[ September 27, 2007 ]



063438P.pdf   09/27/2007 United States v. Christopher Lee

  U.S. Court of Appeals Case No: 06-3438
  U.S. District Court for the Eastern District of Missouri - St. Louis
  [PUBLISHED] [Bright, Author, with Wollman and John R. Gibson,
  Circuit Judges]
  Criminal Case - sentencing. Challenge to restitution order is precluded
  by plea agreement. Decision to run one sentence for aggravated identity
  theft consecutively is mandated by statute but decision to run other
  sentence consecutively is within the discretion of the district court and is
  reviewed for reasonableness. District court failed to set forth adequate
  reasons for that decision and case is remanded for resentencing.
  Jurisdiction is retained.
 
 
[ September 26, 2007 ]



063380U.pdf   09/26/2007 Benedict O. Atakpu v. KC School Dist.

  U.S. Court of Appeals Case No: 06-3380
  U.S. District Court for the Western District of Missouri - Kansas City
  [UNPUBLISHED] [Per Curiam, with Bye, Riley and Melloy, Circuit
  Judges]
 Civil Case - employment discrimination. Dismissal of employment
  discrimination claims is reversed, as documents submitted were sufficient
  to initiate a civil action under Title VII and were filed within 90 days of
  receipt of right-to-sue letter.
 
063761P.pdf   09/26/2007 Stacy Lane VanHorn v. Dennis Oelschlager

  U.S. Court of Appeals Case No: 06-3761
  District of Nebraska - Lincoln
  [PUBLISHED] [Smith, Author, with Melloy and Gruender, Circuit
  Judges]
 Civil Case - civil rights. Interlocutory appeal from the denial of
  absolute, quasi-judicial immunity for claims brought against defendants
  in their official capacities for declaratory and injunctive relief is
  dismissed for lack of jurisdiction.
 
[ September 24, 2007 ]



063081U.pdf   09/24/2007 Gary V. Reilly, Jr. v. Jack Merritt et al

  U.S. Court of Appeals Case No: 06-3081
  and No: 06-3750
  U.S. District Court for the Western District of Missouri - Springfield
  [UNPUBLISHED] [Per Curiam - Before Murphy, Benton and
  Shepherd, Circuit Judges]
  Civil case - civil rights. In an appeal from denial of a motion for
  injunctive relief, court lacked jurisdiction to review denials of motion to
  amend complaint and motion to appoint special master; district court did
  not abuse its discretion in denying motion for injunctive relief.
 
063941U.pdf   09/24/2007 Frederick Bond v. State of Minnesota

  U.S. Court of Appeals Case No: 06-3941
  U.S. District Court for the District of Minnesota - St. Paul
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judge]
  Civil case. Defendants' judgment affirmed without comment.
 
076010P.pdf   09/24/2007 In the matter of Jo-Ann Goldma v.

  U.S. Court of Appeals Case No: 07-6010
  and No: 07-6016
  U.S. Bankruptcy Court for the Eastern District of Arkansas
  [PUBLISHED] [Federman, Author, with Kressel, Chief Judge, and
  Mahoney, Bankruptcy Judge]
  Bankruptcy Appellate Panel. The sua sponte order directing the trustee
  to show cause why she should not be removed from a case and sanctioned
  did not sufficiently describe the facts forming the basis for her removal,
  and the removal order is reversed; in a second case, the notice provided
  did not give the trustee adequate notice that her handling of a refund
  could be grounds for removal, and that charge could not be considered in
  evaluating the propriety of the removal order; however, the show cause
  order was sufficient with respect to two other actions - providing false
  testimony and acting while under a conflict of interest - and those two
  charges could be considered; hearing on the charges was adequate to
  protect the trustee's due process rights; evidence established the two
  charges and the bankruptcy court did not clearly err in removing the
  trustee on those grounds. Judge Kressel, concurring in part and dissenting
  in part; Judge Mahoney, concurring in part and dissenting in part.
 
076025P.pdf   09/24/2007 David D. Coop v. Craig M. Frederickson

  U.S. Court of Appeals Case No: 07-6025
  U.S. Bankruptcy Court for the Eastern District of Arkansas
  [PUBLISHED] [Mahoney, Author, with Kressel, Chief Judge, and
  Federman, Bankruptcy Judge]
  Bankruptcy Appellate Panel. In a case involving confirmation of a
  Chapter 13 plan under the provisions of the Bankruptcy Abuse
  Prevention and Consumer Protection Act of 2006, an "above-median
  debtor" whose disposable income is negative when calculated per the
  statutory requirements is not required to propose a plan that runs five
  years, and the bankruptcy court did not err in confirming a 48- month
  plan for the debtor.
 
[ September 21, 2007 ]



062811U.pdf   09/21/2007 USA v. Marvin Ford

  U.S. Court of Appeals Case No: 06-2811
  U.S. District Court for the Eastern District of Missouri - St. Louis
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Shepherd, Circuit Judges]
  Criminal case - criminal law. District court did not err in admitting
  evidence of a prior conviction for possession of crack as it was relevant to
  show knowledge and intent; evidence was sufficient to support a
  conviction for possession of crack with intent to distribute.
 
076008P.pdf   09/21/2007 Holly Sells v. Michael Porter

  U.S. Court of Appeals Case No: 07-6008
  and No: 07-6013
  U.S. Bankruptcy Court for the Eastern District of Arkansas
  [PUBLISHED] [Kressel, Author, with Federman and Mahoney,
  Bankruptcy Judges]
  Bankruptcy Appellate Panel. Bankruptcy court did not err in finding
  sexual harassment judgment was not dischargeable as the jury's award of
  punitive damages established debtor's actions were willful and malicious.
 
[ September 20, 2007 ]



061842U.pdf   09/20/2007 Stephen A. Eley v. U.S. Dept. of

  U.S. Court of Appeals Case No: 06-1842
  U.S. District Court for the District of Minnesota - Minneapolis
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Civil case - employment discrimination. Defendant's judgment
  affirmed without comment.
 
062278U.pdf   09/20/2007 Kevin Lavell Carter v. Firestone

  U.S. Court of Appeals Case No: 06-2278
  U.S. District Court for the Eastern District of Missouri - St. Louis
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Civil case - employment discrimination. Dismissal of Title VII
  complaint affirmed without comment.
 
062951U.pdf   09/20/2007 Charles C. Hunt, Jr. v. Jo Anne B. Barnhart

  U.S. Court of Appeals Case No: 06-2951
  U.S. District Court for the Western District of Missouri - Kansas City
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Civil case - Social Security. ALJ's credibility determination was
  supported by good reasons and substantial evidence and was entitled to
  deference; denial of benefits affirmed.
 
063084U.pdf   09/20/2007 Michael Dunn v. Linda Sanders

  U.S. Court of Appeals Case No: 06-3084
  U.S. District Court for the Eastern District of Arkansas - Helena
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Prisoner case - habeas. District court erred in dismissing Dunn's
  Section 2241 petition; BOP abused its discretion when it relied on the
  sentencing judge's letter and sentencing orders to infer that the sentencing
  court intended for Dunn's federal sentence to run consecutively to the
  yet-to-be-imposed state sentence, as the letter and orders do not reveal the
  district court's intent; case remanded to the district court to enter an order
  directing the BOP to reconsider Dunn's request for nunc pro tunc
  designation without considering the sentencing court's letter or orders.
 
063877U.pdf   09/20/2007 Howard E. Clendenen v. CIR

  U.S. Court of Appeals Case No: 06-3877
  Tax Court, Internal Revenue Service
  [UNPUBLISHED] [Per Curiam -Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Civil case - Federal Tax. Tax court lacked jurisdiction to entertain and
  deny taxpayer's Rule 60(b) motion as it was filed on an untimely basis
  and there were no extraordinary circumstances which would have given
  the court jurisdiction to modify or vacate its judgment; denial of motion
  to vacate is vacated.
 
071419U.pdf   09/20/2007 Charles Jones v. Tom Clements

  U.S. Court of Appeals Case No: 07-1419
  U.S. District Court for the Western District of Missouri - St. Joseph
  [UNPUBLISHED] [Per Curiam - Before Wollman, Bye and Colloton,
  Circuit Judges]
  Prisoner case - prisoner civil rights. Appeal of pre-service dismissal of
  plaintiff's Section 1983 action was untimely and must be dismissed for
  lack of jurisdiction.
 
[ September 19, 2007 ]



063326P.pdf   09/19/2007 Wayne Schooley v. Orkin Exterminating

  U.S. Court of Appeals Case No: 06-3326
  and No: 06-3486
  U.S. District Court for the Southern District of Iowa - Des Moines
  [PUBLISHED][Bye, Author, with Smith, Circuit Judge, and Nangle,
  District Judge]
  Civil case - Torts. Evidence was sufficient to support jury's verdict for
  plaintiffs on the claim that defendant was liable for fraudulent
  misrepresentation as it had intentionally minimized the termite infestation
  in plaintiffs' home and had consistently overstated its ability to control
  the problem; the district court erred in granting defendant's motion for
  judgment as a matter of law on plaintiffs' claim for punitive damages as
  plaintiffs proved, under Iowa law, that defendant's conduct amounted to a
  willful and wanton disregard for their rights; district court erred in
  granting defendant's motion for a new trial on compensatory damages as
  the court is not required to grant a new trial on compensatory damages
  because evidence of a defendant's net worth is admitted and an award of
  punitive damages is later set aside; here, the amount of the award
  ($138,000) was clearly related to the loss plaintiffs suffered and was
  unaffected by evidence of defendant's worth.
 
063421P.pdf   09/19/2007 Waste Management v. Transcontinental

  U.S. Court of Appeals Case No: 06-3421
  U.S. District Court for the District of Minnesota - Minneapolis
  [PUBLISHED] [Loken, Author, with John R. Gibson and Wollman,
  Circuit Judges]
  Civil case - insurance. District court did not err in determining
  defendant was liable under the provisions of the excess coverage policy.
 
063857P.pdf   09/19/2007 Richard Carraher v. Target Corp.

  U.S. Court of Appeals Case No: 06-3857
  U.S. District Court for the District of Minnesota - St. Paul
  [PUBLISHED] [Shepherd, Author, with Murphy and Beam, Circuit
  Judges]
  Civil case - employment discrimination. Defendant established a
  legitimate, non-discriminatory basis for plaintiff's termination, and
  plaintiff failed to show that the reason was a pretext for age
  discrimination. Judge Beam, concurring in part and dissenting in part.
 
[ September 18, 2007 ]



061835U.pdf   09/18/2007 United States v. Raymond P. Jimenez

  U.S. Court of Appeals Case No: 06-1835
  U.S. District Court for the Western District of Missouri - St. Joseph
  [UNPUBLISHED] [Per Curiam, with Murphy, Smith and Shepherd,
  Circuit Judges]
  Criminal Case - Anders. Plea agreement did not provide for possibility
  of a downward departure and thus the government had no duty to move to
  depart. Prior state convictions were valid and thus court's criminal
  history calculation was correct. Judgment is modified to conform to oral
  pronouncement of 121-month sentence.
 
063547U.pdf   09/18/2007 David G. Nasser v. JoAnne B. Barnhart

  U.S. Court of Appeals Case No: 06-3547
  U.S. District Court for the Eastern District of Missouri - St. Louis
  [UNPUBLISHED] [Per Curiam, with Murphy, Smith and Shepherd,
  Circuit Judges]
  Civil Case - social security. Denial of disability benefits is affirmed.
  ALJ gave multiple valid reasons for discounting subjective complaints,
  residual functional capacity findings were consistent with the medical
  evidence, and arguments raised for the first time on appeal will not be
  considered.
 
063639P.pdf   09/18/2007 International Assoc. v. Crown Cork & Seal

  U.S. Court of Appeals Case No: 06-3639
  District of Nebraska - Omaha
  [PUBLISHED] [Bowman, Author, with Melloy and Gruender, Circuit
  Judges]
  Civil Case - ERISA. District court erred in analyzing arbitrability of
  health benefit dispute under 2002-2005 Master Agreement. This court
  analyzes the arbitrabililty in the first instance, as it involves matters of
  law. Because the retiree health benefits did not vest before the Master
  Agreements expired and did not survive the expiration of those
  agreements, the district court erred in granting summary judgment to the
  union and ordering arbitration of Crown's unilateral modification of the
  retiree health plan. Crown's declaratory judgment action under the Labor
  Management Relations Act is dismissed, as the law of the case
  conclusively determined that retiree benefits did not vest before the
  Master Agreement expired.
 
063981U.pdf   09/18/2007 United States v. Luis Jimenez-Serrato

  U.S. Court of Appeals Case No: 06-3981
  U.S. District Court for the District of Minnesota - St. Paul
  [UNPUBLISHED] [Per Curiam, with Murphy, Smith and Shepherd,
  Circuit Judges]
  Criminal Case - sentence. 151-month sentence was not unreasonable;
  district court considered appropriate factors and did not err in weighing
  factors.
 
[ September 17, 2007 ]



062902U.pdf   09/17/2007 USA v. R. Castillo-Vargas

  U.S. Court of Appeals Case No: 06-2902
  U.S. District Court for the Southern District of Iowa - Des Moines
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Criminal case - Sentencing. Sentence is not unreasonable; any
  sentencing disparity which arises out of the unavailability of an early-
  disposition program in the Southern District of Iowa does not make an
  otherwise reasonable sentence unreasonable.
 
063095U.pdf   09/17/2007 William Bradford v. Michelle Whitworth

  U.S. Court of Appeals Case No: 06-3095
  U.S. District Court for the Eastern District of Missouri - St. Louis
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Prisoner case - prisoner civil rights. Defendant's summary judgment
  affirmed without comment.
 
[ September 14, 2007 ]



062022U.pdf   09/14/2007 USA v. Reynaldo Maldonado

  U.S. Court of Appeals Case No: 06-2022
  U.S. District Court for the Northern District of Iowa - Sioux City
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Criminal case - Sentencing. District court did not err in denying
  defendant's request for downward variances based on his history of
  alcohol abuse and the sentences imposed on his co-defendants; sentence
  was not unreasonable.
 
062906P.pdf   09/14/2007 United States v. E.V.

  U.S. Court of Appeals Case No: 06-2906
  U.S. District Court for the District of Minnesota - St. Paul
  [PUBLISHED] [Nangle, Author, with Bye and Smith, Circuit Judges]
  Criminal case - Criminal law and sentencing. Government's
  introduction of firearms evidence at the sentencing proceeding was in
  direct violation of the specific, bargained-for terms of the plea agreement;
  however, the potential impact of the firearms evidence on the court's
  assessment of defendant's arguments for additional downward departures
  from the guidelines range was irrelevant and could not form the basis for
  relief in the case; Brady claim rejected.
 
063092U.pdf   09/14/2007 USA v. William Hansen

  U.S. Court of Appeals Case No: 06-3092
  District of Nebraska - Omaha
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. Booker does not apply to statutorily-
  imposed sentences, and defendant's argument that his statutory
  mandatory minimum sentence was unreasonable must be rejected.
 
063120U.pdf   09/14/2007 United States v. Matthew Hanson

  U.S. Court of Appeals Case No: 06-3120
  District of Nebraska - Omaha
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. Court lacks jurisdiction to consider the
  reasonableness of a sentence imposed after a Rule 35(b) reduction.
 
063156U.pdf   09/14/2007 United States v. Raul Chavez-Rios

  U.S. Court of Appeals Case No: 06-3156
  U.S. District Court for the Northern District of Iowa - Sioux City
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. Because defendant did not qualify for a
  substantial-assistance departure or for safety-valve sentencing, the district
  court had no authority to impose a sentence below the statutory
  minimum, and defendant's claim that his statutorily-imposed sentence
  was unreasonable must be rejected.
 
063350P.pdf   09/14/2007 David Bass v. Flying J Inc.

  U.S. Court of Appeals Case No: 06-3350
  U.S. District Court for the Eastern District of Arkansas - Jonesboro
  [PUBLISHED] [Wollman, Author, with Bright and John R. Gibson,
  Circuit Judges]
  Civil case - Torts. Even if the district court erred in omitting a sentence
  from defendant's proposed jury instruction on the duty of care owed
  invitees on business properties, the omitted sentence would not have had
  a probable effect on the jury's verdict and was not grounds for reversal;
  challenges to evidentiary rulings rejected.
 
063642U.pdf   09/14/2007 USA v. Edward Boyer

  U.S. Court of Appeals Case No: 06-3642
  U.S. District Court for the Eastern District of Missouri - Cape Girardeau
  Girardeau
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges
  Criminal case - Sentencing. Sentence imposed upon revocation of
  defendant's supervised release was not unreasonable.
 
063863P.pdf   09/14/2007 Robert House v. Michael J. Astrue

  U.S. Court of Appeals Case No: 06-3863
  U.S. District Court for the Southern District of Iowa - Des Moines
  [PUBLISHED] [Loken, Author, with Bye and Riley, Circuit Judges]
  Civil case - Social Security. Substantial evidence supported the ALJ's
  decision to give little weight to the treating physician's opinions that
  claimant cannot tolerate even one hour of prolonged sitting and must
  have the ability to elevate his legs, and the ALJ did not err in holding
  claimant was not disabled because he retained the residual functional
  capacity to perform certain sedentary jobs. Judge Bye, dissenting.
 
[ September 13, 2007 ]



061970P.pdf   09/13/2007 Julie Weger, et al v. City of Ladue et al.

  U.S. Court of Appeals Case No: 06-1970
  U.S. District Court for the Eastern District of Missouri - St. Louis
  [PUBLISHED] [Shepherd, Author, with Loken, Chief Judge, and Bye,
  Circuit Judge]
  Civil case - Employment discrimination. District court did not err in
  granting City's motion for summary judgment on plaintiffs' hostile work
  environment sexual harassment claims because the city demonstrated, as
  a matter of law, that it was entitled to the Ellereth-Faragher affirmative
  defense; the City met the prevention prong of the defense by showing that
  it had a facially valid antiharassment policy which brought the
  harassment to an immediate end when it was invoked by plaintiffs; the
  City did not have constructive notice of the incidents, and it did not have
  actual notice of the acts of harassment until the plaintiffs invoked the
  policy; the City's response once it had actual notice was timely and
  adequate and was sufficient to meet the correction prong of the
  affirmative defense; the district court did not err in finding that
  plaintiffs had unreasonably delayed in reporting the harassment, and the
  City established the second element of the Ellereth-Faragher affirmative
  defense, namely that plaintiffs unreasonably failed to take advantage of
  preventative or corrective opportunities provided by the employer; district
  court did not err in finding plaintiffs failed to make a prima facie case
  of retaliation because they failed to establish an adverse employment
  action. Chief Judge Loken, concurring. Judge Bye, concurring in part, and
  dissenting in part.
 
062731U.pdf   09/13/2007 United States v. Gordon David Reese

  U.S. Court of Appeals Case No: 06-2731
  U.S. District Court for the District of Minnesota - St. Paul
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Criminal case - Sentencing Guidelines. District court assessed relevant
  factors and did not abuse its discretion in selecting a sentence at the
  low end of the advisory guidelines range; sentence was not unreasonable.
 
062891U.pdf   09/13/2007 Robert L. Schulz v. United States

  U.S. Court of Appeals Case No: 06-2891
  District of Nebraska - Omaha
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Civil case - Federal tax. District court did not err in denying motion to
  quash a third-party summons issued to PayPal by the IRS, as the taxpayer
  failed to show the IRS abused the summons process or lacked good faith.
 
063000U.pdf   09/13/2007 E. Garcia Olivares v. Alberto Gonzales

  U.S. Court of Appeals Case No: 06-3000
  Immigration & Naturalization Service
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Petition for Review - Immigration. The Immigration Judge's decision
  that petitioner failed to establish either past persecution or a
  well-founded fear of future persecution on account of a protected ground
  was supported by substantial evidence in the record as a whole.
 
063035U.pdf   09/13/2007 Theodis Brown, Sr. v. St. Louis Cty. Civil

  U.S. Court of Appeals Case No: 06-3035
  U.S. District Court for the Eastern District of Missouri - St. Louis
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Civil case. Dismissal affirmed without comment.
 
063548P.pdf   09/13/2007 USA v. Arnoldo Solis-Bermudez

  U.S. Court of Appeals Case No: 06-3548
  U.S. District Court for the Northern District of Iowa - Sioux City
  [PUBLISHED] [Hansen, Author, with Murphy and Colloton, Circuit
  Judges]
  Criminal case - Sentencing. There was no inconsistency between the
  district court's discretionary determination that the failure to include
  defendant's conduct in the criminal history scoring did not substantially
  under-represent the seriousness of defendant's criminal history,
  Guidelines Sec. 4A1.3(a)(1), and its decision to impose an upward
  variance based on broader 18 U.S.C. Sec. 3553(a) considerations;
  defendant's history of deportation and illegal reentry, together with his
  serious criminal record, justified the district court's upward variance.
 
063904U.pdf   09/13/2007 United States v. Howard Lane

  U.S. Court of Appeals Case No: 06-3904
  U.S. District Court for the Western District of Missouri - Springfield
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton, and
  Benton, Circuit Judges]
  Criminal case - Criminal law. District court's order committing
  defendant under 18 U.S.C. Sec. 4245 to the custody of the Attorney
  General for care and treatment affirmed.
 
071006P.pdf   09/13/2007 United States of America v. Lynn Tran DeRosier

  U.S. Court of Appeals Case No: 07-1006
  U.S. District Court for the Southern District of Iowa - Des Moines
  [PUBLISHED] [Nangle, Author, with Bye and Smith, Circuit Judges]
  Criminal case - Criminal law and Sentencing. District court did not err
  in refusing to give defendant's proposed instruction on intent to defraud
  as the instruction was not supported by the applicable case law; district
  court did not err in calculating the amount of loss, and did not abuse its
  discretion in ordering restitution; district court did not abuse its
  discretion in denying defendant's motion to strike surplusage from the
  indictment; Apprendi argument rejected.
 
071396U.pdf   09/13/2007 United States v. Thomas Jensen

  U.S. Court of Appeals Case No: 07-1396
  U.S. District Court for the District of South Dakota
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Criminal case - Criminal law and Sentencing. District court did not err
  in finding the government proved defendant's violations of his supervised
  release nor did the court abuse its discretion in revoking the release;
  sentence imposed was not unreasonable.
 
[ September 11, 2007 ]



062144U.pdf   09/11/2007 Howard Danzig v. City of Dexter

  U.S. Court of Appeals Case No: 06-2144
  U.S. District Court for the Eastern District of Missouri - Cape Girardeau
  Girardeau
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Civil case. Dismissal affirmed without comment.
 
062161U.pdf   09/11/2007 William R. Cody v. Daryl Slykhuis

  U.S. Court of Appeals Case No: 06-2161
  U.S. District Court for the District of South Dakota
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Prisoner case - prisoner civil rights. Defendants' summary judgment on
  plaintiff's Section 1983 claims affirmed without comment.
 
063457U.pdf   09/11/2007 United States v. Keith Black

  U.S. Court of Appeals Case No: 06-3457
  U.S. District Court for the Northern District of Iowa - Sioux City
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - criminal law. District court did not abuse its discretion
  in denying defendant's motion to withdraw his guilty plea as his written
  motion did not offer a fair and just reason for withdrawing the plea.
 
063668P.pdf   09/11/2007 Barbara Robinson v. Brandtjen & Kluge

  U.S. Court of Appeals Case No: 06-3668
  U.S. District Court for the District of South Dakota
  [PUBLISHED] [Colloton, Author, with Loken, Chief Judge, and
  Arnold, Circuit Judge]
  Civil case - products liability. Lack of a detachable guard for use
  during manual feeding did not render defendant's printing press defective
  when it was manufactured in 1940; absence of a warning for obvious
  risks did not render press defective; district court did not err in granting
  summary judgment to defendant on plaintiff's negligence claims as they
  were based on the same design and warning theories rejected as bases for
  her products liabilities claims; defendant did not breach a post-sale duty
  to warn.
 
063736P.pdf   09/11/2007 United States v. M, A, Yah

  U.S. Court of Appeals Case No: 06-3736
  District of Nebraska - Omaha
  [PUBLISHED] [Melloy, Author, with Smith and Gruender, Circuit
  Judges]
  Criminal case - Sentencing. District court did not err in applying an
  upward adjustment under Guidelines Sec. 3B1.1 based on defendant's
  role as a leader of a scheme involving more than 5 people; government
  breached the plea agreement by failing to recommend a sentence at the
  low end of the applicable Guidelines range, and the case must be
  remanded for resentencing.
 
063998P.pdf   09/11/2007 Roy Kirby v. Michael J. Astrue

  U.S. Court of Appeals Case No: 06-3998
  U.S. District Court for the Western District of Missouri - Jefferson City
  [PUBLISHED] [Colloton, Author, with Loken, Chief Judge, and
  Arnold, Circuit Judge]
  Civil case - Social Security. Ample evidence supported the ALJ's
  conclusion that claimant's hand tremors were not severe, that he
  exaggerated or invented his physical ailments, that any genuine
  impairments were slight, and that any mental impairments he suffered
  were not significant; as a result, the district court erred in reversing the
  decision to deny benefits, and the district court's decision is reversed and
  the case is remanded with directions to enter judgment for the
  Commissioner.
 
064165U.pdf   09/11/2007 United States of America v. Tracy Shenett

  U.S. Court of Appeals Case No: 06-4165
  U.S. District Court for the District of Minnesota - St. Paul
  [UNPUBLISHED] {Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Criminal case - Sentencing. Under this court's precedents, commercial
  burglaries are crimes of violence under Guidelines Sec. 4B1.2.
 
071769U.pdf   09/11/2007 United States v. Keith Carter

  U.S. Court of Appeals Case No: 07-1769
  District of Nebraska - Omaha
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. Revocation sentence was not unreasonable.
 
[ September 10, 2007 ]



061833U.pdf   09/10/2007 NE Iowa Ethanol v. Jerry Drizin

  U.S. Court of Appeals Case No: 06-1833
  U.S. District Court for the Northern District of Iowa, Waterloo
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Civil case - Torts. District court did not err in finding defendant was
  liable for converting $3.8 million belonging to plaintiff; court did not err
  in awarding plaintiff $7.6 million in punitive damages as a preponderance
  of the evidence showed defendant's actions were taken with willful and
  wanton disregard of plaintiff's rights.
 
062711U.pdf   09/10/2007 USA v. Hernandez-Aguilar

  U.S. Court of Appeals Case No: 06-2711
  District of Nebraska - Omaha
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. District court did not err in denying
  defendant a safety-valve reduction under Guidelines Sec. 5C1.2(a).
 
062863U.pdf   09/10/2007 United States v. Randolph D. Jackson

  U.S. Court of Appeals Case No: 06-2863
  U.S. District Court for the Western District of Missouri - Kansas City
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Criminal case - Sentencing. Sentence was not unreasonable.
 
063875U.pdf   09/10/2007 Michael Thomas v. Garrett

  U.S. Court of Appeals Case No: 06-3875
  U.S. District Court for the Eastern District of Arkansas - Helena
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Prisoner case - prisoner civil rights. Dismissal affirmed without
  comment.
 
071093U.pdf   09/10/2007 USA v. Brian Hemphill

  U.S. Court of Appeals Case No: 07-1093
  U.S. District Court for the Northern District of Iowa - Cedar Rapids
  [UNPUBLISHED] [Per Curiam - Before Wollman, Colloton and
  Benton, Circuit Judges]
  Criminal case - Sentencing. Sentence was not unreasonable.
 
[ September 07, 2007 ]



063409P.pdf   09/07/2007 United States v. Iggy Santisteban

  U.S. Court of Appeals Case No: 06-3409
  U.S. District Court for the Western District of Missouri - Kansas City
  [PUBLISHED] [Colloton, Author, with Murphy and Hansen, Circuit
  Judges]
  Criminal Case - criminal law. Defendant's due process rights were not
  violated by government's failure to disclose impeachment evidence
  relating to investigative reports that provided the basis of the
  government's prosecution memorandum because the evidence was not
  material and was available to defendant through other channels.
  Statement in prosecution memorandum recounting a witness's statement
  is inadmissible hearsay. Refusal to allow cross-examination of witness's
  pending state prosecution was harmless error because counsel was able to
  show bias in other ways. District court did not err in failing to instruct
  jury on lesser-included offenses, as lesser-included offense required an
  additional element of proof. District court did not err in refusing to give a
  multiple conspiracy instruction.
 
063549P.pdf   09/07/2007 Jack Hammonds v. Hartford Fire Ins.

  U.S. Court of Appeals Case No: 06-3549
  U.S. District Court for the District of South Dakota
  [PUBLISHED] [Beam, Author, with Chief Judge Loken and Bye,
  Circuit Judges]
  Civil Case - Diversity. Grant of summary judgment to insurance
  company in bad faith denial or termination of benefits claim is affirmed.
  Requests for documentation and delay in payments did not result in
  compensable loss of services. Insurer had a reasonable basis to file
  petition to terminate benefits based on a change of circumstances and did
  not act in bad faith. Judge Bye dissents.
 
063749P.pdf   09/07/2007 USA v. David Turner

  U.S. Court of Appeals Case No: 06-3749
  U.S. District Court for the Northern District of Iowa - Sioux City
  [PUBLISHED] [Colloton, Author, with Murphy and Hansen, Circuit
  Judges]
  Criminal Case - Criminal law and sentence. Alleged misjoinder of
  methamphetamine manufacture and perjury counts did not result in actual
  prejudice, as the admission of evidence to support each count did not
  substantially influence the verdict of the other and the district court
  properly instructed the jury. Sufficient evidence supported perjury
  conviction as jury could find beyond a reasonable doubt that defendant
  intentionally gave false statement. District court did not clearly err in
  holding manufacturing methamphetamine posed a substantial risk of
  harm to human life because fire started by chemicals stored or used.
 
[ September 06, 2007 ]



051803U.pdf   09/06/2007 United States v. Daniel Ramirez

  U.S. Court of Appeals Case No: 05-1803
  U.S. District Court for the Western District of Missouri - Kansas City
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - criminal law. Evidence was sufficient to support drug
  conspiracy conviction; district court did not abuse its discretion in
  denying motion for new trial based on a claim a juror failed to disclose
  pertinent information during voir dire.
 
061173U.pdf   09/06/2007 United States v. Andres Manuel Romero

  U.S. Court of Appeals Case No: 06-1173
  U.S. District Court for the District of Minnesota - St. Paul
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley, and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. District court did not err in finding
  Amendment 591 to the Guidelines did not affect defendant's sentence.
 
062128P.pdf   09/06/2007 United States v. Carlos L. McAdory

  U.S. Court of Appeals Case No: 06-2128
  U.S. District Court for the District of Minnesota - St. Paul
  [PUBLISHED] [Wollman, Author, with Loken, Chief Judge, and John
  R. Gibson, Circuit Judge]
  Criminal case - Criminal law. Evidence was sufficient to support
  convictions for conspiracy and Hobbs Act violations; defendant waived
  his Speedy Trial Act claim; claim of ineffective assistance counsel should
  be brought in a Section 2255 proceeding.
 
062586P.pdf   09/06/2007 Katherine Davidson v. Michael J. Astrue, etc.

  U.S. Court of Appeals Case No: 06-2586
  U.S. District Court for the Western District of Missouri - Kansas City
  [PUBLISHED] [Colloton, Author, with Murphy and Hansen, Circuit
  Judges]
  Civil case - Social Security. Even if new medical reports were deemed
  relevant to the question of the claimant's earlier condition, the reports did
  not undermine the ALJ's conclusion that claimant could perform
  sedentary work during the relevant time period; the ALJ did not err in
  finding that some of claimant's testimony regarding her pain and
  limitations was not credible as it was inconsistent with other evidence in
  the record.
 
063500P.pdf   09/06/2007 United States v. Steven Wayne Pruett

  U.S. Court of Appeals Case No: 06-3500
  U.S. District Court for the Southern District of Iowa - Des Moines
  [PUBLISHED] [Bowman, Author, with Melloy and Gruender, Circuit
  Judges]
  Criminal case - criminal law. Leon "good faith" exception applied to
  search as the magistrate who issued the warrant did not abandon the
  judicial role, the application was not so deficient that reasonable officers
  could not believe it established probable cause, and the application did
  not omit material facts with the intention of misleading the magistrate;
  claim that the government added two counts in retaliation for defendant's
  failure to plead guilty rejected in the absence of any evidence of
  prosecutorial vindictiveness; evidence was sufficient to support
  conspiracy conviction; a person can use a firearm in violation of 18
  U.S.C. Sec. 924(c)(1) by receiving the firearm in a drug for weapons
  exchange.
 
063520P.pdf   09/06/2007 United States v. Gregory A. Sparkman

  U.S. Court of Appeals Case No: 06-3520
  U.S. District Court for the Eastern District of Missouri - Cape Girardeau
  Girardeau
  [PUBLISHED] [Colloton, Author, with Wollman and Shepherd,
  Circuit Judges]
  Criminal case - criminal law. District court did not err in denying
  motion to continue trial after defendant was unable to obtain the presence
  of a federal prisoner as a result of his own delay in requesting compulsory
  process for the witness; evidentiary challenges rejected; limiting
  instruction on "other acts" evidence was adequate to inform the jury of
  the permissible use of evidence of prior bad acts; district court was not
  obligated to give a specific instruction telling the jury that it must find by
  a preponderance of the evidence that the defendant committed the other
  acts.
 
063827P.pdf   09/06/2007 USA v. Juan Marquez-Alvarad

  U.S. Court of Appeals Case No: 06-3827
  U.S. District Court for the Southern District of Iowa - Des Moines
  [PUBLISHED] [Wollman, Author, with Loken, Chief Judge, and John
  R. Gibson, Circuit Judge]
  Criminal case - criminal law and sentencing. Admission of evidence
  under Rule 404(b) that defendant engaged in unrelated cocaine dealing
  was not an abuse of the district court's discretion as the evidence went to
  defendant's knowledge and intent to pursue the conspiracy at issue; no
  error in imposing an upward adjustment based on defendant's leadership
  role in the offense.
 
063881P.pdf   09/06/2007 United States v. Robert Lee Smart Jr.

  U.S. Court of Appeals Case No: 06-3881
  U.S. District Court for the Southern District of Iowa - Davenport
  [PUBLISHED] [Benton, Author, with Murphy and Shepherd, Circuit
  Judges]
  Criminal case - Criminal law and sentencing. Evidence was sufficient
  to support conviction for being a felon in possession of a firearm, as the
  government proved constructive possession; district court did not abuse
  its discretion in refusing to compel the testimony of two defense
  witnesses who invoked the Fifth Amendment; no error in enhancing
  sentence two levels because the guns defendant possessed were stolen;
  under advisory sentencing guidelines, sentence-enhancing facts need only
  be proven by a preponderance of the evidence; no error in calculating the
  number of firearms or in imposing an upward adjustment based on the
  number of firearms defendant possessed; sentence was not unreasonable.
 
063893P.pdf   09/06/2007 Keva Tyree O'Neal v. Michael Kenny

  U.S. Court of Appeals Case No: 06-3893
  District of Nebraska - Lincoln
  [PUBLISHED] [Smith, Author, with Melloy and Gruender, Circuit
  Judges]
  Prisoner case - habeas. Under Nebraska law, the AEDPA statute of
  limitations calculation is not affected when a new direct appeal is granted
  on post-conviction review; as a result, the district court did not err in
  determining that petitioner's habeas petition was time barred.
 
063915P.pdf   09/06/2007 USA v. Shondell Ingram

  U.S. Court of Appeals Case No: 06-3915
  U.S. District Court for the Western District of Missouri - Kansas City
  [PUBLISHED] [Colloton, Author, with Murphy and Hansen, Circuit
  Judges]
  Criminal law and sentencing. Evidence was sufficient to support
  conviction for being a felon in possession of a firearm; district court did
  not abuse its discretion in refusing to admit videotaped statements to
  impeach certain prosecution witnesses as defendant was given an
  adequate opportunity to present any inconsistencies in the witnesses'
  statements; under the law of this circuit, a prior walkaway escape is a
  violent felony for purposes of Armed Career Criminal Act; district court
  did not err in finding defendant possessed the firearm in connection with
  another felony offense.
 
[ September 05, 2007 ]



061891U.pdf   09/05/2007 United States v. Enrique Cazarez

  U.S. Court of Appeals Case No: 06-1891
  U.S. District Court for the Western District of Missouri - Kansas City
  [UNPUBLISHED] [Per Curiam - Between Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. Sentence was not unreasonable.
 
063516P.pdf   09/05/2007 United States v. Nagappan Chettiar

  U.S. Court of Appeals Case No: 06-3516
  U.S. District Court for the District of Minnesota - St. Paul
  [PUBLISHED] [Bye, Author, with Bright and Riley, Circuit Judges]
  Criminal case - Sentencing. Case remanded for further proceedings to
  permit the district court to identify in greater detail the grounds for the
  variance.
 
[ September 04, 2007 ]



062570U.pdf   09/04/2007 Kathaleen Burnett v. Nagl Manufacturing

  U.S. Court of Appeals Case No: 06-2570
  District of Nebraska - Omaha
  [UNPUBLISHED] [Per Curiam - Before Murphy, Smith and Shepherd,
  Circuit Judges]
  Civil case - Employment Discrimination. Defendant's summary
  judgment affirmed without comment.
 
062716U.pdf   09/04/2007 United States v. Marvin Alton McKay

  U.S. Court of Appeals Case No: 06-2716
  U.S. District Court for the Eastern District of Missouri - Cape Girardeau
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal case - Sentencing. Defendant did not qualify for the credit
  under Guidelines Sec. 5G1.3(b), and the district court did not err in
  sentencing him to the statutory minimum sentence; under Almendarez-
  Torres v. United States, recidivism, as a basis for increasing a sentence,
  need not be charged in an indictment or proven to a jury.
 
062766U.pdf   09/04/2007 United States v. Dewayne Hamilton

  U.S. Court of Appeals Case No: 06-2766
  U.S. District Court for the Eastern District of Arkansas - Little Rock
  [UNPUBLISHED] [Per Curiam - Before Bye, Riley and Melloy,
  Circuit Judges]
  Criminal Case - Sentencing. Sentence was not unreasonable.
 
063432P.pdf   09/04/2007 United States v. Rodney M. Raglin

  U.S. Court of Appeals Case No: 06-3432
  U.S. District Court for the Eastern District of Arkansas - Little Rock
  [PUBLISHED] [Loken, Author, with Arnold and Colloton, Circuit
  Judges]
  Criminal case - Sentencing. District court did not err in imposing a
  four-level enhancement under Guidelines Sec. 2K2.1 based on its finding
  that defendant possessed the firearm while committing aggravated
  assault; a preponderance of the evidence supported the district court's
  finding that defendant's use of deadly force - pointing the gun at
  undercover police officers he believed were trespassing on his property -
  was not justified under Arkansas law.