender Lifetime Supervision Act of 1998 (LSA) of 12 counts of unlawful sexual contact through use of force, intimidation, or threat. The district court ultimately sentenced him to indeterminate prison terms of six years to life. Al-Turki renewed his previously filed Rule 35(b) motion for reduction of sentence, arguing that he was eligible for a probationary sentence under C.R.S. § 18-1.3-406(1)(a). The trial court denied the motion.

On appeal, Al-Turki contended that he was eligible to have his indeterminate term of incarceration sentence, which was imposed under the LSA and the crime-of-violence statute, C.R.S. § 18-1.3-406(1)(b), modified to probation under C.R.S. § 18-1.3-406(1)(a). The mandatory sentencing for violent crimes statute, C.R.S. § 18-1.3-406(1), differentiates between crimes of violence that involve sex offenses (C.R.S. § 18-1.3-406(1)(b)) and those that do not involve sex offenses (C.R.S. § 18-1.3-406(1)(a)). C.R.S. § 18-1.3-406(1)(b) provides that defendants convicted of a sex offense that is a crime of violence “shall” be sentenced to an indeterminate term of incarceration. Thus, a crime-of-violence sex offender is not eligible for probation. Al-Turki was convicted of a sex offense that is a crime of violence. Therefore, the district court did not err in concluding that C.R.S. § 18-1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to probation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Challenge to Sentence Moot when Court Affirmed on Evidentiary Complaints

The Colorado Court of Appeals issued its opinion in People v. Valdez on Thursday, April 6, 2017.

Murder—Robbery—DNA Evidence—Collateral Estoppel—Expungement—Constitutionality—Katie’s Law—Surveillance Camera—Evidence—Jury.

A jury convicted Valdez of first degree murder after deliberation and several other charges arising from the robbery of a jewelry store during which one of the two hooded robbers shot and killed the owner. Valdez did not testify but defended based on misidentification. Valdez was sentenced to life without the possibility of parole on the first degree murder count, was consecutively sentenced to 32 years on the aggravated robbery count, and received concurrent sentences on the other counts.

On appeal, Valdez argued that the match of his DNA to the DNA evidence from the crime scene was derived from a sample unconstitutionally collected when he was arrested on an unrelated charge in a traffic case. Valdez’s DNA sample was taken during his arrest for aggravated driving under restraint—habitual offender. Although Valdez pleaded guilty to a misdemeanor in that traffic case and was eligible to apply for DNA expungement under C.R.S. § 16-23-105 (part of Katie’s Law), he failed to either move to suppress the DNA sample before pleading guilty or seek expungement based on his misdemeanor plea. The constitutionality of Katie’s Law was not determined in the traffic case. Because Katie’s Law, as applied to Valdez, is constitutional, the trial court did not err in denying his motion to suppress.

Valdez also argued that the district court erred in admitting a surveillance camera video of the robbery in progress depicting the owner’s dying moments because it was unfairly prejudicial, and further erred by improperly giving the jurors unfettered access to replay all of the videos during deliberations. The recording of the robbery in progress showed the actual crime. Therefore, it was not unfairly prejudicial, and the trial court did not abuse its discretion by admitting the surveillance video from the overhead camera. Additionally, the videos were played for the jurors only after their request, and the court clerk supervised the playback. Therefore, the trial court did not abuse its discretion in declining to limit the number of times the jury could view the videos or in refusing to impose other restrictions on the jury’s consideration of them.

Having affirmed Valdez’s convictions on all charges, including first degree murder, Valdez’s argument that it was error to impose a lesser sentence consecutively rather than concurrently is moot.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: District Court has Wide Discretion to Impose Special Conditions of Supervised Release

The Tenth Circuit Court of Appeals issued its opinion in United States v. Bowers on Friday, February 10, 2017.

Donald Bowers was charged and convicted on two counts of civil contempt in violation of 18 U.S.C § 401(3) for willfully and repeatedly violating a permanent injunction against him stemming from a civil trade secret misappropriation suit. Bowers was sentenced to fifteen months’ incarceration and, following his release, a thirty-six month period of supervised release, during which he would make monthly payments of the remaining amount he owed to the plaintiff in the underlying civil suit. Bowers appealed, claiming that the court erred by imposing payments to the plaintiff in the civil case as part of his supervised release, denying his motion for disclosure of the criminal referral, and sentencing him for a period that exceeded six months.

The underlying civil case did not actually include Bowers himself, but his son Lonny Bowers (Lonny) and the officers of WideBand, who were sued by ClearOne Communications, Inc. for misappropriation of trade secrets. Bowers became involved when he entered into an agreement with the defendants in the case to purchase WideBand’s assets in exchange for money to pay their legal fees. The court issued a temporary restraining order and preliminary injunction to stop the transfer of assets to Bowers.

In the civil case against WideBand, the jury returned a verdict against the defendants that included compensatory damages against all the defendants, and punitive damages against two of the WideBand officers (not including Lonny). The day after the verdict in the WideBand case, Bowers filed a statement to perfect a security interest in all of WideBand’s assets. When the court ordered Bowers to appear to show why he was not in contempt for violating the existing temporary restraining order, he failed to appear, and the court determined that he was also subject to the existing restraining order as he acted in concert with the defendants in the WideBand case.

After Bowers failed to appear in multiple contempt hearings and again violated the permanent injunction by setting up and operating DialHD, Inc., a company that used the assets of WideBand, the court issued a memorandum decision and civil contempt order against Bowers for violating the permanent injunction, and directed Bowers to self-surrender for incarceration and pay ClearOne’s reasonable attorney fees and costs. Bowers failed to purge himself of the contempt charge, and the court issued a bench warrant for his arrest. The court rejected both of Bowers’ appeals from the civil cases.

The district court entered a civil judgment against Bowers in an amount of $57,188.61 in attorney fees for violating the permanent injunction, an amount of $22,743.88 to pay ClearOne’s costs and fees from the original ClearOne civil case, and $8,648 in appellate attorney fees in connection with his first appeal in the civil case. In relation to the contempt cases against Bowers, the district court judge who presided over the civil case sent a memo regarding the referral of criminal contempt charges for Bowers to the United States Attorney for the District of Utah, outlining the details of the civil case. A federal grand jury returned an indictment against Bowers for willfully disobeying the permanent injunction and civil contempt order, both in violation of 18 U.S.C. § 401(3). A jury found Bowers guilty on both counts.

Bowers was sentenced to fifteen months’ imprisonment, followed by a term of three years supervised release, during which he would make monthly payments to ClearOne. On appeal, Bowers argued that the district court abused its discretion by ordering him to make monthly payments to ClearOne, denying his motion to compel the government to disclose the criminal referral, and argued that his sentence is illegal because 18 U.S.C. § 402 limits sentences like those Bowers committed to no more than six months.

As to his first contention regarding the imposition of payments as a condition of his supervised release, the court stated that district court has broad discretion to impose special conditions of supervised release, stating that the conditions must only (1) be reasonably related to the nature and history of the defendant’s offense, the deterrence of criminal conduct, the protection of the public from the defendant’s crimes, or the defendant’s educational and other correctional needs; (2) involve no deprivation of liberty than is reasonably necessary; and (3) be consistent with pertinent policy statements issued by the Sentencing Commission. The court rejected Bowers’ argument, stating that the special condition in this case satisfies all of the requisite elements.

Bowers’ second argument on appeal, that the district court erred in denying his motion to discover the criminal referral, was also rejected by the court, as the information in the referral did not contain oral or written statements or other evidence that would render it discoverable under Fed. R. Civ. P. 16. Finally, the court also rejected Bowers’ argument that a sentence of fifteen months for his crimes was illegal under § 402, as he did not raise it at the district court level and therefore waived his right to assert the argument at the appellate level. The court added, however, that even if Bowers had not waived the argument, he still would not be entitled to relief because he was not charged under §402, but under § 401, which does not impose a maximum punishment.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: District Court Did Not Err in Finding Assault Occurred Despite Poor Quality Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Henry on Friday, February 3, 2017. Panel rehearing was granted for the sole purpose of adding a footnote; that opinion is available here.

Tremale Henry finished a prison sentence for violating federal drug laws and was under supervised release for five years thereafter. During his five year supervised release, Mr. Henry was found by the district court to be responsible for two separate assaults with a dangerous weapon. The district court sentenced Mr. Henry to a 24-month prison term followed by six further years of supervised release. Mr. Henry argues that the district court impermissibly relied on hearsay when reaching its judgment.

The Tenth Circuit first addressed Mr. Henry’s first assault charge. In finding that Mr. Henry committed this assault, the district court relied on statements from a witness, Candace Ramsey. Ms. Ramsey testified that she saw Mr. Henry lunge at his victim with a small object, but that she could not see exactly what that object was. A probation officer then testified that Ms. Ramsey told him before the hearing that she saw Mr. Henry use a knife. The district court apparently credited this hearsay. Additionally, the district court relied on a surveillance video that showed Mr. Henry make rapid movements towards the victim. Although the video quality was poor and a knife could not clearly visible, the district court found that the reaction of the victim was consistent with a violent assault with a dangerous weapon. The district court found that all of these facts taken together established that Mr. Henry committed the first assault with a dangerous weapon.

The Tenth Circuit held that the district court did not err in its finding regarding the first assault. The Tenth Circuit stated that the usual rules of evidence do not apply in revocation hearings, and that the Supreme Court has allowed hearsay into supervised release proceedings. The Tenth Circuit went on to state that Fed. R. Crim. P. 32.1(b)(2)(C) grants a defendant in a revocation hearing the opportunity to question any adverse witness. Additionally, in United States v. Jones, the Tenth Circuit held that the application of Rule 32.1(b)(2)(C) requires a district court to conduct a balancing test to weigh “the defendant’s interests in confronting a witness against the government’s interest in foregoing the witness’s appearance.”

The Tenth Circuit held that neither Rule 32.1(b)(2)(C) nor Jones was applicable with regard to the first instance of the assault charge because the witness was available for cross-examination. Ms. Ramsey did appear at the hearing and Mr. Henry had the chance to question her about her hearsay statement. Additionally, Mr. Henry did not provide evidence to establish that his minimal due process rights were violated.

The Tenth Circuit next addressed the second assault charge, which consisted of the stabbing of the victim. The district court relied on out-of-court statements that the victim and the victim’s girlfriend made to a police detective. That detective then relayed the statements to Mr. Henry’s probation officer. Mr. Henry’s probation officer presented these statements at the revocation hearing, but neither the victim, his girlfriend, nor the detective was subject to cross-examination. Therefore, the Tenth Circuit held that Rule 32.1(b)(2)(C) and Jones did apply to this assault charge, and that the district court failed to conduct the balancing test Jones required.

The Tenth Circuit held that the district courts failure to apply the relevant tests was not a harmless error. The Tenth Circuit came to this conclusion because it determined that the district court considered both assault charges when it fashioned its sentence. Therefore, the error was not harmless and the Tenth Circuit remanded the case back to the district court for resentencing.

Colorado Supreme Court: Trial Court Cannot Impose Probationary Sentence Without Defendant’s Consent

The Colorado Supreme Court issued its opinion in Veith v. People on Monday, March 6, 2017.


The Colorado Supreme Court considered whether a defendant has consented to a probationary sentence imposed in addition to a sentence of incarceration when he or she requested probation in lieu of incarceration. The court held that a trial court cannot impose a sentence of probation without the defendant’s consent.

Accordingly, the supreme court held that in this case the trial court exceeded the scope of Veith’s consent when it imposed a 10-year prison sentence in addition to the probationary sentence. The  judgment of the court of appeals was reversed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Prison Sentence Cannot be Solely Based on Need for Rehabilitation

The Tenth Circuit Court of Appeals issued its opinion in United States v. Thornton on Friday, January 20, 2017.

In 2014, Christopher Thornton pled guilty to possession of a firearm as a felon. Under the Federal Sentencing Guidelines, possible imprisonment for that offense ranges from 77 to 96 months. Thornton requested a downward variance to 38 months based on mitigating factors such as his youth and the nonviolent nature of his criminal history. The district court denied the motion and imposed a sentence of 78 months’ imprisonment. The district court offered several reasons for its decision not to grant the downward variance, including community safety concerns and that Thornton “[needed] enough time in prison to get treatment and vocational benefits.” The district court specifically stated, “He’s got mental health issues, and he needs treatment.”

Thornton appealed to the Tenth Circuit, arguing a violation of Tapia v. United States, 564 U.S. 319, 335 (2011), which held that federal judges may not use imprisonment as a means to promote defendants’ correction or rehabilitation. The issue on appeal was whether the district court committed procedural error by basing the length of Thornton’s sentence, in part, on the amount of time required to complete treatment and vocational services he would receive in prison.

The Sentencing Reform Act commands federal judges to generally consider several factors when determining an appropriate sentence. These factors include the nature and circumstances of the offence, the public’s need for punishment, and deterrence. The Act states that imprisonment is not meant to promote correction and rehabilitation. The Supreme Court in Tapia held that sentencing courts could consider all of the factors listed in the Act for determining the length of imprisonment, but determination of the length of imprisonment cannot be based on enabling the offender to complete a treatment program or the promotion of rehabilitation.

In the district court, Thornton failed to make an objection concerning the district court’s violation of Tapia. Because this was a new argument on appeal, the Tenth Circuit reviewed for plain error. The Tenth Circuit divided its analysis into two parts. The first addressed whether there was error. The second addressed whether that error was plain. The Tenth Circuit determined that the district court erred and that this error was not plain due to particular nuances in the Tapia analysis that have not been clearly established by precedent.

For the first part of its analysis, the Tenth Circuit concluded that the district court erred because it based Thornton’s sentence, at least partially, on the desire to promote his rehabilitation.

The Tenth Circuit rejected the government’s four arguments for why Tapia should not control in this case. First, the government argued that motions for downward-variances are not subject to Tapia error. The Tenth Circuit held that because the district court was determining the length of the sentence when ruling on the motion for a downward variance, Tapia must govern it. Therefore, downward variance motions are treated the same as other decisions impacting sentence length.

Second, the government claimed that because it relied on other factors when denying Thornton’s motion for downward variance, including his criminal history and community safety, the district court did not err. The Tenth Circuit rejected this argument, concluding that a court violates Tapia even when it only partially bases the length of a sentence on rehabilitation. The existence of alternative grounds for sentence length determination does not cure the error.

Third, the government asserted that reference to treatment or other services is not enough to violate Tapia. Instead, it argued, there must be a direct link between the length of the sentence and specific treatment programs in prison. The Tenth Circuit also rejected this argument, stating that no direct link is required for Tapia to apply. The Tenth Circuit interpreted Tapia to prohibit sentence lengths based on enabling “an offender to complete a treatment program or otherwise to promote rehabilitation.” The “or otherwise” language reveals a prohibition against more than just basing the sentence length on a specific rehabilitation program. It has never been held that a direct connection is required.

Lastly, the government argued that the district court only discussed rehabilitation programs in response to Thornton’s argument that he only required a sentence of 38 months to benefit from in-prison treatment, thereby mitigating any threat he posed to the public. The Tenth Circuit determined that the district court went further than simply addressing Thornton’s argument. The sentence issued was motivated by a desire to give Thornton the benefits of treatment in prison. Mere discussion of the consequences of undergoing in-prison treatment on an aggregating factor is not prohibited. Tapia only “precludes lengthening a prison sentence for the purpose of providing an offender with perceived rehabilitative benefits.” Without the motivation “to improve an offender’s lot” by issuing a lengthier sentence, no Tapia violation occurs. Here, the district court expressed its desire to give Thornton enough time to complete the programs offered in prison and imposed a sentence, in part, on that desire. Thus, the district court erred.

After finding error, the Tenth Circuit discussed why that error was not plain. According to United States v. Ruiz-Gea, an error is plain “when it is contrary to well-settled law.” The rule that precludes consideration of rehabilitation when determining the length of a prison sentence is clear. However, this case involved two issues that made existing precedent unclear: (1) whether Tapia is only violated when the court direct links the length of a prison sentence to a specific treatment plan, and (2) whether the court violates Tapia when it references rehabilitation only after the defendant injects rehabilitation into sentence length determination on his own initiative.

Here, the Tenth Circuit held that Tapia does not require a direct link, but that there was no binding case that held so before the instant case. It then determined that there was no clear guidance before the instant case on how to consider rehabilitation-based arguments raised by defendants. The Tenth Circuit held that a district court may address rehabilitation in evaluating a defendant’s arguments that such rehabilitation would justify a shorter sentence, but may not base the length of a sentence on a desire to promote the defendant’s rehabilitation. Before the ruling of this case, there was no controlling authority that clearly spelled out this delimitation. Therefore, the district court could not be faulted and the error was not plain.

Therefore, in abiding by the plain-error doctrine on appeal, because there was no well-established precedent on the two issues discussed, the Tenth Circuit held that the district court’s consideration of rehabilitation as a part of its sentencing calculus was erroneous, but not plainly so. The Tenth Circuit affirmed the sentence.

SB 17-010: Revising the Habitual Criminal Sentencing Statutes

On January 11, 2017, Sen. Daniel Kagan introduced SB 17-010, “Concerning the Identification of Habitual Criminals for Sentencing Purposes.”

Current law provides that, with certain exceptions, every person convicted of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony who, within 10 years of the date of the commission of the felony, has been twice previously convicted of a felony or a crime which, if committed within this state, would be a felony is an habitual criminal and shall receive an aggravated sentence. The bill states that:

  • A conviction for any class 4, 5, or 6 felony may not be used for the purpose of adjudicating a person as an habitual criminal unless the conviction was for a crime of violence; and
  • A conviction for any level 2, 3, or 4 drug felony may not be used for the purpose of adjudicating a person as an habitual criminal.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 1, 2017, at 1:30 p.m.

SB 17-087: Allowing Courts Discretion to Set Determinate Sentences for Certain Sex Offenders

On January 18, 2017, Sen. Irene Aguilar introduced SB 17-087, “Concerning Granting Judicial Discretion to Sentence a Defendant to an Indeterminate or Determinate Sentence for a Sexual Offense, and, in Connection Therewith, Requiring the Criteria and Basis for the Sentencing Decision to be Articulated on the Public Record.”

Currently, a court is required to sentence certain sex offenders to an indeterminate sentence that is a maximum of the sex offender’s life.

The bill allows the court to choose either the indeterminate sentence or a determinate sentence in those cases. The bill addresses the factors related to punishment and treatment that a court must consider when deciding between an indeterminate or a determinate sentence. The court must specify its reasons on the record for choosing either a determinate or an indeterminate sentence.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 8 at 1:30 p.m.

Colorado Court of Appeals: List of Examples for Notice in Statute Not Exclusive

The Colorado Court of Appeals issued its opinion in People v. Patton on Thursday, December 30, 2016.

Unauthorized Use of a Financial Instrument—Notice—Theft—Consecutive Sentence—Concurrent Sentence—–Statutory Amendment.

Patton purchased over $8,000 worth of consumer electronics from Ultimate Electronics using a Wells Fargo debit card that was issued to him. The card was declined during the transaction, and Patton used a false override authorization code to force the sale. Ultimate Electronics then received a “charge-back” from Wells Fargo, meaning it was not paid for the purchase. At trial, a Wells Fargo representative testified that the card had been cancelled before the transaction when Patton called the bank and reported that he had neither received it nor made purchases on it. The representative also testified that the bank employee would have told Patton that the card was cancelled and the bank would not have given an override code for the card. Patton was convicted of unauthorized use of a financial instrument and theft. He received a sentence of six years for theft and a consecutive sentence of three years for unauthorized use of a financial instrument.

On appeal, Patton argued that the trial court erred by denying his motion for judgment of acquittal after the prosecution failed to prove that he received notice in person or in writing that the debit card had expired or had been revoked or cancelled. The unauthorized use of a financial instrument statute does not require notice only in person or in writing. There was sufficient evidence to support a conclusion beyond a reasonable doubt that Patton received notice by telephone that his card was cancelled, revoked, or expired.

Patton also contended that the court committed plain error by imposing consecutive sentences because his crimes were based on identical evidence. When a defendant is convicted of multiple crimes based on the same act or series of acts in the same criminal episode and the evidence supporting each conviction is identical, the sentence must be concurrent. Here, the use of the cancelled debit card for the purchases without payment was part of the theft. Because the convictions were supported by identical evidence, the statute required the trial court to impose concurrent rather than consecutive sentences.

Patton further argued that his sentence should be reduced based on a change in the theft statute. At the time of his offenses in 2009, the value of the items Patton stole constituted a class 4 felony. In 2013, the statute was amended to reduce the offense to a class 5 felony. Because Patton was sentenced in 2014, he was entitled to the benefit of the amended statute.

Patton finally contended that the court improperly entered a conviction for a class 4 felony against him without a finding of actual value by the jury, and that instead he should only be convicted of a class 1 misdemeanor. There was evidence at trial that Patton had stolen items exceeding $8,000 in value, and Patton did not contest the value. Therefore, the record supports the conviction.

The judgment of conviction was affirmed, the consecutive sentences were vacated, the felony theft sentence was vacated, and the case was remanded for resentencing.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: “Wobbler” Statute Contemplates Vacation of Conviction Only, Not Sentence

The Colorado Court of Appeals issued its opinion in People v. DeBorde on Thursday, December 30, 2016.

Possession of a Controlled Substance“Wobbler” StatuteSurchargeSentenceFelonyMisdemeanorInability to Pay.

DeBorde pleaded guilty to one count of possession of a controlled substance, a level 4 drug felony. The court imposed a mandatory $1,500 felony drug offender surcharge as part of his sentence. When DeBorde completed his community corrections sentence, the court vacated his felony conviction and entered a conviction for a class 1 misdemeanor.

On appeal, DeBorde contended that once his conviction was reduced to a misdemeanor, the court should have likewise reduced his drug offender surcharge to the misdemeanor amount of $1,000. CRS § 18-1.3-103.5(2)(a), the “wobbler” statute, contemplates vacation of only the felony conviction, not the sentence. Accordingly, the amount of the drug offender surcharge was properly determined by the initial conviction.

DeBorde also argued that the district court should have waived all or part of the felony drug offender surcharge based on a finding that DeBorde was unable to pay it. While evidence in the presentence report may have supported a finding of DeBorde’s present inability to pay, there was no evidence in the record of DeBorde’s future inability to pay the surcharge. Further, DeBorde had an opportunity to supplement the record with additional evidence of his inability to pay, but he declined the district court’s invitation to do so.

Lastly, DeBorde contended that under the wobbler statute, the court erred by placing the burden on him to show his entitlement to the misdemeanor conviction in place of the felony conviction. The Court concluded this claim was moot because DeBorde was already granted relief on his motion to apply the wobbler statute.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.