Sentencing / Crim
Where deft was told that accomplice was about to rob a bank and deft knew that accomplice had in the past been convicted for using a gun to rob a bank, sentence may be increased for the use of the firearm.
http://media.ca8.uscourts.gov/opndir/16/01/151063P.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.
Seventh Circuit: John Dawkins v. USA
ACCA,
A conviction under state burglary statute that bars entry without authority is not a modified categorical predicate but a stated predicate, as precedent holds that any burglary statute barring unlawful entry qualifies.
Dissent - PF showing as to potential reliance on (career offender) residual portion of statute - review appropriate to see if the sentencing court considered it a modified categorical predicate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-07/C:15-3667:J:PerCuriam:aut:T:fnOp:N:1683399:S:0
A conviction under state burglary statute that bars entry without authority is not a modified categorical predicate but a stated predicate, as precedent holds that any burglary statute barring unlawful entry qualifies.
Dissent - PF showing as to potential reliance on (career offender) residual portion of statute - review appropriate to see if the sentencing court considered it a modified categorical predicate.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-07/C:15-3667:J:PerCuriam:aut:T:fnOp:N:1683399:S:0
Fifth Circuit: Arbuckle Mountain Ranch of TX v. Chesapeake Energy
Class actions
Given the presumption in favor of Federal jurisdiction, where the pleadings state a claim that involves a larger class than the currently constituted class, the party contesting removal under the CAFA local controversy exception bears the burden of establishing that a sufficient percentage of the class vindicated by the claim is from a given state.
Dissent - No presumption in favor of federal jurisdiction; pleadings should be construed under state rules, which allow for a more liberal notice of claim, and therefore might conceivably limit the class to those presently involved.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10955-CV0.pdf
Given the presumption in favor of Federal jurisdiction, where the pleadings state a claim that involves a larger class than the currently constituted class, the party contesting removal under the CAFA local controversy exception bears the burden of establishing that a sufficient percentage of the class vindicated by the claim is from a given state.
Dissent - No presumption in favor of federal jurisdiction; pleadings should be construed under state rules, which allow for a more liberal notice of claim, and therefore might conceivably limit the class to those presently involved.
http://www.ca5.uscourts.gov/opinions/pub/15/15-10955-CV0.pdf
Fifth Circuit: USA v. C. Nagin
White Collar
Although honest services wire fraud requires a bribery element under Skilling, the transaction need not be an explicit quid pro quo.
Personal monetary judgments are a legitimate form of forfeiture.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30841-CR0.pdf
Although honest services wire fraud requires a bribery element under Skilling, the transaction need not be an explicit quid pro quo.
Personal monetary judgments are a legitimate form of forfeiture.
http://www.ca5.uscourts.gov/opinions/pub/14/14-30841-CR0.pdf
Fourth Circuit: US v. William White
Crim - Extortion
Lack of subjective 'true threat' instruction ultimately harmless error.
Claim of right to the funds owed does not bar prosecution for communicating threats of physical harm, as the threats are themselves wrongful.
As the jury was told that it was being empaneled anonymously to prevent press communication, no error in anonymous empanelment.
Telephone notes admitted on direct as present-sense impressions might have been hearsay, but harmless error.
Sentence did not inappropriately consider deft's political views.
No error in not grouping counts.
http://www.ca4.uscourts.gov/Opinions/Published/144375.P.pdf
Lack of subjective 'true threat' instruction ultimately harmless error.
Claim of right to the funds owed does not bar prosecution for communicating threats of physical harm, as the threats are themselves wrongful.
As the jury was told that it was being empaneled anonymously to prevent press communication, no error in anonymous empanelment.
Telephone notes admitted on direct as present-sense impressions might have been hearsay, but harmless error.
Sentence did not inappropriately consider deft's political views.
No error in not grouping counts.
http://www.ca4.uscourts.gov/Opinions/Published/144375.P.pdf
Fourth Circuit: US v. Jeffrey Martinovich
FRE, Sentencing.
Although trial court's interventions in questioning of witnesses were imprudent, poorly conveyed, and went beyond the pale, they do not constitute plain error, as they were not ultimately dispositive of the verdict.
Where a judge says that since good reasons must be given for variances, the sentencing guidelines are effectively compulsory -- the sentence is therefore procedurally unreasonable; further inquiry into substantive unreasonableness is foreclosed.
http://www.ca4.uscourts.gov/Opinions/Published/134828.P.pdf
Although trial court's interventions in questioning of witnesses were imprudent, poorly conveyed, and went beyond the pale, they do not constitute plain error, as they were not ultimately dispositive of the verdict.
Where a judge says that since good reasons must be given for variances, the sentencing guidelines are effectively compulsory -- the sentence is therefore procedurally unreasonable; further inquiry into substantive unreasonableness is foreclosed.
http://www.ca4.uscourts.gov/Opinions/Published/134828.P.pdf
Federal Circuit: Ford Motor Company v. US
FRCP, Administrative Law, Deference
(Complex. Here's an especially guesslike guess.)
Where a statute implements a treaty but is not the sole implementation of a treaty, a court's subsequent shift in the basis for the decision does not violate the law of the case, as there are potentially several statutes at issue.
Where more than one statute enables a rulemaking, deference can be shown to an agency's interpretation of one regulation despite law of the case to the contrary with respect to the other statute.
The differences in the means of practical implementation can make contradictory agency decisions in substantially similar cases not arbitrary/capricious.
Dissent - The second statute doesn't independently implement the treaty, so there's no deference to agency on substantive matter of interpretation - the second statute is merely procedural. No Skidmore deference on present agency interpretations, as it's not persuasive. Procedural differences don't justify different handling of identical cases.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1581.Opinion.1-4-2016.1.PDF
(Complex. Here's an especially guesslike guess.)
Where a statute implements a treaty but is not the sole implementation of a treaty, a court's subsequent shift in the basis for the decision does not violate the law of the case, as there are potentially several statutes at issue.
Where more than one statute enables a rulemaking, deference can be shown to an agency's interpretation of one regulation despite law of the case to the contrary with respect to the other statute.
The differences in the means of practical implementation can make contradictory agency decisions in substantially similar cases not arbitrary/capricious.
Dissent - The second statute doesn't independently implement the treaty, so there's no deference to agency on substantive matter of interpretation - the second statute is merely procedural. No Skidmore deference on present agency interpretations, as it's not persuasive. Procedural differences don't justify different handling of identical cases.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1581.Opinion.1-4-2016.1.PDF
Eleventh Circuit: Domineque Ray v. Alabama, DOC, et al.
Ineffective Assistance
Cursory mitigation investigation insufficiently outcome-determinative under Strickland to justify the Writ.
http://media.ca11.uscourts.gov/opinions/pub/files/201315673.pdf
Cursory mitigation investigation insufficiently outcome-determinative under Strickland to justify the Writ.
http://media.ca11.uscourts.gov/opinions/pub/files/201315673.pdf
Eleventh Circuit: In re: Kurt Timothy Franks
Johnson's retroactivity - ACCA
The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague is not, by its terms, retroactive, and AEDPA bars a second or successive Habeas writ seeking relief based on the holding.
Dissent: Retroactive, AEDPA shouldn't bar the filing of the writ, insufficiently briefed, court should certify the question to the Supreme Court (!), divergent circuit holdings on the gatekeeper question are themselves a constitutional violation.
http://media.ca11.uscourts.gov/opinions/pub/files/201515456.ord.pdf
The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague is not, by its terms, retroactive, and AEDPA bars a second or successive Habeas writ seeking relief based on the holding.
Dissent: Retroactive, AEDPA shouldn't bar the filing of the writ, insufficiently briefed, court should certify the question to the Supreme Court (!), divergent circuit holdings on the gatekeeper question are themselves a constitutional violation.
http://media.ca11.uscourts.gov/opinions/pub/files/201515456.ord.pdf
Eighth Circuit: Peter Kiewit Sons' v. Steven West
FRCP, Remedies
When the court has made adverse credibility findings in discovery phase, there is no error in denial of a postponement of hearing for medical reasons when no firm date for availability is offered.
Where the deft does not establish how much of the gains were devoted to expenses, no error in not reducing disgorgement for trademark violation to account for defts' expenses.
A remark in sentencing that the amount of award is enough to make plaintiff whole is not enough to establish that disgorgement was used as compensatory measure.
http://media.ca8.uscourts.gov/opndir/16/01/143461P.pdf
When the court has made adverse credibility findings in discovery phase, there is no error in denial of a postponement of hearing for medical reasons when no firm date for availability is offered.
Where the deft does not establish how much of the gains were devoted to expenses, no error in not reducing disgorgement for trademark violation to account for defts' expenses.
A remark in sentencing that the amount of award is enough to make plaintiff whole is not enough to establish that disgorgement was used as compensatory measure.
http://media.ca8.uscourts.gov/opndir/16/01/143461P.pdf
Eighth Circuit: John Gohagan v. The Cincinnati Insurance Co.
Contracts
Where anti-stacking provisions of insurance contracts fix an aggregate limit without making a distinction between general liability and per-event liability, there is no per se ambiguity in the contracts.
http://media.ca8.uscourts.gov/opndir/16/01/143454P.pdf
Where anti-stacking provisions of insurance contracts fix an aggregate limit without making a distinction between general liability and per-event liability, there is no per se ambiguity in the contracts.
http://media.ca8.uscourts.gov/opndir/16/01/143454P.pdf
Seventh Circuit: Holli Hammarquist v. United Continental Holdings
Contracts
Where a frequent flier contract allows unilateral modification of benefits, and those fliers qualifying for a frequent traveler benefit are told that the rewards will change from year to year, the airline does not breach the contract by precipitately reducing benefits.
Concurrence: There are some grounds for acceptance of unilateral offer to modify the base agreement by flying a set number of miles.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-06/C:15-1845:J:Manion:aut:T:fnOp:N:1683060:S:0
Where a frequent flier contract allows unilateral modification of benefits, and those fliers qualifying for a frequent traveler benefit are told that the rewards will change from year to year, the airline does not breach the contract by precipitately reducing benefits.
Concurrence: There are some grounds for acceptance of unilateral offer to modify the base agreement by flying a set number of miles.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-06/C:15-1845:J:Manion:aut:T:fnOp:N:1683060:S:0
Sixth Circuit: Larry Askins v. Ohio Department of Agriculture
Administrative/environment
There is no right of action under the CWA for private citizens to challenge administrative noncompliance of state regulators.
While the CWA does require that authority be withdrawn from a noncompliant regulator after a hearing, as there is no explicit requirement for a hearing, there is no right of action premised on the delay in holding a hearing.
http://www.ca6.uscourts.gov/opinions.pdf/16a0005p-06.pdf
There is no right of action under the CWA for private citizens to challenge administrative noncompliance of state regulators.
While the CWA does require that authority be withdrawn from a noncompliant regulator after a hearing, as there is no explicit requirement for a hearing, there is no right of action premised on the delay in holding a hearing.
http://www.ca6.uscourts.gov/opinions.pdf/16a0005p-06.pdf
Sixth Circuit: Nancy Marouf v. Loretta Lynch
Immigration
IJ's adverse credibility findings not supported by substantial evidence and flawed by lack of consideration of issues in translation.
C in J : No power to do de novo, though, and no mandate of asylum.
C in J : No mandate of asylum
http://www.ca6.uscourts.gov/opinions.pdf/16a0004p-06.pdf
IJ's adverse credibility findings not supported by substantial evidence and flawed by lack of consideration of issues in translation.
C in J : No power to do de novo, though, and no mandate of asylum.
C in J : No mandate of asylum
http://www.ca6.uscourts.gov/opinions.pdf/16a0004p-06.pdf
Sixth Circuit: Michael Kent v. County of Oakland
S1983 - use of force
When a first responder uses a Taser against a verbally hostile citizen in his own home with his hands held in the air and his back against the wall, denial of qualified immunity is appropriate.
Also upheld against another first responder who didn't intervene.
Community caretaker exception to 4A generally overbroad.
S1983 denial precludes governmental immunity from state statute.
http://www.ca6.uscourts.gov/opinions.pdf/16a0003p-06.pdf
When a first responder uses a Taser against a verbally hostile citizen in his own home with his hands held in the air and his back against the wall, denial of qualified immunity is appropriate.
Also upheld against another first responder who didn't intervene.
Community caretaker exception to 4A generally overbroad.
S1983 denial precludes governmental immunity from state statute.
http://www.ca6.uscourts.gov/opinions.pdf/16a0003p-06.pdf
Fifth Circuit: USA v. Rickey Benns
Restitution/Fraud
As the fraudulent mortgage application wasn't sufficiently proximate to the foreclosure loss suffered by the government lender, restitution order was inappropriate.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51207-CR0.pdf
As the fraudulent mortgage application wasn't sufficiently proximate to the foreclosure loss suffered by the government lender, restitution order was inappropriate.
http://www.ca5.uscourts.gov/opinions/pub/14/14-51207-CR0.pdf
Fifth Circuit: Anh Le v. Loretta Lynch
Immigration
Although the government holds the general burden to prove that an offense is of the type that would bar relief from removal, the petitioner has the burden to establish that a legal ambiguity in the definition of the offense disqualifies it as a predicate. Split with 9 flagged.
Petitioner did not establish offense of conviction in reply.
No error in denial of reconsideration.
http://www.ca5.uscourts.gov/opinions/pub/13/13-60664-CV0.pdf
Although the government holds the general burden to prove that an offense is of the type that would bar relief from removal, the petitioner has the burden to establish that a legal ambiguity in the definition of the offense disqualifies it as a predicate. Split with 9 flagged.
Petitioner did not establish offense of conviction in reply.
No error in denial of reconsideration.
http://www.ca5.uscourts.gov/opinions/pub/13/13-60664-CV0.pdf
Fifth Circuit: Thomas Tubesing v. USA
FTCA
Although the specific harms are not outlined in the latter statute, plaintiff's standing under FTCA is displaed by the CSRA, given that the harms are specifically employment-related.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30347-CV0.pdf
Although the specific harms are not outlined in the latter statute, plaintiff's standing under FTCA is displaed by the CSRA, given that the harms are specifically employment-related.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30347-CV0.pdf
Third Circuit: Group Against Smog and Pollution v. Shenango Inc
Administrative law - citizen suit/environment
Statute's requirement that there not be a pre-existing diligent prosecution of rights under the statute in order to permit a citizen suit is a substantive requirement, not a jurisdictional bar to suit.
A final judgment resulting from a diligent prosecution does not, in itself, remove the bar to citizen suit.
Diligent enforcement of outcome acts as a per se bar to citizen suit.
http://www2.ca3.uscourts.gov/opinarch/152041p.pdf
Statute's requirement that there not be a pre-existing diligent prosecution of rights under the statute in order to permit a citizen suit is a substantive requirement, not a jurisdictional bar to suit.
A final judgment resulting from a diligent prosecution does not, in itself, remove the bar to citizen suit.
Diligent enforcement of outcome acts as a per se bar to citizen suit.
http://www2.ca3.uscourts.gov/opinarch/152041p.pdf
First Circuit: US v. Cortes-Medina
Sentencing.
Facts in pre-sentencing report do not preserve challenge -- where deft does not challenge the omission in the argumentative portion, the challenge is waived.
Prior arrest record is distinct from acquitted conduct in sentencing considerations.
No abuse of discretion in sentencing court's omission of the recitation of sentencing factors.
Although the explanation of the sentence was insufficient under the statute, this alone does not suffice for plain error.
The substantive reasonableness of the sentence is determined with reference to the guidelines, not the agreement of the parties.
Dissent - When a court considers prior acquitted conduct without findings of at least a preponderance, it suffices even under plain error review.
http://media.ca1.uscourts.gov/pdf.opinions/14-1101P-01A.pdf
Facts in pre-sentencing report do not preserve challenge -- where deft does not challenge the omission in the argumentative portion, the challenge is waived.
Prior arrest record is distinct from acquitted conduct in sentencing considerations.
No abuse of discretion in sentencing court's omission of the recitation of sentencing factors.
Although the explanation of the sentence was insufficient under the statute, this alone does not suffice for plain error.
The substantive reasonableness of the sentence is determined with reference to the guidelines, not the agreement of the parties.
Dissent - When a court considers prior acquitted conduct without findings of at least a preponderance, it suffices even under plain error review.
http://media.ca1.uscourts.gov/pdf.opinions/14-1101P-01A.pdf
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