July 21, 2019

Archives for November 13, 2014

Tenth Circuit: Government’s Late Filing Bars District Court Jurisdiction for Sentence Reduction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Baker on Tuesday, October 28, 2014.

Defendant Frederick Baker and co-defendant Mark Akins were indicted on a fraudulent investment scheme. The trials were separate, and Baker was eventually sentenced to 41 months’ imprisonment, the low end of the Guidelines range. Three weeks after sentencing, Baker met with prosecutors and provided them information about his and Akins’ role in the fraud and offered to testify against Akins. An assistant U.S. attorney told Baker he would recommend a sentence reduction to the court based on Baker’s proffered information. Twice during the year following his sentencing, Baker and his attorney asked the government to file a Crim. P. 35(b) motion for sentence reduction. The government did not do so, instead waiting until the completion of Akins’ restitution, which fell outside Rule 35(b)’s one year time limit for requests for sentence reduction. Eventually, the government did petition the district court for a sentence reduction under Rule 35(b)(2)(B), but the district court denied the motion as time-barred. Baker appealed.

The Tenth Circuit examined Rule 35(b), which allows the government to petition the court within one year of sentencing for a sentence reduction for defendants who provide information that materially assists the government. The government filed its motion under 35(b)(2)(B), which allows an exception for the one-year time bar for defendants whose information did not become useful until after the expiration of the one-year period. In its motion, the government said that Baker’s information was useful both before and after the expiration of the one-year period, but the district court found that it lacked jurisdiction to hear the motion due to Rule 35’s one-year time bar. The Tenth Circuit, though sympathetic to Baker, could find no reason to reverse the district court’s finding. The ruling was affirmed.

Tenth Circuit: Parental Privilege is Constitutionally Protected Interest and Restrictions on Parenting Require Heightened Justification

The Tenth Circuit Court of Appeal issued its opinion in United States v. Bear on Friday, October 31, 2014.

In 2001, Wesley A. Bear was convicted in Iowa state court of two counts of committing lascivious acts on a child following offenses involving two children under 12 years of age. As a result of these convictions, Mr. Bear is required to register for life as a sex offender under the Sex Offender Registration and Notification Act (SORNA). In 2010, Mr. Bear was convicted of a SORNA violation in a different part of Iowa. He subsequently purchased a trailer home and registered at the trailer’s address, but he and his wife and children moved to Oklahoma City and Mr. Bear failed to update his registration. He was arrested and charged with failure to comply with SORNA. He pled guilty, and was sentenced to 23 months imprisonment followed by 5 years’ supervised release with sex offender conditions, including requirements that he submit to sex offender mental health assessment and treatment, a prohibition on being at any residence where children under age 18 are residing, and a prohibition on associating with children under the age of 18 unless in the presence of a responsible adult who is aware of his criminal background. He objected to the imposition of the special conditions, arguing they were too remote in time to be reasonably related as conditions of his supervised release, that they prevented him from parenting his own children, and that he previously underwent sex offender mental health treatment around the time of his previous conviction. The district court overruled Mr. Bear’s objections and imposed the special conditions, and Mr. Bear appealed.

The Tenth Circuit, noting that district courts have broad authority to impose special conditions of supervised release, first addressed Mr. Bear’s contention that his prior convictions were too remote to be reasonably related to his supervised release. The Tenth Circuit found that, although his convictions were 12 years old and he had shown no further proclivity toward sexual deviance since his original conviction, the facts surrounding the original incidents were troubling, and the requirements of mental health assessment and treatment were appropriate. The Tenth Circuit also found no error in the district court’s reliance on the probation officer to determine when Mr. Bear was ready to be released from mental health treatment.

Next, the Tenth Circuit turned to Mr. Bear’s argument that the condition against being at any residence where minor children resided prevented him from associating with his own children. The Tenth Circuit found that the imposition of special conditions should not deprive a parent of his constitutionally protected parental privilege. Mr. Bear had not committed any sexual offense in the 12 years since his original offense, did not display continuing sexually deviant tendencies, and had never shown himself to be a danger to his own three children. The Tenth Circuit vacated the imposition of conditions that prevented Mr. Bear from parenting his own children. However, the Tenth Circuit found no error in the imposition of the special conditions as related to other children.

The district court’s sentence was affirmed as related to the mental health assessment and treatment, and also as to the restrictions involving unrelated children, vacated as to the restrictions regarding Mr. Bear parenting his own children, and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 11/12/2014

On Wednesday, November 12, 2014, the Tenth Circuit Court of Appeals issued four published opinions and two unpublished opinions.

United States v. Wardell

Clemmens v. Mortgage Electronic Registration Systems, Inc.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.