During Sentencing, Judges Need Not Reply to Every Argument by Defendant

Not unreasonable in sentencing proceedings for a judge to not address every argument the defendant proffers as long as the judge follows the sentencing guidelines

United States v. Wireman, 2017 BL 60890, 10th Cir., No. 15-3291, 2/28/17.

The Tenth Circuit held that judges do not need to address every argument that a defendant proffers during the sentencing stages of the criminal proceedings as long as a judge follows the sentencing guidelines. In the case, the sentencing judge “alluded to the memorandum” offered by the defendant, but did not speak at length about it. While the defendant offered mitigating factors during the process, it was not procedurally unreasonable for the district court to ignore some of his arguments. After reviewing the district court’s reasoning for the defendant’s sentence, the Tenth Circuit found that the court acted reasonably and had no need to address the arguments of the defendant. The circuit court, however, did encourage judges to go beyond the bare minimum during sentencing and to address and refute any and all arguments a defendant might pose.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Wireman_No_153291_2017_BL_60890_10th_Cir_Feb_28_2?1489094717

Fifth Amendment Still Applies in Pretrial Proceedings

The right against self-incrimination extends to pretrial proceedings because the Fifth Amendment right is more than just a “trial right”

Vogt v. City of Hays, Kansas, 2017 BL 1063, 10th Cir. App., No. 15-3266, 1/4/17.

The Tenth Circuit held that the right against self-incrimination is not limited to trial, but also pretrial proceedings. The court found that the term “criminal case” under the Fifth Amendment includes probable cause hearings, concluding that the right is more than just a “trial right.”

In the case, a police officer was criminally investigated after admitting in an interview with another agency that he has withheld evidence in a trial. The charges were eventually dropped, but the officer sued the city and the police department claiming that the evidence used against him were coerced statements. In the lawsuit, the court sided with the city, holding that the Fifth Amendment only covers incriminating statements if they are used in trial. The Tenth Circuit, however, relying on dicta from Chavez v. Martinez, 538 U.S. 760, was willing to extend Fifth Amendment protections to the pretrial process. The court took into consideration pieces of constitutional history regarding the Fifth Amendment and held that it had a broad application in criminal cases.

http://www.bloomberglaw.com/public/document/Vogt_v_City_of_Hays_No_153266_2017_BL_1063_10th_Cir_Jan_04_2017_C.

Death During Botched Execution Does Not Create Eighth Amendment Claim

An execution that left the inmate in serious pain for 43 minutes was not cruel and unusual punishment because the botched procedure was an isolated mishap, barring the defendant's estate from pursing an Eight Amendment claim 

Estate of Lockett v. Fallin, 2016 BL 379808, 10th Cir., No. 15-6134, 11/15/16.

The Tenth Circuit found that a botched execution does not create an Eighth Amendment claim on behalf of ax executed inmate because such a mishap was isolated and there will always be inherent pain associated with an execution. The decision clarified whether an inmate’s estate can maintain a claim of “cruel and unusual punishment” by only showing that the execution was a painful procedure.  The cause of the botched procedure was due to a poorly inserted IV by the prison’s staff that did not efficiently supply the deadly cocktail of drugs. The court found that mistakes such as this did not reach the level of “torture or deliberate indifference” in sustaining an Eighth Amendment claim. Additionally, the court rejected the estate’s argument that the state was indifferent about the well-being of the inmate by using a new cocktail of lethal drugs. The change in drugs was not due to indifference, but due to a lack of the other drugs that have been used before.

http://www.bloomberglaw.com/public/document/Estate_of_Lockett_v_Fallin_No_156134_2016_BL_379808_10th_Cir_Nov_.

After Recent Supreme Court Ruling, Crime of Violence Definition Too Vague in Immigration Law

The definition of “crime of violence”  in the Immigration and Nationality Act is deemed to be unconstitutional because it is too broad and leaves it up to interpretation by a court

Golicov v. Lynch, 2016 BL 307286, 10th Cir., No. 16-9530, 9/19/16.

The Tenth Circuit joined a circuit split in holding that “crime of violence” is unconstitutionally too broad in the Immigration and Nationality Act (INA). The court relied on reasoning supplied by the Supreme Court in its decision of Johnson v. United States, where it held that “violent felony” was too vague under the Armed Career Criminal Act. Under the INA, an immigrant may be removed if convicted of an aggravated felony, also described as a “crime of violence.” The act’s definition for “crime of violence” is a felony that “involves a substantial risk that physical force against the person or property or another may be used in the course of committing the offense.” The court found that this definition is similar to the provision invalidated by the Supreme Court because it required a judicial official to estimate the risk posed by a crime, leaving uncertainty about how much risk it takes for a crime to qualify as a violent felony.

In this decision, the Tenth Circuit joins the Sixth, Seventh, and Ninth Circuits that “crime of violence” is too vague. The government has filed a petition for certiorari in the Ninth Circuit case.

https://www.bloomberglaw.com/public/desktop/document/Golicov_v_Lynch_No_169530_2016_BL_303072_10th_Cir_Sept_19_2016_Co?1475772138

License Plates from States with Legal Weed Not Enough for Stop and Search

Stopping a car with tags from Colorado was not enough to create reasonable suspicion to stop and search the car for illicit material

Vasquez v. Lewis, 2016 BL 273055, 10th Cir., No. 14-3278, 8/23/16.

   The Tenth Circuit found that the stopping of a car in Kansas with temporary tags from Colorado was not enough to create reasonable suspicion in holding and searching the car. The officer’s stated primary justification for stopping and calling in a drug-sniffing dog was the Colorado tags on the vehicle. The court opined that detaining someone because of their residency is improper, especially taking into consideration that 25 states have legalized medical or recreational marijuana, which cannot support reasonable suspicion.

   The officers cited other factors for the search, including the driver’s nervousness, late night travel on a highway known to be a “drug corridor,” and a blanket covering items in the back seat. The court found, however, this evidence was “too innocuous” to add any weight to the officer’s claim. “Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible,” stated the court.

   The opinion is of note for its potential of breathing new life in 42 U.S.C. § 1983 claims. In the dissenting opinion, the ruling was called a “close call,” arguing that officers should be given the benefit of the doubt due to the totality of circumstances.

http://www.bloomberglaw.com/public/document/Vasquez_v_Lewis_No_143278_2016_BL_273055_10th_Cir_Aug_23_2016_Cou.

Federal Grand Jury Proceedings Preempt N.M. Rule on Subpoenaing Lawyers

A New Mexico ethics rule limiting the subpoenaing of lawyers is preempted by federal prosecutors’ need for the lawyer as a witness in the grand jury context   

United States v. Supreme Court of N.M., 2016 BL 180748, 10th Cir., No. 14-2037, 6/7/16.

    A Tenth Circuit decision will now preempt an ethics rule in New Mexico that prevents prosecutors from subpoenaing another lawyer to present evidence about a former or current client without an essential need or alternative. The court, however, found that the rule is “an obstacle to the effectuation of the grand jury’s constitutionally authorized investigative functions,” allowing for federal prosecutorial need to preempt the rule in grand jury proceedings.

    New Mexico’s ethics rule, however, is still enforceable in other contexts, but will always be preempted in a grand jury situation.


http://www.bloomberglaw.com/public/document/United_States_v_Supreme_Court_of_NM_No_142037__142049_2016_BL_180