6th. Cir. Published Decisions for Week of Dec. 17, 2007 (2 Ky decisions)

Opinion	Pub Date	Short Title/District
07a0486p.06	2007/12/17	USA v. Rutherford     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. In this case, Wayne County appeals the district court’s denial of its petition for the release of materials used in a grand jury indictment. We conclude that FED. R. CRIM. P. 6(e)(3)(E)(i), pertaining to the disclosure of grand jury documents, cannot be used to mandate such release. As a result, we AFFIRM the district court’s decision, although on different grounds than those stated by the district court.
07a0487p.06	2007/12/17	USA v. Carter     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Defendant Vernon T. Carter appeals his sentence of 15 months’ imprisonment for filing false income tax returns. At the sentencing hearing, the district court denied Carter’s motion for a downward departure/variance and enhanced Carter’s sentence by two levels for obstruction of justice. Carter raises three arguments on appeal: (1) the district court erred when it denied his motion for a downward departure and/or variance based upon “exceptional family circumstances”; (2) the district court failed to consider adequately a sentence of probation and home detention based on the sentence given to Carter’s niece for similar conduct; and (3) the district court erred when it enhanced his sentence by two levels for obstruction of justice. Because the district court did not err in applying the obstruction enhancement, and because it imposed a reasonable sentence, we affirm.
07a0488p.06	2007/12/17	USA v. Smith     Middle District of Tennessee at Nashville ROGERS, Circuit Judge. Carlton Victor Smith was convicted of bank robbery and sentenced to 405 months in prison following his participation in a scheme that was perpetrated by taking the family of a bank manager hostage and threatening to blow up the bank manager’s husband with a bomb unless the bank manager retrieved money from a bank vault. This court upheld Smith’s conviction and sentence in 2004, but the Supreme Court vacated his sentence in light of United States v. Booker, 543 U.S. 220 (2005). On remand, the district court sentenced him to 396 months in prison. Smith claims that his sentence is procedurally unreasonable because the district court failed to address an argument that Smith made with respect to reducing his Sentencing Guidelines range, and because the district court assertedly disregarded the Sentencing Guidelines and instead relied on the statutory maximum sentences for his crimes. He also argues that his sentence is substantively unreasonable because it is longer than the sentence received by an individual who played an identical role in a related bank robbery in the Eastern District of Tennessee. Because these arguments are without merit, we affirm.
07a0489p.06	2007/12/17	Certified v. Tenke Corp     Eastern District of Michigan at Detroit CLAY, Circuit Judge. Plaintiff-Appellant Certified Restoration Dry Cleaning Network, L.L.C. (“Plaintiff”) appeals the district court’s denial of its motion for preliminary injunction. Plaintiff’s underlying action seeks both monetary damages and injunctive relief for Defendant Tenke Corporation’s and Defendant Stephen Dubasik’s (collectively “Defendants”) breach of a noncompetition clause contained in the parties’ franchise agreement. For the reasons that follow, we REVERSE the district court’s order and REMAND the case to the district court with instructions to issue Plaintiff’s requested preliminary injunction.
07a0490p.06	2007/12/18	Gonter v. Hunt Valve Company     Northern District of Ohio at Youngstown MERRITT, Circuit Judge. This appeal, arising from a dispute between a law firm that represented qui tam plaintiffs and the defendant shipbuilders, raises the issue of whether the district court exceeded its discretion in awarding attorneys’ fees of $1,749,245 under the False Claims Act. The Plaintiff, a Cincinnati law firm, contends that the amount was unjustifiably low, while the Defendants urge this Court in a cross-appeal to find the lower court’s award excessive. Two additional issues are before us: first, the Defendants challenge the Plaintiff’s standing to bring this suit; and second, the Plaintiff argues that portions of the Defendants’ reply brief for the cross-appeal contravene Fed. R. App. P. 28.1(c)(4). The Plaintiff has standing to appeal the lower court’s decision, while the Plaintiff’s motion to strike portions of the reply brief is denied for failing to show prejudice. Turning to the substantive issues raised by both parties, we hold that, with the exception of the exclusion of fees related to the fee litigation, the district court’s calculation of attorneys’ fees falls within the broad discretion afforded under the statutory scheme. Consequently, with the exception of its ruling on the fee litigation issue, the district court’s decision is AFFIRMED.
07a0491p.06	2007/12/18	Beattie, et al v. Centurytel, Inc.     Eastern District of Michigan at Bay City R. GUY COLE, JR., Circuit Judge. Plaintiffs-Appellees brought this suit in federal district court, alleging that Defendant-Appellant CenturyTel, Inc. (“CenturyTel”) violated federal and state law by using deceptive billing practices to bill customers for WireWatch, a wire maintenance program. Plaintiffs-Appellees brought suit under the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., the Federal Communications Commission’s Truth-in-Billing Act, 47 C.F.R. § 64.2400 et seq., and the Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901 et seq. Plaintiffs-Appellees moved the district court for class certification and for judgment on the pleadings on Count I of the Complaint, which alleged that CenturyTel engaged in unjust and unreasonable billing practices in violation of 47 U.S.C. § 201(b) and 47 C.F.R. § 64.2401. The district court certified Plaintiffs-Appellees’ claims and granted Plaintiffs-Appellees judgment on the pleadings as to Count I. CenturyTel appeals only the district court’s decision to certify the class. For the reasons discussed below, we AFFIRM the district court’s order to certify the Plaintiffs-Appellees’ class on its federal-law claims under Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”). We further remand the state-law claims to the district court to conduct a Rule 23 analysis.
07a0492p.06	2007/12/19	Shkulaku Purballori v. Mukasey     Immigration & Naturalization Service BOYCE F. MARTIN, JR., Circuit Judge. Figiri Shkulaku-Purballori petitions this Court for review of the decision by the Board of Immigration Appeals denying his request for asylum, or, in the alternative, Convention Against Torture relief or withholding of removal. Because we are without jurisdiction to review the denial of Shkulaku’s asylum application, we DISMISS that part of his petition, and because he cannot meet the high bar for qualification for withholding of removal, we AFFIRM the BIA’s decision denying his claim.
07a0493p.06	2007/12/19	Vincent v. Brewer Company     Southern District of Ohio at Cincinnati AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Antony Richardson (“Richardson”) appeals from his sentence of 120 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with “another felony offense.” For the reasons that follow, we AFFIRM.
07a0494p.06	2007/12/19	Pascual v. Mukasey     Immigration & Naturalization Service SUTTON, Circuit Judge. Hector Francisco-Pascual claims that he is eligible for asylum and contends that the Board of Immigration Appeals (BIA) erred in ruling to the contrary. Because Pascual has not established past persecution on account of his political beliefs and because at any rate he has no reasonable fear of future persecution based on changed country conditions, we affirm.
07a0495p.06	2007/12/20	USA v. Richardson     Middle District of Tennessee at Nashville AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Antony Richardson (“Richardson”) appeals from his sentence of 120 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is whether the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in connection with “another felony offense.” For the reasons that follow, we AFFIRM.
07a0496p.06	2007/12/20	USA v. Stout     Western District of Kentucky at Louisville KENNEDY, Circuit Judge. Defendant Michael Stout is charged with receipt and possession of sexually explicit visual depictions of minors under 18 U.S.C. §§ 2252A(a)(2)(B) & 2252A(b)(1) (receipt) and §§ 2252A(a)(5)(B) & 2252A(b)(2) (possession). Before trial, the government proffered evidence that Stout had pleaded guilty in state court to surreptitiously videotaping a 14- year old female neighbor while she showered. Stout moved in limine to suppress this prior bad acts evidence. The district court granted his motion finding that the unfair prejudicial effect of the evidence significantly outweighed its probative value. The government appealed pursuant to 18 U.S.C. § 3731. For the reasons that follow, we AFFIRM.
07a0497p.06	2007/12/20	Eidson v. TN Dept Child Serv     Eastern District of Tennessee at Greeneville McKEAGUE, Circuit Judge. This case arises from the temporary removal of plaintiffappellant Ronald Eidson’s minor daughters by Tennessee Child Protective Services and the Tennessee Department of Children’s Services after one of his daughters falsely accused him of sexual abuse. Full custody was restored to plaintiff eleven months later, after his daughter recanted her accusation. One year later, plaintiff filed suit, charging that various wrongful acts by child protective services workers had deprived him of liberty without due process. The district court dismissed the action as time-barred, rejecting plaintiff’s arguments that the accrual of his cause of action should be deemed to have been extended due to application of the continuing violation doctrine or, alternatively, abstention principles. The district court’s ruling is well-reasoned. For the reasons that follow, we affirm.
07a0498p.06	2007/12/20	USA v. Bolds     Western District of Tennessee at Memphis CLAY, Circuit Judge. Defendant Roxie Nicole Bolds (“Bolds”) challenges, on reasonableness grounds, the twenty-four-month sentence imposed by the district court following its revocation of Bolds’ four-year term of supervised release. Bolds argues that the district court committed procedural error by failing to adequately explain its upward departure from the four to ten month advisory sentencing range contained in the United States Sentencing Commission’s (“Sentencing Commission”) policy statements regarding supervised release revocation sentences. For the reasons that follow, we AFFIRM the sentence imposed by the district court.
07a0499p.06	2007/12/20	USA v. Lane     Western District of Tennessee at Memphis CLAY, Circuit Judge. Defendant Alandus T. Lane appeals his sentence of 68 months imprisonment, imposed after his conviction for wire fraud, arguing that the district court erroneously failed to calculate his advisory Guidelines sentence to credit nine months which he has already served pursuant to an undischarged sentence. According to Defendant, even though the district court correctly recognized the Guidelines as advisory and departed upward from the Guidelines at sentencing, the district court still committed reversible error under 18 U.S.C. § 3742(f) by calculating an incorrect advisory Guidelines sentence. Because the record reflects that Defendant’s sentence was not imposed “‘as a result of’ a misapplication of the Guidelines,” we AFFIRM the sentence of 68 months. Williams v. United States, 503 U.S. 193, 203 (1992) (quoting § 3742(f)(1)).
07b0014p.06	2007/12/21	In re: Johnson v.     U.S. Bankruptcy Court - Pikeville MARCIA PHILLIPS PARSONS, Bankruptcy Appellate Panel Judge. In this pre-BAPCPA preference action, the trustee appeals the bankruptcy court’s ruling that the lien on the debtor’s motor vehicle was protected from avoidance by the enabling loan exception, which excepts from avoidance certain security interests perfected within 20 days of the debtor’s possession of the collateral. Although the security interest in this case was not actually perfected until it was noted on the vehicle’s certificate of title a month after the debtor obtained possession, the court concluded that the security interest was deemed perfected under Kentucky law when the creditor tendered the appropriate documents and fees to the county clerk, an act which occurred 14 days after possession. Because the majority of the Panel concludes that perfection as defined by the Supreme Court in Fidelity Financial Services, Inc. v. Fink, 522 U.S. 211, 216, 118 S. Ct. 651 (1998), occurred more than 20 days after the debtor obtained possession, the bankruptcy court’s decision is reversed.