United States v Piper

Piper appealed the denial for his motion for a reduced sentence. The panel affirmed. It held that under 18 USC 3582(c)(2), the district court was not required to announce why it rejected Piper’s policy arguments; did not plainly error in considering Piper’s conduct before sentencing in making a threatening video which was posted ion YouTube and aimed at persons who spoke with the author of the presentence report because there was no clear statutory, guideline or case law bar on considering the evidence; did not plainly error in not holing a hearing on the motion as piper did not request one, no hearing is required at original sentencing on disputed issues if no request is made and Piper was not entitled to anything more than is required at original sentencing; and the district court did not commit clear error in finding Piper made the threatening video and left it with a third party as this was a permissive inference and drawing one of two inference cannot be clear error.

Vehicle Market Research, Inc. v Mitchell International, Inc.

Vehicle appealed the jury verdict for Mitchell arguing the district court erred in allowing examination of its shareholder about his bankruptcy valuation of his shares in Vehicle and for failing to give a jury instruction. The panel affirmed. It held that the valuation evidence was proper as an earlier appeal in the case only dealt with judicial estoppel and identified cross examination about the valuation as remedy and any argument that cross examination was improper was waived by Vehicle’s counsel when she brought the statements up on direct examination. It affirmed on the jury instruction as the proposed language misstated the law as the prohibition on a corporation changing its theory of law or facts only applies in the summary judgment context and the panel adopted the rule that the deposition testimony of a person designated under rule of Civil Procedure 30(b)(6) are evidentiary admissions not judicial admissions.

United States v Maldonado-Palma

Maldonado-Palma appealed his sentence arguing his New Mexico aggravated Assault conviction was not a crime of violence for sentencing guideline enhancement purposes. The panel affirmed. It held that under New Mexico pattern jury instructions and the common meaning of “use”, all aggravated assaults in New Mexico require the active employment of a firearm or other weapon capable of killing or causing serious bodily injury and thus Maldonado- Palma’s conviction qualified as a crime of violence due to the element of use of force.

United States v Henry

Henry appealed the revocation of his supervised release and his sentence. The panel affirmed in part, reversed in part and remanded for resentencing. It held that the district court’s conclusion that Henry committed the first of two assaults was proper as the hearsay evidence relied upon was admissible and the controls on hearsay in Rule of Criminal Procedure 32 and case law interpreting it do not apply as the woman who made the hearsay statement actually testified. The panel held the district court erred in concluding that Henry committed the second assault as all the evidence was triple hearsay and the district court failed to balance the government and defense interests. It held the error was not harmless as the sentence imposed may have been different absent consideration of the second assault and the case was thus remanded for further proceedings.