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

Defendant-appellant Jason Greer appeals the district court’s denial of his motion to vacate, set aside, or correct his sentence, contenting the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), finding unconstitutional the residual clause of the Armed Career Criminal Act, also invalidated the identically worded provision in the mandatory United States Sentencing Guidelines. He argued that he was entitled to resentencing because the court relied on the residual clause of the mandatory Guidelines to enhance his sentence. The district court denied Greer’s motion, holding that he was sentenced under the element clause of the mandatory Guidelines rather than the residual clause. Finding no reversible error in that decision, the Tenth Circuit affirmed. View "United States v. Greer" on Justia Law

Defendant Joseph Lynch, II was a first-class passenger on a flight from Philadelphia to Denver. Defendant had consumed at least six beers prior to boarding, and began behaving in a loud, unruly manner once the flight was underway. He repeatedly placed his hands on first-class flight attendant’s lower back as she was serving him beverages, which made her feel “very uncomfortable,” and she tried to move out of his reach each time. Flight attendants refused to serve defendant any more alcohol during the flight, at which point defendant became “irate” and started shouting obscenities to the cabin crew. Defendant was arrested upon landing; while in custody, he continued shouting expletives. A jury found Defendant guilty of violating 49 U.S.C. 46504, which prohibits the in-flight assault or intimidation of a flight crew member or flight attendant that interferes with his or her duties. He received a sentence of four months, followed by a three-year term of supervised release. On appeal, Defendant challenged the district court’s interpretation of the statute, the constitutionality of the statute, and the length of his sentence. After reviewing the district court’s sentencing decision, the Tenth Circuit found no evidence of error and affirmed defendant’s conviction and sentence. View "United States v. Lynch" on Justia Law

Defendants-Appellants Matthew and Brandi Channon s used fictitious names and addresses to open rewards accounts at OfficeMax, known as “MaxPerks” accounts. They used these accounts to fraudulently obtain more than $100,000 in OfficeMax products. The scheme came to light when Steven Gardner, an OfficeMax fraud investigator, noticed an unusually high number of online-adjustments across several different accounts. Gardner observed that most of the accounts were registered to one of three email addresses, differing only with interspersed periods between the characters of each address. OfficeMax recognized the variations as unique email addresses, but gmail did not. Defendants then used these fraudulent email addresses to claim purchases by other customers, thus generating rewards to which they were not entitled. They also used various accounts to sell more than 27,000 used ink cartridges, receiving $3 in rewards from OfficeMax for each after paying an average of $.32 per cartridge on eBay. In total, over the 21 months of their scheme, Defendants redeemed $105,191 in OfficeMax rewards. Defendants were ultimately were convicted by a jury of wire fraud and conspiracy to commit wire fraud relating to a scheme to defraud OfficeMax. They appealed, challenging the district court’s decision to: (1) admit exhibits derived from computer records and (2) enter a money judgment forfeiture. The Tenth Circuit Court of Appeal upheld the district court’s admission of the exhibits but remanded so the district court may conduct further proceedings on the money judgment of forfeiture. View "United States v. Channon (Matthew)" on Justia Law

Defendants-Appellants Matthew and Brandi Channon s used fictitious names and addresses to open rewards accounts at OfficeMax, known as “MaxPerks” accounts. They used these accounts to fraudulently obtain more than $100,000 in OfficeMax products. The scheme came to light when Steven Gardner, an OfficeMax fraud investigator, noticed an unusually high number of online-adjustments across several different accounts. Gardner observed that most of the accounts were registered to one of three email addresses, differing only with interspersed periods between the characters of each address. OfficeMax recognized the variations as unique email addresses, but gmail did not. Defendants then used these fraudulent email addresses to claim purchases by other customers, thus generating rewards to which they were not entitled. They also used various accounts to sell more than 27,000 used ink cartridges, receiving $3 in rewards from OfficeMax for each after paying an average of $.32 per cartridge on eBay. In total, over the 21 months of their scheme, Defendants redeemed $105,191 in OfficeMax rewards. Defendants were ultimately were convicted by a jury of wire fraud and conspiracy to commit wire fraud relating to a scheme to defraud OfficeMax. They appealed, challenging the district court’s decision to: (1) admit exhibits derived from computer records and (2) enter a money judgment forfeiture. The Tenth Circuit Court of Appeal upheld the district court’s admission of the exhibits but remanded so the district court may conduct further proceedings on the money judgment of forfeiture. View "United States v. Channon (Matthew)" on Justia Law

A jury found Defendant Jose Rios-Morales guilty of possessing with intent to distribute more than fifty grams of methamphetamine and conspiring to do the same. He received a sentence of 292 months’ imprisonment, at the bottom of the advisory Guidelines range. On appeal, he challenged the admission of 404(b) evidence and raises claims of prosecutorial misconduct, witness perjury, jury taint, and cumulative error. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Rios-Morales" on Justia Law

Defendant Walter Saulsberry pleaded guilty to possession of 15 or more unauthorized credit cards with intent to defraud. He reserved the right to appeal the district court's denial of his motion to suppress cards seized from his car. On appeal he argued he was unlawfully detained after an anonymous informant reported that he was smoking marijuana in his car and that the search of his car was unlawfully expanded beyond a search for marijuana to include inspection of credit cards found in a bag within the car. Although the Tenth Circuit found there was reasonable suspicion to detain Defendant, the arguments presented by the government were not persuasive that there was probable cause to expand the search. Accordingly, the Court reversed the denial of defendant's motion to suppress, and remanded the case for further proceedings. View "United States v. Saulsberry" on Justia Law

Defendant Gary McKibbon pled guilty to being a felon in possession of a firearm. In calculating his sentence for that offense under the 2016 sentencing guidelines, the district court consulted U.S.S.G. 2K2.1, which provided for a base offense level of twenty if McKibbon had a prior “controlled substance offense” as defined by U.S.S.G. 4B1.2(b) and its application note 1. The court, without objection, deemed McKibbon’s 2014 Colorado conviction under Colo. Rev. Stat. 18-18-405(1)(a) for distribution of a Schedule I or II controlled substance to be such a “controlled substance offense.” Using a base offense level of twenty, then, the sentencing court calculated McKibbon’s total offense level to be twenty-one which, combined with his criminal history category IV, resulted in an advisory guideline range of fifty-seven to seventy-one months in prison. The district court imposed a within-range sentence of sixty-six months. On appeal, McKibbon argued for the first time that his prior 2014 Colorado conviction did not qualify as a “controlled substance offense.” After review, the Tenth Circuit concluded both that the district court plainly erred in treating defendant's prior Colorado drug distribution conviction as a “controlled substance offense” under U.S.S.G. 4B1.2(b), and that that error warranted resentencing. View "United States v. McKibbon" on Justia Law

Richard Arnold, Sr., his wife Robyn, and his sons Ricky and Robert, devised a scheme to defraud individuals out of rebates paid to them when they purchased new vehicles. The Arnolds persuaded the victims to turn their rebates over to a charitable trust by falsely representing they would manage the trust to pay off the victims’ car loans. Although the Arnolds made some loan payments from the trust, they eventually stopped and used the remaining rebate funds for their own personal expenses. The victims then either took over the loan payments or relinquished the vehicles to the lenders. The indictment notified Richard Arnold, Sr. of the Government’s intent to seek forfeiture of “a money judgment in an amount equal to the proceeds obtained as a result of the offenses.” Arnold, Sr. appealed the district court’s forfeiture order arguing the district court erred by: (1) imposing an order of forfeiture after sentencing; and (2) failing to require the Government to use forfeited proceeds to offset the restitution Arnold owed his victims, which would lower the total amount of restitution and forfeiture he is required to pay. Finding no reversible error, the Tenth Circuit affirmed the forfeiture order. View "United States v. Arnold (Richard Sr.)" on Justia Law

Oriana Lee Farrell and her five children claimed that Defendant Elias Montoya, while on duty as a New Mexico state police officer, violated their Fourth Amendment rights when he fired three shots at their minivan as it drove away from officers trying to effect a traffic stop. Officer Tony DeTavis pulled Farrell over for speeding. A few minutes after initiating the stop, DeTavis approached the minivan parked on the right shoulder of the highway and explained to Farrell that he was going to give her a citation. He gave her two options: pay the penalty of $126 within 30 days or see a Taos magistrate within 30 days. After an argument with the officer, Farrell refused to make a decision because she did not know where she would be in 30 days. As the officer went back to his car to call for help, Farrell drove off. After the officer pulled Farrell over again, things got chaotic: Farrell got in a scuffle with the officer who tried to arrest her. When the officer tried to pull Farrell out of the car, Farrell’s 14-year old son tried to fight off the officer, who then pulled out his taser. The officer then bashed out the windows on Farrell’s van after her family ran back into the van and locked the doors. The van began to drive away again. As the incident unfolded, Officer Montoya showed up and fired three shots at the van as Farrell sped off. Farrell was later arrested and charged. Three officers returned to their vehicles and pursued the Farrells down Highway 518, reaching speeds of 100 mph during the chase. When Farrell approached a more congested area, she weaved through traffic, driving on the wrong side of the road on several occasions. According to affidavits by Farrell and one of her younger children, 911 was called during the chase, and the family looked for a police station at which to pull over because they were afraid that the three officers would harm or kill them. More than four minutes after the chase began, the Farrells drove into a hotel parking lot and surrendered. On appeal it was undisputed that no bullet hit the minivan or the Farrells inside; Montoya’s affidavit states that he was aiming at the left rear tire. The Tenth Circuit held the district court should have granted Defendant summary judgment because the shots did not halt the Farrells’ departure and, because they were fleeing, they were not seized at the time Montoya fired his weapon, even if they had a subjective intent to submit to authority. View "Farrell v. Montoya" on Justia Law

A jury convicted Karen Johnson of conspiring to distribute cocaine base. She appealed, arguing the district court violated the Sixth Amendment when it imposed on her the 120-month minimum sentence mandated in 21 U.S.C. 841(b)(1)(A)(iii) without submitting the drug-quantity issue to the jury for determination under the beyond-a-reasonable doubt standard. If she prevailed on her Sixth Amendment claim, Johnson argued a separate drug-quantity finding made by the district court (made solely for purposes of calculating a sentencing range under the Sentencing Guidelines) was not supported by sufficient evidence. In the alternative, Johnson argued her conviction had to be set aside because the district court used an improper evidentiary standard in allowing the government to adduce at trial intercepted cell phone communications. After review, the Tenth Circuit rejected Johnson’s challenges to her conviction and to the drug-quantity determination made by the district court for purposes of the Sentencing Guidelines. The district court did, however, plainly err in applying the mandatory minimum set out in 841(b)(1)(A)(iii) without submitting the quantity issue to the jury for resolution under the beyond-a-reasonable-doubt standard. Accordingly, the district court was affirmed in part and reversed in part and the matter remanded for further proceedings. View "United States v. Johnson" on Justia Law