District court reasonably denied competency hearing where defendant’s behavior was merely odd and disruptive

COMPETENCE United States v. Landers, No. 08-6105, ___ F.3d ___ (10th Cir. May 5, 2009)(W.D. Oklahoma). Appeal of convictions for conspiring to impede federal officials in performance of their duties and for mailing threatening communications in violation of 18 U.S.C. §§ 372 and 876. HELD: District court did not err by not ordering competency hearing. District court reasonably determined there was insufficient cause. While defendant’s courtroom behavior was disruptive, it was not hysterical or out of control. Defendant’s outbursts were limited to scripted presentations calculated to disrupt court proceedings and register continued protest against federal government. Nevertheless, while defendant advanced his anti-government claims by disruptive behavior and unusual pro se filings, nothing before the court suggested an inability to consult with his lawyer with a reasonable degree of rational understanding or suggested an inability to form a rational understanding of the proceedings against him. Read the opinion here.

Due process is not violated by denial of second competency hearing where defendant’s trial behavior is insufficient to show competence compromised

DUE PROCESS/COMPETENCE United States v. Cornejo-Sandoval, No. 08-2070, ___ F.3d ___ (10th Cir. May 5, 2009)(New Mexico). Appeal of convictions for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. HELD: District court did not violate defendant’s due process rights, and therefore, abuse its discretion, by denying him a second competency hearing. A reasonable judge situated in the same position as this judge would find insufficient cause to believe defendant’s competence was compromised. Defendant’s behavior, as observed by the judge during trial, was consistent with a pretrial psychological evaluation and his attorneys’ pretrial experience (i.e., defendant was a difficult client, highly suspicious of his lawyers). Read the opinion here.

Foreclosure price of fraudulently financed property may be used to determine victim’s loss for restitution purposes

RESTITUTION United States v. James, No. 08-1292, ___ F.3d ___ (May 5, 2009)(Colorado) Appeal of restitution order entered in conjunction with conviction for wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 2 and 1343. HELD: Under Mandatory Victim Restitution Act at 18 U.S.C. § 3663(A), methods other than fair market price may be used to calculate property value for determining amount of restitution (e.g., foreclosure price or replacement price). In this instance, foreclosure price most closely reflected actual loss to victim. Therefore, district court’s use of foreclosure price to determine victim’s loss was neither error, nor unreasonable. Read the opinion here.

Sentencing guidelines limitation on district court authority to reduce sentence is not result of unlawful delegation of congressional power

SENTENCING United States v. Dryden, No. 08-3310, ___ F.3d ___ (Apr. 30, 2009)(Kansas). Defendant’s appeal of district court’s denial of motion to reduce sentence brought under 18 U.S.C. § 3582(c)(2). HELD: USSG § 1B1.10(a)(2)’s limitation on a district court’s authority to reduce a defendant’s sentence is not an unlawful delegation of congressional power to the Sentencing Commission to constrain the resentencing jurisdiction of the district courts. Read the opinion here.

Jury instruction requiring showing of effect on interstate commerce is inappropriate when jurisdictional element is interstate travel of firearm

JURY INSTRUCTION United States v. Urbano, No. 08-3147, ___ F.3d ___ (10th Cir. Apr. 29, 2009)(Kansas). Appeal of conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). HELD: Title 18 U.S.C. § 922(g)(1) does not require an individual showing of an effect on interstate commerce. All that is necessary is proof the firearm has traveled across state lines in the past. Consequently, in felon-in-possession firearms cases brought under § 922(g)(1), when government’s only evidence on jurisdictional element is interstate travel of weapon, district courts should not give Tenth Circuit Pattern Criminal Jury Instruction 1.39, which requires a showing of some effect on interstate commerce. Read the opinion here.

Good faith exception to exclusionary rule may be applied where agent’s reliance on defective search warrant to search computer was reasonable

SEARCH & SEIZURE United States v. Otero, No. 08-2154, ___ F.3d ___ (10th Cir. Apr. 28, 2009)(New Mexico). Government appeal of district court order suppressing evidence. HELD: Where search warrant for search of computer lacked particularity and was therefore invalid, officer’s reliance on warrant was objectively reasonable in light of facts that she first sought approval of Assistant U.S. Attorney, warrant was approved by magistrate, and agent’s actions in conducting search showed that she limited scope of search to specific evidence related to suspected crimes. Because officer’s reliance on warrant was reasonable, good faith exception to exclusionary rule applied and district court erred by applying exclusionary rule to suppress evidence. Read the opinion here.

Unobjected procedural sentencing error is reviewed only for plain error

SENTENCING United States v. Uscanga-Mora, No. 07-4248, ___ F.3d ___ (10th Cir. Apr. 24, 2009)(Utah). Appeal of two-level sentence enhancement under USSG § 3B1.1(c) for being leader-organizer of criminal activity. HELD: If defendant does not object to sentence, but has been afforded an opportunity to do so, and if objection would not be futile, unobjected procedural sentencing error is reviewed only for plain error. Defendant’s substantive objection that there was insufficient evidence to support sentence enhancement for being leader-organizer did not specifically alert district court that its statement of reasons for imposing the enhancement was procedurally inadequate. Accordingly, defendant’s claim that judge’s statement of reasons was inadequate is reviewed for plain error. Read the opinion here.

Magistrate may rely on opinion of officer as to location of contraband or other evidence when making probable cause determination for search warrant

SEARCH & SEIZURE United States v. Biglow, No. 08-3155, ___ F.3d ___ (10th Cir. Apr. 20, 2009)(Kansas). Government appeal of district court’s order suppressing evidence in prosecution for drug and firearms violations. HELD: District court erred by suppressing evidence by wrongly concluding that government’s search warrant affidavit failed to establish probable cause necessary to search defendant’s home. To establish nexus between suspected criminal activity and place to be searched sufficient to provide probable cause for search warrant, officer-affiant seeking warrant need not draw explicit connection between suspect’s activities and his residence. That is, nexus between place to be searched and suspected criminal activity requires neither hard evidence nor an officer’s personal knowledge of illegal activity at place to be searched. Rather, sufficient nexus is established once affidavit for search warrant describes circumstances that would cause person of reasonable caution to believe that articles sought are at particular place. Accordingly, magistrate judge may rely on opinion of law enforcement officers as to where contraband or other evidence may be kept such as officer’s statement that certain evidence – in his professional experience is likely to be found in a defendant’s residence (e.g., an officer’s observation that, in his professional experience, drug dealers often keep evidence related to their unlawful activities at home). Read the opinion here.

Federal sentence is not reduced if crime committed while on probation for state conviction, but probation period is shortened nunc pro tunc

SENTENCING United States v. Pech-Aboytes, No. 08-4124, ___ F.3d ___ (10th Cir. Apr. 17, 2009)(Utah). Appeal of sentence for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). HELD: District court properly concluded that defendant was ineligible for safety valve sentence reduction under 18 U.S.C. § 3553(f) and USSG § 5C1.2. If defendant commits federal offense while serving probation for state conviction, but obtains after-the-fact nunc pro tunc correction to sentence in state court in which probation period is terminated before commission of federal offense, defendant is nevertheless deemed to have committed federal offense while on probation for state crime and therefore does not qualify for safety valve sentencing relief if basis for nunc pro tunc shortening of state probation period is unrelated to innocence or error of law. Read the opinion here.

Multiple overlapping sentence enhancements are proper for felonious possession of firearm if firearm was stolen during course of burglary

SENTENCING United States v. Morris, No. 07-8099, ___ F.3d ___ (10th Cir. Apr. 14, 2009)(Wyoming). Appeal of sentence enhancements imposed under USSG §§ 2K2.1(a)(4)(A) and 2K2.1(a)(b)(6) for being felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). HELD: In sentencing for conviction as felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), application of two-level sentence enhancement under USSG § 2K2.1(a)(4)(A), because firearm was stolen, and application of four-level enhancement for use or possession of firearm in connection with another felony offense (i.e., burglary in which rifle was stolen) under USSG § 2K2.1(a)(b)(6), was not impermissible double counting. Interpretive commentary to sentencing guidelines is binding on district courts, and relevant commentary applicable to guidelines used in this case specifically permit application of two-level enhancement for possession of stolen firearm and four-level enhancement for use or possession of firearm in connection with another felony offense (burglary). Read the opinion here.