By: Zachary M. Nielsen
In McCormick v. Parker (E. D. Okla.)(14-7095)(10-CV-00117-JHP-KEW), the 10th Circuit reversed the district court’s denial of petitioner’s writ of habeas corpus under 28 U.S.C. § 2254. The Court found that, under Brady v. Maryland, 373 U.S. 83 (1963), the state suppressed favorable and material evidence when it allowed a witness to testify falsely at trial. The witness testified falsely that she was a certified sexual assault nurse examiner (SANE) and provided the only piece of direct evidence linking McCormick to the alleged sexual assaults. This violated McCormick’s due process rights.
By Zachary M. Nielsen
The Tenth Circuit made waves in United States v. Von Behren (D. Colo)(15-1033)(04-CR-0341-REB-1), when it invalidated the sexual history polygraph requirement of Mr. Von Behren’s state-approved sex offender treatment program. The program was a prerequisite of Mr. Von Behren’s terms of supervised release following a prison sentence. Writing for the court, Circuit Judge Seymour concluded that such a requirement compelled Mr. Von Behren to make incriminating testimonial statements in violation of his Fifth Amendment right.
In United States v. Snyder (W. D. Okla.)(14-6023)(11-CR-00027-F-1), the Tenth Circuit applied the Supreme Court’s recent opinion in United States v Johnson, No.13-7120, slip op. at 15 (U.S. June 26, 2015). The Tenth reluctantly applies Johnson to Mr. Snyder’s prior conviction finding:
Nonetheless, Johnson is binding on us. Despite an invitation from the dissent to hold otherwise, the Court’s opinion is clear that applying the residual clause violates due process in all instances, even when the felony at issue falls cleanly within its scope.
The Atlantic explores the use of Abel Assessments by courts, probation, etc. in this mostly unfavorable article. Find it at http://www.theatlantic.com/politics/archive/2015/07/the-sex-offender-test/397850/ or attached below!
The Abel Assessment and the Questions It Raises – The Atlantic
The Tenth Circuit Library is located right here in Denver, on the 4th floor of the Rogers Courthouse, and has a wealth of resources. If you can’t make it there, there’s a list of some online resources from library Wendy Lamar attached!
Issue: The issue we resolve on appeal is whether Mr. Wray’s prior conviction for “Sexual Assault – 10 Years Age Difference” under Colo. Rev. Stat. § 18-3-402(1)(e) constitutes a “crime of violence” as that phrase is used in U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2.
At his sentencing the government argued, and the district court agreed, that Mr. Wray’s former conviction for Sex Assault, was either: (1) is a “forcible sex offense” under to Application Note 1, or (2) comes within the residual clause of § 4B1.2(a)(2) (i.e., is one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”)
The Tenth Circuit disagreed and found it is not a COV:
The commission of a strict liability offense, while potentially posing a serious risk of physical injury, does not involve purposeful, violent, or aggressive conduct. In other words, the commission of such an offense does not involve a risk that is “roughly similar, in kind as well as in degree of risk posed,” to the enumerated offenses. Begay, 553 U.S. at 143. Accordingly, where a defendant’s prior conviction is for a strict liability offense, the Begay
exception applies and the conviction is outside the scope of the residual clause.
See the full opinion here
and in Library>Crime of Violence.
A new study in the American Sociological Review studies the relationship between immigration, citizenship and criminal punishment and asks “several fundamental questions about how noncitizens are sanctioned and whether citizenship is a marker of stratification in U.S. courts remain unanswered.” Here’s more from the abstract:
Are citizens treated differently than noncitizens—both legal and undocumented—in U.S. federal
criminal courts? Is the well-documented Hispanic-white sentencing disparity confounded by
citizenship status? Has the association between citizenship and sentencing remained stable
over time? And are punishment disparities contingent on the demographic context of the
court? Analysis of several years of data from U.S. federal courts indicates that citizenship status
is a salient predictor of sentencing outcomes—more powerful than race or ethnicity. Other
notable findings include the following: accounting for citizenship substantially attenuates
disparities between whites and Hispanics; the citizenship effect on sentencing has grown
stronger over time; and the effect is most pronounced in districts with growing noncitizen
populations. These findings suggest that as international migration increases, citizenship may
be an emerging and powerful axis of sociolegal inequality.
The full article is below and in Library > Sentencing Argument Resources
Citizenship and Punishment