July 22, 2019

Archives for December 12, 2014

Don Quick Appointed to Bench of 17th Judicial District

On Tuesday, December 9, 2014, the governor’s office announced the appointment of Don Quick to the district court bench in the Seventeenth Judicial District. Quick will fill a vacancy created by the retirement of Hon. Chris Melonakis, effective January 12, 2015.

Quick is currently senior counsel at Beatty & Wozniak, P.C., where he is a litigator for cases involving federal lands and environmental law. Prior to joining Beatty & Wozniak in January 2014, Quick had spent his career in public service. From 1988 to 1998, he worked in the DA’s office in the Seventeenth Judicial District. He worked in the Colorado attorney general’s office under Ken Salazar, and in 2004, Quick was appointed as District Attorney for the Seventeenth Judicial District.

For more information about the appointment, click here.

Nina Wang Nominated for U.S. District Court for District of Colorado

The U.S. District Court for the District of Colorado announced the nomination of Nina Y. Wang to replace retiring Magistrate Judge Boyd N. Boland. Judge Boland will retire effective February 8, 2015.

Ms. Wang was selected from a pool of 60 applicants, from which 5 were selected for suggestion to the court. Ms. Wang was unanimously selected by the court to fill the vacancy created by Judge Boland’s retirement. Her appointment is subject to a required background investigation.

Ms. Wang is currently a partner in the Intellectual Property Group at Faegre Baker Daniels, LLP, where she focuses her practice on complex intellectual property litigation. She represents clients on representative technologies such as software, wireless routers, genetic assays, and semiconductor materials. Prior to working at Faegre, Ms. Wang served as an assistant U.S. Attorney in the District of Colorado in the civil division. She received her J.D. from Harvard Law School and her undergraduate degree, summa cum laude, from Washington University.

Tenth Circuit: Concurrent Sentences Are Not Coterminous When They Begin at Different Times

The Tenth Circuit Court of Appeals issued its opinion in Brown v. Parker on Wednesday, November 12, 2014.

Mr. Brown was imprisoned for two sentences, one from Tulsa County and one from Muskogee County. Both sentences were two years, and the second one (Muskogee County) was to run concurrently with the first (Tulsa County), although they did not begin at the same time. Mr. Brown believed the sentences should end at the same time, so when he completed the first sentence, he expected to be released from prison, but he had not yet completed his Muskogee County sentence. Upon his eventual release, he sued under 42 U.S.C. § 1983, alleging that authorities had refused to release him when his Muskogee County sentence ended. In support, Mr. Brown relied on an order from the Muskogee County judge, which stated that the Muskogee County sentence was to end when the Tulsa County sentence ended. The district court granted summary judgment to defendants and Mr. Brown appealed.

The Tenth Circuit, though sympathetic to Mr. Brown’s plight, found the district court had ruled correctly. Mr. Brown’s sentences were concurrent, but not coterminous, and coterminous sentences are illegal under Oklahoma law. The magistrate judge in Muskogee County had said that the Muskogee sentence would end when the Tulsa sentence ended, but there was no basis in Oklahoma law for him to make this statement, so it had no legal effect and was a nullity. The district court had two options with regard to the order: disregard it or attempt to make it conform to Oklahoma law. It chose the latter. The district court found that the Muskogee sentence was to end in January 2013, two years after the beginning of the Tulsa sentence. Since Mr. Brown was released far before this date, the district court found no error and summary judgment was appropriate.

Tenth Circuit: Constitutional Claims Impermissible in Sentence Reduction Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gay on Wednesday, November 12, 2014.

In 1998, Alondo Gay was indicted on eight counts, including having distributed 245.3 grams of cocaine base. He pled guilty to that charge in exchange for dismissal of the remaining charges. The probation office prepared a presentence report using the 1998 sentencing guidelines, which held Mr. Gay accountable for 9,636.88 grams of cocaine base. He qualified for a base offense level of 38. The final PSR added four additional levels for a total offense level of 42. Initially, Mr. Gay objected to several factual findings in the PSR, but withdrew his factual objections at the sentencing hearing for a 3-level reduction. His guidelines sentencing range was 262 to 327 months’ imprisonment, and he was sentenced to 262 months.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the sentencing disparity between cocaine base and cocaine powder from a 100:1 ratio to a 33:1 ratio. In 2008, Amendment 706 was made retroactively applicable. Then, in August 2010, Congress enacted the Fair Sentencing Act, which further reduced the sentencing disparity ratio to 18:1. The Sentencing Commission adopted another retroactive amendment in response to the Fair Sentencing Act, which reduced the offense levels for offenses involving between 2.8 and 8.4 kg of cocaine base from 38 to 36.

In light of the sentencing changes, Mr. Gay filed a motion under § 3582(c)(2) to reduce his sentence. The district court denied his motion, finding him ineligible for relief because his sentence was based on a greater quantity of cocaine base than was affected by the amendments. Mr. Gay appealed, contending the application of his sentence under the 100:1 ratio violated his Fifth Amendment Due Process rights, and that the length of his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Tenth Circuit characterized his appeal as an impermissible attempt to collaterally attack his sentence. The only relief allowed in a § 3582(c)(2) proceeding is sentence modification, not argument of constitutional claims. Mr. Gay should have raised his constitutional arguments in direct appeal. The Tenth Circuit conducted a plain error review and found none. Mr. Gay’s sentence was affirmed.

Colorado Court of Appeals: Announcement Sheet, 12/11/2014

On Thursday, December 11, 2014, the Colorado Court of Appeals issued no published opinion and 38 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 12/11/2014

On Thursday, December 11, 2014, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Kouadio v. Holder

United States v. Greenwood

Sherrod v. Bonner

Bueno v. Timme

United States v. Oyegoke-Eniola

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