Summaries of Selected Opinions

• Jurisdiction: United States,Federal
• Citation: Vol. 36 No. 1 Pg. 127
• Pages: 127
• Publication year: 2007

36 Colo.Law. 127 Colorado Lawyer 2007.

2007, January, Pg. 127. Summaries of Selected Opinions

The Colorado Lawyer
January 2007
Vol. 36, No. 1 [Page 127]

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

Summaries of selected Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Katherine Campbell and Frank Gibbard, 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 accessible from the CBA website, http //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit).

Drug Possession - Downward Departure for Acceptance of Responsibility - U.S.S.G. § 3E1.1(b) Motion

U.S. v. Blanco, No. 05-4087, 10/24/2006 D.Utah, Judge McConnell

The defendant pled guilty to one count of possession of cocaine base after he was observed throwing a plastic bag containing a green substance and a yellow rock substance onto the roof of a building. The yellow rock substance later tested as 6.1 grams of cocaine base. The defendant agreed to plead guilty, in exchange for the government's promise to recommend a two-level decrease in his offense level for acceptance of responsibility.

Prior to his guilty plea, the defendant's attorney moved to have the cocaine base re-weighed at an independent testing facility. The government made the drugs available for re-weighing, but due to its costs in doing so, it declined to move for an additional one-level downward departure for acceptance of responsibility under U.S.S.G. § 3E1.1(b).

In U.S. v. Moreno-Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005), the Tenth Circuit held that although a prosecutor's decision to recommend a § 3E1.1(b) motion is discretionary, a court can review a refusal to file such a motion if the refusal was animated by an unconstitutional motive, or not rationally related to a legitimate government end. The defendant argued that the government had no rational reason to deny him the departure merely because he sought to re-weigh the drug sample, a right the government conceded he had. The government, however, argued that because re-weighing takes up government time, resources, and the energy of agents, its policy is not to move for § 3E1.1(b) departures in such cases.

The Tenth Circuit found nothing impermissible about the government's reasoning. Ensuring efficient resource allocation is a legitimate government end, and a prosecutor's decision not to make a § 3E1.1(b) motion on behalf of a defendant who requests independent re-weighing is rationally related to that end. The Tenth Circuit also rejected the defendant's argument that the prosecutor's decision unconstitutionally interfered with his discovery rights based in due process. This argument was based on a misperception of the issue, which is whether the prosecutor's decision was animated by an unconstitutional motive, such as discrimination based on race, religion, or gender, not whether it had some effect on the exercise of a constitutional right. The Tenth Circuit further noted that any form of plea bargaining involves the exchange of a right for...