6th Cir Published Decisions for week of Oct. 8, 2007 (NO Ky decisions published)

Opinion	Short Title/District
07a0410p.06	Stewart v. Erwin     Southern District of Ohio at Cincinnati ROSEN, District Judge: We REVERSE the district court’s order denying Petitioner/Appellant Dale Stewart’s petition for a writ of habeas corpus and REMAND for additional proceedings in accordance with this opinion, with further instructions that the district court shall grant Stewart’s petition and issue the writ if the State fails to supplement the record as ordered by the district court within forty-five (45) days of the date of this opinion.
07a0411p.06	Lazar v. Gonzales     Immigration & Naturalization Service R. GUY COLE, JR., Circuit Judge. Petitioner Yousif Lazar seeks review of the decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision declaring Lazar’s asylum application frivolous. At a hearing in November 2003, Lazar admitted that he made material misrepresentations in his application, including that he was detained and beaten in Saddam Hussein’s Iraq. As a result, the IJ declared his application frivolous. Because a finding of frivolousness prevents an alien from obtaining any other relief under the Immigration and Nationality Act (“INA”) for which he might otherwise qualify (except for withholding of removal, which Lazar does not seek), the IJ denied Lazar’s application for an adjustment of status based on his marriage to a naturalized United States citizen. For the reasons that follow, we DENY Lazar’s petition for review.
07a0412p.06	USA v. Kenny     Eastern District of Michigan at Bay City WILLIAM W SCHWARZER, District Judge. Kenneth Michael Kenny appeals his conviction on one count of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). On appeal he contends that the district court erred in denying his motion to suppress evidence found in a search of his residence at 4970 North Finley Lake Road and in denying his motion for a new trial based on newly discovered evidence that the restoration of his civil rights precludes application of section 922(g) to him. Finding his contentions to lack merit, we affirm.
07a0413p.06	USA v. McGrattan     Northern District of Ohio at Cleveland WILLIAM W SCHWARZER, District Judge. Henry G. McGrattan appeals his twenty-year sentence for (1) using a computer connected to the internet to persuade a minor to engage in illegal sexual activity, and (2) knowingly receiving and distributing child pornography. The district court concluded that based on a prior Ohio state offense, a higher fifteen-year mandatory minimum sentence applied to the first count. Because the Ohio offense does not categorically qualify as a prior offense under federal law, and because the government has not provided sufficient documentation of McGrattan’s actual conduct in that offense, we vacate his sentence and remand for resentencing consistent with this opinion.
07a0414p.06	Lennon v. Met Life     Eastern District of Michigan at Detroit ROGERS, Circuit Judge. The question in this case is whether it is arbitrary and capricious for an ERISA plan administrator to deny Personal Accident Insurance benefits to the beneficiary of an insured who died as result of his own drunk driving. The insurance policy at issue covered “accidents” but did not specifically define the term to exclude deaths that resulted from an insured driver’s drunk driving. The district court held that, although the beneficiary, David Lennon, drove with a blood-alcohol level three times the legal limit, he did not reasonably expect to lose his life and that his death was thus accidental. The district court therefore ruled against MetLife and in favor of Lennon’s beneficiary, his mother Nancy, on her ERISA claim. Because MetLife could reasonably conclude that death caused by grossly negligent drunk driving is not accidental, it was not arbitrary and capricious for MetLife to do so. We therefore reverse.
07a0415p.06	USA v. Smith     Eastern District of Tennessee of Chattanooga GRIFFIN, Circuit Judge. Defendant Ronald Russell Smith pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). After noting that Smith committed the robbery while on supervised release for two other federal felonies, had 22 prior state convictions, and continued to commit crimes while in custody, the district court sentenced him to a term of 132 months of incarceration. The district court considered the advisory Sentencing Guideline range of 46 to 57 months, but concluded that a 132-month sentence was warranted because of defendant’s extraordinary criminal history and exceptional danger to public safety. Defendant now appeals his sentence as being unreasonable. For the reasons set forth below, we affirm Smith’s sentence. In doing so, we hold that defendant’s above-the-Guidelines sentence is both procedurally and substantively reasonable, and thus the district court did not abuse its sentencing discretion.
07a0416p.06	DeBusscher v. Sam's East, Inc     Eastern District of Michigan at Detroit RONALD LEE GILMAN, Circuit Judge. Barbara DeBusscher was injured when a portable basketball goal fell on her while she was shopping in a Sam’s Club store operated by a subsidiary of Wal-Mart Stores, Inc. The district court granted summary judgment in favor of the store after concluding that DeBusscher failed to produce sufficient evidence that the store caused the accident or had notice of an unsafe condition that resulted in her injuries. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.
07a0417p.06	Skowronek v. Amer Steamship Co     Eastern District of Michigan at Detroit McKEAGUE, Circuit Judge. In this case, we consider the validity of a maintenance rate that is applicable to ill crew members and is one of the terms of a collective bargaining agreement (CBA). The CBA contained, inter alia, a maintenance rate of $56.00 per week for ill crew members and a rate of $300.00 per week for injured crew members. Due to this differential treatment, the district court granted Plaintiff-Appellee Larry Skowronek, an ill crew member, summary judgment and awarded him the injured crew member rate. We REVERSE.
07a0418p.06	Nestle Waters NA v. Bollman     Western District of Michigan at Grand Rapids BOGGS, Chief Judge. Nestle Waters North America, Inc. (“Nestle”) appeals from the district court’s dismissal of its claims against Donald and Nancy Bollman (“the Bollmans”). Nestle had sought declaratory and injunctive relief regarding its rights to certain subsurface waters that the Bollmans had deeded to it. Notably, the deed in question was silent regarding arbitration. In response, the Bollmans contended that the dispute fell within the scope of an arbitration clause that the parties had included in the initial contract that established their business relationship. Although questions regarding the scope of arbitration clauses are familiar, the question of whether and when an arbitration clause in one contract encompasses a dispute arising out of a related agreement is less common in our case law. In the present case, we conclude that the parties intended that the arbitration clause in the contract establishing and defining their relationship should govern the present dispute; therefore, we affirm the judgment of the district court.