Sixth Circuit Cases

6th Cir. Published Decisions for Week of Oct. 22, 2007 (2 Kentucky decisions)

Opinion	Short Title/District
07a0428p.06	USA v. Geerken     Southern District of Ohio at Dayton STAFFORD, District Judge. The defendant, Ivan Geerken (“Geerken”), appeals from the 60-month sentence imposed by the district court following Geerken’s guilty plea to possession of child pornography. Geerken contends that the district court erred in calculating his sentencing range under the advisory United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). We AFFIRM.
07a0429p.06	USA v. Ward USA v. Winton USA v. Cook     Eastern District of Tennessee at Winchester McKEAGUE, Circuit Judge. Defendants Calvin Ward, Berreese Winton, and Stephen Cook pled guilty to various drug trafficking crimes. In a joint sentencing hearing, the district court sentenced Ward to 210 months’ imprisonment and Winton to 292 months’ imprisonment. Shortly thereafter, the district court sentenced Cook to 294 months’ imprisonment. All three defendants now appeal their respective sentences. Ward objects to the use of a prior felony drug conviction as a predicate offense for purposes of career offender status. Winton argues that the district court erred when it applied a two-level firearm enhancement. Cook raises three objections, contending that the two-level enhancement for his leadership role was improper, the enhancement provision is unconstitutionally vague, and his sentence was unreasonable. Contrary to defendants’ arguments, the district court did not commit error when it sentenced each defendant, and so we AFFIRM all three judgments.
07a0430p.06	Connection Distr v. Gonzales     Northern District of Ohio at Cleveland KENNEDY, Circuit Judge. Connection Distributing, Rondee Kamins, Jane Doe, and John Doe (“Plaintiffs”) appeal the judgment of the district court granting summary judgment to the government. Plaintiffs had challenged the recordkeeping requirements 18 U.S.C. § 2257 placed upon producers of images of “actual sexually explicit conduct” as violative of the First Amendment. We conclude that the statute is overbroad and therefore violates the First Amendment, and accordingly we REVERSE the district court’s judgment and remand with instructions to enter summary judgment for the plaintiffs.
07a0431p.06	Morrison v. Boyd Cnty Bd Ed     Eastern District of Kentucky at Ashland KAREN NELSON MOORE, Circuit Judge. Timothy Morrison (“Morrison”) was a student at Boyd County High School (“BCHS”). He is a Christian, and he believes that homosexuality is a sin. He further believes that part of his responsibility as a Christian is to tell others when their conduct does not comport with his understanding of Christian morality. During the 2004-05 academic year, BCHS had a written policy prohibiting students from making stigmatizing or insulting comments regarding another student’s sexual orientation. Morrison did not want to be punished, so he kept to himself his beliefs regarding homosexuality. After Morrison filed this lawsuit, the Board of Education of Boyd County (“Board”) changed the BCHS policy, but the litigation did not end. We must now decide whether Morrison’s claim for nominal damages premised upon the “chill” on Morrison’s speech during the 2004-05 school year presents a justiciable controversy. We conclude that it does and accordingly REVERSE the district court’s grant of summary judgment to the school board on this claim. Because genuine issues of material fact prevent us from determining the merits of Morrison’s free-speech claim, we REMAND the case to the district court for further proceedings.
07a0432p.06	USA v. Stacy USA v. Hughes     Southern District of Ohio at Columbus JOHN R. ADAMS, District Judge. Appellants Kelly Hughes and Kevin Stacy challenge their convictions and alternatively the district court's denial of their motion for judgment of acquittal and/or motion for a new trial. This appeal, originally filed by Hughes, was consolidated with case number 06-3025, filed by Stacy. There are nine issues raised on appeal, two by Hughes, seven by Stacy. Both Appellants allege that there was a variance between the indictment and the evidence presented at trial on the conspiracy counts. They further argue that the variance resulted in substantial prejudice, thus necessitating a new trial. Stacy makes the following additional arguments: that the jury verdict was against the manifest weight of the evidence and was not supported by sufficient evidence with respect to the charge of making false statements and the charges of conspiracy to engage in insider trading and to obstruct justice; that the jury relied on material outside the record in its deliberations; that defense counsel failed to present an adequate defense at trial due to the district court's exclusion of certain expert testimony; that the jury instructions were inadequate; and that prejudice resulted from the cumulative effect of errors made by the district court. For the reasons stated below, we AFFIRM the judgment of the district court, although based upon a slightly different analysis from the one used by that court.

6th Cir. Published Decisions for Week of Oct. 15, 2007 (1 Ky. Decision)

 

Opinion	Short Title/District
07a0419p.06	Blair v. Henry Filters Inc     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. When a fifty-seven-year-old’s direct supervisor taunts him as “the old man on the sales force,” removes him from a profitable account because he is “too old,” and tells another employee he “needs to set up a younger sales force” before terminating the employee, can the employee’s age-discrimination claim survive summary judgment? We believe it can. Accordingly, we REVERSE the district court’s judgment for the employer and REMAND this case for further proceedings.
07a0420p.06	Tepper v. Potter     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Martin Tepper filed this employment-related action arising from work assignments that began in January 2003. At that time, the Chagrin Falls branch of the United States Postal Service (“USPS”) ended an approximately tenyear- long practice of allowing Tepper to avoid Saturday work assignments so that he could observe his Sabbath. Tepper’s complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Ohio Rev. Code § 4112.02(A). The district court granted summary judgment to Defendant-Appellee John E. Potter, Postmaster General of USPS, on all counts. Tepper seeks review of the district court’s grant of summary judgment as to the claims arising under Title VII. We conclude that the district court’s grant of summary judgment was not erroneous. Accordingly, we AFFIRM the judgment below.
07a0421p.06	Kouljinski v. Gonzales     Immigration & Naturalization Service KAREN NELSON MOORE, Circuit Judge. After finding that an alien is eligible for asylum, may an immigration judge consider the alien’s three convictions for driving under the influence of alcohol in denying the application for asylum as a matter of discretion? That is the principal question in this appeal, and because we conclude that an immigration judge may properly consider such convictions, we DENY Nikolai Kouljinski’s petition for review of the decision of the Board of Immigration Appeals denying his application for asylum and withholding of removal.
07a0422p.06	Parker v. Renico     Eastern District of Michigan at Detroit COOK, Circuit Judge. A Michigan jury convicted Saejar Deonte Parker of the twin crimes of being a felon in possession of a firearm and felony-firearm. Mich. Comp. Laws §§ 750.224f, 750.227b. After exhausting his state-court remedies, Parker sought a writ of habeas corpus in federal district court, claiming that insufficient evidence supported the jury’s conclusion that he constructively possessed a firearm. Because Parker has shown that the state courts unreasonably applied Jackson v. Virginia, 443 U.S. 307 (1979), we affirm the district court’s grant of the petition.
07a0423p.06	USA v. Grubbs     Eastern District of Kentucky at London R. GUY COLE, JR., Circuit Judge. A jury convicted Ernest Wayne Grubbs on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States District Court for the Eastern District of Kentucky sentenced Grubbs to a total of 195 months of imprisonment on this conviction as well as related charges to which he pleaded guilty. He now argues on appeal that (1) the district court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support his felon-in-possession conviction, and (2) his case should be remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). For the reasons set forth below, we REVERSE and REMAND for an entry of a judgment of acquittal on the felon-in-possession charge as well as for resentencing under the now-advisory Sentencing Guidelines.
07a0424p.06	NicSand, Inc. v. 3M Company     Northern District of Ohio at Cleveland SUTTON, Circuit Judge. Between 1987 and 2001, NicSand and 3M were the only nationwide suppliers in the market for do-it-yourself automotive sandpaper, and they competed for the business of six large retailers, which controlled 80% of the market and which (with one exception) offered their shelf space on an exclusive basis for a year at a time. NicSand developed this niche market and eventually gained a 67% share of it. Between 1997 and 2001, however, it lost most of the market when 3M offered the large retailers greater up-front discounts and longer exclusive agreements than NicSand had offered in the past or apparently was willing to offer in the future. When NicSand filed an antitrust lawsuit to complain about 3M’s conduct, the district court dismissed the complaint for lack of antitrust standing and, more particularly, for lack of a cognizable antitrust injury. Because 3M did not engage in below-cost—or predatory—pricing, because five of the six large retailers demanded exclusivity as a precondition for doing business, because the allegations show no more than that 3M competed with its rival on the same essential terms that NicSand and the large retailers had already established for this market and because the antitrust laws in the end protect competition, not competitors, we affirm.
07a0425p.06	Bridgeport Music Inc v. Justin Combs Publ     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Plaintiffs, Bridgeport Music, Inc., and Westbound Records, Inc., owned the copyright to the Ohio Players’ song, “Singing in the Morning.” Defendant music publishers1 released the Notorious B.I.G. album Ready to Die, the title song of which contained an unlicensed sample of “Singing in the Morning.” After plaintiffs brought suit against defendants for copyright infringement, a jury found in favor of plaintiffs and awarded compensatory and punitive damages. Bridgeport elected statutory damages under the federal Copyright Act, 17 U.S.C. § 101 et seq., and received the maximum award of $150,000. Westbound received its one-half share of compensatory damages, $366,939, and punitive damages in the amount of $3.5 million. Defendants make ten arguments on appeal: (1) the jury verdict was the result of passion and prejudice; (2) the district court erroneously excluded evidence that defendants argue demonstrates that they did not infringe willfully; (3) the district court erroneously bifurcated the trial into liability and punitive damages phases after the trial had commenced; (4) UMG was released from liability; (5) the district court erred by failing to apportion compensatory damages between the infringing and non-infringing portions of the song and album; (6) the jury’s award of compensatory damages improperly included compounded interest; (7) the jury’s award of compensatory damages improperly included prejudgment interest; (8) the jury’s selection of May 4, 1998, as the date from which prejudgment interest should be calculated was in conflict with state law; (9) the jury’s $3.5 million punitive damage award was unconstitutionally excessive; and (10) the district court erred by entering an injunction and impoundment order. Defendants are correct only with respect to issues six, seven, eight, and nine. The jury’s compensatory damage award appears to have been the result of a mistake, which resulted in the award’s including compounded, prejudgment interest. The date that the jury selected for the time from which prejudgment interest should be awarded was the beginning of the statute of limitations period, and thus conflicts with New York law (which governed Westbound’s claims). The punitive damages award violates due process when measured against defendants’ conduct, the harm that plaintiffs suffered, and the statutory damages that federal law permits. The other issues raised by defendants are without merit. We remand with instructions for the district court to offer plaintiffs a remittitur with respect to the compensatory and punitive damages award and to select a reasonable adate from which to calculate prejudgment interest.
07a0426p.06	USA v. Hamilton Cnty     Southern District of Ohio at Cincinnati MARTHA CRAIG DAUGHTREY, Circuit Judge. The Hamilton County Board of County Commissioners and the City of Cincinnati (collectively, the County) appeal the district court’s award of attorneys’ fees to the Sierra Club and individual plaintiff Marilyn Wall (collectively, the Sierra Club) in this Clean Water Act case. The district court determined that the Sierra Club was entitled to recover litigation costs both on the basis of the “catalyst theory” and because the plaintiff was a “prevailing or substantially prevailing party” under section 1365 of the Act, 33 U.S.C. § 1365(d). The County argues that the catalyst theory of recovery was debunked by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), that the Sierra Club cannot be considered a prevailing party under existing case precedent, and that – even if the Sierra Club is entitled to attorneys’ fees in this case – the amount awarded by the district court cannot be sustained on the record. We conclude that the district court did not err in determining that the Sierra Club was entitled to recover attorneys’ fees as a “prevailing or substantially prevailing party” in this case, but we also find it necessary to remand the case for a particularized determination of the amount of that award.
07a0427p.06	ITT Indus v. BorgWarner Inc     Western District of Michigan at Grand Rapids CLAY, Circuit Judge. Plaintiff, ITT Industries, Inc., appeals an order by the district court dismissing Plaintiff’s claims against Defendants arising under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., for failure to state a claim and declining to exercise supplemental jurisdiction over related state law claims. Specifically, Plaintiff appeals the district court’s dismissal of its complaint seeking: 1) cost recovery under CERCLA § 107(a) and 2) contribution pursuant to CERCLA § 113(f)(3)(B). For the reasons that follow, we REVERSE the district court’s dismissal of Plaintiff’s cost recovery claim, AFFIRM the dismissal of Plaintiff’s contribution claim, and REMAND for further proceedings consistent with this opinion.

 

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.

6th Cir. Published Decisions for Week of Oct. 1, 2007 (4 Ky published decisions)

Opinion	Pub Date	Short Title/District
07a0399p.06	2007/10/01	USA v. Story     Eastern District of Tennessee at Greeneville BOYCE F. MARTIN, JR., Circuit Judge. This case is on appeal from the district court’s resentencing of Joseph Story in light of United States v. Booker, 543 U.S. 220 (2005).
07a0400p.06	2007/10/01	Smith v. Nationwide Property     Eastern District of Tennessee at Greeneville HOOD, Chief District Judge. Defendant-Appellant Nationwide Property and Casualty Insurance Company (“Defendant”) appeals the decision of the district court, granting Plaintiff- Appellee Royce T. Smith’s (“Plaintiff” or “Smith”) Motion to Remand the matter to state court. Defendant argues that, under the Class Action Fairness Act (“CAFA”), it had established the requisite amount in controversy and that remand was not warranted. In response, Plaintiff argues that the district court appropriately determined that Defendant had failed to establish the requisite amount in controversy or, in the alternative, that the district court improperly determined that CAFA even applied to the action and that, in either event, remand was or should have been appropriately granted upon his motion. We are of the opinion that the provisions of CAFA are applicable to the matter at hand and that Defendant has failed to demonstrate, by a preponderance of the evidence, that the district court had original jurisdiction over this putative class action by virtue of an adequate amount in controversy. As explained more fully below, we hereby AFFIRM the decision of the district court.
07a0401p.06	2007/10/01	Midwest Media v. Symmes Township     Southern District of Ohio at Cincinnati SUTTON, Circuit Judge. The district court granted summary judgment to Symmes Township on plaintiffs’ claims that the township’s sign regulations violated the First (and Fourteenth) Amendment because plaintiffs lack standing to challenge them. We affirm.
07a0402p.06	2007/10/01	Wysong v. Dow Chem Co     Southern District of Ohio at Columbus KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Kimberly Wysong (“Wysong”) sued Defendant-Appellee The Dow Chemical Company (“Dow”) after Dow terminated her employment. Wysong alleged that Dow violated her rights under both the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), and Ohio’s anti-discrimination statute, OHIO REV. CODE § 4112.02, and also that Dow committed the state tort of wrongful discharge. The district court granted Dow’s motion for summary judgment on all of Wysong’s claims. Because the district court erred in its reasoning when it granted summary judgment to Dow on Wysong’s FMLA claim, state anti-discrimination claim, and wrongful-discharge claim, we REVERSE the district court’s judgment on these claims and REMAND to the district court for further proceedings in accordance with this opinion.
07a0403p.06	2007/10/02	USA v. Kirchhof     Western District of Kentucky at Louisville JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Peter Kirchhof appeals the district court’s sentence of 180 months following his guilty plea to one count of transporting child pornography over the internet in violation of 18 U.S.C. § 2252(a)(1) and one count of receiving child pornography over the internet in violation of 18 U.S.C. § 2252(a)(2). Kirchhof challenges his sentence on the ground that his sentence is substantively unreasonable. For the following reasons, we affirm the sentence of the district court.
07a0404p.06	2007/10/02	United Steelworkers v. Saint-Gobain Ceramic     Western District of Kentucky at Louisville SUTTON, Circuit Judge. Does a dispute over the meaning of a time-limitation bar in a collective bargaining agreement present a threshold question for an arbitrator to resolve or for a judge to resolve? Under John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), and Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), “a time limit rule is a matter presumptively for the arbitrator, not for the judge,” Howsam, 537 U.S. at 85. Because neither the terms of this timelimitation provision nor the terms of the collective bargaining agreement rebut that presumption, we hold that the parties’ dispute over the meaning of the provision should be resolved by an arbitrator.
07a0405p.06	2007/10/03	Prater v. Ohio Education Assoc     Southern District of Ohio at Columbus SUTTON, Circuit Judge. James Prater and several other retired employees of the Ohio Education Association (“OEA”) claim that OEA improperly terminated their health benefits, which (they say) had become vested and irreducible through a series of collective bargaining agreements. Relying in part on our decision in Maurer v. Joy Technologies, Inc., 212 F.3d 907 (6th Cir. 2000), the district court rejected the claims as a matter of law. Because we conclude that Maurer does not apply here, because after-the-fact unilateral summary plan descriptions cannot supercede the amendment provisions in a collective bargaining agreement and because the contracts are otherwise ambiguous about whether they promise lifetime, irreducible health benefits to employees upon their retirement, we reverse.
07a0406p.06	2007/10/04	Spengler v. ADT Security     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Dwight Spengler appeals from the district court’s dismissal of his tort claim on summary judgment. Spengler alleges that ADT is responsible for his mother’s death by failing to dispatch an ambulance to her address after she pressed an ADT-issued emergency call button. Because the district court correctly held that this case sounds in contract and not in tort, we AFFIRM the holding of the district court.
07a0407p.06	2007/10/04	Murphy v. Cockrell     Eastern District of Kentucky at Lexington McKEAGUE, Circuit Judge. In this Government appeal, it is argued that Appellee Oscar Malone’s 24-month sentence, which represents a 27-month downward variance1 from the Guidelines range of 51 to 63 months, is unreasonable. The Government argues, inter alia, that by considering the sentence the defendant would have received had he been convicted in state court, the district court relied on an impermissible factor. For the reasons stated below, we agree and hold that a district court’s consideration of a defendant’s possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable. Accordingly, we VACATE Malone’s sentence and REMAND the case for resentencing.
07a0408p.06	2007/10/04	USA v. Malone     Eastern District of Michigan at Detroit McKEAGUE, Circuit Judge. In this Government appeal, it is argued that Appellee Oscar Malone’s 24-month sentence, which represents a 27-month downward variance1 from the Guidelines range of 51 to 63 months, is unreasonable. The Government argues, inter alia, that by considering the sentence the defendant would have received had he been convicted in state court, the district court relied on an impermissible factor. For the reasons stated below, we agree and hold that a district court’s consideration of a defendant’s possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable. Accordingly, we VACATE Malone’s sentence and REMAND the case for resentencing.
07a0409p.06	2007/10/05	USA v. White     Eastern District of Kentucky at Covington PER CURIAM. In this sentencing appeal, after two members of the panel agreed to an opinion reversing the defendant’s 14-year-upward adjustment based specifically on conduct for which the jury had acquitted the defendant, another panel of our court rendered an opinion in United States v. Mendez, ____ F.3d ____, 2007 WL 2316498 (6th Cir., Aug. 15, 2007) to the contrary. The panel in Mendez filed its opinion for publication before the majority released its opinion in the instant case. The Mendez opinion reaches the opposite conclusion concerning the use of acquitted conduct to enhance a criminal sentence. It continues to allow the use of acquitted conduct to increase a sentence. If the majority in the instant case had filed its opinion, a conflict of opinions would exist in the Sixth Circuit. Therefore, the panel has agreed to affirm the sentence in the instant case, including the enhancement based on acquitted conduct; but the panel strongly recommends that counsel for the defendant file a petition for en banc rehearing on the question of whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005), particularly in light of the language in Justice Stevens’ opinions at pages 240 and 278 and Justice Breyer’s opinion in Booker at page 251. Upon the filing of the en banc petition, the three members of the panel will strongly recommend that the full court grant the en banc petition to review this important question. The panel does not believe that the other issues raised by defendant justify reversal of the judgment below. Accordingly, for these reasons and based on the Mendez opinion, the panel affirms the judgment of the District Court.