Summaries of Selected Opinions - January 2008 - U.s. Court of Appeals for the Tenth Circuit
| Publication year | 2008 |
| Pages | 115 |
2008, January, Pg. 115. Summaries of Selected Opinions - January 2008 - U.S. Court of Appeals for the Tenth Circuit
January 2008
Vol. 37, No. 1 [Page 115]
U.S. Court of Appeals for the Tenth Circuit
Summaries of Selected Opinions
Summaries of selected Tenth Circuit Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website:www.cobar.org (click on "Opinions/Rules/Statutes").
No. 06-1427. Nichols v. Board of County Commissioners. 10/22/2007. D.Colo., Judge Briscoe. Zoning Decisions - Collateral Estoppel - Colorado Law - Issue Actually and Necessarily Litigated - Procedural and Substantive Due Process - Protected Property Interest Required.
Plaintiffs own the Bueno Tiempo Ranch in La Plata County, Colorado. They received a discretionary permit from the Board of County Commissioners (Board) to construct a lake on their property, but were prohibited from selling topsoil directly from the site and from processing the material on-site. VanDenBerg, another landowner in the area, entered into a settlement agreement with the Board that allowed him to process and sell topsoil from his property. Plaintiffs then sought modification of their permit, claiming they were entitled to the same terms as VanDenBerg. The Board denied plaintiffs' request. Plaintiffs filed suit, asserting that their procedural and substantive due process rights were violated and that collateral estoppel required the Board to give them the same terms as VanDenBerg. The district court granted summary judgment to the Board.
The Tenth Circuit Court held that Colorado law governed the issues concerning collateral estoppel. The doctrine did not apply here, however, because the VanDenBerg settlement did not meet the first element of the collateral estoppel test: the issue to be precluded must be identical to an issue actually litigated and necessarily adjudicated in the prior proceeding. The issues were not actually litigated, because the parties settled. The Tenth Circuit also rejected plaintiffs' due process claims, holding that they did not have a protected property right in the approval of their request to modify the permit, because issuance of a permit was discretionary with the Board. The VanDenBerg settlement did not affect the discretionary nature of the Board's decisions in other cases. The district court's judgment was affirmed.
No. 06-4022. United States v. Serawop. 10/25/2007. D.Utah, Judge Henry. Restitution - Mandatory Victims' Restitution Act - Loss of Future Income Included Within Restitution.
Defendant was convicted of one count of voluntary manslaughter relating to the death of his 3-month-old daughter. The court sentenced him to 120 months' imprisonment. After obtaining expert testimony concerning the daughter's anticipated lifetime earnings, the district court ordered defendant to pay restitution to her estate under the Mandatory Victims' Restitution Act (MVRA). The expert calculated her lifetime earnings at $308,633, based on: (1) her high school education; (2) starting work at age 17; and (3) being employed for the balance of her working life. The district court then added $17,118, undisputed by defendant, to reflect the present value of her tribal stipend, for a total amount of $325,751.
In a prior appeal, the Tenth Circuit reversed defendant's conviction but did not reach his sentencing issues involving the restitution order. Defendant then pled guilty to voluntary manslaughter in exchange for a sentence of ninety-six months. The district court again imposed the restitution award of $325,751. Defendant appealed, raising a number of challenges to the restitution order.
Defendant first argued that the MVRA limits restitution to funeral expenses and "related services" when the victim dies, leaving the victim to pursue civil remedies for amounts such as lost wages. The Tenth Circuit acknowledged that the MVRA is poorly drafted on this point, concluding that a reasonable reading of the statute as a whole permits a...
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