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| Crime of Violence |
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United States v. Ortuno-Caballero,
No. 05-2206 (10th Cir., June 29, 2006) (Unpublished): Federal Sentencing Guidelines; "Crime of Violence": This case explores the conundrum in federal sentencing of what constitutes a "crime of violence." This phrase is a legal term of art that has different definitions within the federal sentencing scheme. In this case, the accused was convicted of illegal re-entry and the District Court held that a Colorado conviction of "First Degree Criminal Trespass of a Dwelling" constituted a "crime of violence" and thus warranted a 16-level enhancement. The panel found plain error and remanded for re-sentencing. Judge O'Brien's concurring opinion is a good primer on the disparate treatment of what constitutes a "crime of violence" in the federal system. He quips: "The lesson seems to be that logic plays no role; rote application of the various guideline definitions is the order of the day. It's a funny way to run a railroad."
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United States v. Golden,
No. 06-1326 (7th Cir., October 25, 2006): Federal Sentencing Guidelines; Crime of Violence: State convictions for "failure to report to county jail" are "violent felonies" under the ACCA. This is a splintered opinion authored by Judge Bauer, joined in a separate concurrence by Judge Rovner, and with a written dissent by Judge Williams.
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United States v. Collier,
No. 06-1395 (6th Cir., July 12, 2007): Federal Sentencing Guidelines; Crime of Violence: The crime of "prison escape" under Michigan law is not a "violent felony" that can trigger the ACCA for a firearm possession conviction. NOTE: There is a circuit split on this issue and the Tenth Circuit has held the opposite.
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United States v. Carrasco-Salazar,
No. 06-2311 (10th Cir., July 30, 2007) (Published): Federal Sentencing Guidelines; Crime of Violence: This is another guilty plea to illegal re-entry in which Carrasco-Salazar was sentenced to 70-months. AFFIRMED over his claim that Fourth Degree Criminal Sexual Conduct in Minnesota does not constitute a crime of violence and that it was error for the District Court to consider the underlying court documents related to that charge. The panel noted the difference between waiver and forfeiture of a claim (since it was not preserved below). Forfeiting a claim will still get an accused plain error review; waiver of a claim will not. The panel addressed this claim as one of abandonment (since counsel told the District Court that the defendant no longer disputed the PSR) and held that an abandoned objection is waived.
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United States v. Ruiz-Rodriguez,
No. 06-2184 (10th Cir., August 1, 2007) (Published): Federal Sentencing Guidelines; Crime of Violence: Yet another illegal re-entry case, but this one is reversed and remanded for re-sentencing because the prior offense used to enhance, False Imprisonment under Nebraska law, is not a crime of violence. NOTE: The panel also noted the difference between "crime of violence" in the context of enhancing sentences in this context versus enhancing sentences for career offenders (the definition for the career offender enhancement is broad).
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United States v. Amos,
No. 06-5032 (6th Cir., August 9, 2007): Federal Sentencing Guidelines; Crime of Violence: From the opinion: "This case presents a single legal question of first impression in this Circuit---whether a defendant's prior conviction for possession of a sawed-off shotgun can serve as a predicate "violent felony" for purposes of a sentencing enhancement under the Armed Career Criminal Act. The district court held that it does not and for the following reasons, we AFFIRM its decision." Sweet!
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United States v. Sanchez-Garcia,
No. 06-2262 (10th Cir., September 6, 2007) (Published): Federal Sentencing Guidelines; Crime of Violence: In this illegal re-entry case, the panel held that the crime of "Unlawful Use of Means of Transportation" under Arizona law is not a "crime of violence" for enhancement purposes.
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Logan v. United States,
No. 06-6911 (U.S., December 4, 2007): 1) Federal Sentencing Guidelines; Crime of Violence; 2) Possession of Firearm by Felon: This is a felon-in-possession of a firearm case in which Logan's sentence was enhanced because he had three convictions for violent felonies. However, if one of the felonies was resolved in such a manner that the offender's civil rights have been restored, it is excluded. In this case, Logan was convicted of three misdemeanor battery convictions under Wisconsin law and he challenged their use as enhancers because none of his civil rights were revoked as a result of these convictions. However, the Court was not impressed and held that the statute is worded in terms of civil rights being "restored"; thus, the exemption does not cover the case of an offender who retained civil rights at all times and whose legal status remained in all respects unaltered by any state dispensation.
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United States v. Fell,
No. 06-1438 (10th Cir., December 18, 2007) (Published): Federal Sentencing Guidelines; Crime of Violence: In-depth treatment of the ever popular question of what constitutes "violent felony" for purposes of the ACCA. In this case, the panel held that the crime of Conspiracy to Commit Second Degree Burglary under Colorado law was not a violent felony for ACCA purposes.
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United States v. Maldonado-Lopez
No. 07-2195 (10th Cir., February 27, 2008) (Published): Federal Sentencing Guidelines; Crime of Violence: Under the Guidelines, "three or more convictions for misdemeanors that are crimes of violence" enhance a sentence for Unlawful Entry by four levels. In this case, Lopez had three prior misdemeanor convictions for harassment under Colorado law. Because the statutory definition was broad enough to include violent as well as non-violent acts, the categorical approach was not applied and the District Court was able to review some of the documents in the cases. The panel held that, as to one of the convictions, the judgment used by the District Court was insufficient to provide an appropriate factual basis from which the court could find that Lopez had committed a crime of violence. Thus, left without the requisite three convictions, the enhancement was applied improperly and the case was remanded for re-sentencing
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United States v. Rodriguez-Enriquez,
No. 07-2033 (10th Cir., March 10, 2008) (Published): Federal Sentencing Guidelines; Crime of Violence: The panel described this appeal as concerning "whether a conviction for assault two (drugging a victim) under Colorado law is a crime of violence under United States Sentencing Guidelines sec. 2L1.2(b)(1)(A)(ii)." The panel held that it is not because the elements of the crime do not require the use, attempted use, or threatened use of physical force.
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United States v. Ziniga-Soto,
No. 06-2364 (10th Cir., June 3, 2008) (Published): Federal Sentencing Guidelines; Crime of Violence: In this illegal re-entry case, the panel held that "assault on a public servant" under Texas law is not a "crime of violence" for enhancement purposes. NOTE: the panel recognized an intra-circuit conflict of sorts in the analysis of these claims. This one might be headed for en banc review.
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United States v. Cerno,
No. 07-2136 (10th Cir., June 24, 2008) (Published): 1. "Bad Acts"; 2. Federal Sentencing Guidelines; Reasonableness: Sexual Abuse convictions AFFIRMED over claims of improper evidence during cross examination of Cerno (an incident where he watched porn in the house and passed out with his penis exposed). The panel found no violation of Rules 403 or 404(b). However, the panel VACATED the sentence because the District Court refused to consider "the comparative amount of force he used to commit the abuse." HELD: We agree with Cerno that the District Court committed procedural error by refusing, as a matter of law, to entertain his argument that relatively little force was used to perpetrate the assaults. NOTE: Judges Lucero and Holloway were in the majority; Judge McConnell dissented on the indecent exposure issue, finding that the incident was not relevant at all.
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United States v. Tiger,
No. 07-5027 (10th Cir., June 24, 2008) (Published): Federal Sentencing Guidelines; Crime of Violence: This case was G/V/R'd by SCOTUS in light of Begay and the panel held that Tiger's prior DUI was not a "crime of violence" and thus remanded for re-sentencing.
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United States v. Herrera,
No. 07-2043 (10th Cir., July 11, 2008) (Unpublished): Federal Sentencing Guidelines; Crime of Violence: Herrera plead guilty to illegal re-entry. His sentence was increased 16 levels because of his previous conviction for "battery" in California which was considered a "crime of violence" by the trial court. HELD: Battery under California law is not a categorical crime of violence since it encompasses offensive touching that is not violent; and further, plain error review is met in this case and the matter is remanded for re-sentencing.
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United States v. Cummings,
No. 07-8004 (10th Cir., July 8, 2008) (Published): Federal Sentencing Guidelines; Crime of Violence: Cummings was sentenced to a 15-year statutory minimum sentence pursuant to sec. 924(e). In this appeal, he argued that his three prior burglary convictions under Maine law do not qualify as "violent felonies" but the panel disagreed.
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