Tenth Circuit

In a sentencing appeal, the Tenth Circuit vacated a 60-month upward-variance sentence for attempted bulk-cash smuggling as substantively unreasonable, citing reliance on a material misstatement and inadequate treatment of sentencing-disparity evidence. The district court’s sentence was an outlier in light of national sentencing data and relied on a false belief that the defendant had been on bond during the offense.

In a drug-conspiracy appeal, the Tenth Circuit affirmed the conviction but vacated the sentence after finding the district court’s drug-quantity estimate relied on unreliable confidential-source hearsay. The court rejected a due-process challenge to an in-chambers evidentiary ruling and held any Rule 404(b) error harmless.

In a plea-agreement appeal, the Tenth Circuit affirmed the rejection of a Rule 11(c)(1)(C) agreement but held that the district court abused its discretion in subsequently rejecting a charge bargain plea agreement, citing deference to prosecutorial charging discretion.

The Tenth Circuit reversed a district court’s dismissal of an indictment charging a defendant with possession of a firearm as an unlawful drug user. Applying the Supreme Court’s refined standard for Second Amendment claims under Rahimi, the Court remanded for further fact-finding by the district court to determine whether non-intoxicated marijuana users, like the defendant, pose a sufficient risk of future danger so as to justify 18 USC 922(g)(3).

The Tenth Circuit reversed a district court’s denial of a defendant’s motion to suppress evidence obtained after his backpack was searched by agents following his arrest on a Greyhound bus. While the agents had probable cause to arrest him and seize the backpack, they did not have the authority to search the contents of his bag without a warrant, and the plain view doctrine did not apply where the agent was rummaging around the insides of the backpack “in an exploratory manner.”

The Tenth Circuit remanded a defendant for re-sentencing after holding that the district court clearly erred in calculating the guidelines and determining a sentence. The district court had rejected the parties recommended sentence, noting it would have had to depart “10 levels” to get there, where the court only would have had to depart one level. Since the court relied on that error in sentencing the defendant substantially above the recommended sentence, the error was reversible, and the Court remanded for re-sentencing.

The Tenth Circuit vacated a defendant’s sentence after finding that the district court plainly erred in applying a role enhancement. The district court had enhanced the defendant’s guidelines for his money laundering offense based on relevant conduct for his drug offense, which was plainly not allowed under USSG 2S1.1 Application Note 2(C).

The Tenth Circuit reversed a defendant’s conviction where the prosecutor told the jury in closing arguments that the defendant’s right to be presumed innocent was gone after the close of evidence.

The Tenth Circuit reversed a district court’s denial of two motions for early termination of probation, which the district judge had denied on the grounds that the defendants had not been sentenced to any prison time. The Tenth Circuit held that nothing in the statute or case law supports an assertion that probation-only sentences must be treated differently for termination, and courts may not make decisions about whether to grant early termination based on a blanket personal policy and must instead consider the statutory factors as they apply to each individual.

The Tenth Circuit reversed a district court’s dismissal of attempted bank robbery charges under 18 USC 2113 where the district court found that the defendant’s attempt to hold up two victims at gunpoint and force them to withdraw money from an ATM did not amount to an attempted “bank robbery” since the defendant would be robbing them, not the bank. Deepening a circuit split between the Fifth Circuit and Seventh Circuit, the Tenth Circuit reversed, concluding that “using force to induce a bank customer to withdraw money from an ATM is federal bank robbery.”