Plain Error Found in Failure to Instruct Jury That Assault is an Element of Every Conviction Under 18 U.S.C. § 111(a)(1)

By: Mackenzie Shields

In United States v. Wolfname, 2016 WL 4492465 (10th Cir. 2016), the Tenth Circuit held that assault is an element of every conviction under 18 U.S.C. § 11(a)(1). While responding to an early-morning 911 call, Officer Blaine Parnell—a police officer with the United States Bureau of Indian Affairs—attempted to arrest Wolfname on outstanding warrants. Wolfname fled. As a result of the flight and ensuing scuffle, Wolfname was indicted for “knowingly and forcibly assault[ing], resist[ing], and interfer[ing] with” Officer Parnell while he “was engaged in the performance of his official duties, which resulted in bodily injury to Parnell.” The jury found Wolfname guilty of resisting and interfering with Parnell in violation of § 111(a)(1), but wrote “No,” next to the assault option on the verdict form.

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Tenth Circuit Finds Criminal Pattern Jury Instruction § 1.31 Erroneous

By: Mackenzie Shields

In United States v. Little, 2016 WL 3902581 (10th Cir. 2016), the Tenth Circuit held that its own Criminal Pattern Jury Instruction § 1.31 was legally flawed because it omitted the element of intent to exercise control.

After his conviction of being a felon in possession of a firearm and of possession a stolen firearm, Appellant challenged the constructive possession jury instruction. Appellant argued that constructive possession requires proof of intent to exercise dominion and control over an object following the Supreme Court’s opinion in Henderson v. United States, 135 S. Ct. 1780 (2015).

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Tenth Circuit Holds that 16(b)’s Residual Clause is Unconstitutionally Vague

By: Mackenzie Shields

In Golicov v. Lynch, No. 16-9530 (10th Cir. 2016), the Tenth Circuit decided whether INA’s definition of “crime of violence,” which expressly incorporated § 16(b)’s definition of the same term, was unconstitutionally vague in light of the Supreme Court’s decision in Johnson. Following the precedent set by the Sixth, Seventh, and Ninth Circuit, the Tenth Circuit held that 18 U.S.C. § 16(b) was not meaningfully distinguishable from the ACCA’s residual clause and thus, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(f), must be deemed unconstitutional in light of Johnson.

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Sentencing Commission Calls for Changes Regarding Career Offenders and “Crime of Violence”

By: Zachary M. Nielsen

The Sentencing Commission sent a report to Congress on July 28, 2016, recommending several sweeping changes to criminal penalties. The Commission’s study was initiated following concerns that the career offender guidelines in U.S.S.G. § 4B1.1 brought about overly harsh penalties due to its inability to distinguish between career offenders with diverse criminal records. Its examination centered on the recidivism rates among career offenders fitting three categories: drug trafficking only, violent only, and mixed.

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Sentence Vacated Following Miscalculation of Base Offense Level

By: Zachary M. Nielsen

In United States v. Black (D. Kan.)(15-3111)(07-CR-10221-MLB-4), the 10th Circuit vacated the district court’s sentence and remanded for resentencing due to an error in the calculation of the base offense under the United States Sentencing Guidelines. In addition, the Court found that, despite a 23-month delay in bringing him to trial, the government did not deny defendant Black his Sixth Amendment right to speedy trial.

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10th Circuit Rejects the Consideration of Collateral Consequences at Sentencing

By: Zachary M. Nielsen

In an unpublished opinion, United States v. Morgan WL 6773933 (10th Cir. 2016), the Court found the district court’s analysis of collateral consequences to be impermissible and remanded for re-sentencing. Following the Sixth, Seventh, and Eleventh Circuits, it determined that collateral consequences to a felony conviction are irrelevant in assessing what sentence is appropriated under 18 U.S.C. § 3553(a). Collateral consequences, it held, are not part of the sentence.

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District Court Finds Collateral Consequences Increase Harshness of Would-be Sentence

By: Zachary M. Nielsen

In United States v. Nesbeth WL 3022073 (E.D.N.Y. 2016) the district court took a fresh approach to sentencing when it considered collateral consequences and gave a defendant probation rather than jail time. Following its Second Circuit precedent (and a similar holding in the fourth Circuit), the court found the collateral consequences of a felony conviction relevant when balancing the 18 U.S.C. § 3553(a) factors. It also called for more courts to do the same.

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