Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
David Vargas and an accomplice entered a Foot Locker store and began removing merchandise from shelves, the opinion noted. According to one of the store employees, when a co-worker tried to interfere, Vargas displayed a revolver, which was pointed downward. The employee heard a click, which he believed to be the revolver’s chamber clicking into place. Vargas then told the employee, “You’re going to have to let us take everything.” In response, the employee asked, “What do you need me to do?”
Vargas, mistaking the employee’s scanner for a cellphone, stated, “Put down the phone.” The employee placed the scanner and a shoe on the ground, backed away, and raised his hands above his head. His co-worker did the same. The employee further testified that a few moments later, Vargas “was just kind of telling me, you know, like, Don’t call the cops. Don’t do anything. . . . Go stand back there with your hands up.” Vargas and his accomplice continued to grab merchandise before leaving the store.
After the Foot Locker robbery, Vargas and his accomplice drove to Designer Shoe Warehouse. At the checkout counter, the cashier processed the sale of several pairs of shoes. Surveillance footage showed Vargas removing the large, silver revolver from his hip pack and placing it on the counter with the barrel facing the cashier. The cashier heard “a big slam on the counter” and saw the gun from her peripheral vision. Vargas didn’t grab the pistol by its grip but placed his hand over the chamber, with his fingertips covering the trigger guard. The barrel remained fixed on the clerk for most of the robbery. When a shoe box fell behind the counter, Vargas made a gesture with the gun, telling the cashier to pick it up. After the cashier returned the fallen box to the counter, Vargas and his accomplice left with the stolen merchandise.
Later that night, police officers observed a car driven by Vargas cut across traffic and make an illegal turn. Officers engaged in a high-speed chase, during which a passenger fired several shots at officers and the pursuing officer returned fire. Eventually, the car crashed into another vehicle, and the suspects fled on foot, firing more shots at officers. Vargas and his accomplice escaped that night, but Vargas was apprehended a few weeks later.
A jury convicted Vargas on all charged counts but one. In calculating Vargas’s offense level, the presentence report applied two, two-level enhancements under U.S. Sentencing Guidelines 2B3.1(b)(4)(B): one for physically restraining Foot Locker employees and one for physically restraining the DSW cashier. Probation indicated they “applied both enhancements for restricting movement.” The adjusted offense level for the Foot Locker robbery post-enhancement was 22, and the adjusted offense level for the DSW robbery and subsequent flight post-enhancement was 30.
The sentencing guidelines require the application of the greater adjusted offense level applied, but they also require an adjustment for multiple counts depending on the number of units assigned to each count. Here, the PSR assigned one unit to the DSW robbery and flight and one-half unit for the Foot Locker robbery. The combined 1.5 units resulted in a one-point increase to the adjusted offense level from 30 to 31.
Combined with a criminal history category of VI, 2 R. 25, the guideline range for the robberies was 188 to 235 months. Vargas objected to the application of the physical restraint enhancements on the grounds “that he only displayed [or showed] the firearm to store employees.” The district court found physical restraint was clearer in the DSW robbery but overruled the objection. The district court adopted the PSR’s recommendation but varied downward to 150 months for the robberies and imposed additional sentences for the remaining convictions, resulting in a total sentence of 318 months.
After evaluation, the 10th Circuit Court of Appeals affirmed the district court didn’t err in applying the enhancement.
Kapatrick Bolling was diagnosed with obstructive sleep apnea in 2016 and 2017. Following his arrest in November 2017, he told jail staff about the diagnosis and was treated with a continuous positive airway pressure machine. In April 2019, Bolling was transferred to the Freemont Correctional Facility. This time, however, when he reported the diagnosis to staff, he was told he had to take a sleep study test to determine whether he qualified for a continuous positive airway pressure machine under Colorado Department of Corrections guidelines.
Bolling had his first appointment with prison medical provider Dr. Zachary Engelbert in late August 2019. He complained of shortness of breath and chronic headaches and reported he stopped breathing in his sleep on several occasions. When Engelbert offered to schedule a sleep study test, Bolling told him he had already been tested but would take another test if needed.
A few days later, Bolling’s family faxed him his records, which included the results of the prior sleep studies and a prescription for a CPAP machine. He provided these materials to Engelbert during an appointment in early October 2019. Relying on these materials, Engelbert put in an order for a CPAP machine. But the request was denied because he “did not meet the criteria for mild [obstructive sleep apnea] without witnessed [apnea] by a professional or documented cardi[o]vascular [d]isease.” Bolling alleged he was told by staff his apnea-hypopnea index in the previous tests was 6.7, but CDOC guidelines required a minimum index of 15 to qualify for a CPAP machine.
When several months passed without any word about a sleep study test, Bolling filed suit, alleging Engelbert’s refusal to provide him with a CPAP machine violated the Eighth Amendment. Shortly after suit was filed, Engelbert ordered a sleep test and Bolling was provided a CPAP machine.
A magistrate judge recommended granting Engelbert’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a plausible claim under the Eighth Amendment. Bolling timely objected. The district court, applying a de novo standard of review, agreed with the magistrate judge’s recommendation and dismissed the complaint.
After evaluation, the judgment of the district court was affirmed. The 10th Circuit Court of Appeals granted Bolling’s motion to proceed on appeal without prepayment of fees and denied his motion to appoint counsel on appeal. Bolling did an adequate job of explaining his arguments, the opinion noted. It was not the lack of legal assistance that prevented him from obtaining relief; it was the facts, which fail to state a plausible claim under the Eighth Amendment.