August 17, 2019

Archives for June 3, 2011

Tenth Circuit: Unpublished Opinions, 6/2/11

On Thursday, June 2, 2011, the Tenth Circuit Court of Appeals issued three published opinions and four unpublished opinions.


United States v. Ochoa-Olivas

United States v. Crabbe

Ba v. Holder, Jr.

Holt v. Bravo

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Respondent Retained the Right to Amend the Life Insurance Plan in the Plan Description

The Tenth Circuit Court of Appeals issued its opinion in Kerber v. Qwest Group Life Ins. Plan on Thursday, June 2, 2011.

The Tenth Circuit affirmed the district court’s dismissal of claims and grants of summary judgment. Petitioners are six participants in and two beneficiaries of a life insurance plan offered by Respondent and the plan provides life insurance benefits to certain classes of former employees of Respondent. The case “centers around two actions taken by [Respondent]: (1) a retirement option (the “5+5 Option”) offered to employees in 1989, and (2) amendments to the Plan that occurred between 1997 and 2007.” Petitioners contend that Respondents were not authorized to make certain changes to the plan and, in doing so, violated their fiduciary duty. The Court disagreed, finding that Respondent retained the right to amend the plan as outlined in the insurance plan description, and therefore Respondent’s actions did not constitute a material misrepresentation. Additionally, the Court determined that all of the alleged misrepresentations regarding the ability to make amendments to the plan were immaterial.

Tenth Circuit: Absent Alleged Age Discrimination, Petitioner Still Would Have Been Fired for Violation of Company Policy

The Tenth Circuit Court of Appeals issued its opinion in Simmons v. Sykes Enterprises, Incorp. on Thursday, June 2, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner appeals the district court’s grant of summary judgment in favor of her former employer, Respondent, on her claim of discrimination in violation of the Age Discrimination in Employment Act of 1967. The district court concluded that Petitioner failed to establish that Respondent’s reason for terminating her employment was pretextual.

The Court determined that Respondent honestly relied in good faith upon the reported inconsistencies both in Petitioner’s statements and between her statements and the statements of others regarding the disclosure of confidential information. Petitioner’s position “as an HR assistant carried with it a special duty to safeguard and maintain confidential employee information”; facts suggest that Respondent’s decision to terminate Petitioner stemmed from a desire for greater confidence in its HR staff, further evinced by its decision to also terminate another younger employee “who allegedly violated similar rules of confidentiality and investigatory protocol and was fired at the same time as Petitioner.” Ultimately, absent the alleged discriminatory bias, Respondent would still have fired Petitioner because she “violated company policy and could not be trusted with confidential information.”

Tenth Circuit: Defendant’s Admission of Being Born in Mexico is Sufficient Evidence to Conclude Defendant Was Neither a Citizen Nor a National

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sierra-Ledesma on Thursday, June 2, 2011.

The Tenth Circuit affirmed the district court’s conviction and sentence. Petitioner was convicted of having been found in the United States, without the express consent of the Attorney General, after having been deported. He now claims that the district court improperly failed to instruct the jury as to the mens rea required for conviction and that the government failed to prove beyond a reasonable doubt that he was not a national of the United States.

The Court disagreed with all of Petitioners claims. The Court found that the mens rea is satisfied by proving Petitioner’s “intent to do the act of entering the country.” Even though the district court erred in its jury instructions regarding the “knowingly” element of the mens rea, it did no reversible harm; Petitioner admitted in a sworn statement that he illegally reentered the United States without permission after his last deportation by walking across the border. Additionally, because Petitioner admitted he was born in Mexico, “a jury could reasonably conclude he was not born in the United States or in the only two United States territories in which birth does not accord citizenship but only national status . . . . As a result, the Government presented sufficient evidence from which a reasonable jury could conclude [Petitioner] was neither a citizen nor a national of the United States at the time alleged in the indictment.”

Tenth Circuit: Unpublished Opinions, 6/1/11

On Wednesday, June 1, 2011, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.


Whitington v. Zavaras

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Mandate from Appellate Court Did Not Limit Lower Court’s Discretion to Rely on a Different Offense to Sentence Petitioner as Armed Career Criminal

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shipp, Jr. on Wednesday, June 1, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner was convicted of possessing a firearm after a felony conviction; at sentencing, he was classified as an “armed career criminal” pursuant to the Armed Career Criminal Act (ACCA), based upon three predicate state convictions for violent felonies or serious drug offenses. Petitioner then filed a pro se motion to vacate, set aside, or correct his sentence, arguing that the district court erred in relying upon a “walkaway” escape conviction; when that motion was denied, he applied for a Certificate of Appealability (COA) with the Tenth Circuit.

About two weeks after applying for a COA, the Supreme Court decided Chambers v. United States, 129 S. Ct. 687, 691-93 (2009), “holding that the Illinois crime of failure to report for penal confinement falls outside the ACCA’s ‘violent felony’ definition.” The Tenth Circuit concluded that Petitioner’s escape conviction for failure to report does not qualify as a violent felony under Chambers and that he was entitled to retroactive application of Chambers on collateral review. Accordingly, the Court reversed the district court’s denial of his motion and remanded with instructions to correct Petitioner’s sentence in light of Chambers, by resentencing him without the ‘armed career criminal’ classification.” However, the district court substituted another qualifying offense to again sentence Petitioner under the ACCA, which Petitioner claims was counter to the Tenth Circuit’s mandate rule that he be sentenced without that classification.

The Tenth Circuit disagreed with Petitioner. The Court found that its mandate rule did not completely foreclose the application of the ACCA classification, but simply foreclosed the ACCA classification based on the escape conviction. The mandate did not limit the district court’s discretion to rely on a different predicate offense to sentence Petitioner as an armed career criminal.

New Probate Court Judge Appointed in Denver County

On Wednesday, Governor John Hickenlooper announced the appointment of Elizabeth Leith to serve as Probate Court Judge in the Second Judicial District, which serves Denver County. Leith will replace the Honorable C. Jean Stewart, who is stepping down as of June 30, 2011. Leith, who is from Denver, will begin at the Denver Probate Court on July 1.

Leith is currently Magistrate Judge for the Second Judicial District, where she has served since 1999. Before becoming a magistrate, she served as an Assistant City Attorney for Denver, Human Services Section, and as Deputy District Attorney for the Fourth Judicial District, Child Enforcement Unit. Leith also spent time as an associate attorney and in private practice.

Leith earned her bachelor’s degree from Metropolitan State College of Denver and her law degree from the University of Denver College of Law.