Minnesota Lawyer
Administrative
HHS
Subject Matter Jurisdiction; Dismissal
Plaintiff appealed the dismissal of his case for lack of subject matter jurisdiction.
The court affirmed the dismissal of plaintiff’s civil action for the reasons expressed by the district court.
Judgment is affirmed.
Civil Practice
Snap Removal
Complete Diversity; Insurance Dispute
Where insurer removed an insurance dispute to federal court before the plaintiff had properly joined and served the second defendant, which was the only non-diverse defendant, service did not matter in the evaluation of diversity, and this snap removal did not eliminate the requirement of complete diversity, so the order is vacated and remanded to determine whether the second defendant was fraudulently joined.
Vacated; remanded.
Civil Rights
§1983
Arkansas Civil Rights Act
Qualified Immunity
Defendant appealed the district court’s denial of his motion to dismiss plaintiff’s civil rights complaint. Defendant, plaintiff’s former supervisor, argued that he was entitled to qualified immunity.
Where a review of the allegations in the light most favorable to plaintiff demonstrated a prima facie civil rights claim, the district court correctly denied defendant’s motion to dismiss.
Judgment is affirmed.
§1983
Excessive Force; Qualified Immunity
Plaintiff appealed the district court’s grant of summary judgment in favor of defendant. Plaintiff saw defendant, a police officer, pointing his service weapon at her minor sons. When plaintiff approached to ask what happened, defendant repeatedly ordered plaintiff to “get back” and briefly pointed his taser at her when plaintiff questioned the order. After plaintiff’s sons were cleared of wrongdoing, plaintiff filed the present §1983 lawsuit alleging excessive force. The district court granted summary judgment for defendant based on qualified immunity.
Where defendant was confronted with two potentially armed suspects at night when plaintiff approached him from behind and did not immediately comply with defendant’s orders to “get back,” the use of a taser constituted a reasonable use of force to compel plaintiff’s compliance.
Judgment is affirmed.
§1983
Illegal Search; Law Enforcement Harassment
Plaintiff appealed from the jury verdict in his §1983 action against defendants arising from their warrantless search of plaintiff’s business and indictment of plaintiff on drug charges. The jury found in favor of plaintiff as to only one of the defendants and awarded only $1 in damages. On appeal, plaintiff challenged the district court’s failure to instruct the jury on punitive damages.
Where plaintiff failed to renew his request for a punitive damages instruction, the court reviewed the district court’s judgment under the plain error standard, and found no error in the district court’s failure to sua sponte instruct the jury where a verdict in favor of plaintiff did not necessarily include a finding of callous indifference.
Judgment is affirmed.
Constitutional Claims
Rehabilitation Act; Dismissal of Case
Plaintiff appealed the pre-service dismissal of one of his claims and the adverse grant of summary judgment on his remaining claim.
The district court did not err in dismissing plaintiff’s constitutional claims or granting summary judgment to defendant on plaintiff’s Rehabilitation Act claim, and did not abuse its discretion in denying plaintiff’s motion for default judgment.
Judgment is affirmed.
Discrimination
Hotel Treatment
Where plaintiff sued a hotel company for race discrimination and unfair reprisal after he claimed he was locked out of the main entrance, denied a request to change rooms and treated inhospitably, the plaintiff’s visit occurred during the early days of the COVID-19 pandemic, and the plaintiff failed to show that the hotel’s reasons for his treatment were pretextual, so the district court properly granted summary judgment to the hotel on the Minnesota Human Rights Act discrimination claim, and the retaliation claim also failed.
Judgment is affirmed.
Inmate Action
Transfer; Mootness
Where an inmate was transferred to another institution during the pendency of his appeal in a civil rights action, the claims for declaratory and injunctive relief became moot.
Appeal is dismissed.
School District
Interlocutory Appeal; Appellate Jurisdiction
Defendants appealed the district court’s orders that granted in part and denied in part their motion for summary judgment, denied their motion to amend and certify the summary judgment order, and posted a redacted version of the order to the docket.
Where defendants had not moved for summary judgment on grounds of qualified immunity, they could not appeal as of right from an interlocutory summary judgment order.
Appeal is dismissed.
Criminal Law
Child Exploitation
Plea Agreement; Appeal Waiver
Defendant appealed the sentence imposed following his guilty plea to child exploitation offenses, pursuant to a plea agreement containing an appeal waiver. The defendant’s issues on appeal fell within the scope of the appeal waiver.
Appeal is dismissed.
Conspiracy to Distribute
Below-Statutory Minimum Sentence; Downward Departure
The government appealed the sentence imposed upon defendant by the district court, contending that it was below the statutory minimum. The government had moved for a downward departure based on defendant’s substantial assistance with other drug trafficking investigations. The district court mistakenly evaluated the government’s motion under the traditional sentencing factors. On appeal, the government argued that any departure below the statutory minimum had to be based solely on assistance-related factors.
Where the district court could only sentence below the statutory minimum based upon a defendant’s assistance to the government, the district court erred by only examining the traditional statutory sentencing factors, and such error was prejudicial where there was no indication how the district court would have sentenced based on assistance-related factors.
Judgment of sentence is vacated.
Conspiracy to Distribute
Downward Variance; Physical Impairment
Defendant appealed the sentence imposed following his guilty plea to conspiracy to distribute drugs and conspiracy to commit money laundering. Defendant’s advisory guidelines range was life imprisonment, but he moved for a downward departure based on his numerous health issues. The district court denied defendant’s request but varied downward nonetheless, explaining that it would have imposed the same sentence even if it had granted defendant’s motion.
Any error in denying defendant’s motion was harmless because the district court would have imposed the same sentence if it had granted the motion.
Judgment is affirmed.
Conspiracy to Distribute
Pure Methamphetamine; Government’s Breach of Plea Agreement
Defendant appealed the judgment of sentence imposed following his guilty plea to conspiracy to distribute a mixture or substance containing a detectable amount of methamphetamine. Defendant challenged the district court’s finding that the methamphetamine he possessed was pure, leading to a higher Guidelines range. Defendant also argued that the government breached an agreement not to seek a Guidelines range based on pure methamphetamine.
Where the government merely needed to prove that defendant had a mixture or substance containing methamphetamine, subsequent testing that confirmed defendant possessed pure methamphetamine could properly determine defendant’s Guidelines range.
Judgment is affirmed.
Drug and Firearms Offenses
Deletion of Dashcam Footage; Competency Evaluation
Defendant appealed the district court’s orders. The district court denied defendant’s motion to dismiss his indictment based on the government’s deletion of dashcam footage of defendant’s arrest. The district court also denied defendant’s request for a competency evaluation. However, the district court granted defendant’s motion to proceed pro se.
Where the deletion of the dashcam footage was not done in bad faith, the district court did not abuse its discretion in declining to dismiss the case, and properly denied the motion for a competency evaluation where defense counsel merely indicated his suspicions about defendant’s competency. The district court also properly granted defendant’s motion to proceed pro se when it confirmed that defendant was voluntarily and intelligently moving to represent himself.
Judgment is affirmed.
Felon in Possession of Firearm
Above-Guidelines Sentence; Substantive Reasonableness of Sentence
Defendant appealed the above-Guidelines sentence imposed following his guilty plea to being a felon in possession of a firearm, challenging the substantive reasonableness of his sentence.
Where defendant offered no facts to show that the district court granted improper weight to any statutory sentencing factor, the court found no abuse of sentencing discretion by the district court when it imposed an above-Guidelines sentence.
Judgment is affirmed.
Felon in Possession of Firearm
ACCA Sentence Enhancement; Prior Violent Felony
Defendant, who pled guilty to being a felon in possession of a firearm, appealed the enhanced sentence imposed after the district court concluded that defendant’s prior Arkansas state law convictions for robbery qualified as “violent felonies” under the ACCA. Defendant argued that Arkansas robbery did not possess an element with the requisite degree of force to constitute a “violent felony.”
Where the court had previously ruled that Arkansas robbery qualified as a “crime of violence,” the district court properly concluded that the offense also qualified as a “violent felony” under the ACCA.
Judgment is affirmed.
Felon in Possession of Firearm
Calculation of Guidelines Range; Crime of Violence
Defendant appealed the sentence imposed following his guilty plea to being a felon in possession of a firearm, challenging the district court’s determination that defendant’s prior Missouri conviction for arson qualified as a crime of violence.
Where the mens rea element of “knowingly” was substantially similar to the “maliciously” element in the generic federal definition of arson, the district court correctly determined that defendant’s prior conviction qualified as a crime of violence.
Judgment is affirmed.
Felon in Possession of Firearm
Upward Departure; Substantive Reasonableness of Sentence
Defendant appealed the sentence imposed following his guilty plea to being a felon in possession of a firearm, arguing that the district court failed to adequately explain why it imposed an upward departure and therefore imposed a substantively unreasonable sentence.
Where the district court cited defendant’s considerable criminal history, institutional disciplinary history, and new fraud crimes while detained during the present prosecution, there was no abuse of sentencing discretion in choosing to depart upward by one level.
Judgment is affirmed.
Involuntary Manslaughter
Consecutive Sentences; Upward Variance
Defendant appealed the sentence imposed following his guilty plea to two counts of involuntary manslaughter, which occurred when defendant caused a car accident while driving drunk. The district court granted the government’s motion to depart and vary upward from the Guidelines range and imposed consecutive sentences, noting that defendant had caused a similar accident 15 years prior and therefore clearly posed a substantial risk of reoffending.
Defendant could not show that he would have received a more favorable sentence absent the district court’s alleged sentencing errors because the sentence imposed was a product of the district court’s evaluation of the statutory sentencing factors.
Judgment is affirmed.
Jury Instructions
Robbery
Where a defendant challenged the jury instructions given in a robbery case as incorrect, the instructions were an accurate statement of the law.
Judgment is affirmed.
U.S. v. Wright (MLW No. 79823/Case No. 22-1194 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa, Rose, J.
http://media.ca8.uscourts.gov/opndir/23/05/221194U.pdf
Possession of Weapons/Ammunition by Prohibited Person
Sentencing Enhancement; Preponderance of the Evidence
Defendant appealed the sentence imposed following his guilty plea to possessing a firearm and ammunition as a prohibited person. Defendant argued that the government had failed to prove either of the sentencing enhancements imposed by the district court by a preponderance of the evidence.
Where the government presented testimony establishing that defendant possessed at least three firearms as they were found in defendant’s vehicle and among his other belongings and that defendant had possessed these firearms in connection with a burglary, the district court correctly applied the sentencing enhancements.
Judgment is affirmed.
Possession with Intent to Distribute
Motion to Suppress Evidence; Motion to Withdraw Guilty Plea
Defendant appealed his conviction for possession of methamphetamine with intent to distribute. Defendant challenged the denial of his motion to suppress the drugs found in his vehicle and the denial of his motion to withdraw his conditional guilty plea.
Although police did not have reasonable suspicion to initiate the traffic stop, the evidence found in defendant’s vehicle was admissible under the attenuation doctrine because the fact that defendant was driving without a driver’s license or proof of insurance broke the causal chain between the improper stop and the discovery of methamphetamine. There was no evidence that defendant’s guilty plea was not knowing or voluntary.
Colloton, J., concurring: “In my view, police officers permissibly stopped appellant Forjan’s vehicle based on reasonable suspicion that he was involved in drug trafficking activity. I would affirm the denial of Forjan’s motion to suppress on that basis.”
Grasz, J., dissenting: “In my view, the attenuation doctrine is not applicable here because of the close temporal proximity between the unconstitutional stop and the discovery of the evidence, combined with the absence of the special circumstances surrounding pre-existing warrants.”
Judgment is affirmed.
Revocation of Supervised Release
Consideration of Mitigating Factors; Substantive Reasonableness of Sentence
Defendant appealed the sentence imposed following the revocation of his supervised release. Defendant was serving a term of supervised release following his conviction on child sex offenses. Defendant’s probation officer moved to terminate defendant’s supervised release after learning that defendant resided with his fiancée’s minor son, in violation of the conditions of his supervised release. Defendant argued that his above-Guidelines revocation sentence was substantively unreasonable because he had begun a sponsorship program that would allow him to have contact with his fiancée’s child.
Where the district court properly considered the statutory sentencing factors, there was no abuse of discretion in imposing an above-Guidelines sentence.
Judgment is affirmed.
Revocation of Supervised Release
Within-Guidelines Sentence; Substantive Reasonableness of Sentence
Defendant appealed the within-Guidelines sentence imposed following the revocation of his supervised release, challenging the substantive reasonableness of his sentence.
Where a within-Guidelines sentence was presumptively reasonable, the court affirmed the judgment of sentence.
Judgment is affirmed.
Robbery
Sentencing Factors; Substantive Reasonableness of Sentence
Defendant appealed the below-Guidelines sentence imposed following his guilty plea to charges relating to a robbery. Defendant argued that his sentence was substantively unreasonable.
Where the district court did consider the effect of defendant’s drug addiction and inability to access treatment, the fact that the district court did not afford greater weight to that mitigating factor did not render defendant’s sentence substantively unreasonable.
Judgment is affirmed.
Sentencing
Acceptance Of Responsibility
Bank Fraud
Where a defendant who pleaded guilty in a bank fraud case challenged her 96-month sentence, the district court did not err in denying a reduction for the acceptance of responsibility based on her fraudulent conduct in providing information to a probation officer, and the court also did not err in admitting and considering tax filings from three years, so the judgment is affirmed.
Judgment is affirmed.
Sentencing
Remand; Mootness
Where a defendant sought a second remand on sentencing issues, the defendant was released from custody while his appeal was pending, so the challenge is moot.
Appeal is dismissed.
Sexual Exploitation of a Minor
Selective Prosecution; Sufficiency of Evidence
Defendant appealed his conviction for sexually exploiting and enticing a minor, challenging the denial of his motion to dismiss for selective prosecution and the sufficiency of the evidence supporting his conviction.
Where there were no facts showing that defendant was prosecuted for an improper motive, the court affirmed the conviction where the evidence established that defendant had asked for and received sexually explicit images from the victim and repeatedly solicited her for sex.
Judgment is affirmed.
Supervised Release
Modification of Conditions; Internet Access
Defendant appealed the denial of his motion to modify the conditions of his supervised release. Defendant was originally convicted of possession of child pornography and was placed on supervised release that defendant violated four times due to unauthorized access of computers or the internet, viewing pornography, and having prohibited contact with minors and known sex offenders. Defendant unsuccessfully sought to modify the conditions of his supervised release to have access to the internet and internet capable devices to attend community college.
Where defendant had an established history of using internet-capable devices for inappropriate conduct beyond simply possessing child pornography, the restriction of his supervised release was not impermissibly broad where his probation officer could authorize defendant’s access to computers and internet-capable devices for employment or educational purposes.
Judgment is affirmed.
Transporting a Stolen Vehicle
Upward Variance; Substantive Reasonableness of Sentence
Defendant appealed the sentence imposed following his guilty plea to transporting a stolen vehicle. The district court imposed an upward variance from defendant’s advisory Guidelines range. On appeal, defendant argued that the district court failed to properly account for his mental health issues and improperly focused on the fact that defendant committed his crime on the first day of his parole from a murder conviction.
Where the district court could consider a defendant’s criminal history even though it was already included in the defendant’s criminal history category, the district court did not abuse its sentencing discretion by choosing to vary upward from the Guidelines range.
Judgment is affirmed.
Violation of Supervised Release
Commission of New Crimes; Credibility Determination
Defendant appealed the revocation of his supervised release, after the district court found that defendant violated the condition of his supervised release not to commit new crimes. The district court found defendant’s testimony concerning his presence in his ex-girlfriend’s garage not credible and concluded that defendant had committed the crimes of trespassing and criminal mischief because his ex-girlfriend had already asked him to leave the residence.
Where defendant merely challenged the district court’s credibility determinations, the court had no basis to overturn the district court’s judgment.
Judgment is affirmed.
Insurance
Property Insurance
Presence of COVID-19; Physical Loss
Plaintiff appealed the district court’s grant of defendant’s motion to dismiss. Plaintiff filed suit after defendant denied plaintiff’s property insurance claim to recover business losses stemming from shutdown orders during the COVID-19 pandemic. The district court concluded that plaintiff had failed to plead a “physical loss” that would entitle it to coverage. On appeal, plaintiff asserted that its facility was contaminated by the SARS-CoV-2 virus, which constituted the requisite physical loss.
Where viral contamination had no physical effect on a property, the fact that plaintiff’s premises allegedly were contaminated by the virus that causes COVID-19 was insufficient to demonstrate that plaintiff suffered a “physical loss” of property entitling it to insurance coverage.
Judgment is affirmed.
