Summaries of Selected Opinions
| Publication year | 2015 |
| Pages | 133 |
From the Courts
U.S. Court of Appeals for the Tenth Circuit
Summaries of Selected Opinions
Summaries of selected Tenth Circuit Court of Appeals 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. 15-9522. Veloz-Luvevano v. Lynch, U.S. Attorney General. 08/31/2015 nunc pro tunc 07/24/2015. Board of Immigration Appeals. Judge O'Brien. Crime Involving Moral Turpitude —Ineffective Assistance of Counsel—Prejudice—Categorical Approach—Criminal Impersonation.
Petitioner appealed the determination of the Board of Immigration Appeals that his conviction for criminal impersonation was a crime involving moral turpitude (CIMT), and thus he was ineligible for cancellation of removal. Petitioner pleaded guilty to the charge based on his possession of a forged Social Security card, which he purchased so he could work in the United States. In immigration proceedings, petitioner initially agreed to waive an appeal in exchange for voluntary departure. With new counsel, he filed a motion to reopen the removal proceedings, arguing that his first attorney had provided ineffective assistance by not submitting documents showing that his acts leading to the criminal charge did not amount to a CIMT. He maintained that he had not intended to commit fraud or harm anyone and indeed no one was harmed.
The Tenth Circuit noted that there is no right to counsel in deportation proceedings, but an alien can state a Fifth Amendment violation if he shows that retained counsel was ineffective and, as a result, he was denied a fundamentally fair proceeding. He must show that his attorney's performance prejudiced him. The Tenth Circuit applied the categorical approach and held that the crime to which petitioner pleaded guilty was one involving moral turpitude because fraud is inherent in the statute. Therefore, petitioner was not eligible for cancellation of removal and his first attorney's performance did not prejudice him. The petition for review was denied.
No. 13-1376. United States v. Spaulding. 09/01/2015. D.Colo. Judge Murphy. Withdrawal of Guilty Plea—Modification of Sentence—Jurisdictional Basis After Sentencing.
Defendant pleaded guilty to distributing methamphetamine. At sentencing, the district court denied him an acceptance-of-responsibility adjustment the government had requested and, while ostensibly granting him a downward departure, sentenced him to 137 months' imprisonment, which was at the top of the pre-departure advisory Sentencing Guidelines...
To continue reading
Request your trial