6th Cir. Published Decisions for Aug 27-31, 2007 (2 Ky)

Opinion	Pub Date	Short Title/District
07a0340p.06		Drutis   v. Rand McNally & Co.     KYE - Eastern District of KY at Lexington                     ROGERS, Circuit Judge. The question in this case is whether so-called “cash balance” pension plans violate 29 U.S.C. § 1054(b)(1)(H)(i), an anti-age-discrimination provision of the Employee Retirement Income Security Act (“ERISA”). “Cash balance” plans are defined benefit plans that are structured like defined contribution plans. The district court in this case held, among           other things, that the cash balance plan adopted by defendants did not violate the anti-age discrimination statute in question. We agree, and therefore affirm.
07a0341p.06	2007/08/28	LULAC   v. Bredesen      TNM - Middle District of TN at Nashville                     McKEAGUE, Circuit Judge. This is an appeal from a judgment dismissing claims challenging Tennessee’s driver license law as violative of certain aliens’ right to equal protection and right to travel. On due consideration of plaintiffs’ complaint in light of the parties’ appellate arguments, we affirm the district court’s judgment that the complaint fails to state a claim upon which relief can be granted.
07a0342p.06	2007/08/28	Operation Kings v. Connerly   MIE - Eastern District of MI at Detroit                     R. GUY COLE, JR., Circuit Judge. After Michigan’s Board of Canvassers approved for Michigan’s November 2006 general election ballot a citizen-initiated proposal (“Proposal 2”) that would amend Michigan’s constitution to prohibit all sex- and race-based preferences in public education, public employment, and public contracting,Plaintiffs-Appellants/Cross-Appellees Operation King’s Dream, along with other organizations and individuals, brought suit under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, against Ward Connerly, Jennifer Gratz, the Michigan Civil Rights Initiative committee (the “MCRI,” collectively, the “MCRI Defendants”), and against various Michigan officials (the “State Defendants”). The complaint sought only to enjoin the placement of Proposal 2 on the November 2006 general election ballot, alleging that the MCRI Defendants and their agents used racially targeted voter fraud in contravention of the Voting Rights Act to obtain signatures in support of Proposal 2. After bringing suit, the Plaintiffs moved for a preliminary injunction to prevent Proposal 2’s placement on the ballot, and both Defendant groups moved to dismiss for failure to state a claim under the Voting Rights Act. The district court denied the Plaintiffs’ preliminary-injunction motion and granted the motions to dismiss (which, because of an evidentiary hearing, were converted into motions for summary judgment).                     The Plaintiffs now appeal the denial of their preliminary-injunction motion and the dismissal of their Voting Rights Act claim. In addition, the MCRI Defendants cross-appeal the admission into evidence of a state-issued report critical of the MCRI’s methods for obtaining signatures in support of Proposal 2. Notwithstanding the disturbing allegations underlying the Plaintiffs’ complaint, which the district court substantiated, because the opportunity to keep Proposal 2 off the ballot has long since passed, the Plaintiffs’ appeal is dismissed as moot. Consequently, so too is the MCRI Defendants’ cross-appeal.
07a0343p.06	007/08/28	Parker   v. Goodman     KYE - Eastern District of KY at Pikeville                     CLAY, Circuit Judge. The instant appeal arises from adversary proceedings brought in U.S. Bankruptcy Court. Defendant, Robert E. Parker, the debtor below, appeals the district court’s order affirming the bankruptcy court’s order permanently enjoining Defendant from prosecuting a state legal malpractice claim against Plaintiff, Thomas W. Goodman, his former counsel. For the reasons  that follow, we AFFIRM.
07a0344p.06	2007/08/28	Laney  v. Farley     TNM - Middle District of TN at Nashville                     JOHN G. HEYBURN II, Chief District Judge. Plaintiff William Laney brought suit individually and on behalf of his minor daughter, Victoria Laney, after school officials confiscated her cell phone when it began ringing during a class session and then imposed a one-day, in-school suspension upon her. The only remaining claim, brought pursuant 42 U.S.C. § 1983, seeks recovery for failure to provide notice and an opportunity to be heard prior to Victoria’s suspension. The sole remaining defendant, Wilson County Board of Education (“WCBE”), brings this interlocutory appeal of the district court’s finding that a one-day, in-school suspension implicates procedural due process protection of the Due Process Clause. For the reasons stated below, we respectfully disagree           with the district court and reverse.
07a0345p.06	2007/08/28	McCray v. Vasbinder   MIE - Eastern District of MI at Detroit                     SUTTON, Circuit Judge. A Michigan jury convicted Oyd McCray of first-degree murder and possession of a firearm during the commission of a felony, and the state court sentenced him to life in prison without the possibility of parole. Claiming to be innocent of the crimes, McCray filed an untimely application for a writ of habeas corpus, which the district court granted. Because McCray has not satisfied the gateway requirements for excusing a time-barred claim, see Schlup v. Delo, 513 U.S. 298, 327 (1995) (requiring the applicant to “show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt”); Souter v. Jones, 395 F.3d 577, 602 (6th Cir. 2005) (applying the Schlup standard to determine whether a late-filed claim should be equitably tolled under AEDPA), we reverse.
07a0346p.06	2007/08/28	USA  v. Clarke     MIE - Eastern District of MI at Ann Arbor                     KARL S. FORESTER, District Judge. Marcus Franklin (“Franklin”) and Jamaal Clarke (“Clarke”) were convicted of various bank robbery charges in 2003. We affirmed their convictions in United States v. Franklin, 415 F.3d 537 (6th Cir. 2005), but remanded for re-sentencing under United States v. Booker, 543 U.S. 220 (2005). Following re-sentencing, Franklin again appealed, arguing that his re-sentencing violated his Sixth Amendment right to fact finding by a jury. We disagree based on Sixth Circuit precedents. The United States has appealed the re-sentencings of both Franklin and Clarke, arguing that the new sentences are unreasonable on two grounds. First, the United States claims that the district court improperly considered the impact of a mandatory, consecutive sentence when determining the reasonableness of the sentences under Booker. Second, it claims that the district court imposed substantively unreasonable sentences based upon its misinterpretation of this Court’s prior opinion in the case. We agree with the United States, VACATE the sentences, and REMAND for re-sentencing.
07a0346p.06	2007/08/28	USA  v. Franklin    MIE - Eastern District of MI at Ann Arbor                     KARL S. FORESTER, District Judge. Marcus Franklin (“Franklin”) and Jamaal Clarke (“Clarke”) were convicted of various bank robbery charges in 2003. We affirmed their convictions in United States v. Franklin, 415 F.3d 537 (6th Cir. 2005), but remanded for re-sentencing under United States v. Booker, 543 U.S. 220 (2005). Following re-sentencing, Franklin again appealed, arguing that his re-sentencing violated his Sixth Amendment right to fact finding by a jury. We disagree based on Sixth Circuit precedents. The United States has appealed the re-sentencings of both Franklin and Clarke, arguing that the new sentences are unreasonable on two grounds. First, the United States claims that the district court improperly considered the impact of a mandatory, consecutive sentence when determining the reasonableness of the sentences under Booker. Second, it claims that the district court imposed substantively unreasonable sentences based upon its misinterpretation of this Court’s prior opinion in the case. We agree with the United States, VACATE the sentences, and REMAND for re-sentencing.
07a0347p.06	2007/08/29	Powers  v. Hamilton Cnty      OHS - Southern District of OH at Cincinnati                     R. GUY COLE, JR., Circuit Judge. Defendants-Appellants Hamilton County Public Defender Office (the “Public Defender Office”) and Hamilton County Public Defender Commission (the “Public Defender Commission”) (collectively, the “Public Defender”) appeal the judgment of the district court granting class certification and summary judgment to Plaintiff-Appellee Michael Powers. The Hamilton County municipal court ordered Powers to pay a fine in connection with a reckless-driving charge. Powers was subsequently incarcerated for non-payment of that fine. He then filed this § 1983 class action, alleging that his constitutional rights were violated by the Public Defender’s policy or custom of failing to seek indigency hearings on behalf of criminal defendants facing jail time for unpaid fines.                     For the reasons set forth below, we AFFIRM the district court’s ruling that Powers’s § 1983  claims are cognizable, and AFFIRM the grant of class certification. We REVERSE the district  court’s grant of summary judgment to Powers and REMAND for further proceedings.
07a0348p.06	2007/08/29	Amer Telecom Co v. Republic of Lebanon     MIE - Eastern District of MI at Detroit                     ALICE M. BATCHELDER, Circuit Judge. American Telecom Company, LLC and American Telecom Group-USA, LLC (collectively “American Telecom”) appeal from the order of the district court dismissing, under Fed. R. Civ. Pro. 12(b)(1) for want of federal subject-matter jurisdiction, their complaint against the Republic of Lebanon (“Lebanon”). The question presented is whether the district court erred by finding that Lebanon’s conduct did not cause a direct effect in the United States and therefore that the 28 U.S.C. § 1605(a)(2) commercial activity exception to FSIA immunity did not apply. Finding no error, we affirm.
07a0349p.06	2007/08/29	USA   v. Simmons     TNW - Western District of TN at Memphis                     KENNEDY, Circuit Judge. Kossie Lamon Simmons (“defendant”) appeals his sentence imposed after he pleaded guilty to health care fraud in violation of 18 U.S.C. § 1347. After granting an eight-level departure requested by the government, calculating a guideline range of twenty-seven to thirty-three months, and considering the 18 U.S.C. § 3553(a) factors, the district court imposed a sentence of twenty-three months in prison as well as restitution. Mr. Simmons claims that his sentence was unreasonable because the district court did not consider the disparity between his sentence and that of his co-defendant’s, Mr. Anthony Ross’s, as he asserts the district court is required to based on 18 U.S.C. § 3553(a)(6). Because we conclude that § 3553(a)(6) refers to national uniformity as opposed to uniformity of co-defendants’ sentences, we affirm the district court.
07a0350p.06	2007/08/29	USA  v. Baker     KYE - Eastern District of KY at Lexington                     COOK, Circuit Judge. Ronald Gipson Baker pleaded guilty to possessing a shotgun after having been convicted of a misdemeanor crime of domestic violence. The district court sentenced him to ten months in prison. Baker now challenges the disallowance of one reduction, arguing that the shotgun is a family heirloom possessed “solely for lawful sporting purposes or collection” pursuant to           U.S.S.G. § 2K2.1(b)(2). Although a firearm held for sentimental reasons may qualify under this section under some circumstances, we conclude that Baker was not entitled to the reduction. Accordingly, we affirm.
07a0351p.06		Hamiltons   Bogarts v. MI   MIE - Eastern District of MI at Detroit                     BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Hamilton’s Bogarts, Inc. — operator of an adult entertainment establishment with a Michigan liquor license — and Kathleen Polzin — an exotic dancer — brought this lawsuit to challenge a Michigan statute and regulations that prohibit entities with liquor licenses from allowing exotic dancers to perform fully nude, or mimick sexual acts, on stage. The district court denied plaintiffs’ requests for injunctive relief. For the foregoing reasons, we REVERSE the district court’s decision.
07a0352p.06	2007/08/30	USA v. Gonzalez   OHN - Northern District of OH at Cleveland                     RONALD LEE GILMAN, Circuit Judge. Jomill Gonzalez was convicted by a federal jury of possessing cocaine with the intent to distribute the drug in connection with a planned sale that took place on August 10, 2005. Gonzalez had driven to the sale in a car owned by one of his codefendants that contained approximately one kilogram of cocaine hidden in a secret compartment .  His defense at trial, however, was that he was unaware of either the cocaine or the intended sale.  In response, the government presented witnesses who testified regarding Gonzalez’s involvement in the specific transaction charged as well as in a broader uncharged drug conspiracy that had previously involved only two-ounce (59.7 gram) sales of cocaine. The district court sentenced Gonzalez based on the two-ounce quantity because the court determined that that amount was all that he should have reasonably foreseen would be involved in the August 10 transaction.                     On appeal, Gonzalez challenges the district court’s evidentiary rulings, the sufficiency of the evidence against him, the reasonableness of his sentence, and the effectiveness of his trial counsel. The government cross-appeals, challenging the district court’s drug-quantity determination and sentence. For the reasons set forth below, we AFFIRM Gonzalez’s conviction, but REVERSE his sentence and REMAND the case for resentencing consistent with this opinion.
07a0353p.06	2007/08/31	USA  v. Herndon     TNM - Middle District of TN at Nashville                     JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Scott Herndon was  convicted in Tennessee state court of multiple counts of sexual exploitation of a minor and, after serving a brief term of imprisonment, placed on probation subject to certain terms and conditions, including a series of Sex Offender Directives issued by the Tennessee Board of Probation and Parole. During the course of an inspection of Herndon’s home computer to check Herndon’s compliance with the Directives’ prohibition on home Internet access, Herndon’s probation officer discovered child pornography on an external hard drive located in Herndon’s bedroom. The probation officer contacted local police officers who seized the materials. The United States charged Herndon with receipt and possession of child pornography. After the district court denied Herndon’s motion to suppress the evidence against him, Herndon pled guilty to one of the counts against him, and the district court sentenced him to 72 months imprisonment. On appeal, Herndon  hallenges the district court’s denial of his motion to suppress the evidence against him.                     For the reasons that follow, we affirm.
07a0354p.06	2007/08/31	Clay   v. United Parcel Ser    OHN - Northern District of OH at Akron                     KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants Marie Moss (“Moss”), Olin Clay (“Clay”), and Marcus Miller (“Miller”)1 (collectively “the plaintiffs”) appeal the district court orders granting summary judgment to Defendant-Appellant United Parcel Service, Inc. (“UPS”) on a variety of Title VII-based claims, and denying the plaintiffs’ motion to reconsider. Moss appeals the grant of summary judgment on her disparate-treatment claim and hostile-workenvironment claim. Clay appeals the grant of summary judgment on his disparate-treatment claim and retaliation claim. Miller appeals the grant of summary judgment on his disparate-treatment claim and retaliation claim. Because the district court correctly applied the summary-judgment standard with respect to Moss’s hostile-work-environment claim, Moss’s disparate-treatment claim insofar as it pertains to the Akron position, and Miller’s retaliation claim, we AFFIRM the district court’s grant of summary judgment on these claims. Because there are genuine issues of material fact with respect to Moss’s disparate-treatment claim insofar as it pertains to the Middleburg Heights position, Clay’s disparate-treatment claim, Clay’s retaliation claim, and Miller’s disparate-treatment claim, we REVERSE the district court’s grant of summary judgment on these claims and we REMAND the case for further proceedings consistent with this opinion.
07a0355p.06	2007/08/31	USA  v. Lancaster      TNW - Western District of TN at Jackson                     GRIFFIN, Circuit Judge. Defendant Collis Paul Lancaster, Jr. appeals his sentence of 188 months of incarceration. On appeal, Lancaster argues that the district court erred in determining that his prior Kentucky state conviction for second-degree escape under KY. REV. STAT. § 520.030 (2006) is a “violent felony” as defined in 18 U.S.C. § 924(e)(2)(B) and therefore improperly sentenced him as an armed career criminal. Defendant argues further that the district court erred in classifying him as an armed career criminal because his prior criminal convictions were not admitted nor submitted to the jury and proven beyond a reasonable doubt. Finally, he asserts that his sentence is unreasonable.
07a0356p.06	2007/08/31	USA   v. Kaminski, USA v. Coleman,  USA v. Ovimmune Inc.       OHS - Southern District of OH at Columbus                     KAREN NELSON MOORE, Circuit Judge. Defendants-Appellants Mitchell V. Kaminski (“Kaminski”); Marilyn A. Coleman (“Coleman”); and Ovimmune, Inc. (“Ovimmune”) (collectively, “Appellants”) were each convicted under the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 321 et seq., on fifteen misdemeanor counts of introduction into interstate commerce of unapproved new drugs without intent to defraud or mislead; introduction into interstate commerce of misbranded drugs without intent to defraud or mislead; failure to register a drug manufacturing facility without intent to defraud or mislead; misbranding drugs while held for sale after shipment in interstate commerce without intent to defraud or mislead; and adulterating drugs while held for sale after shipment in interstate commerce. Kaminski and Ovimmune appeal their convictions, and Coleman and Kaminski appeal the district court’s calculation of their sentences. For the reasons set forth below, we VACATE Kaminski’s sentence and REMAND his case for resentencing, and in all other respects AFFIRM the judgment of the district court.