ACCA/ Johnson
Neither the Supreme Court holding that the residual clause of the ACCA was impermissibly vague nor the Supreme Court holding that a certain state offense was not a valid predicate (nor the two combined) were changes in the substantive law to be made retroactively applicable to cases on collateral review.
http://media.ca11.uscourts.gov/opinions/pub/files/201515493.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Eleventh Circuit: USA v. Harlan Salmona
Plea Agreements
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
District court has Mandamus jurisdiction, not FRCrimP jurisdiction, over motions to enforce a plea deal.
Where a plea agreement's term of rescission allows only the revocation of use immunity, a material breach of the agreement prevents a court's subsequent enforcement under Mandamus of other guarantees.
Concurrence: Material breach justifies total rescission.
http://media.ca11.uscourts.gov/opinions/pub/files/201512569.pdf
Eleventh Circuit: Yasmick Jeune v. U.S. Attorney General
Immigration
Generalized assertions of discrimination did not administratively exhaust specific claims of trauma.
As agency's classification of petitioner includes the present claim in addition to the earlier claim, both have been refuted.
Agency's consideration of internal relocation need not be geographically specific.
http://media.ca11.uscourts.gov/opinions/pub/files/201311683.pdf
Generalized assertions of discrimination did not administratively exhaust specific claims of trauma.
As agency's classification of petitioner includes the present claim in addition to the earlier claim, both have been refuted.
Agency's consideration of internal relocation need not be geographically specific.
http://media.ca11.uscourts.gov/opinions/pub/files/201311683.pdf
Ninth Circuit: Leslie Gladstone v. Bancorp
Bankruptcy
Although the surrender value of the life insurance policies was nil, a pre-petition viatical transfer for value created value that should have been disclosed in bankruptcy proceedings.
Trustee's avoidance attempt is timely, as fraud equitably tolled the statute of limitations.
Trustee should have been given leave to amend claim.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/13-55773.pdf
Although the surrender value of the life insurance policies was nil, a pre-petition viatical transfer for value created value that should have been disclosed in bankruptcy proceedings.
Trustee's avoidance attempt is timely, as fraud equitably tolled the statute of limitations.
Trustee should have been given leave to amend claim.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/13-55773.pdf
Ninth Circuit: Eden Place v. Sholem Perl
Bankruptcy / property
As the bankruptcy proceeding is final with respect to the property at issue, interlocutory appeal has jurisdiction.
A tenant's remaining within a premises during an a unlawful detainer action does not create an equitable interest in the property, as the court is ruling on the supervening question of better title.
Dissent: Insufficiently final for jurisdiction.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/14-60039.pdf
As the bankruptcy proceeding is final with respect to the property at issue, interlocutory appeal has jurisdiction.
A tenant's remaining within a premises during an a unlawful detainer action does not create an equitable interest in the property, as the court is ruling on the supervening question of better title.
Dissent: Insufficiently final for jurisdiction.
https://d3bsvxk93brmko.cloudfront.net/datastore/opinions/2016/01/08/14-60039.pdf
Eighth Circuit: Grasso Enterprises v. Express Scripts
ERISA / Injunctions
Issuance of a preliminary injunction mandating compliance with a plan interpretation is not a remedy available to plaintiffs under ERISA.
Pharmacies do not have direct standing under ERISA.
http://media.ca8.uscourts.gov/opndir/16/01/151578P.pdf
Issuance of a preliminary injunction mandating compliance with a plan interpretation is not a remedy available to plaintiffs under ERISA.
Pharmacies do not have direct standing under ERISA.
http://media.ca8.uscourts.gov/opndir/16/01/151578P.pdf
Eighth Circuit: United States v. Aemonn Alexander
ACCA predicates
State attempted second degree assault s a valid predicate, as it requires a substantial step and intent to cause physical harm.
http://media.ca8.uscourts.gov/opndir/16/01/151210P.pdf
State attempted second degree assault s a valid predicate, as it requires a substantial step and intent to cause physical harm.
http://media.ca8.uscourts.gov/opndir/16/01/151210P.pdf
Seventh Circuit: Tao Chen v. Loretta E. Lynch
Immigration.
Sufficient evidence for IJ's adverse credibility findings.
As petitioner was protesting the destruction of his property, his was an economic, not political protest, making him ineligible for asylum.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1831:J:Kanne:aut:T:fnOp:N:1684359:S:0
Seventh Circuit: Frederick Grede v. Bank of New York
Bankruptcy/fraud
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
Given the paucity of the banks assets, the creditor bank had sufficient inquiry notice of the fact that funds on deposit were being used for collateral and therefore cannot assert a secured claim against the Trustee's characterization of the transaction as pre-petition avoidable transfer.
As only the lien on the funds is retained, no impermissible double recovery by the Trustee, and no claim under the Code for assets transferred in good faith.
To trigger equitable subordination, the creditor must have known of the fraud, which is a higher bar than inquiry notice -- remand.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-08/C:15-1039:J:Posner:aut:T:fnOp:N:1684393:S:0
Fourth Circuit: Route 231, LLC, John Carr v. Commissioner of IRS
Tax.
Fixed terms of sale and value received preclude a court from dispelling the presumption that the transfer of development tax credits to partnership was a sale.
Original factual representation of relevant tax year cannot be arbitrarily changed after recateogorization of transfer.
Year of transfer correctly determined.
http://www.ca4.uscourts.gov/Opinions/Published/141983.P.pdf
Fixed terms of sale and value received preclude a court from dispelling the presumption that the transfer of development tax credits to partnership was a sale.
Original factual representation of relevant tax year cannot be arbitrarily changed after recateogorization of transfer.
Year of transfer correctly determined.
http://www.ca4.uscourts.gov/Opinions/Published/141983.P.pdf
First Circuit: US v. Madsen
Trial practice, sentencing.
Prosecutor's close didn't misquote, comment on silence, shift burdens.
Sentencing variances sufficiently explained.
Sentence not substantively unreasonable in the totality of things, as deft planned to resell the weapons as opposed to simply serving as a straw buyer.
http://media.ca1.uscourts.gov/pdf.opinions/15-1353P-01A.pdf
Prosecutor's close didn't misquote, comment on silence, shift burdens.
Sentencing variances sufficiently explained.
Sentence not substantively unreasonable in the totality of things, as deft planned to resell the weapons as opposed to simply serving as a straw buyer.
http://media.ca1.uscourts.gov/pdf.opinions/15-1353P-01A.pdf
First Circuit: Global Tower Assets LLC v. Town of Rome
Administrative law
As planning agency's decision is subject to mandatory statutory review before another panel, the agency's decision is insufficiently final for judicial review under the relevant Federal statute.
For purposes of pleading, finality is distinct from exhaustion, which as an affirmative defense, doesn't have to be pleaded.
No procedural due process claim, as there were state avenues to challenge.
Procedure too run-of-the-mill for a procedural due process challenge.
http://media.ca1.uscourts.gov/pdf.opinions/15-1140P-01A.pdf
As planning agency's decision is subject to mandatory statutory review before another panel, the agency's decision is insufficiently final for judicial review under the relevant Federal statute.
For purposes of pleading, finality is distinct from exhaustion, which as an affirmative defense, doesn't have to be pleaded.
No procedural due process claim, as there were state avenues to challenge.
Procedure too run-of-the-mill for a procedural due process challenge.
http://media.ca1.uscourts.gov/pdf.opinions/15-1140P-01A.pdf
First Circuit: US v. Rivera-Gonzalez
Sentencing.
Sentence above the minimum for use of a firearm in the commission of a felony was a variance, not a departure.
While the court during sentencing described the sentence was concurrent, the written sentence was silent in this regard, so no violation of the rule that the sentence must be consecutive.
Substantive error challenge construed as procedural plain error challenge; court's imposition of sentence while saying that it would be unjust if served concurrently was plain error - remand for explanation/resentencing.
http://media.ca1.uscourts.gov/pdf.opinions/14-1402P-01A.pdf
Sentence above the minimum for use of a firearm in the commission of a felony was a variance, not a departure.
While the court during sentencing described the sentence was concurrent, the written sentence was silent in this regard, so no violation of the rule that the sentence must be consecutive.
Substantive error challenge construed as procedural plain error challenge; court's imposition of sentence while saying that it would be unjust if served concurrently was plain error - remand for explanation/resentencing.
http://media.ca1.uscourts.gov/pdf.opinions/14-1402P-01A.pdf
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