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8th U.S. Circuit Court of Appeals Digest: Nov. 8.

Byline: Minnesota Lawyer

Civil Opinions

Administrative

Disability Insurance and SSI

After being laid off, petitioner filed for disability benefits, alleging problems with her back, knee, thumb, and incontinence. An ALJ denied petitioner's application, finding her statements concerning the limiting effects of her alleged symptoms to be not entirely credible and concluding that they did not limit her ability to perform basic work in her prior job.

Where ALJ found petitioner's testimony concerning her medical and physical limitations to be not entirely credible, ALJ was not required to ask vocational expert about hypothetical limitations or determine petitioner's residual functional capacity according to alleged limitations. Judgment is affirmed.

17-1726 Nash v. Commissioner, Social Security Administration, appealed from the Eastern District of Arkansas, Benton, J. http://media.ca8.uscourts.gov/opndir/18/11/171726P.pdf

Administrative

Lanham Act; Trademark Violation; Laches

Plaintiff filed suit alleging Lanham Act violations through defendants' use of plaintiff's registered marks. After the jury rendered a verdict for plaintiff, the District Court ruled that plaintiff could not recover from the dissolved corporate defendant or from the individual defendants pursuant to laches, finding that plaintiff knew defendants were selling products bearing one of plaintiff's marks.

Where the District Court applied laches to infringement claim that was ultimately rejected by court because alleged products were not infringing, remand was necessary to determine whether record on remaining infringement claims supported enforcement of equitable defense of acquiescence and laches. Judgment is reversed and remanded in part.

17-1762 Sturgis Motorcycle Rally, Inc. v. Rushmore Photo & Gifts, Inc., appealed from the District of South Dakota, Arnold, J. http://media.ca8.uscourts.gov/opndir/18/11/171762P.pdf

Administrative

SSI; Termination of Benefits; Dismissal of Civil Action

Plaintiff appealed from the District Court's grant of the dismissal motion filed by the commissioner of the Social Security Administration. Plaintiff sought to challenge the 1999 termination of her SSI benefits.

Where the District Court committed no error warranting reversal, the court affirmed the dismissal of plaintiff's challenge to the termination of her benefits. Judgment is affirmed

18-1682 Richter v. Commissioner, Social Security Administration, appealed from the District of Nebraska, per curiam. http://media.ca8.uscourts.gov/opndir/18/11/181682U.pdf

Civil Rights

42 U.S.C. 1983; Pat-down Search; Adverse Summary Judgment

Plaintiff appealed the District Court's adverse grant of summary judgment in his 1983 action. Plaintiff alleged defendants violated his constitutional rights during a pat-down search and subsequent investigation.

Where defendants' alleged conduct did not give rise to a constitutional violation, the District Court properly entered summary judgment in favor of defendants. Judgment is affirmed.

18-1254 Chestang v. Trotter, appealed from the Eastern District of Arkansas, per curiam. http://media.ca8.uscourts.gov/opndir/18/11/181254U.pdf

Civil Rights

42 U.S.C. 1983; Summary Judgment; Sufficiency of Evidence

Plaintiff, an inmate, appealed from the District Court's adverse grant of summary judgment in plaintiff's 1983 action. Where plaintiff failed to submit any evidence to substantiate his allegations, the District Court properly entered summary judgment because there was no genuine dispute as to any material fact. Judgment is affirmed.

18-1303 Jefferson v. Leonard, appealed from the Southern District of Iowa, per curiam.

http://media.ca8.uscourts.gov/opndir/18/11/181303U.pdf

Torts

Federal Tort Claims Act; Motion to Recuse; Prima Facie Claim

Plaintiffs appealed from the dismissal of their action brought pursuant to 28 U.S.C. 1346(b) and the Federal Tort Claims Act against three agencies within the U.S. Department of Agriculture. Plaintiffs further appealed from the District Court judge's denial of their motion for recusal.

Where plaintiffs failed to present substantial evidence of judicial bias or partiality, and where their five causes of action merely restated the formulaic elements of each cause of action without sufficient factual matter to state a prima facie claim for relief, District Court properly dismissed plaintiffs' action. Judgment is affirmed.

18-1243 Swecker v. U.S. Dept. of Agriculture, appealed from the Southern District of Iowa, per curiam. http://media.ca8.uscourts.gov/opndir/18/11/181243U.pdf

Criminal Opinions

Felon in Possession of Firearm

Prior Crimes of Violence; Force Requirement

Defendant pled guilty to being a felon in possession of a firearm. At sentencing, the District Court ruled that defendant's prior second-degree domestic assault conviction from Missouri state court was a crime of violence and accordingly increased defendant's recommended Guidelines range.

Where Missouri's second-degree domestic assault statute also criminalized reckless behavior, it failed to qualify as a crime of violence under sentencing guidelines because elements of conviction did not require physical force.

Judgment is reversed and remanded.

17-2868 U.S. v. Harris, appealed from U.S. District Court, Western District of Missouri , per curiam. http://media.ca8.uscourts.gov/opndir/18/11/172868P.pdf

Felon in Possession of Firearm

Substantive Reasonableness of Sentence

Defendant appealed the within-guidelines-range sentence imposed by the District Court following defendant's guilty plea to being a felon in possession of a firearm. Defendant challenged the substantive reasonableness of his sentence. Defendant's counsel also filed an Anders motion to withdraw.

Where the District Court adequately considered all the statutory sentencing factors and imposed a sentence within the guidelines range, defendant's sentence was presumptively substantively reasonable. Judgment is affirmed.

18-1875 U.S. v. Harrison, appealed from the Western District of Missouri , per curiam http://media.ca8.uscourts.gov/opndir/18/10/181875U.pdf

Identity Theft

Substantively Unreasonable Sentence; Mootness

Pursuant to a plea agreement, defendant pled guilty to identity theft and was sentenced to 30 months' imprisonment; the District Court did not impose a term of supervised release. On appeal, defendant asserted procedural error and substantive unreasonableness. Where defendant had been discharged from prison and was not under further supervision, appeal challenging sentence was moot. Appeal dismissed as moot.

16-4568 U.S. v. Gonzalez-Abreu, appealed from the District of South Dakota, per curiam. http://media.ca8.uscourts.gov/opndir/18/11/164568U.pdf

Motion to Reduce Sentence

Sentencing Guidelines

Imposition of Statutory Minimum Sentence

Defendant received the applicable statutory minimum sentence for his conviction. Defendant moved to reduce his sentence based on an amendment to the Sentencing Guidelines. The District Court denied defendant's motion.

Where defendant already received the applicable statutory minimum sentence, he was ineligible for a sentence reduction. Judgment is affirmed.

17-3729 U.S. v. Barth, appealed from the District of North Dakota, per curiam.

http://media.ca8.uscourts.gov/opndir/18/11/173792U.pdf

Threatening a Federal Judge

Statutory Maximum Sentence; Substantive Reasonableness of Sentence

Defendant sent a letter to a federal judge stating he had directed gang members to shoot her in retaliation for her dismissal of defendant's civil suit. Defendant pled guilty to threatening a federal judge and was sentenced to the statutory maximum.

Where defendant had previously threatened federal judges, District Court properly imposed upward variance on defendant's sentence due to factual similarities with prior convictions rather than defendant's career offender status. Judgment is affirmed.

17-2422 U.S. v. Collins, appealed from the Eastern District of Arkansas. per curiam http://media.ca8.uscourts.gov/opndir/18/11/172422U.pdf

Unlawful Use of Identification Documents

Ineffective Assistance; Immigration Consequences

Defendant, a citizen of Guatemala, pled guilty to unlawful use of identification documents after he used false Social Security and permanent resident cards to complete an I-9 form. On appeal, defendant argued that his counsel was ineffective for failing to advise him of the immigration consequences of his plea.

Where complexities of immigration law did not make removal a certainty, defense counsel was not ineffective in failing to advise defendant that his plea carried mandatory consequence of deportation and ineligibility to enter the U.S. and instead simply advising that removal may have been a consequence of defendant's plea. Judgment is affirmed.

17-3059 U.S. v. Ramirez-Jimenez, appealed from the Northern District of Iowa, per curiam.

http://media.ca8.uscourts.gov/opndir/18/11/173059P.pdf

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Publication:Minnesota Lawyer
Date:Nov 8, 2018
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