8th U.S. Circuit Court of Appeals Digest: July 12, 2023

Administrative

Rural Broadband Subsidies

Disqualified Census Blocks; Fraud

Plaintiff appealed the dismissal of its complaint. Plaintiff provided broadband services to rural customers in South Dakota. Defendant was a competing broadband internet provider. Plaintiff filed suit, alleging that defendant fraudulently misreported its broadband service capabilities to prevent plaintiff from receiving FCC subsidies due to defendant being deemed a competing provider. The district court dismissed the complaint, finding no evidence that defendant willfully overreported its service capabilities.

Where FCC regulations did not require providers to meet the actual speeds advertised but instead only minimum broadband speeds as defined by the agency, plaintiff’s evidence showing that defendant did not provide its advertised speeds in census blocks did not create a genuine issue of material fact.

Judgment is affirmed.

Venture Communications Cooperative, Inc. v. James Valley Cooperative Telephone Company (MLW No. 80153/Case Nos. 22-2129 & 22-2190 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, District of South Dakota, Lange, J.

Civil Rights

§1983

Prison Inmate; State Postconviction Relief

Plaintiff, an Arkansas inmate, appealed the dismissal of his §1983 action.

Where Arkansas’ postconviction statute did not deny plaintiff due process, the district court correctly dismissed the action.

Judgment is affirmed.

McArty v. Turner (MLW No. 80157/Case No. 22-3299 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Hickey, J.

Criminal Law    

Discharging a Firearm

Motion to Vacate Conviction; Crime of Violence

Defendant appealed the denial of her motion to vacate her conviction for discharging a firearm. Defendant pled guilty to second-degree murder and discharging a firearm during a crime of violence when she shot and killed her husband after discovering his infidelity. Defendant unsuccessfully moved to vacate her discharging a firearm conviction on grounds that intervening Supreme Court precedent had rendered it unlawful and that the federal second-degree murder statute should not be considered a “crime of violence.”

Where second-degree murder required malice aforethought due to the callous disregard for the high probability of harm from the defendant’s conduct, defendant’s conviction qualified as a crime of violence even though it did not require specifically targeting the victim.

Judgment is affirmed.

Janis v. U.S. (MLW No. 80154/Case No. 22-2471 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Benton, J.) Appealed from U.S. District Court, District of South Dakota, Kornmann, J.

Drug Offenses

Appeal Waiver; Reasonableness of Sentence

Defendant appealed the sentence imposed following his guilty plea to a drug offense, pursuant to a plea agreement containing an appeal waiver. Defendant argued that enforcing the appeal waiver would lead to a miscarriage of justice because his sentence was unreasonable.

Where the appeal waiver was valid and applicable to defendant’s claims, there was no miscarriage of justice in enforcing it.

Appeal is dismissed.

U.S. v. Sanchez-Meza (MLW No. 80167/Case No. 23-1357 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Nebraska, Gerrard, J.

Drug Offenses

Reasonableness of Sentence; Sentencing Factors

Defendant appealed the sentence imposed following his guilty plea to a drug offense, challenging the reasonableness of the sentence.

Where the district court properly considered the statutory sentencing factors, defendant’s sentence was presumptively reasonable.

Judgment is affirmed.

U.S. v. Counts (MLW No. 80168/Case No. 23-1504 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Brooks, J.

Drug and Firearm Offenses

Appeal Waiver; Reasonableness of Sentence

Defendant appealed the sentence imposed following his guilty plea to drug and firearms offenses, pursuant to a plea agreement containing an appeal waiver.

Where defendant’s appellate claims fell within the scope of his appeal waiver, the court dismissed the appeal.

Appeal is dismissed.

U.S. v. Fejzic (MLW No. 80166/Case No. 23-1344 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Missouri, Kays, J.

Drug and Firearms Offenses

Appeal Waiver; Reasonableness of Sentence

Defendant appealed the within-Guidelines sentence imposed following his guilty plea to drug and firearms offense pursuant to a plea agreement containing an appeal waiver.

Where defendant’s challenge to the reasonableness of his sentence fell within the scope of the appeal waiver, the court dismissed the appeal.

Appeal is dismissed.

U.S. v. Petties (MLW No. 80169/Case No. 23-1511 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Nebraska, Rossiter, J.

Malicious Destruction of Public Property

Arson; Crime of Violence

The government appealed the judgment of the district court that concluded that defendant’s arson charges did not qualify as a “crime of violence.” During the George Floyd protests, defendant and his friends destroyed police property, including throwing Molotov cocktails at police cars. Among his other charges, defendant was charged with possessing a “destructive device” in connection with a crime of violence. The district court ruled that defendant’s arson charges were not crimes of violence because they could be committed recklessly and therefore did not involve use of force against another person or property.

Where arson could be committed by consciously creating a likelihood of harm to property, the district court correctly concluded that the federal arson statute charged against defendant could not satisfy the “crime of violence” requirement.

Judgment is affirmed.

U.S. v. Lung’aho (MLW No. 80156/Case No. 22-3168 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Stras, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Marshall, J.

Possession of Firearm by Felon

Crime of Violence; Intentionally Causing Bodily Injury

Defendant appealed the sentence imposed following his guilty plea to being a felon in possession of a firearm. Defendant challenged the district court’s imposition of an additional history point for a “crime of violence” based on his Iowa state conviction for intentionally causing bodily injury, arguing that his conviction did not qualify as a “crime of violence.”

Where a person could not willfully cause bodily injury without intentionally employing force necessary to cause injury, defendant’s conviction under Iowa law for willful injury satisfied the “force” requirement for a “crime of violence.”

Judgment is affirmed.

U.S. v. Cungtion (MLW No. 80162/Case No. 22-1675 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Stras, J.) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

Possession with Intent to Distribute

Motion for Judgment of Acquittal; Sufficiency of Evidence

Defendant appealed the denial of his renewed motion for judgment of acquittal following the jury’s verdict finding him guilty of possession with intent to distribute and aiding and abetting. Defendant argued that the evidence at trial was insufficient to sustain his conviction.

Where the evidence was sufficient to permit the jury to find that defendant aided his girlfriend in trafficking drugs by being present at the meeting to set up the drug shipment and driving the rental vehicle loaded with the drugs, the district court correctly declined to grant defendant judgment of acquittal.

Judgment is affirmed.

U.S. v. Romero (MLW No. 80163/Case No. 22-2665 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Strand, J.

Revocation of Supervised Release

Imposition of Prison Term; Weighing of Sentencing Factors

Defendant appealed the prison sentence imposed by the district court following the revocation of his supervised release. Defendant argued that the district court abused its discretion by giving significant weight to sentencing factors it shouldn’t have.

Where the district court focused primarily on defendant’s history and personal characteristics, including his numerous drug test failures and inability to take advantage of opportunities, the district court’s reference to the need to promote respect for the law and provide just punishment constituted a passing reference rather than an indication that the district court relied on that factor.

Judgment is affirmed.

U.S. v. Villareal (MLW No. 80159/Case No. 23-1189 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Holmes, J.

Second-Degree Murder

Upward Departure; Life Sentence

Defendant appealed the sentence imposed following her guilty plea to second-degree murder and child abuse offenses. The district court imposed an upward departure for physical injury, extreme psychological injury, and extreme conduct, sentencing defendant at the top of the Guidelines range to life imprisonment. The district court noted it would have imposed a life sentence regardless of the Guidelines range.

Where the district court did not abuse its discretion in imposing an upward departure after finding a sufficient factual basis for the departure, it did not err in imposing a life sentence after adequately explaining its sentencing decision.

Judgment is affirmed.

U.S. v. Longie (MLW No. 80164/Case No. 22-2778 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of North Dakota, Welte, J.

State Death Row Inmate

Clemency Application; Jurisdiction to Order State Officials

Plaintiff, an inmate on Missouri death row, appealed the district court’s denial of his motion to order the Missouri DOC to transfer him for an MRI in support of his state clemency proceedings.

Where federal statutes facilitating funding for state correctional operations did not imply a grant of jurisdiction to order state officials to facilitate a state inmate’s clemency application, the district court correctly concluded that it was without authority to grant plaintiff’s requested relief.

Judgment is affirmed.

Dorsey v. Vandergriff (MLW No. 80158/Case No. 23-1078 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Missouri, Ketchmark, J.

Supervised Release

Revocation; Substantive Reasonableness of Sentence

Defendant appealed the sentence imposed following the revocation of his supervised release, challenging the substantive reasonableness of the sentence. The district court varied upward from the Guidelines range after remarking that defendant’s criminal history category was too low.

Where the district court’s sentencing decision indicated that it considered all the relevant statutory sentencing factors, there was no abuse of discretion in giving greater weight to negative factors to support an upward variance.

Judgment is affirmed.

U.S. v. Hayes (MLW No. 80165/Case No. 22-2897 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of South Dakota, Kornmann, J.

Supervised Release

Revocation; Substantive Reasonableness of Sentence

Defendant appealed the sentence imposed following the revocation of his supervised release, challenging the substantive reasonableness of the sentence.

Where the district court properly considered the statutory sentencing factors and imposed a below-Guidelines sentence, defendant’s sentence was presumptively reasonable.

Judgment is affirmed.

U.S. v. Holmes (MLW No. 80145/Case No. 23-1526 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Missouri, Phillips, J.

Voluntary Manslaughter

Upward Departure; Substantive Reasonableness of Sentence

Defendant appealed the sentence imposed following his guilty plea to voluntary manslaughter and discharge of a firearm during a crime of violence. The district court varied upward on the voluntary manslaughter conviction and imposed the mandatory minimum sentence for the firearm conviction, noting that there was uncharged conduct indicating that defendant committed the homicide in the “heat of passion” while defendant could have also been charged with other offenses.

Where defendant avoided a second-degree murder charge as part of his plea agreement and the evidence indicated that defendant shot the victim while he had his hands up and pleaded for defendant not to shoot, the district court did not err in varying upward based on uncharged conduct, as any error was harmless due to other crimes that could have been charged based on the uncontested evidence.

Judgment is affirmed.

U.S. v. Garnier (MLW No. 80160/Case No. 22-2702 – 5 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of South Dakota, Viken, J.

Employer-Employee

Age/Race Discrimination

Failure to Promote; Collective Bargaining Agreement

Plaintiff appealed the dismissal of her age/race discrimination complaint. Plaintiff, a Hispanic woman in her forties, had worked for defendant for over a decade. Plaintiff was a member of a union that had a CBA with defendant; the CBA had a provision governing the application process for open positions. Since the CBA took effect, defendant changed its process for open position applications, switching to an online tool to collect applications. When plaintiff applied for two supervisor positions, she faxed her application rather than using the online tool, meaning her name never made it onto the list of candidates. However, plaintiff filed suit, alleging that age and race discrimination were to blame for her failure-to-promote because the selected candidates were white, younger, or both. Defendant successfully dismissed on grounds that the Railway Labor Act required arbitration for interpretation of CBAs.

Where an interpretation of the CBA’s application process would be necessary to determine whether plaintiff had complied with the process requirements, the district court correctly concluded that plaintiff’s case was subject to arbitration.

Judgment is affirmed.

Avina v. Union Pacific Railroad Co. (MLW No. 80144/Case No. 22-2376 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Stras, J.) Appealed from U.S. District Court, Western District of Missouri, Ketchmark, J.

Environmental

Water Supply Project

Water Supply Act; Administrative Procedure Act

Plaintiff appealed the grant of summary judgment for defendants. The U.S. Department of Interior entered a contract with Garrison Diversion Conservancy District, a North Dakota governmental agency, for a water supply project, under which the Bureau of Reclamation would provide Garrison Diversion with access to a certain amount of water from the Missouri River to central and eastern North Dakota during times of water scarcity. The state of Missouri challenged the project under the Water Supply Act, the National Environmental Policy Act, and the Administrative Procedure Act. The district court granted summary judgment for the Bureau and Garrison Diversion.

Where the proposed water supply project fell within the scope of a previously Congressionally-approved water project, the Water Supply Act did not require the Bureau to seek additional approval from Congress, nor was the decision not to issue an environmental impact statement arbitrary or capricious where the environmental impact of the project was minimal.

Judgment is affirmed.

State of Missouri ex rel. Bailey v. U.S. Department of Interior (MLW No. 80161/Case No. 21-3408 – 15 pages) (U.S. Court of Appeals, 8th Circuit, Grasz, J.) Appealed from U.S. District Court, Western District of Missouri, Laughrey, J.

Immigration

Withholding of Removal

Asylum; Cognizability of Social Groups

Petitioner appealed the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. Petitioner, a rancher from Mexico, claimed that he feared returning to Mexico due to numerous kidnappings and violent acts committed by gangs against his family. An IJ denied petitioner’s application, concluding that his proposed social groups were not cognizable and that he had failed to prove a nexus between those groups and the alleged persecution he experienced or feared upon returning. The IJ also found no evidence that petitioner would be tortured with the acquiescence of public officials if returned to Mexico.

Where petitioner had failed to prove his membership in several of his proposed groups or that those proposed groups lacked requisite particularity, the IJ correctly denied asylum and protection under CAT since petitioner had provided no evidence that Mexican officials willfully turned a blind eye to gang-inflicted torture.

Petition is denied.

Uriostegui-Teran v. Garland (MLW No. 80155/Case No. 22-2472 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Petition for Review of an Order of the Board of Immigration Appeals.

Real Property

Right of Way

Tribal Land; Smoking Ban

Defendants appealed the district court’s grant of a preliminary injunction in favor of plaintiff. Plaintiff leased a right-of-way over land allotted to defendants on the Fort Berthold Indian Reservation. The parties agreed to a condition of the right-of-way that banned smoking. Defendants sued plaintiff in tribal court, alleging that it breached the smoking ban. Plaintiff unsuccessfully moved to dismiss the tribal court action for lack of jurisdiction. During the pendency of that action before a tribal appellate court, plaintiff filed the present suit in district court to obtain a preliminary injunction. The district court granted relief, concluding that plaintiff had exhausted its tribal court remedies and that the tribal court lacked jurisdiction.

Where plaintiff had yet to exhaust its tribal court remedies due to the pendency of defendants’ action before the tribal appellate court, the district court prematurely ruled on the question of tribal court jurisdiction.

Judgment is vacated and case is remanded.

WPX Energy Williston, LLC v. Jones (MLW No. 80143/Case Nos. 22-2020 & 22-2025 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, District of North Dakota, Hovland, J.