U.S. Tenth Circuit: December 2009 Archives
U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

December 2009 Archives

US v. Caldwell, No. 08-6143

Defendant's drug conspiracy conviction is affirmed where: 1) sharing a common supplier, without more, did not demonstrate that two drug dealers were acting together for their shared mutual benefit; and 2) the mere introduction of a common supplier, made by one drug dealer to another, was not sufficient to create a single conspiracy among all the dealers, but these errors did not affect defendant's substantial rights.  However, defendant's sentence is vacated where the jury's determination of drug quantity was clearly erroneous because it was based on an unsupported tripartite conspiracy.

Read US v. Caldwell, No. 08-6143

Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

John T. Carlson and Raymond P. Moore, Assistant Federal Public Defenders, Denver, CO

For Appellee:

Sanford C. Coats, John C. Richter, Assistant U.S. Attorneys, Oklahoma City, OK

US v. Villa, No. 08-8100

Defendant's drug and firearm possession convictions and sentence are affirmed where: 1) absent a display of a weapon or some other type of show of authority, defendant voluntarily consented to further questioning by the officer who stopped her vehicle; 2) sufficient evidence supported defendant's conviction for possessing a firearm in furtherance of her methamphetamine trafficking; and 3) the most natural reading of 18 U.S.C. section 924(c) was that its prefatory clause referred only to a minimum sentence provided by section 924(c) or any other statutory provision that proscribed the conduct set forth in section 924(c).

Read US v. Villa, No. 08-8100

Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

Ronald G. Pretty, Cheyenne, WY

For Appellee:

David A. Kubichek and Kelly H. Rankin, Office of the United States Attorney for the District of Wyoming, Casper, WY

Hancock v. Metro. Life Ins. Co., No. 08-4161

In an action for disability benefits under ERISA, summary judgment for defendant-insurer is affirmed where: 1) the application of Utah Admin. Code section 590-218 to the benefits plan was expressly preempted by ERISA; 2) defendant's benefit-denial letter could not have violated 29 C.F.R. section 2560.503-1(g) because that provision applied only to denials of benefits, not denials of appeals; and 3) defendant did not deny plaintiff a full and fair review.

Read Hancock v. Metro. Life Ins. Co., No. 08-4161

Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Hartz

Counsel

For Appellant:

Brian S. King and Marcie E. Schaap, Salt Lake City, UT

For Appellee:

Jack M. Englert, Jr. and James L. Barnett, Holland & Hart LLP, Salt Lake City, UT

US v. Rivera-Oros, No. 08-2035

Defendant's sentence for reentering the United States after having been previously deported following a felony conviction is affirmed where defendant's prior burglary conviction was a "crime of violence" supporting a sixteen-level increase to his offense level under U.S.S.G. section 2L1.2(b).

Read US v. Rivera-Oros, No. 08-2035

Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Holmes

Counsel

For Appellant:

Scott M. Davidson, Albuquerque, NM

David N. Williams, Assistant United States Attorney, Albuquerque, NM

Raytheon Aircraft Co. v. US, No. 08-3237

In a cost recovery action under the Comprehensive Environmental Response, Compensation and Liability Act, judgment for plaintiff U.S. is affirmed where: 1) defendant was unable to establish that the Army used the chemical at issue at the contested site; 2) the court reasonably chose not to credit the testimony of veterans who claimed the chemical was used by the Army; and 3) defendant failed to rebut the presumption that the EPA's efforts to list the site on the National Priorities List were consistent with a national contingency plan.

Read Raytheon Aircraft Co. v. US, No. 08-3237

Appellate Information

Filed December 29, 2009

Judges

Opinion by Judge Murphy

Counsel

For Appellant:

Robert M. Jackson, Honigman Miller Schwartz and Cohn LLP, Detroit, MI

Stephen J. Torline and Derek T. Teeter, Husch Blackwell Sanders LLP, Kansas City, MO

For Appellee:

Brian C. Toth, Scott Pemberton, Catherine R. Sanders, Environment & Natural Resources Division, United States Department of Justice, Washington, DC

Colorado Springs v. Solis, No. 09-1029

In an action under the Administrative Procedure Act challenging the Department of Labor's (DOL) decision to deny a city's application to be relieved of provisions of a labor agreement, summary judgment for defendant is affirmed where 1) the DOL did not depart from its applicable precedents without explanation; 2) nothing precluded the city from vigorously seeking renegotiation of the agreement under the threat of foregoing any further federal assistance; and 3) the DOL provided a detailed explanation why it determined that the city's objections were not sufficient.

Read Colorado Springs v. Solis, No. 09-1029

Appellate Information

Filed December 23, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Patricia K. Kelly and Robert J. Mack, Office of the City Attorney, Colorado Springs, CO

For Appellees:

Tony West, William Kanter and Robert D. Kamenshine, Attorneys, Appellate Staff Civil Division, Department of Justice, Washington, DC

Teamsters Local Union No. 523 v. NLRB, No. 08-9568

In a union's petition for review of the NLRB's determination that it engaged in an unfair labor practice, the petition is denied where: 1) the NLRB had statutory authority to act with only two members, both of whom were part of a three-member group to which the NLRB delegated all of its authority; and 2) the NLRB did not err in concluding that the union committed an unfair labor practice when it insisted that an employee lose his seniority for route bidding purposes because of his prior lack of union participation.

Read Teamsters Local Union No. 523 v. NLRB, No. 08-9568

Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Tacha

Counsel

For Petitioner:

Steven R. Hickman, Frasier, Frasier & Hickman, LLP, Tulsa, OK

For Respondent:

David A. Fleischer, Robert J. Englehart, Ronald Meisburg, John E. Higgins, Jr., National Labor
Relations Board, Washington, DC

Gonzales v. Duran, No. 08-2184

In a 42 U.S.C. section 1983 action alleging an unlawful detention and interrogation during an investigation, judgment for defendants is affirmed where any error in submitting the question of objective reasonableness to the jury was harmless because the jury's other answers on the verdict form indicated a total defense verdict.

Read Gonzales v. Duran, No. 08-2184

Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Kelly

Counsel

For Appellants:

Paul Kennedy, Mary Y.C. Han and Darin M. Foster, Kennedy & Han, P.C., Albuquerque, NM

For Appellees:

Kathryn Levy, Lisa Entress Pullen, Gralow, Hill & Curtis, P.A., Albuquerque, NM

US v. Sayad, No. 08-1366

In the government's appeal of defendant's sentence for interstate travel in aid of racketeering, the sentence is affirmed where: 1) the district court committed no procedural error in mentioning defendant's Iranian-Christian status; and 2) the record supported the weight the district court attached to certain 18 U.S.C. section 3553(a) factors in varying downward from the applicable Guidelines sentence.

Read US v. Sayad, No. 08-1366

Appellate Information

Filed December 22, 2009

Judges

Opinion by Judge Murphy

Counsel

For Appellant:

Michael C. Johnson, David M. Gaouette, Assistant United States Attorneys, Denver, CO

For Appellee:

Howard A. Pincus, Raymond P. Moore, Federal Public Defenders, Denver, CO

Shell Oil Co. v. CO2 Comm., Inc., No. 08-2281

In a motion to a district court involved in the ongoing adjudication of a class action settlement regarding whether the settlement committee's arbitration claim against plaintiffs was barred by res judicata, an order referring the res judicata issue to the panel in a prior arbitration regarding the settlement is reversed where the arbitration agreement provided that applicability of the defense must be determined by a new arbitration panel.

Read Shell Oil Co. v. CO2 Comm., Inc., No. 08-2281

Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Tacha

Counsel

For Appellant:

John M. Cogswell, Cogswell Law Offices, P.C., Buena Vista, CO

For Appellees:

Kent Sullivan, Matthew J. Salzman, and Brian E. Sobczyk, Stinson Morrison Hecker LLP, Kansas City, MO

Mark Rodriguez and Gwen Samora, Vinson & Elkins, LLP, Houston, TX

US v. Davis, No. 08-6266

Defendant's firearm possession conviction is affirmed where the good-faith exception to the exclusionary rule applied when an officer acted in reasonable reliance upon the circuit's settled case law that was later made unconstitutional by the Supreme Court.

Read US v. Davis, No. 08-6266

Appellate Information

Filed December 18, 2009

Judges

Opinion by Judge Kelly

Counsel

For Appellant:

David Autry, Oklahoma City, OK

For Appellee:

Ashley L. Altshuler and Edward J. Kumiega, Assistant United States Attorneys, Oklahoma City, OK

US v. Shipp, No. 08-5157

In a firearm possession prosecution, a denial of petitioner's habeas petition is reversed where Chambers v. United States, 129 S. Ct. 687 (2009), applies retroactively on collateral review to convictions that were final at the time the case was decided by the Supreme Court.

Read US v. Shipp, No. 08-5157

Appellate Information

Filed December 16, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellant:

John Bennett, Amarillo, TX

For Appellee:

Leena Alam, Thomas Scott Woodward, Office of the United States Attorney for the Northern District of Oklahoma, Tulsa, OK

Vasquez v. Starks, No. 08-3121

In a 42 U.S.C. section 1983 action alleging that, in two separate incidents, Kansas state authorities falsely arrested plaintiff and filed falsified pre-trial diversion agreements containing his forged signatures, dismissal of the action is reversed where: 1) there was no related underlying conviction that could be invalidated by plaintiff's section 1983 actions and thus the action was not barred by Heck v. Humphrey, 512 U.S. 477 (1994), and 2) a district court may not sua sponte dismiss a prisoner's section 1983 action on the basis of the statute of limitations unless it is clear from the face of the complaint that there are no meritorious tolling issues, or the court has provided the plaintiff notice and an opportunity to be heard on the issue.

Read Vasquez v. Starks, No. 08-3121

Appellate Information

Filed December 16, 2009

Judges

Opinion by Judge Seymour

Counsel

For Appellant:

Jason M. Lynch, Reilly Pozner LLP, Denver, CO

For Appellees:

Mark Frame, Edwards County Attorney, Kinsley, KS

Herrera v. City of Albuquerque, No. 09-2010

In a 42 U.S.C. section 1983 action alleging a false arrest, summary judgment for defendants is affirmed where an officer in defendant's position could have reasonably concluded that probable cause existed to arrest plaintiff for violating a New Mexico child endangerment statute.

Read Herrera v. City of Albuquerque, No. 09-2010

Appellate Information

Filed December 14, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellant:

David Meilleur, Nancy L. Simmons, Law Offices of Nancy L. Simmons, P.C., Albuquerque, NM

For Appellees:

Erika E. Anderson, Robles, Rael & Anaya, P.C., Albuquerque, NM

Long v. St. Paul Fire & Marine Ins. Co., No. 07-3285

In an action seeking uninsured motorist benefits for plaintiff's children who were injured while joyriding in a truck belonging to a construction company owned by the fifteen-year-old driver's father (the teen had no permission to drive the vehicle), dismissal of the complaint is affirmed where the truck was not an uninsured vehicle for purposes of the policy under either Kansas law or the policy's relevant language.

Read Long v. St. Paul Fire & Marine Ins. Co., No. 07-3285

Appellate Information

Filed December 14, 2009

Judges

Opinion by Judge Tymkovich

Counsel

For Appellant:

J. Darin Hayes and Deborah B. McIlhenny, Hutton & Hutton, Wichita, KS

For Appellee:

Michael L. Baumberger and Marc A. Powell, Powell, Brewer & Reddick, LLP, Wichita, KS

US v. Masek, No. 08-1296

Defendant's wire fraud sentence and restitution order are affirmed where: 1) defendant did not present evidence to bring the reliability of the government witnesses' conservative estimates regarding the loss caused by defendant or the district court's findings into doubt; and 2) the Sentencing Guidelines did not require a civil settlement amount to be credited against the loss figure for the purposes of calculating the sentencing range.

Read US v. Masek, No. 08-1296

Appellate Information

Filed December 10, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Thomas P. Sleisenger, Law Offices of Thomas P. Sleisenger, Los Angeles, CA

For Appellee:

John M. Hutchins, David M. Gaouette and Robert Mydans, Office of the United States Attorney, Denver, CO

US v. Pena-Montes, No. 08-2169

In a prosecution for illegal reentry into the U.S. following removal, denial of defendant's motion to suppress is vacated and remanded where the court of appeals could not determine based on the record whether the evidence of defendant's identity needed to be suppressed in light of the police's Fourth Amendment violation in searching defendant's vehicle.

Read US v. Pena-Montes, No. 08-2169

Appellate Information

Filed December 7, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Stephen P. McCue, Federal Public Defender, Albuquerque, NM

For Appellee:

Terri J. Abernathy, Gregory J. Fouratt, Office of the United States Attorney for the District of New Mexico, Las Cruces, NM