OPINIONS ARE POSTED DAILY BETWEEN 10:00 and 11:00 a.m. Today is: [ Sunday December 11, 2016 ] - - - - - NO OPINIONS HAVE BEEN POSTED TODAY The most recent opinions are for: [ 12/09/2016 ]  
DISCLAIMER:  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.
152239P.pdf  12/09/2016  United States  v.  Luis Olivares
   U.S. Court of Appeals Case No:   15-2239
   U.S. District Court for the District of South Dakota - Rapid City   
[PUBLISHED] [Kelly, Author, with Riley, Chief Judge, and Colloton, Circuit Judge] Criminal case - Criminal law and sentencing. Claims that the district court denied defendant access to discovery and that the government improperly selectively preserved evidence by saving only inculpatory materials rejected; the district court carefully protected defendant's right to access adequate resources, including discovery files, exhibits and the Internet, to prepare his own defense; defendant failed to preserve his Youngblood argument concerning preservation of materials by failing to raise the issue in the district court and by failing to present any evidence of bad faith; the district court did not err by failing to sua sponte order a reevaluation of defendant's competency to proceed as there was no discernible difference in defendant's behavior or mental state between the court's finding of competency and the start of the trial eight months later; the court did not abuse its discretion by not ordering another competency evaluation or hearing when defendant sought to represent himself at trial and did not violate his Sixth Amendment by permitting him to proceed pro se with standby counsel; Section 851 notice was timely and there was no evidence that the government acted in bad faith with respect to its decision as to when the file the notice; there was no evidence defendant was incompetent during the five-year period for challenging the convictions used to support the Section 851 notice.
152314U.pdf  12/09/2016  United States  v.  Bonnie Cortez-Hernandez
   U.S. Court of Appeals Case No:   15-2314
   U.S. District Court for the Western District of Missouri - Kansas City   
[UNPUBLISHED] [Per Curiam - Before Wollman, Bright and Kelly, Circuit Judges] Criminal case - Criminal law. Because defendant did not object to a magistrate judge taking her guilty plea or raise any claims of Rule 11 violations, her claims regarding the guilty-pleas procedures are reviewed for plain error; the record demonstrates defendant knowingly consented to the magistrate judge taking her plea and there was no error, plain or otherwise, in proceeding with the plea; assuming for the purposes of discussion that the magistrate violated Rule 11(b)(1)(A) by failing to advise defendant of the possibility of a future perjury prosecution if she did not testify truthfully, the violation was harmless as the plea agreement she voluntarily signed advised of the possibility of a perjury prosecution and she failed to show that but for the error at the hearing she would not have pleaded guilty; there was insufficient evidence to demonstrate the district court failed to conduct a de novo review of the magistrate judge's report and recommendation.
153040U.pdf  12/09/2016  Ronald Cherry  v.  Southern Refrigerated Trans.
   U.S. Court of Appeals Case No:   15-3040
   U.S. District Court for the Western District of Arkansas - Texarkana   
[UNPUBLISHED] [Per Curiam - Before Smith, Arnold and Colloton, Circuit Judges] Civil case - Employment Discrimination. The district court did not err in dismissing plaintiff's Title VII complaint as untimely; dismissal without prejudice of a prior case did not toll the statute of limitations.
153279P.pdf  12/09/2016  Jacquelyn Wallace  v.  Nancy Cummings
   U.S. Court of Appeals Case No:   15-3279
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
[PUBLISHED] [Murphy, Author, with Riley, Chief Judge, and Smith, Circuit Judge] Civil case - Civil rights. In an action alleging excessive force in the death of plaintiff's decedent, the district court did not err in denying the police officer's motion for summary judgment based on qualified immunity as there was a genuine issue of material fact as to whether the officer intentionally shot the victim; the record does not conclusively establish that the victim was committing the violent felony of aggravated assault at the time he was shot or that he posed a significant immediate threat to the safety of the defendant officer or other bystanders; further, a fact finder could reasonably conclude that the victim no longer posed a significant threat after he discarded his gun and began to flee; considering the totality of the circumstances, the record does not establish that the officer's use of deadly force was reasonable as a matter of law; it has been clearly established since 1985 that the use of deadly force against a fleeing suspect who does not pose a significant threat of death or serious injury to the officer or bystanders is not permitted.
153400P.pdf  12/09/2016  Mike MacMann  v.  Mike Matthes
   U.S. Court of Appeals Case No:   15-3400
   U.S. District Court for the Western District of Missouri - Jefferson City   
[PUBLISHED] [Wollman, Author, with Arnold and Kelly, Circuit Judges] Civil case - Constitutional law. In an action alleging the City of Columbia, Missouri and its City Manager violated plaintiff's rights by interfering with their participation in a municipal referendum process to repeal two ordinances passed by the City Council in connection with a student-housing development project to be built by a third-party developer, the district court did not err in determining plaintiffs' rights to challenge the ordinances was defined and limited by the City Charter; the City did not violate the City Charter or interfere with resident's referendum rights by adopting the second ordinance at issue; the City could repeal the first ordinance rather than submitting it to a vote, and the City could enact the second ordinance while the first ordinance was pending; Charter does not give residents the power to challenge the issuance of construction-related permits by City administrative departments, and the issuance of permits upon the submission of valid permit applications did not violate the residents' rights under the Charter; plaintiffs' First and Fourteenth Amendment challenges were properly rejected.
153893U.pdf  12/09/2016  United States  v.  Alexisus Mosby
   U.S. Court of Appeals Case No:   15-3893
   U.S. District Court for the District of Minnesota - St. Paul   
[UNPUBLISHED] [Per Curiam - Before Loken, Smith and Colloton, Circuit Judges] Criminal case - Sentencing. The sentence imposed upon the revocation of defendant's supervised release was not substantively unreasonable.
153950U.pdf  12/09/2016  United States  v.  Victor Jones
   U.S. Court of Appeals Case No:   15-3950
   U.S. District Court for the Southern District of Iowa - Des Moines   
[UNPUBLISHED] [Per Curiam - Before Riley, Chief Judge, and Murphy and Smith, Circuit Judges] Criminal case - Sentencing. No error in calculating the amount of drugs involved in the offense; the district court did not err in including a robbery conviction in defendant's criminal history calculation as defendant's period of incarceration extended into the fifteen-year look-back period under Guidelines Sec. 4A1.2(e)(1).
161603U.pdf  12/09/2016  Dexter Brunson  v.  Carolyn W. Colvin
   U.S. Court of Appeals Case No:   16-1603
   U.S. District Court for the Eastern District of Arkansas - Pine Bluff   
[UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Gruender, Circuit Judges] Civil case - Social Security. Claimant abandoned any challenge to the ruling properly before this court by failing to include it in his brief, and the district court's judgment is affirmed without further comment.
161672U.pdf  12/09/2016  James Fudge  v.  Grant Harris
   U.S. Court of Appeals Case No:   16-1672
   U.S. District Court for the Eastern District of Arkansas - Pine Bluff   
[UNPUBLISHED] [Per Curiam - Before Colloton, Murphy and Gruender, Circuit Judges] Prisoner case - Prisoner civil rights. Defendants' summary judgment affirmed without comment.
161711U.pdf  12/09/2016  United States  v.  Sean Gerald Penoncello
   U.S. Court of Appeals Case No:   16-1711
   U.S. District Court for the District of Minnesota - St. Paul   
[UNPUBLISHED] [Per Curiam - Before Smith, Bowman and Benton, Circuit Judges] Criminal case - Criminal law and sentencing. Anders case. The evidence was sufficient to support defendant's conviction for producing and possessing child pornography; no error in admitting Rule 404(b) evidence which was not unduly prejudicial and which was probative of defendant's ownership of the thumb drives on which certain images were found; there was no evidence the government interfered with defendant's witnesses or intimidated them into not testifying;400-month sentence was not unreasonable; pro se claim of ineffective assistance would not be considered in this direct appeal.