Recently in Criminal Law Category

In a 42 U.S.C. section 1983 action alleging that defendant-officers unlawfully detained plaintiffs and searched their home, summary judgment for defendants on qualified immunity grounds is affirmed where defendants' discovery of marijuana ultimately gave them reason to detain plaintiffs, to seize the marijuana, and to perform two more searches of plaintiffs' apartment.

Read Harman v. Pollock, No. 08-4068

Appellate Information

Filed November 18, 2009

Judges

Opinion by Judge Henry

Counsel

For Appellants:

Robert B. Sykes, Alyson E. Carter, Scott R. Edgar, Robert B. Sykes & Associates, P.C., Salt Lake City, UT

For Appellees:

J. Clifford Petersen and Mark L. Shurtleff, Utah Attorney General's Office, Salt Lake City, UT

Defendant's firearm possession conviction is affirmed where, according to the Sentencing Guidelines, if a defendant possesses a firearm in connection with the commission of another offense, the district court must apply the offense level for the other offense if the resulting offense level is higher than the offense level as calculated under the provision governing the unlawful possession of firearms.

Read US v. Varela, No. 08-2275

Appellate Information

Filed November 18, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellant:

Leon Schydlower, El Paso, TX

For Appellee:

Teresa L. Raymond, Gregory J. Fouratt and Laura Fashing, Assistant United States Attorneys, Albuquerque, NM

Defendant's counterfeiting and firearm possession conviction is remanded to the district court for an evidentiary hearing to determine whether, by stipulating to the facts that supported his convictions, defendant voluntarily entered into the stipulation knowing of the likely consequences his stipulation would have upon his appeal.

Read US v. Livingston, No. 09-6077

Appellate Information

Filed November 16, 2009

Judges

Opinion by Judge Briscoe

Counsel

For Appellant:

James T. Rowan, Oklahoma City, OK

For Appellee:

Timothy W. Ogilvie, Assistant United States Attorney, Oklahoma City, OK

Defendant's crack cocaine distribution sentence is affirmed in part where: 1) the district court appropriately relied on an informant's testimony to find that defendant had produced crack; and 2) production of three ounces of crack qualified as relevant conduct under the Sentencing Guidelines. However, the sentence is reversed in part where the district court erred in attributing two points to defendant for committing one of the offenses of conviction while serving under a criminal justice sentence.

Read US v. Caldwell, No. 08-3011

Appellate Information

Filed November 9, 2009

Judges

Before LUCERO, EBEL, and TYMKOVICH, Circuit Judges.

Opinion by Judge Ebel

Counsel

For Appellant:

G. Gordon Atcheson of The Atcheson Law Office, Westwood, KS

For Appellee:

Leon Patton, Assistant United States Attorney, Kansas City, KS

Defendant's sentence for illegal reentry into the U.S. following removal is affirmed where California's robbery statute, as interpreted by the California Supreme Court, was in line with the uniform generic definition of robbery and, therefore, the sixteen-offense-level increase imposed by the district court based on defendant's California robbery conviction was appropriate.

Read US v. Garcia-Caraveo, No. 08-2140

Appellate Information

Filed November 3, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Scott M. Davidson, Albuquerque, NM

For Appellee:

John Anderson and Paige Messec, Assistant United States Attorneys, Albuquerque, NM

Defendant's firearm possession conviction is affirmed where defendant forfeited any Fourth Amendment privacy rights he might have had in a storage unit by directing his girlfriend to enter into the rental agreement using another person's name and stolen identification.

Read US v. Johnson, No. 08-4031

Appellate Information

Filed October 27, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellant:

Bretta Pirie, Salt Lake City, UT

For Appellee:

Diana Hagen, Assistant United States Attorney, Salt Lake City, UT

In an appeal from a district court's denial of defendant's motion to reduce his crack cocaine sentence under Amendment 706 to the Sentencing Guidelines, the denial of the motion is reversed where: 1) defendant's sentence was based on the Sentencing Guidelines because the parties based their plea agreement on the properly computed guideline range, and the stipulated sentence fell within this range; and 2) contrary to the ruling below, the court had authority to reduce defendant's sentence under 18 U.S.C. section 3582(c)(2).

Read US v. Cobb, No. 08-1213

Appellate Information

Filed October 26, 2009

Judges

Opinion by Judge McKay

Counsel

For Appellant:

Howard A. Pincus, Assistant Federal Public Defender, Denver, CO

For Appellee:

John M. Hutchins, Robert Mydans, Assistant United States Attorney, Denver, CO

Defendant's motion for a certificate of appealability of the district court's denial of his 28 U.S.C. section 2255 motion to vacate defendant's sentence is denied where: 1) the court had ample evidence before it both of defendant's history of emotional problems and his competency as of the date of the plea colloquy; and 2) when a habeas petitioner claims ineffective assistance of counsel, he impliedly waives attorney-client privilege with respect to communications with his attorney necessary to prove or disprove his claim.

Read US v. Pinson, No. 09-6119

Appellate Information

Filed October 26, 2006

Judges

Opinion by Judge Ebel

Defendants' drug conspiracy convictions are affirmed where the district court correctly refused to suppress illicit drugs discovered in their car during a traffic stop because: 1) the district court's finding that a state trooper had reasonable suspicion to pull defendant over for unsafely passing another vehicle was not clearly erroneous; 2) defendant waived his right to assert certain arguments on appeal in his plea agreement; 3) the officer had reasonable suspicion of defendants' drug activity based on a) defendants' unusual nervousness; b) their improbable travel plans; c) one defendant's criminal history; and d) Las Vegas's reputation as a narcotics source city and Indianapolis's reputation as a drug distribution hub.

Read US v. White, No. 07-3153

Appellate Information

Filed October 22, 2009

Judges

Opinion by Judge Ebel

Counsel

For Appellants:

B. Kay Huff, Lawrence, KS

Donald R. Hoffman, Hoffman & Hoffman, Topeka, KS

For Appellee:

Sangita K. Rao, Eric F. Melgren, David Zabel, Department of Justice, Criminal Division, Appellate Section, Washington, DC

Defendant's firearm possession conviction is reversed where 1) the district court's refusal to provide defendant access to a confidential informant's medical records contravened due process and 2) the court's limitations on cross-examination of the informant violated the Sixth Amendment.

Read US v. Robinson, No. 08-3120

Appellate Information

Filed October 20, 2009

Judges

Opinion by Judge Lucero

Counsel

For Appellant:

Ronald E. Wurtz and David J. Phillips, Federal Public Defenders, Topeka, KS

For Appellee:

James A. Brown, Topeka, KS