*1 mootness, regarding standing, their appeal
or the merits. by the
That leaves the claims Doel
plaintiffs. agree panel majority I with the III plaintiffs
that the Doel have Article
standing respect and that the with appeal merits, is not moot.
to them As
however, I see no need to address the
constitutional issues. The concedes OSDH that the challenged by its brief statute plaintiffs preclude
the Doel does not issu- they
ance of the birth certificates Although
seek. the OSDH bases that view
on its construction of the statute rather agreement
than on an the plaintiffs’ arguments,
constitutional I see no reason accept ap-
not to that concession for this concession,
peal. light of that the only
argument setting of OSDH for aside judgment
district court’s is that other stat- prohibit
utes issuance of the birth certifi- argu-
cate. But OSDH did not raise that court,
ment district so we need not and appeal.
should not consider it on Accord-
ingly, judgment we should affirm the respect
the district court with to the Doel
plaintiffs’ against claims the OSDH. America,
UNITED STATES of
Plaintiff-Appellee, KARAM, Defendant-Appellant.
Patrick
No. 06-8056. Appeals, Court
Tenth Circuit.
Aug. *2 Jubin, LLC, Zerga,
Thomas B. Jubin & WY, Defendant-Appellant. Cheyenne, Anderson, Assistant United James C. (Matthew Mead, Attorney H. Unit- States brief), him Attorney, ed on the States WY, Wyoming, Cheyenne, District of Plaintiff-Appellee. MURPHY, MeWILLIAMS, neatly stack of packaged
Before cardboard boxes McCONNELL, Judges. Circuit piece luggage, and a which he later “carry-on bag,” described as a top set on MURPHY, Judge. Circuit of the boxes behind the seat. driver’s *3 I. Introduction provided Karam his driver’s license and a Following stop one-way agreement a traffic and a search of rental indicating the vehicle, Patrick Karam was indicted for his car had been rented in Angeles, Los Cali- intent to distribute more possession with Akron, fornia and would be in returned marijuana, in viola- kilograms than 100 Ohio. Scimone then asked Karam to ac- 841(a)(1) (b)(1)(B). and tion of U.S.C. him to company patrol his vehicle. suppress Karam a motion to all filed evi- vehicle, Karam got When to the he said vehicle, arguing from his dence seized he he needed to use the restroom. Scimone unlawfully violation detained in responded by pointing just out Karam had Fourth Amendment. district court passed stop a truck with restroom facilities so, In doing denied the motion. it conclud- pulled four miles before him Scimone over. ed the detention did not violate the Fourth Karam then made a statement which Sci- Amendment because the officer had rea- interpreted mone anas assertion that Kar- engaged sonable Karam was stopped am had at the truck exit to activity. Karam then entered a Scimone, purchase tea. had plea, guilty preserving right conditional his following been Karam when passed appeal sup- to the denial of motion to and stopped exit knew Karam had not At press. sentencing, district court there. qualified determined Karam as a career 4Bl.l(a) to pursuant offender USSG and sitting While Scimone and Karam were him imprison- sentenced to 110 months’ vehicle, patrol in the Scimone asked Kar- ment. Karam appeal, challenges On both plans, am about his travel includ- the district court’s denial of the motion to ing coming where he was from and where suppress application and its of the career going. explained he was Karam he was sentencing guideline. offender Exercising traveling Angeles, to Akron from Los jurisdiction pursuant 28 U.S.C. spent where he had the last week and a this court affirms the district court’s deni- visiting half his niece. He stated he had suppress al of the motion to and affirms Angeles flown to Los and then rented the Karam’s sentence. vehicle to return to his home in Akron. Following exchange, Scimone in- Background II. formed Karam him giving he would be traveling While eastbound on Interstate warning following another too vehicle Albany County, Wyoming, 80 in Wyoming closely. began then fill Scimone out the Highway Trooper Joseph Patrol Scimone warning attempted and to run a check of observed an eastbound Pontiac Montana driver’s license dispatch. minivan driven Karam following anoth- mistakenly reported Because Scimone er closely. vehicle too Scimone activated number different from the actual driver’s emergency lights pulled Karam number, dispatch repeatedly license re- right over to the shoulder of the road. sponded that the driver’s was not license approached Scimone then the vehicle and on file. license, asked Karam regis- for his driver’s ques- Scimone continued to ask Karam tration, proof of insurance. As he history tions about his travel and his vaca- approached, Scimone looked through the windows of the vehicle and Angeles. observed tion Los When Scimone asked one count of Karam was indicted on back to to drive why he chose
Karam more intent to distribute possession with flying, explained Karam than Akron rather marijuana, in viola- items, kilograms than 100 including some transporting he was (b)(1)(B). 841(a)(1) of 21 U.S.C. niece who tion for another pictures, clothes and all evi- suppress filed a motion to from Karam to Akron recently moved back had of the search of seized as a result father. dence with her sick Angeles to be Los motion, argued, Karam vehicle. In the where his his then asked alia, unlawfully detained that he was Karam first inter Angeles. lived Los niece Amendment. in violation of the Fourth she not know where that he did responded evidentiary court held an The district thirty lived indicated she lived and then *4 motion, hearing ultimately and denied Beverly Cen- from the forty-five minutes suspi- Scimone had reasonable concluding characterized Karam’s later ter. Scimone in criminal activ- engaged Karam was Even- cion vague.1 as to his answers justify the continued de- ity sufficient to ten minutes of approximately tually, after arrival of the awaiting while the valid- tention attempts to confirm unsuccessful the mo- license, unit. After the denial of canine driver’s Scimone ity of Karam’s Karam entered condi- suppress, his tion to warning, returned gave Karam the to a written guilty plea pursuant agreement, and tional license and rental driver’s way. plea agreement government. with the on his proceed him he could told plea, govern- exchange guilty for the his vehi- walking back to As Karam was agreed to recommend three-level ment if ask cle, Karam he could Scimone asked of re- acceptance reduction for sentence Karam questions and him a few more sponsibility. Karam again asked agreed. Scimone (“PSR”) recom- Report and The Presentence Angeles lived in Los where his niece of the career of- application Karam knew mended whether specifically asked sentencing guideline pursuant Karam was unable to fender Again, her address. 4Bl.l(a). § much It based this recommen- provide or to USSG an address provide that two of Karam’s niece’s dation on a conclusion the location regarding detail convictions, a 1995 Ohio conviction asked point, At this Scimone residence. marijuana in and a trafficking vehicle to search his Karam for consent marijuana trafficking in then told Ohio conviction for and Karam refused. trafficking to commit conspiracy leave and in- and Karam was not free to marijuana, qualified as controlled sub- to call a canine going formed him he was offenses, as defined USSG request- stance unit the vehicle. Scimone to sniff 4B1.2(b). calculated Karam’s The PSR brought canine unit be drug ed a detection- applying a thirty-one, unit offense level as stop. When the total to the location of the thirty-four under arrived, offense level of alerted the officers to base the canine 4Bl.l(b) down- and a three-level substances. USSG presence of controlled respon- adjustment acceptance a search of the van ward The officers conducted cou- sibility under USSG 3E1.1. When pounds found approximately and VI, history category with a criminal marijuana. pled extraordinarily appeared unusually nervous.” The 1. Scimone also testified Karam challenge stop. government does not this factual “quite during nervous” the traffic court, however, rely finding appeal and does not on Kar- rejected district this charac- suspi- support reasonable am's nervousness to demeanor and found terization of Karam's "[tjhere cion. that Mr. Karam was is no indication Ohio, 1, 19-20, advisory in an this offense level resulted 392 U.S. 88 S.Ct. (1968). range of 188 to 235 months. guideline L.Ed.2d 889 Id. Under inqui- ry, a traffic is reasonable if it is objected application Karam to the “justified inception” at its “reason- sentencing § 4B1.1 and filed a memoran- ably in scope related to the circumstances it argued improper dum. Karam justified which interference the first classify conviction as a con- his 1995 Ohio Salzano, place.” United States v. trolled substance offense because it did not Cir.1998) necessarily (quotations involve the actual distribution omitted). possession of a controlled substance or the of a controlled substance with intent justified “A seizure that solely sentencing hearing, At the distribute. issuing the interest in a warning ticket rejected arguments district court to the can driver become unlawful if it is qualified as a concluded career beyond prolonged reasonably the time re granted offender. It then Karam a six-level quired to complete that mission.” Illinois departure pursuant downward to USSG Caballes, 405, 407, 125 S.Ct. 5K1.1, assistance to based on Karam’s (2005). 834, 160 L.Ed.2d During investigation stop, routine traffic *5 may request officer prosecution of others. The district court a license and registration, vehicle driver’s calculated Karam’s total offense level as run computer verification of these docu twenty-five history and his criminal cate- ments, and issue a citation or warning. VI, gory resulting advisory guide- as in an United v. Rosborough, States 366 F.3d range imprison- line of 110 to 137 months’ (10th Cir.2004). 1145, 1148 An officer can ment. The district court sentenced Karam also ask the driver about mat imprisonment, to 110 months’ a sentence ters both related and unrelated to the guideline at the range. bottom the purpose stop, long of the as ques as those Analysis prolong tions do not length
III. Stewart, detention. United v. States 473 Suppress A. Motion to (10th Cir.2007). 1265, F.3d 1269 Once the reviewing district court’s deni warning or citation has been issued and al to suppress, of motion this court views registration the driver’s and have license light the evidence in the most favorable to returned, however, been gener the officer government accepts and the factual ally proceed must allow the driver to with findings unless’they of the district court delay. out further United States v. Pat clearly are erroneous. United States v. (10th Cir.2006). terson, 767, 472 F.3d 776 Chavira, (10th 1286, 467 1290 Cir. Further permissible only detention is if 2006). The ultimate determination of rea “(1) develops objectively the officer an rea sonableness under the Fourth Amend suspicion sonable and articulable that the ment, however, a question is of law that is engaged illegal activity, driver is some de reviewed novo. Id. or initial detention becomes a con Although stop a traffic is considered a Rosborough, sensual encounter.” 366 F.3d purposes seizure for of the Fourth Amend- (quotations and alterations omit ment, it investigative constitutes an deten- ted). tion rather than a custodial arrest. Unit- challenge Karam does not the va (10th Wood, 942, ed v. States 106 F.3d Cir.1997). lidity stop. of the initial traffic The reasonableness of such a following observed Karam another vehicle stop is therefore determined under the two-part inquiry Terry closely Wyo. established in v. too in violation of Ann. Stat. just passed an exit with “jus- despite having therefore stop
§ 31-5-210.
follow-up
facilities and his
state-
restroom
inception.” See
tified at its
Williams,
as a false
interpreted
which Scimone
ment
Cir.2005) (“A
exit;
valid under the
stop
stopped
traffic
is
that he had
at the
assertion
based on
stop
if the
is
plans”
Fourth Amendment
Karam’s “unusual travel
” (quota-
....
violation
traffic
Angeles
renting
observed
a vehicle
flying to Los
omitted)).
not chal-
Karam also does
tion
appeal,
back to Ohio. On
to drive
the initial detention
lenge
scope
give
these factors are insufficient
argues
before Sci-
occurred
questioning
necessary
rise to
reasonable
vehi-
consent to search his
mone asked for
detention.
justify
his continued
Rather,
only that the
Karam asserts
cle.
investiga
whether an
To determine
arrival of
pending the
continued detention
suspi
tory
supported
is
reasonable
stop
unit, after the citation had been
the canine
totality
cion,
look at the
this court “must
registration
had
issued and his license
to see
the circumstances of each case
returned,
an unreason-
constituted
been
partic
detaining
officer has a
whether
of the Fourth
in violation
able seizure
objective
suspecting
basis for
ularized and
Amendment. Because the
States v. Arvi
legal wrongdoing.” United
argue this continued' detention
does not
zu,
266, 273, 122 S.Ct.
consensual,
validity
its
turns
omitted).
(2002) (quotations
L.Ed.2d
“objectively
possessed an
whether Scimone
Thus, although
court discusses each of
suspicion”
and articulable
reasonable
individually,
factors
the ultimate
these
activity
justify
sufficient to
detain-
whole,
“whether,
taken as a
question
of the traffic
ing
purpose
Karam after
they
finding
suspi
of reasonable
support
Rosborough,
completed.2
had been
*6
Santos,
cion.” United States
omitted).
(quotation
Although
court is mindful that
may
this
“offi
factors
be relevant to the reasonable
possess
determination,
expertise permitting
suspicion
cers often
“some facts are so
them to understand the criminal connota
susceptible
innocuous and so
varying
may
tions associated
facts that
seem
they carry
with
interpretations
little or no
untrained,” Santos,
Mendez,
innocent
to the
weight.”
United States v.
1133,
(10th Cir.1997)
government
F.3d at
pro
has not
(quotation
omitted).
any objective
associating
vided
basis for
Each of these facts falls square-
style
packaging
ly
these boxes or this
within
category. Although
this
activity..
To the extent
previously
Scimone’s court has
considered
insuffi-
suspicion of the boxes was based on a
cient amount of luggage as a relevant fac-
single
tor,
Ledesma,
regarding
drug stop
e.g.,
anecdote
United States v.
Wyoming trooper,
Cir.2006),
made
another
his F.3d
suspicion
wholly subjective
and thus
suitcase was not so small as to contribute
significantly
irrelevant
to the reasonable
cal
suspicion.
to reasonable
Be-
many
culus. Neither
nor the
cause there
person
are
reasons a
district
provided anything
court has
other
choose to
lightly,
travel
the size of the
*7
than
single
support
luggage
this
instance to
Sci-
in
given
Karam’s vehicle must be
only
mone’s association of the boxes with crimi
the slightest weight,
any.
if
See Reid
Arvizu,
277,
nal activity.
438, 441,
534
at
v. Georgia,
U.S.
100 S.Ct.
Cf.
122
(discussing
“special
S.Ct. 744
officer’s
L.Ed.2d
(characterizing
890
training
familiarity
luggage
ized
with the cus
a lack of
aas
circumstance that
inhabitants”).
toms of the area’s
very large category
Absent
could “describe a
of
travelers”).
any objective justification
presumably
an
Similarly,
such
asso
innocent
ciation,
presence
neatly packaged
significance
the
of
court
the
this
has discounted
in
drug
cardboard boxes
the back of a vehicle is
of travel
between
location
source
destination,
of
“incorrigibly
drug
explaining
one
those circumstances so
and a
“[i]f
activity”
country’s larg-
free of associations with criminal
travel between
two
“[djeference
that
population
ground
to law enforcement offi
est
on
centers is
Santos,
inappropriate.”
suspicion may
predi-
cers
which
[is]
F.3d
reasonable
be
Thus,
cated,
case,
at
in
imagine
activity
1133.
the context of this
it is difficult to
an
in
incapable
justifying police suspicion
even when viewed
combination with the
below,
other factors discussed
an
pres
accompanying investigative
detention.”
new,
Santos,
neatly taped
ence of
in a
at
boxes
vehi-
403 F.3d
stopped
Karam said he
him to believe
significance
limited
Notwithstanding the
Thus,
facts as
viewing
factors relied
the last exit.
three of the
be,
court,
viewed in
reasonably perceived
circumstances
them to
district
Scimone
support
to
entirety
certainly
were sufficient
to
their
contributes
Karam’s statement
suspicion.
Im-
conclusion of reasonable
articulable
objectively
reasonable and
in
got
Karam
Scimone’s
mediately after
necessary
justify
pro
to
car,
he had to use the
he stated
patrol
detention. See United States
longed
Scimone,
and,
then
according to
restroom
(10th
1149, 1157
Cir.
Bradford, 423 F.3d
exit
at the last
stopped
he had
explained
2005)
“conflicting” answers to “ba
(listing
testified this
tea. Scimone
get
to
some
Wood,
factor);
as one
questions”
sic
Scimone
suspicious
because
statement
“inconsistencies
(explaining
F.3d at 947
passed
he
following Karam when
had been
during
to the officer
provided
information
stop
knew Karam did not
exit and
the last
rise to reasonable
stop
give
the traffic
sup-
to
of the motion
there.
its denial
Santos,
activity”);
suspicion of criminal
cf.
make a
court did not
press, the district
(concluding false denial of
at 1132
falsely
whether Karam
finding as to
history
powerful
“the most
exit,
prior
at the
stopped
claimed to have
sustaining,
finding
...
reason
recording
of the traffic
noting the
suspicion.”).
reasonable
Instead, the
on this matter.
was unclear
next relies on Karam’s
only that
be-
court found
district
questions regarding
vague responses
such a statement and
Karam made
lieved
travel, history
content of the card-
and the
such a statement was
that Scimone knew
Specifically,
board boxes
his vehicle.
false.
that Karam was
government points
out
assertions,
Contrary to
where his
precisely
unable to remember
Karam’s statement does
significance
Angeles,
stating
first
he
niece lived Los
actually
turn on
claimed
not
whether
lived and then
did not know where she
Even as
stopped
at the
exit.
have
approximate-
that
lived
explaining
she
mistaken about Kar-
suming Scimone was
Beverly
from the
ly forty-five minutes
statement,
that
it is well established
am’s
Similarly,
asked what items
Center.
when
may support
“an officer’s mistake of fact
Akron,
bringing
Karam
he was
back
suspicion ...
probable cause or reasonable
“just
“just
and then
first said
clothes”
said
mistake of fact was
provided the officer’s
Although
that.”
pictures and stuff like
objectively
States v.
reasonable.” United
charac-
disputes
the district court’s
Herrera,
Cir.
“vague,” there
terization of his answers as
2006)
omitted). Here, the dis
(quotation
in the record for the
ample support
express
finding,
made an
factual
trict court
determination that Karam
district court’s
record,
supported
which is
responses to Scimone’s
gave vague
ques-
*8
falsely
understood Karam
Scimone
Indeed,
of the
recording
tions.
at the
exit.
stopped
previous
claim he had
than
when
confirms Karam was less
clear
finding
in
and the district
Implicit
this
questions about his
answering Scimone’s
court’s reliance on it as a factor contribut
stayed in Los
plans,
travel
where he had
the conclu
ing
to reasonable
was
and the content of the boxes.
Angeles,
interpretation
sion that Scimone’s
not alone indicative
Vague conversation is
Viewing the
statement was reasonable.
wrongdoing
and this kind of conversa-
light
evidence in the
most favorable to the
in
very heavily
weigh
tion does not
agrees
this court
with the
government,
at
suspicion calculus. Id.
that,
reasonable
if
district court
even
“[cjonfusion
Nevertheless,
about de-
mistaken,
objectively reasonable for
it was
story
an indication that a
tails is often
each of the factors is insufficient. This
being
spot,”
vague
not, however,
fabricated on the
may
court
in'
engage
a “di
considered,
may
and evasive answers
be
in vide-and-conquer analysis,” evaluating and
factors,
conjunction with other
as contrib-
disposing of each factor individually.
Id.
uting to an officer’s determination of rea-
Rather,
at
None of the factors relied on *9 government experience district court or the due deference to the of would the officer, justify prolonged alone be sufficient to Scimone had reasonable Indeed, justify detaining detention. con Karam pending the cedes that when independently, viewed arrival of the canine unit. The district
1166
manufacture,
export, distribu-
import,
the motion the
denied
properly
court therefore
a
sub-
tion,
of
controlled
dispensing
or
suppress.
a controlled
possession
or the
of
stance ...
Offender
Application
of Career
B.
manufacture,
...
intent to
substance
Sentencing Guideline
distribute,
dispense.”
export,
or
import,
4B1.2(b).
note ex-
application
§
Id.
the district
argues
next
includes the of-
this definition also
plains
the career offender
applying
court erred
abetting, conspiring,
aiding
of
fenses
his advi
to calculate
guideline
sentencing
a
sub-
attempting to commit controlled
USSG
sentencing
range.
See
sory
§
n. 1. Fur-
Id.
4B1.2 cmt.
stance offense.
considering the district
§
“[I]n
4B1.1.
4B1.2(b)
Guidelines,
ther,
held
encom-
we
this court has
of the
application
court’s
conduct that could
clear error and
“convictions for
findings
passes
factual
review
sub-
charged as a controlled
de novo.” United
have been
determinations
legal
(10th
1050,
Kristl,
offense,”
charged
if the actual
F.3d
1054
even
v.
437
stance
States
Cir.2006).
necessarily satisfy
a defendant was er
would not
“Whether
offense
Smith,
is
a career offender
v.
433
roneously classified as
States
definition. United
(10th Cir.2006).
subject to de novo re
714,
law
question
a
717
F.3d
Mitchell,
v.
113
States
view.” United
prior
whether a
con
To determine
Cir.1997).
Because this
1528, 1532
predicate
as a
offense
qualifies
viction
prior conviction
court concludes
enhancement,
sentencing
of a
purposes
a controlled sub
classified as
properly
initially
the fact of
court must look
“to
this
pursuant
USSG
stance
offense
statutory
conviction and the
definition
4B1.2(b),
properly ap
court
the district
Taylor v.
prior
offense.”
United
sentencing guide
plied the career offender
States,
575,
2143,
602, 110
S.Ct.
line.
(1990). In
context of
L.Ed.2d 607
4Bl.l(a), a
defen-
to USSG
Pursuant
statutory language
where the
guilty plea,
if:
a career offender
qualifies
dant
as
conclusive,
court
look be
is not
(1)
eighteen
at least
the defendant
of the statute
yond
express language
document,
the defendant com-
years old at the time
charging
to the terms of the
conviction;
the instant offense
mitted
a tran
plea agreement,
terms of written
of conviction is
the instant offense
plea colloquy,
and other ex
script
a crime of violence
felony that is either
by findings
factual
assented to
plicit
offense; and
States,
or a controlled substance
v.
Shepard
defendant.
United
prior
at least two
the defendant has
13, 16,
L.Ed.2d
U.S.
S.Ct.
of either a crime
felony convictions
Smith,
(2005);
Al
has reasonable
dicta, however,
for sale or
the court distin-
intended
In
is
492.
trolled substance
Rev.Code
Ohio
Ann.
by ... another.”
resale
Ohio
Rev.Code.
guished
2925.03(A)(2).
language
This
§
Ann.
2925.03(A)(2),
it
as
§
which
characterized
only
prohibits
that the statute
makes clear
non-qualify-
qualifying and
covering both
to
does
extend
not
acts
distribution
of
at
The court did
conduct.
Id.
ing
use.
drugs
personal
for
of
possession
the
it
portion of the statute
which
specify
not
knowledge or reason-
has
If an individual
satisfy
not
would
definition
determined
drugs are intended
to believe
able cause
offense,
it
substance
but
of
controlled
another,
preparation
for sale
focused
primarily
appears the court
of those
transport
or
shipment,
shipment,
“reasonable
between
distinction
possessory
involve the
simply
cannot
drugs
distribute,
to
to
and intent
cause
believe”
drugs, as
moving his own
person
act of one
not
this court need
address
distinction
Rather,
these acts
each of
asserts.
Karam
prohibited
that the
conclusion
light
our
pro-
of the distribution
integral part
is an
actual distribution.
constitutes
conduct
an act of distribution
therefore
cess and is
extent
493. To the
Montanez
See id. at
Simply because the Ohio
in and of itself.
trans-
proposition
can be
for the
that
read
phas-
each of the various
prohibits
statute
a controlled substance
porting
shipping
process does not
es of the distribution
to be-
knowledge or reasonable cause
with
acts
intervening
these
any
make
one of
is intended
lieve the controlled substance
than the
any
an act of distribution
less
act
qualify
not
as an
for sale does
Additionally, the
step
process.
final
in the
distribution,
disagrees
this court
with
substance
sale of
controlled
intended
dis-
dicta for the reasons
Sixth Circuit
necessarily
requires
party
a third
cussed above.
substance to
of the controlled
distribution
is, therefore, no
party. There
that third
holding
reliance on this court’s
the Ohio
way
a defendant
violate
v. Herrera-Roldan
also
in conduct which
engaging
without
statute
Cir.2005).
(10th
H69 beyond ute. This court need not look
language of the statute. statutory
Because the language of Kar-
am’s prohibits offense of conviction
only conduct which is the “distribution ...
of a controlled substance ... or the pos-
session of controlled substance ... with distribute,” ...
intent to the prior convic- categorically qualifies
tion as a controlled 4B1.2(b).
substance offense. USSG
The district court therefore did not err in
applying the guideline. career offender
IV. Conclusion reasons, foregoing
For the this court
affirms the denial of Karam’s motion to
suppress and the imposed by sentence
district court.
McCONNELL, Judge, Circuit
dissenting in part.
The Fourth question Amendment in this
case is close and reasonable minds balance, view,
differ. On in my the officer objective
lacked the and reasonable suspi-
cion necessary justify the detention. I
therefore dissent from that holding of the
majority. I majority’s concur in the hold-
ing on sentencing issue.
UNITED STATES America ex rel. BOOTHE,
Louanne Plaintiff-
Appellant, GROUP,
SUN HEALTHCARE Defendant-Appellee.
INC.
No. 06-2156. Appeals,
United States Court of
Tenth Circuit.
Aug.