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TCL > November 2015 Issue > Summaries of Selected Opinions

November 2015       Vol. 44, No. 11       Page  133
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Summaries of Selected Opinions

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: (click on "Opinions/Rules/Statutes").

No. 15-9522. Veloz-Luvevano v. Lynch, U.S. Attorney General. 08/31/2015 nunc pro tunc 07/24/2015. Board of Immigration Appeals. Judge O’Brien. Crime Involving Moral Turpitude—Ineffective Assistance of Counsel—Prejudice—Categorical Approach—Criminal Impersonation.

Petitioner appealed the determination of the Board of Immigration Appeals that his conviction for criminal impersonation was a crime involving moral turpitude (CIMT), and thus he was ineligible for cancellation of removal. Petitioner pleaded guilty to the charge based on his possession of a forged Social Security card, which he purchased so he could work in the United States. In immigration proceedings, petitioner initially agreed to waive an appeal in exchange for voluntary departure. With new counsel, he filed a motion to reopen the removal proceedings, arguing that his first attorney had provided ineffective assistance by not submitting documents showing that his acts leading to the criminal charge did not amount to a CIMT. He maintained that he had not intended to commit fraud or harm anyone and indeed no one was harmed.

The Tenth Circuit noted that there is no right to counsel in deportation proceedings, but an alien can state a Fifth Amendment violation if he shows that retained counsel was ineffective and, as a result, he was denied a fundamentally fair proceeding. He must show that his attorney’s performance prejudiced him. The Tenth Circuit applied the categorical approach and held that the crime to which petitioner pleaded guilty was one involving moral turpitude because fraud is inherent in the statute. Therefore, petitioner was not eligible for cancellation of removal and his first attorney’s performance did not prejudice him. The petition for review was denied.

No. 13-1376. United States v. Spaulding. 09/01/2015. D.Colo. Judge Murphy. Withdrawal of Guilty Plea—Modification of Sentence—Jurisdictional Basis After Sentencing.

Defendant pleaded guilty to distributing methamphetamine. At sentencing, the district court denied him an acceptance-of-responsibility adjustment the government had requested and, while ostensibly granting him a downward departure, sentenced him to 137 months’ imprisonment, which was at the top of the pre-departure advisory Sentencing Guidelines range. The district court later granted defendant’s request to withdraw his guilty plea, and set the matter for trial. After rejecting an additional plea bargain that would have statutorily capped defendant’s sentence, the district court held a bench trial, at which it found defendant guilty. At a second sentencing hearing, it granted the government’s motions for a downward adjustment and a downward departure, but stated that it was not going to follow the Sentencing Guidelines. It then sentenced defendant to 137 months on each of two counts of conviction, to be served concurrently.

On appeal, defendant argued that the district court should have accepted the second plea agreement, which capped his sentence. He also argued, and the government conceded, that the district court’s ultimate sentence was procedurally unreasonable.

The Tenth Circuit did not reach these arguments. Instead, it raised a threshold jurisdictional issue: whether the district court properly permitted defendant to withdraw his guilty plea after imposing the initial 137-month sentence. A federal statute, 18 USC § 3582(c), and a court rule, Fed.R.Crim.P. 11(e), prohibit the district court from modifying a term of imprisonment after it has been imposed, except under certain stated conditions.

The Tenth Circuit concluded that Rule 11(e) and § 3582(c) are jurisdictional. In light of this, 18 USC § 3231, which grants district courts original jurisdiction over federal criminal cases, does not, standing alone, confer jurisdiction on district courts to set aside previously imposed criminal judgments that contain a term of imprisonment. The Tenth Circuit rejected defendant’s arguments that Rule 11(e) was not implicated because the district court entered its order nunc pro tunc, and because his motion could be construed as a mislabeled 28 USC § 2255 motion. Any action the district court took after initially sentencing defendant was void. The Tenth Circuit therefore remanded the case to the district court to re-impose its initial 137-month sentence, subject to further appeal.

No. 14-2200. United States v. LeCompte. 09/01/2015. D.N.M. Judge Matheson. Revocation of Supervised Release—Prohibition on Association With Minors—Necessary Findings.

As the result of a state court conviction of a sex offense involving a minor female, defendant was required to register as a sex offender. He later pleaded guilty in federal court to failing to register under the Sex Offender Registration and Notification Act (SORNA). As part of his sentence for the SORNA violation, the district court imposed a supervised release condition prohibiting him from associating with minors except in the presence of an adult approved by the U.S. Probation Office. After he was placed on supervised release, a probation officer found him sitting outside with several adults, none of them approved by the Probation Office, and his girlfriend’s 3-year-old granddaughter. The district court rejected his as-applied challenge to the association-with-minors condition, revoked his supervised release, and sentenced him to a prison term.

On appeal, defendant challenged the revocation of his supervised release based on the condition restricting his association with minors. The Tenth Circuit held that he could raise an as-applied challenge to the condition as part of his motion to dismiss the petition to revoke his supervised release, even though he did not appeal from the sentence that originally imposed the condition. It then rejected the district court’s application of the condition to the conduct that resulted in the revocation. The facts underlying that conduct, as found by the district court, did not reveal a sufficient reasonable relationship to his prior offense, which involved sexual conduct with a teenager. By contrast, the revocation offense involved no apparent inappropriate conduct and consisted of the defendant sitting with his girlfriend’s 3-year-old granddaughter in the presence of other adults. The district court also failed to discuss the absence of any sex offenses or offenses against minors since defendant’s prior sex offense and the remoteness in time of the prior sex offense, and to make a finding concerning whether applying the condition to the facts underlying the violation would involve no greater deprivation of liberty than was reasonably necessary to achieve the statutory purposes of deterring criminal activity, protecting the public, and promoting defendant’s rehabilitation. Accordingly, the Tenth Circuit reversed the denial of defendant’s motion to dismiss and remanded the case for further proceedings.

No. 14-1321. Sun River Energy, Inc. v. Nelson. 09/02/2015. D.Colo. Judge Baldock. Discovery Abuse—Sanction Against Attorney—Court Rules—Court’s Inherent Power—Substantial Justification—Due Process.

Pennington and Csajaghy, plaintiff’s former counsel, were sanctioned for discovery abuse under Fed.R.Civ.P. 37 for their failure to review plaintiff’s insurance policy to ascertain that the policy potentially covered counterclaims raised by defendant. Despite Fed.R.Civ.P. 26’s requirement that a party disclose any insurance policy even without a discovery request, no disclosure of the policy was made until 18 months after the disclosure deadline and after the claims-made policy had expired. The district court sanctioned the attorneys in the amount of $20,345 and denied their subsequent motion to reconsider. The attorneys appealed.

The Tenth Circuit reversed the sanction against Pennington, who was plaintiff’s in-house counsel, holding that Rule 37(c)(1) authorizes sanctions against parties, not counsel. Likewise, the court’s inherent power did not authorize the sanction against Pennington because the district court did not find that he acted in bad faith, vexatiously, wantonly, or for oppressive reasons.

As for Csajaghy, who was plaintiff’s counsel of record in the lawsuit, the Tenth Circuit held that Rule 37(b)(2) expressly provided for the monetary sanction imposed on him (failure to comply with a court order for discovery). Csajaghy argued that the sanction was not warranted because his conduct was substantially justified, given that it was unusual for a policy to cover the counterclaims brought here and he assumed that Pennington had reviewed the policy. As the attorney of record, however, Csajaghy’s unfounded assumptions were insufficient to substantially justify his failure to disclose the policy.

The Tenth Circuit rejected Csajaghy’s argument that plaintiff, not the attorneys, should pay the sanction. Counsel bore the blame for nondisclosure, so he should pay the sanction.

Finally, Csajaghy argued that his due process rights were violated because he was not given notice that the attorneys, rather than plaintiff, were in danger of being sanctioned. The Tenth Circuit noted that Csajaghy had a full opportunity to brief his objections in the motion for reconsideration. Moreover, he had been afforded an opportunity to testify and present evidence. This procedure cured any due process violation. The district court’s order was reversed in part and affirmed in part.

No. 14-5022. Cox v. Glanz. 09/08/2015. N.D.Okla. Judge Holmes. Jail Suicide—Qualified Immunity—Clearly Established Law—Supervisory and Individual Capacities—Interlocutory Appeal—Lack of Jurisdiction—Non-Final Order.

After her son committed suicide in a Tulsa jail, plaintiff sued the sheriff, seeking to hold him liable for her son’s suicide. She sued the sheriff in his individual capacity (relying on a supervisory liability theory) and in his official capacity. Asserting the defense of qualified immunity, the sheriff moved for summary judgment, which was denied. The sheriff filed an interlocutory appeal, claiming that the law at the time of the suicide did not clearly establish that he could be held liable as a supervisor.

The Tenth Circuit first addressed the individual capacity claim and held that the law was not clearly established that the sheriff could be held liable under the circumstances facing him and his employees at the time. The prisoner denied having a suicidal intent during booking and no jail staff members detected a basis for referring him for additional mental health screening. Clearly established law would not have put a jail administrator on notice that he could be held liable based on a prisoner’s suicide where, as here, neither he nor any identified staff member under his supervision had knowledge that the prisoner presented a substantial risk of taking his own life. This lack of clearly established law required granting qualified immunity to the sheriff on the individual capacity claim.

The Tenth Circuit then dismissed the official capacity appeal for lack of jurisdiction because the district court’s order denying the sheriff’s motion for summary judgment on this claim was not a final judgment amenable to interlocutory review. Unlike the sheriff’s individual capacity claim (which was reviewable on interlocutory appeal), the official capacity claim did not involve qualified immunity. The Tenth Circuit declined to exercise its discretionary power to exercise pendent jurisdiction over this claim. The district court’s summary judgment order was reversed in part, and the appeal was dismissed in part.

No. 14-8072. United States v. Burns. 09/10/2015. D.Wyo. Judge Ebel. Restitution—Sufficiency of Evidence—District Court’s Findings of Fact.

Defendant pleaded guilty to possessing stolen mail. He admitted that while cleaning the Rock Springs, Wyoming, Post Office, he stole letters and packages from post office boxes and carts located near the boxes. After postal officials suspended him, reports of mail missing from post office boxes at Rock Springs ceased. As part of his sentence, the district court ordered defendant to pay restitution. It based the restitution amount on a finding that he possessed 47 specific pieces of stolen mail. Defendant denied possessing five of the 47 items, whose value totaled over half of the restitution amount.

On appeal, the Tenth Circuit determined that sufficient evidence supported the district court’s finding that defendant took the five disputed items. Evidence that postal customers ordered those five items to be delivered to Rock Springs post office boxes during the time that defendant admitted to stealing mail, and that they never received the items, was sufficient to support a finding that defendant more likely than not stole the items. Defendant’s speculation about other possible outcomes concerning the items was insufficient to make the district court’s finding that he stole them clearly erroneous.

Defendant also argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury rather than the court had to make the factual findings underlying the restitution order. The Tenth Circuit rejected this theory. Even if recent Supreme Court precedent has undermined Tenth Circuit case law holding restitution to be compensatory rather than punitive, Apprendi does not apply to facts underlying a restitution order. This is because there is no specific "statutory maximum" amount of restitution that can be affected by the court’s factual findings. The Tenth Circuit therefore affirmed the district court’s restitution order.

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