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IMMIGRATION
Tewabe v. Gonzales, April 26
An Ethiopian citizen and flight attendant for
Ethiopian airlines testified that after she spoke out against the
prime minister at a neighborhood meeting, she arranged to take a
flight to the US that night, and upon arrival learned that her family
had been arrested. She applied for asylum the next day. The circuit
holds that the immigration judge did not provide specific and cogent
reasons to discredit petitioner's testimony. Vacated.
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ARBITRATION
Wachovia Bank National Association v. Schmidt, April 25
Schmidt claimed that the bank induced him to
enter into an illegal tax shelter and the bank sued to compel
arbitration based on arbitration clauses in two separate agreements
Schmidt signed. The circuit holds that the dispute arises out of the
bank's financial adviser relationship with Schmidt rather than its
lender relationship, and thus the arbitration clause in the note
signed by Schmidt does not apply. The bank was not a signatory to the
stock warrant signed by Schmidt and thus has no right to enforce the
arbitration clause contained in it. Denial affirmed.
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ANTITRUST
Kloth v. Microsoft Corp., April 18
The circuit finds that the lower court correctly
held that 26 indirect purchasers of Microsoft software were barred
from recovery of illegal pass-through overcharges and lacked standing
to assert claims for monetary damages. Affirmed.
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FAMILY LAW
Bader v. Kramer, April 17
The district court found that a father was not
entitled to relief under the Hague Convention for the return of his
daughter from Germany because he lacked sufficient custody rights. The
circuit holds that the visitation schedule did not alter the
presumption of joint custody. Reversed.
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EDUCATION
Jennings v. University of North Carolina, April 11
The circuit finds that although the male coach of
the women's soccer team used vulgar language and participated in
sexual banter at practice, he never touched or threatened plaintiff
and his conduct did not rise to the level of harassment. Dismissal
affirmed.
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LENDING
Wilson v. Draper & Goldberg, April 5
The circuit holds that
trustees, including attorneys, that act to foreclose on a property
pursuant to a deed of trust can be "debt collectors" under the Fair
Debt Collection Practices Act, and lawyers who regularly engage in
consumer debt collection activity are not exempt from liability merely
because the collection activity consists of litigation.
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INEFFECTIVE ASSISTANCE
Lenz v. Washington, April 11
The circuit finds that defendant's transfer to a
super-maximum security facility 250 miles away after he fatally
stabbed a fellow inmate did not prevent the effective assistance of
his counsel or prevent a fair trial. Death sentence affirmed.
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SENTENCING
US v. Davenport, April 21
Defendant received ten years based under a guilty
plea and an assessment of 26 criminal history points for his role as
ringleader of a nationwide pickpocketing ring that traveled to
sporting events to steal and use credit cards. The circuit finds that
a sentence above the advisory guideline range was warranted, since
defendant's criminal history points were double the number needed to
place him in the highest criminal history category, but holds that 120
months, more than three times the top of the advisory guideline range,
was unreasonable. Remanded for resentencing.
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INSURANCE, CONSTRUCTION
French v. Assurance Company of America, April 27
Plaintiff's home sustained water damage after the
exterior was stuccoed, costing more than $500,00 to repair. The
circuit holds that the contrator's standard commercial general
liability policy does not provide liability coverage to correct
defective workmanship by the subcontractor, but does provide coverage
for the cost to remedy the damage to the walls and structure of the
home.
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ATTORNEY FEES
Goldstein v. Moatz, April 20
Based upon declarations from the Patent and
Trademark Office that it had decided not to pursue formal disciplinary
action against a patent attorney, the district court dismissed
plaintiff's complaint for an injunction to stop the investigation as
moot and denied his application for attorney fees because he was not a
"prevailing party." The circuit holds that plaintiff did not obtain
the necessary "court-ordered relief," and declines to apply a
"tactical mooting exception" as necessary where a defendant has agreed
to plaintiff's requested relief in order to avoid an adverse fees and
costs award. Affirmed.
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BANKRUPTCY
Hazelbaker v. Thompson, April 18
Plaintiff re-leased oil and gas rights to a third
party after the original lessee ceased to pay royalties, and failed to
seek a stay of the trustee's proposed sale after the original lessee
filed a bankruptcy petition. The circuit holds that the bankruptcy
court properly authorized the assumption and sale of the lease.
Affirmed.
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INSURANCE
Travelers Property v. Liberty Mutual Insurance, April 12
The circuit finds that a property manager was an
"additional insured" under the policy defendant issued to the property
owner where an injury occurred, and accordingly owed a share of
defense costs in the tort action. Reversed.
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SENTENCING
USA v. Johnson, April 7
The circuit finds that the aggregating of the amount
of crack cocaine involved in defendant's three-count indictment for
sentencing purposes was within the drug quantity grouping provision of
the Sentencing Guidelines. Sentence affirmed.
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HABEAS
In Re Williams, April 10
The circuit holds that petitioner's application
for leave to file a successive habeas petition is unnecessary so long
as the petition in the district court does not include claims
previously denied on the merits.
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SENTENCING
US v. Williams, April 11
The circuit holds that defendant's sentence of 36
months for check forgery did not violate Booker. Affirmed.
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SENTENCING
US v. McQueen, April 25
Police found a handgun in defendant's car during
a consensual search and he was convicted as a felon in possession of a
firearm. The district court declined to sentence him as an armed
career criminal, which carries a minimum sentence of fifteen years,
and imposed 120 months. The circuit holds that even though defendant's
civil rights were restored for all his prior state offenses, he was
convicted of robbery, a violent felony, during the time he was
prohibited from possession of a firearm. That conviction and two
serious drug offenses constitute three predicate offenses that
requires an armed career criminal sentence. Vacated.
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EMPLOYMENT
Yashenko v. Harrah's NC Casino Co., April 27
Plaintiff's position was eliminated due to
restructuring while he was out on approved medical leave, and after he
declined other positions, he was fired. The circuit holds that the
Family Medical Leave Act does not provide an employee an absolute
right to restoration to his prior position. Summary judgment for
defendant affirmed.
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IMMIGRATION
Barry v. Gonzales, April 19
A Guinean woman claimed that her first attorney
failed to discover her female genital mutilation and thus new evidence
existed to reopen her failed claims for asylum. J. Gregory finds that,
in her motion to reopen based on ineffective assistance of counsel,
the woman failed to meet the requirements that an alien provide an
affidavit that described her agreement with counsel, inform counsel of
the allegations and provide counsel with an opportunity to respond and
indicate whether a complaint has been filed with the appropriate
disciplinary authorities, and if one has not been filed, explain why
not. Affirmed.
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IMMIGRATION
Gandziami-Mickhou v. Gonzales, April 17
The circuit finds petitioner's request for asylum
based on her and her family's involvement with the Congolese Movement
for Democracy lacks credibility to overcome her removability, since
her previous application did not describe any of the torture she now
asserts. Affirmed.
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REHEARING
DENIED
Robinson v. Polk, April 6
Petition for rehearing en banc denied.
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SENTENCING
USA v. Milam, April 6
The circuit holds that the court's use of facts
stated in the pre-sentence report to enhance defendant's sentence was
a Booker violation. Vacated.
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DOUBLE JEOPARDY, DRUG OFFENDER, TAX
Nivens v. Gilchrist, April 11
The circuit holds that the assessment of a tax
for possession of ecstasy did not constitute a criminal penalty for
purposes of double jeopardy, and defendants' petition for an
injunction to prevent their criminal prosecution was correctly
dismissed. Affirmed.
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SENTENCING
US v. Milam, April 11
USA v. Milam, April 6
[Amended opinion.] The circuit holds that the
court's use of facts stated in the presentence report to enhance
defendant's sentence was a Booker violation. Vacated.
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SENTENCING, IMMIGRATION
US v. Montes-Pineda, April 24
A Honduran citizen previously deported three
times was sentenced to 46 months after he pleaded guilty to unlawful
reentry after deportation for an aggravated felony conviction. The
circuit finds that the sentence is at the low end of the applicable
advisory Guidelines range and is not unreasonable, especially in light
of the nature of the offense and the need to deter a chronic offender.
Affirmed.
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