Tenth Circuit Summaries

• Publication year: 2003
• Pages: 131
• Citation: Vol. 32 No. 1 Pg. 131

32 Colo.Law. 131 Colorado Lawyer 2003.

2003, January, Pg. 131. Tenth Circuit Summaries

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131

Vol. 32, No. 1, Pg. 131

The Colorado Lawyer
January 2003
Vol. 32, No. 1 [Page 131]

From the Courts
U.S. Court of Appeals for the Tenth Circuit
Tenth Circuit Summaries

Upward Departure - Abuse of Discretion - Hypothetical Criminal History Level - Mathematical Calculations - USSG § 4A1.3

U.S. v. Sims, No. 01-6428, 10/29/02, W.D.Okla., Judge Seymour

Defendant appeals her sentence. She pled guilty to possessing and making counterfeit traveler's checks. The district court held that defendant's criminal history category did not adequately reflect the seriousness of her criminal history, and departed upward in imposing sentence. Defendant argues on appeal that the district court erred in determining the degree of departure

The Tenth Circuit Court agrees with defendant, reverses the sentence, and remands for resentencing. The court increased defendant's criminal history level from VI to a hypothetical level of IX. This method violated the applicable guideline. USSG § 4A1.3 requires that when a defendant is already at level VI, the court should look to the other axis and consider the available ranges from higher offense levels The court did not do that. The court also made an erroneous mathematical assumption in estimating what range there would be for the hypothetical level IX. The court's departure approach was incorrect and, thus, an abuse of discretion. Because the court relied on a flawed and improper method in calculating the degree of upward departure, the sentence is reversed and the case is remanded for resentencing.

Free Speech - Governmental Employee - Matters of Public Concern - Colorado Constitution Implied Cause of Action

Arndt v. Koby, No. 01-1356, 10/31/02, D.Colo., Judge Anderson.

Plaintiff was the first Boulder police officer on the murder scene of JonBenet Ramsey, a child killed in her own home. The crime received intense media coverage, including criticism of plaintiff's handling of the case. The police chief imposed a gag order on all police officers, thus preventing plaintiff from refuting the allegations against her. The police chief also refused her requests to issue a statement defending her work. Plaintiff sued the police chief and the City of Boulder, alleging that her First Amendment free speech rights were violated by the gag order. At the close of plaintiff's case at trial, the district court granted defendants' motion for judgment as a matter of law.

On appeal, the Tenth Circuit Court notes that a governmental employer may limit the speech of its employees. Those limits must...