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The following unofficial case summaries are prepared by the clerk's office as a courtesy to the reader. They are not part of the opinion of the court. |
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[ July 31, 2017 ]
153672P.pdf 07/31/2017 Autumn DeCrow v. North Dakota Workforce Safety U.S. Court of Appeals Case No: 15-3672 U.S. District Court for the District of North Dakota - Bismarck [PUBLISHED] [Loken, Author, with Colloton and Kelly, Circuit Judges] Civil case - Worker's Compensation. There is a rational basis for North Dakota Century Code Section 65-05-05-2's reimbursement provision and the statute is not subject to equal protection or substantive due process challenges; similarly,the benefits suspension provision of the statute also has a rational basis; the suspension provision does not violate the Full Faith and Credit Clause. 161588P.pdf 07/31/2017 Haji Azam v. City of Columbia Heights U.S. Court of Appeals Case No: 16-1588 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Per Curiam - Before Benton and Shepherd, Circuit Judges, and Ebinger, District Judge] Civil case - Civil rights. The district court did not err in finding that the City did not violate plaintiff's substantive due process rights under the Fourteenth Amendment by subjecting his properties to increased enforcement efforts; the conduct was not arbitrary, oppressive or shocking to the conscience and did not meet the high standard required to establish a substantive-due-process claim; nor did the court err in finding that the City's actions of entering the rental properties' common areas, without consent or a warrant to look for municipal-code violations, did not violate plaintiff's Fourth Amendment right to be free from unreasonable governmental seizures; plaintiff did not have a reasonable expectation of privacy in the common areas; any argument that the police officers may have physically intruded on constitutionally protected areas by trespassing in the buildings was waived. 161683P.pdf 07/31/2017 Ameren Corporation v. FCC U.S. Court of Appeals Case No: 16-1683 Petition for Review of an Order of the Federal Communications Commission [PUBLISHED] [Wollman, Author, with Murphy and Colloton, Circuit Judges] Petition for Review - Federal Communications Commission. In this petition for review, Utility companies seek review of a November 2015 FCC order governing the rates utility companies may charge telecommunications companies for attaching their networks to utility-owned poles; the word "cost" used in the Pole Attachments Act, 47 U.S.C. Sec. 224, is ambiguous, and the same "cost" definition need not be used to determine the upper bound for cable rates under Section 224(d) and the rate for telecommunication providers under Section 224(e);the November 2015 order constitutes a reasonable interpretation of the ambiguity in Section 224(e), and the petition for review is denied. 161898P.pdf 07/31/2017 A.W. v. Paul Wood U.S. Court of Appeals Case No: 16-1898 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Beam, Author, with Riley and Shepherd, Circuit Judges] Civil case - Sex Offender Registration. The registration provisions of Nebraska's Sex Offender Registration Act, Neb. Rev. Stat. Section 20-4003(1)(a)(iv), do not apply to a juvenile adjudicated delinquent for conduct constituting first-degree sexual conduct in Minnesota; the term "sex offender" as used in the Act requires a criminal conviction for unlawful sexual conduct, and a juvenile delinquency adjudication does not fall within the meaning of that term, and the juvenile is not subject to the requirements of the Act. 162066P.pdf 07/31/2017 United States v. Jose Delacruz U.S. Court of Appeals Case No: 16-2066 U.S. District Court for the District of North Dakota - Fargo [PUBLISHED] [Loken, Author, with Murphy and Benton, Circuit Judges] Criminal case - Criminal law. Evidence was sufficient to establish the single conspiracy charged in the indictment and there was not a fatal multiple-conspiracy variance between the indictment and the proof; the court did not err in rejecting defendant's request for a more specific unanimity instruction on the count charging use of a firearm in furtherance of the drug conspiracy; evidence was sufficient to support defendant's convictions; no error in denying pretrial motions for substitution of counsel as the lack of communication giving rise to the motion resulted from defendant's refusal to speak with counsel rather than counsel's ineffectiveness, and defendant's "stonewalling" does not entitle him to new counsel. 162554P.pdf 07/31/2017 Kodjo Kegeh v. Jefferson B. Sessions, III U.S. Court of Appeals Case No: 16-2554 Petition for Review of an Order of the Board of Immigration Appeals [PUBLISHED] [Shepherd, Author, with Wollman and Melloy, Circuit Judges] Petition for Review - Immigration. Petitioner's testimony contained inconsistencies which went to the heart of his petition and these inconsistencies provided the IJ with cogent, specific reasons for disbelieving him and discrediting his claims; the adverse credibility finding was fatal to petitioner's asylum, withholding of removal and CAT claims, and the petition for review is denied. 162798P.pdf 07/31/2017 Connie Smith v. SEECO, Inc. U.S. Court of Appeals Case No: 16-2798 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Per Curiam - Before Colloton, Beam and Benton, Circuit Judges] Civil case - Class actions. The district court's order denying appellant's motion to intervene in a class action based on her interest in the adequacy of representation by the class representative and class counsel was a final, appealable order; the district court's rational for its decision - that appellant could opt out - was inadequate and the matter is remanded for further consideration; the district court's order denying appellant's motion to intervene based on her interest in the notices and opt-out procedure was a deferral of the issue to a later time and not a final, appealable determination. Judge Beam, concurring in part and dissenting in part. 163297P.pdf 07/31/2017 United States v. Ruben Silva U.S. Court of Appeals Case No: 16-3297 U.S. District Court for the Western District of Arkansas - Fayetteville [PUBLISHED] [Per Curiam - Before Gruender, Murphy and Kelly, Circuit Judges] Criminal case - Sentencing. The district court clearly announced at sentencing that defendant's prior arrests for battery of police officers were only arrests and not convictions, and to the extent there is a conflicting statement in the written judgment, the oral sentence controls, and there was no procedural error concerning consideration of a clearly erroneous fact; sentence was not substantively unreasonable as the court carefully considered the mitigating factors defendant put forward and found the aggravating factors, such as defendant's record and his dangerous conduct at the time of his arrest, outweighed the mitigating factors. 163390P.pdf 07/31/2017 United States v. Thomas Ashburn U.S. Court of Appeals Case No: 16-3390 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Riley, Author, with Beam and Shepherd, Circuit Judges] Criminal case - Sentencing. While the district court erred in stating that the burden was on defendant to demonstrate that it was "clearly improbable" that three knifes found in his residence were used in connection with his drug offense in order for him to avoid the application of an enhancement under Guidelines Sec. 2GD1.1(b)(1)for possession of dangerous weapon, the error was harmless because the evidence clearly established the knifes were either in the same room with the drugs or on top of dresser in which the drugs were found and were, therefore, readily accessible to aid in the drug dealing which took place in the room. 164434U.pdf 07/31/2017 Jeffrey Hill v. Ray Wallace U.S. Court of Appeals Case No: 16-4434 U.S. District Court for the Western District of Arkansas - Ft. Smith [UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Civil case - Civil rights. The district court did not err in granting defendants summary judgment on plaintiff's claims arising from his conditional admission to the University of Arkansas at Fort Smith. 171331U.pdf 07/31/2017 Thedral Hardridge v. Joe Piccinini U.S. Court of Appeals Case No: 17-1331 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Loken, Murphy and Colloton, Circuit Judges] Prisoner Case - Prisoner civil rights. The district court erred in dismissing plaintiff's excessive force claims against five named defendants as the complaint and its attachments were sufficient to allege these defendants violated plaintiff's rights; Section 1915A dismissal of four others was appropriate; the court did not err in dismissing two other defendants without prejudice based on lack of service; affirmed in part and reversed in part and remanded for further proceedings. [ July 28, 2017 ]
153499P.pdf 07/28/2017 Housing and Redevelopment v. Housing Authority Property U.S. Court of Appeals Case No: 15-3499 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Gruender, Author, with Beam and Shepherd, Circuit Judges] Civil case - Minnesota Insurance Appraisal Award. After the district court entered its order declining to grant pre-award interest on an insurance appraisal award, the Minnesota Supreme Court ruled in Poehler v. Cincinnati Insurance Company that Minnesota Statute Sec. 549.09 provides for pre-award interest on such awards, and the district court's order is reversed. Remanded for further proceedings. 153769P.pdf 07/28/2017 Donna Lancaster v. Board of Police Commissioners U.S. Court of Appeals Case No: 15-3769 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Shepherd, Author, with Smith, Chief Judge, and Benton, Circuit Judge] Civil case - Civil rights. In action alleging Kansas City police officers used excessive force resulting in plaintiff's decedent's death, the district court did not err in finding the defendant officers were not entitled to qualified immunity on plaintiff's Section 1983 claims or official immunity on her state law claims; accepting plaintiff's version of the facts as true for the purposes of determining whether the officers were entitled to immunity, the decedent and his companion did not pose an immediate threat to the officers, did not actively resist arrest and obeyed the officers' commands; it was therefore objectively unreasonable for defendants to punch decedent in the face and shoot him; the constitutional right to be free from the use of excessive force in these circumstances was beyond debate at the time of the incident; similarly, a jury could find that the officers acted with bad faith and malice and were not, therefore, entitled to official immunity under Missouri law; the Board of Police Commissioners was not entitled to immunity on plaintiff's Section 1983 claims, but it was protected by sovereign immunity on plaintiff's state law wrongful death claim. 162168P.pdf 07/28/2017 Rhonda Gann v. Nancy A. Berryhill U.S. Court of Appeals Case No: 16-2168 U.S. District Court for the Western District of Missouri - St. Joseph [PUBLISHED] [Shepherd, Author, with Smith, Chief Judge, and Benton, Circuit Judge] Civil case - Social Security. The ALJ's Residual Functional Capacity assessment and the the hypothetical question posed to the Vocational Expert did not contain all of the impairments supported by substantial evidence in the record, and the Vocational Expert's testimony was not, therefore substantial evidence to support the ALJ's decision denying benefits. Remanded for further proceedings. 162234P.pdf 07/28/2017 Planned Parenthood Arkansas v. Larry Jegley U.S. Court of Appeals Case No: 16-2234 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Gruender, Author, with Riley, Circuit Judge, and Gritzner, District Judge] Civil case - Abortion. The district court failed to make factual findings estimating the number of women burdened by the provisions of Arkansas's Abortion-Inducing Drugs Safety Act before entering a preliminary injunction preventing the enforcement of the Act, which requires medication-abortion providers to contract with a physician who has hospital admitting privileges; the preliminary injunction is vacated and the matter is remanded for further proceedings; on remand the district court should conduct fact finding concerning the number of women unduly burdened by the contract-physician requirement and determine whether the number constitutes a "large fraction" under the applicable Supreme Court case law. 162646P.pdf 07/28/2017 United States v. Patrick Harding U.S. Court of Appeals Case No: 16-2646 U.S. District Court for the District of South Dakota - Rapid City [PUBLISHED] [Colloton, Author, with Loken and Kelly, Circuit Judges] Criminal case - Criminal law. Batson challenge rejected; defendant lacked standing to challenge the district court's decision not to appoint counsel for two prosecution witnesses or to advise the witnesses of their Fifth Amendment privilege against self-incrimination; no error in denying a mistrial based on failure to disclose exculpatory evidence as the government was unaware that the witnesses would testify as they did until they gave their testimony; in any event, the testimony inculpated defendant and was disclosed during trial, so there was no Brady violation; the district court did not abuse its discretion by denying defendant's request for a continuance of the proceedings after a government witness disclosed a mental health issue during his testimony, as defendant cross-examined the witness about the issue and was able to argue the illness affected the witness's credibility without a continuance to conduct an investigation; further, the witness's testimony on the key issue - defendant's possession of the firearm - was corroborated by another witness. 162890P.pdf 07/28/2017 United States v. Joseph Evenson U.S. Court of Appeals Case No: 16-2890 and No: 16-3268 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Riley, Author, with Wollman and Loken, Circuit Judges] Criminal cases - Sentencing. Defendant withdrew his objection to career offender sentencing in exchange for a minor role reduction and thereby waived his right to challenge use of his Iowa burglary convictions for career offender purposes; the sentencing record shows the district court fully appreciated defendant's position regarding a downward variance based on his difficult childhood and mental-health problems, and the court did not abuse its discretion in weighing these arguments and giving other factors greater weight. 163009U.pdf 07/28/2017 Sylvester Barbee v. Cheri Ellis U.S. Court of Appeals Case No: 16-3009 U.S. District Court for the Eastern District of Arkansas - Pine Bluff [UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Prisoner case - Prisoner civil rights. The district court did not err in finding that even if the conditions of plaintiff's confinement amounted to a substantial risk of harm, there was no jury issue as to whether these defendants were deliberately indifferent to that risk, and the defendants were entitled to summary judgment. 163275P.pdf 07/28/2017 Catamaran Corporation v. Towncrest Pharmacy U.S. Court of Appeals Case No: 16-3275 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Shepherd, Author, with Smith, Chief Judge, and Fenner, District Judge] Civil case - Arbitration. In a case of first impression in this circuit, the court holds that a court, rather than an arbitrator, must decide whether an arbitration agreement authorized class arbitration; the question of class arbitration is substantive in nature and requires a judicial determination, and the district court erred in determining the issue was procedural; even though the question of class arbitration lies with the courts, parties to an agreement may nonetheless commit the question to an arbitrator; however, to do so, the parties' agreement must clearly and unmistakably delegate the question to the arbitrator; on remand, the district court should determine whether a contractual basis for class arbitration exists in the parties' agreements. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. 559 U.S. 662 (2010). 163317U.pdf 07/28/2017 United States v. Brannon Mackins U.S. Court of Appeals Case No: 16-3317 U.S. District Court for the Eastern District of Missouri - Cape Girardeau [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Riley, Circuit Judges] Criminal case - Sentencing. The district court did not err in imposing a six-level "official victim" enhancement under Guidelines Sec. 3A1.2(c)(1) where defendant struggled with the arresting officer and attempted to draw a weapon after the officer informed him he was being placed under arrest. 163496U.pdf 07/28/2017 Jose Santos v. Jefferson B. Session U.S. Court of Appeals Case No: 16-3496 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Petition for Review - Immigration. Petitioner has failed to raise a viable legal or constitutional challenge to the discretionary denial of cancellation based on hardship to a qualifying relative; petitioner's challenge to denial of special-rule cancellation under the Nicaraguan Adjustment and Central American Relief Act of 1997 was based on an unreviewable factual determination that petitioner's registration for benefits was untimely; other challenges were waived by petitioner's failure to meaningfully raise them in his brief. 163716U.pdf 07/28/2017 Teresa Lorenz v. The Bank of New York Mellon U.S. Court of Appeals Case No: 16-3716 U.S. District Court for the District of Minnesota - Minneapolis [UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Civil case - Breach of contract. Defendants' judgment affirmed without comment in this action arising out of the sale of plaintiff's home mortgage. [ July 27, 2017 ]
161465U.pdf 07/27/2017 United States v. Luis Cabrales Guerra U.S. Court of Appeals Case No: 16-1465 U.S. District Court for the District of Minnesota - St. Paul [UNPUBLISHED] [Per Curiam - Before Loken, Colloton and Kelly, Circuit Judges] Criminal case - Sentencing. The district court did not clearly err in finding defendant was a manager of the drug conspiracy; nor did the court err in finding defendant failed to provide truthfully all information known to him about the drug conspiracy; for these reasons the court did not clearly err in determining defendant did not meet the requirements of 18 U.S.C. Sections 3553(f)(4) and (f)(5) and was ineligible for a sentence below the statutory minimum. 162805P.pdf 07/27/2017 United States v. Shane Seizys U.S. Court of Appeals Case No: 16-2805 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Colloton, Author, with Beam and Benton, Circuit Judges] Criminal case - Criminal law. Defendant waived his right to appeal the district court's order denying his motion to withdraw his guilty plea. 163242P.pdf 07/27/2017 E.L. v. V.I.C.C. U.S. Court of Appeals Case No: 16-3242 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Benton, Author, with Colloton and Beam, Circuit Judges] Civil case - School Desegregation. Plaintiff lacked standing to sue the Voluntary Interdistrict Choice Corporation, a non-profit corporation created by a 1999 settlement agreement in the St. Louis School Desegregation Case, over a claim that a policy declaring African-American students living outside the city ineligible for enrollment in the city charter schools was a violation of plaintiff's civil rights; the decision to reject the student's enrollment was made by the charter school to which the student applied, and VICC has no administrative or supervisory authority over the charter schools; in any event, the rules and regulations for charter schools are made by the schools and the State of Missouri, and nothing VICC did caused plaintiff's injury; since plaintiff's injury is not fairly traceable to VICC, plaintiff lacks standing. 163255U.pdf 07/27/2017 Bryon Nevius v. CIR U.S. Court of Appeals Case No: 16-3255 The United States Tax Court [UNPUBLISHED] [Per Curiam - Before Benton, Bowman and Shepherd, Circuit Judges] Civil case - Federal Tax. The Tax Court properly dismissed Nevius's boilerplate tax-protestor arguments regarding his challenge to a notice of deficiency; the Commissioner's motion for an award of sanctions for a frivolous appeal is granted, and the court awards the Commissioner $5,000. 163308P.pdf 07/27/2017 United States v. Joseph Lewis U.S. Court of Appeals Case No: 16-3308 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Benton, Author, with Smith, Chief Judge, and Gruender, Circuit Judge] Criminal case - Criminal law. Defendant failed to show he had a reasonable expectation of privacy in a work area of the tattoo shop where he worked, and the police officers' entrance into the work area did not violate defendant's Fourth Amendment rights; when the officers seized defendant's handgun, which was on a shelf in his work area, they did not know he was a felon and the incriminating character of the weapon was not immediately apparent; as a result, the officer could not seize the handgun under the plain-view exception to warrantless searches; however, given that the government has a legitimate interest in officer safety and that temporary seizure of the weapons was less intrusive than a Terry frisk, the officers could temporarily seize the handgun, which was in plain view, so long as a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger; applying this standard, under these circumstances, a reasonable officer could not draw specific reasonable inferences from the facts to justify seizure of the gun, as the officers did not suspect defendant or any customer of wrongdoing and defendant did not engage in any behavior indicating he posed a threat to the officers; as a result, the government failed to carry its burden to show that the initial warrantless seizure of the handgun was permitted. 164375U.pdf 07/27/2017 Robert Cantrell v. Nancy A. Berryhill U.S. Court of Appeals Case No: 16-4375 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Civil case - Social Security. The ALJ's residual functional capacity determination was supported by substantial evidence on the record as a whole. 164513U.pdf 07/27/2017 United States v. Bryon Welton U.S. Court of Appeals Case No: 16-4513 U.S. District Court for the Western District of Missouri - Springfield [UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Kelly, Circuit Judges] Civil case - Civil Commitment. During the pendency of this appeal from an order of commitment under 18 U.S.C. Sec. 4245, the district court received a report that Welton had recovered and was ready for discharge; this moots the appeal and the case is dismissed. [ July 26, 2017 ]
162570U.pdf 07/26/2017 United States v. James Borden U.S. Court of Appeals Case No: 16-2570 U.S. District Court for the Western District of Missouri - Jefferson City [UNPUBLISHED] [Per Curiam - Before Shepherd, Murphy and Kelly, Circuit Judges] Criminal case - Criminal law and Sentencing. Anders case. Defendant waived his right to raise issues regarding Interstate Agreement on Detainers Act violations when he pleaded guilty; no error in imposing a career-offender enhancement based on defendant's Michigan armed-robbery and possession-with-intent convictions. 162599P.pdf 07/26/2017 David White v. CitiMortgage, Inc. U.S. Court of Appeals Case No: 16-2599 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Riley, Author, with Loken and Benton, Circuit Judges] Civil case - Mortgage law. The district court erred in determining this action was time barred by Mo Rev. Stat. Sec. 516.120, as the five-year period for bringing suit regarding mortgage fraud and other related claims did not commence until 2013, when the truth about the status of plaintiff's property title - that defendant had failed to transfer title back to plaintiff after a foreclosure sale and plaintiff's reinstatement payment - was capable of ascertainment as that phrase has been interpreted by Missouri's courts; the court declines to affirm on the alternative basis that plaintiff's fraud and Missouri Merchandising Practices Act claims fail on the merits; the dismissal of White's equitable claims is also reversed, as the same, incorrect statute-of-limitations analysis was the basis for the dismissal of those claims; the matter is remanded for further proceedings. 162681P.pdf 07/26/2017 Charles Odom v. Kenan Kaizer U.S. Court of Appeals Case No: 16-2681 U.S. District Court for the District of North Dakota - Bismarck [PUBLISHED] [Shepherd, Author, with Smith, Chief Judge, and Arnold, Circuit Judge] Civil case - Civil rights. For the court's prior opinions in the matter, see Odom v. Kaizer, 638 F.App'x 553 (8th Cir. 2016); Odom v. Kaizer, 417 F.App'x 611 (8th Cir. 2011). The district court did not err in finding the defendant police officer was entitled to summary judgment based on qualified immunity on plaintiff's claim that the officer violated plaintiff's civil rights by deliberately or recklessly giving partially inaccurate testimony in a probable cause hearing; probable cause for plaintiff's arrest would have existed in any event, based on plaintiff's admission he possessed marijuana and his presence in a motel room where drug paraphernalia and items containing drug residue were seized. 162767U.pdf 07/26/2017 Orlando Perez-Hernandez v. Jefferson B. Sessions U.S. Court of Appeals Case No: 16-2767 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Smith, Chief Judge, and Arnold and Shepherd, Circuit Judges] Petition for Review - Immigration. The court's jurisdiction to review denial of cancellation of removal is limited, and neither of the issues petitioner seeks to raise fall within the narrow categories of reviewable issues set out in 8 U.S.C. Sec. 1252 163377P.pdf 07/26/2017 Josephine Havlak Photographer v. Village of Twin Oaks U.S. Court of Appeals Case No: 16-3377 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Smith, Author, with Arnold and Shepherd, Circuit Judges] Civil case - Constitutional law. Defendant's permit policy concerning commercial activity in its public park was facially content neutral and the record does not indicate any governmental purpose to burden any particular message; lack of a permit exception for groups smaller than 10 people did not create a constitutional infirmity; deadlines for obtaining a permit were reasonable; fee was narrowly tailored to the actual costs the village incurs; there were many alternative locations in the St. Louis area where plaintiff could conduct her commercial photography and communicate her message; the ordinance does not leave the defendant with unbridled discretion and its permitting factors survive constitutional scrutiny. 164285U.pdf 07/26/2017 Eugene Mathison v. United States U.S. Court of Appeals Case No: 16-4285 and No: 16-4286 U.S. District Court for the District of South Dakota - Sioux Falls [UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Kelly, Circuit Judges] Prisoner case. Denial of coram nobis relief affirmed without comment. 164432U.pdf 07/26/2017 United States v. Damian Mata U.S. Court of Appeals Case No: 16-4432 U.S. District Court for the District of North Dakota - Fargo [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. The sentencing issue raised on appeal falls with the scope of defendant's valid and enforceable appeal waiver, and the appeal is dismissed. [ July 25, 2017 ]
161697P.pdf 07/25/2017 Dorian Johnson v. City of Ferguson U.S. Court of Appeals Case No: 16-1697 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Melloy, Author, with Wollman and Murphy, Circuit Judges] Civil case - Civil rights. In this action arising out of the incident which led to the shooting death of Michael Brown and the shooting of his companion Dorian Johnson in Ferguson, Missouri, the district court did not err in denying defendant's motion for summary judgment based on qualified immunity; plaintiff's complaint alleges that Ferguson police officer Darren Wilson used his police car to block Brown and plaintiff and yelled at them to "Get the F--- on the sidewalk;" these allegations are sufficient to constitute a show of authority for Fourth Amendment purposes and a seizure; further, based on the facts alleged in the complaint plaintiff has sufficiently alleged that Wilson violated his constitutional rights by using excessive force; at the time of the incident, the law was sufficiently clear to inform a reasonable officer that it was unlawful to use deadly force against nonviolent, suspected misdemeanants who were not fleeing or resisting arrest, posed little or no threat to the officer or the public, did not receive commands to stop and whose only action was to stop walking when the officer's squad car blocked their path; plaintiff has sufficiently alleged supervisory liability by alleging the Chief of Police had notice of unconstitutional acts by his officers and failed to review offense reports and hold officers responsible for excessive force; the City's appeal on municipal liability is dismissed as it not inextricable intertwined with the police officer's and Police Chief's appeal. Judge Wollman, dissenting on the issue of whether Johnson was seized within the meaning of the Fourth Amendment. 163264P.pdf 07/25/2017 Macomb County Employees v. Stratasys Ltd. U.S. Court of Appeals Case No: 16-3264 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Benton, Author, with Loken and Murphy, Circuit Judges] Civil case - Securities Fraud. In this action by shareholders alleging defendant made knowingly false promotional statements, the district court did not err in finding the statements the shareholders relied on were so vague and such obvious hyperbole that no reasonable investor would rely on them; nor did the shareholders allege the necessary scienter, and the district court did not err in dismissing the action. 163382P.pdf 07/25/2017 Kenneth Castleberry v. USAA U.S. Court of Appeals Case No: 16-3382 and No: 16-3482 U.S. District Court for the Western District of Arkansas - Ft. Smith [PUBLISHED] [Smith, Author, with Benton and Shepherd, Circuit Judges] Civil case - Civil Procedure. The district court erred when it found appellants' counsel violated Rule 11 by dismissing this putative class action for the allegedly improper purpose of seeking a more favorable forum and avoiding an adverse decision; counsel did not violate Fed. R. Civ. P. 41(a)(1) in stipulating to a dismissal of the action and counsel had at least a colorable legal argument that the district court's approval was not needed under Rule 23(e) to voluntarily dismiss the claims of the putative class; as there was no Rule 11 violation, the court erred in reprimanding counsel as a sanction for the violation. Reversed and remanded for further proceedings. 163389P.pdf 07/25/2017 Kirk Vester v. Daniel Hallock U.S. Court of Appeals Case No: 16-3389 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Gruender, Author, with Wollman and Arnold, Circuit Judges] Civil case - Civil rights. In action alleging defendant Hallock used excessive force - an arm-bar technique - in effecting plaintiff's arrest, the district court did not err in granting Hallock summary judgment based on qualified immunity as based on the circumstances Hallock confronted on arriving on the scene, his use of the arm-bar fell short of the level of force required to constitute a constitutional violation. 163490P.pdf 07/25/2017 James Gretter v. Gretter Autoland, Inc. U.S. Court of Appeals Case No: 16-3490 U.S. District Court for the Southern District of Iowa - Davenport [PUBLISHED] [Arnold, Author, with Wollman and Gruender, Circuit Judges] Civil case - Bankruptcy. Appeal was moot as the court could no longer grant any effectual relief to a prevailing part due a change in circumstances regarding the underlying sales agreement. 163524U.pdf 07/25/2017 United States v. Jennifer Gresham U.S. Court of Appeals Case No: 16-3524 U.S. District Court for the Northern District of Iowa - Cedar Rapids [UNPUBLISHED] [Per Curiam - Before Wollman, Arnold and Gruender, Circuit Judges] Criminal case - Sentencing. The district court did not abuse its discretion by imposing a special condition in defendant's supervised release requiring her to live in the District. 163525U.pdf 07/25/2017 United States v. Mario Murillo-Mora U.S. Court of Appeals Case No: 16-3525 and No: 16-3570 and No: 16-3663 U.S. District Court for the Northern District of Iowa, Waterloo [UNPUBLISHED] [Per Curiam - Before Wollman, Arnold and Gruender, Circuit Judges] Criminal cases - Sentencing. The district court did not abuse its discretion by denying defendant Murillo-Mora's motion to compel the government to file a substantial-assistance motion because his motion to compel failed to comply with Local Rule 7(d); the district court did err in sentencing defendant Murillo-Mora without giving him his right of allocution, and his sentence is vacated and his case remanded for resentencing; defendant Gonzalez-Torres's sentence was not substantively unreasonable, and the district court did not abuse its discretion by considering his post-arrest drug dealing in determining sentence; the district court's comments concerning possible future amendments to the guidelines and what effect they might have on defendant Richardson's sentence are irrelevant and Richardson's sentence - which he does not contest - is affirmed. 163555P.pdf 07/25/2017 Matthew Akins v. Daniel Knight U.S. Court of Appeals Case No: 16-3555 U.S. District Court for the Western District of Missouri - Jefferson City [PUBLISHED] [Per Curiam - Before Loken, Murphy and Melloy, Circuit Judges] Civil case - Civil rights. The district court did not abuse her discretion in denying plaintiff's recusal motion, and her action in ruling on the motion herself did not violate the provisions of 28 U.S.C. Sec. 144; the district court's orders granting certain defendants' motions to dismiss and denying plaintiff's motion for partial summary judgment are affirmed without comment. 163581U.pdf 07/25/2017 United States v. Zachary Love U.S. Court of Appeals Case No: 16-3581 U.S. District Court for the District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant waived any claim of error with respect to drug quantity by withdrawing his objection to the calculation at sentencing; the district court did not plainly err in calculating defendant's criminal history score; defendant's below-Guidelines-range sentence was not substantively unreasonable. 163612P.pdf 07/25/2017 United States v. Cowan Godfrey U.S. Court of Appeals Case No: 16-3612 U.S. District Court for the Northern District of Iowa - Dubuque [PUBLISHED] [Gruender, Author, with Wollman and Shepherd, Circuit Judges] Criminal case - Sentencing. The court's comments at sentencing did not show that it had improperly shifted the burden of proving self-defense to the defendant; the district court did not clearly err in denying defendant an acceptance-of-responsibility reduction based on his false denial of his relevant conduct; the record showed the district court amply considered the sentencing guidelines in determining sentence; the district court provided an adequate explanation of its sentencing decision; the district court's decision to impose an upward variance was not an abuse of its discretion, and defendant's 120-month sentence was not substantively unreasonable; where the district court found defendant had a history of abusing alcohol, the imposition of a special condition prohibiting defendant from using alcohol or entering bars was not an abuse of the court's discretion. 163882P.pdf 07/25/2017 United States v. Victor Maldonado U.S. Court of Appeals Case No: 16-3882 U.S. District Court for the Northern District of Iowa - Sioux City [PUBLISHED] [Gruender, Author, with Wollman and Shepherd, Circuit Judges] Criminal case - Sentencing. The district court did not err in applying an enhancement under Guidelines Sec. 2K2.1(a)(2) based on its determination that defendant had two prior controlled substance convictions; defendant possessed the firearm in connection with another offense, and the court did not err in imposing a four-level enhancement under Guidelines Sec. 2K2.1(b)(6) - see U.S. v. Walker, 771 F.3d 449 (8th Cir. 2014) 163918U.pdf 07/25/2017 Lydia Martin v. Arkansas Department of Health U.S. Court of Appeals Case No: 16-3918 U.S. District Court for the Eastern District of Arkansas - Little Rock [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and Gruender, Circuit Judges] Civil case - Employment discrimination. Defendant's judgment affirmed without comment. 163946P.pdf 07/25/2017 United States v. Phillip Bradley Sadler U.S. Court of Appeals Case No: 16-3946 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Per Curiam - Before Smith, Chief Judge, Colloton and Kelly, Circuit Judges] Criminal case - Sentencing. Defendant's above-guidelines sentence was based on his extensive and violent criminal history, the failure of past sentences to deter his criminal conduct and the need to protect the public; the court's passing remark that defendant was exactly the type of defendant Congress had in mind when it passed the Armed Career Criminal Act did not undermine the court's recognition - on the record - that defendant did not qualify as an armed career criminal under Johnson. 164297U.pdf 07/25/2017 United States v. Theresa Morales U.S. Court of Appeals Case No: 16-4297 U.S. District Court for the Southern District of Iowa - Davenport [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant's sentence was not substantively unreasonable; the record supported the district court's decision to impose a role enhancement rather than the role reduction defendant sought. 164336U.pdf 07/25/2017 United States v. Jaime Guerrero-Robledo U.S. Court of Appeals Case No: 16-4336 U.S. District Court for the District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. The appeal waiver in the case is valid and applicable to defendant's argument that his sentence is unreasonable; the court will enforce the waiver and dismiss the appeal. 164533U.pdf 07/25/2017 United States v. Byron Gorman U.S. Court of Appeals Case No: 16-4533 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Gruender, Bowman and Shepherd, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant's challenge to the reasonableness of his sentence falls within the scope of his appeal waiver, and the appeal is dismissed. 164572U.pdf 07/25/2017 United States v. Allen Gailliot U.S. Court of Appeals Case No: 16-4572 U.S. District Court for the Western District of Arkansas - Fayetteville [UNPUBLISHED] [Per Curiam - Sentencing. Anders case. Defendant's below-guidelines sentence is not substantively unreasonable. [ July 24, 2017 ]
153885P.pdf 07/24/2017 Nathan C. McGuire v. ISD No. 833 U.S. Court of Appeals Case No: 15-3885 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Kelly, Author, with Loken and Colloton, Circuit Judges] Civil case - Civil rights. A 2013 amendment to Minn. Stat. Section 122A.33 did not give plaintiff a protected property interest in the renewal of his coaching contract because it did not sufficiently limit the School Board's discretion; as a result, plaintiff's procedural due process claims were properly dismissed. Judge Colloton, concurring in the judgment. 161554U.pdf 07/24/2017 Joaquin Cervantes v. United States U.S. Court of Appeals Case No: 16-1554 U.S. District Court for the District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Wollman, Arnold and Gruender, Circuit Judges] Criminal case - Criminal law. The residual clause of Guidelines Sec. 4B1.2(a) is constitutional under Beckles and encompasses defendant's predicate convictions; Beckles thus precludes defendant's constitutional challenge to his sentence and the district court did not err in denying his motion to vacate his sentence. 161576P.pdf 07/24/2017 American Chemicals & Equipment v. Principal Management Corp. U.S. Court of Appeals Case No: 16-1576 and No: 16-1580 and No: 16-1712 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Loken, Author, with Riley and Benton, Circuit Judges] Civil case - Investment Company Act of 1940. In action against the investment adviser retained by the mutual funds in which plaintiff had invested, alleging the adviser had breached its statutory fiduciary duty to the funds by charging excessive adviser fees to the funds, thereby indirectly reducing the net asset values of the funds, plaintiff lacked a cause of action under Section 36(b) of the Investment Company Act of 1940. 162153U.pdf 07/24/2017 Dennis Lagares, Jr. v. Aaron Koeppen U.S. Court of Appeals Case No: 16-2153 U.S. District Court for the Western District of Missouri - Springfield [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and Gruender, Circuit Judges] Civil case. Dismissal of complaint seeking to overturn a state court child custody order affirmed without comment. 162196U.pdf 07/24/2017 Gregory Lewis v. United States U.S. Court of Appeals Case No: 16-2196 U.S. District Court for the Western District of Arkansas - Texarkana [UNPUBLISHED] [Per Curiam - Before Gruender, Arnold and Kelly, Circuit Judges] Prisoner case - Habeas. Anders case. The district court granted a certificate of appealability on the question of whether counsel was ineffective for failing to assert that Lewis's 2006 Arkansas conviction for engaging in a continuing criminal gang did not qualify as a crime of violence; the crime qualified as a crime of violence under Guidelines Sec. 4B1.2(a)(2), and counsel was not ineffective for failing to raise the argument. 162229P.pdf 07/24/2017 Michele Donaldson v. National Union Fire Insurance U.S. Court of Appeals Case No: 16-2229 U.S. District Court for the Eastern District of Arkansas - Batesville [PUBLISHED] [Kelly, Author, with Colloton and Gruender, Circuit Judges] Civil case - Insurance. While the provisions of the coverage exclusion provision in question were susceptible to multiple interpretations, the plan administrator's interpretation of the provision to deny coverage was not unreasonable or an abuse of discretion. 162436P.pdf 07/24/2017 United States v. Ryan William McMillan U.S. Court of Appeals Case No: 16-2436 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Murphy, Author, with Gruender and Kelly, Circuit Judges] Criminal case - Sentencing. The district court erred in finding defendant's conviction for third degree riot for the benefit of a gang in violation of Minn. Stat. Sec. 609.71, Subd. 3 (2009) was a crime of violence for sentencing purposes because the offense does not automatically qualify as a crime of violence under the force clause of Guidelines Sec. 4B1.2(a)(1) as the statute encompasses crimes against property; the offense may, however, qualify under the 2015 version of the residual clause of Guidelines Sec. 4B1.2(a) which was in effect at the time of sentencing; the matter is remanded, therefore, to permit the district court to determine whether the conviction qualified under the residual clause and, if so, whether the district court should consider the proposed amendment to the section which was pending at the time. Judge Gruender, dissenting. 162538P.pdf 07/24/2017 Gloria Bunch v. University of AR Board etc. U.S. Court of Appeals Case No: 16-2538 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Riley, Author, with Loken and Benton, Circuit Judges] Civil case - Employment discrimination. Plaintiff's ADA, ADEA, Section 1981 and Section 1983 claims were barred under the doctrine of sovereign immunity; assuming plaintiff can meet her burden of establishing a prima face case of race and gender discrimination under Title VII, defendant established a legitimate, nondiscriminatory ground for terminating her - failure to report for work and the need to fill her position - which plaintiff failed to show was a pretext for discrimination; the district court did not err in rejecting plaintiff's retaliation claim. 163094U.pdf 07/24/2017 United States v. Kelly James Rayson U.S. Court of Appeals Case No: 16-3094 U.S. District Court for the District of South Dakota - Sioux Falls [UNPUBLISHED] [Per Curiam - Before Wollman and Loken, Circuit Judges, and Rossiter, District Judge] Criminal case - Criminal law and sentencing. The district court did not err in revoking defendant's supervised release based on his admission that he had violated the provisions of his supervision; sentence imposed upon the revocation of defendant's supervised release was not an abuse of the district court's discretion. 163670U.pdf 07/24/2017 United States v. Michael Knight U.S. Court of Appeals Case No: 16-3670 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. Defendant knowingly and voluntarily waived his right to appeal his sentence, and the appeal is dismissed. 163976P.pdf 07/24/2017 United States v. Steven Horton U.S. Court of Appeals Case No: 16-3976 and No: 16-3982 U.S. District Court for the Southern District of Iowa - Council Bluffs [PUBLISHED] [Smith, Author, with Shepherd, Circuit Judge, and Fenner, District Judge] Criminal case - Criminal law. The district court erred in granting defendants' motion to suppress evidence obtained through a warrant authorizing a search of their computers through the use of a Network Investigative Technique (NIT); the NIT warrant issued in this case was issued in violation of Fed. R. Crim. P. 41 and exceeded the magistrate judge's jurisdiction because a magistrate judge in one jurisdiction (here, the Eastern District of Virginia) cannot authorize the search of the content of a computer in another jurisdiction (here, the Southern District of Iowa) and none of the exceptions to Fed. R. Crim. P. Rule 41 suggested by the government, including the tracking-device exception in Rule 41(b)(4), apply here; while the warrant was void ab initio, the Leon exception can apply to such situations and Leon should be applied here as there was no bad faith or reckless disregard for the truth; further the marginal benefit of deterring such warrants would be outweighed by the heavy costs to the justice system of such a ruling. Judge Fenner, concurring in part and dissenting in part. 164507U.pdf 07/24/2017 United States v. Gary Sanders U.S. Court of Appeals Case No: 16-4507 U.S. District Court for the Eastern District of Arkansas - Little Rock [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. The government did not breach the plea agreement in the matter; the plea agreement contained a valid and enforceable appeal waiver; as defendant's issue falls within the scope of the waiver, the appeal is dismissed. [ July 21, 2017 ]
162985P.pdf 07/21/2017 United States v. Emmanuel Chaplain U.S. Court of Appeals Case No: 16-2985 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Beam, Author, with Riley and Shepherd, Circuit Judges] Criminal case - Criminal law. The evidence was sufficient to support defendant's Hobbs Act convictions as it showed his actions in robbing various businesses obstructed, delayed or affected commerce; defendant's brief fails to address his assertion that the evidence was insufficient to support his firearms convictions and the issue is abandoned; similarly, defendant failed to argue his contention that the Hobbs Act instruction was erroneous, and this issue is abandoned. 163092P.pdf 07/21/2017 United States v. Frank White U.S. Court of Appeals Case No: 16-3092 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Riley, Author, with Wollman and Riley, Circuit Judges] Criminal case - Sentencing. Any error in applying a two-level enhancement under Guidelines Sec. 2B3.1(b)(5) for car-jacking was harmless because the district court provided an alternative basis for the sentence it imposed; the district court adequately explained the basis for its sentencing decision, pointing to the dangerousness of the criminal conduct, defendant's extensive criminal history and the risk defendant posed to the public in the future; sentence was substantively reasonable, as the court appropriately weighed the 3553(a) factors, including those presented by defendant. 163197U.pdf 07/21/2017 Olga Reyes-Bercian v. Jefferson B. Sessions, III U.S. Court of Appeals Case No: 16-3197 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton, and Gruender, Circuit Judges] Petition for Review - Immigration. BIA order dismissing petitioner's appeal from an IJ order denying her application for withholding of removal and relief under the Convention Against Torture affirmed without comment. 163294P.pdf 07/21/2017 United States v. Craig Giboney U.S. Court of Appeals Case No: 16-3294 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Shepherd, Author, with Smith, Chief Judge, and Arnold, Circuit Judge] Criminal case - Criminal law. The district court did not err in determining defendant's pre-arrest statements were admissible as, considering the totality of the circumstances, the interview was not custodial, and defendant did not have to be advised of his Miranda rights; the court did not err in determining defendant's post-arrest statements were admissible as he did not clearly and unequivocally request the assistance of counsel before he answered the police officer's questions and admitted committing the offense. 163552U.pdf 07/21/2017 Vincent Angaya v. Jefferson B. Sessions, III U.S. Court of Appeals Case No: 16-3552 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Loken, Murphy and Melloy, Circuit Judges] Petition for Review - Immigration. Petitioner was removed in absentia and moved to reopen his removal proceedings under 8 U.S.C. Sec. 1229a(b)(5)(C); the IJ and BIA did not err in denying the motion as petitioner failed to meet his burden of establishing exceptional circumstances excusing his failure to appear at his removal hearing. 164049U.pdf 07/21/2017 Yuchai Chen v. Jefferson B. Sessions, III U.S. Court of Appeals Case No: 16-4049 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and Gruender, Circuit Judges] Petition for Review - Immigration. Substantial evidence supported the agency's determination that petitioner did not qualify for asylum as she did not establish either past persecution or an objectively reasonable, well-founded fear of future persecution. 164402U.pdf 07/21/2017 United States v. Robert Daniels U.S. Court of Appeals Case No: 16-4402 U.S. District Court for the Eastern District of Missouri - St. Louis [UNPUBLISHED] [Per Curiam - Before Loken, Murphy and Melloy, Circuit Judges] Criminal case - Sentencing. Defendant's prior conviction for assault of a police officer in the second degree in violation of Mo. Rev. Stat. Section 576.082 (2008) was a crime of violence for sentencing purposes; in making this determination, the court did not clearly err in determining defendant was convicted of subsection 1(1) of the second degree statute based on the state prosecutor's factual recitation at the plea hearing; the recitation sufficiently tracked the language of the statute. 171634U.pdf 07/21/2017 United States v. Kevin Herring U.S. Court of Appeals Case No: 17-1634 U.S. District Court for the Northern District of Iowa - Cedar Rapids [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. The sentence imposed upon the revocation of defendant's supervised release was not an abuse of the district court's discretion. [ July 20, 2017 ]
161448U.pdf 07/20/2017 United States v. Isaac Maxie U.S. Court of Appeals Case No: 16-1448 U.S. District Court for the District of Minnesota - St. Paul [UNPUBLISHED] [Per Curiam - Before Loken, Colloton and Kelly, Circuit Judges] Criminal case - Criminal law. Defendant's release from prison mooted his appeal of the district court's order revoking his supervised release and sentencing him to eight months in prison without any further supervision. 162756P.pdf 07/20/2017 Marcellino Pena v. Bob Kindler U.S. Court of Appeals Case No: 16-2756 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Melloy, Author, with Wollman and Shepherd, Circuit Judges] Civil case - Civil rights. Regardless of whether plaintiff, an assistant jail administrator, held a constitutionally protected interest in his employment, the process surrounding his termination satisfied the due process clause; plaintiff was not entitled to the procedural protections of Minnesota's Peace Officer Discipline Procedures Act as he was not charged with the duties of general law enforcement and the County never utilized his services for those purposes. 163391P.pdf 07/20/2017 United States v. Johnny Madison U.S. Court of Appeals Case No: 16-3391 U.S. District Court for the Northern District of Iowa - Sioux City [PUBLISHED] [Riley, Author, with Beam and Shepherd, Circuit Judges] Criminal case - Sentencing. The district court did not err in determining the amount and purity of the methamphetamine involved in defendant's offense; the court did not clearly err in determining at sentencing that defendant possessed a firearm in connection with his drug offense; defendant's below-guidelines sentence was substantively reasonable. 163539P.pdf 07/20/2017 PPKM v. Dr. Randall Williams U.S. Court of Appeals Case No: 16-3539 U.S. District Court for the Western District of Missouri - Jefferson City [PUBLISHED] Kelly, Author, with Gruender and Murphy, Circuit Judges] Civil case - Attorneys' fees. Plaintiff obtained a permanent injunction against the Missouri Department of Health and Senior Services after the agency attempted to revoke plaintiff's license to provide abortion services, but the license expired while the matter was on appeal; held, plaintiff was a prevailing party in the underlying action and was entitled to an award of attorneys' fees; plaintiff's recovery in the case was not so technical as to render the award an abuse of discretion. 164140P.pdf 07/20/2017 United States v. Phillip Fields U.S. Court of Appeals Case No: 16-4140 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Melloy, Author, with Loken and Murphy, Circuit Judges] Criminal case - Sentencing. Defendant's conviction for second-degree assault under Missouri Revised Section 560.060.1(3) was not a crime of violence because the section also encompasses reckless driving - see United States v. Ossana, 638 F.3d 895 (8th Cir. 2011); Ossana is still dispositive of the case and the Supreme Court's decision in Voisine v. United States, 136 S.Ct. 2272 (2016) and this court's decision in United States v. Fogg, 836 FD.3d 951 (2016) do not compel a different result. Reversed and remanded for resentecing. Judge Loken, dissenting. 164525U.pdf 07/20/2017 United States v. Brian Swartz U.S. Court of Appeals Case No: 16-4525 U.S. District Court for the Northern District of Iowa, Waterloo [UNPUBLISHED] [Per Curiam - Before Wollman, Loken and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. The district court did not abuse its discretion by refusing to grant a mitigating-role reduction or a further downward departure or variance. [ July 19, 2017 ]
162258P.pdf 07/19/2017 United States v. Kevin Guardado U.S. Court of Appeals Case No: 16-2258 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Colloton, Author, with Benton, Circuit Judge, and Gerrard, District Judge] Criminal case - Criminal law. Defendant's plea agreement did not specify the quantity of drugs that would be used to calculate his guidelines range and preserved each party's right to present evidence on the issue; as a a result, the government did not breach the plea agreement by arguing defendant was responsible for a greater quantity of drugs; argument that the plea was not voluntary rejected. 162918P.pdf 07/19/2017 United States v. Dante Glinn U.S. Court of Appeals Case No: 16-2918 U.S. District Court for the Northern District of Iowa - Cedar Rapids [PUBLISHED] [Beam, Author, with Riley, Circuit Judge, and Rossiter, District Judge] Criminal case - Criminal law and sentencing. No error in refusing to give defendant's proposed instruction on intent as this circuit has held that proof of the act of stealing does not require proof of a defendant's specific intent to permanently deprive; district court correctly determined defendant's base offense level based on the fact that he was a prohibited person, a drug user, at the time of this firearms offense; no error in imposing a two-level increase under Guidelines Sec. 2K2.1(b)(4)(A); no error in imposing a special condition of supervised release regarding alcohol use and defendant's presence in bars or taverns given his drug use and the dangers of cross addiction. [ July 18, 2017 ]
153352P.pdf 07/18/2017 Korley Sears v. Rhett Sears U.S. Court of Appeals Case No: 15-3352 U.S. District Court for the District of Nebraska - Lincoln [PUBLISHED] [Colloton, Author, with Beam and Gruender, Circuit Judges] Civil case - Bankruptcy. The Bankruptcy Court's order allowing proofs of claims totaling over $5.2 million is affirmed as none of Korley Sears' contractual defenses have merit; the Bankruptcy Court did not err in allowing the claims despite a potential shortcoming in the itemization of interest. 153417P.pdf 07/18/2017 Rhett Sears v. Korley Sears U.S. Court of Appeals Case No: 15-3417 U.S. District Court for the District of Nebraska - Lincoln [PUBLISHED] [Colloton, Author, with Beam and Gruender, Circuit Judges] Civil case - Bankruptcy. Order refusing to grant Chapter 11 debtor a discharge from his debts is affirmed. [ July 17, 2017 ]
163852U.pdf 07/17/2017 Cheryl Kelly v. Four B. Corporation U.S. Court of Appeals Case No: 16-3852 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Benton, Bowman and Shepherd, Circuit Judges] Civil case - Torts. There was genuine issue of material fact in this slip-and-fall case as the evidence, including video surveillance footage, would permit a fact finder to conclude that one or both defendants were negligent under Missouri law, and the district court erred in granting defendants summary judgment; reversed and remanded for further proceedings. 164120U.pdf 07/17/2017 Douglas Nixon v. Brent Manning's Qlty Preowned U.S. Court of Appeals Case No: 16-4120 U.S. District Court for the Western District of Arkansas - Fayetteville [UNPUBLISHED] [Per Curiam - Before Loken, Arnold and Murphy, Circuit Judges] Civil case. Defendants' summary judgment affirmed without comment. 164463U.pdf 07/17/2017 United States v. Olin Millen U.S. Court of Appeals Case No: 16-4463 U.S. District Court for the Western District of Arkansas - Fayetteville [UNPUBLISHED] [Per Curiam - Before Loken, Arnold and Murphy, Circuit Judges] Criminal case - Sentencing. Anders case. Any error in assessment of criminal history points was harmless as it did not affect defendant's criminal history category or his guidelines range; the sentence imposed was not an abuse of the district court's discretion. [ July 14, 2017 ]
152103P.pdf 07/14/2017 Lenny M. Chapman v. Missouri Basin Well Service U.S. Court of Appeals Case No: 15-2103 and No: 15-2396 U.S. District Court for the District of North Dakota - Bismarck [PUBLISHED] [Kelly, Author, with Murphy, Circuit Judge, and Montgomery, District Judge] Civil Case - diversity. The district court's application of Oklahoma law rather the North Dakota law did not violate a fundamental public policy of North Dakota under N.D. Cent. Code sec. 22-01-10, because the relevant contract was not a motor carrier transportation contract. The district court did not clearly err in granting the Chapmans' Rule 59(e) motion by clarifying that the language "all amounts that have been paid or will be paid" included the amounts paid by Hiland and Hiland's insurers. The district court did not err in rejecting Missouri Basin's Rule 59(e) motion, as the motion was an impermissible attempt to raise new arguments that could have been raised earlier and, in any event, the rulings were not inconsistent. Thus, the district court did not abuse its discretion in denying the Rule 59(e) motions. The district court orders are affirmed. 161918P.pdf 07/14/2017 I.Z.M. v. Rosemount-Apple Valley-Eagan U.S. Court of Appeals Case No: 16-1918 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Loken, Author, with Colloton and Kelly, Circuit Judges] Civil Case - Individuals with Disabilities Education Act. On appeal from the district court's conclusion that the District took steps to provide I.Z.M. accessible instructional materials in a timely manner, that I.Z.M. received an educational benefit from the services provided, and that to the extent the District imperfectly complied with IEP requirements, the IDEA does not require perfection, the district court did not err in applying an incorrect standard. State law did not impose a heightened standard to guarantee that a blind student will use Braille instruction provided to attain a specific level of proficiency, only that the instruction is sufficient to enable attainment of a specified level of proficiency; Department of Education regulations do not create a heightened "strict" compliance standard; the District took all reasonable steps to provide instructional materials in accessible formats in a timely manner. Because the district court concluded I.Z.M. failed to present evidence of bad faith or gross misjudgment, the dismissal of the non-IDEA claims is affirmed. 164390U.pdf 07/14/2017 United States v. Francisco Pec-Son U.S. Court of Appeals Case No: 16-4390 U.S. District Court for the Northern District of Iowa, Waterloo [UNPUBLISHED] [Per Curiam. Before Loken, Arnold, and Murphy, Circuit Judges] Criminal Case - Anders. District court did not commit plain procedural error by failing to explain adequately the reasons for the sentence. [ July 13, 2017 ]
161137P.pdf 07/13/2017 Stine Seed Company v. A & W Agribusiness, LLC U.S. Court of Appeals Case No: 16-1137 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Kelly, Author, with Loken and Colloton, Circuit Judges] Civil Case - diversity. The district court's finding that Williams did not sign relevant documents was not clear error, nor is the finding that Williams did not ratify the Note by his words or actions; there was no legal error in the conclusion that Williams was not liable to Stine Seed under an implied-in-fact contract claim, as he was unaware of the seed purchase and could not have manifested assent to terms of which he was unaware; the district court did not err in concluding there was a lack of sufficient evidence showing unjust enrichment. The district court erred in finding Alexander had no authority to bind A&W, because it should have found Alexander had apparent authority to do so, as A&W admitted to such apparent authority in discovery responses. Judgment in favor of A&W on Stine Seed's claim for breach of contract is reversed. In all other respects, the judgment is affirmed. 161293U.pdf 07/13/2017 United States v. Shurron Roberts U.S. Court of Appeals Case No: 16-1293 U.S. District Court for the Eastern District of Missouri - St. Louis [UNPUBLISHED] [Per Curiam. Before Benton, Bowman, and Shepherd, Circuit Judges] Criminal Case - Anders. Challenge to career-offender and armed-career-criminal enhancements are reviewed for plain error because Roberts did not object in the district court, and no plain error is found. Roberts's argument that district court relied on ACCA's residual clause in concluding his assault conviction qualified as an ACCA predicate is without merit. 163288U.pdf 07/13/2017 Marco Alavez-Narvaez v. Jefferson B. Sessions U.S. Court of Appeals Case No: 16-3288 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam. Before Wollman, Colloton, and Gruender, Circuit Judges] Petition for Review - immigration. This court lacks jurisdiction to review the timeliness of the asylum application or the unexhausted argument claiming protected status based on his membership in a particular social group. Alvarez did not establish a nexus between his feared harm an any protected ground. 163677U.pdf 07/13/2017 United States v. Dale White U.S. Court of Appeals Case No: 16-3677 U.S. District Court for the Northern District of Iowa, Waterloo [UNPUBLISHED] [Per Curiam. Before Wollman, Gruender, and Shepherd, Circuit Judges] Criminal Case - sentence. The district court did not plainly err in applying a based offense level of 20 under Guidelines section 2K2.1(a)(4)(B) because White was a prohibited person and he possessed a large-capacity magazine for the Magtech rifle. Any error committed by the district court in determining that the large-capacity magazine and the Magtech rifle were in close proximity for purposes of section 2K2.1(a)(4)(B) was neither clear nor obvious under the law at the time of the court's ruling. The district court did not clearly err in finding that White had constructive possession of 19 firearms recovered from the common area of the residence, which was his primary residence and to which he had unrestricted access. [ July 12, 2017 ]
153140P.pdf 07/12/2017 United States v. Bartolomea Joseph Montanari U.S. Court of Appeals Case No: 15-3140 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Colloton, Author, with Loken and Smith, Circuit Judges] Criminal Case - conviction and sentence. On appeal from conviction for tax evasion, mail fraud an wire fraud, district court did not abuse its discretion in sustaining objections to his cross- examination of prosecution witness on the ground that it was beyond the scope of direct examination and Montanari did not demonstrate any error warranted a new trial. As to sentencing issues, the district court did not clearly err in determining the base offense level based on a tax loss of greater than $1,000,000; and the district court did not clearly err assessing an obstruction of justice enhancement, as the false statements were distinct from the offense of conviction, his conduct significantly obstructed the government's investigation or prosecution and the obstruction were not too remote from any potential criminal investigation. The government concedes it failed to establish by sufficient evidence that he failed to pay taxes of money he obtained through a fraudulent transaction and the case is remanded to recalculate the advisory guidelines range without the two-level specific offense characteristic under Guidelines sec. 2T1.1(b)(1). 162753U.pdf 07/12/2017 United States v. Wesley Oatman U.S. Court of Appeals Case No: 16-2753 U.S. District Court for the District of Minnesota - St. Paul [UNPUBLISHED] [Per Curiam. Before Chief Judge Smith, Arnold and Shepherd, Circuit Judges] Criminal Case - criminal law. Oatman challenges the Sentencing Commission's promulgation of Guidelines section 4B1.2, which includes both state and federal convictions as qualifying offenses to the career offender status, as beyond its mandate because it conflicts with the race- neutral statutory directive of 28 U.S.C. sec. 994(d). Oatman raises this argument for the first time on appeal, and has not shown the district court plainly erred in applying the Guidelines consistent with other federal courts. 163307P.pdf 07/12/2017 Union Pacific Railroad Co. v. STB U.S. Court of Appeals Case No: 16-3307 and No: 16-3504 and No: 16-3512 and No: 16-3513 and No: 16-3514 Petition for Review of an Order of the Surface Transportation Board [PUBLISHED] [Smith, Chief Judge, Author, with Benton and Shepherd, Circuit Judges] Petition for Review - Surface Transportation Board's Rule. After section 207 of the Passenger Rail Investment and Improvement Act of 2008, assigned to the Federal Railway Administration to address on-time performance metrics, was declared unconstitutional, the Surface Transportation Board promulgated a Rule defining on-time performance under section 213(a) to fill the gap created by the invalidation of section 207. In challenge to the Board's rule, the gap- filling rationale does not allow one agency to assume authority expressly delegated to another. Congress did not give the FRA and Board separate authority to develop two potentially conflicting on-time performance rules; section 207 provides source for on-time performance definition; thus Board's interpretation of on-time performance definition in section 213(a) is rejected. 163583U.pdf 07/12/2017 United States v. Thomas Brown U.S. Court of Appeals Case No: 16-3583 U.S. District Court for the Western District of Arkansas - Fayetteville [UNPUBLISHED] [Per Curiam. Before Wollman, Colloton, and Gruender, Circuit Judges] Petition for Coram Nobis. Brown cannot relitigate argument he is entitled to relief under the Religious Freedom Restoration Act, a claim this court rejected on direct appeal and in habeas proceedings. 163814U.pdf 07/12/2017 Marvin Sundquist v. State of Nebraska U.S. Court of Appeals Case No: 16-3814 U.S. District Court for the District of Nebraska - Omaha [UNPUBLISHED] [Per Curiam. Before Wollman, Colloton, and Gruender, Circuit Judges] Civil Case - civil rights. Summary judgment is affirmed without comment. District court did not abuse its discretion in denying motion to amend. 164184P.pdf 07/12/2017 United States v. Juan Alatorre U.S. Court of Appeals Case No: 16-4184 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Shepherd, Author, with Riley and Beam, Circuit Judges] Criminal Case - suppression. A protective sweep of the inside of the house while defendant was safely secured outside on the porch was reasonable under the circumstances, lasted only two minutes, and was confined to places large enough to hide a person. The protective sweep of the residence passed constitutional muster and the fruits of that valid sweep are untainted. The district court did not clearly err in denying motion to suppress. 164430U.pdf 07/12/2017 United States v. Randel Branscum U.S. Court of Appeals Case No: 16-4430 U.S. District Court for the Eastern District of Arkansas - Little Rock [UNPUBLISHED] [Per Curiam. Before Benton, Bowman, and Shepherd, Circuit Judges] Criminal Case - Anders. No non-frivolous issues for appeal are present. Ineffective assistance of counsel claim will not be addressed on direct appeal. 171184U.pdf 07/12/2017 United States v. Mario Johnson U.S. Court of Appeals Case No: 17-1184 U.S. District Court for the Eastern District of Missouri - Cape Girardeau [UNPUBLISHED] [Per Curiam. Before Wollman, Colloton, and Gruender, Circuit Judges] Criminal Case - revocation of supervised release. The district court did not plainly err in imposing a special condition of supervised release. [ July 11, 2017 ]
152027P.pdf 07/11/2017 United States v. Ronald White, Jr. U.S. Court of Appeals Case No: 15-2027 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Shepherd, Author, for the Court En Banc] Criminal case - Criminal law. For the panel opinion in the matter, see United States v. White, 824 F.3d 783 (8th Cir. 2016). The court overrules United States v. Barr, 32 F.3d 1320 (8th Cir. 1994), which held that where the characteristics of the weapon itself render it 'quasi-suspect,' Staples v. United States, 511 U.S. 600 (1994)does not require proof that the defendant knew of the specific characteristics of the weapon which make it subject to the National Firearms Act, 26 U.S.C. Section 5845(a), (f); held, in all cases in which a defendant is prosecuted under the National Firearms Act for unlawful possession of an unregistered firearm, the government must prove beyond a reasonable doubt that the defendant knew of the physical characteristics of the weapon bringing the weapon within the ambit of the Act; here, the jury instructions failed to adequately convey the government's burden under Staples, and defendant's conviction for possession of an unregistered firearm is reversed; Section II of the panel opinion reversing defendant's conviction for possession of a stolen firearm is reinstated. Remanded for further proceedings. 153755P.pdf 07/11/2017 Simmons Foods, Inc. v. Industrial Risk Insurers U.S. Court of Appeals Case No: 15-3755 and No: 15-3845 U.S. District Court for the Western District of Arkansas - Fayetteville [PUBLISHED] [Riley, Author, with Loken and Benton, Circuit Judges] Civil case - Insurance. Timeliness of suit is a procedural issue, and the district court did not err in applying Arkansas law, which gives an insured five years to sue, rather than the provisions of the insurance policies which required suit to be initiated within 12 months after inception of the loss; plaintiff's damages were not capable of exact determination until the jury rendered its verdict and the district court entered judgment and, as a a result, plaintiff was not entitled to prejudgment interest under Arkansas law; because plaintiff did not recover the statutory threshold of at least 80% of the amount it demanded in the suit, it was not entitled to statutory damages or attorneys fees. 153983P.pdf 07/11/2017 Melikian Enterprises, LLLP v. Steven D. McCormick U.S. Court of Appeals Case No: 15-3983 U.S. District Court for the District of North Dakota - Bismarck [PUBLISHED] [Shepherd, Author, with Benton, Circuit Judge, and Strand, District Judge] Civil case - Bankruptcy. Section 502 of the Bankruptcy Code does not preempt Arizona Revised Statue section 33-814 which sets a 90-day time limit for commencing or continuing a civil action in Arizona state court; the creditor's action to recover the balance owed on the loan in question was dismissed shortly after the trustee's sale for failure to perfect service on the debtors and the suit was not sufficient to preserve the creditor's right to a deficiency judgment. 163761U.pdf 07/11/2017 Houmam Kouaici v. Jefferson Sessions U.S. Court of Appeals Case No: 16-3761 Petition for Review of an Order of the Board of Immigration Appeals [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton, and Gruender, Circuit Judges] Petition for Review - Immigration. The court lacks jurisdiction to review the agency's determination that petitioner's asylum application was untimely filed; substantial evidence supports the agency's denial of withholding of removal as petitioner failed to establish that he would be subject to future persecution on a protected ground if he returned to Morocco. 163954U.pdf 07/11/2017 Sabrina Wagoner v. Nancy A. Berryhill U.S. Court of Appeals Case No: 16-3954 U.S. District Court for the Western District of Arkansas - Ft. Smith [UNPUBLISHED] [Per Curiam - Before Loken, Arnold and Murphy, Circuit Judges] Civil case - Social Security. Substantial evidence supports the ALJ's weighing of the medical evidence on claimant's residual functional capacity, and the denial of disability benefits is affirmed. 164093U.pdf 07/11/2017 United States v. Raymond Standafer U.S. Court of Appeals Case No: 16-4093 U.S. District Court for the Southern District of Iowa - Davenport [UNPUBLISHED] [Per Curiam - Before Loken, Arnold and Murphy, Circuit Judges] Criminal case - Sentencing. Anders case. Sentence imposed upon the revocation of defendant's supervised release was not an abuse of the district court's discretion; no error in making defendant's sentence for the revocation and his new drug offense consecutive. [ July 10, 2017 ]
161037P.pdf 07/10/2017 Binyam Baltti v. Jefferson B. Sessions, III U.S. Court of Appeals Case No: 16-1037 Petition for Review of an Order of the Board of Immigration Appeals [PUBLISHED] [Riley, Author, with Beam, Circuit Judge, and Rossiter, District Judge] Petition for review - Immigration. In his petition for review petitioner attempts to narrow his social group from that presented in his appeal to the BIA, and the court does not have jurisdiction to review this newly defined social group; the harms petitioner points to as evidence of past persecution do not compel the finding he experienced past persecution; petitioner has failed to show why rather dated events provide an objectively reasonable basis for a present fear of particularized persecution if he returned to Ethiopia; because petitioner failed to meet his burden of proof with respect to his asylum claim, he necessarily fails to meet the higher burden of proof required for withholding of removal. 163160P.pdf 07/10/2017 Cody Joseph Diaz v. United States U.S. Court of Appeals Case No: 16-3160 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Loken, Author, with Colloton and Kelly, Circuit Judges] Prisoner case - Habeas. The decision in Johnson does not render 18 U.S.C. Sec. 924(c)(3)(B) unconstitutionally vague; a Hobbs Act robbery has as an element the use, attempted use or threatened use of physical force against the person of another and is a crime of violence under 18 U.S.C. Sec. 924(c)(3)(A). 163248P.pdf 07/10/2017 United States v. John Hunter, Sr. U.S. Court of Appeals Case No: 16-3248 U.S. District Court for the District of Minnesota - St. Paul [PUBLISHED] [Loken, Author, with Murphy and Benton, Circuit Judges] Criminal case - Criminal law. The evidence was sufficient to show a single conspiracy consisting of defendant and other tax-preparer conspirators who enlisted filer conspirators to carry out their multiple fraudulent transactions; admission of exhibits reciting IP addressed used to file the false tax returns was not an abuse of the district court's discretion; district court could impose loss amount and role-in-the-offense sentencing guidelines enhancements without a jury finding because the findings did not increase the statutory maximum or mandatory minimum; no error in denying motion for new trial based on ineffective assistance of counsel claim [ July 06, 2017 ]
153962P.pdf 07/06/2017 Lott Johnson v. Sonny Perdue U.S. Court of Appeals Case No: 15-3962 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Kelly, Author, with Smith, Chief Judge, and Sippel, District Judge] Civil case - Equal Credit Opportunity Act. Plaintiff's Equal Credit Opportunity Act claims against the Secretary of Agriculture and USDA employees were not barred by res judicata and collateral estoppel as this circuit has held that a final decision by the Office of the Assistant Secretary for Civil Rights could not bar subsequent federal litigation - see Johnson v. Vilsack, 833 F.3d 948 (8th Cir. 2016); because the issue is fully briefed and addresses a pure question of law, the court will consider the individual defendants' claims that plaintiff failed to properly plead a Equal Credit Opportunity Act claim even though the district court did not reach the issue because of its ruling that the claim was barred; plaintiff stated a claim against the individual defendants; the remedial scheme created by the USDA regulations did not preclude a Bivens claim against the individual defendants; plaintiff failed to adequately plead a conspiracy and dismissal of that claim is affirmed; remanded for further proceedings on the Bivens claim and the Equal Credit Opportunity Act claims. 161515P.pdf 07/06/2017 LeRon Howard v. Colby Braun U.S. Court of Appeals Case No: 16-1515 U.S. District Court for the District of North Dakota - Bismarck [PUBLISHED] [Kelly, Author, with Loken and Colloton, Circuit Judges] Prisoner case - Habeas. The evidence was sufficient to support Howard's conviction for conspiracy, and this conviction did not violate his constitutional due process rights. 163545P.pdf 07/06/2017 United States v. Curtis Cotton U.S. Court of Appeals Case No: 16-3545 U.S. District Court for the District of Nebraska - Lincoln [PUBLISHED] [Shepherd, Author, with Riley and Beam, Circuit Judges] Criminal case - Criminal law. Evidence was sufficient to establish defendant violated his supervised release by committing another crime. 163594U.pdf 07/06/2017 Xiaoyong O'Neal v. Carolyn Colvin U.S. Court of Appeals Case No: 16-3594 U.S. District Court for the Eastern District of Missouri - Cape Girardeau [UNPUBLISHED] [Per Curiam - Before Benton, Bowman and Shepherd, Circuit Judges] Civil case - Social Security. Denial of benefits affirmed without comment. 163926U.pdf 07/06/2017 Mark Bowers v. T. Bredeman U.S. Court of Appeals Case No: 16-3926 U.S. District Court for the Eastern District of Missouri - St. Louis [UNPUBLISHED] [Per Curiam - Before Loken, Arnold and Murphy, Circuit Judges] Civil case - Civil rights. Defendants' summary judgment on former prisoner's claims of deliberate indifference to medical needs affirmed without comment. 164225U.pdf 07/06/2017 Pedro Guzman v. Larry Denney U.S. Court of Appeals Case No: 16-4225 U.S. District Court for the Western District of Missouri - St. Joseph [UNPUBLISHED] [Per Curiam - Before Wollman, Bowman and Kelly, Circuit Judges] Prisoner case - Habeas. While the district court correctly determined that Guzman had procedurally defaulted on his claim of ineffective assistance of counsel in plea negotiations because counsel omitted it from his post-conviction motion, that default is excused because post-conviction counsel erroneously omitted a claim with "some merit;" remanded for further proceedings to determine whether Guzman can show he was prejudiced by counsel's erroneous advice because it influenced his decision to reject a plea offer; other reasons that may have also influenced Guzman's decision to reject the plea offer do not necessarily preclude him from showing that counsel's erroneous advice was a motivating factor in the decision. [ July 05, 2017 ]
153265P.pdf 07/05/2017 Dante Combs v. The Cordish Companies, Inc. U.S. Court of Appeals Case No: 15-3265 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Kelly, Author, with Riley and Wollman, Circuit Judges] Civil case - Civil rights. In action alleging defendants, entities associated with the Power & Light Entertainment District in Kansas City, engaged in a pattern and practice of racial discrimination that interfered with the ability of African American men to patronize bars and restaurants in the District, the district court erred in finding plaintiff Combs was judicially estopped from asserting two incidents of alleged discrimination because the claims had not been listed as assets in his bankruptcy petition; these two incidents occurred after Combs filed his Chapter 7 and his cause of action had not accrued when he filed for bankruptcy relief; the claims were not property of the estate and could be asserted in this action; the district court did not err in granting defendants' motion for summary judgment on all but one of the claims arising from various instances of alleged discrimination; plaintiff Combs' claims against defendants Lounge KC and Cordish with respect to the one instance are remanded for trial. 161727U.pdf 07/05/2017 United States v. Anthony Terry U.S. Court of Appeals Case No: 16-1727 U.S. District Court for the Western District of Missouri - Kansas City [UNPUBLISHED] [Per Curiam - Before Riley, Smith and Benton, Circuit Judges] Criminal case - Criminal law. Defendant's challenge to supervised-release conditions in his sentence was barred by his appeal waiver; defendant also waived his challenge to the imposition of an enhancement under Guidelines Sec. 2G2.2(b)(3)(B). 162595U.pdf 07/05/2017 United States v. Daniel Lloyd U.S. Court of Appeals Case No: 16-2595 U.S. District Court for the District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Smith, Chief Judge, and Arnold and Shepherd, Circuit Judges] Criminal case - Sentencing. District court seriously considered defendant's arguments and gave appropriate weight to the 3553(a) factors; as a result, defendant's within-guidelines sentence is substantively reasonable. 163076P.pdf 07/05/2017 Tabatha Manning v. Vaughn Cotton U.S. Court of Appeals Case No: 16-3076 U.S. District Court for the District of Nebraska - Omaha [PUBLISHED] [Beam, Author, with Riley and Shepherd, Circuit Judges] Civil case - Civil rights. In denying defendants' motion for summary judgment based on qualified immunity on plaintiff's claims regarding her arrest for drug possession, the district court failed to make the required individualized analysis in arriving at its determination on the motion; while plaintiff's traffic stop and arrest did not violate her constitutional rights, there was a genuine issue of material fact as to whether defendant Cotton planted drugs in the police cruiser to "frame" plaintiff and he was not entitled to qualified immunity; under a similar analysis, defendant Delezene was not entitled to qualified immunity on the claims concerning planting of the drugs; the City of Omaha's appeal is dismissed for lack of jurisdiction as its appeal is not "inextricably intertwined" with the officers' appeals. 163159P.pdf 07/05/2017 Alexia Keil v. Paul Lopez U.S. Court of Appeals Case No: 16-3159 and No: 16-3164 and No: 16-3167 and No: 16-3169 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Gruender, Author, with Murphy and Kelly, Circuit Judges] Civil case - Class Actions. In class action alleging Blue Buffalo's pet food products were not properly labeled, the district court's failure to discuss all of the Van Horn factors in its decision approving the settlement causes concern; however, the record reflects the district court had before it the information necessary to consider the fairness of the settlement agreement, and the court finds that the facts in the record support the conclusion that the settlement is fair, reasonable and adequate; the settlement is also fair to class members who may have additional state-law claims; the attorneys' fees and expenses award was reasonable, and the district court did not abuse its discretion in approving them. 163342U.pdf 07/05/2017 Charles Ivey v. Carolyn W. Colvin U.S. Court of Appeals Case No: 16-3342 U.S. District Court for the Western District of Arkansas - Harrison [UNPUBLISHED] [Per Curiam - Before Shepherd, Murphy and Kelly, Circuit Judges] Civil case - Social Security. Denial of benefits affirmed without comment. 163428U.pdf 07/05/2017 Judith Redd v. DePuy Orthopaedics U.S. Court of Appeals Case No: 16-3428 U.S. District Court for the Eastern District of Missouri - St. Louis [UNPUBLISHED] [Per Curiam - Before Loken, Murphy and Melloy, Circuit Judges] Civil case - Products Liability. In action alleging product defect and failure to warn under Missouri law, the district court did not abuse its discretion by excluding parts of plaintiff's metallurgist's summary judgment affidavit as there were significant differences between his deposition and the affidavit; nor did the court err in excluding the metalurgist's testimony on causation when he admitted he had failed to take into account forces applied to the hip stem or any biomechanical forces, obvious alternative explanations for the hip fracture recognized by plaintiff's own doctors; without any admissible expert testimony on cause, the district court did not err in granting defendant summary judgment on plaintiff's manufacturing defect claim. 163429P.pdf 07/05/2017 Michelle Cooper v. Metropolitan Life Insurance Co U.S. Court of Appeals Case No: 16-3429 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Nelson, Author, with Wollman and Loken, Circuit Judges] Civil case - ERISA. The district court did not err in concluding defendant did not have a consequential conflict of interest and did not err in reviewing its decision to deny benefits under an abuse-of-discretion standard; defendant did not abuse its discretion by denying plaintiff's claim for long-term disability benefits where plaintiff failed to produce objective evidence to support the claim of disability. 163828U.pdf 07/05/2017 Antonio Seenyur v. Jennifer Lynne Coolidge U.S. Court of Appeals Case No: 16-3828 U.S. District Court for the District of Minnesota - Minneapolis [UNPUBLISHED] [Per Curiam - Before Benton, Bowman and Shepherd, Circuit Judges] Prisoner case - Prisoner civil rights. Defendants' summary judgment affirmed without comment. 163844U.pdf 07/05/2017 United States v. Malcolm Redmon U.S. Court of Appeals Case No: 16-3844 U.S. District Court for the Western District of Missouri - Jefferson City [UNPUBLISHED] [Per Curiam - Before Wollman and Loken, Circuit Judges, and Nelson, District Judge] Criminal case - Sentencing. The testimony at sentencing possessed sufficient indicia of reliability to establish its probable accuracy and provided an adequate basis for the district court's drug quantity finding; the evidence before the court was also adequate for it to make its findings regarding drug type; no error in imposing an enhancement under Guidelines Sec. 3B1.1(a) for an aggravating role in the offense where defendant directed the activities of multiple co-conspirators and other individuals in furtherance of an extensive criminal conspiracy; no error in imposing an enhancement under Guidelines Sec. 3C1.1 for obstruction of justice where defendant directed another to provide false grand jury testimony and attempted to intimidate or threaten other witnesses through social networking accounts; the record belies defendant's claim the district court failed to recognize its discretion to vary downward based on the crack/cocaine disparity. 164380U.pdf 07/05/2017 United States v. William Eaton U.S. Court of Appeals Case No: 16-4380 U.S. District Court for the Western District of Missouri - Joplin [UNPUBLISHED] [Per Curiam - Before Benton, Bowman and Shepherd, Circuit Judges] Criminal case - Criminal law. Anders case. Challenge to the district court's criminal jurisdiction rejected; defendant did not move to withdraw his guilty plea in the district court, and his challenge to the validity of the plea on appeal would not be considered; with respect to the procedural and substantive reasonableness of the sentence, defendant's plea agreement waived his right to appeal these issues, and the court enforces the waiver. [ July 03, 2017 ]
143099P.pdf 07/03/2017 MikLin Enterprises, Inc. v. NLRB U.S. Court of Appeals Case No: 14-3099 and No: 14-3211 National Labor Relations Board [PUBLISHED] [Loken, Author, for the Court En Banc, joined by Smith, Chief Judge, and Wollman, Riley, Gruender and Shepherd, Circuit Judges] Petition for Review - National Labor Relations Board. The means the disciplined employees used in their poster attack on MikLin's "Jimmy John's" sandwiches suggesting the sandwiches posed a health threat to consumers, were so disloyal as to exceed their right to engage in concerted activities protected by the National Labor Relations Act, as construed in the controlling Supreme Court precedent, NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464 (1953)("Jefferson Standard"); the court declines to enforce the determination that MikLin violated the Act by disciplining and discharging those employees and by soliciting removal of the unprotected posters; the Board's order finding MikLin violated Section 8(a)(1) of the Act during the union's organizing campaign when its managers used Facebook postings to disparage, degrade and harass a union leader employee for protected activities is enforced; the Board's order concluding that removal of flyers and copies of the union's amended charge violated Section 8(a)(1) of the Act is also enforced. Judge Colloton, with whom Judge Benton joins, concurring in the judgment. Judge Kelly, with whom Judge Murphy joins, dissenting in part. 161795P.pdf 07/03/2017 United States v. Michael Maggio U.S. Court of Appeals Case No: 16-1795 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Riley, Author, with Gruender, Circuit Judge, and Gritzner, District Judge] Criminal case - Criminal law and sentencing. There was a factual basis for defendant's plea for violating 18 U.S.C. Sec. 666, and the district court did not err in refusing to permit him to withdraw his guilty plea; upward variance did not reflect double-counting where the court determined that defendant's actions in taking a bribe to make a ruling in a particular case set his crime apart and made it significantly worse that the usual one to which Guidelines Sec. 2C1.1(b)(3) applies. 162069U.pdf 07/03/2017 United States v. Brion Johnson U.S. Court of Appeals Case No: 16-2069 U.S. District Court for the Northern District of Iowa - Cedar Rapids [UNPUBLISHED] [Per Curiam - Before Smith, Chief Judge, and Gruender and Shepherd, Circuit Judges] Criminal case - Sentencing. The district court did not abuse its discretion in imposing as a condition of supervised release a requirement that defendant have no contact with the adult children of his female friend where the adult children are vulnerable individuals with issues related to defendant's offense. 162125P.pdf 07/03/2017 Zetor North America, Inc. v. Ridgeway Enterprises U.S. Court of Appeals Case No: 16-2125 and No: 16-2249 U.S. District Court for the Western District of Arkansas - Harrison [PUBLISHED] [Benton, Author, with Smith, Chief Judge, and Shepherd, Circuit Judge] Civil case - Arbitration. Plaintiff's claims in this matter had no relation to a settlement agreement the parties signed in a 2008 dispute which included an arbitration provision defendant now seeks to enforce; plaintiff does not allege defendant violated the terms of that agreement, and while the objected-to conduct is similar to that which led to the 2008 settlement agreement, plaintiff's claims rest on independent trademark and copyright grounds which have no relation to the terms of the earlier agreement and in no way depend on its existence; the district court did not err in denying defendant's motion to compel arbitration. 163101P.pdf 07/03/2017 United States v. Kenneth Fisher, Jr. U.S. Court of Appeals Case No: 16-3101 U.S. District Court for the Western District of Arkansas - Fayetteville [PUBLISHED] [Shepherd, Author, with Smith, Chief Judge, and Arnold, Circuit Judge] Criminal case - Sentencing. The facts failed to demonstrate that defendant used his minor companion or attempted to use her in committing the bank robbery, and the district court erred in imposing a sentencing enhancement under Guidelines Sec. 3B1.4 for use of a minor in the commission of the offense; remanded for resentencing without the enhancement. Chief Judge Smith, dissenting. 163516P.pdf 07/03/2017 Bruce Lindholm v. BMW of North America, LLC U.S. Court of Appeals Case No: 16-3516 U.S. District Court for the District of South Dakota - Pierre [PUBLISHED] [Arnold, Author, with Wollman and Gruender, Circuit Judges] Civil case - Products liability. In action alleging tire jack supplied by defendant was defectively designed and unreasonably dangerous, the district court did not err in concluding a reasonable jury would have to conclude that plaintiff's decedent misused the jack by using it for a purpose for which it was not intended; the misuse of the jack was not foreseeable as a matter of law, given the warnings accompanying it, and defendant was entitled to summary judgment on the plaintiff's strict-liability claim; with respect to plaintiff's negligence and negligent-design claims, the victim's misuse of the jack also constitutes contributory negligence which bars recovery under South Dakota law; defendant's summary judgment on plaintiff's wrongful-death claim affirmed.