United States v. Deiter

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS May 24, 2018 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 17-2159 v. WALTER LEE DEITER, Defendant - Appellant. Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:15-CV-01181-MV-KBM & 1:10-CR-00622-MV-1) Submitted on the briefs: Leah M. Stevens-Block, Sheehan & Sheehan, P.A., Albuquerque, New Mexico, for Defendant - Appellant. James D. Tierney, Acting United States Attorney, and James R.W. Braun, Assistant United States Attorney, Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff - Appellee. Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.  After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. O’BRIEN, Circuit Judge. This case raises a run-of-the-mill ineffective assistance of counsel claim. It also presents an interesting Johnson II claim—whether aiding and abetting (18 U.S.C. § 2) federal bank robbery (18 U.S.C. § 2113(a)) qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act (ACCA). See Johnson v. United States (Johnson II), --- U.S. ---, 135 S. Ct. 2551 (2015). I. Background On November 12, 2009, at 12:38 a.m., police officers from the Albuquerque, New Mexico, Police Department were dispatched to an apartment complex to investigate a 911 domestic violence call. Upon their arrival, they saw Walter Lee Deiter and his wife, D’Leah Harris, in the middle of the street. When Deiter and Harris saw the officers, they separated, each walking in the opposite direction. Deiter proceeded toward the apartment complex; Officer Patricia Whelan followed him. When Deiter went behind a staircase, Whelan temporarily lost sight of him; he emerged a few minutes later on the second-story open breezeway. Whelan told Deiter to come down and talk to her. He refused and appeared “nervous[,] . . . looking kind of up and down the breezeway of the second floor.” (R. Vol. 2 at 199.) When she again told him to come down, he complied. But before doing so, he made a “squatting, bending motion” which led Whelan to believe he had “dropped” something illegal. (Id. at 201, 206.) She could not see what was dropped because a three- to four-foot tall wall obstructed her view. -2- Once Deiter came down the stairs, Whelan asked Officer Sammy Marquez to determine what had been dropped. As Marquez proceeded up the steps to the second- story breezeway, Deiter took off running. Whelan and Officer Glenn St. Ong chased him. St. Ong brought him to the ground with his taser. Marquez arrived and held his legs down while Whelan handcuffed him. Once he was secured, Marquez went to where Deiter was seen on the second-story breezeway; on the floor he found a holster containing a loaded .22 caliber revolver. Forensic testing revealed Deiter’s ...

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