6th Circuit Published Decisions for Week of Apr. 8-12, 2007 (THREE Case)

Opinion	Pub Date	Short Title/District
07a0130p.06	2007/04/09	Smith v. Comm Social Security     Western District of Michigan at Grand Rapids SOCIAL SECURITY: COOK, Circuit Judge. Valerie Smith challenges the denial of disability insurance benefits to her by the Social Security Administration (SSA), contending that its decision neither complied with the treating source regulation nor was supported by substantial evidence. We disagree with these contentions and affirm.
07a0131p.06	2007/04/11	USA v. Franco     Eastern District of Michigan at Detroit CRIMINAL: BOOKER BOYCE F. MARTIN, JR., Circuit Judge. Defendant Ernesto Franco was convicted and sentenced for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal, he challenges the district court’s admission of “other acts” evidence introduced by the government to rebut his entrapment defense, as well as the district court’s restriction of his crossexamination of a government witness. In addition, he claims that he received ineffective assistance of counsel based on two alleged errors by trial counsel. Franco also argues that his conviction and sentence must be reversed because (1) there was insufficient evidence to support a finding that he possessed with intent to distribute nine kilograms of cocaine, and (2) the jury did not determine the type and quantity of drugs he was found to possess with intent to distribute. Finally, he requests that he be resentenced pursuant to the Supreme Court’s decision in United States v. Booker. For the reasons below, we AFFIRM Franco’s conviction, but VACATE his sentence and REMAND for the limited purpose of resentencing in light of Booker.
07a0132p.06	2007/04/12	Wenner v. Sun Life Assurance     Middle District of Tennessee at Nashville ERISA: OBERDORFER, District Judge. Thomas Wenner was the Chief Operating Officer of Orchid Manufacturing Group (“Orchid”) when he suffered a heart attack. He sought disability benefits from Sun Life Assurance Company of Canada (“Sun Life”) under his employer’s disability benefits plan and, for a time, received them. In 2003, Sun Life discontinued the benefits, having determined that Wenner was no longer disabled. Wenner challenged Sun Life’s decision in state and then federal court. He argued, inter alia, that Sun Life failed to notify him of the specific reasons for its decision as required by the Employee Retirement Income Security Act of 1974 (ERISA). The district court rejected Sun Life’s decision for a different reason. It concluded that Sun Life’s determination that Wenner was no longer disabled was arbitrary and capricious and unsupported by the administrative record. Although we do not necessarily agree with that determination, we will affirm the district court’s judgment on the separate ground that Sun Life violated the notice requirements of ERISA.
07a0133p.06	2007/04/12	Macy v. Hopkins Cnty School     Western District of Kentucky at Owensboro RETALIATORY DISCHARGE KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Sharon Macy (“Macy”) appeals the district court’s order granting summary judgment to Defendant-Appellee Hopkins County School Board of Education (“the Board”). Macy alleged that the Board violated federal and state law by firing her because she was disabled and in retaliation for protected activities. The Board asserted that Macy was fired for threatening students and making inappropriate remarks about the students and their families, and that this was the latest in a series of incidents of misconduct. The district court granted the Board’s motion for summary judgment, concluding that Macy had not introduced direct or circumstantial evidence sufficient for a jury to find that she was fired because of her disability or in retaliation for protected activities. Because Macy has not presented evidencefrom which a reasonable jury could conclude that the Board’s proffered reason for firing her was pretextual, and because Macy has forfeited her retaliation claims and state-law claims, we AFFIRM the judgment of the district court.
07a0134p.06	2007/04/12	USA v. Graham     Southern District of Ohio at Dayton SEARCH AND SEIZURE BOYCE F. MARTIN, JR., Circuit Judge. Defendant Anthony Graham was charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The firearm upon which this prosecution was based was found during a Terry search by an officer of the Dayton Police Department. Graham argues that this firearm, as well as statements made after its seizure, should be suppressed because the officer did not possess reasonable suspicion to conduct the search. For the reasons below, we affirm the district court’s denial of Graham’s motion to suppress.
07a0135p.06	2007/4/13	USA v. Cohen     Western District of Kentucky at Louisville SEARCH AND SEIZURE KAREN NELSON MOORE, Circuit Judge. The United States appeals the district court’s order granting Defendant-Appellee Demetrius Cohen’s (“Cohen”) motion to suppress. Cohen is charged with one count of being a felon in possession of ammunition and one count of being a felon in possession of a firearm, based on ammunition and a firearm that were found by police officers in a search of his car. The district court concluded that the officers did not have reasonable suspicion to stop Cohen’s car and suppressed the evidence that was found during the subsequent search, bringing the proceedings below to a halt while the government filed this interlocutory appeal. Because the stop of Cohen’s car was not supported by reasonable suspicion, we AFFIRM the determination of the district court and REMAND the case for further proceedings consistent with this opinion.
07a0136p.06	2007/4/13	Littriello v. USA     Western District of Kentucky at Louisville IRS: check the box regulation and LLC's MARTHA CRAIG DAUGHTREY, Circuit Judge. In this appeal from a grant of summary judgment to the government, we are presented with a case of first impression regarding the validity of the Treasury Department’s so-called “check-the-box” regulations, 26 C.F.R. §§ 301.7701-1 to 301.7701-3, promulgated in 1996 to simplify the classification of business entities for tax purposes. The plaintiff, Frank Littriello, was the sole owner of several Kentucky limited liability companies (LLCs), the operation of which resulted in unpaid federal employment taxes totaling $1,077,000. Because Littriello was the sole member of the LLCs and had not elected to have the businesses treated as “associations” (i.e., corporations) under Treasury Regulations §§ 301.7701-3(a) and (c), the LLCs were “disregarded” as separate taxable entities and, instead, were treated for federal tax purposes as sole proprietorships under Treasury Regulation § 301.7701-3(b)(1)(ii). When Littriello, as sole proprietor, failed to pay the outstanding employment taxes, the IRS filed notices of determination and, eventually, notified him of its intent to levy on his property to enforce previously filed tax liens. Littriello responded by initiating complaints for judicial review in district court, contending that the regulations in question (1) exceed the authority of the Treasury to issue regulatory interpretations of the Internal Revenue Code; (2) conflict with the principles enunciated by the Supreme Court in Morrissey v. Commissioner, 296 U.S. 344 (1935); and (3) disregard the separate existence of an LLC under Kentucky state law. He also argued in his motion for summary judgment that the regulations are not applicable to employment taxes. After the cases were consolidated for disposition, the district court held that the “check-the-box regulations” are “a reasonable response to the changes in the state law industry of business formation,” upheld them under Chevron1 analysis, and held that the plaintiff was individually liable for the employment taxes at issue. We conclude that the district court’s analysis was correct and affirm.