Timothy M. Tymkovich

In United States v. Martinez, the defendant pleaded guilty to four counts of bank robbery and received a 120-month sentence that incorporated a career-offender enhancement based on a prior state conviction as well as a two-level threat-of-death enhancement. After the state court vacated the prior conviction, the Tenth Circuit granted an unopposed motion to remand for resentencing on that ground. The court affirmed the threat-of-death enhancement, reasoning that the combination of the defendant’s and co-defendant’s aggressive commands and conduct—creating a reasonable victim’s perception of a firearm—was sufficient under USSG § 2B3.1(b)(2)(F) to support the increase. Because resentencing would occur, the panel did not reach the substantive-reasonableness claim. The decision therefore affirms one sentencing enhancement while requiring the district court to recalculate the guidelines range without the career-offender predicate.

criminal law

The case involved Tyrone Parker appealing a two-level sentence enhancement for obstruction of justice after his conviction on charges of being a felon in possession of a firearm and possessing a firearm with an obliterated serial number. Parker challenged only the enhancement, which stemmed from his testimony at a suppression hearing that he had not consented to police entry into his apartment during a warrantless knock-and-talk. The Tenth Circuit affirmed the district court's ruling, holding that the enhancement under U.S.S.G. § 3C1.1 was proper because Parker's testimony was materially false, made with willful intent to mislead the court, and amounted to perjury that impeded the administration of justice. The court upheld the district court's credibility findings based on the officers' consistent testimony and Parker's own prior written statement consenting to the entry, rejecting any claim of confusion or faulty memory.

criminal lawprocedure

In United States v. Speakman, the defendant pleaded guilty to one count of wire fraud after repeatedly transferring over $1.4 million from his wife's Merrill Lynch accounts without authorization between 1999 and 2005, using the funds for personal purposes including gifts to another individual. The district court imposed a 47-month prison sentence and ordered restitution totaling $1,419,205.77 to be paid to Merrill Lynch and the Crime Victims Fund. The Tenth Circuit vacated the restitution portion directed to Merrill Lynch, holding that the firm was not a direct victim entitled to mandatory restitution under the MVRA for the losses at issue, and reversed the order requiring payment to the Crime Victims Fund because the primary victim had expressly declined restitution under 18 U.S.C. § 3664(g)(1), leaving no statutory basis for redirecting the funds. The case was remanded for further proceedings on the restitution issue.

criminal lawprocedure