July 17, 2019

Tenth Circuit: Guilty Plea Does Not Waive Defendant’s Right to Contest Evidence Admission for Other Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Farmer on Wednesday, November 5, 2014.

Joseph Farmer was pulled over on I-40 in Oklahoma in June 2012. The officer who stopped him smelled marijuana and asked to search the car. During the search, the officer found a loaded .357 revolver under the front edge of the driver’s seat. Based on these facts, a jury convicted Farmer of being a felon in possession of a firearm, and he was sentenced to 60 months’ imprisonment followed by three years’ supervised release. Farmer appealed, contending the evidence of his 2010 firearm possession should have been suppressed because the evidence was obtained in an unlawful search.

The Tenth Circuit examined the prior firearm possession charge, and determined that although Farmer had pled guilty to the possession charge, thereby waiving his right to appeal that charge, he did not waive the right to assert that the search was unlawful for other purposes. The Tenth Circuit found that it was error for the district court to rule that Farmer had waived his right to challenge the search by pleading guilty. However, it found that the error was harmless beyond a reasonable doubt. Farmer’s defense at trial was that he did not know that the firearm was in the car. The government presented evidence that Farmer tried to distract the officer while he was searching the driver’s side of the car, muttered about the gun while the officer was searching, and tried to get his passenger to claim the gun as hers. These facts overwhelmingly support the conviction, regardless of the evidence of the prior conviction.

Farmer also argued the prosecutor’s closing remarks deprived him of a fair trial. During closing, the prosecutor made statements that the deputy had nothing to gain by planting a gun in Farmer’s car, which Farmer argued impermissibly vouched for the officer’s credibility. The Tenth Circuit disagreed, finding instead that the prosecutor was addressing the defense’s argument that the officer had planted the gun. The Tenth Circuit found that the prosecutor’s other remarks were harmless beyond a reasonable doubt.

The Tenth Circuit affirmed Farmer’s conviction.

Tenth Circuit: States Have Wide Latitude to Determine Which Offenses are Serious for ACCA Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Titley on Tuesday, November 4, 2014.

John Ervin Titley pled guilty to being a felon in possession of a firearm. He was sentenced, and his sentence was enhanced due to the provisions of the Armed Career Criminal Act (ACCA), due to his three prior felony convictions. Although Mr. Titley agrees his Missouri armed robbery conviction qualifies for ACCA purposes, he argues that his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma should not qualify because in 19 other states and the District of Columbia those crimes would not have constituted “serious drug offenses.” Mr. Titley argued this violates the Equal Protection clause.

The Tenth Circuit, applying rational basis review, analyzed whether the challenged ACCA provision is rationally related to a legitimate government purpose, and found that it was. ACCA’s purpose is to incapacitate repeat offenders who possess firearms and deter such conduct in others. Mr. Titley does not challenge the purpose, but instead argues ACCA violates equal protection because it does not apply uniformly to similarly situated defendants. The Tenth Circuit found that Congress afforded the states wide latitude in determining which crimes they regarded as serious. Rational basis does not require uniformity.

The sentence was affirmed.

Tenth Circuit: No Abuse of ATF Authority to Issue Demand Letter Designed at Combatting Gun Trafficking

The Tenth Circuit Court of Appeals issued its opinion in Ron Peterson Firearms, LLC v. Jones on Monday, July 28, 2014.

The Federal Bureau of Alcohol, Tobacco, Firearms, & Explosives issued demand letters to certain federal firearms licensees (FFLs) in California, Arizona, New Mexico, and Texas in an effort to reduce gun trafficking to Mexico. The demand letters required the FFLs to report to ATF when making sales to the same customer within five business days of two or more semiautomatic rifles “capable of accepting a detachable magazine and with a caliber greater than .22.” Three FFLs—Ron Peterson Firearms, LLC (Peterson), Dale Rutherford d/b/a The Cop Shop (Rutherford), and Tracy Rifle and Pistol, Inc. (Tracy)—appealed the demand letter, arguing that the ATF lacked authority to issue the demand letter and the decision to target FFLs along the four border states was arbitrary and capricious.

The Tenth Circuit, in accord with the Fifth and DC Circuits and the district court in this case, decided that the ATF neither exceeded its statutory authority or acted arbitrarily and capriciously in issuing the demand letter.

The ATF issued the letter in response to “Project Gunrunner,” a national initiative to combat firearms trafficking across the Mexican border. Project Gunrunner uncovered that although Mexican cartels traditionally preferred smaller model weapons, recently rifles and other long guns were being uncovered in raids. These weapons had not previously been tracked by the ATF with multiple-purchase tracing. In December 2010, the ATF announced a proposed reporting requirement regarding multiple purchases of long guns. It received over 12,000 comments during the comment period.

In July 2011, the ATF issued a demand letter to dealer and pawnbroker FFLs in the four border states. Letter recipients are required to report to the ATF whenever they sell two or more semi-automatic rifles within five business days to an unlicensed person. The reports must be submitted on an ATF form that includes information about the purchaser, the dates and locations of purchase, and certain characteristics of the firearms. Peterson, Rutherford, and Tracy are recipients of the July 2011 demand letter. They filed separate suits against the ATF’s acting director in his official capacity, challenging his authority under the Administrative Procedure Act, which suits were consolidated by the district court. The parties filed cross-motions for summary judgment. The district court granted the ATF’s motion for summary judgment and denied the plaintiffs’ motions. The plaintiffs appealed to the Tenth Circuit.

The plaintiff FFLs contended that the ATF lacked statutory authority to issue the July 2o11 demand letter, arguing that the demand letter runs afoul of several provisions of the Gun Control Act, as well as the Consolidated and Further Continuing Appropriations Act. The FFLs asserted that because the demand letter required them to submit information it was not already required to collect, the ATF exceeded its statutory authority. The Tenth Circuit disagreed, stating that the statute “unambiguously authorizes the demand letter.” The Tenth Circuit noted that the demand letter requested FFLs to submit information they are legally obliged to maintain. The FFLs also contend that the letter is invalid because FFLs cannot determine which transactions they are required to report. The Tenth Circuit rejected this argument, quoting from a sister case that “Appellants’ assertion belies reality.” Moreover, the ATF provided a website and phone number to help clarify which transactions were required to be reported.

FFLs also argue that the demand letter requires them to keep records “in a manner inconsistent with the regulations,” but the Tenth Circuit disagreed. Before the ATF issued the July 2011 demand letter, FFLs were already required to keep records of similar sales of different types of firearms. The July 2011 letter simply expanded that obligation to include long guns of the types recently preferred by Mexican cartels.

The FFLs also argue that the ATF exceeded its authority under § 923 by exceeding the authority granted to them by Congress. The Tenth Circuit, agreeing with the Fifth and DC Circuits, rejected these arguments. The arguments erroneously conflate two unrelated statutory sections, and nothing in the statute expressly forbids the ATF’s demand letter.

FFLs argue as well that the CGA limits the ATF’s authority because it limits the promulgation of any rule or regulation after the date of the Firearm Owners’ Protection Act. However, the demand letter is not a rule or regulation. Further, § 923 was enacted as part of the Firearm Owners’ Protection Act.

Rutherford and Tracy argue that even if the ATF’s demand letter was supported by statute, its action was arbitrary and capricious, and that there is no rational connection between the 2011 demand letter and gun trafficking across the Mexican border. The Tenth Circuit remarked that this argument fails to recognize ample evidence in the record of a “rational connection” between the information the ATF seeks and the gun trafficking. Further, the Tenth Circuit noted that agencies are not required to consider every alternative proposed but rather must consider only the most significant and viable alternatives. The Tenth Circuit found no arbitrariness or caprice in the ATF’s demand letter.

Finally, Peterson argued that the court should have excluded portions of the administrative record containing data from traces of firearms seized by Mexican law enforcement. The Tenth Circuit reminded Peterson that review of an agency decision is generally based on the full administrative record, and rejected Peterson’s argument.

The judgment of the district court was affirmed.

Tenth Circuit: Ample Circumstantial Evidence Showed Defendant’s Knowledge of Firearm Possession

The Tenth Circuit Court of Appeals issued its opinion in United States v. Morales on Tuesday, July 15, 2014.

Defendant Morales was a passenger in a vehicle that was pulled over for a traffic stop. As soon as the vehicle stopped, Morales fled on foot. Officers chased him and apprehended him about a block away. A shell casing was found in the vehicle, and the officers retraced Morales’ flight path, finding a loaded gun and a cell phone. Morales was convicted of being a felon in possession of a firearm and sentenced to 86 months’ imprisonment. He appealed the conviction, claiming that there was insufficient evidence that he knowingly possessed the firearm. Morales also argued his Fifth Amendment due process rights were violated when he was handcuffed and transported through a common area of the courthouse in view of the venire.

The Tenth Circuit first examined Morales’ claim that he did not knowingly possess the firearm. Morales asserted that, because there was no direct physical evidence that he carried or dropped the evidence, his conviction could not stand. The Tenth Circuit reviewed the record and noted that there was ample circumstantial evidence linking Morales with the firearm, including that it was found free of debris, dirt, or moisture which indicated it had been recently discarded; the weapon was found along Morales’ flight path; and the weapon was found along with a cell phone that Morales claimed upon his release from jail. Viewing the evidence in the light most favorable to the government, the Tenth Circuit discerned that it was sufficient to support the jury’s finding of knowing possession.

The Tenth Circuit next reviewed Morales’ claim of due process violation and determined that none occurred. There was no evidence that actual jury members saw Morales in handcuffs, and there was no showing of prejudice based on speculation that possible jury members might have seen him handcuffed. Further, the court had adequate justification for permitting the visible handcuffs based on Morales’ previous convictions for escape and violence against law enforcement.

The Tenth Circuit affirmed Morales’ conviction and denied his request for a new trial.

Tenth Circuit: Religious Iconography Testimony Irrelevant and Not Harmless to Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Medina-Copete on Wednesday, June 3, 2014.

Maria Vianey Medina-Copete (Medina) and Rafael Goxcon-Chagal (Goxcon) were traveling in a borrowed truck through New Mexico when they were pulled over for following another vehicle too closely. Officer Chavez, who stopped the vehicle, became suspicious that Medina and Goxcon were engaged in drug activity because of the overwhelming odor of air freshener coming from the vehicle, Medina’s nervousness and chanting of a prayer to Santa Muerte, and the changes in Medina’s and Goxcon’s behavior when questioned about the presence of methamphetamine in the vehicle. Chavez, who is not fluent in Spanish, had difficulty communicating with Medina and Goxcon, who are not fluent in English. Eventually, Chavez obtained consent to search the vehicle with a form written in Spanish, and a drug sniffing dog alerted to the glove box on the passenger side of the truck. After a thorough search, a secret compartment was found on the vehicle containing nearly two pounds of 90% pure methamphetamine.

Medina and Goxcon were placed under arrest, and subsequent to their arrests were interviewed by Spanish-speaking DEA officials. They gave conflicting stories to the DEA officials. At the end of her interview, Medina asked to retrieve her personal belongings from the vehicle, a black duffel bag. The officer who retrieved the bag found a handgun under a piece of clothing. In an indictment, Goxcon and Medina were jointly charged with conspiracy to possess with intent to distribute methamphetamine, possessing with intent to distribute methamphetamine, and using or carrying a firearm in connection with a drug trafficking crime. Medina was also charged with being an illegally present alien in possession of a firearm and with illegal reentry.

In their joint trial, Medina and Goxcon asserted that they had no knowledge of the drugs in their borrowed vehicle. Two experts testified against them, United States Marshal Robert Almonte of the Western District of Texas and DEA Agent Ivar Hella. Almonte testified about his research into religious iconography and its significance in the drug world, specifically Santa Muerte to whom Medina was furiously praying during the traffic stop. Hella testified about drug trafficking between this country and Mexico, and that blind mules are rarely used as drug couriers because of the risks of accidental discovery of the drugs. Medina and Goxcon challenged both experts’ testimony. The jury returned guilty verdicts against both defendants on all counts, and defendants timely appealed.

Defendants asserted that the trial court erred by allowing Almonte to testify, and that his testimony violated FRE 403, 702, and 704(b), as well as their First Amendment rights. The Tenth Circuit evaluated Almonte’s testimony in light of the factors set forth in Daubert and Kumho Tires, and found that his testimony regarding Santa Muerte did not qualify as explicative of a “tool of the trade,” because it was unclear how praying to a religious figure could be a tool in the drug trade. The Tenth Circuit analogized the religious iconography to finding baggies or a razor blade, which can easily be understood to be tools of a drug trade despite their common household use, and found that there was no similar utility to the religious symbols. The Tenth Circuit noted that the district court’s failure to examine how Almonte’s testimony could assist the jury also affected its reliability. Citing a concurrence from the Eighth Circuit analyzing Almonte’s testimony in a different case, the Tenth Circuit found that there was no causal connection between religious iconography and the drug trade, so his testimony was not sufficiently reliable. Because the Tenth Circuit found error in admitting Almonte’s testimony, it evaluated whether the error was harmless, and determined that it was not. The government did not have a strong case against Goxcon and Medina, so the chance that the religious iconography testimony prejudiced the jury was great.

As to Hella’s testimony, the Tenth Circuit found no error. His testimony was relevant to show that it was less likely that Goxcon and Medina were unaware of the presence of methamphetamine in the truck due to various factors, including the unlikelihood of using blind mules and the strong smell of pure methamphetamine.

The Tenth Circuit also reviewed Medina’s assertion that the government had insufficient evidence to convict her, and disagreed. The case was remanded to the district court to vacate the convictions based on drug trafficking and for further proceedings consistent with the opinion. Because Medina did not challenge her illegal reentry or possession of firearm by an illegal alien convictions, the Tenth Circuit did not vacate them.

Colorado Supreme Court: In POWPO Case, No Error to Give Jury Choice of Evils Instruction Requiring Reasonableness and Imminence

The Colorado Supreme Court issued its opinion in People v. Carbajal on Monday, June 30, 2014.

Colo. Const. art. II, § 13—Right to Bear Arms—Possession of a Weapon by a Previous Offender—Choice of Evils—Jury Instructions—Affirmative Defense.

Reversing the court of appeals, the Supreme Court held that the trial court did not err in instructing the jury that, to raise an affirmative defense to possession of a weapon by a previous offender (POWPO), defendant must show that he possessed the weapon for the purpose of defending himself, his home, or his property from what he reasonably believed to be a threat of imminent harm. This instruction properly reflects the Court’s precedent in People v. Blue, 544 P.2d 385, 391 (1975), which upheld the POWPO statute against a claim that it unconstitutionally infringed on the right to bear arms under Colo. Const. art. II, § 13, based on the legislature’s provision of a choice of evils affirmative defense. Because the choice of evils defense includes both a reasonableness and imminence requirement, the trial court did not err in including these requirements in its instruction.

Summary and full case available here.

Probate, Domestic Relations, Juvenile Law, Workers’ Comp Bills, and More Signed by Governor

Governor Hickenlooper continues to sign legislation, and has signed 54 bills in the last week. To date, he has signed 317 bills and vetoed two bills. Some of these are summarized here.

Thursday, May 29, 2014

  • SB 14-005 – Concerning Alternative Administrative Remedies for the Processing of Certain Wage Claims, and, in Connection Therewith, Amending the Provisions for Written Notices of a Wage Claim, and, in Connection Therewith, Making and Reducing Appropriations, by Sen. Jessie Ulibarri and Rep. Jonathan Singer. The bill authorizes the Division of Labor to develop an administrative process to handle wage claim cases.
  • SB 14-190 – Concerning Criminal Discovery, and, in Connection Therewith, Creating a Statewide Discovery Sharing System, a Criminal Discovery Surcharge, Civil Immunity for District Attorneys that Make a Good-Faith Effort to Redact Information from Discovery Documents, and Making an Appropriation, by Sen. Kent Lambert and Rep. Cheri Gerou. The bill implements the recommendations of the Discovery Task Force regarding creating and maintaining a statewide eDiscovery system.
  • SB 14-201 – Concerning Reestablishing a Child Protection Ombudsman Advisory Work Group to Develop a Plan for Accountable Autonomy for the Child Protection Ombudsman Program, by Sen. Linda Newell and Rep. Jonathan Singer. The bill creates a new advisory work group to evaluate the Office of Child Protection Ombudsman Program and recommend ways to improve efficiency.
  • SB 14-203 – Concerning the Office of the Respondent Parents’ Counsel in Cases of Alleged Child Abuse or Neglect, by Sens. Kent Lambert & Linda Newell and Reps. Jenise May & Bob Gardner. The bill creates the Office of Respondent Parents’ Counsel in the Judicial Department in order to provide legal representation to low income respondent parents in dependency and neglect cases.
  • HB 14-1273 – Concerning Human Trafficking, and, In Connection Therewith, Making and Reducing Appropriations, by Reps. Beth McCann & Jared Wright and Sens. Linda Newell & Gail Schwartz. The bill amends several statutory provisions concerning human trafficking.

Friday, May 30, 2014

  • HB 14-1080 – Concerning a Sales and Use Tax Exemption for the Colorado Ute Indians, by Reps. Mike McLachlan & Don Coram and Sen. Ellen Roberts. The bill clarifies that sales tax doesn’t apply to purchases made on reservations.
  • HB 14-1119 – Concerning an Income Tax Credit for the Donation of Food to a Hunger-Relief Charitable Organization, by Rep. Mike McLachlan and Sens. Mary Hodge & Ellen Roberts. The bill creates an income tax credit for individual and corporate taxpayers who donate food to hunger-relief charitable organizations.
  • HB 14-1222 – Concerning Modification of the Terms Under Which a County May Issue Tax-Exempt Private Activity Bonds on Behalf of an Eligible Applicant for the Purpose of Financing a Geothermal Energy Project on the Applicant’s Property, by Rep. Mike McLachlan and Sens. Gail Schwartz & Ellen Roberts. The bill changes several provisions regarding private activity bonds issued by counties.

Saturday, May 31, 2014

  • HB 14-1030 – Concerning the Establishment of Incentives for the Development of Hydroelectric Energy Systems, by Reps. Don Coram & Diane Mitsch-Bush and Sens. Gail Schwartz & Ellen Roberts. The bill facilitates the development of hydroelectric energy systems by the State Electrical Board and the Department of Regulatory Agencies.
  • HB 14-1275 – Concerning Authorization for the Parks and Wildlife Commission to Purchase Real Property to Build a Multi-Use Shooting Facility, by Reps. Crisanta Duran & Don Coram and Sens. Cheri Jahn & Ellen Roberts. The bill allows the Parks and Wildlife Commission to purchase certain real estate in Mesa County to build a multi-use shooting facility.
  • HB 14-1303 – Concerning the Receipt of Public Testimony from Remote Locations Around the State by Legislative Committees, and, in Connection Therewith, Making and Reducing Appropriations, by Reps. Ray Scott & Mark Ferrandino and Sen. Gail Schwartz. The bill allows the Executive Committee of the Legislative Council to establish policies to allow remote testimony from more than one location in Colorado.

Sunday, June 1, 2014

  • HB 14-1278 – Concerning Continuation of the Workers’ Compensation Accreditation Program Administered by the Division of Workers’ Compensation, and, in Connection Therewith, Implementing the Recommendations of the 2013 Sunset Report by the Department of Regulatory Agencies, by Rep. Paul Rosenthal and Sen. Lois Tochtrop. The bill continues the Workers’ Comp Accreditation Program and requires the DWC to conduct a study on the potential impact on the state of adopting the current version of the AMA Guides to Evaluation of Permanent Impairment.
  • HB 14-1323 – Concerning Restrictions on the Ability of a Government Entity to Access an Individual’s Personal Medical Information, by Rep. Dianne Primavera and Sens. Kevin Lundberg & John Kefalas. The bill places restrictions on the Department of Revenue’s use of personal medical information, and requires the DOR to receive an individual’s permission before accessing personal medical information.
  • HB 14-1322 – Concerning the Colorado Probate Code, by Rep. Mike McLachlan and Sen. Ellen Roberts. The bill makes several changes to the Colorado Probate Code provisions concerning control and distribution of estate assets.
  • HB 14-1363 – Concerning the Nonsubstantive Revision of Statutes in the Colorado Revised Statutes, as Amended, and, in Connection Therewith, Amending or Repealing Obsolete, Imperfect, and Inoperative Law to Preserve the Legislative Intent, Effect, and Meaning of the Law, by Rep. Bob Gardner and Sen. Ellen Roberts. This bill, the Revisor’s Bill, makes several nonsubstantive changes to the Colorado Revised Statutes in order to repeal or amend obsolete or unclear provisions of the law.
  • HB 14-1379 – Concerning Clarifying the Application of the Spousal Maintenance Statutes, by Rep. Beth McCann and Sen. Andy Kerr. The bill clarifies the applicability of prior spousal maintenance statutes in cases filed prior to January 1, 2014.
  • SB 14-184 – Concerning Oversight of the Industrial Hemp Program, by Sen. Gail Schwartz and Rep. Don Coram. The bill modifies existing statutes related to the industrial hemp program and creates an industrial hemp research grant program.
  • SB 14-191 – Concerning the Procedures for Resolution of Workers’ Compensation Claims, by Sen. Lois Tochtrop and Rep. Dan Pabon. The bill makes several changes to provisions regarding the resolution of workers’ compensation claims.
  • SB 14-206 – Concerning Criminal Record Sealing Provisions, and, in Connection Therewith, Relocating the Record Sealing Provisions in a New Part, Clarifying when an Arrest Record can be Sealed, and Making Other Clarifying Changes, by Sen. Pat Steadman and Rep. Jonathan Singer. The bill reorganizes statutes regarding sealing of criminal records and relocates them to another section of statute.

Tuesday, June 3, 2014

  • HB 14-1156 – Concerning Extending the Age of Eligibility for the Child Nutrition School Lunch Protection Program, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Kevin Priola and Sen. Lois Tochtrop. The bill expands eligibility for the Child Nutrition School Lunch Protection Program from kindergarten through 2nd Grade to kindergarten through 12th Grade.
  • HB 14-1301 – Concerning the Safe Routes to School Program, and, in Connection Therewith, Making and Reducing Appropriations, by Rep. Dianne Mitsch Bush and Sen. Andy Kerr. The bill appropriates funds to the CDOT in order to continue the Safe Routes to School program, which distributes funds to projects to improve the safety of pedestrians and bicyclists in school areas.

For a list of Governor Hickenlooper’s legislative decisions, click here.

Tenth Circuit: Seizure of Gun Did Not Justify Suppression of Evidence

The Tenth Circuit Court of Appeals published its opinion in United States v. Gordon on Monday, January 27, 2014.

On June 5, 2011, Brandi Thaxton called 911 to report an incident of domestic violence which had occurred two days earlier with her boyfriend Shawn Gordon, who had outstanding warrants for his arrest. Thaxton said she and Gordon had been arguing when Gordon grabbed a samurai sword and swung it at her. When officers arrived, they found weapons, including a gun and swords, which they seized.

Gordon was charged with being a felon in possession of a firearm. He moved to suppress the evidence found during the warrantless search of his home, most specifically the shotgun. The district court denied the motion. After the motion was denied, Gordon pled guilty but reserved the right to appeal from the denial of his motion to suppress.

The Fourth Amendment prohibits unreasonable searches and seizures. A search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of exigent circumstances. One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.

Such an exigency existed in this case. When police arrived, Thaxton was too frightened to leave the basement. She told the officers she was in fear for her life. There were weapons throughout the house in addition to the swords and gun. Further, temporary seizure of the gun was permissible to stabilize the situation and eliminate the risk of immediate harm.  Gordon was improperly deprived of his property for only a few minutes−the elapsed time between locking the house and discovering Gordon was a convicted felon−and while he was legitimately in custody. The seizure of the gun was a de minimis intrusion on Gordon’s rights and cannot justify suppression of the shotgun as evidence.


Tenth Circuit: District Court Properly Inferred Defendant’s Possession of Eight or More Guns for Sentencing Purposes

The Tenth Circuit Court of Appeals published its opinion in United States v. Basnett on Wednesday, November 21, 2013.

Defendant Richard Basnett was convicted of unlawful possession of a firearm and sentenced to 37 months of imprisonment. He appealed, arguing that the sentence was too long.

When the trial court imposed the sentence, it relied on guidelines governing possession of at least eight firearms and possession of firearms in connection with a separate felony. The issue on appeal was whether the district court had enough evidence to reasonably infer that Mr. Basnett possessed: (1) eight or more guns (other than antiques or those owned solely for hunting or collecting), and (2) at least one gun in connection with a separate felony.

The testimony of Agent Stephens was that officers had found ten guns in their first search of Mr. Basnett’s home and four additional guns in a second search. The resulting question was whether the 8+ guns could be considered “firearms” for purposes of federal law. Mr. Basnett correctly pointed out that a gun does not count if it is an antique pursuant to 18 U.S.C. § 921(a)(3) (2006).

After concluding that the antique gun exception is an affirmative defense, the court stated that defendant bore the initial burden of producing evidence. Not only did Basnett present no evidence to indicate that a single gun in his home was an antique, a deputy sheriff testified that the guns seen in the first home visit were not antiques.

Barnet further argued the district court could have applied a downward adjustment to the guideline calculation because Mr. Basnett could have used one of the guns to collect or hunt pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(2) (2011). However, he never raised the issue in district court, and Mr. Basnett would have been entitled to a downward adjustment only if he showed that he had kept all of the guns and the ammunition—rather than just one of the fourteen guns—solely to hunt or collect. The court held that the absence of a downward adjustment did not constitute plain error.

The district court applied a sentence enhancement for possession of firearms in connection with a separate felony (U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2011)), finding that Mr. Basnett had kept the guns in connection with his concealment of stolen property. Mr. Basnett challenged this finding. In invoking the enhancement, the district court relied on the volume of stolen merchandise at Mr. Basnett’s home and the proximity of his guns to the stolen property. The court found no clear error in the district court’s reliance on out-of-court statements and additional corroboration to reach its conclusion.


Tenth Circuit: Denial of Motion to Suppress Affirmed; Reasonable Suspicion for Investigatory Stop

The Tenth Circuit published its opinion in United States v. Madrid on Wednesday, April 17, 2013.

Eric Madrid appealed his conviction on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Madrid pled guilty to the charge but preserved his right to appeal the district court’s denial of his motion to suppress evidence. The firearm was found by police in Madrid’s car, which they had stopped after receiving an anonymous 911 call about suspicious activity and a possible fight. Madrid argued on appeal that the investigatory stop lacked reasonable suspicion and violated the Fourth Amendment.

The Tenth Circuit found the district court had properly analyzed the facts in finding reasonable suspicion. The “intrusion on Mr. Madrid’s personal security was brief and minimal, and the government had a strong interest in solving crime and ensuring public safety in the circumstances the officers faced here.”

Madrid also argued that the anonymous 911 call was unreliable. The court found that, based on the totality of the circumstances, the call bore “sufficient indicia of reliability to provide reasonable suspicion” for the stop. The court affirmed the conviction because no Fourth Amendment violation occurred.

Tenth Circuit: Defendant’s Robbery Conviction Affirmed

The Tenth Circuit published its opinion in United States v. Baker on Thursday, April 11, 2013.

Abasi Baker was convicted in the United States District Court for the District of Kansas on seven counts each of robbery affecting commerce, use of a firearm in relation to a crime of violence and being a convicted felon in possession of a firearm. Defendant appealed his convictions, raising two arguments: (1) that use of a global-positioning-system (GPS) tracking device on his car violated his Fourth Amendment rights, and (2) that the evidence was insufficient to convict him on the eight firearms counts associated with the first four robberies.

The Tenth Circuit did not reach the merits of Defendant’s Fourth Amendment argument because he waived the argument by failing to raise it before trial, and he did not show good cause why it was not raised before trial as required by Federal Rule of Criminal Procedure 12.

The Tenth Circuit also rejected Defendant’s argument that the evidence was insufficient for a rational jury to find that he possessed the identified firearm at the times charged. Viewing the evidence in the light most favorable to the verdict, the record contained ample evidence for  any rational trier of fact to have found the defendant guilty beyond a reasonable doubt.


Tenth Circuit: Neither Savings Clause Nor Suspension Clause Alter Sentencing of Petitioner

The Tenth Circuit published its opinion in Abernathy v. Wandes on Monday, April 8, 2013.

Petitioner Gary Abernathy was convicted in 2001 of being a felon in possession of a firearm and was sentenced as an armed career criminal under the Armed Career Criminal Act (“ACCA”) because he had three qualifying ACCA convictions. Consistent with Eighth Circuit precedent at that time, the district court determined that Mr. Abernathy’s previous conviction for a “walkaway” escape was a qualifying conviction under the ACCA.

Several years after Mr. Abernathy’s conviction appeared to be final, the Supreme Court decided Chambers v. United States, 555 U.S. 122 (2009), which held that an escape conviction based on a failure to report (or to return) to a penal facility falls outside the scope of the ACCA’s definition of a violent felony and therefore cannot serve as a qualifying ACCA conviction.

Mr. Abernathy filed a § 2241 petition to challenge his sentence. Mr. Abernathy sought to use the so-called “savings clause” contained in § 2255(e), which permits a federal prisoner to proceed under § 2241 when the remedy under § 2255 is “inadequate or ineffective to test the legality of his detention.” Applying the Fifth Circuit’s savings clause test, the district court held that Mr. Abernathy could not meet the “actual innocence” prong of that test because being “actually innocent” of an enhanced sentence is “not the sort of actual innocence that could justify a determination that the remedy available pursuant to Section 2255 in his criminal case is inadequate or ineffective.” Without reaching the merits of Mr. Abernathy’s Chambers claim, the district court dismissed his § 2241 petition.

After the district court’s decision, however, the Tenth Circuit decided Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), which set forth a different savings clause test than the one that the district court applied when it dismissed Mr. Abernathy’s petition. Under Prost, access to § 2241 through the savings clause turns solely on whether the remedy provided by § 2255 is “inadequate or ineffective” to test the legality of Mr. Abernathy’s detention.

Abernathy appealed the dismissal of his petition. Mr. Abernathy argued that: (1) Chambers rendered illegal the enhancement of his sentence under the ACCA; (2) he had no adequate or effective remedy under § 2255 and, therefore, its savings clause allowed him to apply for relief under § 2241; and (3) were the Tenth Circuit to deny him access to relief via the savings clause, such a denial would violate the Suspension Clause.

Savings Clause

First, the Court addressed whether Abernathy could demonstrate that he met the requirements of § 2255(e)’s savings clause. Mr. Abernathy had to demonstrate that § 2255’s remedy was “inadequate or ineffective” by showing that the legality of his detention could not have been tested in his initial § 2255 motion. Mr. Abernathy maintained that he could carry this burden because he could not have tested his argument that his escape conviction did not qualify as an ACCA predicate offense in his initial § 2255 motion.

The Tenth Circuit disagreed. The plain language of the savings clause does not authorize resort to § 2241 simply because a court errs in rejecting a good argument, even if the court’s error on the merits happens to be induced by preexisting circuit precedent. Mr. Abernathy cannot make an inadequate-or-ineffective argument because it could have been tested in his initial § 2255 motion. It should not matter that courts likely would have rejected Mr. Abernathy’s Chambers argument in his § 2255 proceeding.

Suspension Clause

Second, Mr. Abernathy argued that denying him the opportunity to proceed under § 2241 violated the Constitution’s Suspension Clause.

The Suspension Clause states that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2.  Neither the Supreme Court nor the Tenth Circuit had ever addressed this specific issue.

Reviewing for plain error, the Tenth Circuit determined that it was not clear or obvious under well-settled law that barring Mr. Abernathy from proceeding under § 2241 raised concerns under the Suspension Clause.

Even if it were settled that the Suspension Clause protects the writ as it exists today, it is still unclear whether precluding Mr. Abernathy from proceeding under § 2241 would implicate the Suspension Clause. It is well established that the Suspension Clause does not prohibit the “substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention.” For purposes of the Suspension Clause, § 2255 would have been an adequate and effective substitute for the writ.

Accordingly, the Tenth Circuit AFFIRMED the district court’s dismissal of Mr. Abernathy’s § 2241 habeas petition.