Aug 13-17, 2007 6th Circuit Published Decisions (1 Ky Published Case)

Opinion	Pub Date	Short Title/District
07a0310p.06	2007/08/13	USA v. Lewis     Middle District of Tennessee at Nashville McKEAGUE, Circuit Judge. Defendant appeals the revocation of his supervised release, arguing that the district court incorrectly interpreted the conditions of supervised release and relied on improper considerations in determining his sentence. For the reasons stated below, Defendant’s conviction and sentence are affirmed.
07a0311p.06	2007/08/13	USA v. Pritchett     Northern District of Ohio at Cleveland McKEAGUE, Circuit Judge. Appellant Christopher P. Pritchett entered into a written plea agreement with the government, agreeing to plead guilty to possession of cocaine with intent to distribute and to distribution of cocaine, and the government agreed to dismiss a charge of conspiracy to distribute cocaine. The plea hearing began at 9:03 a.m. At 10:33 a.m., after Appellant signed the plea agreement and the district court accepted Appellant’s guilty plea, the government filed an information pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851(a), providing notice that if an adjudication of guilt is entered against Appellant, the government would rely on Appellant’s previous felony drug conviction in order to invoke section 841’s enhanced sentencing provisions. Appellant objected to an enhanced sentence under section 841 because the government failed to file the required information before he entered his guilty plea. The district court held that Appellant had notice that the government would be filing an information and that notice fulfilled the requirements of section 851(a). Appellant filed a timely appeal, claiming that the district court was without jurisdiction to impose the enhanced penalties under section 841. For the reasons stated below, we AFFIRM.
07a0312p.06	2007/08/13	USA v. Budd     Northern District of Ohio at Youngstown McKEAGUE, Circuit Judge. Michael J. Budd appeals his conviction of one count of conspiracy and three counts of depriving another of constitutional rights under color of law. For the reasons set forth below, we affirm.
07a0313p.06	2007/08/14	USA v. Presto     Eastern District of Tennessee at Greeneville McKEAGUE, Circuit Judge. Defendant appeals the sentence of lifetime supervised release imposed for receipt and possession of child pornography transported in interstate commerce. For the reasons set forth below, we affirm.
07a0314p.06	2007/08/14	Battle Creek Health System v. Leavitt     Western District of Michigan at Lansing GRIFFIN, Circuit Judge. Plaintiffs-appellants Battle Creek Health System (“Battle Creek”) and Trinity Health-Michigan (“Trinity Health”), doing business as Mercy General Health Partners, are acute-care hospitals and participating Medicare providers located in southwestern Michigan. Plaintiffs brought the present action against defendant-appellee Michael Leavitt, Secretary of the United States Department of Health and Human Services (“defendant” or “the Secretary”), pursuant to Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395ggg (the “Medicare Act”) and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the “APA”), challenging the final administrative decision of defendant denying Medicare reimbursement for certain bad debts incurred by plaintiffs during the fiscal year 1999. The district court affirmed the Secretary’s decision, granting summary judgment in favor of defendant and denying plaintiffs’ similar motion. See Battle Creek Health Sys. v. Thompson, 423 F. Supp. 2d 755 (W.D. Mich. 2006). Plaintiffs now appeal. For the reasons set forth below, we affirm.
07a0315p.06	2007/08/15	USA v. Mendez     Eastern District of Tennessee at Chattanooga PER CURIAM. Victor Mendez was convicted of conspiracy to distribute methamphetamine and carrying a firearm during and in relation to a drug trafficking crime. He challenges his sentence, and we affirm.
07a0316p.06	2007/08/15	USA v. Watson     Eastern District of Tennessee at Knoxville R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Kerry Watson appeals a district court order denying his motion to suppress evidence after he conditionally pleaded guilty to possession with intent to distribute crack cocaine and being a felon in possession of a firearm. On appeal, Watson challenges the district court’s denial of his motion to suppress, arguing that police officers conducted an illegal search when they searched a residence not specifically authorized by the search warrant, and, accordingly, all fruits obtained incident to that search should be suppressed. Because we hold that the good-faith exception to the exclusionary rule applies, we AFFIRM.
07a0317p.06	2007/08/15	Bridges v. Amer Elec Po     Southern District of Ohio at Columbus COOK, Circuit Judge. Plaintiff Kermit Bridges appeals a district court order denying his motion for class certification and dismissing his claims without prejudice. We reverse and remand for further proceedings.
07a0318p.06	2007/08/15	Lindsay v. Yates     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Plaintiffs-Appellants Douglas and Tina Lindsay brought suit against Defendants-Appellees JoAnn Yates, the Estate of Gene Yates, and Brent Yates (collectively, the “Yateses”), as well as Sluss Realty Company and realtor Carol Eicher, on the grounds that Defendants terminated a real-estate sales contract with the Lindsays one day after learning that the Lindsays are black. The district court dismissed the Lindsays’ complaint, concluding that they failed to plead facts establishing each element of a prima facie case as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Although the district court did not address it, the Yateses argued below, and now argue before this Court, that the Lindsays’ complaint must be dismissed for the further reason that they failed to plead facts showing that the purchase agreement executed by the parties was valid and enforceable. For the reasons described below, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
07a0319p.06	2007/08/15	Wilson v. Mitchell     Northern District of Ohio at Cleveland R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant Daniel Wilson seeks habeas relief from his conviction and death sentence for the murder of Carol Lutz. After a night of drinking, Wilson put Lutz into the trunk of her car and eventually set the car on fire, killing her. The jury convicted Wilson and found three capital specifications making him eligible for the death penalty: (1) murder committed to escape detection for kidnapping; (2) murder during kidnapping; and (3) murder during aggravated arson. The prosecution proceeded to the penalty phase relying on only the first (evading-kidnapping) specification as an aggravator, and the jury sentenced Wilson to death. Wilson now raises five claims for habeas relief; the strongest is his claim that the trial court’s instruction regarding his intoxication defense improperly shifted to Wilson the burden to disprove the knowledge element of the evading-kidnapping aggravator. We conclude, for reasons other than those relied on by the district court, that any error in this regard was harmless. We further conclude that Wilson’s remaining claims are without merit. Accordingly, we AFFIRM the district court’s denial of habeas relief.
07a0320p.06	2007/08/16	Wilcher v. Akron     Northern District of Ohio at Akron R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Clarence Howard Brown appeals his federal conviction for kidnapping, transportation of a minor with intent to engage in criminal sexual activity, and sex trafficking of children. Brown contends that pre-arrest delay violated his due-process rights and that post-arrest delay before trial violated his speedy-trial rights. Because Brown is not entitled to relief, we AFFIRM.
07a0321p.06	2007/08/16	USA v. Brown     Eastern District of Michigan at Detroit R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Clarence Howard Brown appeals his federal conviction for kidnapping, transportation of a minor with intent to engage in criminal sexual activity, and sex trafficking of children. Brown contends that pre-arrest delay violated his due-process rights and that post-arrest delay before trial violated his speedy-trial rights. Because Brown is not entitled to relief, we AFFIRM.
07a0322p.06	2007/08/16	USA v. Ayoub     Eastern District of Michigan at Detroit R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Michael Ayoub appeals his federal convictions for being a felon in possession of a firearm and for possessing marijuana with intent to distribute it. He contends that (1) the evidence should have been suppressed, because the officers who searched his parents’ home without a warrant did not obtain valid consent for the search; (2) the convictions must be reversed because stipulations to essential elements of the charges were never admitted into evidence; and (3) evidence of his prior drug-related activity was unduly prejudicial and, therefore, improperly admitted as evidence of prior bad acts under Federal Rule of Evidence 404(b). As discussed below, each of these contentions is without merit. We therefore AFFIRM.
07a0323p.06	2007/08/16	Reynolds v. Bagley     Northern District of Ohio at Akron BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Lawrence Reynolds was convicted and sentenced to death by an Ohio jury for the 1994 murder of Loretta Foster. After exhausting his state court appeals, both direct and collateral, he filed a petition for habeas corpus in federal district court. The district court denied Reynolds’s petition, and we now AFFIRM the district court.
07a0324p.06	2007/08/16	Davis v. USA     Northern District of Ohio at Toledo RONALD LEE GILMAN, Circuit Judge. The district court dismissed John J. Davis’s complaint due to the lack of subject matter jurisdiction. Davis had sought a declaratory judgment to determine the amount of financial support that he owes to his wife, from whom he is legally separated, under an Affidavit of Support that the government required him to file on her behalf when she immigrated to the United States from Ukraine. This suit came after a state court in Ohio enforced the Affidavit by obligating Davis to pay his wife monthly support. But Davis contends that his cause of action stems from an enforceable contract between himself and the government that arises under federal law, despite the prior state-court ruling. He thus argues that he has properly established subject matter jurisdiction. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0325p.06	2007/08/16	Nichols v. USA     Middle District of Tennessee at Nashville KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Thomas Albert Nichols (“Nichols”) appeals from the district court’s judgment denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Nichols argues that his counsel was constitutionally ineffective for failing to challenge enhancements to his Guidelines range. Nichols argues that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), his counsel should have raised a Sixth Amendment challenge to the sentencing enhancements, even though Nichols was sentenced in 2002, more than two years before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Because Apprendi cast the constitutionality of the Federal Sentencing Guidelines into considerable doubt, and because the enhancements to Nichols’s Guidelines range directly presented circumstances that were called into question by Apprendi, we conclude that Nichols’s counsel was constitutionally ineffective for failing to preserve a Sixth Amendment challenge to his sentence, and we therefore REVERSE the judgment of the district court, VACATE Nichols’s sentence, and REMAND the case for resentencing.
07a0326p.06	2007/08/16	USA v. Cody     Eastern District of Tennessee at Greeneville RONALD LEE GILMAN, Circuit Judge. A federal jury convicted Talmadge Cody on four counts of a six-count indictment relating to his role in two robberies committed in Greene County, Tennessee in February of 2004. Prior to his trial, Cody had moved to sever two “prejudicially joined” counts of the indictment that charged him with escaping from the custody of the Greene County Sheriff’s Department following his arrest. He had also moved to dismiss two other counts relating to one of the robberies on the ground that the government had lost or destroyed relevant, potentially exculpatory evidence. Finally, he had filed a motion to suppress the in-custody statements that he had made to the investigating officers on the ground that his expressed suicidal ideations at the time rendered those statements involuntary. The district court denied all three of Cody’s pretrial motions. Cody challenges each of these denials on appeal, as well as three additional adverse evidentiary rulings made by the district court during the course of the trial. For the reasons set forth below, we AFFIRM the judgment of the district court.
07a0327p.06	2007/08/16	USA v. Burns     Middle District of Tennessee at Nashville COOK, Circuit Judge. William Lavelle Burns pleaded guilty to being a felon in possession of a firearm. Burns challenges the district court’s application of a sentence enhancement, as well as the reasonableness of his sentence. We affirm.
07a0328p.06	2007/08/16	Bryson v. Regis Corp     Eastern District of Kentucky at Lexington R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Karen Bryson appeals the grant of summary judgment to Defendant-Appellee Regis Corporation1 on Bryson’s claims of (1) retaliation in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2) retaliation in violation of the Kentucky Civil Rights Act (“KCRA”), Ky. Rev. Stat. § 344.010 et seq.; and (3) disability discrimination in violation of the KCRA, Ky. Rev. Stat. § 344.0101 et seq. Bryson also appeals the district court’s denial of her motion for partial summary judgment on her disability-discrimination claim. For the reasons set forth below, we REVERSE the district court’s grant of summary judgment on Bryson’s FMLA-retaliation and disability-retaliation claims and REMAND for further proceedings. We AFFIRM the district court’s grant of summary judgment to Regis on Bryson’s disability-discrimination claim and AFFIRM the district court’s denial of Bryson’s motion for partial summary judgment.

Comments

[Van Elder]

Are there any Sixth Circuit Court cases involving private property owners dispute with local or state government enforcement of codes, regulations or governing body resolutions, whom are found in violation of the (APA) Administrative Procedure Act.

Thank you for any citations, opinions or links that you can provide.