March 26, 2019

Archives for August 2, 2013

Tenth Circuit: Use of Juvenile Adjudication for Sentencing Under ACCA Did Not Violate Eighth Amendment

The Tenth Circuit Court of Appeals published its opinion in United States v. Orona on Wednesday, July 31, 2013.

Raul Roger Orona, Jr., was convicted of being a felon in possession of a firearm. Based on his status as an armed career offender, he was sentenced to 198 months’ imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). At sentencing, the district court concluded that his sentence under ACCA was constitutional, but stated it was persuaded that “defendant has somewhat less culpability” given that one of his predicate offenses occurred when he was a juvenile. Orona appealed.

On appeal, Orona argued that the use of his juvenile adjudication as a predicate offense for ACCA purposes violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The Eighth Amendment bars “the imposition of inherently barbaric punishments under all circumstances” and punishments that are “disproportionate to the crime” committed. Orona did not establish that a national consensus existed against the use of juvenile adjudications to enhance a subsequent adult sentence. The court found that states vary tremendously in the degree to which they permit a prior juvenile adjudication to impact sentencing following a subsequent adult conviction. In the cases cited by Orona, the sentences were imposed for crimes committed while the defendants were young. In this case, an adult defendant faced an enhanced sentence for a crime he committed as an adult.

The court also rejected Orona’s claim that the residual clause of ACCA is unconstitutionally vague. The void-for-vagueness doctrine provides that a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. ACCA defines “violent felony” as including any crime that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Because of the United States Supreme Court’s consistent rejection of Orona’s vagueness argument and the unanimous conclusion of its sibling circuits, the Tenth Circuit held that the residual clause was not impermissibly vague.

AFFIRMED.

Tenth Circuit: Attorney Not “Debt Collector” Under Fair Debt Collection Practices Act

The Tenth Circuit Court of Appeals published its opinion in James v. Wadas on Wednesday, July 31, 2013.

George James filed this action against Cheryl Wadas and Wadas Law Office (“Wadas”) and Abby Shadakofsky, d/b/a Personal Collection Service (“Shadakofsky”), asserting violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. James appealed from the district court’s order granting summary judgment in favor of Wadas on the basis that she is not a “debt collector” within the meaning of the FDCPA.

At issue was the district court’s interpretation of the term “debt collector” under the FDCPA, and its conclusion that Wadas was not a “debt collector” because she did not engage in debt collection “regularly.”

Congress enacted the FDCPA with the express purpose to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). A defendant can be held liable for violating the FDCPA only if she is a “debt collector” within the meaning of the FDCPA. The FDCPA defines the term “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” In Heintz v. Jenkins, the Supreme Court determined that attorneys may qualify as “debt collectors” under the FDCPA, holding that the Act applies to “attorneys who ‘regularly’ engage in consumer-debt collection activity, even when that activity consists of litigation.” 514 U.S. 291, 292, 299 (1995).

Based on the evidence, the district court determined that there were “no indicia” that debt collection was either a principal purpose of Wadas’s law practice or that Wadas “regularly” engaged in debt collection. Nor were there any discernible patterns, either through debt collection or litigation, that would support a finding that Wadas engaged in debt collection regularly. The court agreed with the district court’s analysis. The record did not demonstrate that Wadas engaged in debt collection with any sort of regularity.

The Tenth Circuit AFFIRMED.

Tenth Circuit: Unpublished Opinions, 8/1/13

On Thursday, August 1, 2013, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Henson

Jane Doe #1 v. Boulder Valley School District No. RE-2

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

Licensing Fees for Wyoming State Bar Increasing

The Wyoming State Bar announced on Thursday, August 1, 2013, that fees for attorneys licensed in Wyoming will increase effective October 1, 2013. As previously reported by Legal Connection, registration fees for Colorado attorneys will increase on September 1, 2013.

The fees for the Wyoming State Bar will increase $50 for all categories. Active attorneys will now pay $355 for licensing, inactive attorneys will pay $237.50, and new attorneys will pay $242.50.

For more information, visit the Wyoming State Bar webpage.