June 27, 2019

Tenth Circuit: Panel Rehearing Granted to Limited Extent but Rehearing En Banc Denied

The Tenth Circuit Court of Appeals issued its revised opinion in Fulghum v. Embarq Corporation on Monday, April 27, 2015. The Tenth Circuit granted panel rehearing to a limited extent and issued a revised opinion. The opinion was circulated to all judges and none requested a poll, so en banc rehearing was denied. The Legal Connection summary of the original opinion is available here.

Tenth Circuit: Statutory Language Requires Separate Uses of Weapon During Crime to Support Multiple Charges

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rentz on Tuesday, February 3, 2015.

Philbert Rentz fired one shot that injured one person and killed another. He was charged with two crimes of violence (assault and murder) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He moved to dismiss the second § 924(c) count and the district court granted the motion. The government appealed the dismissal, and a panel of the Tenth Circuit reversed. Rentz petitioned for en banc rehearing, which was granted.

The Tenth Circuit, in an opinion written by Judge Gorsuch, examined the language of § 924(c)(1)(A). Judge Gorsuch diagrammed the sentence, illustrating that the verbs, “uses, carries, or possesses,” necessarily must modify each crime of violence. Because Rentz only “used” the weapon one time, there could only be one charge under § 924(c)(1)(A).

The Tenth Circuit also noted the vastly increased sentences for second offenses under § 924(c) as support for the argument that the statute was not intended to mandate multiple punishments for the same offense. And, to the extent the statute was ambiguous, the Tenth Circuit resolved the ambiguity in favor of Rentz, noting “the tie goes to the presumptively free citizen and not the prosecutor” as it applied the rule of lenity. The Tenth Circuit opinion did not address the double jeopardy issue, since it found Rentz’s conduct could only support one § 924(c) charge.

The Tenth Circuit opinion also addressed a potential circuit split on the issue based on the Eighth Circuit’s opinion in United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). In Sandstrom, the Eighth Circuit, relying on Tenth Circuit precedent, allowed multiple charges under § 924(c) for a single gun use. However, the Tenth Circuit noted that Sandstrom did not directly address what the government must prove for each successive charge under a single statute.

The Tenth Circuit reversed the panel opinion and reinstated the district court’s dismissal of the second § 924(c) charge. Judge Matheson wrote a detailed concurrence regarding units of prosecution and the rule of lenity, and also addressed prior Tenth Circuit precedent leading to the previous panel’s decision. Judge Hartz wrote a second concurrence, and Judge Kelly dissented.

Tenth Circuit: Panel Rehearing Granted on Limited Issue

The Tenth Circuit Court of Appeals issued its opinion in Martin K. Eby Construction Co., Inc. v. OneBeacon Insurance Co. on Tuesday, February 3, 2015. The Tenth Circuit reissued the opinion in response to Kellogg Root & Brown’s Petition for Panel Rehearing. The panel granted rehearing as to proposition IV in the rehearing request and amended the opinion accordingly. For the CBA CLE Legal Connection summary of the original opinion, click here.

Tenth Circuit: Rehearing Granted for Limited Purpose of Correcting Citation

The Tenth Circuit Court of Appeals reissued its opinion in Tokoph v. United States on Monday, January 26, 2015. Appellant’s petition for panel rehearing was granted for the limited purpose of correcting a citation on page 6 of the original opinion. Rehearing was denied in all other respects. The petition for rehearing en banc was transmitted to all active judges, and as none requested that the court be polled, that petition was also denied. The Legal Connection summary of the original opinion is available here.

Tenth Circuit: In Death Penalty Case, Amended Opinion Filed; Request for En Banc Consideration Denied

The Tenth Circuit Court of Appeals published its opinion in Cole v. Trammell on Tuesday, February 18, 2014.

This matter was before the court on Appellant’s Petition for Rehearing and Request for En Banc Consideration. Rehearing was granted in part by the panel assigned to this matter originally. An amended opinion was attached to the order, and rehearing was granted to the extent of the amendments found on pages 36-39. The original opinion filed on November 18, 2013 was withdrawn, and the amended version was substituted as the decision of the court. The summary of the November 18, 2013 opinion is available here.

The petition for rehearing and request for en banc consideration were also transmitted to all of the judges of the court who were in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the request for en banc consideration was denied.

Tenth Circuit: Defendant Needs No Knowledge of Distribution Capability of File Sharing Program He is Using to View Child Pornography for Sentence Enhancement to Apply

The Tenth Circuit issued its opinion in United States v. Ray on Friday, February 1, 2013. This is an amended opinion after the panel granted panel rehearing in part. En banc consideration was denied. The court had previously published its opinion in this case on November 6, 2012 and the following summary is from Legal Connection’s November 8th post as the holding of the case has not changed.

In August 2011, Defendant Ray pleaded guilty to the knowing, intentional, and unlawful receipt of child pornography. In its presentence investigation report (PSR), the probation office assigned defendant, among other sentence enhancements, a two-level enhancement because defendant’s offense involved the distribution of child pornography. Defendant objected to the enhancement on the ground that the government had offered no evidence that defendant had distributed any child pornography or that any of the files downloaded had later been shared with another computer. Defendant further argued that even if such sharing had occurred, such sharing had been unintentional.

This appeal presents the question whether the district court could properly apply the two-level sentencing enhancement for the distribution of child pornography when the record indicated only that defendant used a peer-to-peer file-sharing software and that its sharing function was enabled, but not that defendant actually knew his software was capable of sharing files.

The Tenth Circuit held that § 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability of the program he is using to view child pornography. The Court noted it had repeatedly held that when the plain language of a guideline, in contrast to a criminal statute, does not include a mens rea element, the court should not interpret the guideline as containing such an element. The sentence enhancement was therefore properly applied.

The Tenth Circuit also rejected defendant’s claims that the district court unconstitutionally made findings for sentencing enhancements under a preponderance-of-the-evidence standard, that the court erred procedurally at sentencing, and that the sentence was substantively unreasonable. Accordingly, defendant’s sentence was AFFIRMED.