United States v. Windrix (2005)

See Windrix, 405 F.3d at 1154 ("A defendant's substantial rights are not prejudiced merely because the defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment."); Ailsworth, 138 F.3d at 849 (holding that while evidence proving conspiracy was narrower than the conspiracy alleged in the indictment, the variance was not fatal because the "governmen…

See United States v. W indrix, 405 F.3d 1146, 1154 (10th Cir. 2005) (“A defendant’s substantial rights are not prejudiced merely because the defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.”) (quotations and citations omitted).

We explained in United States v. Windrix that “[a] defendant’s substantial rights are not prejudiced merely because the defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” 405 F.3d 1146, 1154 (10th Cir.2005) (quoting United States v. Harrison, 942 F.2d 751, 758 (10th Cir.1991)) (internal quotation marks omitted).

A variance can be prejudicial by either failing to put the defendant on sufficient notice of the charges against him, United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir.2005), or by causing the jury to determine the defendant’s guilt by relying on evidence presented against other defendants who were involved in separate conspiracies (the so-called “spillover effect”), Edwards, 69 F.3d at 433 .

A variance can be prejudicial by either failing to put the defendant on sufficient notice of the charges against him, United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir.2005), or by causing the jury to determine the defendant’s guilt by relying on evidence presented against other defendants who were involved in separate conspiracies (the so-called “spillover effect”), Edwards, 69 F.3d at 433 .

United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005).

“A variance occurs when the conspiracy charged in an indictment is different from the evidence adduced at trial.” United States v. Hall, 473 F.3d 1295, 1305 (10th Cir. 2007) (citing United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005)).

Defendant “does not argue on appeal that any special circumstance requires us to address [his] contention despite lack of preservation below.” United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005).

Although we generally decline to address theories a party did not develop before the district court, United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005), Mr. Jackson has argued vigorously at every stage of this litigation that the submission of the great risk of death aggravator to the jury violated his constitutional rights.

A variance can be prejudicial by either failing to put the defendant on sufficient notice of the charges against him, United States v. - 19 - Windrix, 405 F.3d 1146, 1154 (10th Cir. 2005), or by causing the jury to determine the defendant’s guilt by relying on evidence presented against other defendants who were involved in separate conspiracies (the so-called “spillover effect”), Edwards, 69 F.3d at 433 .

A variance - 23 - can be prejudicial by either failing to put the defendant on sufficient notice of the charges against him, United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir. 2005), or by causing the jury to determine the defendant’s guilt by relying on evidence presented against other defendants who were involved in separate conspiracies (the so-called “spillover effect”), Edwards, 69 F.3d at 433 .

We explained in United States v. Windrix that “[a] defendant’s substantial rights are not prejudiced merely because the defendant is convicted upon evidence which tends to show a narrower scheme than that contained in the indictment, provided that the narrower scheme is fully included within the indictment.” 405 F.3d 1146, 1154 (10th Cir. 2005) (quoting United States v. Harrison, 942 F.2d 751, 758 (10th Cir. 1991)) (internal quotation marks omitted).

True enough, the presence of a large sum of cash and multiple cellphones is relevant to the question of probable cause, see United States v. Reed, 443 F.3d 600, 603 (7th Cir.2006); United States v. Cardoza, 713 F.3d 656, 660 (D.C.Cir.2013); United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005), but cash and phones are not inherently incriminating and cannot alone supply probable cause to search, see United States v. Weir, 703 F.3d 1102, 1103-04 (7th Cir.2013); United…

Cir. 2013); United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005), but cash and phones are not inherently incriminating and cannot alone supply probable cause to search, see United States v. Weir, 703 F.3d 1102 , 1103–04 (7th Cir. 2013); United States v. Moreland, 703 F.3d 976, 987 (7th Cir. 2012); Reed, 443 F.3d at 603 ; United States v. $506,231 in U.S. Currency, 125 F.3d 442 , 451–52 (7th Cir. 1997).

United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.1999). 1 McGuire has also arguably waived the remaining ineffective-assistance-of-counsel claims he made to the district court because, although he presented some version of them to the district court, he has entirely retooled these claims on appeal.

United States v. Renteria, 720 F.3d 1245, 1252 (10th Cir.2013); United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005).

However, “not every variance requires reversal.” United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005).

Moreover, this court has approved a warrant based on the officers’ detection of “a strong chemical odor ... only associated with the manufacturing of methamphetamine.” United States v. Windrix, 405 F.3d 1146, 1152 (10th Cir.2005).

We have recognized a variance may cause prejudice when the defendant could not have anticipated from the indictment what the evidence would be at trial, United States v. Stoner, 98 F.3d 527, 536 (10th Cir.1996), or when the jury is more likely than not to impute evidence related to separate conspiracies to the defendant, United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir.2005).

Prejudice may result if the defendant could not have anticipated from the indictment what the evidence would be at trial, United States v. Stoner, 98 F.3d 527, 536 (10th Cir.1996), or when the jury is more likely than not to impute evidence related to separate conspiracies to the defendant, United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir.2005).

United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005).

“A variance can also prejudice a defendant’s substantial rights ‘if the evidence adduced against coconspirators was more likely than not imputed to the defendant by the jury in its determination of the defendant’s guilt.’ ” Carnagie, 533 F.3d at 1241 (quoting United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir.2005)).

United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005); see also United States v. Longstreet, 567 F.3d 911, 918 (7th Cir. 2009).

Agents, 492 F.3d 1158 , 1163 n. 5 (10th Cir.2007) (“[Wje expect counsel to know the pleading rules of the road without being given personal notice of them by the district court.”); United States v. Windrix, 405 F.3d 1146, 1157 (10th Cir.2005) (holding that a criminal defendant’s counsel is “charged with knowledge of the local criminal rules in their entirety, including those parts of the local civil rules incorporated by reference”).

United States v. Windrix, 405 F.3d 1146, 1157-58 (10th Cir.2005).

United States v. Windrix, 405 F.3d 1146, 1155 (10th Cir.2005).

United States v. Windrix, 405 F.3d 1146, 1155 (10th Cir. 2005).

United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005).

A variance occurs “when the evidence adduced at trial establishes facts different from those alleged in an indictment.” United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005) (quotation and citation omitted). “[A] variance, without more, will not warrant relief as long as the proof corresponds to an offense clearly charged in the indictment because the defendant will have had notice of that charge and cannot claim prejudice.” Williamson, 53 F.3d at 1513 .

United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005).

United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005).

United States -8- v. Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005).

United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005).

In this case, Mr. Henderson “does not argue on appeal that any special circumstance requires us to address [his] contention despite lack of preservation below.” United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005).

United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir.2005).

Although a sentence in the middle of the sentencing range suggests an exercise of discretion, we do not think that the government has carried its burden — its presentation does not demonstrate “overwhelming” evidence to support the district court’s factual findings, cf. Riccardi, 405 F.3d at 875 , nor does it “convince us beyond a reasonable doubt that the district court would have imposed just as harsh a sentence in the absence of a mandatory guideline regime.” See United S…

United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir. 2005).

See United States v. Jardine, 406 F.3d 1261 (10th Cir.2005) (remanding case *124 for resentencing in light of government’s concession of Booker error); United States v. Lang, 405 F.3d 1060, 1065 (10th Cir.2005) (remanding case for resentencing because “[t]he government has not asserted that the [Booker ] error in this case was harmless”); United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir.2005) (to the same effect).

Thus, United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir.2005) (Booker claim preserved by Apprendi objection to judge-found facts to support offense level enhancements), and United States v. Riccardi, 405 F.3d 852, 874 (10th Cir.2005) (accord), which Hum phrey cites in support of his argument for harmless error review, are inapposite.

Applicant “does not argue on appeal that any special circumstance requires us to address [his] eontention[s] despite lack of preservation below.” United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005).

See United States v. Riccardi, 405 F.3d 852, 874-75 (10th Cir.2005); United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir.2005).

Thus, United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir. 2005) (Booker claim preserved by Apprendi objection to judge-found facts to support offense level enhancements), and United States v. Riccardi, 405 F.3d 852, 874 (10th Cir. 2005) (accord), which Humphrey cites in support of his argument for harmless error review, are inapposite.

The Tenth Circuit has found probable cause for a warrantless search, where, as here, the officers detected the “chemical odor . . . associated with the manufacturing of methamphetamine.” United States v, Windrix, 405 F.3d 1146, 1152 (10th Cir. 2005).

See United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005) (declining to address a claim petitioner did not raise before district court). .

See United States v. Windrix, 405 F.3d 1146, 1157 (10th Cir. 2005).

See Sanchez, 555 F.3d at 913 , Windrix, 405 F.3d at 1153 , Sparks, 291 F.3d at 690–91.

See United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005).

See United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005) (declining to address an issue the party "did not argue in district court,” because "in general we will not consider an argument not raised below,” and the party did "not argue on appeal that any special circumstance requires us to address this contention despite lack of preservation below”); Femedeer v. Haun, 227 F.3d 1244, 1255 (10th Cir.2000) ("On appeal ... parties must do more than offer vague and unexpla…

See United States v. Windrix, 405 F.3d 1146, 1156 (10th Cir.2005) (declining to address an issue that the party did not argue in the district court because the court generally does not consider an argument not raised below).

See United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir.2005).