Summaries of Selected Opinions, 0221 COBJ, Vol. 50, No. 2 Pg. 82

Position:Vol. 50, 2 [Page 82]

50 Colo.Law. 82

Summaries of Selected Opinions

Vol. 50, No. 2 [Page 82]

Colorado Lawyer

February, 2021

US COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 19-1298. United States v. Silva. 11 /24/2020. D.Colo. Judge Hartz. Sentencing Guidelines—Prior Offense Enhancement—Separateness—Plain Error Review.

In 2019 defendant pleaded guilty to one count of possessing a firearm as a previously convicted felon. His prior criminal history included two convictions entered on the same date in 2005 on Colorado felony counts of third degree burglary and second degree assault. Defendant was sentenced to imprisonment on the burglary count and to fines and costs on the assault charge. The 2019 presentence investigation report (PSR) treated the sentences for both prior convictions as a single sentence that received three criminal history points based on the length of the burglary sentence, and further determined that the assault conviction qualified as a prior crime of violence, triggering an enhancement that increased the base level from 14 to 20. Defendant did not object to the PSR. The district court accepted the PSR and sentenced defendant to 42 months' imprisonment.

Defendant appealed the district court's application of the enhancement. Because defendant did not object to the PSR, the issue on appeal was governed by plain error review, so the Tenth Circuit focused its analysis on whether the U.S. Sentencing Guidelines (Guidelines) clearly and obviously prohibited the district court from enhancing defendant's offense level based on a more than 10-year-old assault conviction for which defendant received a sentence of only fines and costs.

The commentary to the Guidelines provides that prior sentences imposed on the same day are generally treated as a single sentence, and if the sentences run concurrently, the longest sentence of imprisonment is used to calculate the criminal history points for the single sentence. Further, senility limits apply for counting various types of sentences; for example, a sentence of one year and one month or less will not receive any points unless it was imposed within 10 years of the instant offense. The Application Notes to the Sentencing Guidelines set forth two rules for determining when convictions counted as part of a single sentence can qualify as predicate offenses: an individual conviction can qualify as a predicate offense only if it was independendy eligible to receive criminal history points; and only one conviction from any single sentence can count as a qualifying predicate, even if more than one conviction was independently eligible to receive points, because two convictions cannot both be counted as predicate offenses unless they are separate. Here, because defendant was sentenced to only fines and costs on the assault count more than 10 years before the instant offense, the assault conviction was too old to have independently received criminal history points under the Guidelines. Therefore, defendant met his burden of establishing that the enhancement was not permitted, and the error was clear and obvious under current law.

The sentence was reversed and the case was remanded for further proceedings.

No. 19-7056. Bond v. City of Tahlequah. 12/1/2020. E.D.Okla. Judge McHugh. 42 U.S.C. § 1983 Excessive Force Claim—Qualified Immunity—Fourth Amendment—Reasonable Force.

Rollice's ex-wife called 911 to request police assistance because her ex-husband was drunk and in her garage. The three responding officers found an intoxicated and fidgety Rollice at the side entrance to his ex-wife's garage. After Rollice refused a pat-down, officers turned on body cam video. The video shows that one of the officers stepped toward Rollice, and Rollice retreated to the back of the garage and grabbed a hammer. The officers then backed up and drew their guns, leaving about eight to 10 feet between the parties. Rollice refused to drop the hammer. One of the officers replaced his gun with a taser. When Rollice pulled the hammer behind his head, the other two officers fired multiple shots, causing Rollice to double over from injuries. One officer then fired again. Rollice was transported to the hospital, where he was pronounced dead.

Rollice's estate brought a 42 U.S.C. § 1983 claim against the two officers who fired the shots, alleging they used excessive force against Rollice in violation of his Fourth Amendment rights, and a claim against the City of Tahlequah (City). The officers and the City filed motions for summary judgment based on qualified immunity, which the district court granted.

The estate appealed the grant of summary judgment to the officers, arguing that the two officers who fired shots...

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