April 20, 2019

Tenth Circuit: Retroactive Sentence Reduction Inappropriate for Successive Motion on Identical Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Green on April 6, 2018.

Green appealed the district court’s decision to deny his second motion for reducing his sentence. Green’s appeal was based on his view that the district court abused its discretion in not considering all of the facts and circumstances of his case for reducing his sentence.

In 2011, Green was sentenced to 130 months’ imprisonment after pleading guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder in violation of 21 U.S.C. § 843(b). Green was initially indicted on seven counts of possession of cocaine powder and cocaine base with intent to distribute and three counts of using a communication facility to facilitate the acquisition of cocaine powder. He pleaded guilty for the three communication-facility counts, and the district court imposed 130 months’ imprisonment. One of the reasons for the higher sentence was the Defendant’s extensive criminal history spanning over 30 years and including a manslaughter conviction, convictions for distribution of cocaine base, violation of protective order, and distribution of crack cocaine.

Three years later, the base offense level for many drug offenses was reduced by two levels when the U.S. Sentencing Commission promulgated Amendment 782, which was retroactive.

Citing Amendment 782, Green then filed another motion to reduce his sentence under 18 U.S.C § 3582(c)(2), arguing he was eligible for a reduction based on the amendment and the progress he had made while in prison as shown by his transcript listing the courses he had completed. The district court denied the motion, and the Tenth Circuit affirmed the district court’s denial.

Fifteen months after the first appeal, Green filed another motion to reduce his sentence under § 3582(c)(2), again citing Amendment 782 and based on the courses he completed while in prison. With the exception of additional courses, the second appeal was the same as the first appeal. The district court denied this second motion, explaining that Amendment 782 did not mandate relief and that completion of courses did not make a reduction appropriate. Defendant appealed the denial, arguing the district court abused its discretion in not considering all the facts and circumstances of his case, including his clean disciplinary record while incarcerated.

When assessing whether the district court had jurisdiction to consider Defendant’s second motion to modify his sentence under Amendment 782, the Tenth Circuit determined whether 18 U.S.C. § 3582(c)(2) contained a jurisdictional bar to second motions based on the same guidelines amendment, and stated it was a question “of considerable practical importance for judges and litigants.” It noted that courts have an ongoing obligation to determine whether adjudicating a particular case is within their subject-matter jurisdiction, even if neither party argues the court lacks jurisdiction.

In consideration of the Supreme Court’s caution against reckless use of the term “jurisdictional,” the Tenth Circuit Court of Appeals relied on 18 U.S.C. § 3582 for guidance. The government contended § 3582(c)(2) only confers jurisdiction on district courts to consider one motion to modify a sentence under each amendment. Since Defendant had previously filed a motion to modify his sentence under Amendment 782, the government argued that the district court lacked jurisdiction to consider his second motion to modify his sentence under this same amendment.

Absent a clear statement from Congress that any potential bar on the number of motions a defendant may file per amendment is jurisdictional, the Court held § 3582(c)(2) did not divest a district court of jurisdiction to consider a second motion to modify a sentence under the same amendment. The government, however, did not advance any argument that § 3582(c)(2) imposes a non-jurisdictional bar, therefore, this issue was do not addressed.

The Tenth Circuit used a two-step inquiry to determine whether the defendant was eligible for a sentence reduction, and whether a sentence reduction was warranted in accordance with the 18 U.S.C. § 3553(a) factors. The parties did not dispute that Defendant was eligible for a reduced sentence under § 3582(c)(2). Defendant only argued the district court erred in the second step of the § 3582(c)(2) inquiry by holding that a reduced sentence was not warranted upon consideration of the § 3553(a) factors, more specifically that the district court did not consider the courses he completed while he was in prison.

The Tenth Circuit found the district court’s considerations of these factors as “unquestionably appropriate.” The district court then determined that Defendant’s coursework while in prison and certificates of completed coursework did not overcome these considerations. The Tenth Circuit concluded that this determination was well within the district court’s discretion.

Additionally, Defendant argued in his initial pro se brief that the district court did not consider his clean disciplinary record while in prison. The disciplinary record was not presented to the district court, so the Tenth Circuit did not consider Defendant’s clean disciplinary record.

Defendant argued that the Circuit should have remanded to the district court so that the district court may consider the Defendant’s disciplinary record while in prison. In general, a remand for a party to produce additional evidence is inappropriate where the party had full opportunity to present the evidence in the first instance.

The Tenth Circuit affirmed the district court’s order.

Colorado Supreme Court: Narrowing of Time Frame for Charged Acts was Amendment of Form, Not Substance

The Colorado Supreme Court issued its opinion in People v. Sandoval on Monday, March 26, 2018.

Plain Error Review—Sentencing.

The supreme court held that Blakely v. Washington, 542 U.S. 296 (2004), applies to a direct sentence to community corrections. The court further held that it was plain error for the trial court to sentence defendant to an aggravated sentence to community corrections without meeting Blakely’s requirements. The court affirmed the decision of the court of appeals and remanded the case for resentencing.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Categorical Approach Applies to Sentence Enhancement When Statutory Definition Differs from Guidelines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez-Cruz on Monday, September 12, 2016.

Jesus Domingo Martinez-Cruz and a friend were walking along I-10 in New Mexico when they were stopped by border patrol agents. They admitted to carrying contraband across the border, and Martinez-Cruz admitted that he was not supposed to be in the United States. The backpacks Martinez-Cruz and his companion were carrying were filled with marijuana. Martinez-Cruz pleaded guilty to three counts: possession with intent to distribute more than 50 kilograms of marijuana, conspiracy to possess with intent to distribute more than 50 kilograms of marijuana, and reentering the United States after removal.

The presentence report recommended an adjusted offense level of 16 for the drug offenses and a base offense level of 8 for the immigration violation. The PSR then enhanced his immigration offense level by 12 levels for having previously been convicted of a felony drug trafficking conspiracy, to which enhancement Martinez-Cruz objected. After a hearing, the district court overruled Martinez-Cruz’s objection, and he was sentenced to 33 months’ imprisonment.

Martinez-Cruz appealed, arguing that the statute under which he was previously convicted did not define “conspiracy,” so the categorical approach should apply. Because the generic definition of conspiracy requires an overt act and he did not perform an overt act, Martinez-Cruz argued he should only receive an 8-level enhancement for his prior conviction.

The Tenth Circuit began by evaluating its prior precedent and that of other circuits. The Tenth Circuit relied on United States v. Dominguez-Rodriguez, 817 F.3d 1190, 1194 (10th Cir. 2016), to support the use of the categorical approach to determine whether a prior conviction qualifies as a drug trafficking offense. The Tenth Circuit focused on the word “conspiring” because Martinez-Cruz’s offense was a conspiracy offense. The generic definition of “conspiracy” requires an overt act, but the statute under which Martinez-Cruz was convicted did not. The government argued that the Tenth Circuit should not apply the categorical approach at all, but if it did, it should hold that an overt act is not required in furtherance of a conspiracy. The government relied on various cases from other circuits to support its position. Because the Sentencing Commission did not “expressly intend” to include § 846 conspiracy convictions in enhancements under § 2L1.2, the Tenth Circuit found the government’s arguments unpersuasive. The Tenth Circuit agreed with Martinez-Cruz that the generic definition of “conspiracy” was a categorical mismatch with § 846, and he should receive an 8-level enhancement instead of a 12-level enhancement. Although the Tenth Circuit’s conclusion differed from that enunciated by the Fifth, Sixth, and Ninth Circuits, the Tenth Circuit found that under its own precedent it was required to apply the categorical approach.

The Tenth Circuit remanded for resentencing.

Tenth Circuit: Lengthy Sentence Justified by Defendant’s Human Rights Violations

The Tenth Circuit Court of Appeals issued its opinion in United States v. Worku on Tuesday, September 1, 2015.

Mr. Habteab Berhe Temanu’s children approached Kefelegne Alemu Worku, an Ethiopian man, and asked him to assume the identity of their father because they were afraid they would not be able to complete the admission requirements to enter the United States due to his dementia. Worku assumed Berhe’s identity and later became a U.S. citizen under Berhe’s name. Immigration authorities learned Worku was using a false identity and suspected he had tortured Ethiopian prisoners in the ’70s. After an investigation and trial, Worku was convicted of unlawful procurement of citizenship or naturalization, fraud and misuse of visas and other documents, and aggravated identity theft. He was sentenced to 22 years, partly because of a finding that he had committed the identity theft crimes to conceal the Ethiopian human rights violations.

On appeal, Worku contended (1) the immigration convictions violated the Double Jeopardy clause, (2) his aggravated identity theft conviction was improper because he had permission to use Berhe’s identity, (3) the sentence was procedurally improper because there was no evidence he had come to the United States to conceal human rights violations and the witnesses identifying him as the torturer did so due to impermissively suggestive photo arrays, and (4) the sentence was substantively unreasonable.

The Tenth Circuit first addressed Worku’s Double Jeopardy argument. Worku argued that his unlawful procurement of citizenship and aggravated identity theft convictions were predicated on the same conduct. Under a plain error review, the Tenth Circuit affirmed, finding that Count 1 was based on Worku’s form for naturalization and Count 3 was based on misrepresentations in his application for permanent residence. Worku contended the distinction was blurred in the jury instructions, but the Tenth Circuit disagreed. The Tenth Circuit found that the evidence of guilt was overwhelming and uncontroverted, and Double Jeopardy was not implicated.

Next, the Tenth Circuit addressed Worku’s contention that he could not be convicted of aggravated identity theft because he had permission to use Berhe’s identity. The Tenth Circuit found no error in this conviction, because the statute only allows an individual to permit use of his or her identity and in this case the individual’s children were the ones who allowed Worku to use the identity.

The Tenth Circuit then turned to Worku’s argument that he was denied due process because photo arrays in which he was identified as the notorious prison supervisor who had tortured inmates were unduly suggestive. The Tenth Circuit evaluated the photo arrays and found that although there were differences in the arrays, there was no error in the district court’s determination that they were not impermissively suggestive because appearances would be expected to have changed over the 30-plus-year time span. The Tenth Circuit also evaluated the witnesses’ testimony and found that because the witnesses were victims of Worku’s horrific acts of torture, the time span was inconsequential and their identification with “100% certainty” was reliable.

Finally, the Tenth Circuit addressed the substantive reasonableness of Worku’s sentence. The district court decided to stray from the Guidelines range because there were not enough cases involving human rights violators entering the United States to provide a reliable comparison. The district court imposed the maximum sentence for each count to fully compensate for the egregiousness of Worku’s human rights violations. The Tenth Circuit found no abuse of discretion in the district court’s decision.

The Tenth Circuit affirmed the district court’s conviction and sentence.

Tenth Circuit: Lesser Included Offense Must Have Nearly Identical Elements as Charged Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Barrett on Wednesday, August 19, 2015.

Kenneth Barrett had outstanding warrants for failure to appear at a state court trial for drug charges, and in 1999 an Oklahoma drug task force learned Barrett was manufacturing and selling methamphetamine out of his home. Officers obtained a warrant and devised a plan to execute it at night. Barrett opened fire on the officers as they attempted to execute the warrant, killing one officer. Barrett was charged in Oklahoma state court with one count of first-degree murder and three counts of shooting with intent to kill. His first state trial resulted in a hung jury, and in 2004 he was retried and found guilty of two lesser included offenses—manslaughter instead of first-degree murder and assault with a dangerous weapon instead of shooting with intent to kill. He was sentenced to 30 years in prison.

In September 2004, Barrett was charged with various federal drug and murder offenses in the U.S. District Court for the Eastern District of Oklahoma: (1) causing Officer Eales’ death in the course of using a firearm in the furtherance of a drug-trafficking offense, (2) causing Eales’ death in the course of using a firearm in the furtherance of a crime of violence, and (3) intentionally killing Eales during a federal drug offense while Eales was engaged in his official duties. A jury convicted him of all three counts. He was sentenced to life in prison on the first two counts and death on the third count. On direct appeal, the Tenth Circuit affirmed the convictions and sentence. Barrett then sought relief under 28 U.S.C. § 2255, but the district court denied a COA. The Tenth Circuit granted a COA on seven issues related to ineffective assistance of counsel.

The Tenth Circuit addressed Defendant’s arguments in turn. It found no error with defense counsel’s decisions to utilize the same police tactics expert that was used in the state court, since the strategy worked in state court. The Tenth Circuit noted that the decision of which expert to call is quintessentially a matter of strategy for the trial attorney and it would hesitate to question any of defense counsel’s decisions. Defendant also argued his trial counsel erred by failing to counter the government’s crime scene reconstruction expert, and the Tenth Circuit again disagreed, finding the expert’s testimony was full of problems for the prosecution and defense counsel was well within reason to use the same strategy they used in the state trial. Defendant also argued his counsel was ineffective for failing to present mental health evidence during the guilt phase, but the Tenth Circuit determined Defendant failed to show prejudice.

Next, Defendant argued the jury instructions insufficiently advised the jury on lesser included offenses. The Tenth Circuit evaluated Defendant’s proffered lesser included offense instructions and found them inapposite because they were not lesser included offenses of the charged offenses. The Tenth Circuit noted that, to be a lesser included offense, it must contain the same elements as the charged offense except for the thing that makes the greater offense greater. Because the elements of the proposed lesser included offenses were not the same as the charged offenses, Defendant’s argument failed. Defendant’s arguments that his counsel should have requested instructions on victim identity and drug manufacturing similarly failed.

The Tenth Circuit last addressed Defendant’s argument that his counsel was ineffective for failing to explore evidence of his mental health issues during the penalty phase. The Tenth Circuit examined the record and found that defense counsel had not explored potential mitigating evidence of Defendant’s mental health issues at all. The Tenth Circuit reversed the death sentence and remanded for resentencing.

The Tenth Circuit reversed and remanded the death sentence and affirmed in all other respects.