for the Eighth Circuit

161935P.pdf   08/07/2017  Lucky Iromuanya  v.  Scott Frakes
   U.S. Court of Appeals Case No:  16-1935
   U.S. District Court for the District of Nebraska - Lincoln   
   [PUBLISHED] [Beam, Author, with Riley and Shepherd, Circuit Judges] 
   Prisoner Case - Habeas Corpus. Following conviction for attempted 
   second-degree murder and second-degree murder, and exhaustion of his state 
   court remedies,Defendant filed a petition for writ of habeas corpus, 
   arguing the trial court denied him due process by failing to properly 
   instruct the jury on whether jury should have been able to consider 
   sudden-quarrel provocation on the attempt charge and the jury could not 
   consider sudden quarrel unless it found Ironmuanya not guilty to 
   second-degree murder. The district court denied relief. On appeal, we 
   conclude that Ironmuanya fairly presented his due process claims to the 
   state courts. On the merits, after reviewing the history of Nebraska law 
   on the subject, this court concludes the Nebraska Supreme Court's 
   determination that due process was not offended by either the lack of jury 
   instruction or the step jury instruction and the adjudication was not 
   contrary to, nor involve an unreasonable application of, clearly 
   established Supreme court precedent and further was not based on an 
   unreasonable determination of the facts in light of the evidence presented 
   in the state court proceedings. 
  
162859P.pdf   08/07/2017  United States  v.  Norman Weaver
   U.S. Court of Appeals Case No:  16-2859
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Loken, Author, with Wollman and Riley, Circuit Judges] 
   Criminal Case - sentencing. The district court did not err in imposing a 
   Guidelines enhancement under section 2B1.1(b)(11)(C)(i) (involving the 
   unauthorized transfer or use of any means of identification unlawfully to 
   produce or obtain any other means of identification). The scheme to use 
   the bank account, routing number, and payor's signature on stolen checks 
   and create counterfeit checks payable to homeless persons who were 
   recruited to pass the bogus checks at local banks, involved the transfer 
   or use of any "means of identification" to "produce" another means of 
   identification. The offense involved affirmative identity theft or 
   breeding and the victims included individual signatories whose names were 
   used to product counterfeit checks. The upward variance was not 
   substantively unreasonable and the district court did not abuse its 
   discretion in imposing sentence. 
  
163090U.pdf   08/07/2017  United States  v.  Travonte Hughes
   U.S. Court of Appeals Case No:  16-3090
   U.S. District Court for the Northern District of Iowa - Cedar Rapids   
   [UNPUBLISHED] [Per Curiam. Before Wollman, Gruender, and Shepherd, Circuit 
   Judges] 
   Criminal Case - sentence. Considering challenge to use of enhancement 
   under Guidelines sec. 2K2.1(a)(2) when defendant committed two prior 
   convictions for a crime of violence, district court's downward variance, 
   and district court's explanation that it would sentence defendant to 
   identical sentence if it erred in any way in computing the advisory 
   guidelines, any error was harmless. The resulting 71-month sentence was 
   substantively reasonable and the district court did not abuse its 
   discretion in weighing the factors. 
  
163587U.pdf   08/07/2017  United States  v.  Cristina Dawn Griego
   U.S. Court of Appeals Case No:  16-3587
   U.S. District Court for the District of South Dakota - Sioux Falls   
   [UNPUBLISHED] [Per Curiam. Before Chief Judge Smith, Colloton, and Kelly, 
   Circuit Judges] 
   Criminal Case - sentence. Defendant appeals from the denial of a two-level 
   reduction for acceptance of responsibility under Guidelines sec. 3E1.1. 
   Because defendant waived the right to appeal the denial of the acceptance 
   of responsibility reduction in her plea agreement, her waiver was knowing 
   and voluntary, and no miscarriage of justice will result, the waiver is 
   enforcedand the appeal is dismissed. 
  
163636P.pdf   08/07/2017  Paris Limousine of OK, LLC  v.  Executive Coach Builders, Inc.
   U.S. Court of Appeals Case No:  16-3636
   U.S. District Court for the Western District of Missouri - Springfield   
   [PUBLISHED] [Kelly, Circuit Judge, with Murphy and Gruender, Circuit 
   Judges] 
   Civil Case - diversity. Dismissal of complaint alleging a breach of 
   express warranty to enforce a statutory safety standard under the Federal 
   Motor Vehicle Safety Standards that does not provide a private right of 
   action is reversed. Complaint alleged a violation of state law for breach 
   of express warranty, and the FMVSS and Safety Act do not affect the 
   potential liability under Missouri law for breach of its express warranty. 
   Claim of conflict preemption failed and allegations of cognizable damages 
   were sufficiently plead. 
  
163650P.pdf   08/07/2017  Ronald Calzone  v.  Josh Hawley
   U.S. Court of Appeals Case No:  16-3650
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Colloton, Author, with Benton, Circuit Judge and Gerrard, 
   District Judge] 
   Civil Case - civil rights. In challenge to Mo. Rev. Stat. sec. 304.230.1, 
   .2 and .7, authorizing roving stops of commercial vehicles for inspection 
   without probable cause, Calzone lacks standing to sue the governor or 
   attorney general, but has standing to sue the superintendent of the 
   Missouri state highway patrol under 42 U.S.C. sec. 1983 for injunctive and 
   declaratory relief. The facial challenge fails because the statute may be 
   applied constitutionally to participants in the commercial trucking 
   industry under New York v. Burger, 482 U.S. 691 (1987). The district 
   court's dismissal of the as-applied challenge against the superintendent 
   for money damages is affirmed, because the superintendent in her official 
   capacity is not a person under section 1983. The district court erred in 
   dismissing the as-applied claims against the superintendent for 
   declaratory and injunctive relief and the case is remanded for further 
   proceedings to address whether Calzone is a covered farm vehicle under 
   federal law, whether Missouri's law incorporates the federal regulations, 
   and whether exemptions under federal and state law apply. 
  
163795U.pdf   08/07/2017  United States  v.  Alexander McArdle
   U.S. Court of Appeals Case No:  16-3795
   U.S. District Court for the Southern District of Iowa - Des Moines   
   [UNPUBLISHED] [Per Curiam. Before Wollman, Gruender, and Shepherd, Circuit 
   Judges] 
   Criminal Case - suppression. Defendant moved to suppress evidence stemming 
   from the execution of a search warrant when the videos identified on the 
   search warrant affidavit were not found on defendant's computer or 
   computer media, arguing the warrant application contained intentional or 
   reckless false statements and violated his Fourth Amendment rights, and 
   that a hearing was required. Defendant did not make the requisite 
   preliminary showing that the warrant affidavit contained intentionally or 
   recklessly included false statements because absence of affidavit videos 
   did not establish that they were never present; the forensic expert stated 
   he found evidence that the fifth affidavit video may have once existed on 
   the computer media and he found evidence of the first video's filename. 
   Thus, district court did not err in denying motion to suppress. 
  
163919U.pdf   08/07/2017  Juana Gutierrez-Garcia  v.  Jefferson B. Sessions, III
   U.S. Court of Appeals Case No:  16-3919
   Petition for Review of an Order of the Board of Immigration Appeals   
   [UNPUBLISHED] [Per Curiam. Before Wollman, Loken, and Benton, Circuit 
   Judges] 
   Petition for Review - immigration. Decision denying asylum, withholding of 
   removal and protection under the Convention Against Torture is supported 
   by substantial evidence, as the immigration judge gave adequate 
   explanation for the adverse credibility determination and a reasonable 
   adjudicator would not be compelled to reach a contrary conclusion. 
  
164369U.pdf   08/07/2017  United States  v.  Richard Beason
   U.S. Court of Appeals Case No:  16-4369
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [UNPUBLISHED] [Per Curiam. Before Wollman, Loken, and Benton, Circuit 
   Judges] 
   Criminal Case - Anders. Appeal waiver is enforceable because the record 
   supports that the plea agreement and appeal waiver were knowing and 
   voluntary and no miscarriage of justice will result.