Summaries of Selected Opinions, 1018 COBJ, Vol. 47, No. 9 Pg. 108

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47 Colo.Law. 108

Summaries of Selected Opinions

Vol. 47, No. 9 [Page 108]

The Colorado Lawyer

October, 2018

U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 17-1086. United States v. Hull. 6/26/2018. D.Colo. Judge Murphy. Supervised Release Conditions—Duty to Notify Parties of Risk.

Defendant pleaded guilty to bank robbery. Over his objection, the district court imposed a standard condition of supervised release requiring defendant to warn third parties of the risks he might pose to them. The condition specifically provided that if a probation officer determines defendant poses a risk to another person, including an organization, the probation officer could require him to notify the person about the risk and could contact the person to confirm that defendant provided the notice.

On appeal, defendant argued that the condition was unconstitutionally vague and violated due process because it was insufficiently clear and specific to fairly guide his conduct and lacked a standard for defining risk. The requirement that defendant notify third parties when instructed to do so by his probation officer was clear and understandable. Further, the district court's comments at sentencing provided clear direction to the probation department in applying the condition, tying it to the risks associated with defendant's criminal history.

Defendant next argued that the condition improperly delegated judicial functions to the probation department. Here, the district court's comments at sentencing confined the probation department's discretion, and the department is not permitted to decide the nature or extent of defendant's punishment. Once a risk is identified, the probation department has merely a ministerial duty to determine the steps that defendant must take to comply. The condition is not an unconstitutional delegation of judicial authority.

Finally, defendant argued that the condition was an unlawful occupational restriction. The condition does not prohibit defendant from engaging in any particular profession, nor does it categorically require him to notify employers of his convictions. The condition is not an occupational restriction.

The sentence was affirmed.

No. 17-4126.Xlear, Inc. v. Focus Nutrition, LLC.

6/26/2018. D.Utah. Judge McHugh. Lanham Act—Utah Truth in Advertising Act—Attorney Fees—Prevailing Party.

Xlear, Inc. (Xlear) and Focus Nutrition, LLC (Focus) both sell sweeteners containing xylitol. Xlear sued Focus for trade-dress infringement under the Lanham Act and violation of the Utah Truth in Advertising Act (UTIAA), alleging that it copiedXlear's packaging for sweetener products. The parties eventually stipulated to the dismissal of all claims with prejudice, reserving the right to seek attorney fees. The district court granted defendant attorney fees, concluding that it was a prevailing p arty under the Lanham Act and the UTIAA. The stipulation of dismissal resulted in the clerk of court terminating the case.

On appeal, Xlear contended that Focus was not a prevailing party for purposes of the Lanham Act. To establish that it is a prevailing party, a litigant must show that judicial action altered or modified the rights of the parties. Here, the stipulation of dismissal was voluntary and its filing did not allow for or result in any approval or action by the district court on the merits of the case. In addition, the stipulation of dismissal resulted only in the Clerk of Court terminating the case. Thus, Focus was not a prevailing party and was not entitled to recover attorney fees under the Lanham Act.

Focus argued that even if it was not a prevailing party under the Lanham Act, it was a prevailing party and entitled to recover its attorney fees under the UTIAA. Focus maybe a prevailing party for UTIAA purposes; however, the UTIAA cannot support an award of the full requested fees, and the district court did not analyze which of the requested fees were incurred in defense of the UTIAA claim rather than the Lanham Act claim.

The attorney fees award under the Lanham Act was reversed. The attorney fees award under the UTIAA was vacated and the case was remanded with directions.

No. 17-8059. United States v. Young. 6/26/2018. D.Wyo. Judge Bacharach. Guideline Sentencing—"Reckless Endangerment" Enhancement— Threats and Armed Standoff with Officers.

Defendant stated he would commit suicide in front of his ex-girlfriend and began driving toward her house. A friend alerted police officers, who pursued him. During the chase, he did not speed or otherwise drive recklessly, but he told a police dispatcher that if the police took any action he would return with gunfire, that he had hollow point ammunition, and that he was a good shot. The police deployed spike strips to puncture the tires of defendant's car, and he eventually stopped. But he remained in his car for roughly four-and-a-half hours before surrendering. Defendant was convicted of possessing a firearm as a convicted felon. The district court applied a sentencing enhancement for reckless endangerment.

On appeal, defendant challenged the application of the enhancement. He argued that his verbal threats could not constitute reckless endangerment. The combination of the threat to shoot and the standoff provided sufficient support for application of the reckless endangerment enhancement.

Defendant also contended that the district court should not have considered the circumstances of the armed standoff because it did not occur while he was "fleeing from a law enforcement officer." Although defendant conceded he was fleeing while driving on the highway, he argued he was no longer fleeing once his car stopped. As used in the Sentencing Guidelines, resisting arrest, even without an attempt or preparation to flee, qualifies as flight from law enforcement. Defendant was therefore fleeing when he refused to surrender and engaged in a standoff with police officers. The district court did not...

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