((pause))

Eighth and westward (then southeastward) tomorrow.  Other work beckons threateningly.

-CB

Seventh Circuit: Kelly Chavez v. Nancy Berryhill

When a SSA ALJ accepts an estimate of available employment opportunities that relies on an extrapolation of known data across an entire market or geographical area without sufficient indicia of the extrapolation's reasoning, he or she impermissably shifts the burden of proof to the claimant, resulting in a determination that is not supported by substantial evidence.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-18/C:17-2978:J:Scudder:aut:T:fnOp:N:2188695:S:0

Sixth Circuit: Liz Lopez Moreno v. Jason Zank

When a parent allegedly wrongfully removes a child from a country after the allegedly wrongful removal of the child to that country by the other parent, given the purposes of the Convention, the first parent is precluded from asserting that the residence of the child in the country to which it had been removed at first was not their habitual residence; to preserve future claims under the Convention, the Convention  remedy must be invoked, as opposed to self-help.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0147p-06.pdf

Sixth Circuit: United States v. Rashad Woodside

Remand for recalculation of drug amounts was a limited remand that did not require a new hearing, and was appropriately resolved by amending the opinion; deft's presence at earlier sentencing satisfied the statute.  Amounts appropriately calculated by a preponderance.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0146p-06.pdf

Sixth Circuit: Linda Isaacs v. DBI-ASG Coinvestor Fund, III, LLC

Federal court cannot revisit state court foreclosure ruling holding that a facially problematic lien in fact attached, since vindicating the lien isn't barred by the shield of bankruptcy discharge; the discharge only protects from claims against the person.  Further, Rooker-Feldman prohibits lower federal courts from hearing a state-adjudicated claim even where there is explicit statutory jurisdiction.

As state law holds that a mortgage is valid even absent perfection, a claim that the lien was perfected in violation of the stay can provide grounds for subsequent avoidance, since a federal court's determination that the interest wasn't perfected does not contradict the state court's holding that the mortgage was valid.

Statutorily, the second trustee acquired the necessary powers; equitably, the debtor's ex post acquisition of the derivative powers of the second trustee was an appropriate flexible remedy.

Amicus had another idea, but the parties didn't raise it, so it wasn't considered.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0145p-06.pdf

Third Circuit: Lea Augustin v. City of Philadelphia

Property owners have sufficient interest upon which a due process claim can arise when a municipality files a perfected utility lien against the property, as it can cloud the title and complicate the property's use and value.

As a matter of law, the minimal deprivation of property rights imposed by the lien, the relative lack of difficulty in correcting errors or monitoring third-party compliance, and the value of the gas provided satisfy the due process interests of the landlords.

http://www2.ca3.uscourts.gov/opinarch/171216p.pdf

Second Circuit: Huebner, et al. v. Midland Credit Mgmt., et al.

So long as the questions are not misleading or abusive, the Act permits a spoken inquiry as to the reason for disputing a debt.

Given the specificity of the first claim in the trial management phase, court did not abuse discretion for imposing procedural sanctions when it proved false.

No abuse of discretion in, prior to imposing sanction, not allowing amendment of filing that violated confidentiality order.

Sanctions for vexatious litigation did not abuse discretion; ordering payment of opponent's fees for motion that was only partially granted was within the court's discretion.

Sanctions under the Act and the court's inherent authority were appropriate.

http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/doc/16-2363_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/1/hilite/

Second Circuit: United States v. Smith

Amended.

http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/2/doc/15-3313_amd_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2ecf3400-1de9-443e-a981-66684e3b642f/2/hilite/

First Circuit: Doe v. Brown University

Allegation of assault against a student at one university by students at a second university does not state a Title IX claim against the second university where the alleged victim has not and does not intend to avail himself or herself of the educational programs and services of the second university.

http://media.ca1.uscourts.gov/pdf.opinions/17-1941P-01A.pdf

First Circuit: US v. Romero

Defendants consent to inaccurate pre-sentencing report forfeited the argument, but did not waive the claim, and an undisputed error that affects the sentence rises to the level of plain error, requiring correction even when forfeited.

http://media.ca1.uscourts.gov/pdf.opinions/17-1702P-01A.pdf

First Circuit: US v. Pinkham

Exception claiming that drug amount was miscalculated does not properly preserve a claim that the amount of drugs personally consumed by the deft should not have been included in the total.

Neither precedent nor lenity argues that the personal consumption of the deft should reduce the drug amount calculations for the conspiracy, as the deft's consumption is part of the scope of the conspiracy.

Given that the penalty for the prior conviction for driving without a licence is more similar to that for driving with a suspended licence than that for speeding, the present sentencing court did not plainly err in grouping it with offenses of the former category.

http://media.ca1.uscourts.gov/pdf.opinions/17-1664P-01A.pdf

First Circuit: US v. Arif

Trade Commission organic act was not an implied partial repeal of the wire fraud act, as the latter deals only with the wires and the former with advertising, and, further, there is no irreconcilable conflict between the two.

Deft's belief in the actual efficacy of the product does not negative the intentional specific misrepresentations in the advertising materials on the website.

Sentencing calculations that included revenue from sales of products about which no complaints had been received is not plainly erroneous, given lack of showing that the satisfied customers didn't purchase due to specific fraudulent misrepresentation.  Additionally, no reasonable probability of prejudice, given downward departure from sentencing range.

Below-guidelines sentence not substantively unreasonable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1597P-01A.pdf

First Circuit: US v. Morales-De Jesus

No plain error in sentence increase for leadership, as the indictment listed over two dozen co-conspirators, and court might reasonably have found that deft led at least four of them.  228 Month sentence substantively reasonable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1549P-01A.pdf

First Circuit: US v. Caballero-Vazquez

Sentence procedurally reasonable, since mitigation was properly considered, guilty plea prior to sentence was properly included as a prior conviction, and possession counts arising from the same nexus of facts can result in consecutive sentences.

75 Month sentence substantively reasonable.

http://media.ca1.uscourts.gov/pdf.opinions/17-1144P-01A.pdf

First Circuit: US v. Rose

 A decision that is cited in another opinion before being vacated as moot remains binding circuit precedent.

As recklessness could possibly suffice for a conviction requiring wantoness, the predicate violent felony is not in fact a predicate.

Challenging prejudice on appeal does not preserve a pro forma argument against cause.

http://media.ca1.uscourts.gov/pdf.opinions/17-1059P-01A.pdf

First Circuit: US v. Frates

Sentencing predicate convictions are valid, given circuit precedent.

When a non-retroactive amendment to the discretionary sentencing guidelines is adopted before a sentence becomes final on appeal, an appeals court has the prudential discretion to remand to consider the effect of the amendment, so long as the consideration would not be unduly complex and the sentencing court does not recalculate the guidelines range.

http://media.ca1.uscourts.gov/pdf.opinions/16-1933P-01A.pdf