Summaries of Selected Opinions, 0816 COBJ, Vol. 45, No. 8 Pg. 105
U.S. Court of Appeals for the Tenth Circuit
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: ww.cobar.org (click on “Opinions/Rules/Statutes”).
Nos. 14-1384 & 14-1402. United States v. Bennett.05/26/2016. D.Colo. Judge Tymkovich. Categorical Approach-Prior Conviction “Relating To ” Child Pornography-Mandatory Minimum Sentence-Penile Plethysmograph.
Defendant pleaded guilty to federal child pornography charges. In 1997, he had pleaded guilty to sexual exploitation of a child, a misdemeanor under Colorado law, and was sentenced to 140 days in jail. The parties disagreed as to whether, based on this prior conviction, federal law required a 10-year mandatory minimum sentence. In evaluating defendant’s sentence, the district court concluded that because Colorado law punished a broader range of activities than the federal crime of possession of child pornography, the prior conviction was not a child pornography offense for statutory purposes, and the court sentenced defendant to 57 months’ imprisonment.
The government appealed, arguing that the district court should have found that defendant had a prior Colorado state conviction relating to child pornography, which would have triggered a 10-year mandatory minimum sentence under 18 USC § 2252A(b)(2). The mandatory minimum enhancement applies if defendant’s prior conviction relates to a variety of state sexual abuse and child pornography crimes. To resolve whether defendant’s prior conviction is a predicate offense for statutory purposes, the Tenth Circuit applied a categorical approach. Because it had no facts about defendant’s prior conviction other than the guilty plea, the Tenth Circuit examined the statutory language of the prior conviction to determine whether that conviction was related to the triggering offenses. The nature of sexual exploitation of a child under Colorado law is the possession of visual material depicting a child participating in explicit sexual conduct. Therefore, defendant’s prior conviction categorically relates to the possession of child pornography and the 1 0year mandatory minimum sentence should have been applied.
Defendant appealed a condition of his supervised release requiring him to undergo penile plethysmograph testing. Because this case presents many speculative factors too far into the future, the Tenth Circuit held that this challenge was not ripe for review.
The case was remanded to the district court with instructions to vacate defendant’s sentence and resentence him to the 10-year mandatory minimum sentence. Defendant’s cross-appeal was dismissed on ripeness grounds.
No. 15-7067. Adair v. City of Muskogee. 05/26/2016. E.D.Okla. Judge Phillips.
Americans With Disabilities Act — “Regarded As” Claim—ADA Amendments Act —Prohibited Medical Examination—Oklahoma Worksers’ Compensation Act—Retaliatory Discharge.
Plaintiff Adair was the HazMat director for the City of Muskogee Fire Department (City) when he injured himself during a training exercise. As a result of his injury, he received a workers’ compensation award with permanent lifting restrictions. During the month he received the award, he retired. Adair sued the City for constructive discharge, claiming that the City forced him to choose between retiring...
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