*1 be should that examination We believe Congress. are not by We preempted been in the instance Trib- in the first conducted persuaded. of the kind The risks al itself.... Court misconstrues United States The alleg- that has nightmare” “procedural counterclaim, asserting that she Tsosie’s mini- case will be edly developed Navajo any tribal issue “allege[d] has stays its hand court mized if the federal contrary, law,” at 21. To the Aplt. Brief full has had Tribal Court until after the aboriginal she has an Tsosie asserts jurisdic- its own to determine opportunity “Navajo implicates right occupancy ... tion custom, tradition, history, and com culture (footnotes 855-57, at 2453-54 Id. at S.Ct. 774,11 Tsosie, law,” F.Supp. at not mon omitted). validity Mr. Mariano’s withstanding the United Accordingly, where if concedes The United States patent. trespass ejectment and an commences jurisdiction, court exercises district against another Indian on behalf of an action may implicated, be custom “where tribal in Indian coun involving land located Indian in an case could court district exhaust remedies try, required it is to Aplt. at 6- tribal court.” Brief consult initiating an action in prior court tribal any “Adjudication matters of such 7. correctly court court.13 The district district upon law infringes tribal court also nontribal so held this case. authority, tribal courts because apply tribal qualified interpret of the AFFIRM the decision best 16, LaPlante, at 480 U.S. at S.Ct. law.” court. 977. argues it
The United States validity dispute over the “critical” that the application be patent and allotment law in federal on federal based
determined rejected the Supreme has The Court court. America, STATES of UNITED courts cannot address argument that tribal Plaintiff-Appellee, an and “must be that arise under issues law.”12 Na to federal reference swered EDGIN, also known Theo Theodore J. Farmers, 852, at at S.Ct. tional Edgin, Theo known as dore John also held that The Court 2452. Defendant-Appellant. Edgin, dore of a tribal court’s the existence extent No. 95-6409. require a careful examina jurisdiction will sovereignty, the extent tion of tribal Appeals, United States Court altered, sovereignty has been which that Tenth Circuit. diminished, divested, as well as a de 9, Aug. 1996. statutes, study Executive tailed of relevant Policy treaties Branch as embodied
elsewhere, judicial and administrative
decisions.
Interior,
Navajo
apply
shall
rely-
the Courts of
Nation
Department
eases
of the
In
11.
States,
appli-
ing
any
261 U.S.
States that
on Cramer v. United
laws of
Navajo
determined that
S.Ct.
Jerrad him in a told until his father telephone conversation. March 1995 this, sought to upset Heiser was Pub- Earley, Federal Assistant P. William away. response, *3 Oklahoma, for Defender, City, Oklahoma lic to rights his would told her he establish Defendant-Appellant. name seek to have his in court and visitation certificate.2 birth added to Jerrad’s Attorney, States Ryan, Patrick M. Richardson, Assistant United A. and Ted time, a Heiser started this Ms. Around Oklahoma, City, Attorney, Oklahoma co-worker, Mr. relationship with a Plaintiff-Appellee. Edgin and Mr. called spring of In the respect him to Highman to ask Mr. wrote SEYMOUR, Judge, and Chief Before relationships with Ms. Heiser Edgin’s Mr. LUCERO, Judges. Circuit KELLY and Highman point, Mr. At some and Jerrad. leaving thanking Edgin Mr. responded SEYMOUR, Judge. Chief residence, as at Ms. Heiser’s a bathrobe using pled guilty to Edgin Theodore John got out of Mr. handy in he bed. came when a threat in viola- telephone to communicate a Edgin then told Highman Jerrad 875(c), and was tion of 18 U.S.C. sentenced anymore and father not want to be his imprison- thirty-seven months to a term again. would not visit by thirty-six months of to be followed ment 4, upset by Mr. night May On special conditions. supervised release under drunk, Edgin called Mr. Highman and Mr. part, but we re- in appeals. He We affirm North Dakota from Highman’s in residence super- conditions mand one of Shawnee, Al- in Oklahoma. his own home by the consideration for further vised release Edgin hung up on Mr. though Highman Mr. court.1 once, Edgin called back. more than Mr. message on Mr. Eventually, Edgin left a Mr. I. answering machine in which he Highman’s Heiser Mr. met Mischelle clear, Highman hurt threatened to they years following thirteen over the and forceful terms: relationship. Mr. tumultuous had a you with gonna physically hurt I mean I’m incarcerated, was not and when he often was badly possibly I can. my as hands bare Ms. Heiser lived lived in Oklahoma while he fucking with the most You’re around OK? Nevertheless, Decem- on in North Dakota. can; family. thing you a man’s dangerous gave to Jerrad Ms. birth ber Heiser your ass my You sit on You’re half size. thereafter, Heiser, son. Soon a day office. I do in an air conditioned When he again was incarcerated. day. I 11 hours a went man’s work August he visited was released beating out of penitentiary for the shit Dakota. -Over and in North Heiser Jerrad wipe going to be able to cops. You’re not periodi- years, visited them the next four he get I done with .your own ass when cally. Shelly go anywhere you.... you If near life, Jerrad, again your you’re, ever to end February Heiser chose know, you himself won’t be able unwilling you, God relationship. Edgin was you. gonna I’m some get off bust his con- me accept change, and escalated this fingers. I’m jaws. gonna I’m some repeatedly called bust He tacts with Ms. Heiser. himself letters, bust some arms.... God her, going sent flowers. mailed legally Apparently estab- appellate has not examining briefs and rec- 1. After father, ord, unanimously panel but Ms. Heiser has determined lished himself as Jerrad's parties' request Edgin. for a decision on probation honor is Jerrad's told officers that R.App. P. argument. See Fed. suggest without oral government briefs does not other- father. 34(f); the case is 10th Cir. R. Therefore 34.1.9. wise. argument. submitted oral ordered without you; gonna cannot me off and I am A. your physically hurt Yankee sawed-off ass We first consider conten possible I as bad as can. tion that the court in declining erred to re ¶ later, days PSR at 10. Some eleven n duce his sentence under U.S.S.G. Edgin again called Mr. and dis- 2A6.1(b)(2), provides four-point for a cussed these threats. reduction in the base offense level “if the was for one count of indicted single offense involved instance evidencing a threat via an interstate little or no Although deliberation.” Mr. Ed- arrested, communication. He re- was gin repeatedly called wrote High- to Mr. on bond. Although leased condition of his man, only he maintains he threatened Mr. Heiser,
release was that he not contact Ms. Highman during May 4 telephone call. *4 Jerrad, Mr. Highman Edgin Mr. never- many theless wrote letters to Ms. Heiser in At the sentencing hearing, parole both the repeatedly professed which he his love for officer and Edgin Mr. testified about the her and his desire to work out their differ- May 15 Highman. call to Mr. The ences. parole officer testified that “Miss Heiser con- tacted the FBI for a second time on May Edgin guilty plea. Mr. entered a 16th Special Agent told the Louks that imprison- court sentenced him to a term of she had phone received four night calls the thirty-seven months, ment of followed before Edgin from Mr. and that he had years supervised three of release. As repeated the threats that he had made to ... release, conditions of the court ordered that Mr. to her.” parole Id. at 25. The Edgin not with communicate or travel to officer understood Mr. had Edgin admitted Heiser, Jerrad, the state of residence of Ms. to the FBI that he had made a second or Mr.
threatening phone
Edgin
call. Mr.
said they
“talked about the
that I’d left
time
that mes-
II.
sage on
threatening
his
machine
bust him
attacks his sentence on three
Rec.,
up some.”
vol.
Questioned
II at 17.
First,
grounds.
he maintains the court erred
by his counsel as to whether he had made
in denying him a reduction under the Sen-
another,
conversation,
in
threat
second
this
tencing
involving
Guidelines for an offense
“a
said,
did,
“I don’t believe I
no.”
single instance evidencing little or no deliber-
Questioned by
court,
Id. at 20.
2A6.1(b)(2). Second,
§
U.S.S.G.
ation.”
he
feel,
Edgin indicated that “I would
bad if I
contends the court
in declining
erred
to re-
it,
did
I didn’t want to
I
do it.
knew it wasn’t
acceptance
duce his sentence for
responsi-
right thing
to do
I’d tried everything
but
bility pursuant
Third,
3E1.1.
U.S.S.G.
he
world,
in
else
I
writing
respect-
tried
him
spe-
maintains the court
in
erred
a
letters,
ful
talking
decently,
to him
and he
prevents
cial condition of release
just
keep
wants to
going.” Id. at 18. The
from contact with his son.
prodded
court
explain
his ac-
Eventually,
tions.
he
evidentiary
trying
We review the
said he “was
court’s
de
way
find a
Highman]
a
to scare
sentencing hearing
[Mr.
terminations at
off
Cruz,
error.
him from telling
clear
United States v.
[Jerrad]
58 F.3d
kind of
(10th
Cir.1995).
again,
stuff
purpose
served no
We review the
other than
guidelines’ application
my
to hurt
feelings.”
de novo. Id.
son’s
“Condi
Id. at 19.
release,
supervised
light
evidence,
tions of
as ordered
the district court did
clearly
finding
reviewed for abuse of
dis
err
Pugliese,
cretion.” United States
single
v.
960 F.2d
threats occurred on
than
more
a
in-
(10th Cir.1992).
913, 915
stance.3
—
(9th
Edgin's
Cir.1994),
denied,
—,
3. Mr.
reliance
States v.
on United
Ra
cert.
U.S.
cione,
(7th Cir.1991),
denied,
Indeed, relationships protected thers’ imposed district court because of the the special practical “a recognition condition at biology issue here at the of that close and as sentencing hearing the without together factu sociation can a relationship establish findings providing any al or in sup reasons between father may and child that be essen port. stated, previously As we have “the happiness both, tial to the of even if the generalized district court make a state formality marriage missing.” is Pena v. ment reasoning of its a particu Mattox, (7th 894, Cir.1996). 84 F.3d lar appellate sentence so that review does not However, a support lack of for or relation ” speculation.’ flounder the ‘zone of Unit ship with the child is weighti relevant (10th Slater, 626, ed States v. 971 F.2d s ness liberty of the unwed father’ interest. Cir.1992)(quoting United States v. Under generally See id. wood, 1086, (10th 938 F.2d 1091-92 Cir. 1991)). 3553(c) appealed has not (“The See also 18 U.S.C. prevent at the conditions which sentencing, time of him from contact shall state in open with imposition Highman. court'the reasons for Ms. Heiser or Mr. its These particular sentence....”); supervised may States terms of United release suffice to Zackson, 911, (2d Cir.1993) v. 6 F.3d deter further criminal conduct 3583(d)(1) 5. requires While section only 3583(d)(2) Compare that a medical care. 18 U.S.C. "reasonably release be (10th Templar, with v. Forth ends, 3583(d)(2) related” to certain section re- Cir.1971) ("The only pro- [on terms of limitation quires deprivation liberty more: that the bation] the conditions have a reasonable “reasonably necessary” to deter Mr. relationship to the treatment the accused and conduct, protect public, further criminal protection the'public.”). provide training with educational Heiser at Ms. directed SKRZYPCZAK, contact with an on his Oklahoma prohibition Monica a total
without remand, citizen, Appellant, the district court On his son.6 Plaintiff - tuning” supervised- “fine to consider free so that release conditions Ms. Heis- to harass his son contacts with use Lavender, KAUGER, E. Robert Yvonne and Mr. er Simms, Hardy Summers, Jo Robert D. Watt, Ralph Hodges, Ru seph B. M. court for the district REMAND to Wilson, Hargrave, and Ma dolph Alma findings. capacities Opala, in official rian P. Supreme of the Oklahoma as Justices KELLY, Jr., Judge, Circuit PAUL Appellees. Court, Defendants - concurring. No. 95-6156. opinion, with the I concur in the court’s concerning a con exception of the discussion Appeals, Court is no need liberty interest. There stitutional Tenth Circuit. general “a matter” this issue even to reach 3583(d)(2), statute, because Aug. liberty. any deprivation of limits the extent facts to de point, we lack sufficient At this Edgin has a constitutional
cide whether relationship with the in his
liberty interest Quilloin v. Wal both
child. I note 254-56,
cott, 554- Pena v. Mat 54 L.Ed.2d (7th Cir.1996), tox, 84 F.3d gain unsuccessful
biological fathers were claims.
ing relief on constitutional
case, liberty interest would any constitutional against government’s
have to be balanced liberty of a convicted
right to restrict *7 Edgin, whether it be for
person such as Mr. pur or rehabilitative
punitive, deterrence
poses. cerns, sentencing Edgin's contemplate would in no directly and Mr. Although § does interests, seeking the terms of way Jerrad Heiser's Ms. Heiser from bar Mr. prevent contact with release would his father. Of rights respective and Jerrad Heis- to resolve course, possess state courts interests. er’s expertise con- jurisdiction to address these