Circuit Watcher

06-4172 U.S. v. Cervantes
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRISCOE, Circuit Judge.
KELLY, Circuit Judge. Defendant-Appellant Marcos A. Cervantes pled guilty to one count of possession of methamphetamine with intent to distribute and was sentenced to the statutory minimum 120 months’ imprisonment followed by five years of supervised release. 21 U.S.C. § 841(a)(1), (b)(1)(A). On appeal, Mr. Cervantes challenges the district court’s refusal to grant him a “safety-valve” adjustment so that he might be sentenced within the advisory guideline range below the statutory minimum. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm. … U.S. v. Cervantes.

07-7021 Robbins v. State of Oklahoma
Before McCONNELL, BALDOCK, and GORSUCH Circuit Judges.
McCONNELL, Circuit Judge. This case arises from the tragic death of an eight month old infant, Renee Dawn Robbins, the child of Dustin Robbins and Melissa Gillum. In 2003, Renee’s parents sought financial assistance and other social services from the Oklahoma Department of Human Services (“DHS”). Employees of DHS informed Mr. Robbins and Ms. Gillum that Carla Beth McKinney operated a licensed and privately-owned daycare center in Tahlequah, Oklahoma, where they might obtain state subsidized care for Renee. Plaintiffs further allege that employees of DHS “informed” them that “the McKinney Daycare was the only daycare to which Renee could attend due to financial considerations.” Comp. ¶¶ 19 & 20 (emphasis added). Following this consultation, Renee’s parents placed her in Ms. McKinney’s daycare where she suffered blunt force trauma to the head resulting in her death. The Chief Medical Examiner listed the manner of death as homicide; the state filed criminal charges of first degree murder against Ms. McKinney.
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Renee’s parents originally filed suit against the State of Oklahoma Department of Human Services, five named employees of DHS in their individual capacities, ten unnamed employees of DHS in their individual capacities, Carla Beth McKinney, and the McKinney Daycare, in the United States District Court for the Eastern District of Oklahoma on June 9, 2005. That case was voluntarily dismissed by the plaintiffs on September 7, 2005. This case was filed by Mr. Robbins and Ms. Gillum on September 7, 2006, against the same parties seeking damages and other relief under 42 U.S.C. § 1983 for alleged violations of Renee’s constitutional rights and various torts in connection with Renee’s death.
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The Oklahoma Department of Human Services, Howard H. Hendrick, Nancy VonBargen, and Casey Foreman filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The court granted the defendants’ motion to dismiss against DHS on the basis of sovereign immunity, but denied the motion with respect to the individual defendants. Hendrick, VonBargen, and Foreman filed a motion to reconsider. The court granted the motion with regard to the prayer for declaratory relief, but once again denied the individual defendants’ qualified immunity claim on the prayer for damages because the court found that “it ha[d] insufficient information,” and therefore that some discovery was necessary to determine whether qualified immunity shielded the defendants from suit. Robbins v. Oklahoma Dep’t of Human Serv., No. 06-CV-367, 2007 WL 756694, *1 (E.D.Okla., March 7, 2007).
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Defendants Hendrick, VonBargen, and Foreman appeal the partial denial of their motion to dismiss, and ask us to consider whether the plaintiffs have adequately stated a claim on which relief may be granted and whether they are entitled to qualified immunity. We reverse the district court’s denial of defendants’ motion to dismiss, and instruct that the suit be dismissed for failure to state a claim upon which relief can be granted. … Robbins v. State of Oklahoma.

07-2028 U.S. v. Hernandez-Hernandez
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge. At a bar in Palomas, Mexico, Alfredo Hernandez-Hernandez, a Mexican citizen twice deported from the United States, consumed a sufficient amount of alcohol and marijuana to blackout. The next thing he knew, Mr. Hernandez was in the United States without any recollection how he got there and, in short order, arrested for illegally reentering the country. Today, we are asked to decide whether the district court’s decision to exclude from trial evidence of Mr. Hernandez’s intoxication and resulting amnesia violated his constitutional right to present a defense. We hold that it did not, and so affirm the district court’s judgment. … U.S. v. Hernandez-Hernandez.

06-8064 Yellowbear v. Wyoming Atty Gen.
Before HENRY, Chief Judge, SEYMOUR, and GORSUCH, Circuit Judges.
SEYMOUR, Circuit Judge.
Andrew John Yellowbear, Jr., appeals the district court’s denial of his habeas corpus petition filed under 28 U.S.C. § 2241. We reverse and remand for further proceedings.
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On July 2, 2004, Andrew John Yellowbear, Jr., an enrolled member of the Northern Arapaho Tribe, was arrested and charged in state court with first-degree murder in Riverton, Wyoming. Prior to trial, Mr. Yellowbear filed a pro se petition in federal district court seeking a writ of habeas corpus … Yellowbear v. Wyoming Atty Gen.

07-9530 Ochieng v. Mukasey
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
The respondent has filed a motion to publish the order and judgment previously issued on February 6, 2008. The motion is GRANTED. The published opinion is filed nunc pro tunc to that date, and a copy is attached. …
McKAY, Circuit Judge. Mr. Collins Ochieng, a native and citizen of Kenya proceeding pro se before this court, petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of an order of removal (appeal No. 07-9530) and its denial of his motion to reopen (appeal No. 07-9554). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petitions for review. … Ochieng v. Mukasey.

07-1061 Biodiversity Conservation Alliance v. Stem
Before O’CONNOR, Associate Justice (Ret.),¹ HENRY, Chief Circuit Judge, and TACHA, Circuit Judge.
O’CONNOR, Associate Justice (Ret.). The United States Forest Service appeals from the district court’s award of attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) to plaintiff Biodiversity Conservation Alliance (“BCA”). Because we hold that plaintiff was not a “prevailing party” in the underlying litigation, we reverse the district court’s award of fees and remand for proceedings consistent with this opinion. … Biodiversity Conservation Alliance v. Stem.

1. The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a). [↩]

06-1177 Williams v. Berney
Before HARTZ, McKAY, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge. While delivering a licensing notice to a kennel business, Denver business license inspector Richard Berney physically assaulted Reed Williams and Marcy Albin, co-owners of the business. Williams and Albin sued Berney and his employer, the City and County of Denver, alleging the assaults violated their procedural and substantive due process rights under 42 U.S.C. § 1983. They also alleged state law battery and extreme and outrageous conduct claims against Berney.
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The district court granted partial summary judgment on the substantive due process claim, reasoning that Berney’s tortious conduct did not rise to the level of a constitutional violation under § 1983. Plaintiffs appealed. While Berney’s conduct was plainly objectionable, we agree with the district court that he did not violate Plaintiffs’ constitutional rights.
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Accordingly, we AFFIRM the district court’s grant of summary judgment on Plaintiffs’ substantive due process claim.¹ … Williams v. Berney.

1. At the summary judgment stage, Plaintiffs abandoned their procedural due process claim under § 1983. Plaintiffs’ state law claims against Berney, however, are stayed pending further order of the district court. [↩]

07-3008 Navair, Inc. vs. IFR Americas, Inc.
Before TACHA, HARTZ, and McCONNELL, Circuit Judges. HARTZ, Circuit Judge.
Plaintiff Navair, Inc. was the exclusive Canadian distributor for defendant IFR, ((For simplicity we refer to all three defendants as IFR. The defendants are
(1) Aeroflex, Inc., the parent company of (2) IFR Systems, Inc., which is the parent company of (3) IFR Americas, Inc., which had the contract with Navair.)) a manufacturer of military communications equipment and other products. When Navair successfully solicited a customer for an IFR product, IFR would sell the product to Navair for a discounted price and Navair would earn a profit upon resale to the customer. On October 8, 2002, IFR informed Navair that it was not going to renew their distributorship agreement and that the agreement would expire on October 31. The dispute before us concerns how long after October 31 IFR would still be bound to sell Navair certain products at a discounted price when Navair had begun negotiating a purchase by the customer before the agreement ended. In other words, how long would Navair be “protected”? … Navair, Inc. vs. IFR Americas, Inc.

06-9582 Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm’n
Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge. This appeal arises out of a citation issued to Plateau Mining Corporation after a fatal methane explosion at its Willow Creek Mine on July 31, 2000. The citation, issued by the Mine Safety and Health Administration (MSHA), alleged that the accident was the result of a deficient mine-ventilation system. An administrative law judge (ALJ) affirmed the citation, though not on the primary theory of liability advanced by MSHA. On review, the commissioners of the Federal Mine Safety and Health Review Commission (the Commission) split evenly, with the effect of allowing the citation to stand. Exercising jurisdiction under 30 U.S.C. § 816(a)(1), we reverse the decision of the ALJ because substantial evidence does not support a finding that Plateau was on notice that its ventilation system was performing inadequately. … Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm’n.

06-6308 Hamilton v. Boise Cascade Express
Before KELLY, EBEL, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge. The district court found that Appellant, attorney Mark Hammons, “multiplied the[se] proceedings unreasonably, vexatiously, and recklessly” by filing a motion to enforce a settlement agreement that misstated opposing counsel’s position without a reasonable basis, costing his opponents a needless expense of $7,974.20. It therefore levied a sanction in that amount against Mr. Hammons personally under 28 U.S.C. § 1927. Mr. Hammons appeals the award and amount of the sanction. We hold that the district court was within its discretion in finding Appellant’s conduct objectively unreasonable and in determining the amount of the sanction as it did, and so affirm. … Hamilton v. Boise Cascade Express.

06-2329 U.S. v. Sanchez
Before MURPHY, EBEL and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge. The district court refused to suppress evidence against Marcos Sanchez. He contends police officers did not have reasonable suspicion of criminal activity so as to justify an investigatory stop of the vehicle in which he was riding. Further, he contends even if the stop was justified at its inception, the officers exceeded the scope of the stop by frisking him for weapons. We examine the use of statements and verbal acts of unidentified, but identifiable tipsters in contributing to the officers’ suspicion of criminal activity. We also consider the circumstances which might justify a pat-down search incident to an investigatory stop. We affirm. … U.S. v. Sanchez.

07-1311 U.S. v. Nacchio
Before KELLY, McCONNELL, and HOLMES, Circuit Judges.
McCONNELL, Circuit Judge. A Denver jury convicted Joseph Nacchio, the former CEO of Qwest Communications International, Inc., of nineteen counts of insider trading. Mr. Nacchio appeals, arguing that the evidence was insufficient to convict him, that the jury was improperly instructed, and that the trial judge incorrectly excluded evidence—expert testimony and classified information—important to his defense. We agree that the improper exclusion of his expert witness merits a new trial, but we conclude that the evidence before the district court was sufficient for the government to try him again without violating the Double Jeopardy Clause. … The judgment of the district court is REVERSED and the case is REMANDED for a new trial before a different district judge.
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HOLMES, Circuit Judge, dissenting in part and concurring in part. The majority elevates form over substance in concluding that Rule 16 was the foundation for the district court’s exclusion of Professor Fischel’s expert testimony. Daubert was at the heart of the district court’s decision, and Mr. Nacchio was on clear notice of this fact. The court did not abuse its discretion in finding that Mr. Nacchio did not carry his burden under Daubert of establishing the admissibility of Professor Fischel’s testimony. Accordingly, I respectfully dissent from Section II(A) of the majority’s opinion. I concur with the majority’s conclusion that Mr. Nacchio failed to establish grounds for reversal in the district court’s exclusion of classified information and in its instructions to the jury. I also believe the evidence was legally sufficient to support the jury’s verdict. Therefore, I would affirm the district court and uphold Mr. Nacchio’s conviction. … U.S. v. Nacchio.

06-1515 Habecker v. Town of Estes Park
Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
LUCERO, Circuit Judge. David Habecker is a former Trustee of the Town of Estes Park, Colorado (“Town”) and a self-described atheist. After he refused to stand and recite the Pledge of Allegiance at meetings of the Town Board of Trustees (“Board”), several Town citizens organized a successful campaign to recall him from office. Habecker then brought this federal civil rights suit against the Town and members of the recall committee, alleging violations of the First Amendment and Article VI of the Constitution. Concluding that Habecker lacked standing, that his claims were moot, and that he failed to allege a state action, the district court granted summary judgment to the defendants. We agree that we lack jurisdiction over all claims and AFFIRM. … Habecker v. Town of Estes Park.

06-4232, 06-4256, 06-4258 U.S. v. Thompson
Before KELLY, McWILLIAMS, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge. Defendants Thomas Mower and Leslie Mower appeal their convictions of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and six counts of tax evasion, in violation of 26 U.S.C. § 7201, for the years 1992 through 1997. Defendant James Thompson appeals his conviction of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and one count of corruptly endeavoring to interfere with the administration of internal revenue laws, in violation of 26 U.S.C. § 7212(a). Thomas Mower argues that (1) the evidence was insufficient to convict him of tax evasion for the years 1992, 1993, and 1997; (2) the district court erred in admitting the government’s summary charts; and (3) the district court erred in compelling Thomas Mower’s attorney, Allen Davis, to testify before the grand jury. Leslie Mower contends that (1) the evidence was insufficient to convict her of all counts; (2) the district court erred in admitting the government’s summary charts; (3) her sentence was procedurally and substantively unreasonable; (4) the district court erred in not giving certain jury instructions; (5) the statute of limitations barred four of the counts of tax evasion, for the years 1992 through 1995; (6) her sentence violated the ex post facto clause; and (7) the district court erred in denying her motion for severance. James Thompson argues that (1) the evidence was insufficient to convict him of either count; (2) the statute of limitations barred both counts; and (3) the district court erred in denying his motion for severance. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. … U.S. v. Thompson.

06-4307 U.S. v. Olsen
Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
LUCERO, Circuit Judge. Timmy Brent Olsen appeals his conviction and sentence on fifteen counts of perjury in violation of 18 U.S.C. § 1623(a). He contends that the district court abused its discretion by declining to sever three of the perjury counts, and that it violated his due process rights by finding a sentencing fact by only a preponderance of the evidence. We disagree. We do not discern an abuse of discretion in refusing to sever the counts, and any constitutional error is harmless beyond a reasonable doubt. We therefore AFFIRM Olsen’s conviction and sentence. … U.S. v. Olsen.

07-6011 Gann v. Rinehart
Before KELLY, EBEL, and McCONNELL, Circuit Judges.
KELLY, Circuit Judge. Defendant-Appellant Brent Rinehart, Oklahoma County Commissioner, in his individual capacity, appeals the district court’s denial of his Fed. R. Civ. P. 12(b)(6) motion to dismiss on qualified immunity grounds. Plaintiff-Appellee Sharee Gann brought this action pursuant to 42 U.S.C. § 1983, alleging Commissioner Rinehart, acting under color of state law, violated her First Amendment rights by engaging in political patronage. Our jurisdiction arises under 28 U.S.C. § 1291 and the collateral order doctrine allowing an interlocutory appeal from the denial of qualified immunity that rests upon purely legal grounds, Johnson v. Jones, 515 U.S. 304, 317 (1995); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we affirm. … Gann v. Rinehart.

07-1014 Kilgore v. Estep
Before LUCERO, MURPHY, and HARTZ, Circuit Judges.
LUCERO, Circuit Judge. Kyle Keith Kilgore appeals the district court’s sua sponte dismissal of his 28 U.S.C. § 2254 habeas petition. The court dismissed his petition without prejudice because Kilgore failed to comply with two prior orders directing him to show that his petition was timely under the one-year limitation period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See § 2244(d). We granted a Certificate of Appealability (“COA”) on one issue: whether, in light of Jones v. Bock, 127 S. Ct. 910 (2007), a district court can require a state habeas petitioner to establish in his or her § 2254 application that the application is timely. We hold that the district court cannot dismiss a habeas petition as untimely unless untimeliness is clear from the face of the petition, or unless the state establishes untimeliness as an affirmative defense. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we REVERSE and REMAND this case to the district court for further consideration consistent with this opinion. … Kilgore v. Estep.

06-3386 U.S. v. Rodriguez-Rivera
Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.
TACHA, Circuit Judge. Pursuant to a plea agreement, Defendant-Appellant Jose Luis Rodriguez-Rivera pleaded guilty to possession with intent to distribute five kilograms or more of a mixture containing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). Mr. Rodriguez-Rivera appeals the 235-month sentence imposed by the District Court, and the Government has moved this Court to enforce a provision in the plea agreement waiving his right to appeal. We exercise jurisdiction under 28 U.S.C. § 1291, GRANT the motion to enforce, and DISMISS Mr. Rodriguez-Rivera’s appeal. … U.S. v. Rodriguez-Rivera.

06-3336 U.S. v. Perrine
Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.
ANDERSON, Circuit Judge. Defendant and appellant Steven C. Perrine appeals the denial of his motion to suppress evidence following his conviction by a jury on three counts relating to the distribution, receipt and/or possession of child pornography, one count of possession of a firearm by a convicted felon, and two counts of criminal forfeiture. He also appeals the denial of his motion to dismiss the case against him, on the ground that governmental authorities engaged in outrageous conduct. We affirm. … U.S. v. Perrine.

05-4286 Utah Envtl. v. Russell
Before HARTZ, SEYMOUR, and O’BRIEN, Circuit Judges.
SEYMOUR, Circuit Judge. In August, 2004, the Forest Service approved the Barney Top Resource Management Project (Project), a timber harvesting and prescribed burning project in Utah’s Dixie National Forest, pursuant to the Dixie National Forest Land and Resource Management Plan (Plan). After an unsuccessful administrative appeal to the United States Department of Agriculture, the Utah Environmental Congress (UEC) brought this action in district court alleging that defendants, the United States Forest Service (Forest Service) and its representatives, approved the Project in violation of federal law. The district court entered judgment in favor of the defendants and UEC appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. … Utah Envtl. v. Russell.

07-2033 U.S. v. Rodriguez-Enriquez
Before HARTZ, McWILLIAMS, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge. This appeal concerns whether a conviction for assault two (drugging a victim) under Colorado law is a crime of violence under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). We hold that it is not. As we understand the meaning of physical force, the elements of the offense do not require the use, attempted use, or threatened use of physical force. We therefore reverse the district court’s sentence and remand for resentencing. … U.S. v. Rodriguez-Enriquez.

06-5187 Port City Props. v. Union Pac. R.R.
Before KELLY, SEYMOUR, and MURPHY, Circuit Judges.
SEYMOUR, Circuit Judge. Port City Properties, Inc. d/b/a Hodges Warehouse and Alpine Properties, LLC (collectively “Hodges”) appeal the district court’s denial of their request for a preliminary injunction against Union Pacific Railroad Company (“Union Pacific”). We affirm. … Port City Props. v. Union Pac. R.R.

06-2358 Mondragón vs. Thompson
Before McCONNELL, BALDOCK, and GORSUCH, Circuit Judges.
McCONNELL, Circuit Judge. Christopher Mondragón claims that Officer James Thompson forged an arrest warrant and illegally imprisoned him in New Mexico for three months. He filed suit against Officer Thompson and his supervisor exactly three years (the length of the statute of limitations) after he was released on a state writ of habeas corpus. The district court dismissed this suit as untimely, concluding that any constitutional claims Mr. Mondragón had must have accrued sometime before he was released from jail. We conclude that this is not necessarily so. After the district court’s decision, but before briefing and argument, the Supreme Court handed down its decision in Wallace v. Kato, 127 S. Ct. 1091 (2007), which clarifies (and perhaps even changes) the law in this area. In their briefs, the parties did not address Wallace, nor did they discuss this Court’s decision in Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004), which is also relevant. We vacate the district court’s decision and remand the case for a determination under these, and any other relevant, precedents. … Mondragón vs. Thompson.

06-3383 United States vs. Ary
06-4157 Pace vs. Swerdlow
06-6120 United States vs. Smart
07-3159 United States vs. Lopez

05-3487 United States vs. Trotter, Maurice
07-3087 United States vs. Martinez
07-7053 United States vs. Tatum
07-8038 United States vs. Tindall