August 26, 2019

Archives for March 28, 2019

Tenth Circuit: When Defendant Enters Guilty Plea to Drug Charge with Attendant Quantity, Defendant Subject to Enhanced Penalties Associated Therewith

The Tenth Circuit Court of Appeals issued its opinion in United States v. Roe on Tuesday, January 29, 2019.

Mr. Roe plead guilty to conspiring to possess with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine. Pursuant to the terms of Mr. Roe’s plea agreement, the government requested a sentence below the twenty-year mandatory minimum. The district court sentenced Mr. Roe to a fifteen-year imprisonment.

Mr. Roe filed a § 2255 motion to vacate, set aside, or correct his sentence. He asserted trial counsel was ineffective for failing to challenge the drug quantity at the sentencing hearing, and for failing to file a notice of appeal as requested. The district court denied the drug-quantity claim, concluding Mr. Roe’s guilty plea established the relevant quantity. After trial counsel testified Mr. Roe never requested a notice of appeal be filed, Mr. Roe sought to amend his failure-to-file claim to focus on trial counsel’s failure to consult with him as to whether an appeal should be filed. The district court concluded that the failure-to-consult claim was an untimely new claim that did not relate back to the failure-to-file claim set forth in the original § 2255 motion, or in the alternative, the failure-to-consult claim failed on the merits.

The Court of Appeals affirmed the district court’s rulings. The Court held that when a criminal defendant enters a knowing and voluntary guilty plea to an indictment charging a drug conspiracy with an attendant quantity element, the defendant is subject to the enhanced penalties associated with the quantity. The Court also held Mr. Roe’s failure-to-consult claim did not relate back to his failure-to-file claim, and was therefore untimely.

In his original § 2255 motion, Mr. Roe asserted trial counsel should have objected at the sentencing to the applicability of the quantity-based, statutory mandatory minimum sentence. Specifically, Mr. Roe took issue with the quantity of drugs calculated in the  Presentence Investigation Report. The district court rejected Mr. Roe’s argument, finding that Mr. Roe knowingly and voluntarily admitted in the plea agreement that he conspired to distribute and possess with intent to distribute five kilograms or more of cocaine.

The district court concluded that the precise amount of drugs calculated in the Presentence Investigation Report was immaterial, because Mr. Roe’s plea to a conspiracy involving five kilograms or more of cocaine established the statutory minimum for his sentence. The district court noted that Mr. Roe never lodged a substantive, stand-alone challenge to the factual basis of his guilty plea. In other words, Mr. Roe did not seek to invalidate his plea on the basis that it is not supported by an adequate factual basis; instead, he attempted to escape the burden of his guilty plea while maintaining the benefits flowing from the plea agreement. The district court ruled that because Mr. Roe entered the guilty plea, the trial counsel’s failure to object to the sentence was neither deficient nor prejudicial.

On appeal, Mr. Roe argued that the district court erred in determining that the admission in his guilty plea established the applicability of the mandatory minimum. The Court of Appeals disagreed, finding that a knowing and voluntary guilty plea to a charge with an attendant quality element subjects the defendant to any enhanced penalties associated with that quantity. Therefore, the district court was correct in its ruling that Mr. Roe’s guilty plea established the applicability of the mandatory minimum, and thus Mr. Roe’s claim that his trial counsel was ineffective for failing to object to the applicability of the twenty-year mandatory minimum sentence must fail. 

Mr. Roe also asserted in his original § 2255 motion that he specifically instructed his trial counsel to file a notice of appeal. Following an evidentiary hearing, trial counsel testified that an appeal had never been discussed, and Mr. Roe had never instructed him to file a notice of appeal. Mr. Roe then sought to amend his § 2255 motion to include a failure-to-consult claim, and argued that his conduct during representation should have led trial counsel to believe Mr. Roe was interested in filing an appeal. In support of this position, Mr. Roe asserted that the question of whether the PSR attributed too much cocaine to Mr. Roe and whether there was a sufficient factual basis for a guilty plea to the conspiracy count. The district court concluded that the failure-to-consult claim was a new theory, and therefore time-barred. In the alternative, the district court further rejected the failure-to-consult claim on the merits.

The Court of Appeals agreed with the district court, concluding that the failure-to-consult claim set out in the amended § 2255 motion was based on an entirely new theory that would have had to be pleaded discreetly and supported by separate, specific factual averments. Therefore, the failure-to-consult claim did not assert a claim that arose out of the conduct in the original pleading and thus did not relate back to the original pleading. The Court of Appeals therefore held that because the failure-to-consult claim did not relate back to the original pleading, and was filed well past the one-year statute of limitation period, the failure-to-consult claim was time-barred.

Tenth Circuit: No Error in Failing to Grant Mistrial After Prosecution Elicited Previously-Barred Testimony

The Tenth Circuit Court of Appeals issued its opinion in United States of America v. Hargrove on Wednesday, January 2, 2019.

Defendant Mr. Hargrove was convicted and sentenced to sixty months imprisonment for conspiracy to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846, and of possession with intent to distribute 100 kilograms or more of a substance containing a detectable amount of marijuana, and aiding and abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.

Mr. Hargrove raised two challenges on appeal. First, the district court erred in failing to grant him a mistrial after the prosecutor elicited testimony that the district court had previously barred. Second, the district court erred in failing to grant him safety-valve relief under § 5C1.2 of the United States Sentencing Guidelines (U.S.S.G.). The Court of Appeals found no error in the district court’s rulings, and affirmed the district court.

Mr. Hargrove and two others were all found in Mr. Hargrove’s truck in the desert near the border between Arizona and New Mexico. Mr. Hargrove’s truck contained nearly 300 pounds of marijuana and two firearms. Prior to trial, Mr. Hargrove filed a motion in limine, in part to request that the district court exclude evidence that one of the firearms was stolen. The district court ruled that this evidence was inadmissible, as the risk of prejudice substantially outweighed any conceivable relevance, but allowed testimony about the presence of loaded firearms in the truck.

During trial, the prosecutor elicited testimony about the stolen gun, to which Mr. Hargrove’s counsel promptly objected and moved for mistrial. The court instructed the jury that they were to disregard anything regarding the firearm or its ownership. The prosecutor also took remedial measures during the remainder of the trial. Specifically, the prosecutor withdrew an exhibit displaying weapons retrieved from the truck, did not seek testimony from its expert witness regarding the use of firearms in the narcotics trade, and did not discuss either firearm during its closing arguments.

Following Mr. Hargrove’s conviction, Mr. Hargrove argued that he qualified for the safety-valve adjustment during sentencing under U.S.S.G. § 5C1.2. The district court denied Mr. Hargrove safety-valve relief.

With respect to the district court’s denial of Mr. Hargrove’s motion for mistrial, the Court weighed the three factors of the Meridyth test. First, the Court considered whether the prosecutor acted in bad faith. The Court noted that the prosecutor had specifically instructed the witness not to testify about the stolen nature of the gun. Further, the prosecutor’s conduct in immediately accepting responsibility for the improper testimony and taking steps to mitigate its prejudicial effects throughout the remainder of the trial was a strong indication that the prosecutor did not act in bad faith. The Court found this factor to weigh in favor of the government.

Next, the Court considered whether the district court limited the effect of the improper statement through its instructions to the jury. The Court noted that the district court gave two limiting instructions to the jury, one directly following the improper testimony, and one following the close of evidence. Because the district court had expressly and specifically emphasized that the jury was not to consider the improper statement for any purpose, the Court presumed the jury understood it was obliged not to consider any inferences based on such testimony and found this factor to weigh in favor of the government.

Finally, the Court considered whether the improper remark was inconsequential in light of the other evidence of the defendant’s guilt. The Court found that there was undisputed testimony which unequivocally indicated Mr. Hargrove was aware of and actively participated in the drug exchange, and any improper effect the improper statement may have had on the jury paled in comparison to the total weight of the government’s evidence, and therefore found this factor to weigh in favor of the government. Because the Court found all three factors weighed in favor of the government, the Court concluded that the district court did not err in denying Mr. Hargrove’s motion for a mistrial.

Mr. Hargrove also asserted the district court erred in denying him a U.S.S.G. § 5C1.2 safety-valve adjustment during sentencing. The district court had concluded that Mr. Hargrove was ineligible for the safety-valve reduction because the loaded firearms were located in the truck in close proximity to the drug trafficking, and had the potential to facilitate the drug trafficking. Mr. Hargrove argued on appeal that his possession of the firearms was unrelated to the drug-trafficking activity.

The Court disagreed. The Court explained that in evaluating the firearms provision of the safety-valve provision, there is a focus on the defendant’s own conduct and the nature of possession. The Court stated that active possession, by which there is a close connection linking the individual defendant, the weapon, and the offense, is sufficient to bar the application of the safety-valve. The Court noted that Mr. Hargrove had made no argument that the firearms were not his nor that the firearms were merely constructively possessed, instead Mr. Hargrove had conceded actual possession of the firearms by admitting that the firearms belonged to him and that he had brought them in the vehicle to the scene of the arrest. The Court held that for purposes of satisfying the safety-valve criteria, a firearm is possessed in connection with the offense if the firearm facilitates are has the potential to facilitate the offense. The Court therefore concluded that the district court did not err in denying safety-valve relief.


Tenth Circuit: Unpublished Opinions, 3/27/2019

On Thursday, March 27, 2019, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

Alfaro v. County of Arapahoe

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