Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Defendant-Appellee Gregory Orozco was convicted by a jury of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine (count 1), and possession with intent to distribute five grams or more of methamphetamine (count 2). Orozco moved for a new trial, alleging the government violated his Sixth Amendment right by interfering with his right to call a witness on his behalf. The district court granted the motion, vacated the two convictions, and dismissed the underlying counts of the superseding indictment. The government appealed, challenging the district court’s finding of prosecutorial misconduct and the remedy imposed. The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings. On remand, the district court was ordered to vacate its dismissal of the underlying counts of the superseding indictment to allow for retrial. View "United States v. Orozco" on Justia Law

Carlos Cuesta-Rodriguez challenges his Oklahoma conviction for first-degree murder and his accompanying sentence of death. The victim, Olimpia Fisher, and her adult daughter, Katya Chacon, lived with Cuesta-Rodriguez in a home Fisher and Cuesta-Rodriguez had purchased together. In the year following the home purchase, Cuesta-Rodriguez and Fisher’s relationship was strained. Cuesta- Rodriguez feared Fisher was cheating on him. Whenever Fisher and Chacon would leave the house, Cuesta-Rodriguez would question them “about where they were going and what they would be doing.” The relationship deteriorated to the point that both Cuesta-Rodriguez and Fisher wanted the other to move out. An argument between the two ended when Cuesta-Rodriquez shot Fisher in both eyes. The district court denied relief and denied a certificate of appealability (COA). The Tenth Circuit concluded Cuesta-Rodriguez was not persuasive in his argument that combined errors led to a trial that wasn’t “fundamentally fair.” As such, the Court affirmed the district court's judgment that Cuesta-Rodriquez was not entitled to relief. View "Cuesta-Rodriguez v. Carpenter" on Justia Law

Petitioner Christopher Hobdy, a Colorado state prisoner serving time for first degree assault and aggravated robbery, filed an application for federal habeas relief pursuant to 28 U.S.C. 2254. The criminal charges against Hobdy arose from an assault on the victim Jerry Williams outside a convenience store in 1997. The victim was a police officer with the City of Aurora, Colorado, who had a terminal illness and was living in a hospice at the time of the assault. Williams left to make a purchase at a nearby convenience store early in the morning; as he walked back to the hospice, Hobdy stuck the victim with a shovel. The victim fell to the ground, and his possessions fell out of his pocket. Hobdy picked the items up and ran away. Police located Hobdy and identified him from photographs taken from the store's surveillance camera. Hobdy's main argument at trial was that because of medicines the victim took to treat his terminal illness, his identification of Hobdy from the convenience store and surveillance photos was legally insufficient. The victim died months after the incident, and approximately 8 months prior to trial. In his post-conviction appeals, Hobdy argued he received insufficient assistance of trial and appellate counsel for a variety of reasons, centering primarily on mishandling of testimony and trial procedure, and for failing to preserve certain issues related to the jury's deadlock notes. The district court granted Hobdy’s 2254 application and ordered the State of Colorado to retry him within ninety days. Respondents Rick Raemisch, the Executive Director of the Colorado Department of Corrections, and Phil Weiser, the Attorney General for the State of Colorado, appealed the district court’s decision. The Tenth Circuit concluded Hobdy's principal arguments for habeas relief were procedurally barred and could not serve as the basis for relief. The Court therefore reversed the district court, remanded the case with directions to enter judgment in favor of respondents. View "Hobdy v. Raemisch" on Justia Law

In 2014, CNB auditors conducted a surprise audit of the Burlington, Kansas Central National Bank (“CNB” or “Bank”) vault. The vault was missing $764,000. When they began to suspect defendant Denise Christy, she forged documents to purport that she had sent the missing cash to the Federal Reserve Bank of Kansas City (“FRB”). A grand jury indicted her on one count of bank embezzlement, six counts of making false bank entries, six counts of failing to report income on her taxes, and 10 counts of money laundering. After a six-day trial, a jury found Christy guilty of all charges except four money laundering counts. On appeal, Christy argued: (1) cumulative prosecutorial misconduct violated her due process rights; (2) the evidence was insufficient for her money laundering convictions; and (3) the jury instructions improperly omitted a “materiality” element for the false-bank-entry charges. The Tenth Circuit: (1) rejected Christy’s prosecutorial misconduct challenge because she has not shown the prosecutor’s comments influenced the jury’s verdict; (2) reversed Christy’s money laundering convictions because the Government did not produce sufficient evidence of the intent to file a false tax return; and (3) affirmed Christy’s false-bank-entry convictions because, even assuming materiality was an implied element of 18 U.S.C. 1005, its omission from the jury instruction was harmless error. The matter was remanded to the district court with instructions to vacate the convictions for money laundering, resentence the defendant, and further proceedings. View "United States v. Christy" on Justia Law

After investigating complaints regarding the tax-preparation services of defendant Donald Iley, the Colorado Board of Accountancy (Board) issued an “Agreement and Final Agency Order” in which Iley admitted to engaging in professionally negligent conduct and agreed to accept certain disciplinary sanctions, including a $10,000 fine and a five-year probationary period. Among the acts for which the Board disciplined Iley was taking a client’s money, ostensibly to pay the client’s payroll taxes, but then failing to promptly and properly pay those funds to the IRS. While serving the Order’s probationary term, Iley executed a fraudulent scheme in which he fleeced his clients of more than $11 million. As part of this scheme, Iley fraudulently misrepresented to his clients that he was taking their funds to pay outstanding payroll taxes to the IRS but, instead, Iley used those funds for personal purposes. After this fraud was discovered, Iley pleaded guilty to wire fraud and aiding in the preparation of a false tax return. At sentencing, the district court enhanced Iley’s sentence under the U.S. Sentencing Guidelines, section 2B1.1(b)(9)(C). The question presented to the Tenth Circuit was whether the court erred in doing so. The Court held that under the particular circumstances of this case, the court did not err in Iley's sentence, and affirmed. View "United States v. Iley" on Justia Law

Defendant-appellant Richard Roe pled guilty to conspiring to possess with intent to distribute 280 grams or more of cocaine base (“crack”) and five kilograms or more of cocaine. Because of the quantities involved, Roe was subject to a mandatory minimum sentence of twenty years. Pursuant to a plea agreement, the government requested a sentence below the mandatory minimum. The district court sentenced Roe to fifteen years. Roe did not file a direct appeal; instead, he filed a 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence, arguing trial counsel was ineffective in failing to: (1) challenge the drug quantity at the sentencing hearing (“drug-quantity claim”) and (2) file a notice of appeal as requested (“failure-to-file claim”). The district court summarily denied the drug-quantity claim, concluding Roe’s guilty plea established the relevant quantity. It held an evidentiary hearing on the failure-to-file claim. Trial counsel testified Roe never told him to file an appeal because they never discussed the issue. In a post-hearing motion, Roe sought to amend his failure-to-file claim so it focused on trial counsel’s failure to consult with him as to whether an appeal should be filed (the “failure-to-consult claim”). The district court rejected, on two separate grounds, Roe’s failure-to-consult claim. It concluded the failure-to-consult claim was an untimely new claim that did not relate back to the failure-to-file claim set out in Roe’s original Section 2255 motion. In the alternative, the district court concluded the failure-to-consult claim failed on the merits. Roe filed and received a certificate of appealability to raise both the drug-quantity and failure-to-consult claims. The Tenth Circuit affirmed denial of Roe's 2255 motion: (1) when a criminal defendant enters a knowing and voluntary guilty plea to an indictment charging a drug conspiracy with an attendant quantity element, the defendant is subject to the enhanced penalties associated with that quantity; and (2) Roe’s failure-to-consult claim did not relate back to his failure-to-file claim and was, therefore, untimely. View "In re: Sealed Opinion" on Justia Law

Defendant Bobby Pullen was sentenced as a career offender at a time when the United States Sentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C. 924(e)(2)(B)(ii) as unconstitutionally vague. As the residual clause of 924(e)(2)(B)(ii) was identical in wording to the residual clause of USSG 4B1.2. Relying on "Johnson," Pullen moved for authorization to file a second or successive 28 U.S.C. 2255 motion. The Tenth Circuit Court of Appeals determined Pullen made a prima facie showing that Johnson created a retroactive, new rule of constitutional law applicable to the mandatory Guidelines. The district court, however, concluded Johnson did not actually create a new rule applicable to the mandatory Guidelines and dismissed Pullen’s section 2255 motion pursuant to 28 U.S.C. 255(h)(2), a provision governing authorization to file a second or successive section 2255 motion. The district court did, however, grant Pullen a certificate of appealability (“COA”). With respect to Pullen’s substantive challenge, the Tenth Circuit found the Supreme Court never recognized a void for vagueness challenge to the Guidelines and so Johnson neither created a new rule applicable to the Guidelines nor dictated that any provision of the Guidelines was subject to a void for vagueness challenge. Accordingly, the Tenth Circuit affirmed the district court’s judgment. View "United States v. Pullen" on Justia Law

Defendant Troy Bong was convicted in 2013 of being a felon in possession of a firearm, for which he was sentenced to 293 months in prison. He appealed the district court’s denial of his motion to vacate, set aside, or correct sentence. The district court granted Bong a certificate of appealability (COA) on Bong’s claims that he was improperly sentenced under the Armed Career Criminal Act (ACCA) and that his trial and appellate counsel were ineffective for failing to challenge the ACCA sentencing. The Tenth Circuit subsequently granted Bong a COA as to two additional issues: (1) whether his trial counsel was ineffective for failing to investigate the facts of the underlying traffic stop, Bong’s resulting arrest, and Bong’s alleged possession of a firearm; and (2) whether the prosecution suppressed any available video recordings of his stop and arrest. After review, the Tenth Circuit agreed the district court erred in treating Bong's prior Kansas state convictions for robbery and aggravated robbery as “violent felonies” under the ACCA, and remanded for the district court for to consider whether Bong’s remaining prior convictions were sufficient to support his sentence under the ACCA. As for Bong’s ineffective assistance of trial counsel claims, the Court affirmed in part and reversed in part: since the trial court erred in basing's Bong's ACCA sentence on his prior Kansas robbery and aggravated robbery convictions, it was unnecessary to address ineffectiveness based on this issue. However, questions remained whether Bong's motion for post-conviction relief was timely filed based on the discovery of police recordings of his arrest, and the arresting officer's alleged false testimony on whether video recordings existed. The case was remanded for further proceedings. View "United States v. Bong" on Justia Law

Lina Thoung emigrated from Cambodia to the United States in 2002 using a fraudulently obtained visa in the name and birthdate of another person. In 2007, she obtained U.S. citizenship and affirmed she had never provided false information to any government official while applying for any immigration benefit. Her fraud was discovered in 2012. She subsequently pleaded guilty to misusing a visa, permit, and other documents to obtain citizenship. As part of her plea agreement, she jointly stipulated to denaturalization under 8 U.S.C. 1451(e) and removal from the United States. Relying on 8 U.S.C. 1228(c)(5), the district court entered an order of removal. Immigration authorities, unable to deport Thoung back to Cambodia, eventually released her subject to an Order of Supervision. Under this order, Thoung could be arrested and deported at any time. Thoung filed a writ of habeas corpus with the district court alleging the court had lacked subject-matter jurisdiction to enter its order of removal. The district court reaffirmed its jurisdiction to order removal and rejected Thoung’s habeas petition. The Tenth Circuit held that, because of the REAL ID Act’s limitations on judicial review, the district court lacked jurisdiction to entertain Thoung’s habeas petition challenging the prior removal order. Because the district court lacked subject-matter jurisdiction and thus lacked power to enter its October 2017 Memorandum and Order, that judgment was vacated. View "Thoung v. United States" on Justia Law

Defendant pled guilty based on a plea agreement he struck with the government. The agreement included a waiver of the right to collaterally challenge the conviction. Despite the waiver, defendant collaterally challenged the conviction under 28 U.S.C. 2255. The district court dismissed the challenge without ruling on the waiver, holding instead that the defendant’s underlying claim failed on the merits. On appeal, defendant didn't question the enforceability or applicability of the waiver. Instead, he contended the government forfeited the waiver by failing to invoke it in district court. The government defended the district court's ruling, adding that the Tenth Circuit should also affirm based on the defendant’s waiver of a collateral challenge. The Tenth Circuit rejected defendant's contention because the government never had an opportunity to assert the waiver in district court. As a result, the Court affirmed dismissal based on the waiver. View "United States v. Lopez-Aguilar" on Justia Law