July 21, 2018

Archives for July 13, 2011

Legal Affairs: Attorney Accolades, July 2011

Rothgerber Johnson & Lyons LLP is proud to announce that Charles Goldberg is the recipient of this year’s Isaac Hecht Award by the American Bar Association’s National Client Protection Organization.

Bryan D. Biesterfel has been elected Chair of the Board of Trustees for The Community Foundation, serving Boulder County. Biesterfeld is a business and real-estate lawyer in the Denver based law firm of Robinson Waters & O’Dorisio, P.C. He works with privately held businesses and their owners in mergers and acquisitions, entity formation and operations, sales, and purchases and leasing of real estate, as well as private placements of securities, wills, trusts and business succession planning.



Jennifer Eiteljorg, a shareholder at the law firm of Brownstein Hyatt Farber Schreck (Brownstein), was recently appointed to the Project Angel Heart Board of Directors. As a board member, Eiteljorg will help guide the strategic growth of the organization, which includes completion of a capital campaign for a new facility. Project Angel Heart’s mission resonates with her because of the impact a life-threatening illness has had on her own friends and family.

Attorney Otto Hilbert, a commercial litigator with the full-service law firm of Robinson Waters & O’Dorisio, has been named the Colorado Judicial Institute’s Board Chair.


As Board Chair, Hilbert will continue the Colorado Judicial Institute’s mission to ensure fair and impartial courts and improve accountability in the legal system.


Emma R. Keyser, an associate at the law firm of Brownstein, recently was appointed to the Colorado Ballet Board of Trustees. As a board member, Keyser will help fundraising and advocacy efforts to further the organization’s mission of enhancing the community’s cultural life.



The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

Tenth Circuit: Proposed Amendment to Sentencing Guidelines Not Sufficient Reason to Remand an Otherwise Reasonable Sentence for Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vasquez-Alcarez on Tuesday, July 12, 2011.

The Tenth Circuit affirmed the district court’s sentence. Petitioner pleaded guilty to illegal reentry into the United States after deportation following a conviction for an aggravated felony. His sentence of 27 months’ incarceration fell at the low end of the Sentencing Guidelines range. This range reflected a 12-level enhancement because Petitioner had been convicted of cocaine trafficking in 1995. On appeal, Petitioner argues that the district court placed too much weight on the 1995 conviction because it was stale. He challenges his sentence as substantively unreasonable. After this appeal was filed, the Sentencing Commission proposed an amendment to the Sentencing Guidelines that, had it been in effect at the time of Petitioner’s sentence, would have resulted in an 8-level rather than a 12-level enhancement; Petitioner contends that this proposed amendment bolsters his argument that his sentence was substantively unreasonable.

The Court was unpersuaded by Petitioner’s arguments. The Court found that Petitioner forfeited his stale conviction argument because he did not present it to the district court; the sentence can also be affirmed as there was no error or abuse of discretion. The district court’s sentence was substantially reasonable; the amendment to the Sentencing Guidelines has merely been proposed, not adopted, and the Court declined to take the drastic step of remanding for resentencing based solely on a proposed amendment.

Tenth Circuit: Panel Rehearing Granted to Amend Footnote; Counsel’s Motion to Withdraw Granted

The Tenth Circuit Court of Appeals issued its opinion in United States v. Senninger on Tuesday, July 12, 2011.

The Tenth Circuit considered Appellant’s Petition for Panel Rehearing. Also before the court was a request by Appellant’s counsel to withdraw and have new counsel appointed to represent Appellant.

Panel rehearing was granted solely to amend footnote 1. Accordingly, the panel’s opinion from June 21, 2011, was vacated and replaced. Counsel’s motion to withdraw was granted. The request for appointment of substitute counsel was denied.

Tenth Circuit: Static 911 Call and Unlocked Rural Home are Insufficient to Create Objectively Reasonable Belief that Someone Inside is in Need of Aid; Evidence from Search Inadmissible

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez on Tuesday, July 12, 2011.

The Tenth Circuit affirmed the district court’s decision. The United States appeals the district court’s order granting Respondent’s motion to suppress. Officers responded to a 911 call in which no one was on the other line. No one was at the home when officers arrived, but they entered an open sliding glass door after announcing themselves several times. In the home, they found drugs and possible child pornography in plain view. Respondent returned home while police were still conducting their search and he was arrested. The district court held that a warrantless search of Respondent’s home was not justified by exigent circumstances because law enforcement officers did not have an objectively reasonable basis to believe there was a person inside his home who was in need of immediate aid.

The Court agreed with the district court. The government bears the burden of proving that exigent circumstances rendered a warrantless search reasonable. “The government contends the officers’ warrantless search was justified by exigent circumstances because the officers had an objectively reasonable belief that someone inside the house needed immediate aid or was in danger,” based upon the appearance of the house when they arrived. However, the Court agreed with the district court in finding that a static 911 call is insufficient to create an objectively reasonable belief that someone inside the home is in need of aid. Also, the fact that the door was unlocked should not necessarily arouse suspicion as the house was in a rural area. Because there was no reasonable basis for believing an individual inside Respondent’s home was in need of immediate aid or assistance, the warrantless search of the home was a violation of the Fourth Amendment.

Tenth Circuit: Manslaughter Conviction Not a Crime of Violence as Defined by Sentencing Guidelines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Armijo on Tuesday, July 12, 2011.

The Tenth Circuit reversed in part and remanded the district court’s decision. Petitioner pleaded guilty to a single count of being a felon illegally in possession of a firearm. The Presentence Investigation Report concluded Petitioner’s base offense level was twenty-four because he had two prior felony convictions for crimes of violence: a felony menacing conviction and a manslaughter conviction. Petitioner objected to the application of USSG § 2K2.1(a)(2), asserting neither his felony menacing conviction nor his manslaughter conviction constituted a crime of violence. The district court rejected his objections, concluding both predicate felonies were crimes of violence for purposes of § 2K2.1(a)(2).

The Court disagreed with the district court regarding the manslaughter conviction. Petitioner’s manslaughter conviction is not a crime of violence as that term is defined in the Guidelines; the court specifically held that only those versions of manslaughter that involve intentional or purposeful behavior qualify as crimes of violence for purposes of § 4B1.2(a). Because Colorado’s version of manslaughter involves only reckless conduct, the district court erred in counting it as a crime of violence in calculating Petitioner’s offense level. Petitioner’s felony menacing conviction, on the other hand, is a crime of violence for purposes of the Guidelines. The Court remanded to the district court for reconsideration and resentencing.

Tenth Circuit: Unpublished Opinions, 7/12/11

On Tuesday, July 12, 2011, the Tenth Circuit Court of Appeals issued four published opinions and nine unpublished opinions.


United States v. Hawkins

United States v. Graham

United States v. Blind, Jr.

United States v. Flowers

Butterick v. Astrue

Huerta v. BioScrip Pharmacy Services, Inc.

McKenzie v. AAA Auto Family Ins. Co.

Bouziden v. Addison

United States v. Sankey

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

Colorado Supreme Court: Week of July 10, 2011 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of July 10, 2011.