Summaries of Selected Opinions, 1021 COBJ, Vol. 50, No. 9 Pg. 72
| Position | Vol. 50, 9 [Page 72] |
FROM THE COURTS US COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 20-1034. United States v. Broadway. 6/22/2021. D. Colo. Judge Tymkovich. First Step Act—Fair Sentencing Act—US Sentencing Guidelines—Statutory Interpretation.
In 2007, police found 487.82 grams of crack cocaine in defendant's apartment. At that time, possession of 50 grams of crack cocaine was sufficient to trigger the highest statutory penalty available under 21 USC § 841(b)(1). Defendant stipulated to possessing 487.82 grams in exchange for the government's agreement to recommend a sentence at the bottom of the US Sentencing Guidelines (USSG) range. The district court enhanced defendant's offense level because he was designated as a career offender under USSG § 4B1.1. It imposed a sentence of 262 months' imprisonment, at the bottom of the sentencing range.
In 2019 defendant filed a First Step Act (Act) motion requesting a reduction to 188 months' imprisonment based on his USSG calculation had he been sentenced under the Act. He argued that he could not have been convicted under the post-2010 Fair Sentencing Act version of 21 USC § 841(b)(1)(A)(iii), which had raised the threshold possession quantity from 50 to 280 grams, so his base offense level under the career offender guideline would therefore have been lower. The district court denied defendant's motion.
On appeal, defendant argued that the district court erred in concluding that application of the Act did not change his USSG range because the court tied the change in the statutory penalty range to his underlying conduct (487.82 grams) rather than the offense of conviction (50 grams or more). Defendant maintained that if the district court had used 50 grams to apply the Act as if it were in effect at the time the covered offense was committed, his statute of conviction would have been 21 USC § 841(b)(1)(B)(iii), which applies to 28 to 279 grams of crack cocaine and has a lower statutory penalty range. This would have lowered defendant's base offense level per the career offender guideline and resulted in a lower USSG range.
Before passage of the Fair Sentencing Act, crack cocaine defendants were punished more severely than powder cocaine defendants. The Fair Sentencing Act addressed this disparity, but it was not made retroactive to defendants sentenced under the 1986 Anti-Drug Abuse Act. The First Step Act made the Fair Sentencing Act's amendments to crack cocaine penalties retroactive. Consistent with the Act's plain meaning, a district court should look to the minimum drug quantity associated with an eligible defendant's offense of conviction, rather than the underlying conduct, to determine whether the Act would have affected the sentence had it been in effect at the time of the crime and impose a reduced sentence accordingly. After the district court does so, it may exercise its discretion to determine whether to reduce a sentence, which may include consideration of the 18 USC § 3553(a) sentencing factors and the defendant's underlying conduct. Here, in denying defendant's motion, the district court did not start with the offense of conviction and lowered USSG range, so it erred.
The denial of defendant's First Step Act motion was reversed and the case was remanded with instructions to reconsider.
No. 20-3056. Reorganized FLI, Inc. v. Williams Companies, Inc. 6/22/2021. D. Kan. Judge Murphy. State Antitrust Action—Retroactivity of Statutory Amendment—Remedial versus Substantive Rights—Vested Rights—Summary Judgment.
Plaintiff brought an action against defendants in 2005 alleging that they violated the Kansas Restraint of Trade Act (KRTA) by engaging in anti-competitive conduct in conspiring to manipulate the price of natural gas. At that time, Kan. Stat. Ann. § 50-115 authorized a successful plaintiff to recover the full consideration or sum paid and treble damages.
Section 50-115 was repealedin 2013, thereby eliminating full consideration damages for violations of § 50-112. Plaintiff did not amend its complaint after the statute was repealed to remove its request for full consideration damages. Defendants moved for summary judgment in 2019, arguing that repeal of full consideration damages applied retroactively and left plaintiff with no viable suit. The district court denied the motion but certified the question of the statute's retroactive application for interlocutory appeal.
On appeal, the parties disagreed on whether § 50-115 was remedial or substantive. If substantive, the repeal operates prospectively under the general Kansas rule, and plaintiff's right to full consideration damages if it prevails on the merits is unaffected. If remedial, the repeal operates retroactively unless the Kansas legislature intended otherwise or unless retroactive application would affect plaintiff's vested rights. The Tenth Circuit first held that the full consideration provision of § 50-115 was not substantive because it did not create liability but merely set out the remedy available to a plaintiff upon proof that a defendant was liable for violating § 50-112. The repeal of § 50-115 did not affect a plaintiff's right to recover compensatory damages, impose new duties on a defendant, or expand the conduct prohibited by the KRTA. In addition, there was no clear legislative intent to apply the repeal on a prospective basis only.
The Tenth Circuit next concluded that applying the statutory change retroactively did not infringe on plaintiff's vested rights in violation of due process, as the repealed statute was purely remedial, and retroactive application promotes the purpose of the legislative change. Further, no Kansas appellate court has addressed the retroactivity issue, so no Kansas case law affects the conclusion that the repeal of § 50-115 operates retroactively to extinguish plaintiff's ability to recover full consideration damages.
Lastly, although the focus of plaintiff's efforts was return of full consideration, plaintiff's amended complaint filed in 2005 preserved the treble damages remedy under § 50-161(b) by referencing the provision and requesting such further relief as the court deems necessary. Therefore, although repeal of full consideration damages applied retroactively, defendants were not entitled to summary judgment.
The order denying defendants' motion for summary judgment was affirmed, but for reasons other than those given by the district court.
No. 19-2047. Dalton v. Reynolds. 6/28/2021. D.N.M. Judge Tymkovich. Murder-Suicide— Disparate Treatment of Domestic Violence Victims—42 USC § 1983 Claims—Equal Protection—Qualified Immunity.
This case arose after a Silver City Police Department (SCPD) officer, Contreras, murdered his ex-girlfriend, Bascom, and then committed suicide. In 1999, before Contreras was a police officer, Bascom had reported to die SCPD that Contreras threatened to shoot her at gunpoint. He admitted to pushing her and was charged with battery on a household member. Nonetheless, SCPD hired Contreras as a police officer in 2001.
In March 2016, Bascom's son called 911 to report that Bascom and Contreras were arguing and that Contreras threatened to shoot himself. Three officers responded but acted contrary to SCPD training and policy by (1) allowing Contreras, who had clearly consumed alcohol recendy, to drive his truck into the driveway; (2) not interviewing Bascom's son; and (3) changing the call classification from domestic disturbance to welfare check Contreras was not charged as a result of this incident. About two weeks later, Bascom reported that Contreras harassed her coworker. No officer documented or otherwise investigated the incident. A few days later Contreras was promoted to acting captain and received a raise.
In April 2016, while on duty and in an SCPD patrol car, Contreras forced Bascom off the road by swerving in front of her. He took her cell phone when she tried to call 911. He then went to the coworker's home and threatened him. While one officer took Bascom's statement at the station, die police chief met with Contreras in Bascom's home and placed him on administrative leave. The chief took Contreras's service weapon but did not inquire whether Contreras had any other weapons. Later that day, Bascom called 911 to report that Contreras was following her again, including on her way to die domestic violence shelter. When she left the shelter, Contreras followed Bascom and shot and killed her in front of her friend's house before turning the gun on himself.
Bascom's estate sued SCPD, certain police officers, and the Town of Silver City alleging, among other tilings, violation of Bascom's right to equal protection in violation of 42 USC § 1983. The officers moved for summary judgment on the basis of qualified immunity. The...
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