Sixth Circuit Cases

Jul. 23-27, 2007 6th Circuit Published Decisions (2 Ky Cases; 1 NPO)

Opinion	Pub Date	Short Title/District
07a0276p.06	2007/07/23	Warren v. Detroit     Eastern District of Michigan at Detroit CRIMINAL: SENTENCING McKinley, District Judge. Defendant-Appellant Fidelity Murchison appeals her sentence on one count of conspiring to distribute five or more kilograms of powder cocaine and fifty or more grams of crack cocaine pursuant to 21 U.S.C. §§ 846 and 841(b)(1)(A) and one count of conspiring to commit money laundering offenses pursuant to 18 U.S.C. § 1956(h). Murchison contends that the United States breached the plea agreement when it failed to inform the district court as to her cooperation. Murchison also claims that the district court erred when it failed to treat the Sentencing Guidelines as advisory and failed to consider the sentencing factors set forth in 18 U.S.C. § 3553(a). For the reasons that follow, we VACATE Murchison’s sentence and REMAND the case to the district court.
07a0277p.06	2007/07/23	Schultz v. Davis     Eastern District of Tennessee at Greeneville STATUTE OF LIMITATIONS; SUMMARY JUDGMENT ANN ALDRICH, District Judge. The petitioners, Maryann Schultz and James Schultz (collectively hereinafter “the Schultzes”), seek reversal of the district court opinion granting Smoky Mountain Materials, Inc.’s (“Smoky”) motion to dismiss, and Frank Carter’s (“Carter”) motion for summary judgment. Because the applicable statute of limitations bars the Schultzes’ personal injury claims, and T.C.A. § 20-1-119 is not applicable to the facts of this case, we affirm the district court opinion.
07a0278p.06	2007/07/23	USA v. Wilms     Eastern District of Michigan at Detroit SENTENCING GUIDELINES KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Blake Wilms (“Wilms”) appeals his sentence of sixty-three months in prison following his plea of guilty to four counts of bank robbery and one count of attempted bank robbery. Wilms argues that the district court improperly applied a presumption of reasonableness to the applicable Guidelines range, thereby failing to consider properly the sentencing factors set forth in 18 U.S.C. § 3553(a). Because the record indicates that the district court applied a rebuttable presumption that Wilms should be sentenced within the applicable Guidelines range, we VACATE Wilms’s sentence and REMAND the case for resentencing.
07a0279p.06	2007/07/23	USA v. Jones     Eastern District of Tennessee at Chattanooga CRIMINAL: COMPETENCY HEARING RYAN, Circuit Judge. The defendant, Isaac Jones, Jr., was charged with possession of firearms in violation of 18 U.S.C. § 922(g)(1). At a hearing where Jones was scheduled to plead guilty to that charge, the district court judge closely questioned Jones to ensure that his guilty plea was knowing and voluntary. Jones, who is deaf, answered a number of the judge’s questions, but appeared to have trouble understanding and answering one of the questions. The judge ended the hearing and later declared Jones incompetent to stand trial, without first holding a competency hearing as requested by the United States. We now vacate the district court’s finding that Jones is incompetent and remand for a competency hearing.
07a0280a.06	2007/07/24	Vasquez v. Jones     Eastern District of Michigan at Detroit HABEAS CORPUS: INEFFECTIVECOUNSEL COOK, Circuit Judge. Emilio Salomon Vasquez appeals the district court’s denial of his habeas corpus petition. We reverse and remand with instructions to grant the petition. Vasquez cannot demonstrate that defense counsel provided constitutionally ineffective assistance at the preliminary examination hearing. But Vasquez has established that the state court violated his Confrontation Clause right to impeach Demond Brown’s credibility with his criminal record. The state court’s resolution of this claim represents an unreasonable application of Supreme Court Confrontation Clause jurisprudence, most notably Davis v. Alaska, and this error was not harmless under the Brecht standard. For these reasons, we reverse and remand to the district court with instructions to grant Vasquez’s petition for habeas corpus.
07a0281p.06	2007/07/25	Getsy v. Mitchell     Northern District of Ohio at Cleveland HABEAS CORPUS: DEATH SENTENCE RONALD LEE GILMAN, Circuit Judge. In September of 1996, an Ohio jury convicted Jason Getsy of murder-for-hire in connection with the killing of Ann Serafino and recommended that he be sentenced to death. The state trial court concurred, and Getsy received no relief either on direct appeal or in state postconviction proceedings. He thereafter filed a petition for federal habeas corpus relief. Getsy’s petition was denied by the district court, but a panel of this court reversed the district court’s judgment with regard to his death sentence. The panel majority held that Getsy’s death sentence was unconstitutionally disproportionate to the life sentence that the separately tried instigator of the plot received for procuring the murder. It also remanded the case for an evidentiary hearing regarding Getsy’s claim of judicial bias against the state trial-court judge. Thereafter, this court granted the Warden’s petition for en banc review and vacated the panel decision. For the reasons set forth below, we AFFIRM the district court’s denial of Getsy’s habeas corpus petition.
07b0008p.06	2007/07/25	In re: Cheryl Forbes v.     Eastern District of Kentucky at Lexington BANKRUPTCY J. VINCENT AUG, JR., Bankruptcy Appellate Panel Chief Judge. This appeal involves an alleged fraudulent transfer by Cheryl Forbes (the “Debtor”) to her sister, D. Lavonne Eiseman (“Eiseman”). The disputed transfer occurred when the Debtor’s ex-husband, Gregory Forbes (“Greg Forbes”), loaned approximately $157,000 to Eiseman. Eiseman used those funds as a down payment toward the purchase of a house for the Debtor in Lodi, California and subsequently, in Versailles, Kentucky. The bankruptcy court found that the $157,000 down payment on the Lodi property was, in actuality, property of the Debtor, that the transfer of the funds to Eiseman constituted an avoidable fraudulent conveyance under § 544(b) of the Bankruptcy Code, and that the Versailles property was property of the Debtor’s estate. For the reasons that follow, the bankruptcy court’s judgment is AFFIRMED.
07b0009p.06	2007/07/25	In re: Morgeson v.     Southern District of Ohio at Cincinnati BANKRUPTCY MARY ANN WHIPPLE, Bankruptcy Appellate Panel Judge. Accredited Home Lenders (“Accredited”) appeals the entry of summary judgment by the bankruptcy court in favor of the Chapter 7 Trustee (“the Trustee”) in an adversary proceeding in which the Trustee sought a determination of the validity and extent of Accredited’s mortgage against the debtors’ real estate, which was subject to the Ohio Land Registration Act. In granting summary judgment, the bankruptcy court found that Accredited’s mortgage interest in the debtors’ real estate (“the property”) extends only to husband David Morgeson’s one-half interest in the property, thereby reserving wife Tina Morgeson’s one-half interest for the bankruptcy estate. For the reasons that follow, the bankruptcy court’s decision is AFFIRMED.
07a0282p.06	2007/07/26	USA v. Heriot     Northern District of Ohio at Youngstown CRIMINAL ALAN E. NORRIS, Circuit Judge. Defendant Juan L. Heriot appeals from his conviction and sentence for trafficking in crack cocaine. Defendant contends that he is entitled to a new trial for two reasons: first, the government failed to disclose critical impeachment information about the latter’s primary witness until after trial; second, the district court mishandled the jury’s questions about its inability to reach a unanimous verdict on all counts. Defendant also argues that his 360-month sentence of incarceration is unreasonable in light of United States v. Booker, 543 U.S. 220 (2005). The judgment is affirmed.
07a0283p.06	2007/07/26	USA v. Rayborn     Western District of Tennessee at Memphis CRIMINAL: BOYCE F. MARTIN, JR., Circuit Judge. On August 25, 1998, the New Mount Sinai Missionary Baptist Church in Memphis, Tennessee, was destroyed by a fire. The church’s fiery pastor, Reverend Gerald Rayborn, was convicted of arson and mail fraud under 18 U.S.C. §§ 844(i) and 1341, respectively, for setting his church on fire and attempting to collect money from the church’s insurance company after the fire. On appeal, Rayborn raises four challenges. First, he contends that his church was not sufficiently involved in interstate commerce to trigger the federal arson statute. Second, he claims that the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt on all charges. Third, Rayborn argues that evidence of his access to and control of church finances was inadmissible under Federal Rule of Evidence 404(b), and therefore, the district court erred in allowing this evidence to be presented at trial. Finally, he challenges a particular rebuttal witness whom the government called to testify at trial. For the reasons outlined below, Rayborn’s convictions are AFFIRMED.
07a0284p.06	2007/07/26	USA v. Poynter     Eastern District of Kentucky at Lexington SENTENCING SUTTON, Circuit Judge. Avery Poynter, 36 years old, pleaded guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with two minors. After calculating a guidelines range of 188–235 months and considering the § 3553(a) factors, the district court imposed a 720-month sentence (the statutory maximum) because Poynter was a repeat child sex offender. Unable to conclude that this variance resulted from a reasonable application of § 3553, we reverse.
07a0285p.06	2007/07/27	Tiseo Architects Inc v. B & B Pools Serv     Eastern District of Michigan at Detroit COPYRIGHT ROGERS, Circuit Judge. Tiseo Architects, Inc., alleged that another architect, Gary Olson, copied a design and site plan drawings that Tiseo Architects had prepared for B&B Pools Service and Supply Company. After a bench trial, the district court ruled in favor of the defendants, B&B Pools and Olson. Tiseo Architects now appeals, arguing that the district court applied the wrong legal standard in reaching its conclusion that Olson’s design and construction drawings were not substantially similar to Tiseo Architects’ design and site plan drawings. Because the district court properly analyzed the similarity of the works after filtering out the unprotectable elements of Tiseo Architects’ drawings, the judgment of the district court is affirmed.
07a0286p.06	2007/07/27	Radvansky v. Olmsted Falls     Northern District of Ohio at Cleveland CIVIL RIGHTS 42 USC 1983 COOK, Circuit Judge. Plaintiff Geoffrey Radvansky appeals from a jury verdict rendered for Defendant police officers Ralph Saxer and Thomas Telegdy in his 42 U.S.C. § 1983 action against them. Radvansky appeals to the Sixth Circuit for the second time in this case, as he successfully sought a reversal of the district court’s grant of summary judgment to the defendants on this claim in Radvansky v. City of Olmsted Falls (Radvansky I), 395 F.3d 291 (6th Cir. 2005). He now seeks a reversal of the district court’s denial of his motions made pursuant to Fed. R. Civ. P. 49, 50, and 59; challenges the court’s jury instructions as prejudicially erroneous; and requests a grant of fees due to his previous success in this court. Because the jury’s verdict was reasonable, the instructions not prejudicial, and Radvansky not a “prevailing party,” we affirm.

NONPUBLISHED KENTUCKY DECISIONS

Opinion	Pub Date	Short Title/District
07a0528n.06	2007/07/25	Parrelli-Ball v. Dept of Treasury     Eastern District of Kentucky at Covington ALICE M. BATCHELDER, Circuit Judge. Tina M. Parrelli-Ball was an employee of the Internal Revenue Service, a division of the Treasury Department. Ms. Parrelli-Ball retired in 1989 and began receiving disability benefits for an anxiety condition. In 1990 she settled a previously filed discrimination claim against the IRS and received $11,000, but also agreed to never again seek employment with the IRS. In 2004 she pleaded guilty to a criminal charge of making a false statement on a compensation form, and the federal court sentenced her to home detention and probation, ordered her to pay restitution and a fine, and terminated her disability benefits. After carefully reviewing the record, the law, and the parties’ briefs, we conclude that the district court’s opinion correctly sets out the applicable law and correctly applies that law to the facts contained in the record. The issuance of a full written opinion by this court would serve no useful purpose. Accordingly, for the reasons stated in the district court’s opinion, we AFFIRM.

Jul. 16-20, 2007 6th Circuit Published Decisions (2 Ky Cases)

Opinion	Pub Date	Short Title/District
07a0266p.06	2007/07/17	Alston v. Advanced, et al Eisenberg v. Anheuser-Busch Inc     Eastern District of Michigan at Detroit CIVIL PROCEDURE: 12(b)(6) STANDING CALICE M. BATCHELDER, Circuit Judge. In this consolidated appeal, the plaintiffs appeal the dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of their complaints alleging that the defendants’ advertising is responsible for the underage, and therefore illegal, purchase of alcoholic beverages by the plaintiffs’ minor children. See Alston v. Advanced Brands & Importing Co., No. Civ. 05-72629, 2006 U.S. Dist. Lexis 31324, 2006 WL 1374514 (E.D. Mich. May 19, 2006); Eisenberg v. Anheuser-Busch, Inc., No. 1:04 CV 1081, 2006 U.S. Dist. Lexis 4058, 2006 WL 290308 (N.D. Ohio Feb. 2, 2006). Because we find that the plaintiffs lack standing, we vacate the district courts’ orders and remand with instructions that the complaints be dismissed for lack of jurisdiction.
07a0267p.06	2007/07/18	Renfro v. IN MI Power Co     Western District of Michigan at Grand Rapids LABOR LAW: FAIR LABOR STANDARDS ACT EXEMPTIONS COOK, Circuit Judge. This case requires us to consider for the second time whether certain American Electric Power (AEP) employees are exempt from the Fair Labor Standards Act’s (FLSA) overtime regulations. In Renfro v. Ind. Mich. Power Co. (Renfro I), 370 F.3d 512 (6th Cir. 2004), we held that the regulations did not apply to AEP planners. Applying the same analysis to AEP’s technical writers, we conclude that they too are exempt from overtime regulations. We reverse and remand with instructions to enter summary judgment in favor of AEP.
07a0268p.06	2007/07/18	RSR Corp v. Coml Metals Co     Southern District of Ohio at Dayton ENVIRONMENTAL REMEDIATION SUTTON, Circuit Judge. More than three years after signing a consent decree with the United States to pay for the environmental remediation of a contaminated industrial site in Arcanum, Ohio, RSR Corporation filed this lawsuit seeking contribution for the clean-up costs from Commercial Metals Company. Because the district court properly determined that RSR filed this contribution action after the three-year limitations period, see 42 U.S.C. § 9613(g)(3), we affirm.
07a0269p.06	2007/07/18	Doe v. MI Dept State, et al     Eastern District of Michigan at Detroit MICHIGAN CLASS ACTION SUIT RE SEX OFFENDER STATUTE RONALD LEE GILMAN, Circuit Judge. This is an appeal from the district court’s award of summary judgment to the state of Michigan in a putative class action case that challenges the constitutionality of certain provisions of the State’s Sex Offender Registration Act (SORA). The plaintiff represents one of two proposed classes of individuals who were assigned to “youthful trainee status” under the State’s Holmes Youthful Trainee Act (HYTA) for sex offenses and, under Michigan law, were then required to register as sex offenders. On appeal, the plaintiffs contend that the district court erred when it found that they had suffered no due process or equal protection violations from the requirement that they register and appear on Michigan’s Public Sex Offender Registry (PSOR). For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0270p.06	2007/07/18	Badwan v. Gonzales     Board of Immigration Appeals CONTINUANCE SUTTON, Circuit Judge. Abdulbaset Mohamad Badwan contends that the Immigration Judge, seconded by the Board of Immigration Appeals, abused his discretion in denying Badwan’s unopposed motion for a continuance to present evidence in support of his application for adjustment of status. We agree, reverse and remand for further proceedings.
07a0271p.06	2007/07/19	Helms v. Zubaty     Eastern District of Kentucky at Covington CIVIL RIGHTS 42 USC 1983 ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant, Marie Helms (“Helms”), appeals the district court’s grant of summary judgment in favor of Defendants-Appellees George Zubaty and Winslow Baker (Gallatin County, Kentucky, employees) and Brent Caldwell, Donnie Gould, and Travis Simpson (City of Warsaw, Kentucky, employees) (collectively “Defendants”), on Helms’s claims arising under 42 U.S.C. § 1983 that Defendants violated her First Amendment right of free speech. Because Helms presents no genuine issue of material fact and Defendants are entitled to judgment as a matter of law, we AFFIRM the district court’s decision.
07a0272p.06	2007/07/19	USA v. Hamad     Northern District of Ohio at Youngstown SENTENCING GUIDELINES; UNDISCLOSED EVIDENCE SUTTON, Circuit Judge. What happens when a district court, applying the advisory sentencing guidelines, not only increases a sentence based on its own fact findings but also does so on the basis of evidence never fully disclosed to the criminal defendant? One reading of Rule 32 of the Federal Rules of Criminal Procedure would authorize this procedure; another would not. Because the escalation of a sentence based on undisclosed evidence raises serious due process concerns, we construe the rule to require a sentencing court either to disclose sufficient details about the evidence to give the defendant a reasonable opportunity to respond or, failing that, to refrain from relying on the evidence. We vacate Hatem Hamad’s sentence and remand for resentencing.
07a0273p.06	2007/07/20	Travelers Indemnity v. Bowling Green Prof     Western District of Kentucky at Bowling Green JURISDICTION: INSURANCE COVERAGE DISPUTE DECLARATORY JUDGMENT ACTION GRIFFIN, Circuit Judge. In this insurance coverage dispute, Bowling Green Professional Associates (“Bowling Green”), an out-patient drug treatment facility in Kentucky, appeals a declaratory judgment and summary judgment opinion and order of the district court. The crux of 1 this declaratory judgment action is whether either of two liability policies issued to Bowling Green by two different insurers, Travelers Indemnity Company of Connecticut (“Travelers”), and Evanston Insurance Company (“Evanston”), provide coverage to Bowling Green for a wrongful-death lawsuit brought in Kentucky state court. Following Bowling Green’s demand to its insurers for litigation defense and liability indemnity, Travelers filed this action in federal district court in the Western District of Kentucky seeking a declaratory judgment of whether it owed a duty to defend or indemnify Bowling Green in the underlying state court action. Evanston cross-claimed seeking a similar declaration regarding the Caudill estate claims only. The district court exercised jurisdiction and granted the insurers’ motions for declaratory judgment. Bowling Green timely appealed. For the reasons set forth below, we hold that the district court abused its discretion in exercising declaratory judgment jurisdiction. Accordingly, we vacate the order and judgment of the district court and remand with instructions to dismiss for lack of jurisdiction.
07a0274p.06	2007/07/20	USA v. Craft     Northern District of Ohio at Youngstown SENTENCING RICHARD MILLS, District Judge. On August 26, 2004, the district court sentenced Craft. The court never engaged Craft in a 21 U.S.C. § 851(b) colloquy to determine whether he contested the prior conviction stated in the government’s April 8 tender. However, upon consideration of the applicable statutory mandatory minimum, the district court sentenced Craft to 240 months in prison and imposed a term of 10 years supervised release. Craft timely appealed, raising four issues for this Court’s consideration. AFFIRMED.
07a0275p.06	2007/07/20	USA v. Liou     Southern District of Ohio at Columbus SENTENCING KAREN NELSON MOORE, Circuit Judge. Ming Liou appeals the twelve-month sentence imposed after he pleaded guilty to a single count of bribing a public official, in violation of 18 U.S.C. § 201(b)(1)(A). In light of the United States Supreme Court’s recent decision in Rita v. United States, --- U.S. ----, 127 S. Ct. 2456 (2007), we AFFIRM the district court’s sentence.

Jul. 09-13, 2007 6th Circuit Published Decisions (1 Ky Cases)

Opinion	Pub Date	Short Title/District
07a0254p.06	2007/07/10	Hartman v. Bagley     Northern District of Ohio at Cleveland HABEAS CORPUS RONALD LEE GILMAN, Circuit Judge. Brett X. Hartman was convicted in an Ohio state court of aggravated murder and was sentenced to death. After exhausting his state-court remedies, he filed a petition for habeas corpus in federal district court. The district court denied his petition, but issued a certificate of appealability (COA) regarding one of Hartman’s claims. This court added three more claims to the COA. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0255p.06	2007/07/10	Dixon v. Clem     Eastern District of Kentucky at London 42 USC 1983 ACTION: SOL RONALD LEE GILMAN, Circuit Judge. In 1996, David H. Dixon lost his job as a teacher at Cumberland High School in Harlan County, Kentucky after the revelation that he had taken topless photographs of S.C., one of his female students. A state administrative tribunal subsequently upheld his termination following a hearing in which the school introduced numerous photographs to validate its determination that Dixon had indeed engaged in “conduct unbecoming a teacher. Claiming that the state tribunal and related defendants had violated his constitutional right to the due process of law by allowing faked photographs to be submitted against him, Dixon brought the instant suit in federal court pursuant to 42 U.S.C. § 1983. The district court dismissed Dixons claims against each of the defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, holding that Dixon had failed to comply with the applicable one-year statute of limitations. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0256p.06	2007/07/10	USA v. Moncivais     Western District of Tennessee at Memphis SENTENCING CLAY, Circuit Judge. Defendant Alberto Moncivais appeals his sentence of 336 months imprisonment imposed following a guilty plea. Defendant pled guilty to one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. 841(a)(1) and 846. On appeal, Defendant contends that: (1) the district court erred by sentencing him based on evidence that was inadmissible as a matter of law due to its unreliability; (2) the district court erred by concluding that Defendant was an organizer or leader and enhancing his advisory United States Sentencing Guidelines (Guidelines or U.S.S.G.) range by four points pursuant to U.S.S.G. § 3B1.1(a); (3) the government breached the plea agreement; (4) the district court violated Defendant's right to due process by finding facts at sentencing by a preponderance of the evidence; and (5) the district court violated Defendant rights under the Confrontation Clause by admitting testimonial hearsay at sentencing, notwithstanding the fact that the declarant did not testify, and Defendant had not had an opportunity to cross-examine the declarant. For the reasons stated below, we AFFIRM Defendant's conviction and sentence.
07a0257p.06	2007/07/10	Brown, et al v. Cassens, et al     Eastern District of Michigan at Detroit WIRE FRAUD JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellants Paul Brown, William Fanaly, Charles Thomas, Gary Riggs, Robert Orlikowski, and Scott Way (plaintiffs) filed suit in federal district court against defendants-appellees Cassens Transport Company (Cassens), Crawford & Company (Crawford), and Dr. Saul Margules (defendants) alleging that defendants employed mail and wire fraud in a scheme to deny them worker’s compensation benefits promised under the Michigan Workers Disability Compensation Act (WDCA), Mich. Comp. Laws § 418.301, and raising federal and state law claims. On defendants motion, the district court dismissed plaintiffs complaint for failure to state a claim on which relief could be granted. Fed. R. Civ. P. 12(b)(6). For the reasons below, we affirm.
07a0258p.06	2007/07/11	Meals v. Memphis Cty     Western District of Tennessee at Memphis 42 USC 1983; QUALIFIED IMMUNITY JOHN R. ADAMS, District Judge. This high-speed police pursuit case deals with the shocks the conscience standard set forth in County of Sacramento v. Lewis, 523 U.S. 833 (1998), and its application to the police pursuit in this case. Appellant Bridgette King (Officer King) is employed as a police officer by appellant City of Memphis, Tennessee (the City). Appellee Audrey Meals, individually and as wife and next friend of James Harvey Meals, deceased, and as natural parent, guardian and next friend of William Meals, a minor child, filed a complaint against Officer King and the City under 42 U.S.C. § 1983 alleging, inter alia, deprivation of the Fourteenth Amendment substantive due process rights of her family in causing their death or personal injuries as the result of a police pursuit for a traffic violation. The district court denied the Citys motion for summary judgment as to appellee's § 1983 claim for violation of the Fourteenth Amendment and her state law claim for negligence. The district court subsequently denied Officer King's motion for summary judgment both as to appellee's § 1983 claim for violation of the Fourteenth Amendment and also her claim of qualified immunity. For the reasons that follow, we reverse the district court's denial of qualified immunity to Officer King and denial of summary judgment to the City on the § 1983 claim for violation of the Fourteenth Amendment.
07a0259p.06	2007/07/11	USA v. Lanesky     Eastern District of Michigan at Detroit SENTENCING: ALICE M. BATCHELDER, Circuit Judge. Michelle Lanesky pled guilty to one count of conspiracy to commit bank fraud and launder the proceeds, in violation of 18 U.S.C. §§ 371, 1956 & 1957, and one count of bank fraud, in violation of 18 U.S.C. § 1344. The district court sentenced her to two concurrent terms of 36 months incarceration, three years supervised release, the mandatory $200 special assessment, and restitution in the amount of $1,131,207.28, for which the court held Ms. Lanesky jointly and severally liable with her co-conspirators. In her timely appeal, Ms. Lanesky assigns as error the district court’s failure to address fully or to resolve the objections she raised with regard to the presentence report (PSR). Because we conclude that the district court neither ruled on these objections nor determined that the matters would not affect or be considered in the sentencing, and because the court did not calculate and consider a correct advisory guideline sentence, we vacate the sentence and remand for resentencing.
07a0260p.06	2007/07/11	USA v. McGee     Western District of Michigan at Grand Rapids SENTENCING McKEAGUE, Circuit Judge. Appellant Richard Bruce McGee was found guilty of possession with intent to distribute cocaine base, being a felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime. With respect to the first two offenses, the district court calculated a Guidelines range of 46-57 months in prison and sentenced Appellant to 48 months for each offense, to be served concurrently. With respect to the third offense, the district court sentenced Appellant to the statutory mandatory minimum of 60 months in prison, to be served consecutively to the 48-month sentence. On appeal, Appellant claims that (1) the district court erred in the scoring of his criminal history category and (2) his sentence is unreasonable. For the reasons stated below, we AFFIRM.
07a0261p.06	2007/07/11	Parks v. LaFace Records     Eastern District of Michigan at Detroit ATTORNEY FEES After reviewing the record, we conclude that the fee sharing agreements are not ambiguous and pursuant to the settlement agreement should be enforced.
07a0262p.06	2007/07/12	USA v. Collier     Western District of Michigan at Grand Rapids SENTENCING COOK, Circuit Judge. Anthony Leon Collier, who pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), appeals his sentence, which was enhanced under the Armed Career Criminals Act (ACCA), 18 U.S.C. § 924. We vacate his sentence and remand for resentencing.
07a0263p.06	2007/07/13	Haliym v. Mitchell     Northern District of Ohio at Cleveland HABEAS CORPUS CLAY, Circuit Judge. Petitioner Abdul Haliym, formerly known as Wayne Frazier, appeals the district court’s denial of his petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises multiple challenges to his convictions for, inter alia, two counts of aggravated murder and his sentence of death. For the reasons stated below, we AFFIRM the district court's denial of the writ with respect to Petitioner’s convictions, but REVERSE the district court's denial of the writ with respect to Petitioner's sentence because Petitioner was denied the effective assistance of counsel during the mitigation phase of his sentencing.
07a0264p.06	2007/07/13	In re Abdur'Rahman v.     Middle District of Tennessee at Nashville HABEAS CORPUS SILER, Circuit Judge. In 2004, our en banc court concluded that Abu-Ali AbdurRahman's post-judgment motion should be treated as a Fed. R. Civ. P. 60(b) motion rather than a second or successive habeas petition. In 2005, the Supreme Court granted certiorari in this case, vacated our previous judgment, and remanded for our consideration in light of Gonzalez v. Crosby, 545 U.S. 524 (2005). Bell, 545 U.S. 1151. Based on Gonzalez, AbduRahman's motion should be treated as a motion pursuant to Rule 60(b), not a second or successive habeas petition. However, we dismiss his motion as untimely.
07a0265p.06	2007/07/13	Amer Family Prepaid v. Columbus Bar Assn     Southern District of Ohio at Columbus UNAUTHORIZED PRACTICE OF LAW: CEASE AND DESIST SILER, Circuit Judge. American Family Prepaid Legal Corporation (American Family) appeals the district court's dismissal, on abstention grounds, of its constitutional due process challenge to the Ohio Supreme Court rule governing the unauthorized practice of law. Under Rule VII, Section 5(a) of the Ohio Supreme Court Rules for the Government of the Bar (the Rule), the unauthorized practice of law committee of any bar association may file a motion for an interim cease and desist order with the Ohio Supreme Court, pending resolution of whether the party is engaged in the unauthorized practice of law. Because American Family has not met its burden of showing that its due process challenge to the Rule will not be resolved in the course of the current proceedings under Ohio law, we AFFIRM the district court's decision to abstain based on Younger v. Harris, 401 U.S. 37 (1971).

Jul. 2-6, 2007 6th Circuit Published Decisions (No Ky Cases)

Opinion	Pub Date	Short Title/District
07a0250p.06	2007/07/02	USA v. Rayborn     Western District of Tennessee at Memphis CRIMINAL: BOYCE F. MARTIN, JR., Circuit Judge. Defendant Gerald Rayborn was charged with one count of conspiracy to commit mail fraud, wire fraud, and money laundering in violation of 18 U.S.C. § 371, two counts of aiding and abetting mail fraud in violation of 18 U.S.C. §§ 1341 and 2, and money laundering in violation of 18 U.S.C. § 1957. Following a jury trial, he was convicted on all counts, and now brings this appeal. For the reasons below, we AFFIRM Rayborn’s conviction.
07a0251p.06	2007/07/03	In re Bucci v.     Northern District of Ohio at Cleveland BANKRUPTCY: GRAHAM, District Judge. This action presents the question of whether the United States Bankruptcy Code excludes from discharge a debt that an employer owes for failing to contribute to employee benefit funds. Debtor Charles S. Bucci signed a collective bargaining agreement in 2003 requiring his company, Floors by Bucci, Inc., to make monthly contributions to pension and fringe benefit funds. Bucci admits that he failed to contribute to the funds for over a year. In 2005, he filed a Chapter 7 bankruptcy petition. Appellants, who represent the various funds (the “Funds”), filed an adversary proceeding in the bankruptcy court, seeking a declaration that Bucci’s debt could not be discharged. They argued that his failure to contribute to the funds was a “defalcation while acting in a fiduciary capacity” under 11 U.S.C. § 523(a)(4). The bankruptcy court held that § 523(a)(4) did not apply because there was no evidence demonstrating Bucci acted as a fiduciary of the monies owed to the funds. On appeal, the district court affirmed and rejected the Funds’ contention that Bucci’s status as a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) also made him a fiduciary for purposes of § 523(a)(4)’s defalcation provision. Because the requirements for a defalcation under § 523(a)(4) are not met in this case, we AFFIRM.
07a0252p.06	2007/07/06	Logsdon v. Hains     Southern District of Ohio at Cincinnati CIVIL RIGHTS SEC. 1983 ACTION CLAY, Circuit Judge. Plaintiff, Joseph Michael Logsdon, appeals the district court’s order granting a Rule 12(b)(6) motion brought by Defendants, Charles Hains and Daniel McShane, and dismissing Plaintiff’s § 1983 suit and related claims. Plaintiff alleged violations of his rights under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution, and asserted various state law claims for violations of the Ohio Constitution and state common law. For the reasons that follow, we REVERSE the district court’s order and REMAND for further proceedings consistent with this opinion.
07a0253p.06	2007/07/06	Amer Civil Liberties v. Natl Security Agcy     Eastern District of Michigan at Detroit STANDING: ALICE M. BATCHELDER, Circuit Judge. The United States National Security Agency (“NSA”) appeals from the decision of the District Court for the Eastern District of Michigan that granted summary judgment against the NSA and imposed a permanent injunction. The plaintiffs are a collection of associations and individuals led by the American Civil Liberties Union, and they cross-appeal. Because we cannot find that any of the plaintiffs have standing for any of their claims, we must vacate the district court’s order and remand for dismissal of the entire action.

Jun 25-29, 2007 6th Circuit Published Decisions (No Ky Cases)

Opinion	Pub Date	Short Title/District
07a0240p.06	2007/06/25	Harlamert v. World Finer Foods     Southern District of Ohio at Dayton SECURITIES; RESTRICTIONS POLSTER, District Judge. Steven Harlamert, Administrator of the Estate of his deceased father John Harlamert (the “Estate”), initiated this declaratory judgment action against World Finer Foods, Inc. (“WFF”), a closely held corporation. The Estate contends that it is permitted to freely transfer the ten shares of WFF stock owned by John Harlamert prior to his demise. WFF contends that the shares are subject to a shareholder agreement that restricts the transfer of that stock to the company. After a bench trial, the district court granted judgment in favor of the Estate. WFF appeals the district court’s factual and legal findings and conclusions. For the following reasons, we AFFIRM.
07a0241p.06	2007/06/25	Clark v. Waller     Western District of Tennessee at Memphis HABEAS CORPUS BOGGS, Chief Judge. Johnny O. Clark appeals the district court’s summary dismissal of his petition for a writ of habeas corpus. Clark was convicted of first-degree murder and, after exhausting his state post-conviction and appellate remedies, petitioned the district court under 28 U.S.C. § 2254, contending that his conviction was based on insufficient evidence, that his trial counsel was constitutionally ineffective, and that his post-conviction counsel was constitutionally ineffective. On appeal, he maintains the latter two claims, and contends that the district court erred in summarily dismissing his petition without ordering a response and reviewing the state court transcripts. We affirm.
07a0242p.06	2007/06/26	Zomba Enter v. Panorama Records     Middle District of Tennessee at Nashville COPYRIGHTS; KARAOKE KAREN NELSON MOORE, Circuit Judge. From Japan to the United States and beyond, karaoke is wildly popular. Countless people have lined up at various venues to perform their favorite songs with, and in front of, their friends. But few participants (with the possible exception of IP lawyers) ever stop to consider the intellectual property regime governing karaoke. Panorama Records, Inc. (“Panorama”), a purveyor of karaoke discs, resembles the majority of these participants. It entered the business of recording and selling karaoke discs without considering whether doing so infringed the intellectual property rights of others. Before long, this lack of foresight caught up with Panorama. This case requires us to review a district court’s entry of summary judgment in favor of, and monetary award to, a plaintiff copyright holder whose musical compositions Panorama copied on its karaoke discs. Ultimately, we conclude that the district court (1) correctly concluded that Panorama willfully infringed the plaintiffs’ copyrights, and did not abuse its discretion by (2) awarding the plaintiffs $806,000 in statutory damages, (3) denying Panorama’s motion to transfer venue, and (4) awarding the plaintiffs attorney fees. Accordingly, we AFFIRM the district court’s judgment in all respects.
07a0243p.06	2007/06/26	USA v. Hudson     Eastern District of Michigan at Detroit CRIMINAL:  INDEPENDENT CONTRACTOR SUTTON, Circuit Judge. Joseph Hudson challenges his conviction and sentence for fraudulently obtaining more than $200,000 from the River Rouge School District. We affirm. Ample evidence allowed the jury to conclude just that The two contracts gave Hudson broad authority to set up a television station in the high school. They authorized Hudson “to perform all duties, responsibilities and necessary actions required to market, develop and consult in the development of RSP-TV/35,” to “assist[] with the training of students and/or District employees” in using the television studio and to “perform[] all other such duties and responsibilities as fall[] within the purview of the positions specified” in the contract. JA 201.
07a0244p.06	2007/06/26	Parker v. General Extrusions     Northern District of Ohio at Youngstown DISCRIMINATION; GENDER; PUNITIVES MARTHA CRAIG DAUGHTREY, Circuit Judge. The plaintiff, Nancy Parker, appeals the district court’s order granting judgment as a matter of law under Rule 50(b) to the defendant, General Extrusions, Inc., on the plaintiff’s claim for punitive damages in relation to her Title VII gender discrimination suit, which she brought pursuant to 42 U.S.C. §§ 2000e-2000e-17. The jury found for the plaintiff on her hostile working environment claim and, along with compensatory damages, awarded Parker punitive damages. On motion of the defendant, however, the district court struck down the punitive damages award, holding that punitive damages were not available pursuant to 42 U.S.C. § 1981a(b)(1) because (1) only one of the employees who discriminated against Parker was a “managerial agent” of the defendant, (2) this single employee did not act with the requisite malice or reckless indifference to justify punitive damages, and (3) in any event, the defendant had made a good faith effort to comply with Title VII, thereby insulating itself from punitive damages liability. The plaintiff appeals this ruling on all three grounds. For the reasons stated below, we reverse.
07a0245p.06	2007/06/26	USA v. Crowell     Middle District of Tennessee at Nashville CRIMINAL:  SENTENCING JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Antonio D. Crowell was convicted of being a felon in possession of a firearm. At sentencing, the district court found that Crowell had three prior convictions for violent felonies and therefore qualified for an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). The court calculated Crowell’s range under the advisory Sentencing Guidelines to be 235 to 293 months and sentenced Crowell to 235 months imprisonment. Crowell appeals, asserting that: (1) the evidence presented at trial was insufficient to support his conviction; (2) the district court erred in confirming the existence of his juvenile adjudication for aggravated robbery; (3) the court’s use of his alleged juvenile adjudication as a predicate offense for purposes of the ACCA violated his due process rights; and (4) his sentence is not reasonable under 18 U.S.C. § 3553(a). For the following reasons, we affirm the conviction and the sentence of the district court.
07a0246p.06	2007/06/27	Rodriguez v. Fedex Freight East     Eastern District of Michigan at Detroit DISCRIMINATION; BANKRUPTCY KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Jose Antonio Rodriguez (“Rodriguez”) sued his former employer, Defendant-Appellee FedEx Freight East, Inc. (“FedEx”), in a Michigan state court, alleging that FedEx discriminated and retaliated against him on the basis of his race, in violation of Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), MICH. COMP. LAWS §§ 37.2101 et seq. Citing the parties’ diversity of citizenship, FedEx removed the suit to the United States District Court for the Eastern District of Michigan. Rodriguez subsequently filed for bankruptcy in the United States Bankruptcy Court for the Eastern District of Michigan (the “bankruptcy court”), and his claims became assets of the bankruptcy estate. Accordingly, when FedEx moved for summary judgment on both of Rodriguez’s claims, the district court referred the motion to the bankruptcy court for resolution. The bankruptcy court granted the motion, dismissing Rodriguez’s claims with prejudice, and the district court affirmed that judgment. Rodriguez now appeals. For the reasons set forth below, we AFFIRM IN PART and VACATE IN PART the district court’s judgment and REMAND this case for further proceedings.
07a0247p.06	2007/06/27	Thomas v. Miller, et al     Eastern District of Michigan at Detroit COBRA; EQUITABLE ESTOPPEL BOGGS, Chief Judge. Silvia Thomas sued Elmwood Cemetery and Chancey Miller, her former employer and supervisor, respectively, for health benefits under the Consolidated Omnibus Reconciliation Act (“COBRA”). Both parties agreed that Elmwood falls below the statute’s application threshold of twenty or more employees, which is codified at 29 U.S.C. § 1161(b). Thomas argued, however, that the doctrine of equitable estoppel should bar the defendants from claiming that they fall below the statutory threshold. The district court granted summary judgment to Elmwood and Miller, holding as a matter of law that estoppel could not be applied to excuse the failure to meet the numerical threshold. This case presents two questions in the context of an action under COBRA. First, can the doctrine of equitable estoppel bar an employer, who employs fewer than the statute’s threshold of twenty employees, from defending an action on that basis? Second, if equitable estoppel can so apply, can Thomas satisfy the doctrine’s requirements in this case? As we explain more fully below, the Supreme Court’s decision last term in Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006), which held that such an application threshold is an element of a claim rather than a jurisdictional bar, renders this an open question in our circuit. There is no principled reason we can see, in Arbaugh’s wake, to set such a threshold apart from other elements of claims, which parties generally may concede, be ordered by a court to admit (as in a discovery sanction), or be equitably estopped from contesting. Thus, we hold that equitable estoppel may, in appropriate cases, bar an employer from arguing that it does not satisfy a statute’s numerical application threshold. Nevertheless, Thomas cannot satisfy the estoppel doctrine’s requirements in this case. Her claim cannot withstand summary judgment. We affirm the judgment of the district court.
07a0248p.06	2007/06/29	Pagan v. Fruchey     Southern District of Ohio at Cincinnati COMMERCIAL SPEECH RESTRICTIONS JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Christopher J. Pagan filed the instant suit against the Village of Glendale, Ohio (“Glendale” or “the Village”) and Glendale Police Chief Matt Fruchey, alleging that section 76.06 of the Glendale Traffic Code constitutes an unconstitutional restriction on commercial speech in violation of the First Amendment. Following the parties’ cross-motions for summary judgment, the district court determined that Glendale’s ordinance complied with the requirements of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), and granted summary judgment in favor of the defendants. Because we conclude that the defendants have failed to produce evidence that justifies the restrictions on commercial speech imposed by the ordinance, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.
07a0249p.06	2007/06/29	USA v. Villareal     Eastern District of Tennessee at Greeneville CRIMINAL: SENTENCES; DOWNWARD DEPARTURE GRIFFIN, Circuit Judge. Defendant Aldrich Salvador Vellejo-Villareal was indicted on a one-count indictment charging him, and eight co-defendants, with the distribution and possession with the intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). Later, Villareal pleaded guilty to the charge pursuant to a plea agreement that states, in pertinent part: “If, in the sole discretion of the United States, the defendant provides substantial assistance, the United States will make a motion for downward departure pursuant to 5K1.1 of the Sentencing Guidelines or 18 U.S.C. § 3553(e), or both . . .” (emphasis added). At the sentencing hearing, the government did not move for a downward departure. Subsequently, Villareal was sentenced to 120 months’ imprisonment and a five-year term of supervised release. Defendant timely appealed his sentence and the order of the district court denying his motion to compel the government to file a motion for a downward departure. On appeal, Villareal argues that the government breached its obligation pursuant to the plea agreement to move for a downward departure in return for the substantial assistance he provided. For the reasons set forth below, we remand for a new hearing during which the government shall advise the district court of its factual determination, made in its sole discretion, whether defendant’s assistance was “substantial assistance.” In the event the government determines and advises the court that defendant’s assistance was substantial assistance, the district court is instructed to grant defendant’s motion to compel, vacate defendant’s sentence, and resentence defendant. In the event the government determines and advises the court that defendant’s assistance was not substantial assistance, the district court is instructed to deny defendant’s motion to compel.