United States v Figueroa-Labrada

Figueroa-Lambara sought to be sentenced below the mandatory minimum based on his statement of involvement given to prosecutors after his first sentencing and before his second. The district court ruled statements of involvement must be given before the first sentencing and refused to sentence below the minimum. The panel, 2-1, reversed. The majority held that under the plain language of 18 USC 3553(f), the statement must be given before the “sentencing hearing” and there is no indication that this means anything other than the hearing at which a defendant seeks a lower sentence whether the first, second or twelfth. The majority argued that 10th Circuit precedent has never resolved this issue and this outcome maintains one meaning for “sentencing hearing” throughout the statute. The dissent argued that 3553(f) plainly requires the statement to be given before “the sentencing hearing” which means the first hearing. It argued the 10th Circuit precedent supports this reading as defendants have been barred from submitting new information at subsequent hearings to supplement the initial statement and this reading is consistent with the better reasoned out of circuit opinions.

Olmos v Holder

Olmos challenged his detention under 8 USC 1226(c) arguing he was entitled to bail as he was free from custody for 6 days. The district court agreed and granted bail. The panel reversed. It held that 1226(c) is ambiguous as to whether it applies to those like Olmos who are detained after a period of freedom from custody and the ambiguity is not resolved using grammar, legislative history or other tools of statutory constructions. Thus, Chevron deference applied and the immigration board’s determination that gaps in custody do not entitle removable aliens to bail must be affirmed. The panel held constitutional avoidance does not apply as the United States Supreme Court has upheld the detention scheme in case involving a gap in custody. The panela held as an additional reason to reverse 1226(c)’s mandatory requirement that aliens like Olmos who are convicted of specified crimes be detained while their removal proceedings are held which does not disappear just because the Attorney general does not follow the mandate in a timely manner. The panel finally held that Olmos forfeited his alternative argument that 1226(c) only applies when the alien has been actually incarcerated as he didn’t raise it below and did not argue plain error on appeal.

Dalzell v RP Steamboat Springs, LLC

Dalzell sued RP alleging violations of 15 USC 1703 in the sale of condominiums in a building on the development owned by RP. The district court granted summary judgment o RP. The panel, 2-1, affirmed. The majority held that only parties involved in the sale of lands can be liable for violations of 1703 and RP was not involved in any sales as another entity actually negotiated and signed the contract and, under the standard adopted form the 3rd Circuit, RP was not indirectly involved in any sales as it made no substantial involvement through agents or other indirect means. The majority held advertising is not selling real estate under the statute and RP and the selling entity were distinct entitles without the level of control necessary to prove indirect sale. The dissent argued that RP was an indirect seller as it shared personnel with the actual selling entity, made the plans for the condominium development and advertised the development. The dissent argued the actual selling entity was a mere shell entity whose only purpose was to shield RP from liability and equity counsels to impose liability here to effectuate congressional intent to protect buyers in fraudulent sale situations like this one.

United States v Edwards

Edwards appealed his drug trafficking conviction arguing a 911 call should not have been admitted and the jury instructions were erroneous. The panel affirmed. It held that even if the 911 call was erroneously admitted, there was overwhelming evidence of guilt as Edwards was observed exiting a car which smelled of marijuana and had marijuana and meth in it. The panel rejected the jury instruction arguments as well noting the indictment allowed Edward to be convicted as either a principal or an aider and abettor and there was no plain error in not setting out that another person must have committed the offense before Edwards could be an aider and abettor as there were only two defendants and the jury was instructed that the offense had to be committee by someone before an aider and abettor theory of guilt could be found.