Articles Posted in Criminal Law

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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

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In 2007, Oscar Almanza-Vigil pleaded guilty in Colorado state court to “selling or distributing” methamphetamine in Colorado, for which he received a four-year prison sentence. In 2009, when the state paroled him, Immigration and Customs Enforcement (ICE) initiated expedited removal proceedings against him, declaring that he had committed an aggravated felony. With that designation, he had no right to an administrative hearing before an immigration judge. Within the week, the Department of Homeland Security had issued a final administrative removal order, and ICE agents had sent Almanza-Vigil back across the border to Mexico. Six years later, border-patrol agents found Almanza-Vigil in the New Mexico desert. Charged with illegal reentry, Almanza-Vigil moved to dismiss the indictment by collaterally attacking his previous removal order and arguing, for the first time, that he never committed an aggravated felony. The Tenth Circuit determined Almanza-Vigil’s Colorado felony did not fit the Immigration and Naturalization Act's (INA) definition of an aggravated felony. But the Court also concluded he failed to demonstrate a reasonable likelihood of avoiding removal but for the erroneous classification of his conviction. Therefore, the Court affirmed Almanza-Vigil's conviction. View "United States v. Almanza-Vigil" on Justia Law

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I.B. and her mother, Jane Doe (collectively, “Does”), claimed that a caseworker from the El Paso County (Colorado) Department of Human Services ("DHA"), April Woodard, wrongfully searched I.B. at the Head Start preschool, in violation of the Fourth Amendment. Without consent or a warrant, Woodard partially undressed I.B., performed a visual examination for signs of abuse, then photographed I.B.’s private areas and partially unclothed body. The Defendants moved to dismiss. The district court granted the motion, holding that qualified immunity precluded the Fourth Amendment unlawful search claim and that the complaint failed to state a Fourteenth Amendment claim. The Does appealed these rulings and the district court’s denial of leave to amend their complaint. Finding no constitutional violation, the Tenth Circuit affirmed. View "Doe v. Woodard" on Justia Law

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United States Border Patrol agents found Defendant-appellant John Hargrove, his girlfriend Janelle Richter, and Edgar Silvas-Hinojos in the desert near the border between Arizona and New Mexico. They were all in Hargrove’s truck, along with nearly 300 pounds of marijuana and two firearms. Hargrove was charged with: (1) conspiracy to distribute more than 100 kilograms of marijuana; and (2) possession with the intent to distribute 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana, and aiding and abetting said possession. Hargrove was convicted by jury on both charges and sentenced to sixty months’ imprisonment. On appeal, Hargrove argued: (1) the district court erred in failing to grant him a mistrial after the prosecutor elicited testimony that the district court had previously barred; and (2) the district court erred in failing to grant him safety-valve relief under section 5C1.2 of the United States Sentencing Guidelines. Finding no reversible error, the Tenth Circuit affirmed the district court in all respects. View "United States v. Hargrove" on Justia Law

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In a span of eleven days, Davion Jefferson committed five robberies. Each was captured by multiple surveillance cameras. The first three robberies occurred on separate occasions at the same Fast Trip convenience store. All three involved Jefferson and an unnamed minor male accomplice. The last two robberies occurred less than two hours apart on the same date but at different locations. Jefferson’s cohort during the latter two robberies was Nicholas Lolar. Both Jefferson and Lolar were armed. After these robberies, Jefferson posted “Can’t wake up broke” on his Facebook page, and included a picture of a hand holding a wad of cash and a number of emojis, including a firearm emoji. Jefferson was indicted with five counts of Hobbs Act robbery (Counts 1-3, 5, and 7) and three counts of use and carry of a firearm (Counts 4, 6, and 8). At trial, he did not dispute his participation in all five robberies but tried to plant seeds of reasonable doubt with the jury as to the 924(c) counts by suggesting the weapons used during the last two robberies were not actual firearms. "Considering the very real possibility of a mandatory 32 years in prison if found to have twice brandished an actual firearm, it was sound trial strategy." The jury, however, was not convinced and he was sentenced to the mandatory 32 years plus a consecutive 70 months for the robberies, for a total sentence of 454 months. Jefferson raised several issues on appeal, namely: (1) Hobbs Act robbery was not a "crime of violence" under 924(c)(3)(A) because the statute required the predicate offense have a force element and Hobbs Act robbery had only a force means; and (2) even if Hobbs Act robbery had a force element, the judge erred in directing a verdict on that element, and should have instead submitted the issue to the jury. Finding no reversible error, the Tenth Circuit affirmed Jefferson's convictions and sentence. View "United States v. Jefferson" on Justia Law

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Oklahoma prisoner Kendrick Simpson sought habeas relief from his death sentence for two counts of first-degree murder. The district court granted a Certificate of Appealability (“COA”) on two of the Simpson's eighteen grounds for relief: (1) the trial court’s alleged improper exclusion of Simpson’s PTSD evidence from the guilt stage of the trial; and (2) an alleged Brady violation, whereby prosecutors withheld impeachment evidence as to a jailhouse informant. The Tenth Circuit subsequently granted a COA on five additional issues: (1) whether alleged prosecutorial misconduct denied Simpson a fundamentally fair sentencing proceeding; (2) whether a jury instruction and prosecutorial statements unduly limited jury consideration of mitigating evidence; (3) whether the heinous, atrocious or cruel ("HAC") aggravating factor determination as to one victim was unconstitutional and unreasonable; (4) whether trial counsel was ineffective for failing to investigate, prepare, and present lay witnesses, failing to request a second-degree murder instruction, failing to object to improper prosecutorial arguments, failing to object to the HAC instruction, and failing to object to the jury instruction limiting consideration of mitigating evidence; and (5) whether there was “cumulative error, limited to errors in the grounds on which a certificate of appealability has been granted.” After careful consideration, the Tenth Circuit found no reversible error, and affirmed denial of habeas relief. View "Simpson v. Carpenter" on Justia Law

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Defendant-Appellee Ollisha Easley was onboard a Greyhound bus from Claremont, California, to her hometown of Louisville, Kentucky, when the bus made a scheduled stop in Albuquerque, New Mexico. The Greyhound passenger list showed that Easley’s reservation included a second woman identified as “Denise Moore” - both Easley and Denise Moore had one checked bag and both tickets were purchased with cash. No one named Denise Moore boarded the bus in California, but her suitcase was stowed in the luggage hold of the Greyhound and was identified with the same reservation number and telephone number as Easley’s luggage. While the bus was stopped in Albuquerque, Special Agent Jarrell Perry of the Drug Enforcement Agency (DEA) and his partner that day, Special Agent Scott Godier, observed the luggage in the bus’s cargo hold. Agent Perry later testified that the use of a so-called “phantom passenger” is a common method of narcotics trafficking. Ultimately, the agents identified the bags traveling with Easley, searched them and found small bags of methamphetamine in the Denise Moore bag. Easley denied ownership of the bag, denied knowing the bag's owner, and denied ever having seen the bag before. She would be indicted for possession with intent to distribute 500 grams or more of methamphetamine. Easley moved to suppress the evidence seized from the bag, and to exclude a confession she made to Agent Perry. The district court granted Easley’s motion holding that : (1) Easley had not established her bags were illegally searched while the bus was in the wash bay; (2) nor had she established that the bus was subject to an unreasonable investigatory detention; however, (3) under the totality of the circumstances, Easley had been illegally seized. The court found that Easley’s abandonment of the Denise Moore suitcase was the product of a Fourth Amendment violation, so it suppressed the evidence seized from the suitcase. The court also determined the earlier Fourth Amendment violation tainted Easley’s subsequent confession and suppressed her inculpatory statements. In reversing the district court's judgment, the Tenth Circuit concluded the agents’ search of the Denise Moore suitcase was a valid search of abandoned property; and there was preceding constitutional violation to taint Easley’s confession, suppression of her inculpatory statements. The parties did not brief or argue any other ground to support the district court’s decision on appeal, so the case was remanded to the district court to resolve the admissibility of Easley’s confession in the first instance. View "United States v. Easley" on Justia Law

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Darius Johnson was convicted for possessing cocaine with the intent to distribute, and for being a felon in possession of a firearm. For these offenses, the district court initially imposed concurrent prison terms of 192 months, relying in part on Johnson’s classification as an armed career criminal because of three prior convictions for violent felonies. The district court later vacated this sentence, concluding that one of the three prior convictions had not involved a violent felony. Having vacated the sentence, the court resentenced Johnson to concurrent prison terms of 120 months and 128 months, relying in part on his classification as a career offender because of two prior convictions for crimes of violence. The government appealed the vacatur of the initial sentence, and Johnson appealed the new sentence. The Tenth Circuit determined the district court correctly ordered vacatur and resentencing based on a new U.S. Supreme Court decision. When imposing the initial sentence, the district court classified Johnson as an armed career criminal because he had three prior convictions for violent felonies. The government conceded this classification was erroneous because the district court had relied on the Residual Clause, which the Supreme Court later struck down as unconstitutional. This constitutional error was not harmless because one of the three prior convictions could have been based on battery of a law enforcement officer, which did not constitute a violent felony. Given this possibility, the district court needed to vacate the initial sentence. Given the concession of another crime of violence, the district court did not err in sentencing Johnson as a career criminal under the sentencing guidelines. View "United States v. Johnson" on Justia Law

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In May 2016, Anthony Bettcher pleaded guilty to possessing a firearm as a felon. Afterward, a probation officer reviewed Bettcher’s past, including his criminal history, and prepared a Presentence Investigation Report (PSR). The PSR informed the district court that in 2013, the State of Utah had charged Bettcher with second-degree aggravated assault. In the PSR, the probation officer recommended treating this earlier conviction as a crime of violence, which if adopted would enhance Bettcher’s base offense level. The government objected when the district court refused to consider the Utah aggravated assault as a "crime of violence" under the federal sentencing rules. The issue was brought before the Tenth Circuit Court of Appeals. Specifically, the Court was presented with the question of whether Utah's second-degree aggravated-assault offense categorically qualified as a "crime of violence" under the elements clause in the federal sentencing guidelines. The Tenth Circuit held the Utah offense did qualify, and reversed the district court's decision to the contrary, and remanded for resentencing. View "United States v. Bettcher" on Justia Law

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A jury found Clifford Currie guilty of assault with intent to commit murder. Currie splashed gasoline on his supervisor, lit her on fire, attempted to stand on her neck, and attacked her with a straight razor and scissors. Currie worked as a social services assistant at the Munson Army Health Center (“Munson”) at Fort Leavenworth, Kansas. Lieutenant Katie Ann Blanchard, a registered nurse with the army, supervised him. "Currie and Lt. Blanchard had a difficult working relationship." The relationship was strained one day in September 2016 when, after informing him requests for overtime pay would be denied, Currie stepped inside Lt. Blanchard's office, threw gasoline on her and then a lit match. Currie then attempted to stab Lt. Blanchard with a straight razor and scissors. On appeal, he argued prosecutorial misconduct during closing arguments denied him a fair trial. His motion challenged nine of the prosecutor’s statements during closing argument and rebuttal. On appeal, Currie grouped the statements into three categories, arguing the prosecutor: (1) misstated the burden of proof for assault with intent to commit murder; (2) misstated the heat of passion defense; and (3) improperly warned the jury about legitimizing violence. After a review of the trial court record, the Tenth Circuit found that even if the jury saw a conflict in the prosecutor’s heat of passion explanations, the prosecutor made clear the judge’s instructions would govern. The prosecutor’s improper statements during closing argument did not render Currie’s trial fundamentally unfair and did not affect the jury’s verdict. The Court found the rest of her comments were not improper. View "United States v. Currie" on Justia Law