Sixth Circuit Cases

6th Cir. Published Decisions for Week of Jan. 21, 2008

Published Decisions

Opinion	Short Title/District
08a0037p.06	USA v. Grenier     Northern District of Ohio at Akron CRIMINAL CASE
08a0038p.06	Brooks v. Bagley     Northern District of Ohio at Cleveland CRIMINAL CASE
08a0039p.06	Joliff v. NLRB     National Labor Relations Board BOGGS, Chief Judge. John Jolliff and Steven Daniels petition for review of the Order of the National Labor Relations Board (“Board”) denying their claims arising under § 8(a)(1) of the National Labor Relations Act (“Act”), codified at 29 U.S.C. § 158(a)(1). Administrative Law Judge (“ALJ”) William G. Kocol originally found in the employees’ favor, holding that the employees had been terminated for engaging in an activity–writing a letter complaining about working conditions–that was protected under the Act. On review, the Board held that the employees’ activities were stripped of the Act’s protection because the letter contained a false statement made with actual malice. Jolliff and Daniels now petition for review. We grant their petition on the basis that the Board’s decision was not supported by substantial evidence and remand the case to the Board.
08a0040p.06	USA v. Conway     Southern District of Ohio at Columbus CRIMINAL LAW
08a0041p.06	Bennett v. Kemper Natl Serv Inc     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Adrienne Bennett (“Bennett”) filed an action under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132, against Kemper National Services, Inc. (“Kemper”), Lumbermens Mutual Casualty Company (“Lumbermens”), Broadspire Services, Inc. (“Broadspire”), and Platinum Equity, L.L.C. (“Platinum”) (collectively “defendants”) arguing that the decision to deny her long-termdisability (“LTD”) benefits was arbitrary or capricious. The district court granted a judgment in favor of the defendants, and Bennett appealed. Because we conclude that the decision to deny benefits was not the result of a deliberate and principled reasoning process supported by substantial evidence, we VACATE the judgment of the district court and REMAND with instructions to remand to Broadspire for a full and fair review consistent with this opinion.
08a0042p.06	USA v. Vicol     Western District of Michigan at Grand Rapids CRIMINAL
08a0043p.06	USA v. Coker     Middle District of Tennessee at Nashville CRIMINAL
08a0044p.06	Ross v. Petro     Northern District of Ohio at Akron CRIMINAL
08a0045p.06	Fautenberry v. Mitchell     Southern District of Ohio at Cincinnati CRIMINAL
08a0046p.06	USA v. Madden     Northern District of Ohio at Cleveland CRIMINAL
08a0046p.06	USA v. Brown     Northern District of Ohio at Cleveland CRIMINAL

Non-published decisions this week

Opinion	Short Title/District
08a0067n.06	Wysong v. City of Heath     Southern District of Ohio at Columbus
08a0068n.06	USA v. Cannady     Eastern District of Kentucky at Ashland
08a0069n.06	Dorrough v. Tarpy     Eastern District of Tennessee at Knoxville
08a0070n.06	USA v. Danou     Eastern District of Michigan at Detroit
08a0071n.06	USA v. Harris     Western District of Tennessee at Jackson
08a0072n.06	USA v. Ely     Western District of Michigan at Grand Rapids
08a0073n.06	USA v. Wells     Eastern District of Michigan at Detroit
08a0073n.06	USA v. Wells     Eastern District of Michigan at Detroit
08a0074n.06	Garcia v. Dykstra     Western District of Michigan at Grand Rapids
08a0075n.06	Overstreet v. Mack Indust     Northern District of Ohio at Cleveland
08a0076n.06	Seck v. Mukasey     Immigration & Naturalization Service
08a0077n.06	JACO Airfield Constr v. Natl Trust Ins Co     Western District of Tennessee at Memphis
08a0078n.06	USA v. Jones     Middle District of Tennessee at Nashville
08a0079n.06	Bohanan v. Bridgestone/Fireston     Middle District of Tennessee at Nashville

2008 Court Session Calendar

The United States Court of Appeals for the Sixth Circuit has posted the 2008 Court Session Calendar for the arguments to be held in Cincinnati, Ohio.  More Information

ARGUMENTS: Jan. 28 - Feb. 8, 2008 Calendar

The United States Court of Appeals for the Sixth Circuit has posted the calendar for January 28, 2008 - February 8, 2008. More Information

6th Cir. Decisions for Week of Jan. 14, 2008

Opinion	Short Title/District
08a0021p.06	Ziegler v. Aukerman, et al     Eastern District of Michigan at Detroit DAMON J. KEITH, Circuit Judge. Plaintiff Susan Ziegler appeals the district court decision granting summary judgment to Defendant Daniel Jonoshies, a police officer in the Springport Township Police Department, in this civil rights action filed under 42 U.S.C. § 1983. We hold that the district court applied an inc orrect legal standard in determining Defendant’s summary judgment motion. However, because we also believe that applying the proper legal standard to the district court’s findings of fact will not alter the outcome of that court’s decision, we AFFIRM the district court’s grant of summary judgment for Defendant.
08a0022p.06	Harris v. Bornhorst     Northern District of Ohio at Akron KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Anthony Harris (“Harris”) filed suit against Defendants-Appellees Amanda Spies Bornhorst (“Spies”)1 and Tuscarawas County, Ohio (“Tuscarawas”) (collectively, the “defendants”),2 asserting claims under the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983, and for malicious prosecution, defamation, and tortious interference with a prospective contract, pursuant to Ohio state law. The district court granted summary judgment in favor of the defendants on all of Harris’s claims, and Harris now appeals. For the reasons set forth below, we VACATE the district court’s grant of summary judgment in favor of the defendants on Harris’s § 1983 and Brady claims, REVERSE the grant of summary judgment as to Harris’s First Amendment retaliation, defamation, and tortious interference claims, AFFIRM the grant of summary judgment as to all of Harris’s other claims, and REMAND this case to the district court for further proceedings.
08a0023p.06	Wilkins v. Timmerman-Cooper     Southern District of Ohio at Columbus JULIA SMITH GIBBONS, Circuit Judge. This appeal arises out of the district court’s dismissal of petitioner-appellant Randolph Wilkins’s (“Wilkins”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district judge held that the use of videoconferencing at Wilkins’s parole revocation hearing did not violate his rights to due process and to confront his accuser and therefore did not violate the Fifth and Sixth Amendments. AFFIRMED.
08a0024p.06	USA v. Peters     Western District of Tennessee at Memphis MERRITT, Circuit Judge. On January 31, 2002, a Federal Grand Jury in the Western District of Tennessee returned a 22-count indictment against Freddie Peters. The indictment charged Peters with making, and causing to be made and presented, false claims to the Internal Revenue Service in violation of 18 U.S.C. § 287, and unlawfully disclosing, using, and compelling the disclosure of Social Security account numbers of other persons in violation of 18 U.S.C. § 2 and 42 U.S.C. § 408(a)(8) The judgment of the District Court sentencing the defendant to 57 months is reversed, and the case is remanded for re-sentencing.
08a0025p.06	American Zurich v. Cooper Tire & Rubber     Northern District of Ohio at Toledo MERRITT, Circuit Judge. The issue on appeal in this diversity case is whether the district court erred in dismissing the third-party complaint filed by an original defendant, Cooper Tire & Rubber Company, against its insurance broker, Marsh USA and Marsh Placements Inc. (collectively referred to as “Marsh”), after Cooper Tire voluntarily entered into a settlement with the parties to the original complaint. The district court granted summary judgment for Third-party defendants Marsh, finding lack of an actual case or controversy between Marsh and Cooper Tire. Because we find that the district court did not abuse its discretion in dismissing the third-party complaint in light of the dismissal of the underlying action from which Cooper Tire’s third-party complaint derived, we affirm the judgment of the district court. The third-party complaint was filed under the district court’s “supplemental jurisdiction” and can go forward as an independent, nonindemnity action after settlement of the original action only within the discretion of the court, as we will explain below.
08a0026p.06	USA v. Nichols     Middle District of Tennessee at Nashville BOGGS, Chief Judge. Elbert Nichols entered a conditional guilty plea to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924, reserving his right to appeal the district court’s denial of his Suppression motion. On appeal, he raises three arguments: (1) that the police officer’s decision to run a warrant check on him was based on his race, violating the Equal Protection Clause of the Fourteenth Amendment; (2) that the search of his vehicle incident to his arrest violated the Fourth Amendment; and (3) that the questioning by the police after his arrest violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966). Finding no constitutional violations that would vitiate Nichols’s conviction, we AFFIRM the judgment of the district court.
08a0027p.06	Curry v. Saginaw     Eastern District of Michigan at Detroit NORRIS: The district court granted defendants’ motion for summary judgment as to all parties. It first reasoned that no violation of Joel’s First Amendment right could be attributed to the school district. Turning to Principal Hensinger, the court concluded that she had abridged Joel’s constitutional right to freedom of speech, but enjoyed qualified immunity from liability because the precise contours of that right were not clearly established. On appeal, Plaintiff contends that the district court erred in its application of qualified immunity to Principal Hensinger. We conclude that Principal Hensinger did not violate a constitutional right enjoyed by Joel and we therefore affirm the district court’s grant of summary judgment, albeit on different grounds.
08a0028p.06	USA v. Sedore     Western District of Michigan at Grand Rapids COX, SEAN F., District Judge. This matter is before the Court on Defendant Paul M. Sedore’s second appeal of his criminal sentence. Defendant challenges the application of sentencing enhancements based on (1) his abuse of a position of trust and (2) the number of victims. Defendant also alleges his sentence is substantively unreasonable. We find that Defendant did abuse a position of trust and waived his argument regarding the number of victims. Further, his sentence is not substantively unreasonable. Accordingly, we AFFIRM the decision of the district court.
08a0029p.06	NCR Corporation v. Korala Assoc     Southern District of Ohio at Dayton ALICE M. BATCHELDER, Circuit Judge. Plaintiff NCR Corporation (“NCR”) appeals the order of the district court1 compelling NCR and defendant Korala Associates Ltd. (“KAL”) to arbitrate NCR’s claims against KAL, pursuant to 9 U.S.C. § 2062, part of Chapter 2 of the Federal Arbitration Act, see 9 U.S.C. § 201, et seq., which implements the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38.
08a0030p.06	Scottsdale Ins Co v. Flowers     Western District of Kentucky at Louisville CLAY, Circuit Judge. Defendant Kathleen Burke (“Burke”) appeals the district court’s amended order granting Plaintiff Scottsdale Insurance Company’s (“Scottsdale”) motion for declaratory judgment. Burke argues that the district court abused its discretion in exercising jurisdiction over the case pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 (2000), and erred in its determination that Norman Flowers (“Flowers”), a therapist at the Morton Center, was not covered by the Morton Center’s liability insurance policy with Scottsdale for tort damages arising from Flowers’ sexual affair with Burke. Scottsdale cross appeals the district court’s decision to amend the language of its original order and requests that this Court reinstate the original order. For the reasons that follow, we AFFIRM the district court’s amended order.
08a0031p.06	USA v. Moon     Middle District of Tennessee at Nashville CLAY, Circuit Judge. Defendant, Dr. Young Moon, appeals from her conviction and sentence entered by the United States District Court for the Middle District of Tennessee on April 25, 2006, for three counts of health care fraud in violation of 18 U.S.C. § 1347 and one count of making false statements regarding health care matters in violation of 18 U.S.C. § 1001. Specifically, Defendant appeals 1) the district court’s denial of her motion to dismiss count four of her indictment; 2) the district court’s denial of her motion to suppress evidence; 3) the reasonableness of her sentence; and 4) the district court’s evidentiary rulings with respect to “summary evidence.” For the reasons that follow, we AFFIRM the district court’s judgment.
08b0001p.06	In re:Denny St.Clair v.     U.S. Bankruptcy Court - Covington JAMES D. GREGG, Bankruptcy Appellate Panel Judge. In this appeal, L. Craig Kendrick (“Trustee”) seeks to avoid a mortgage on the Debtors’ real property because the certificate of acknowledgment was defective as the Debtors were not present before the notary when they executed the mortgage. The bankruptcy court determined that the notary’s acknowledgment was immune from attack by the Trustee under Kentucky Revised Statute § 61.060. This state statute limits challenges to an official’s certificate to a direct action against the official or to instances based upon allegations of fraud or mistake. Because there was no fraud or mistake as contemplated by Kentucky Revised Statute § 61.060, we AFFIRM the bankruptcy court’s grant of summary judgment in favor of the mortgage holders.
08a0032p.06	Henry Hildebrand v. BFM,JSG,JSS     Middle District of Tennessee at Nashville BOYCE F. MARTIN, JR., Circuit Judge. This matter is before the court upon the joint petition requesting a direct appeal to this court under 28 U.S.C. § 157(d)(2). The petition seeks appeal of the order confirming the debtor’s Chapter 13 plan and rejecting the trustee’s objections. Only one issue is presented: whether the vehicle ownership expense is an allowable expense when the debtor has no loan or lease payment. The petition for leave to take a direct appeal is DENIED.
08a0033p.06	USA v. Swafford     Eastern District of Tennessee of Chattanooga MERRITT, Circuit Judge. The defendant, Joseph Swafford, challenges his conviction for selling iodine used in the production of methamphetamine, a controlled substance. We agree with the defendant that his conviction on the two conspiracy counts suffers from an impermissible variance because in each charge there were multiple conspiracies with different participants, and therefore the conspiracy convictions must be overturned. Additionally, we find that the district court erred by denying the defendant’s amended motion to strike or elect the substantive counts. The 38 substantive counts must therefore be merged into 19 counts. Accordingly, we reverse the district court opinion in part and remand with instructions to resentence the defendant in accordance with this opinion.
08a0034p.06	USA v. Ridner     Eastern District of Kentucky at London MERRITT, Circuit Judge. The defendant, Scotty Ridner, appeals the district court’s in limine ruling that denied him the opportunity to present a necessity defense at trial to charges of being a felon-in-possession of ammunition. As a result of the adverse ruling, Ridner entered into a conditional guilty plea, reserving his right to appeal the court’s order precluding the necessity defense. We are constrained to hold that the district court’s pre-trial order preventing a criminal defendant from asserting a defense at trial is proper according to this Circuit’s precedent although we note that the issue has never been addressed by the Supreme Court. The district court held that the defendant failed to establish a prima facie case of necessity pursuant to the five-factor test set forth in United States v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990). Because we agree that the defendant has failed to present evidence to satisfy two of the Singleton factors, we affirm the district court’s opinion.
08a0035p.06	Jenkins v. Rock Hill Loc School Mulkey v. Rock Hill Loc School     Southern District of Ohio at Cincinnati CURTIS L. COLLIER, Chief District Judge. Plaintiffs Shara Jenkins (“Jenkins”) and Brenda Mulkey (“Mulkey”) filed this consolidated appeal challenging the district court’s grant of summary judgment to defendants Lloyd Evans (“Evans”) and the Rock Hill School Board (“School Board”) on their First Amendment retaliation and privacy claims. In analyzing the retaliation claims, the district court incorrectly limited constitutionally protected activities to matters of public concern. However, because the district court reached the correct decision on all claims except Jenkins’s retaliation claim against Evans, we REVERSE the district court’s decision on that claim and AFFIRM its decision on all others.
08a0036p.06	USA v. Grossman     Western District of Michigan at Grand Rapids SUTTON, Circuit Judge. Kurt Grossman pleaded guilty to possessing images of minors engaged in sexual activity. Because Grossman’s sentence of 66 months in prison and 10 years of supervised release, a substantial downward variance from the sentence recommended by the sentencing guidelines, is procedurally sound and reasonable in length, we affirm.
08b0002p.06	In re: Edwin Bailey v.     U.S. Bankruptcy Court - Youngstown JAMES D. GREGG, Bankruptcy Appellate Panel Judge. Edwin and Jamie Bailey (“Debtors”) appeal a bankruptcy court order directing them to turn over a $3,342 federal income tax refund to the chapter 7 trustee. For the reasons that follow, the bankruptcy court’s order is AFFIRMED.

 

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Opinion	Short Title/District
08a0042n.06	Kuta v. GMC     Eastern District of Michigan at Detroit
08a0043n.06	USA v. Thomas     Southern District of Ohio at Columbus
08a0044n.06	Bridgeport Music Inc v. Rondor Music Intl     Middle District of Tennessee at Nashville
08a0045n.06	USA v. Velotta     Northern District of Ohio at Cleveland
08a0046n.06	USA v. Whitfield     Eastern District of Michigan at Detroit
08a0048n.06	Dotson v. Collins     Northern District of Ohio at Toledo
08a0049n.06	Sagraves v. Lab One     Southern District of Ohio at Columbus
08a0050n.06	USA v. Cisse     Southern District of Ohio at Cincinnati
08a0051n.06	Cowherd v. Million     Eastern District of Kentucky at Lexington
08a0052n.06	Marshall v. Morgan     Western District of Kentucky at Louisville
08a0053n.06	USA v. Crocker     Western District of Tennessee at Jackson
08a0054n.06	Phillips v. Anderson Cnty Bd Ed     Eastern District of Tennessee at Knoxville
08a0055n.06	Vance v. Comm Social Security     Eastern District of Kentucky at Frankfort
08a0056n.06	USA v. Oliver     Eastern District of Kentucky at Covington
08a0057n.06	Manorek v. Mukasey     Immigration & Naturalization Service
08a0058n.06	USA v. Howton     Western District of Kentucky at Owensboro
08a0059n.06	Flagstar Bank v. Fed Ins Co, et al     Eastern District of Michigan at Detroit
08a0060n.06	Newman v. Vasbinder     Eastern District of Michigan at Ann Arbor
08a0061n.06	Peoples v. Choppler     Western District of Michigan at Marquette
08a0062n.06	Kanoute v. Mukasey     Immigration & Naturalization Service
08a0063n.06	Martinez v. Mukasey     Board of Immigration Appeals
08a0064n.06	Counts v. Kraton Polymers U.S.     Southern District of Ohio at Columbus

6th Cir. Published Decisions for Week of Jan. 7, 2008 (One Ky Decision)

Opinion	Short Title/District
08a0004p.06	Staunch v. Continental Airlines     Northern District of Ohio at Cleveland KENNEDY, Circuit Judge. Plaintiff Holly Staunch appeals the district court’s grant of summary judgment to Defendant Continental Airlines, Inc. on her claims for interference and retaliation under the Family Medical Leave Act of 1993 (“FMLA”), pregnancy discrimination in violation of Section 4112.02(A) of the Ohio Revised Code, and wrongful termination in violation of Ohio’s public policy against pregnancy discrimination. Because we find that Staunch was not an “eligible employee” under the FMLA and her state law claims are without merit, we AFFIRM the district court’s grant of summary judgment to Continental.
08a0005p.06	Auletta v. Ortino     Northern District of Ohio at Cleveland ALICE M. BATCHELDER, Circuit Judge. In this shareholder derivative action, plaintiffs Thomas Auletta, Barbara Bencosme, and Phillip Miller Trust (collectively “Plaintiffs”) appeal the district court’s dismissal of their complaint for failing to allege, with adequate particularity, that a demand would be futile, and the district court’s denial of their Rule 60(b) Motion for Relief from the Judgment. Because the district court neither erred in dismissing Plaintiffs’ complaint nor abused its discretion in denying Plaintiffs’ motion for relief, we affirm the district court’s decisions in their entirety.
08a0006p.06	Pontiac School Dist v. Sec US Dept Ed     Eastern District of Michigan at Detroit R. GUY COLE, Jr., Circuit Judge. This case requires us to decide a fundamental question of federal versus state funding under the No Child Left Behind Act of 2001 (“NCLB” or “the Act”), 20 U.S.C. §§ 6301–7941. Plaintiffs-Appellants are school districts and education associations that receive federal funding under NCLB in exchange for complying with the Act’s various educational requirements and accountability measures. Based on the so-called “Unfunded Mandates Provision,” which provides that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a), Plaintiffs filed suit in district court against the Secretary of Education seeking, among other relief, a judgment declaring that they need not comply with the Act’s requirements where federal funds do not cover the increased costs of compliance. The district court concluded, however, that Plaintiffs must comply with the Act’s requirements regardless of any federal-funding shortfall and accordingly granted the Secretary’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Because statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion.
08a0007p.06	Blackburn v. Oaktree Cap Mgmt     Middle District of Tennessee at Nashville McKEAGUE, Circuit Judge. Plaintiffs sued Oaktree Capital Management, LLC (“Oaktree”) in state court, seeking damages and declaratory relief in relation to plaintiffs’ purchase of membership rights in a golf club. Oaktree removed the action to federal court. After the district court allowed plaintiffs to amend their complaint to include non-diverse defendants that destroyed diversity jurisdiction, the district court remanded the case to state court. Oaktree appeals, contending that the district court erred in granting the motion to amend the complaint and that the district court’s remand order is reviewable because the case was properly removed in the first instance. Upon review of the applicable law and record, we DISMISS the appeal for lack of jurisdiction, irrespective of whether the motion to amend was properly granted.
08a0008p.06	Commodity Futures v. Erskine     Northern District of Ohio at Cleveland ALICE M. BATCHELDER, Circuit Judge. The Commodities Futures Trading Commission (CFTC) sued Ross Erskine and his company, Goros, LLC, (collectively “Goros”) in federal court, alleging that Goros had misrepresented facts and omitted pertinent information when soliciting customers to trade in foreign currency, which violated the Commodity Exchange Act (CEA), 7 U.S.C. §§ 1-27. As a jurisdictional predicate, the CFTC alleged that the trades at issue were “futures contracts” governed by the CEA and that the CFTC is authorized to “enjoin or restrain violations” of that Act. Id. at § 13a-1. Goros denied the accusations, denied that the trades were “futures contracts,” and challenged the CFTC’s jurisdiction. The district court agreed with Goros as to the nature of the trades and the jurisdiction of the CFTC and granted summary judgment to Goros. The CFTC appealed and we must now decide whether the trades at issue were “futures contracts” subject to the CFTC’s jurisdiction. Because we conclude that they were not, we AFFIRM.
08a0009p.06	O'Neill v. Coughlan     Northern District of Ohio at Cleveland RALPH B. GUY, JR., Circuit Judge. Defendant Jonathan E. Coughlan, Disciplinary Counsel for the Supreme Court of Ohio, appeals from the district court’s grant of summary judgment to plaintiff William O’Neill in this action seeking to enjoin enforcement of three canons of the Ohio Code of Judicial Conduct. O’Neill, a judge of the Ohio Court of Appeals at the time, was accused of violating these canons while campaigning for election to the Ohio Supreme Court in 2004. The district court concluded that enforcement of these canons would impermissibly restrict O’Neill’s free speech rights as guaranteed by the First Amendment. We vacate the judgment entered in favor of O’Neill because the district court should have abstained from deciding the merits of the case under the authority of Younger v. Harris, 401 U.S. 37 (1971).
08a0010p.06	Uhl v. Komatsu Forklift Co.     Eastern District of Michigan at Detroit KAREN NELSON MOORE, Circuit Judge. In this case, the appellants challenge the validity of an arbitration award where one of the party-selected arbitrators had previously and occasionally served as co-counsel with the attorney representing the intervening plaintiff in the instant case. Because we conclude that this relationship did not violate the arbitration agreement or rise to the level of evident partiality, we AFFIRM the district court’s judgment.
08a0011p.06	USA v. Gonzalez     Northern District of Ohio at Cleveland McKEAGUE, Circuit Judge. During a routine traffic stop, defendant David Gonzalez consented to a search of his vehicle which uncovered some seven kilograms of cocaine. Defendant was found guilty in a jury trial of possessing with intent to distribute more than five kilograms of cocaine and was sentenced to life in prison. In challenging his conviction and sentence, defendant asserts five claims of error: (1) that the government did not timely file notice of possible sentencing enhancement based on prior convictions; (2) that the sentencing court improperly considered his two prior drug felony convictions to be separate offenses even though they arose from a single criminal episode; (3) that evidence seized in a consensual search which exceeded the scope of the consent should have been suppressed; (4) that the government engaged in prosecutorial misconduct during closing arguments; and (5) that the conviction was not supported by sufficient evidence that he knowingly possessed the cocaine. Finding that none of defendant’s claims have merit, we affirm the the district court’s judgment.
08a0012p.06	USA v. Klups     Western District of Michigan at Marquette KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant James Edward Klups (“Klups”) contests on appeal his sentence to a sixty-month prison term for travel with the intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). We AFFIRM the district court’s sentence as reasonable.
08a0013p.06	Inre Dewitt McDonald v.     Northern District of Ohio at Toledo JULIA SMITH GIBBONS, Circuit Judge. Petitioner Dewitt McDonald Jr. moves this court to grant him permission to file a second or successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b)(3). For the following reasons, we authorize McDonald to file a second habeas corpus petition with the district court.
08a0014p.06	Pennington v. Metro Govt Nash     Middle District of Tennessee at Nashville RONALD LEE GILMAN, Circuit Judge. Joe A. Pennington, a Metropolitan police officer, was off duty when he became involved in an altercation at a Nashville bar. Deputy Chief Joseph Bishop and Captain Michael Hagar later requested Pennington to submit to a breathalyzer test. Pennington agreed to take the test because he was afraid that he would be terminated or suspended if he failed to comply. He subsequently sued Bishop, Hagar, and the Metropolitan Government of Nashville and Davidson County on the basis that he was unlawfully required to take the breathalyzer test in violation of his constitutional rights. The district court granted judgment in favor of the defendants. For the reasons set forth below, we AFFIRM the judgment of the district court.
08a0015p.06	Midwest Media v. Symmes Township     Southern District of Ohio at Cincinnati The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel. The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
08a0016p.06	Lulaj v. Wackenhut Corp     Eastern District of Michigan at Detroit BOYCE F. MARTIN, JR., Circuit Judge. Wackenhut appeals the district court’s denial of its motion for renewed judgment as a matter of law, or in the alternative a new trial, following a jury verdict in favor of Lisa Lulaj on a claim of sex discrimination. Lulaj cross-appeals the district court’s decision to reduce the jury’s determination of damages. Both parties appeal the amount of attorney’s fees awarded. We AFFIRM.
08a0017p.06	Spisak v. Mitchell     Northern District of Ohio at Cleveland On October 20, 2006, this Court issued an opinion partially granting habeas relief to Petitioner, Frank G. Spisak, and ordering a new mitigation phase trial. Spisak v. Mitchell, 465 F.3d 684 (6th Cir. 2006). Respondent warden thereafter filed a petition for writ of certiorari with the United States Supreme Court. On October 9, 2007, the Supreme Court granted certiorari, vacated the judgment of this Court, and remanded the case to this Court for further consideration in light of Carey v. Musladin, 127 S.Ct. 649 (2006), and Schriro v. Landrigan, 127 S.Ct. 1933 (2007). After careful review and consideration of Musladin and Landrigan, we find that neither of the cases require reversal of our prior disposition of this case. Accordingly, we reinstate our opinion of October 20, 2006, partially granting habeas relief and ordering a new mitigation phase trial.
08a0018p.06	USA v. Bailey     Eastern District of Kentucky at Covington GRIFFIN, Circuit Judge. Defendant Terrell R. Bailey appeals his convictions and sentences for possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i); and being a convicted felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Because of his prior convictions for drug trafficking and second-degree escape, KY. REV. STAT. § 520.030, the district court sentenced defendant as a career offender under the Sentencing Guidelines. On appeal, Bailey argues that his prior Kentucky state court conviction for second-degree escape does not qualify for a career offender enhancement; there was insufficient evidence to support his convictions; and the district court erred in enhancing his Guidelines offense level after finding that he had perjured himself at trial. For the reasons that follow, we affirm defendant’s convictions and sentences.
08a0019p.06	Schultz v. General RV Ctr     Eastern District of Michigan at Detroit McKEAGUE, Circuit Judge. Walter and Julie Schultz (“Plaintiffs”) filed suit against General R.V. Center and Damon Corp. (“Defendants”) in federal district court, alleging that their new R.V. is defective in violation of federal and state consumer laws. The district court granted summary judgment for Defendants on all counts, and Plaintiffs appealed. Following the conclusion of briefing, Defendants filed before this court a motion to dismiss for lack of subject matter jurisdiction on the basis that the Magnuson-Moss Warranty Act’s amount in controversy requirement has not been satisfied. For the reasons stated below, we find that federal subject matter jurisdiction exists and DENY Defendants’ motion to dismiss. With regard to the merits, we AFFIRM the district court’s grant of summary judgment in favor of Defendants.
08a0020p.06	USA v. Sexton, Romans, and Legg     Eastern District of Tennessee of Chattanooga ROGERS, Circuit Judge. Defendants Norman T. Sexton, Richard Romans, and James A. Legg challenge the sentences imposed by the district court on remand from this court for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). Defendants were sentenced in 2002 after being convicted of offenses stemming from the distribution of cocaine. After the Supreme Court’s decision in Booker, this court entered an order vacating the sentences of all three defendants and remanding their cases for resentencing. On remand, the district court reimposed identical sentences. Defendants make five primary arguments on appeal: (1) the district court violated their Sixth Amendment and due process rights by using its own factual findings to calculate their sentencing ranges under the United States Sentencing Guidelines; (2) their sentences exceeded the “maximum statutory sentence” allowable for their offenses; (3) the imposition of their sentences in accordance with the remedial portion of Booker created an unconstitutional ex post facto effect; (4) Sexton’s sentence was unreasonable; and (5) the district court’s refusal to order the preparation of new presentencing reports on remand was improper under Fed. R. Crim. P. 32. Because all of these arguments are without merit, we affirm the sentences imposed by the district court.

   

6th Cir. Published Decisions for Week of Jan. 2, 2008 (No Ky Decisions)

Opinion	Short Title/District
08a0001p.06	Gruener v. OH Casualty Ins     Southern District of Ohio at Cincinnati COOK, Circuit Judge. Plaintiff Sharyn Gruener appeals from a jury verdict rendered for her former employer, Defendant The Ohio Casualty Insurance Company, in this Americans with Disabilities Act (“ADA”) action. Gruener seeks reversal on two grounds. She contends the trial court erred by (1) denying her requested jury instruction on the ADA’s regarded-as-disabled definition of disability, and (2) denying her motion for a new trial as the clear weight of the evidence belied the verdict. Because Gruener failed to present evidence warranting a regarded-as-disabled instruction and because she failed to amend her notice of appeal to include the trial court’s order denying her motion for a new trial, we affirm.
08a0002p.06	Bell v. Bell     Middle District of Tennessee at Nashville JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Stephen Michael Bell was convicted in Tennessee state court of one count of first degree murder and one count of second degree murder. After unsuccessfully pursuing relief in the Tennessee appellate courts, Bell sought a writ of habeas corpus in federal district court. The district court denied Bell’s petition but issued a certificate of appealability as to Bell’s claims that the prosecution in his case violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over impeachment material and that he received ineffective assistance of counsel. Bell appealed, and a divided panel of our court reversed the district court as to Bell’s Brady claim. Bell v. Bell, 460 F.3d 739 (6th Cir. 2006). A majority of the active members of the court voted for rehearing en banc, vacating the original panel decision. For the reasons below, we affirm the decision of the district court denying Bell habeas relief.
08a0003p.06	Truck Drivers L164 v. Allied Waste Sys     Eastern District of Michigan at Detroit ALICE M. BATCHELDER, Circuit Judge. Truck Drivers Local No. 164 (“Union”) appeals from the district court’s grant of summary judgment in favor of Allied Waste Systems, Inc. (“Allied”), which vacated an arbitrator’s award ordering reinstatement of Grievant Keith Miller (“Miller”). On appeal, the Union argues that the district court erred in vacating the arbitrator’s award. At oral argument, both parties agreed that this case is directly impacted by our recent en banc decision in Michigan Family Resources, Inc. v. Service Employees International Union, 475 F.3d 746, 752-53 (6th Cir. 2007), which held that courts are without authority to overturn an arbitrator’s award so long as the arbitrator was “arguably construing or applying the contract and acting within the scope of his authority.” Id. After carefully reviewing the arbitrator’s decision and the parties’ arguments, we find that the arbitrator was faithfully attempting to construe and apply the terms of the collective bargaining agreement, that the arbitrator was acting within the scope of his authority, and that the district court lacked legal authority upon which to vacate the arbitrator’s award. We accordingly REVERSE the district court’s decision and REMAND with instructions to reinstate the arbitrator’s award and for further proceedings consistent with this opinion in regard to the Union’s demand for additional back pay.