June 16, 2019

Archives for October 19, 2011

Upcoming Solo/Small Firm Monthly Networking Meetings: November 2011

The Solo/Small Firm Section networking meetings are a great opportunity to connect with your peers, as well as a practice management and technology discussion forum. The meetings are open to all CBA members, not just members of the Solo/Small Firm Section, the sponsoring entity. Colorado Springs routinely offers CLE credits, although sometimes there is no formal agenda, and no RSVP is required to attend any of the meetings.  You are encouraged to think about and prepare questions or ideas to present to the group.  Don’t hesitate to e-mail a meeting coordinator to suggest a CLE topic and/or speaker!

  • Colorado Springs
    • November 2 (First Wednesday of every month)
      • Luncheon at 11:30 am, CLE at 11:45
    • Ritz Grill, 15 S. Tejon, Colorado Springs, CO, (719) 635-8484
    • Contact Jim Duve, (719) 578-5800, JCD@DuveLaw.com, or John Holcomb, (719) 548-8968, jHolco@msn.com
  • Downtown Denver
    • November 8 (Second Tuesday of every month)
      • Happy Hour at 5:30 pm
    • Stoney’s Bar and Grill, 1111 Lincoln St., Denver, CO (303) 830-6839
    • Contact Jennifer D. McGinn, (720) 362-3000, Jennifer@mcginnlawoffice.com.
    • There is no parking at the bar but there is free 2-hour parking up one block on Sherman St. and there is a garage directly across the street from the bar on Lincoln St.  There is also plenty of metered parking on Lincoln.
  • Downtown Denver
    • November 3 (First Thursday of every month)
      • Breakfast at 7:30 am
    • Tavern Restaurant inside the Denver Athletic Club, 1325 Glenarm Place, Denver, CO (303) 534-1211 – Reservation under D.A. Bertram
    • Contact Frank P. Slaninger, (303) 617-4446, slaninger@comcast.net.
  • West Denver Metro Area (Jeffco)
    • November 9 (Second Wednesday in odd months)
      • Breakfast at 7:30 am
    • Mimi’s Café, 14265 West Colfax Ave., Golden, CO (303) 384-9350
    • Contact Dayle Anderson, (303) 980-7990, d.l.anderson@comcast.net.
  • Denver Tech Center Area
    • November 11 (Second Friday of every month)
      • Brown Bag Lunch at noon
    • Law Offices of Julian Izbiky, 7400 E. Caley Ave., Suite 300, Centennial, CO (303) 850-7080
    • Contact Phil Shuey, (303) 680-2595, shuey_p@comcast.net.
    • Exit I-25 and go west on Orchard and turn south on Quebec (or exit I-25 and go west on Arapahoe and turn north on Quebec).  From Quebec, turn east on E. Caley Ave.  The building is on the right, not far from Quebec.

Dates are subject to change; however, they will occur as scheduled unless prior notice has been sent to the Section membership via e-mail.  Please check this website on a regular basis.

Tenth Circuit: Relay Service Rates Set by FCC Not in Violation of Statute and Not Arbitrary and Capricious

The Tenth Circuit Court of Appeals issued its opinion in Sorenson Commc’ns, Inc. v. FCC on Tuesday, October 18, 2011.

The Tenth Circuit denied the petition for review. Petitioner challenges the 2010-2011 rates set by the Federal Communication Commission (FCC) to compensate Video Relay Service providers, including Petitioner. Petitioner claims that the rates are in violation of 47 U.S.C. § 225 and are also  arbitrary and capricious in violation of the Administrative Procedure Act (APA).

Section 225 directs the FCC to ensure the availability of nationwide access to “functionally equivalent” relay service, “to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States.” Petitioner alleges that the reimbursement rates set by the FCC’s rates are so low that the result violates these statutory requirements. However, Petitioner has failed to show the FCC’s interpretation of “functionally equivalent” is impermissible under the statute. “Consequently, it has not established that the interim rates violate the functional equivalence requirement of § 225.” In terms of the APA argument, the Court acknowledged its deference when reviewing ratemaking orders because “agency ratemaking is far from an exact science and involves policy determinations in which the agency is acknowledged to have expertise.” As such, the FCC is entitled to substantial deference when adopting interim rates. The Commission provided a sufficient explanation for the action it chose to establish the rates and, under the Court’s deferential review, that is all that is required. The rates were therefore not arbitrary and capricious.

Tenth Circuit: Attempts to Commit Drug Crimes Are Controlled Substance Offenses for Determining Career Offender Status

The Tenth Circuit Court of Appeals issued its opinion in United States v. Chavez on Tuesday, October 18, 2011.

The Tenth Circuit affirmed the district court’s conviction and sentence. Petitioner was arrested during a traffic stop for driving while intoxicated. Following his arrest, the police obtained a warrant to search his impounded vehicle for illegal contraband, during which officers found approximately one-third of a pound of cocaine. During his trial, Petitioner filed a motion to suppress the cocaine, arguing it was obtained in violation of the Fourth Amendment. The district court denied the motion and Petitioner entered a conditional guilty plea. During his sentencing hearing, the district court concluded that Petitioner qualified as a “career offender ” based on a prior conviction for attempted drug trafficking. Petitioner claims that attempted crimes do not qualify as predicate offenses for determining career offender status. The district court rejected this argument.

The Court also rejected all of Petitioner’s contentions. The Court concluded that the traffic stop was constitutionally sound under the Fourth Amendment and there “was ample probable cause to arrest [Petitioner], a conclusion that also resolves his detention and consent to search issues.” Therefore, the district court appropriately denied his motion to suppress the evidence. Next, the Court concluded that the Sentencing Commission “acted within this broad grant of authority in construing attempts to commit drug crimes as controlled substance offenses for purposes of determining career offender status. Because the commentary interprets controlled substance offenses as including convictions for attempted drug trafficking, and because the commentary is authoritative, the district court properly determined that [Petitioner] should be classified as a career offender.” The Court therefore affirmed Petitioner’s sentence.

Tenth Circuit: Possession of a Firearm Facilitated the Felony Offense of Tampering with the Firearm Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Marrufo on Tuesday, October 18, 2011.

The Tenth Circuit affirmed the district court’s sentence. In separate prosecutions arising from the same event, Petitioner was convicted in federal court of being a felon in possession of a firearm and in state court of tampering with evidence by hiding the same firearm. The U.S. Sentencing Guidelines adds four offense levels to a sentence calculation when the defendant used or possessed a firearm in connection with another felony offense. Petitioner argues on appeal that the federal district court should not have applied this sentence enhancement to him because his possession of the firearm did not facilitate his tampering with the firearm.

The Court disagreed. Section 2K2.1(b)(6) of the Sentencing Guidelines contains three elements: the defendant must 1) use or possess a firearm 2) in connection with 3) another felony offense. There is no dispute that Petitioner possessed a firearm and that he committed the felony offense of tampering with evidence. And, “in connection with” means to “facilitate” or make easier. Applying the plain meaning of “facilitate,” the Court concluded that Petitioner’s “possession of the firearm was ‘in connection with’ the other felony offense—tampering with evidence. Possessing physical evidence makes it easier to tamper with it.”

Tenth Circuit: Unpublished Opinions, 10/18/11

On Tuesday, October 18, 2011, the Tenth Circuit Court of Appeals issued three published opinions and seven unpublished opinions.

Unpublished

Marten v. Godwin

United States v. Green

United States v. Bell

United States v. McGuire

KC v. Holder, Jr.

Williams v. Sibbett

Laratta v. Brown

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

Spark the Discussion: Medical Marijuana Law and Policy

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

I’ll start with a bold prediction: marijuana reform and same-sex marriage are the two policy areas in which young lawyers will see major movement in their lifetimes. These two “controversial” topics stand at the crossroads of a shift in society, with the younger generation pushing for increased tolerance of alternative lifestyles—whether it’s marriage choice or an individual’s decision to medicate—or recreate—with marijuana—and older Americans increasingly accepting that, at least with these two topics, change is inevitable.

This article will focus on medical marijuana law and policy—a dynamic field that an increasing number of Colorado lawyers are facing in their everyday practice. Currently, sixteen states (and the District of Columbia) have passed statewide medical marijuana laws, and a half-dozen others are poised to take similar action. What started largely as an area within criminal law practice—a small number of lawyers defending medical marijuana patients accused of criminal violations—has expanded into a cottage industry impacting nearly every area of legal practice. This column will highlight some of those areas and discuss the future of this hot topic.

Before reading further, please note that while medical marijuana is legal in Colorado and a growing number of states, and literally thousands of doctors recommend it every year for sick patients, it remains firmly illegal under federal law. Given these conflicting state and federal stances, it’s crucial that lawyers practicing in this area closely follow emerging trends and policies.

  • Business Law:
  • Colorado and several other states have medical marijuana laws with provisions allowing for retail stores known as dispensaries to sell marijuana to qualifying patients.  Budding entrepreneurs need guidance from attorneys who understand not only medical marijuana laws, but also traditional business law. All facets of corporate law, from drafting  operating agreements to negotiating commercial transactions, come into play with the operation of dispensaries.
  • Family Law:
  • An increasingly common theme in the family law realm is the presence of medical marijuana in custody battles or divorce proceedings. Often these disputes arise not from actual neglect or abuse, but merely from the presence of marijuana in the home. Patients need solid guidance to keep this—and all medicine—firmly away from children. There is a desperate need for lawyers who understand both medical marijuana law and family law and can advocate appropriately when the two areas overlap.
  • Elder Law:
  • As medical marijuana patients age they often end up in nursing homes or in-patient hospice care. When Maine’s medical marijuana law changed last November, the state expressly permitted nursing homes and hospice workers to act as registered medical marijuana caregivers for patients. Other states are silent on this issue. Large questions remain about federal funding for this type of care and how one patient’s possession of a federally-illegal substance could place others at legal risk.
  • Civil Law:
  • Legal medical marijuana businesses have the same problems as other, more mainstream businesses, and partnership disputes by owners of such stores are commonplace in Colorado. Some owners came out of a less-mainstream past, and built a million-dollar business without signing an operating agreement. In these messy situations, civil litigation is often the only remedy.
  • Election and Municipal Law:
  • The passage of a statewide medical marijuana law is invariably followed by conservative municipalities attempting to ban sales and cultivation within municipal borders. When Colorado passed a dispensary law in 2010, around 50 municipalities put measures on their local ballots to ban these retail shops in their communities. Whether through ballot initiative or action by a government body, there is a real opportunity for lawyers who understand election and municipal law to engage in this area.
  • First Amendment:
  • The most common complaint from community members about dispensaries is that they have offensive signage. While polls consistently show that roughly 80% of Americans support medical marijuana, most citizens don’t want it shoved in their face. Medical marijuana business owners need lawyers to explain their rights—and encourage discretion.
  • Intellectual Property Law:
  • “Can we patent the recipe for my marijuana cheesecake?” This question may seem peculiar, but my office gets several calls a week of this nature. As more patients turn to alternate forms of administering medical marijuana, such as through edibles or tinctures, interesting questions arise concerning protecting the manufacturer’s recipes and formulas.
  • Criminal Law:
  • As long as federal law continues to classify marijuana as a Schedule I Controlled Substance—the most dangerous and addictive class of drugs—there will be work for criminal defense attorneys representing medical marijuana patients and providers in federal court. On the state and local level, authorities continue to zealously target adults for marijuana crimes,  arresting over 750,000 citizens for possession of marijuana annually. That’s the equivalent of arresting every man, woman, and child in the state of Wyoming once a year!

As young attorneys in Colorado, we have an incredible opportunity in the field of medical marijuana law. Unlike property law or criminal law, this area is new and has very little case precedent. The young idealist attorney will fight out these important cases in the courtroom and establish laws that make sense both for the patient and the community.

Many lawyers initially chose this patient-centered line of work because they believed the time had come to pursue a more common-sense approach to marijuana and drug policy in America. Now, as lawyers from a diverse range of practice areas are entering this arena, let’s hope all remain true to the core principles that attracted most of us to this work:

Patients before politics; patients before profits.
Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.