Summaries of Selected Opinions, 0720 COBJ, Vol. 49, No. 7 Pg. 74

PositionVol. 49, 7 [Page 74]

49 Colo.Law. 74

Summaries of Selected Opinions

Vol. 49, No. 7 [Page 74]

Colorado Lawyer

July, 2020

US COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 19-1221. United States v. Ramon. 5/1/2020. D.Colo. Judge Phillips. 18 USC§ 3584(a)—Consecutive versus Concurrent Sentencing—Plain Error Standard.

Defendant's parole officer filed a petition to revoke his supervised release for possession of controlled substances and a firearm. During the revocation hearing, the government mentioned that it might seek to indict defendant for illegally possessing a firearm. The district court found three violations. It sentenced defendant to the statutory maximum sentence for possessing a firearm and ordered that this sentence run consecutively to any sentences imposed previously or prospectively in federal or state court.

On appeal, defendant argued that the district court exceeded its authority under 18 U.S.C. § 3584(a) by ordering the sentence to run consecutively to future federal sentences. Section 3584(a) allows the district court discretion to run sentences consecutively when the defendant is already subject to an undischarged term of imprisonment, or when the court is imposing multiple terms of imprisonment. This provision does not provide a district court with the authority to run a term of imprisonment consecutive to a potential future term. Here, the district court did not sentence defendant on multiple convictions, nor did it sentence him while he was subject to an undischarged term of imprisonment. Accordingly, the court lacked statutory authority to impose a consecutive sentence.

However, as defendant acknowledged, no U.S. Supreme Court or Tenth Circuit case has ruled on the issue he presented, and the statutory language was not so clear and obvious as to make the error plain. Further, while defendant's sentence was erroneous, it was not illegal and therefore not plain error per se.

The sentence was affirmed.

No. 19-7043. United States v. Neugin. 5/1/2020. E.D.Okla. Judge Matheson. Fourth Amendment Search and Seizure—Suppression of Evidence— Warrantless Search—Community Caretaking Exception—Inevitable Discovery Exception.

Officers responded to a verbal altercation between defendant and his girlfriend, who were in a restaurant parking lot. Their pickup truck was broken down. Defendant's girlfriend told Deputy Clinton that she needed to retrieve her belongings from the truck. Without asking permission, Deputy Clinton opened the lid of the camper attached to the back of the truck In doing so, he observed ammunition. Deputy Clinton then requested a background check from dispatch and learned that defendant was a convicted felon. Deputy Clinton requested defendant's permission to search the truck, but defendant declined, explaining that he purchased the truck for his girlfriend. Defendant's girlfriend stated that she and defendant owned the truck and defendant had a shotgun in the truck, and she consented to a vehicle search. Deputy Clinton searched the rest of the truck and located the shotgun.

Defendant was indicted for firearm and ammunition possession by a felon. He moved to suppress the evidence seized as the fruit of an unlawful search. Following an evidentiary hearing, the district court denied the motion, reasoning that Deputy Clinton had acted as a community caretaker. Defendant entered a guilty plea on condition that he could appeal the district court's denial of his motion to suppress.

On appeal, defendant argued that Deputy Clinton conducted a search without a warrant or probable cause, and the community caretaking exception did not apply. The community care-taking exception to the warrant requirement allows non investigatory searches of automobiles where warranted by state law or police procedure and justified by safety concerns. Here, Deputy Clinton conducted a search under the Fourth Amendment when he opened the camper and looked inside because defendant had a reasonable expectation of privacy in the truck's contents. Deputy...

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