Sixth Circuit Cases

6th Cir. Published Decisions for Week of Sept. 24-28, 2007 (2 Ky. Pub. Dec. 3 Ky. NPO)

Opinion	Pub Date	Short Title/District
07a0386p.06	2007/09/24	Cruse v. Comm Social Security     Western District of Tennessee at Jackson SILER, Circuit Judge. In this appeal, Plaintiff Kimberly L. Cruse (“Cruse”) challenges the district court’s decision affirming the determination of the Defendant Commissioner of Social Security (“Commissioner”) that Cruse was not disabled and therefore not entitled to disability insurance and supplemental security income (“SSI”) benefits under the Social Security Act (the “Act”). Specifically, she advances four contentions on appeal: 1) the Commissioner afforded less than the proper amount of weight to the opinions of her treating physician and nurse practitioner; 2) the Commissioner erred in finding Cruse’s testimony about disabling pain, other symptoms, and functional limitations less than credible; 3) the Commissioner’s decision finding Cruse not disabled was not supported by substantial evidence; and 4) the Commissioner erred by failing to present vocational expert testimony. Finding no reversible error, we affirm.
07a0387p.06	2007/09/25	Assoc of Cleveland v. City of Cleveland     Northern District of Ohio at Cleveland McKEAGUE, Circuit Judge. Association of Cleveland Fire Fighters, Local 93 of the International Association of Fire Fighters and all individual members of Local 93, and individual fire fighters Samuel DeVito, Don Posante, and James Sliter (collectively, “Appellants”) appeal from the district court’s order dismissing their challenges to the residency requirement of the City of Cleveland (the “City”). Appellants allege that the residency requirement set forth in section 74(a) of the City Charter violates the Equal Protection Clause, the constitutional right to travel, and the right to travel set forth in the International Covenant on Civil and Political Rights, and that it is also void for vagueness. The district court granted the defendants-appellees’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). We AFFIRM.
07a0388p.06	2007/09/25	Peet v. Detroit Spencer v. Detroit     Eastern District of Michigan at Detroit ROGERS, Circuit Judge. This appeal is composed of two related cases. Both cases are actions under 42 U.S.C. § 1983 seeking damages from individual Detroit police officers for their alleged unconstitutional seizure and malicious prosecution of the plaintiffs. The plaintiffs, Dennis Peet and Jeemell Spencer, further seek to hold the City of Detroit liable for the officers’ alleged constitutional violations. On appeal, the plaintiffs seek to overturn the district court’s grant of summary judgment in favor of Dwight Pearson and the City of Detroit. For the reasons given below, we affirm.
07a0389p.06	2007/09/25	Bey v. Bagley     Northern District of Ohio at Toledo ALICE M. BATCHELDER, Circuit Judge. Petitioner Gregory L. Bey appeals the district court’s dismissal of his petition for a writ of habeas corpus. Bey argues that the state trial court violated the United States Constitution by admitting certain “other acts” evidence at trial, over his objection. We find Bey’s claim meritless and AFFIRM the judgment of the district court.
07a0390p.06	2007/09/25	Fed Home Loan Mtg v. Lamar     Northern District of Ohio at Cleveland ALICE M. BATCHELDER, Circuit Judge. Cynthia G. Lamar appeals the district court’s grant of summary judgment in favor of Lerner, Sampson, & Rothfuss, L.P.A. (“LS&R”) on Lamar’s claim that LS&R violated the notice provisions of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et. seq., when LS&R included the statutorily-required notice with the summons and complaint it served Lamar. Because LS&R effectively conveyed notice of Lamar’s right to dispute the validity of her debt, we AFFIRM the district court.
07a0391p.06	2007/09/25	Experimental Holding v. Farris     Eastern District of Kentucky at Frankfort ROGERS, Circuit Judge. Plaintiff Experimental Holdings, Inc. (“EHI”) appeals the district court’s dismissal of its “disappointed bidder” § 1983 claim and its state law claim alleging violations of Kentucky law covering the award of public contracts. Because the procedural requirements of Kentucky lease procurement law do not afford EHI a property interest in getting the state to lease EHI’s real property, the district court properly dismissed EHI’s § 1983 claim. It was also proper for the district court to dismiss EHI’s state law claims, but on grounds different from those given by the district court.
07a0392p.06	2007/09/26	USA v. Robinson     Eastern District of Tennessee at Knoxville DANNY C. REEVES, District Judge. Defendant- Appellant Michael A. Robinson was convicted by a jury of various drug and firearms offenses and sentenced in absentia to 352 months’ imprisonment. He appealed his conviction and sentence. This Court affirmed the conviction but vacated the sentence and remanded the matter for resentencing. Robinson now appeals his most recent 292-month sentence. For the reasons that follow, we affirm this sentence.
07a0393p.06	2007/09/27	Harbison v. Bell     Eastern District of Tennessee of Chattanooga SILER, Circuit Judge. Petitioner Edward Jerome Harbison was convicted of first-degree murder, second-degree burglary, and grand larceny, and was sentenced to death. After unsuccessfully appealing through the Tennessee state courts, he petitioned in federal court for a writ of habeas corpus under 28 U.S.C. § 2254. After the district court denied relief in 2001, we affirmed the district court in Harbison v. Bell, 408 F.3d 823 (6th Cir. 2005). We will not repeat the facts as related in that opinion, except where they may be relevant to the current cases. While his habeas corpus claim was proceeding in the federal courts, in 2001, Harbison filed a motion in state court to reopen his post-conviction petition, which he subsequently moved to treat as a petition for a writ of error coram nobis. In 2004, the trial court denied his motion as untimely, and the Tennessee Court of Criminal Appeals affirmed that decision. Harbison v. State  (Tenn. Crim. App. June 27, 2005) (unpublished). Harbison thereafter filed these three matters in federal district court, and they came before us, either as appeals or on transfer from the district court. He also asks for a stay of execution. For the reasons stated thereafter, we affirm the district court’s rulings and deny all other relief requested.
07a0394p.06	2007/09/27	Amer Maritime v. Marine Engineers     Northern District of Ohio at Toledo RONALD LEE GILMAN, Circuit Judge. American Maritime Officers (AMO) filed a complaint in Ohio state court against Marine Engineers Beneficial Association and several of its officers (collectively MEBA), alleging tortious interference with a contractual relationship and unjust enrichment. MEBA removed the case to federal court on the ground that AMO’s claims were completely preempted by the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. AMO then filed a motion to remand on the basis that the federal courts lack subject matter jurisdiction over AMO’s claims. The district court granted AMO’s motion and ordered that the case be remanded to the state court. MEBA filed a timely appeal. AMO responded by filing a motion to dismiss MEBA’s appeal on the ground that 28 U.S.C. § 1447(d) prohibits appellate review of a remand order. For the reasons set forth below, we GRANT AMO’s motion and DISMISS MEBA’s appeal.
07a0395p.06	2007/09/27	Al Perry Enterprises v. Appalachian Fuels     Eastern District of Kentucky at Ashland GREER, District Judge. This case arises from a bankruptcy court approved sale of the assets and assumption of the executory contracts of Bowie Resources Limited (“Bowie”) pursuant to 11 U.S.C. §§ 363 and 365. The sale was made pursuant to an Asset Purchase Agreement (the “purchase agreement”) between Bowie and Appalachian Fuels, LLC (“Appalachian Fuels”). The plaintiff, Al Perry Enterprises, Inc. (“Perry”), originally filed this diversity breach of contract action in the United States District Court for the Southern District of Indiana alleging breach of an agreement by Bowie to pay certain commissions to Perry, an obligation which Perry alleged had been assumed by Appalachian Fuels as a result of the purchase agreement. The case was transferred to the United States District Court for the Eastern District of Kentucky and the district court granted Appalachian Fuels’ motion for summary judgment. Perry appeals the district court’s grant of summary judgment and argues that the district court erred by finding that Appalachian Fuels did not assume the obligation to pay commissions to Perry pursuant to the purchase agreement. For the reasons set forth below, we AFFIRM.
07a0396p.06	2007/09/27	USA v. Brogdon     Western District of Tennessee at Jackson DANNY C. REEVES, District Judge. Defendant- Appellant Jonathan Gregory Brogdon appeals the sentence and sex-offense-related conditions of supervised release imposed by the district court. Because the sentence is procedurally and substantively reasonable and because the conditions of supervised release are reasonably related to the rehabilitation of the defendant and the protection of the public, we affirm.
07a0397p.06	2007/09/27	Air Products v. Safetech, et al     Eastern District of Michigan at Detroit O’MALLEY, District Judge. This is an appeal from two orders of the district court: (1) an order granting a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) filed by Defendants-Appellees Safetech International, Inc. (“Safetech”) and R. Gaylen Davenport (“Davenport”) (collectively, “Defendants”); and (2) an order denying a motion for reconsideration filed by Plaintiff-Appellant Air Products and Controls, Inc. (“Air Products”). In this lawsuit, Air Products alleges, inter alia, that Defendants engaged in a fraudulent transfer of assets to avoid a debt owed to Air Products. The debt accrued from several years of purchases on credit by Safetech, and was reduced to a judgment award following litigation between the parties. The primary issue in this appeal is whether Safetech, a Kansas corporation, and Davenport, an individual residing in Kansas, are subject to personal jurisdiction in Michigan, where Air Products has its principal place of business. The district court found that it lacked personal jurisdiction over Safetech and Davenport because the causes of action did not “arise out of” Defendants’ contacts with Michigan, and, accordingly, the district court dismissed the case. For the reasons stated herein, we REVERSE the district court’s decision to dismiss for lack of personal jurisdiction and REMAND this action for further proceedings. We do not address the order denying Air Products’ motion for reconsideration, as our decision as to the first order renders that issue moot.
07a0398p.06	2007/09/28	Novak v. MetroHealth Medical     Northern District of Ohio at Cleveland ALICE M. BATCHELDER, Circuit Judge. Plaintiff Donna Novak (“Novak”) appeals the district court’s grant of summary judgment in favor of Defendant MetroHealth Medical Center (“MetroHealth”) on her employment claims brought under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Novak argues that MetroHealth illegally denied her request for FMLA leave, claiming that she was entitled to FMLA leave because her back injury amounted to a serious health condition under the Act, and alternatively, that she was entitled to FMLA leave to care for her adult child who was suffering from postpartum depression. Because we conclude that these claims are not meritorious, we AFFIRM the district court’s grant of summary judgment on Novak’s claim of FMLA interference. But because we conclude that the district court should have remanded, rather than dismissed, Novak’s state law claims, we VACATE and REMAND those claims to the district court with instructions to remand them to the state court from which they were removed.

Unpublished Decisions from Kentucky

USA v. Braden
Eastern District of Kentucky at Ashland
07a0694n.06
2007/09/25

USA v. Bland
Western District of Kentucky at Bowling Green
07a0696n.06
2007/09/25

Bentley v. Motley
Eastern District of Kentucky at Pikeville
07a0700n.06
2007/09/26

6th Cir Published Decisions for Week of Sept. 17-21, 2007 (No Ky Cases)

 

Opinion	Short Title/District
07a0378p.06	USA v. Baker     Eastern District of Tennessee at Knoxville SILER, Circuit Judge. Jack Alex Baker pleaded guilty to one count of possessing an unregistered firearm having a barrel length of less than eighteen inches, in violation of 26 U.S.C. § 5861(d). The district court sentenced him to five years’ probation, including house arrest for the first year of probation. The government now appeals the reasonableness of this sentence. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0379p.06	Langley v. DaimlerChrysler     Northern District of Ohio at Toledo McKEAGUE, Circuit Judge. Brenda Langley ran into problems with her coworkers while working for DaimlerChrysler Corporation. The personnel problems escalated to the point that Langley took a leave of absence from the company. She placed the blame for her problems on DaimlerChrysler and one of her coworkers, Debra Lobzun. After failing to resolve the matter internally, Langley sued. The district court considered Langley’s claims and evidence in light of the defendants’ requests for summary judgment. Finding no genuine issue of material fact on any of her claims, the district court granted judgment to the defendants. On appeal, Langley maintains that the district court erred in several ways, including overreaching its subject-matter jurisdiction. Upon review of the record and applicable law, we affirm.
07a0380p.06	Emin v. Gonzales     Board of Immigration Appeals PER CURIAM. The petitioner, Emin Bilali, petitions for review of the denial of his motion for reconsideration by the Board of Immigration Appeals (BIA), contending that the BIA erred in failing to give preclusive effect to a preliminary determination by an immigration judge that his marriage was bona fide. Because that determination was not a final judgment on the merits but, rather, merely the first step in a procedure that expressly provides for further inquiry into the validity of the marriage before a final determination is made, we conclude that the BIA properly denied Bilali’s motion.
07a0381p.06	See v. City of Elyria     Northern District of Ohio at Cleveland ALGENON L. MARBLEY, District Judge. Defendant-Appellant Chief of Police Michael Medders (“Medders”) brings this interlocutory appeal of the district court’s denial of Medders’s Motion for Summary Judgment based on qualified immunity. Pursuant to 42 U.S.C. § 1983, Plaintiff-Appellee police officer, Hetzel D. See, Jr. (“See”) brought suit against Medders and the City of Elyria (“City”) alleging, among other things, a violation of See’s First Amendment rights when disciplinary actions were taken against him after he made statements to the FBI about activities in the police department. See’s wife is a co-plaintiff on one count, claiming a loss of consortium. Medders and the City filed a Motion for Summary Judgment, which the district court granted in favor of the City, but denied with respect to Medders’s assertion of qualified immunity. Specifically, the court stated that “factual disputes exist as to the truthfulness of the complaints made by Mr. See to the FBI, and so, therefore, Medders is not entitled to qualified immunity at this point as a matter of law.” Medders argues that the district court erred when it inquired as to the truthfulness of the statements instead of determining whether Medders reasonably believed that See’s allegations of wrongdoing were false or recklessly made. Because a genuine issue of material fact exists as to whether a reasonable official in Medders’s position would have believed that See made the statements to the FBI knowing they were false, or with reckless disregard for their truthfulness, this Court AFFIRMS the district court’s denial of summary judgment.
07a0382p.06	Abdulnour v. Campbell Soup Supply     Northern District of Ohio at Toledo ALGENON L. MARBLEY, District Judge. Plaintiff-Appellant appeals the district court’s order granting summary judgment to his employer on his national origin discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and Ohio Revised Code (O.R.C.), § 4112.01. Plaintiff, an Iraqi citizen, claims that Defendants fired him based on his national origin. The parties stipulate that Plaintiff established a prima facie case and that Defendants proffered a legitimate, non-discriminatory reason for his discharge. The district court granted summary judgment after finding that Plaintiff failed to meet his burden to provide evidence that tends to show that Defendants’ stated reason was pretextual. Under the standard set forth in Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (6th Cir. 1994), the district court found that Plaintiff failed to show that Defendants’ reason: (1) had no basis in fact; (2) did not actually motivate Plaintiff’s termination; or (3) was insufficient to warrant Plaintiff’s termination. The district court’s opinion is sound and well reasoned; thus, we AFFIRM.
07a0383p.06	Loren v. Blue Cross of MI     Eastern District of Michigan at Detroit ALGENON L. MARBLEY, District Judge. Plaintiff-Appellants Eugene Loren (“Loren”) and Danielle Hagemann (“Hagemann”) (collectively, “Plaintiffs”) appeal the district court’s order granting Defendant Blue Cross Blue Shield of Michigan’s (“BCBSM”) Motion to Dismiss Plaintiffs’ claims brought pursuant to Sections 502(a)(2) and 502(a)(3) of the Employee Retirement Income Security Act (“ERISA”), codified in 29 U.S.C. §§ 1132(a)(2) and 1132(a)(3), respectively. Plaintiffs allege that BCBSM violated its fiduciary duties under ERISA, and they seek to represent a class of all participants and beneficiaries of ERISA self-funded plans for which BCBSM administers claims and/or handles plan assets. In granting BCBSM’s Motion to Dismiss, the district court concluded that, although Loren had statutory standing when the complaint was filed, his claims were rendered moot after he withdrew from the coverage administered by BCBSM and, therefore, now lacks an interest in the remedies available to a participant under §§ 1132(a)(2) and 1132(a)(3). In addition, the district court concluded that, even before filing the suit, Hagemann was covered as a beneficiary under a health care option for which BCBSM does not administer claims, and, therefore, she lacks statutory standing to bring claims against BCBSM. Accordingly, the district court dismissed Plaintiffs’ complaint for lack of subject matter jurisdiction. Plaintiffs appeal, asserting that they both have statutory and constitutional standing to assert their claims against BCBSM. For the reasons set forth below, we AFFIRM in part, REVERSE in part, and REMAND the case to the district court for further proceedings.
07a0384p.06	Leelanau Wine Cellar v. Black & Red Inc     Western District of Michigan at Grand Rapids JULIA SMITH GIBBONS, Circuit Judge. This case arose out of a trademark dispute between two Michigan wine producers: plaintiff-appellant Leelanau Wine Cellars, Ltd (LWC) and defendant-appellee Black & Red, Inc. (B&R), owned by defendant-appellee Roberta Kurtz. Following district court proceedings that resulted in an appeal to this court and a remand to the district court, the district court conducted a bench trial on LWC’s Lanham Trademark Act, 15 U.S.C. § 1114, claim. Following the bench trial, the district court issued written findings of fact and conclusions of law in which it rejected LWC’s claim that B&R’s use of the mark “Chateau de Leelanau Vineyard and Winery” created a likelihood of confusion among consumers. The court entered judgment in favor of defendants-appellees, and LWC appealed. AFFIRMED
07a0385p.06	USA v. Ross     Northern District of Ohio at Cleveland BOYCE F. MARTIN, JR., Circuit Judge. Defendant Anthony H. Ross appeals his conviction on two counts of bank fraud in violation of 18 U.S.C. §1344. Defendant challenges (1) the deliberate ignorance jury instruction given by the district court, (2) the government’s questioning of defendant regarding his personal bankruptcy petition, (3) the sufficiency of the evidence supporting his conviction, and (4) the district court’s finding that the intended loss from the bank fraud scheme totaled $634,300, resulting in a sentence enhancement. For the reasons that follow, we find the district court did not abuse its discretion in giving a deliberate ignorance instruction or in overruling Ross’s objection to the government’s cross-examination regarding his personal bankruptcy petition, and that the evidence was sufficient to support both convictions for bank fraud. We find, however, that the district court’s determination of intended loss at sentencing was in error. Accordingly, we AFFIRM defendant’s conviction, VACATE his sentence, and REMAND for resentencing.

 

6th Circuit Published Decisions for Weekof Sept 9-14, 2007

 

Opinion	Pub Date	Short Title/District
07a0368p.06	2007/09/10	USA v. Hairston     OHS - Southern District of OH at Columbus BOYCE F. MARTIN, JR., Circuit Judge. The United States appeals Joseph Hairston’s 60- month sentence, which was re-imposed by the district court on remand in light of United States v. Booker, 543 U.S. 220 (2005). The government contends that the sentence is substantively unreasonable. We disagree, and thus AFFIRM Hairston’s sentence.
07a0369p.06	2007/09/11	USA v. Jones     Eastern District of Kentucky at London RICHARD MILLS, District Judge. Alice Jones appeals the district court’s judgment of forfeiture as to real property and a mobile home that she owned with her husband. Because we conclude the Government did not establish that there was a nexus between Jones’s criminal activity and the property after she acquired title, we must reverse
07a0370p.06	2007/09/11	Garner v. Mitchell     Southern District of Ohio at Columbus KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant William Garner (“Garner”) appeals from the district court’s order denying his petition for a writ of habeas corpus. In 1992, Garner was convicted and sentenced to death in Ohio state court on five counts of aggravated murder, one count of aggravated burglary, two counts of aggravated arson, one count of theft, and one count of receiving stolen property. His convictions and death sentence were affirmed on direct appeal and collateral review in state court. Garner then filed a petition for a writ of habeas corpus in the federal district court raising twenty-three grounds for relief. Garner raises four of those issues here on appeal, arguing that: (1) he did not knowingly and intelligently waive his Miranda rights before speaking with the police; (2) his state trial counsel were ineffective for failing to investigate and argue his Miranda claim; (3) the state trial court erred by not providing Garner with experts to assist with his Miranda claim; and (4) the process by which his petit jury venire was selected discriminated against African-Americans. Because we conclude that Garner did not knowingly and intelligently waive his Miranda rights, we REVERSE the judgment of the district court and GRANT Garner a conditional writ of habeas corpus.
07a0371p.06	2007/09/11	USA v. Roach; USA v. Sheldon     Eastern District of Tennessee at Greeneville RONALD LEE GILMAN, Circuit Judge. In 2006, a jury convicted former Newport, Tennessee Police Officer James Wendell Roach of depriving two Hispanic men of their civil rights under color of law, in violation of 18 U.S.C. § 242, and convicted former Newport, Tennessee Police Officer Patrick James Sheldon of being an accessory after the fact, in violation of 18 U.S.C. § 3. Roach was sentenced to 10 months of imprisonment and Sheldon was given two years of probation. The district court also denied Roach’s motion for bond pending appeal. For the reasons set forth
07a0372p.06	2007/09/11	USA v. Hearn     Western District of Tennessee at Jackson ROGERS, Circuit Judge. Can the government, for the purpose of establishing the heart of the government’s case, repeatedly solicit testimony regarding confidential informants’ statements to the effect that a defendant had the intent to distribute illegal drugs, when the defendant does not have an opportunity to cross-examine the informants and when the government is on notice of a potential Sixth Amendment problem? That question is central to Chad M. Hearn’s challenge to his convictions. Because the government relied extensively on confidential-informant statements to prove key elements of its case without providing Hearn an opportunity to cross-examine those informants, the admission of the confidential informants’ statements violated Hearn’s right to confront witnesses against him.
07a0373p.06	2007/09/11	USA v. Carter     Middle District of Tennessee at Nashville McKINLEY, District Judge. This matter is before the Court upon Defendant Wayne Carter’s appeal of the district court’s denial of his Motion to Amend Sentencing pursuant to 18 U.S.C. § 3582. Finding no error, the decision of the lower court is affirmed.
07a0374p.06	2007/09/11	Varner v. Stovall     Eastern District of Michigan at Ann Arbor SUTTON, Circuit Judge. A jury convicted Janniss Varner of assault with intent to commit murder after she hired a third party to shoot her abusive boyfriend. In her federal habeas petition, she claimed that the state courts (1) violated her rights under the Religion Clauses of the First and Fourteenth Amendments by admitting into evidence several journal entries that included prayers and an acknowledgment that she had tried to kill her boyfriend and (2) violated her Sixth and Fourteenth Amendment rights by refusing to allow her to introduce evidence of Battered Women’s Syndrome in support of her theories of self-defense and provocation. Because she has not shown that the state courts unreasonably applied relevant Supreme Court precedent, we affirm the district court’s denial of the petition.
07a0375p.06	2007/09/12	USA v. Powers     Eastern District of Michigan at Ann Arbor ALGENON L. MARBLEY, District Judge. Defendant-Appellant Jethro Rene Powers appeals his conviction for possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The Sixth Amendment’s Confrontation Clause, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), requires that a defendant be able to confront his accuser if the accuser’s “testimonial” statements are introduced at trial. Powers contends that the district court violated his Sixth Amendment rights by allowing police officers to testify regarding statements made by their Source of Information (“SOI”)1 relating to “Powers’s drug-selling background, the type and weight of the narcotics, the identification of the vehicle driven by Powers, the time and location of meeting places and most importantly, the SOI’s eventual identification of Powers.” (Def.’s Brief at 5.) The Government did not call the SOI as a witness at trial and thus, Defendant could not cross-examine him. Defendant also contends that the district court abused its discretion and acted in a biased manner when it consistently interrupted, derided, and truncated defense counsel’s cross-examination of witnesses. Defendant asks this Court to reverse his conviction and remand this case for a new trial. For the reasons discussed below, we AFFIRM Defendant’s conviction.
07a0376p.06	2007/09/13	USA v. Lee     Western District of Tennessee at Memphis BOYCE F. MARTIN, JR., Circuit Judge. Defendant Sean William Lee pled guilty to using a computer and telephone for purposes of persuading a minor to engage in sexual acts, in violation of 18 U.S.C. § 2422(b). Lee was sentenced to 188 months’ imprisonment, to be followed by supervised release for life. Lee was ordered to comply with several conditions of release. One of these conditions, which he challenges in this appeal, is the requirement that he participate in a specialized sex offender treatment program that may include the use of a penile plethysmograph. For the reasons that follow, we decline to review the conditions of Lee’s supervised release at this time.
07a0377p.06	2007/09/14	Taylor v. MI Dept Nat Res     Western District of Michigan at Grand Rapids KENNEDY, Circuit Judge. Alan Taylor seeks review of the district court’s grant of summary judgment for the defendants, asserting that the trial court erred (1) in concluding that the conservation officer’s conduct did not constitute a search or an invasion of privacy, (2) in finding that the conservation officer was entitled to qualified immunity, and (3) in determining that plaintiff lacked standing to seek prospective injunctive relief against the director of the Department of Natural Resources in her official capacity. We find that the property check at issue was not a warrantless search in violation of the Fourth Amendment and, for the reasons that follow, affirm the district court.

   

Notice: CM-ECF Information

The U.S. Court of Appeals for the Sixth Circuit and the Bankruptcy Appellate Panel for the Sixth Circuit have begun using the Federal Judiciary's Case Management-Electronic Case Files computer system know as CM-ECF. As of August 20, 2007, any new docket entry referring to a document initiated by the Court of Appeals or the BAP will be attached to that entry and available from PACER. Neither court has yet put into place that part of CM-ECF which allows parties to file documents electronically and therefore those fillings will not appear on the docket in PACER. This feature will be available in the future, and periodically checking this website will keep you advised.

6th Cir. Published Decisions for Sept. 3-7, 2007 (1 Ky)

 

Opinion	Pub Date	Short Title/District
07a0357p.06	2007/09/04	USA v. Brown     MIE - Eastern District of MI at Detroit KAREN K. CALDWELL, District Judge. Defendant-Appellant Freddie Brown, III appeals the district court’s judgment sentencing him to 24 months of imprisonment for violating conditions of his supervised release. Brown argues that the district court did not adequately consider the relevant Sentencing Guidelines policy statements or the sentencing factors listed in 18 U.S.C. § 3553(a). Specifically, Brown argues the district court only considered Brown’s need for drug and alcohol treatment and failed to consider all other relevant factors. For the following reasons, we affirm Brown’s sentence.
07a0358p.06	2007/09/04	Ferensic v. Birkett     MIE - Eastern District of MI at Detroit RONALD LEE GILMAN, Circuit Judge. A Michigan state jury convicted Robert Ferensic in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications made by the victimized cou ple, Alexander and Angie Kostoff. Ferensic appealed, arguing among other things that (1) the trial court had violated his right to present a defense by preventing two of his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John, who had observed the robbers prior to their entering the Kostoffs’ home—from testifying, and (2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses were allowed to testify. The Michigan Court of Appeals upheld Ferensic’s convictions, essentially reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the actions of the trial judge or of defense counsel, did not prejudice Ferensic. Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals’s ruling on each ground constituted an unreasonable application of clearly established federal law, the district court conditionally granted Ferensic’s petition. The Warden now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0359p.06	2007/09/05	Girts v. Yanai     OHN - Northern District of OH at Cleveland CLAY, Circuit Judge. Petitioner Robert Girts appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that his conviction for aggravated murder violated his Fifth and Sixth Amendment rights because the prosecution improperly commented on his right to remain silent during closing argument, and his trial counsel was ineffective in failing to object to the prosecutor’s statements. For the reasons that follow, we REVERSE the district court’s decision, conditionally GRANT the writ of habeas corpus petition, and REMAND this case to the district court.
07a0360p.06	2007/09/05	Daniels v. Lafler     MIE - Eastern District of MI at Detroit BOGGS, Chief Judge. In 1996, Todd Daniels helped a friend to burn down a house in Detroit, killing three children. In 1997, a Michigan state jury convicted him of three counts of second-degree murder and seven counts of assault within intent to commit murder. The trial court sentenced him to twenty to forty years of imprisonment. The district court denied his petition for a writ of habeas corpus; he now appeals. First, he contends that the trial court violated his Sixth Amendment right to counsel by replacing his original court-appointed attorney with a different court-appointed attorney, allegedly without cause. Second, he argues that an instruction given to his jury regarding the mental state required to commit murder as an aider and abettor so gravely misrepresented Michigan law that it violated his Fourteenth Amendment right to due process, and that his trial counsel was ineffective for failing to object to the allegedly erroneous instruction. We affirm. We reject Daniels’s first claim because the Sixth Amendment gives an indigent defendant a right to adequate representation but not to his choice of court-appointed counsel. Because Daniels does not allege that the change in counsel prejudiced his defense, he cannot demonstrate a violation of this adequate-representation right and therefore cannot establish a Sixth Amendment violation. We reject Daniels’s second claim because, even though one sentence of the instructions contained a confusing and arguably misleading statement of the law, the trial court correctly stated the law at several other times. Consequently, Daniels cannot show that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. 141, 147 (1973), or that he was prejudiced by his trial counsel’s failure to object.
07a0361p.06	2007/09/05	Sickles v. Campbell Cnty     KYE - Eastern District of KY at Covington SUTTON, Circuit Judge. May a municipal jail, consistent with the Due Process Clause of the Fourteenth Amendment, withhold a portion of an inmate’s canteen-account funds in order to cover the costs of booking, room and board without providing the inmate with a hearing before it withholds the money? Yes, we hold, and accordingly we affirm the district court’s rejection of this claim and two others.
07a0362p.06	2007/09/06	Coalition to Defend v. Granholm     MIE - Eastern District of MI at Detroit R. GUY COLE, JR., Circuit Judge. Before us are two appeals challenging a district court’s order denying intervention under Federal Rule of Civil Procedure 24(a) and (b) to (1) the Michigan Civil Rights Initiative committee (the “MCRI”), (2) the American Civil Rights Foundation (the “ACRF”), and (3) Toward a Fair Michigan’s (“TAFM,” collectively, the “proposed intervenors”). Each wishes to intervene in an action brought against (1) Jennifer Granholm, the Governor of Michigan, and (2) the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (collectively, the “Universities”), seeking to invalidate and permanently enjoin from enforcement a recently enacted amendment to Michigan’s constitution that outlaws, among other things, sex- and race-based preferences in public education, public employment, and public contracting. Mich. Const., art. 1, § 26. The amendment was the result of the Michigan voters’ approval, in November 2006, of Proposal 06-2 (“Proposal 2”), a statewide ballot initiative. For the following reasons, we AFFIRM the district court’s denial of intervention to the proposed intervenors.
07a0363p.06	2007/09/06	Pointer v. Wilkinson     OHS - Southern District of OH at Cincinnati HAROLD A. ACKERMAN, District Judge. This case requires us to resolve a novel question regarding the application of 28 U.S.C. § 1915(g), the “three-strikes” provision added to the in forma pauperis (“IFP”) statute by the Prison Litigation Reform Act (“PLRA”). The three-strikes rule, in an effort to lessen the crush of frivolous prisoner filings in the federal courts, precludes prisoners – unless they face imminent danger of serious physical injury – from proceeding IFP if they have had three prior cases dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Plaintiff Dennis Pointer appeals the District Court’s denial of his motion to proceed IFP based on the District Court’s counting of one of his prior suits as a “strike.” In this prior suit, six of Pointer’s eight claims were dismissed with prejudice for failure to state a claim, and two were dismissed without prejudice for failure to exhaust administrative remedies. We conclude that the District Court properly characterized this type of dismissal as a strike, and we also reject Pointer’s constitutional challenge to § 1915(g). Therefore, we AFFIRM the judgment of the District Court.
07a0364p.06	2007/09/06	USA v. Community Health Sys     TNM - Middle District of TN at Cookeville CLAY, Circuit Judge. In his second trip before this Court, Relator Sean Bledsoe appeals the district court’s grant of Defendants Community Health Systems, Inc.’s (“CHS”) and Sparta Hospital Corp.’s, d/b/a White County Community Hospital (“White County”) motions to dismiss his second amended complaint. Relator also appeals the district court’s denial of his motion to recognize a settlement agreement (the “Settlement Agreement”) between CHS and the government. Relator brought this action under the False Claims Act, 31 U.S.C. § 3729 et seq., alleging that Defendants engaged in various types of fraud that increased the reimbursements that they received from Medicare and Medicaid. In the separate Settlement Agreement, CHS paid $30,494,749.51 to the United States government in settlement of claims that arguably overlap with Relator’s complaint; Relator contends that he is entitled to a relator’s share of the proceeds. On appeal, Relator argues (1) that the district court erred in concluding that portions of his second amended complaint were not pled with particularity as required by Federal Rule of Civil Procedure 9(b); (2) that the district court erred in dismissing portions of his second amended complaint as barred by the statute of limitations; (3) that the district court erred in dismissing his entire second amended complaint with prejudice, and without explanation, after previously upholding portions of the complaint; and (4) that the district court erred in denying his motion to recognize the settlement. For the reasons that follow, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion.
07a0365p.06	2007/09/06	USA v. Brock, Gary Michael     TNE - Eastern District of TN at Chattanooga SUTTON, Circuit Judge. May the payor of a bribe to a state official conspire with that official to extort property from himself in violation of the Hobbs Act? We hold that he cannot, and we thus reverse the convictions of Michael and Jerry Brock. Darrin Webb’s unrelated challenges to his conviction and sentence, by contrast, do not have merit, and we thus affirm both of them.
07a0366p.06	2007/09/07	USA v. Fink     OHN - Northern District of OH at Cleveland JULIA SMITH GIBBONS, Circuit Judge. Following a period of FBI surveillance and his subsequent indictment, defendant William A. Fink pled guilty to distribution of child pornography. The district court found the appropriate sentencing range under the Sentencing Guidelines to be 188 to 235 months. The district court sentenced Fink to 70 months imprisonment and five years of supervised release. The government appeals, asserting that the sentence is substantively unreasonable. For the following reasons, we agree and vacate the sentence and remand for resentencing.
07a0367p.06	2007/09/07	USA v. McGinnis     TNW - Western District of TN at Memphis SUTTON, Circuit Judge. At issue in this case is the legality under the Fourth Amendment of the detention and search of a woman (and her luggage) by customs officials after she had entered the country. Because the officials obtained information soon after she passed through customs that gave them an objectively reasonable basis for suspecting that she had smuggled more than $10,000 in cash into the country without declaring it—the arrest of her traveling companion on similar charges, an incriminating statement and suspicious behavior—we uphold the search and reverse the district court’s contrary decision.

NONPUBLISHED KENTUCKY CASES

Opinion	Pub Date	Short Title/District
07a0651n.06	2007/09/04	Clair v. Northern KY Indep     KYE - Eastern District of KY at Covington

6th Cir. Published Decisions for Aug 27-31, 2007 (2 Ky)

Opinion	Pub Date	Short Title/District
07a0340p.06		Drutis   v. Rand McNally & Co.     KYE - Eastern District of KY at Lexington                     ROGERS, Circuit Judge. The question in this case is whether so-called “cash balance” pension plans violate 29 U.S.C. § 1054(b)(1)(H)(i), an anti-age-discrimination provision of the Employee Retirement Income Security Act (“ERISA”). “Cash balance” plans are defined benefit plans that are structured like defined contribution plans. The district court in this case held, among           other things, that the cash balance plan adopted by defendants did not violate the anti-age discrimination statute in question. We agree, and therefore affirm.
07a0341p.06	2007/08/28	LULAC   v. Bredesen      TNM - Middle District of TN at Nashville                     McKEAGUE, Circuit Judge. This is an appeal from a judgment dismissing claims challenging Tennessee’s driver license law as violative of certain aliens’ right to equal protection and right to travel. On due consideration of plaintiffs’ complaint in light of the parties’ appellate arguments, we affirm the district court’s judgment that the complaint fails to state a claim upon which relief can be granted.
07a0342p.06	2007/08/28	Operation Kings v. Connerly   MIE - Eastern District of MI at Detroit                     R. GUY COLE, JR., Circuit Judge. After Michigan’s Board of Canvassers approved for Michigan’s November 2006 general election ballot a citizen-initiated proposal (“Proposal 2”) that would amend Michigan’s constitution to prohibit all sex- and race-based preferences in public education, public employment, and public contracting,Plaintiffs-Appellants/Cross-Appellees Operation King’s Dream, along with other organizations and individuals, brought suit under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, against Ward Connerly, Jennifer Gratz, the Michigan Civil Rights Initiative committee (the “MCRI,” collectively, the “MCRI Defendants”), and against various Michigan officials (the “State Defendants”). The complaint sought only to enjoin the placement of Proposal 2 on the November 2006 general election ballot, alleging that the MCRI Defendants and their agents used racially targeted voter fraud in contravention of the Voting Rights Act to obtain signatures in support of Proposal 2. After bringing suit, the Plaintiffs moved for a preliminary injunction to prevent Proposal 2’s placement on the ballot, and both Defendant groups moved to dismiss for failure to state a claim under the Voting Rights Act. The district court denied the Plaintiffs’ preliminary-injunction motion and granted the motions to dismiss (which, because of an evidentiary hearing, were converted into motions for summary judgment).                     The Plaintiffs now appeal the denial of their preliminary-injunction motion and the dismissal of their Voting Rights Act claim. In addition, the MCRI Defendants cross-appeal the admission into evidence of a state-issued report critical of the MCRI’s methods for obtaining signatures in support of Proposal 2. Notwithstanding the disturbing allegations underlying the Plaintiffs’ complaint, which the district court substantiated, because the opportunity to keep Proposal 2 off the ballot has long since passed, the Plaintiffs’ appeal is dismissed as moot. Consequently, so too is the MCRI Defendants’ cross-appeal.
07a0343p.06	007/08/28	Parker   v. Goodman     KYE - Eastern District of KY at Pikeville                     CLAY, Circuit Judge. The instant appeal arises from adversary proceedings brought in U.S. Bankruptcy Court. Defendant, Robert E. Parker, the debtor below, appeals the district court’s order affirming the bankruptcy court’s order permanently enjoining Defendant from prosecuting a state legal malpractice claim against Plaintiff, Thomas W. Goodman, his former counsel. For the reasons  that follow, we AFFIRM.
07a0344p.06	2007/08/28	Laney  v. Farley     TNM - Middle District of TN at Nashville                     JOHN G. HEYBURN II, Chief District Judge. Plaintiff William Laney brought suit individually and on behalf of his minor daughter, Victoria Laney, after school officials confiscated her cell phone when it began ringing during a class session and then imposed a one-day, in-school suspension upon her. The only remaining claim, brought pursuant 42 U.S.C. § 1983, seeks recovery for failure to provide notice and an opportunity to be heard prior to Victoria’s suspension. The sole remaining defendant, Wilson County Board of Education (“WCBE”), brings this interlocutory appeal of the district court’s finding that a one-day, in-school suspension implicates procedural due process protection of the Due Process Clause. For the reasons stated below, we respectfully disagree           with the district court and reverse.
07a0345p.06	2007/08/28	McCray v. Vasbinder   MIE - Eastern District of MI at Detroit                     SUTTON, Circuit Judge. A Michigan jury convicted Oyd McCray of first-degree murder and possession of a firearm during the commission of a felony, and the state court sentenced him to life in prison without the possibility of parole. Claiming to be innocent of the crimes, McCray filed an untimely application for a writ of habeas corpus, which the district court granted. Because McCray has not satisfied the gateway requirements for excusing a time-barred claim, see Schlup v. Delo, 513 U.S. 298, 327 (1995) (requiring the applicant to “show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt”); Souter v. Jones, 395 F.3d 577, 602 (6th Cir. 2005) (applying the Schlup standard to determine whether a late-filed claim should be equitably tolled under AEDPA), we reverse.
07a0346p.06	2007/08/28	USA  v. Clarke     MIE - Eastern District of MI at Ann Arbor                     KARL S. FORESTER, District Judge. Marcus Franklin (“Franklin”) and Jamaal Clarke (“Clarke”) were convicted of various bank robbery charges in 2003. We affirmed their convictions in United States v. Franklin, 415 F.3d 537 (6th Cir. 2005), but remanded for re-sentencing under United States v. Booker, 543 U.S. 220 (2005). Following re-sentencing, Franklin again appealed, arguing that his re-sentencing violated his Sixth Amendment right to fact finding by a jury. We disagree based on Sixth Circuit precedents. The United States has appealed the re-sentencings of both Franklin and Clarke, arguing that the new sentences are unreasonable on two grounds. First, the United States claims that the district court improperly considered the impact of a mandatory, consecutive sentence when determining the reasonableness of the sentences under Booker. Second, it claims that the district court imposed substantively unreasonable sentences based upon its misinterpretation of this Court’s prior opinion in the case. We agree with the United States, VACATE the sentences, and REMAND for re-sentencing.
07a0346p.06	2007/08/28	USA  v. Franklin    MIE - Eastern District of MI at Ann Arbor                     KARL S. FORESTER, District Judge. Marcus Franklin (“Franklin”) and Jamaal Clarke (“Clarke”) were convicted of various bank robbery charges in 2003. We affirmed their convictions in United States v. Franklin, 415 F.3d 537 (6th Cir. 2005), but remanded for re-sentencing under United States v. Booker, 543 U.S. 220 (2005). Following re-sentencing, Franklin again appealed, arguing that his re-sentencing violated his Sixth Amendment right to fact finding by a jury. We disagree based on Sixth Circuit precedents. The United States has appealed the re-sentencings of both Franklin and Clarke, arguing that the new sentences are unreasonable on two grounds. First, the United States claims that the district court improperly considered the impact of a mandatory, consecutive sentence when determining the reasonableness of the sentences under Booker. Second, it claims that the district court imposed substantively unreasonable sentences based upon its misinterpretation of this Court’s prior opinion in the case. We agree with the United States, VACATE the sentences, and REMAND for re-sentencing.
07a0347p.06	2007/08/29	Powers  v. Hamilton Cnty      OHS - Southern District of OH at Cincinnati                     R. GUY COLE, JR., Circuit Judge. Defendants-Appellants Hamilton County Public Defender Office (the “Public Defender Office”) and Hamilton County Public Defender Commission (the “Public Defender Commission”) (collectively, the “Public Defender”) appeal the judgment of the district court granting class certification and summary judgment to Plaintiff-Appellee Michael Powers. The Hamilton County municipal court ordered Powers to pay a fine in connection with a reckless-driving charge. Powers was subsequently incarcerated for non-payment of that fine. He then filed this § 1983 class action, alleging that his constitutional rights were violated by the Public Defender’s policy or custom of failing to seek indigency hearings on behalf of criminal defendants facing jail time for unpaid fines.                     For the reasons set forth below, we AFFIRM the district court’s ruling that Powers’s § 1983  claims are cognizable, and AFFIRM the grant of class certification. We REVERSE the district  court’s grant of summary judgment to Powers and REMAND for further proceedings.
07a0348p.06	2007/08/29	Amer Telecom Co v. Republic of Lebanon     MIE - Eastern District of MI at Detroit                     ALICE M. BATCHELDER, Circuit Judge. American Telecom Company, LLC and American Telecom Group-USA, LLC (collectively “American Telecom”) appeal from the order of the district court dismissing, under Fed. R. Civ. Pro. 12(b)(1) for want of federal subject-matter jurisdiction, their complaint against the Republic of Lebanon (“Lebanon”). The question presented is whether the district court erred by finding that Lebanon’s conduct did not cause a direct effect in the United States and therefore that the 28 U.S.C. § 1605(a)(2) commercial activity exception to FSIA immunity did not apply. Finding no error, we affirm.
07a0349p.06	2007/08/29	USA   v. Simmons     TNW - Western District of TN at Memphis                     KENNEDY, Circuit Judge. Kossie Lamon Simmons (“defendant”) appeals his sentence imposed after he pleaded guilty to health care fraud in violation of 18 U.S.C. § 1347. After granting an eight-level departure requested by the government, calculating a guideline range of twenty-seven to thirty-three months, and considering the 18 U.S.C. § 3553(a) factors, the district court imposed a sentence of twenty-three months in prison as well as restitution. Mr. Simmons claims that his sentence was unreasonable because the district court did not consider the disparity between his sentence and that of his co-defendant’s, Mr. Anthony Ross’s, as he asserts the district court is required to based on 18 U.S.C. § 3553(a)(6). Because we conclude that § 3553(a)(6) refers to national uniformity as opposed to uniformity of co-defendants’ sentences, we affirm the district court.
07a0350p.06	2007/08/29	USA  v. Baker     KYE - Eastern District of KY at Lexington                     COOK, Circuit Judge. Ronald Gipson Baker pleaded guilty to possessing a shotgun after having been convicted of a misdemeanor crime of domestic violence. The district court sentenced him to ten months in prison. Baker now challenges the disallowance of one reduction, arguing that the shotgun is a family heirloom possessed “solely for lawful sporting purposes or collection” pursuant to           U.S.S.G. § 2K2.1(b)(2). Although a firearm held for sentimental reasons may qualify under this section under some circumstances, we conclude that Baker was not entitled to the reduction. Accordingly, we affirm.
07a0351p.06		Hamiltons   Bogarts v. MI   MIE - Eastern District of MI at Detroit                     BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Hamilton’s Bogarts, Inc. — operator of an adult entertainment establishment with a Michigan liquor license — and Kathleen Polzin — an exotic dancer — brought this lawsuit to challenge a Michigan statute and regulations that prohibit entities with liquor licenses from allowing exotic dancers to perform fully nude, or mimick sexual acts, on stage. The district court denied plaintiffs’ requests for injunctive relief. For the foregoing reasons, we REVERSE the district court’s decision.
07a0352p.06	2007/08/30	USA v. Gonzalez   OHN - Northern District of OH at Cleveland                     RONALD LEE GILMAN, Circuit Judge. Jomill Gonzalez was convicted by a federal jury of possessing cocaine with the intent to distribute the drug in connection with a planned sale that took place on August 10, 2005. Gonzalez had driven to the sale in a car owned by one of his codefendants that contained approximately one kilogram of cocaine hidden in a secret compartment .  His defense at trial, however, was that he was unaware of either the cocaine or the intended sale.  In response, the government presented witnesses who testified regarding Gonzalez’s involvement in the specific transaction charged as well as in a broader uncharged drug conspiracy that had previously involved only two-ounce (59.7 gram) sales of cocaine. The district court sentenced Gonzalez based on the two-ounce quantity because the court determined that that amount was all that he should have reasonably foreseen would be involved in the August 10 transaction.                     On appeal, Gonzalez challenges the district court’s evidentiary rulings, the sufficiency of the evidence against him, the reasonableness of his sentence, and the effectiveness of his trial counsel. The government cross-appeals, challenging the district court’s drug-quantity determination and sentence. For the reasons set forth below, we AFFIRM Gonzalez’s conviction, but REVERSE his sentence and REMAND the case for resentencing consistent with this opinion.
07a0353p.06	2007/08/31	USA  v. Herndon     TNM - Middle District of TN at Nashville                     JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Scott Herndon was  convicted in Tennessee state court of multiple counts of sexual exploitation of a minor and, after serving a brief term of imprisonment, placed on probation subject to certain terms and conditions, including a series of Sex Offender Directives issued by the Tennessee Board of Probation and Parole. During the course of an inspection of Herndon’s home computer to check Herndon’s compliance with the Directives’ prohibition on home Internet access, Herndon’s probation officer discovered child pornography on an external hard drive located in Herndon’s bedroom. The probation officer contacted local police officers who seized the materials. The United States charged Herndon with receipt and possession of child pornography. After the district court denied Herndon’s motion to suppress the evidence against him, Herndon pled guilty to one of the counts against him, and the district court sentenced him to 72 months imprisonment. On appeal, Herndon  hallenges the district court’s denial of his motion to suppress the evidence against him.                     For the reasons that follow, we affirm.
07a0354p.06	2007/08/31	Clay   v. United Parcel Ser    OHN - Northern District of OH at Akron                     KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants Marie Moss (“Moss”), Olin Clay (“Clay”), and Marcus Miller (“Miller”)1 (collectively “the plaintiffs”) appeal the district court orders granting summary judgment to Defendant-Appellant United Parcel Service, Inc. (“UPS”) on a variety of Title VII-based claims, and denying the plaintiffs’ motion to reconsider. Moss appeals the grant of summary judgment on her disparate-treatment claim and hostile-workenvironment claim. Clay appeals the grant of summary judgment on his disparate-treatment claim and retaliation claim. Miller appeals the grant of summary judgment on his disparate-treatment claim and retaliation claim. Because the district court correctly applied the summary-judgment standard with respect to Moss’s hostile-work-environment claim, Moss’s disparate-treatment claim insofar as it pertains to the Akron position, and Miller’s retaliation claim, we AFFIRM the district court’s grant of summary judgment on these claims. Because there are genuine issues of material fact with respect to Moss’s disparate-treatment claim insofar as it pertains to the Middleburg Heights position, Clay’s disparate-treatment claim, Clay’s retaliation claim, and Miller’s disparate-treatment claim, we REVERSE the district court’s grant of summary judgment on these claims and we REMAND the case for further proceedings consistent with this opinion.
07a0355p.06	2007/08/31	USA  v. Lancaster      TNW - Western District of TN at Jackson                     GRIFFIN, Circuit Judge. Defendant Collis Paul Lancaster, Jr. appeals his sentence of 188 months of incarceration. On appeal, Lancaster argues that the district court erred in determining that his prior Kentucky state conviction for second-degree escape under KY. REV. STAT. § 520.030 (2006) is a “violent felony” as defined in 18 U.S.C. § 924(e)(2)(B) and therefore improperly sentenced him as an armed career criminal. Defendant argues further that the district court erred in classifying him as an armed career criminal because his prior criminal convictions were not admitted nor submitted to the jury and proven beyond a reasonable doubt. Finally, he asserts that his sentence is unreasonable.
07a0356p.06	2007/08/31	USA   v. Kaminski, USA v. Coleman,  USA v. Ovimmune Inc.       OHS - Southern District of OH at Columbus                     KAREN NELSON MOORE, Circuit Judge. Defendants-Appellants Mitchell V. Kaminski (“Kaminski”); Marilyn A. Coleman (“Coleman”); and Ovimmune, Inc. (“Ovimmune”) (collectively, “Appellants”) were each convicted under the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 321 et seq., on fifteen misdemeanor counts of introduction into interstate commerce of unapproved new drugs without intent to defraud or mislead; introduction into interstate commerce of misbranded drugs without intent to defraud or mislead; failure to register a drug manufacturing facility without intent to defraud or mislead; misbranding drugs while held for sale after shipment in interstate commerce without intent to defraud or mislead; and adulterating drugs while held for sale after shipment in interstate commerce. Kaminski and Ovimmune appeal their convictions, and Coleman and Kaminski appeal the district court’s calculation of their sentences. For the reasons set forth below, we VACATE Kaminski’s sentence and REMAND his case for resentencing, and in all other respects AFFIRM the judgment of the district court.

News: Notice: CM-ECF Information

The U.S. Court of Appeals for the Sixth Circuit and the Bankruptcy Appellate Panel for the Sixth Circuit have begun using the Federal Judiciary's Case Management-Electronic Case Files computer system know as CM-ECF.

As of August 20, 2007, any new docket entry referring to a document initiated by the Court of Appeals or the BAP will be attached to that entry and available from PACER.

Neither court has yet put into place that part of CM-ECF which allows parties to file documents electronically and therefore those fillings will not appear on the docket in PACER. This feature will be available in the future, and periodically checking this website will keep you advised.