March 24, 2019

Archives for November 3, 2015

Colorado Supreme Court: Enhanced Indeterminate Sentence Appropriate for Per Se Crime of Violence

The Colorado Supreme Court issued its opinion in Chavez v. People on Monday, November 2, 2015.

Mandatory Sentencing—Crimes of Violence—Colorado Sex Offender Lifetime Supervision Act.

Defendant appealed his indeterminate sentence of imprisonment for 15 years to life on a class 3 felony conviction for sexual assault on a child by one in a position of trust—pattern of abuse. A class 3 felony carries a presumptive penalty range of four to 12 years’ imprisonment. The Supreme Court held that where a defendant is convicted of a sex offense that is also a crime of violence, he must be sentenced to an indeterminate sentence of  incarceration with a minimum term in the enhanced, crime-of-violence range. The trial court was therefore required to sentence defendant to incarceration for a minimum term of eight to 24 years, and a maximum term of his life. Because defendant’s sentence satisfies those requirements, the Court affirmed the court of appeals’ judgment upholding the legal sentence.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Mere Use of File Sharing Network Not Enough to Support Five-Level Enhancement

The Tenth Circuit Court of Appeals issued its opinion in United States v. Barela on Tuesday, August 18, 2015.

In 2007, the New Mexico State Police conducted a sting operation to identify people using peer-to-peer file sharing networks to view and distribute child pornography. Juan Lorenzo Barela, Jr., was one of the individuals identified in the sting, and a search of his computer revealed hundreds of images of child pornography and dozens of videos. Barela was indicted for and pleaded guilty to one count of distributing and attempting to distribute a visual depiction of minors engaged in sexually explicit conduct and one count of possessing and aiding and abetting the possession of a visual depiction of a minor engaged in sexually explicit conduct. The district court applied a five-level sentencing enhancement under U.S.S.G. § 2G2.2(b)(3)(B) based on Barela’s use of a peer-to-peer file sharing network and he received a 210 month controlling sentence. The district court also applied special conditions of supervised release, including prohibitions on possessing materials describing or depicting “sexually explicit conduct,” contacting any child, and loitering near places used primarily by children.

On appeal, Barela contended the five-level increase was not applicable based on mere use of a file sharing network without a showing that he received or expected to receive a thing of value in exchange for sharing his files. Instead, Barela contended a two-level enhancement was applicable. The Tenth Circuit agreed. Relying on its holding in United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007), the Tenth Circuit determined that mere use of a file sharing network was not enough to support the five-level enhancement. The Tenth Circuit vacated the sentence and remanded for resentencing.

Barela also appealed the imposition of the special conditions of supervised release, arguing the district court failed to cite any reasons for their imposition. On plain error review, the Tenth Circuit affirmed the district court, finding Barela failed to show that the district court lacked any basis for the imposition of the special conditions.

The Tenth Circuit vacated Barela’s sentence and remanded for resentencing, and affirmed the special conditions of supervised release.

Tenth Circuit: Unpublished Opinions, 11/2/2015

On Monday, November 2, 2015, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Underground Vaults & Storage, Inc. v. Cintas Corp.

United States v. Fitzpatrick

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