United States v Holcomb

Holcomb appealed the denial of his motion for a reduced sentence arguing applying a later more restrictive version of guideline 1B1.10(b)(2)(B) was unconstitutional. The panel affirmed holding Holcomb’s ex post facto challenge failed under circuit precedent, the Sentencing Commission had statutory power to amend the guideline as Holcomb is not being denied his downward variance and Congress directed the Commission to determine when a reduced guideline range results in a reduced sentence and this delegation does not usurp judicial power over sentencing.Lankford v Wagner

Lankford appealed the dismissal of their suit against Wagner and the attorneys employed by Wagner for misconduct during Wagner’s service as a bankruptcy trustee. The panel affirmed. It held that dismissal was proper because circuit precedent requires plaintiffs must obtain leave of the bankruptcy court to file suit against trustees and the panel extended that rule to attorneys employed to prevent plaintiffs from get around the requirement for leave and here Lankford failed to obtain leave of court before filing suit.

United States v Theis

Theis appealed his conviction for attempted child sex exploitation and his sentence. The panel affirmed. It held that 18 USC 2251 prohibits the “use” of a child in making child porn images, the common meaning of “use” is “avail oneself of’ which has no causal connection nor dos 2251 require such a connection when the charge is based on “use” instead of the other prohibited means such as persuasion, enticement or coercion, that this construction is consistent with the decisions in nearly all circuits to consider the issue that filing a minor, which this did here, can violate 2251. It affirmed the sentence holding that there was no plain error in the district court allowing Theis to allocate after announcing a tentative sentence as there was no definitive sentence announced before allocution, there is no indication Theis believed the sentence was not tentative as he made a lengthy argument for leniency and the district court considered Theis’ arguments before definitively announcing sentence.

United States v Creighton

Creighton appealed his sentence arguing prosecutorial vindictiveness. The panel affirmed holding that threats of enhanced sentences during plea negotiations is per se not actual vindictiveness under United States Supreme Court precedent and making the threat during pretrial plea negotiations does not create a presumption of vindictiveness under United States Supreme Court precedent.

United States v Chavez-Meza

Chavez-Mesa appealed the grant of his motion to reduce his sentence arguing the district court erred by not providing a detailed explanation of its decision. The panela affirmed holding circuit precedent requires no more at the reduction stage that at the sentencing stage, that circuit precedent holds federal statutes only require proof that the district court considered the relevant factors and here eth district court used a form that stated that all relevant factors were considered. The panel acknowledged a circuit split on the issue, but held that lack of any statutory requirement for explanation and circuit precedent on what is required at original sentencing require rejection of the out of circuit cases which do impose a heightened explanatory requirement.

VR Acquisitions, LLC v Wasatch County

VR appealed the dismissal of its 1983 and state law claims. The panel affirmed in part and reversed in part. It held that the 1983 claims were properly dismissed with prejudice as VR lacked prudential standing as the claimed due process and takings claims all allege violations of the rights of its predecessor in interest and such third party claims are barred under circuit precedent. It held that the state law claims should not have been dismissed with prejudice and remanded for the district court to decline jurisdiction and dismiss without prejudice.

United States v Jordan

Jordan appealed the dismissal of his motion for a reduced sentence. The panel reversed and remanded. It held that Jordan’s plea agreement was made pursuant to rule of Criminal Procedure 11(c)(1)(C); the agreement set out a criminal offense level and proposed range which coupled with the tables provided all information necessary to link agreement to the sentencing guidelines; the plea agreement was ambiguous about whether the guideline range was or was not being relied upon by the parties and thus had to be construed against the government; that sentences can be based upon a guideline range even if the range actually used by the sentencing court is different; and noted both the plea agreement range and the range actually used were both lowered by retroactive guidelines amendments and assumed that actually used guideline controlled here and held there is a chance for a reduced sentence and thus there is jurisdiction to consider the motion.

Fletcher v United States

Fletcher appealed the district court’s orders setting the terms for an accounting for an Indian tribe’s mineral rights trust fund. The panel affirmed. It held that it would be unreasonable to require an accounting from the fund’s creation in 1906 as records do not exist and that period was rejected in an earlier appeal in this case. It also held that Fletcher’s demand for an accounting of production and sales information was beyond the scope of the earlier appeal’s mandate and in any event is unreasonable in light of the possible $15 increase in any rights owner’s yearly payment when compared with the enormous expense in doing the enhanced accounting.

BOSC, Inc. v Board of County Commissioners of the County of Bernalillo

BOSC appealed the district court order compelling arbitration arguing waiver by Board. The panel affirmed. It rejected BOSC’s argument that mere filing of a lawsuit constitutes waiver as the cases relied upon by BOSC either evaluate the waiver claim on a case by case fact intensive way or offer no analysis whatever and in any event the best approach to the filing as waiver issue to ask if the issues were voluntarily submitted to decision by a court and here Board did not even serve BOSC before dismissing and thus did not submit the issues to decision by New Mexico state courts. It held that Board’s litigation activity did not waive its right to arbitrate even tough it did file suit and responded in this case because those activates did not substantially invoke the litigation machinery as BOSC removed the state suit before being served, no trial date had been set in the state action and only three months passed from filing to voluntarily dismissal and little activity occurred between filing and dismissal and any prejudice suffered by BOSC was self-inflicted as it removed and moved to dismiss without waiting for Board to decide whether to litigate or arbitrate and the separate enforcement action was brought by New Mexico officials not Board. The panel did chide Board for not considering arbitration before filing the state suit. The panel rejected BOSC’s discovery argument holding the district court correctly determined that a summary trial was unnecessary as the factual issues BOSC sought to raise went to Board’s motivations which are irrelevant to the waiver by litigation analysis.

Equal Employment Opportunity Commission and Duty v BNSF Railway Company

Commission and Duty appealed summary judgment to Company in Duty’s disability discrimination claim. The panel affirmed. It held that duty failed to prove Company considered him incapable of working as it identified other jobs he was eligible to perform, limited its rejection to the job of locomotive electrician, applied the same requirement that a person be able to hold themselves on ladder with one hand to all locomotive electricians, the requirement was well recognized in industrial settigns and was even more important in the context of working on locomotive electricians, Company’s medical official did an individualized assessment and company believed Duty could use tools with safety just not climb onto locomotives. It held the requirement to hold oneself on a ladder is job specific and thus not a major life activity and the lack of a disability is fatal to his medical examination claim.