Latest 4 Cases: Bunn v. Perdue (Civil Procedure), Reavis v. Frost (Constitutional Law), United States v. Lozado (Constitutional Law)

Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday

FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT

Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020.

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Bunn v. Perdue

Docket: 19-2138

Opinion Date: July 28, 2020

Judge: Scott Milne Matheson, Jr.

Areas of Law: Civil Procedure, Civil Rights, Government & Administrative Law, Labor & Employment Law

In January 2011, plaintiff-appellant Virgin Bunn was hired for a one-year probationary period as a human resources assistant at the United States Forest Service’s (“USFS”) Albuquerque Service Center. Ten months into the job, Bunn's supervisor became concerned about Bunn's job performance. After his supervisor asked a colleague to oversee Bunn’s work, Bunn complained to his supervisor about the colleague’s comments to him. Bunn later contacted USFS’s Equal Employment Opportunity (“EEO”) Counselor Office about these comments. On January 6, 2012, Bunn was fired. Bunn thereafter filed an EEO complaint with the United States Equal Employment Opportunity Commission (“EEOC”) alleging harassment, a hostile work environment, and retaliation. An administrative law judge dismissed the suit, granting summary judgment to the agency on all claims. The USDA’s Office of Adjudication issued a final order implementing the EEOC’s decision. Bunn appealed. The Office of Federal Operations affirmed the USDA’s final decision. After its review of the matter, the Tenth Circuit Court of Appeals found: Bunn's appeal of the summary judgment order was untimely; and (2) there was no reversible error in the district court's order striking Bunn's motion to vacate.

Reavis v. Frost

Docket: 19-7042

Opinion Date: July 28, 2020

Judge: Carolyn Baldwin McHugh

Areas of Law: Constitutional Law, Criminal Law

The issue presented for the Tenth Circuit's review in this matter involved a police traffic stop that ended with the tragic death of the motorist. In 2016, Okfuskee County Sheriff Deputy Blake Frost shot and killed James Coale, as Coale was fleeing in his truck from a roadside police stop. Coale’s estate sued Deputy Frost, alleging the use of excessive force in violation of Coale’s Fourth Amendment rights. The district court denied Deputy Frost’s motion for summary judgment that was based on qualified immunity. Because the Tenth Circuit found it was clearly established that Deputy Frost’s use of deadly force to stop Coale’s fleeing vehicle was objectively unreasonable, it affirmed the trial court's denial of summary judgment.

United States v. Lozado

Docket: 19-1222

Opinion Date: July 28, 2020

Judge: Carolyn Baldwin McHugh

Areas of Law: Constitutional Law, Criminal Law

Defendant Gregory Lozado appealed the district court’s denial of his 28 U.S.C. 2255 motion to vacate his sentence. Lozado was tried by jury and convicted of possessing ammunition as a previously convicted felon. The Presentence Report (“PSR”) prepared by the probation office in January 2014 recommended that he be sentenced as an armed career criminal under the ACCA based on five predicate violent-felony convictions, all from the state of Colorado: (1) a juvenile conviction for second-degree assault with a deadly weapon; and adult convictions for (2) robbery; (3) second-degree burglary of a building; (4) felony menacing; and (5) theft from a person. This increased the recommended offense level from 28 to 33. With Lozado’s criminal-history level of VI, the advisory Guidelines range was thus raised from 140–175 months to 235–293 months. Application of the ACCA changed the statutory maximum penalty of ten years for Lozado’s offense to a statutory minimum penalty of fifteen years. At Lozado’s sentencing hearing, the district court adopted the PSR with only a few non-substantive amendments. The district court then sentenced Lozado to 235 months of imprisonment, the bottom of the ACCA-enhanced advisory Guidelines range. In his 2255 motion, Lozad contended his sentence should have been vacated based on the U.S. Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Lozado contended the Johnson ruling affected the violent-felony classification of at least three of the five prior convictions the district court had relied on at his sentencing. The district court denied his 2255 motion, holding that Johnson affected the classification of two of his prior convictions but that the remaining three convictions were sufficient to sustain the enhancement. After review, the Tenth Circuit concluded the sentencing court classified two of the prior convictions as violent felonies based on the invalidated residual clause, and that a third conviction should not have been counted as a violent felony because it was a juvenile offense that did not involve a firearm, knife, or destructive device. Furthermore, the Court concluded the government could not show harmless error because none of these three convictions would have qualified as a valid ACCA predicate if Lozado were sentenced under current law, thus Lozado no longer has enough qualifying convictions to trigger the ACCA enhancement.

United States v. Mier-Garces

Docket: 18-1085

Opinion Date: July 28, 2020

Judge: Jerome A. Holmes

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Edgar Mier-Garces was separately charged with conspiracy to distribute controlled substances in both the Western District of Texas and the District of Colorado. After pleading guilty in Texas, Mier-Garces argued that the District of Colorado indictment violated his rights under the Fifth Amendment’s Double Jeopardy Clause. The district court denied his motion to dismiss. Mier-Garces was subsequently convicted and sentenced to 178 months’ imprisonment. On appeal, he challenged the district court’s Double Jeopardy Clause ruling, arguing the district court erroneously calculated his advisory United States Sentencing Guidelines range by applying an enhancement under section 2D1.1(b)(12). After review, the Tenth Circuit concluded the district court did not err in either ruling and affirmed.