6th Cir. Published Decisions for Week of Oct. 1, 2007 (4 Ky published decisions)

Opinion	Pub Date	Short Title/District
07a0399p.06	2007/10/01	USA v. Story     Eastern District of Tennessee at Greeneville BOYCE F. MARTIN, JR., Circuit Judge. This case is on appeal from the district court’s resentencing of Joseph Story in light of United States v. Booker, 543 U.S. 220 (2005).
07a0400p.06	2007/10/01	Smith v. Nationwide Property     Eastern District of Tennessee at Greeneville HOOD, Chief District Judge. Defendant-Appellant Nationwide Property and Casualty Insurance Company (“Defendant”) appeals the decision of the district court, granting Plaintiff- Appellee Royce T. Smith’s (“Plaintiff” or “Smith”) Motion to Remand the matter to state court. Defendant argues that, under the Class Action Fairness Act (“CAFA”), it had established the requisite amount in controversy and that remand was not warranted. In response, Plaintiff argues that the district court appropriately determined that Defendant had failed to establish the requisite amount in controversy or, in the alternative, that the district court improperly determined that CAFA even applied to the action and that, in either event, remand was or should have been appropriately granted upon his motion. We are of the opinion that the provisions of CAFA are applicable to the matter at hand and that Defendant has failed to demonstrate, by a preponderance of the evidence, that the district court had original jurisdiction over this putative class action by virtue of an adequate amount in controversy. As explained more fully below, we hereby AFFIRM the decision of the district court.
07a0401p.06	2007/10/01	Midwest Media v. Symmes Township     Southern District of Ohio at Cincinnati SUTTON, Circuit Judge. The district court granted summary judgment to Symmes Township on plaintiffs’ claims that the township’s sign regulations violated the First (and Fourteenth) Amendment because plaintiffs lack standing to challenge them. We affirm.
07a0402p.06	2007/10/01	Wysong v. Dow Chem Co     Southern District of Ohio at Columbus KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Kimberly Wysong (“Wysong”) sued Defendant-Appellee The Dow Chemical Company (“Dow”) after Dow terminated her employment. Wysong alleged that Dow violated her rights under both the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), and Ohio’s anti-discrimination statute, OHIO REV. CODE § 4112.02, and also that Dow committed the state tort of wrongful discharge. The district court granted Dow’s motion for summary judgment on all of Wysong’s claims. Because the district court erred in its reasoning when it granted summary judgment to Dow on Wysong’s FMLA claim, state anti-discrimination claim, and wrongful-discharge claim, we REVERSE the district court’s judgment on these claims and REMAND to the district court for further proceedings in accordance with this opinion.
07a0403p.06	2007/10/02	USA v. Kirchhof     Western District of Kentucky at Louisville JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Peter Kirchhof appeals the district court’s sentence of 180 months following his guilty plea to one count of transporting child pornography over the internet in violation of 18 U.S.C. § 2252(a)(1) and one count of receiving child pornography over the internet in violation of 18 U.S.C. § 2252(a)(2). Kirchhof challenges his sentence on the ground that his sentence is substantively unreasonable. For the following reasons, we affirm the sentence of the district court.
07a0404p.06	2007/10/02	United Steelworkers v. Saint-Gobain Ceramic     Western District of Kentucky at Louisville SUTTON, Circuit Judge. Does a dispute over the meaning of a time-limitation bar in a collective bargaining agreement present a threshold question for an arbitrator to resolve or for a judge to resolve? Under John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), and Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), “a time limit rule is a matter presumptively for the arbitrator, not for the judge,” Howsam, 537 U.S. at 85. Because neither the terms of this timelimitation provision nor the terms of the collective bargaining agreement rebut that presumption, we hold that the parties’ dispute over the meaning of the provision should be resolved by an arbitrator.
07a0405p.06	2007/10/03	Prater v. Ohio Education Assoc     Southern District of Ohio at Columbus SUTTON, Circuit Judge. James Prater and several other retired employees of the Ohio Education Association (“OEA”) claim that OEA improperly terminated their health benefits, which (they say) had become vested and irreducible through a series of collective bargaining agreements. Relying in part on our decision in Maurer v. Joy Technologies, Inc., 212 F.3d 907 (6th Cir. 2000), the district court rejected the claims as a matter of law. Because we conclude that Maurer does not apply here, because after-the-fact unilateral summary plan descriptions cannot supercede the amendment provisions in a collective bargaining agreement and because the contracts are otherwise ambiguous about whether they promise lifetime, irreducible health benefits to employees upon their retirement, we reverse.
07a0406p.06	2007/10/04	Spengler v. ADT Security     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Dwight Spengler appeals from the district court’s dismissal of his tort claim on summary judgment. Spengler alleges that ADT is responsible for his mother’s death by failing to dispatch an ambulance to her address after she pressed an ADT-issued emergency call button. Because the district court correctly held that this case sounds in contract and not in tort, we AFFIRM the holding of the district court.
07a0407p.06	2007/10/04	Murphy v. Cockrell     Eastern District of Kentucky at Lexington McKEAGUE, Circuit Judge. In this Government appeal, it is argued that Appellee Oscar Malone’s 24-month sentence, which represents a 27-month downward variance1 from the Guidelines range of 51 to 63 months, is unreasonable. The Government argues, inter alia, that by considering the sentence the defendant would have received had he been convicted in state court, the district court relied on an impermissible factor. For the reasons stated below, we agree and hold that a district court’s consideration of a defendant’s possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable. Accordingly, we VACATE Malone’s sentence and REMAND the case for resentencing.
07a0408p.06	2007/10/04	USA v. Malone     Eastern District of Michigan at Detroit McKEAGUE, Circuit Judge. In this Government appeal, it is argued that Appellee Oscar Malone’s 24-month sentence, which represents a 27-month downward variance1 from the Guidelines range of 51 to 63 months, is unreasonable. The Government argues, inter alia, that by considering the sentence the defendant would have received had he been convicted in state court, the district court relied on an impermissible factor. For the reasons stated below, we agree and hold that a district court’s consideration of a defendant’s possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable. Accordingly, we VACATE Malone’s sentence and REMAND the case for resentencing.
07a0409p.06	2007/10/05	USA v. White     Eastern District of Kentucky at Covington PER CURIAM. In this sentencing appeal, after two members of the panel agreed to an opinion reversing the defendant’s 14-year-upward adjustment based specifically on conduct for which the jury had acquitted the defendant, another panel of our court rendered an opinion in United States v. Mendez, ____ F.3d ____, 2007 WL 2316498 (6th Cir., Aug. 15, 2007) to the contrary. The panel in Mendez filed its opinion for publication before the majority released its opinion in the instant case. The Mendez opinion reaches the opposite conclusion concerning the use of acquitted conduct to enhance a criminal sentence. It continues to allow the use of acquitted conduct to increase a sentence. If the majority in the instant case had filed its opinion, a conflict of opinions would exist in the Sixth Circuit. Therefore, the panel has agreed to affirm the sentence in the instant case, including the enhancement based on acquitted conduct; but the panel strongly recommends that counsel for the defendant file a petition for en banc rehearing on the question of whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005), particularly in light of the language in Justice Stevens’ opinions at pages 240 and 278 and Justice Breyer’s opinion in Booker at page 251. Upon the filing of the en banc petition, the three members of the panel will strongly recommend that the full court grant the en banc petition to review this important question. The panel does not believe that the other issues raised by defendant justify reversal of the judgment below. Accordingly, for these reasons and based on the Mendez opinion, the panel affirms the judgment of the District Court.