Tenth Circuit Summaries

• Publication year: 2004
• Pages: 155
• Citation: Vol. 33 No. 9 Pg. 155

33 Colo.Law. 155 Colorado Lawyer 2004.

2004, September, Pg. 155. Tenth Circuit Summaries

Vol. 33, No. 9, Pg. 155

The Colorado Lawyer
September 2004
Vol. 33, No. 9 [Page 155]

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

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries

Full copies of the Tenth Circuit decisions are available on the CBA website at http: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118

Discretion to Grant Downward Departure - Diminished Capacity - Mental and Emotional Conditions - Circumventing Limitations of § 5K2.13

U.S. v. Sheehan, No. 03-4239, 6/15/04, D.Utah, Judge Anderson

Defendant appeals the district court's failure to recognize its discretion to depart downward, and requests a remand for an evidentiary hearing on the departure motion. He pled guilty to one Hobbs Act violation and two counts of using and carrying a firearm during a crime of violence. Defendant's motion for a downward departure was based on a defense expert's report that defendant suffered from acquired brain injury and seizure and mood disorders. The motion was denied, and the district court sentenced defendant to 441 months in prison.

The Tenth Circuit Court affirms, holding that it does have jurisdiction to consider this appeal. The district court unambiguously stated that it lacked authority to depart, pursuant to U.S.S.G. § 5K2.0, in any circumstances based on a defendant's claim of diminished capacity. The Court is construing U.S.S.G. § 5H1.3 (mental and emotional conditions not ordinarily relevant in determining sentence except as "other grounds for departure"); § 5K2.0 (grounds for departure); and § 5K2.13 (diminished capacity may warrant downward departure, with certain exceptions, one of which applies here). It rejects defendant's argument, because at the sentencing hearing he was invoking § 5K2.0 merely as a means of circumventing the limitations of § 5K2.13. Other Circuit Courts also have held that the prohibitions in § 5K2.13 cannot be circumvented by applying § 5K2.0 instead. The sentencing court can order a departure based on a defendant's mental or emotional condition, pursuant to § 5K2.0. However, its application is not based on a defendant's claim of diminished capacity. Instead, it is based on some other argument related to the defendant's mental or emotional condition. The district court properly concluded that it lacked discretion to depart downward under § 5K2.0 based on diminished capacity, when such a departure was prohibited by the terms of § 5K2.13. The sentence is affirmed.

Dismissal for Lack of Jurisdiction - Excusable Neglect - Filing of Notice of Appeal - Excuse for Late Filing

U.S. v. Torres, Nos. 03-2182 & 03-2241, 6/16/04, D.N.M., Judge Hartz.

Defendant pled guilty to a drug offense, and reserved his right to appeal the district court's denial of his motion to suppress. He did not file a notice of appeal until after the ten-day period for filing a criminal appeal, set forth in Fed.R.App.P. 4(b)(1), had passed. The case was partially remanded to the district court for it to assess whether the delay...