July 22, 2019

Archives for July 29, 2015

Hon. Timothy Tymkovich Named New Chief Judge of Tenth Circuit

On Monday, July 27, 2015, the U.S. Court of Appeals for the Tenth Circuit announced that Hon. Mary Beck Briscoe will step down as Chief Judge, effective September 30, 2015, with Judge Timothy Tymkovich taking her place as chief. Judge Briscoe was appointed to the Tenth Circuit in 1995, and became Chief Judge since 2010. She will remain an active judge on the Tenth Circuit after stepping down as Chief Judge.

Judge Tymkovich was appointed to the Tenth Circuit in 2003. Prior to his appointment, he was in private practice in Denver, where he specialized in civil and constitutional matters ranging from election law to water law. He was Solicitor General for the Colorado Office of the Attorney General from 1991 to 1996 and clerked for Hon. William H. Erickson from 1982 to 1983. He received his law degree from the University of Colorado and his undergraduate degree from Colorado College.

Tenth Circuit: District Court Empowered to Consider All Relevant Conduct When Calculating Loss for Sentencing Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Alisuretove on Monday, June 8, 2015.

Elvin Alisuretove pleaded guilty to one count of conspiracy to commit wire fraud after authorities discovered his connection in a scheme to “skim” bank information off debit cards and make cash withdrawals from ATM machines. Alisuretove was sentenced to 63 months’ imprisonment followed by 36 months’ supervised release and was ordered to pay $240,682.27 in restitution. Alisuretove appealed both his sentence and restitution amount, arguing the district court erred in determining his total offense level, in calculating the amount of loss associated with his conduct, and in determining the amount of restitution owed under the Mandatory Victims Restitution Act (MVRA).

The Tenth Circuit first examined the total amount of loss attributed to Alisuretove. Under the Sentencing Guidelines, a loss between $200,000 and $400,000 would result in a 12-level increase to Alisuretove’s base offense level of 1. Alisuretove contends the district court’s calculation of $360,856.80 total loss was “clearly erroneous” because no evidence showed he placed or used the skimming devices. Alisuretove asserted that the only loss that should be attributed to him was the $140,000 he told officers about after arrest. The Tenth Circuit noted that the district court was empowered to consider not just the conduct proffered by defendant but also all of defendant’s relevant conduct. In this case, Alisuretove’s guilty plea, statements to law enforcement, and other evidence supported the district court’s calculation of $360,856.80 total loss. The Tenth Circuit found no error in this calculation.

The Tenth Circuit next evaluated the restitution amount under the MVRA. Alisuretove contended the district court erroneously took into account losses suffered by twelve financial institutions even though only five were named in the indictment. The Tenth Circuit found the word “victim” in the MVRA is not limited to only those victims named in the indictment but rather encompasses any person harmed in the course of defendant’s criminal conduct. However, because neither the PSR nor the district court made any factual findings regarding the specific losses suffered by the financial institutions, the Tenth Circuit remanded for recalculation of restitution.

The district court’s judgment was affirmed in part, reversed in part, and remanded for further findings.

Tenth Circuit: Unpublished Opinions, 7/28/2015

On Tuesday, July 28, 2015, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Esparza v. Falk

United States v. Magnan

Rodriguez-Casillas v. Lynch

United States v. Romero-Leon

United States v. Bartley

Jackson v. Park Place Condominiums Association, Inc.

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