Minnesota Lawyer
Civil Practice
Civil Action
Tribal Sovereign Immunity; Dismissal
Plaintiffs appealed the dismissal of their civil action against a tribal business council. The district court dismissed the case based on tribal sovereign immunity.
The court found no basis for reversal of the district court’s judgment.
Judgment is affirmed.
Civil Rights
State and Federal Law Claims
Estate Claim; Dismissal of Case
Plaintiffs, individually and as representative of the estate of plaintiff Glenda Gardner’s son Jacob, appealed the dismissal of their state and federal law civil rights action.
The court affirmed the dismissal of the case where the record reflected no error by the district court.
Judgment is affirmed.
22-2316 Gardner v. Franklin, per curiam. Appealed from U.S. District Court, District of Nebraska.
Criminal Law
Assault
Health Care Fraud; Substantive Reasonableness of Sentence
Defendant appealed the sentence imposed following her conviction for assault and health care fraud. Defendant had assaulted her daughter and significant other to obtain pain medication for defendant’s own use; the injuries and lack of proper treatment ultimately resulted in amputations. Defendant challenged the substantive reasonableness of the sentence, arguing that it was unjustified by the record and the district court’s explanation.
Where the district court imposed a within-Guidelines sentence, it had wide latitude in assigning weight to various sentencing factors, and the record showed that the district court considered defendant’s mitigation evidence.
Judgment is affirmed.
21-3548 U.S. v. One Horn, Smith, J. Appealed from U.S. District Court, District of South Dakota.
Conspiracy to Distribute Drugs
Level Increase; Importation of Drugs
Defendants challenged their sentences for conspiracy to distribute drugs, arguing that the district court erred in applying a sentencing enhancement after finding that the conspiracy involved the importation of drugs from another country and finding other aggravating factors as to several of the defendants.
Where the broker who imported the drugs into the U.S. was an unindicted member of the conspiracy, there was sufficient evidence for the district court to impose the sentencing enhancement and there was no error in the disparity in defendants’ sentences.
Judgment is affirmed.
Conspiracy to Distribute Drugs
Sentencing Enhancement; Reasonableness of Sentence
Defendant appealed the judgment of sentence imposed following his conviction for conspiracy to distribute drugs. Defendant challenged the district court’s imposition of a two-level obstruction-of-justice sentencing enhancement and argued that his sentence was unreasonable.
Where the district court made specific factual findings to support its conclusion that defendant’s trial testimony was “obviously false,” particularly where the testimony conflicted with defendant’s initial statements to law enforcement, there was no error in applying the obstruction-of-justice sentencing enhancement as the preponderance of the evidence supported a finding that defendant had perjured himself.
Judgment is affirmed.
Drug Distribution
Jury Bias; Judicial Factfinding
Defendant appealed his conviction for drug distribution. Although defendant was arrested in a sting conducted by an undercover state trooper, he chose to go to trial. Defendant unsuccessfully requested a new venire group after only one of the 39 prospective jurors was Black. After the jury convicted defendant, he moved for a new trial based on the fact that one of the jurors and defendant’s sister had an altercation a year prior. During sentencing, the district court calculated the amount of “pure” methamphetamine in the drugs sold by defendant.
Where the composition of the jury pool was itself not indicative of bias, the district court correctly denied defendant’s motions where the record did not demonstrate that the identified juror would possess an extreme bias against defendant. Defendant’s sentence did not violate the Sixth Amendment where it was below the statutory maximum.
Judgment is affirmed.
21-3906 U.S. v. Farmer, per curiam. Appealed from U.S. District Court, Eastern District of Missouri.
Drug Offenses
Motion to Suppress; Franks Hearing
Defendant appealed the denial of his suppression motion and request for a Franks hearing. A police canine reported positively on defendant’s apartment door and officers obtained a search warrant. However, defendant moved to a new unit in the complex before police could execute the warrant. Police conducted a new canine search with management’s permission and obtained another search warrant. Upon executing the warrant, officers read defendant his Miranda rights and questioned him. Defendant moved to suppress the physical evidence and his statements. The district court concluded that, although the canine sniffs were conducted within the curtilage of defendant’s apartments, the search was valid under the good faith exception.
Where the canine sniffs occurred before the court expressly ruled that the curtilage rules applied to apartment doors in common hallways, the officers were entitled to rely on the search warrants in a good faith belief that the supporting canine searches were valid.
Kelly, J., concurring: “I would conclude that the drug dog sniffs of Hines’s apartment were a violation of his Fourth Amendment rights. I otherwise concur in the court’s opinion.”
Grasz, J., concurring: “I write separately to highlight the fact that, in my view, the district court’s determination that the warrantless K9 sniff of the curtilage of Hines’s residence was an illegal search is not squarely before the court in this appeal. By affirming the district court’s ultimate denial of the motion to suppress under the Leon good faith exception, this court in no way suggests the district court’s determination regarding the unconstitutionality of the search was incorrect.”
Judgment is affirmed.
21-2477 U.S. v. Hines, Smith, J. Appealed from U.S. District Court, Southern District of Iowa.
Felon in Possession of Firearm
Acceptance of Responsibility; Denial of Sentencing Reduction
Defendant appealed the sentence imposed by the district court after defendant pled guilty to being a felon in possession of a firearm. The district court denied defendant’s request for an acceptance-of-responsibility reduction.
Where defendant made a blanket objection to his PSR, the district court was permitted to treat the findings as true and thereby conclude that defendant had not accepted responsibility by committing additional offenses while in custody.
Judgment is affirmed.
22-2520 U.S. v. Theson, per curiam. Appealed from U.S. District Court, Western District of Missouri.
Felon in Possession of Firearm
Crime Involving Death; Upward Variance
Defendant appealed his sentence for being a felon in possession of a firearm. Defendant’s conviction arose from his leaving a loaded gun in his apartment, which was discovered by unattended children. One of the children accidentally fired the gun and killed a six-year-old. The district court varied upward from the Guidelines range since defendant’s crime involved the death of a young child.
Where the court had previously affirmed larger upward variances for crimes involving conduct that endangered children, the district court did not impose a substantively unreasonable sentence.
Judgment is affirmed.
Felon In Possession of a Firearm
Sufficiency Of Evidence; Interstate Commerce
Where a defendant challenged his convictions for being a felon in possession of a firearm and for being a felon in possession of ammunition, the evidence was sufficient to support the convictions, and the district court properly allowed the jury to decide whether the firearm had traveled in interstate commerce and the evidence supported the determination that it had, but the two counts were multiplicitous, so the judgment is remanded with directions to vacate one of the convictions.
Judgment is remanded to vacate one conviction; affirmed.
Felon in Possession of a Firearm
Upward Sentencing Variance; Reasonableness of Sentence
Defendant appealed the judgment of sentence imposed following his guilty plea to being a felon in possession of a firearm. The district court imposed a 17-month upward variance from the top end of the Guidelines range. Defendant challenged the reasonableness of his sentence.
Although the district court imposed a two-level enhancement for fleeing, the district court could still vary upward from the Guidelines range to reflect the seriousness of the offense and the need to protect the public and deter defendant from future criminal conduct, as he had a history of fleeing from law enforcement.
Judgment is affirmed.
22-2823 U.S. v. White, per curiam. Appealed from U.S. District Court, Eastern District of Arkansas.
Firearms and Drug Offenses
Reasonableness of Sentence; Ineffective Assistance of Counsel
Defendant appealed the sentence imposed following his guilty plea to drug and firearms offenses. Defendant challenged the reasonableness of the sentence and argued that he was misled by counsel during plea negotiations.
Where the district court considered all relevant statutory sentencing factors, it imposed a presumptively reasonable sentence, and defendant’s claims of ineffective assistance of counsel were cognizable on collateral review.
Judgment is affirmed.
22-3302 U.S. v. Ruel, per curiam. Appealed from U.S. District Court, District of Nebraska.
Firearms and Drug Offenses
Substantive Reasonableness of Sentence; Sentencing Discretion
Defendant appealed the judgment of sentence imposed following his guilty plea to drug and firearms offenses, challenging the substantive reasonableness of the sentence.
Where the district court properly considered the statutory sentencing factors, there was no abuse of discretion and defendant’s below-Guidelines sentence was presumptively reasonable.
Judgment is affirmed.
22-3280 U.S. v. Soper, per curiam. Appealed from U.S. District Court, Southern District of Iowa.
Interstate Transport of Stolen Property
Sufficiency of Evidence; Sentencing Errors
Defendant appealed his conviction and sentence for interstate transport of stolen property and witness tampering. Defendant challenged the sufficiency of the evidence supporting his conviction and argued that the district court erred in determining his sentence.
Where the jury was free to credit the testimony of defendant’s co-conspirator, there was sufficient evidence to convict defendant, and the district court did not err in denying defendant’s request for a downward adjustment for having a minor role in the conspiracy where the evidence showed that defendant actively participated in the burglaries and transportation of the stolen merchandise.
Judgment is affirmed.
Revocation of Supervised Release
Above-Guidelines Sentence; Substantive Reasonableness of Sentence
Defendant challenged the substantive reasonableness of the above-Guidelines sentence imposed following the revocation of his supervised release.
Where the district court adequately considered the statutory sentencing factors, it did not abuse its discretion by imposing an above-Guidelines sentence where the sentence was still within the statutory maximum.
Judgment is affirmed.
22-3576 U.S. v. Davis, per curiam. Appealed from U.S. District Court, Southern District of Iowa.
Revocation of Supervised Release
Consecutive Sentences; Procedural Error
Defendant appealed from the judgment of sentence imposed following the revocation of his supervised release for possession of firearms and drugs. Defendant argued that the district court committed procedural error by treating a Guidelines references to consecutive sentences as mandatory.
Where the district court’s judgment demonstrated that it understood the Guidelines to be advisory, there was no abuse of sentencing discretion in imposing a within-Guidelines-range sentence.
Judgment is affirmed.
22-1641 U.S. v. Gray, per curiam. Appealed from U.S. District Court, Eastern District of Missouri.
Sentencing
Enhancements; Relevant Conduct
Where a defendant challenged his sentence after pleading guilty to being an unlawful user of a controlled substance in possession of a firearm, the defendant failed to preserve his claim that the district court erred in imposing enhancements based on relevant conduct, and the district court did not err when it failed to find that the defendant’s conduct in a later incident was not relevant under the guidelines.
Judgment is affirmed.
22-1778 U.S. v. Soto, Loken, J. Appealed from U.S. District Court, Western District of Missouri.
Supervised Release
Provision Of Counsel
Where a defendant challenged the denial of his pro se motion to terminate supervision or to modify the conditions of his supervised release, the district court did not violate Rule 32.1(c)(1) by failing to provide him with counsel and a hearing before it denied the motion, and the defendant failed to show a due process violation, and the judgment is affirmed because the court also did not abuse its discretion by refusing to modify the provision on the defendant’s internet and computer use.
Judgment is affirmed.
U.S. v. Norris, Smith, J. Appealed from U.S. District Court, Eastern District of Missouri.
Employer-Employee
Discrimination
Removal; Timeliness
Plaintiff appealed the district court’s denial of her motion to remand her employment discrimination action back to state court.
Where the notice of removal was filed within 30 days of the date that defendant could have first ascertained the removability of the case, the case was timely removed.
Judgment is affirmed.
Sex Discrimination
Disability-Related Slur; Breach Of Contract
Where a college teacher, who was fired after she referred to a student as “retarded” for using a cellphone during a class quiz, brought claims of sex discrimination retaliation and breach of contract, the teacher failed to show that the legitimate, non-discriminatory grounds for termination were pretext, and the hostile environment claim also failed, and the judgment is affirmed because the court also did not err in dismissing the state-law based claim for breach of contract.
Judgment is affirmed.
Title VII
Race Discrimination; Retaliation
Plaintiff appealed the grant of summary judgment for defendant in plaintiff’s Title VII claim. Plaintiff alleged that her supervisor made racially discriminatory remarks and retaliated against her for working a second job.
Where plaintiff could only cite isolated incidents of racially insensitive comments and could not show that she suffered an adverse employment action, her hostile work environment and retaliation claims failed.
Judgment is affirmed.
Immigration
Cancellation of Removal
Qualifying Relatives; Jurisdiction
Petitioner appealed the BIA’s denial of his application for cancellation of removal. In support of his application, petitioner alleged that he had married his long-term partner and that his partner’s son was a qualifying relative because the son considered petitioner to be his father. An IJ denied the application, concluding that separation from a family member did not constitute extreme hardship beyond that normally expected from deportation.
Where the court lacked jurisdiction to review the IJ’s discretionary determination that petitioner had failed to demonstrate extreme hardship, the court dismissed the petition.
Petition is dismissed.
Cancellation of Removal
Subject Matter Jurisdiction; Qualified Immunity
Petitioner sought review of the BIA’s dismissal of his appeal from an IJ’s decision denying cancellation of removal.
Where the determination of hardship was at least partially a factual determination, the court lacked jurisdiction to review the discretionary aspects of the denial of cancellation of removal, and petitioner failed to make a colorable argument invoking the court’s jurisdiction.
Petition is dismissed.
