U.S. Court of Appeals for Tenth Circuit, 1017 COBJ, Vol. 46, No. 9 Pg. 85
U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 15-2200. United States v. Carillo. 6/23/2017. D.N.M. Judge Murphy. Plea Colloquy—Adequacy of Advisement to Defendant—Factual Basis for Plea.
Defendant was correctly advised at his initial appearance that his offense carried a mandatory minimum imprisonment term of five years and a maximum term of 40 years, and he acknowledged that he understood the penalties. He later pleaded guilty to conspiring to distribute at least 100 grams of heroin without a plea agreement. At his change-of-plea hearing, the prosecutor mistakenly stated that the offense carried a maximum term of 24 years' imprisonment, and the district court failed to mention the mandatory minimum sentence. The presentence report (PSR) later correctly indicated that defendant faced a minimum prison term of 60 months. He did not object to the PSR on the basis that he was unaware of the mandatory minimum sentence, nor did he make such objection at his sentencing hearing.
On appeal, defendant argued that the plea colloquy did not comply with Fed. R. Crim. P. 11(b)(1)(H) and (I) because the district court failed to advise him of the applicable minimum and maximum sentences. The district court plainly erred at the change-of-plea hearing by failing to adequately inform defendant of the penalties associated with his offense and failing to determine whether defendant understood the applicable mandatory minimum and possible maximum penalty. He was not entitled to relief, however, because he could not show a reasonable probability that absent the error he would not have pleaded guilty.
Defendant also argued that the district court erred by failing to discuss the essential elements of the drug conspiracy charge at the change-of-plea hearing, in violation of Rule 11(b)(1)(G). The Tenth Circuit concluded it was unnecessary to decide whether defendant is entitled to prevail on this claim because the record does not establish a factual basis for defendant's plea, and he is therefore entitled to relief exclusively on the basis of the district court's failure to comply with Rule 11(b)(3).
Defendant further argued that there was not a factual basis for his plea, in violation of Rule 11(b)(3). The record was devoid of evidence supporting defendant's involvement in a conspiracy to distribute the 100-gram quantity alleged in the indictment. The only overt act charged in the indictment involving defendant tied him to a single, 50-gram purchase on the first day of the alleged conspiracy. Nor was such evidence presented at the change-of-plea hearing or in the PSR.
The case was remanded for further proceedings.
No. 16-1134. Marlow v. New Food Guy, Inc.
6/30/2017. D.Colo. Judge Hartz. Fair Labor Standards Act—Minimum Wage—Tips—Department of Labor Regulation Invalidated.
Plaintiff's employer paid her $12 per hour and S18 per hour for overtime. Plaintiff sued her employer under the Fair Labor Standards Act (FLSA), claiming she was entitled to a share of all tips paid by catering customers. Plaintiff relied on the tip-credit provision of FLSA, which applies to employers who satisfy their minimum wage obligations in part with tips paid to employees. The district court granted the employer's motion for judgment on the pleadings. Plaintiff moved for reconsideration, citing a Department of Labor (DOL) regulation that prohibits employers from retaining tips. The court denied the motion, implicitly determining that the regulation was invalid.
On appeal, plaintiff argued that her employer violated FLSA's tip-credit restrictions when it retained tips. FLSA requires employers to pay a minimum wage of $7.25 per hour, plus time and a half for overtime. The tip-credit provision did not apply to plaintiff's circumstances because her employer paid her a set wage greater than the minimum wage. If an employer pays more than the minimum wage without regard to tip s, FLSA does not restrict the employer's use of tips.
Plaintiff also argued that her employer violated the DOL regulation prohibiting employers from retaining tips. The DOL regulation is invalid because it exceeded the agency's authority.
The judgment was affirmed.
No. 15-3275. United States v. Valdez-Aguirre.
7/3/2017. D.Kan. Judge Bacharach. Allocution— District Court's Announcement of Tentative Sentence—Plain Error.
Defendant was convicted of drug conspiracy. He did not speak English and dropped out of school in eighth grade. At sentencing, before he was permitted to allocute, the district court stated it would be announcing its proposed findings of fact and tentative sentence. It then heard counsel's arguments concerning a downward variance and rejected them. The district court made additional comments, some of which suggested that the announced sentence was tentative, and others suggesting it was final. It then asked the parties if they had any further objections, and invited defendant to allocute before it imposed final sentence. Defendant declined to allocute, nor did he object, and the district court imposed a final sentence that was identical to the sentence it had earlier described as tentative.
On appeal, defendant argued that the district court deprived him of his right to allocution by announcing its actual intention concerning his sentence before allowing him to allocute. Had defendant objected in district court, reversal might have been appropriate. But under plain error review, the trial court's alleged error was not clear or obvious.
The sentence was affirmed.
No. 16-1026. Punt v. Kelly Services. 7/6/2017. D.Colo. Judge McKay. Americans with Disabilities Act—Genetic Information Nondiscrimination Act—Discovery—Temporary Employee—Failure to Accommodate—Discriminatory Intent—Essential Job Function—Summary Judgment.
Plaintiff was a temporary employee assigned by the staffing agency Kelly Services (Kelly) to work as a receptionist at a business. Plaintiff missed a significant amount of work while being tested for breast cancer, and informed the agency that she needed to take an additional unknown...
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