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Case Digests — March 31-April 4, 2014

By: WISCONSIN LAW JOURNAL STAFF//April 4, 2014//

Case Digests — March 31-April 4, 2014

By: WISCONSIN LAW JOURNAL STAFF//April 4, 2014//

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Wisconsin Law Journal — Case Digests — March 31-April 4

Wisconsin Court of Appeals

Civil
Juvenile – TPR — failure to assume parental responsibility

Maria A. appeals an order terminating her parental rights to her daughter, Aliyana G.-B. Maria argues the evidence was insufficient to establish she failed to assume parental responsibility of Aliyana. Maria also argues the Barron County Department of Health and Human Services violated her substantive right to due process. We disagree and affirm. This opinion will not be published.

2013AP2735 In re the termination of parental rights to Aliyana G.-B.

Dist III, Barron County, Babbitt, J., Stark, J.

Attorneys: For Appellant: Krahn, Ellen J., Madison; For Respondent: Harrington, Andrew Joseph, Barron

Wisconsin Court of Appeals

Civil
Juvenile – TPR — voluntariness

Mareza L. appeals the order denying her motion to reopen a judgment for termination of parental rights. We affirm. This opinion will not be published.

2013AP1382 In re the termination of parental rights to Joseph L.

Dist I, Milwaukee County, DiMotto, J., Kessler, J.

Attorneys: For Appellant: Seifert, Joseph, Milwaukee; For Respondent: Tess-Mattner, Kent A., Brookfield

Wisconsin Court of Appeals

Civil
Municipalities — notice of claim

Christopher Brekken appeals an order dismissing his tort action against Bruce Landgraf. The circuit court dismissed the suit because Brekken failed to comply with Wis. Stat. § 893.82, the state employee notice of claim statute. Asserting that Landgraf was a “loaned employee” of Milwaukee County, Brekken argues the circuit court should have applied Wis. Stat. § 893.80, the municipal employee notice of claim statute. We reject Brekken’s arguments and affirm the order. This opinion will not be published.

2013AP1371 Brekken v. Landgraf

Dist III, Barron County, Doyle, J., Per Curiam

Attorneys: For Appellant: Schwartz, Michael D., Schwartz, Brandon M., Oakdale, MN; For Respondent: Finkelmeyer, Corey Francis, Madison

Wisconsin Court of Appeals

Civil
Civil Procedure — judicial bias

James Diggs, pro se, appeals an order granting a name change for his child under the age of 14. Diggs argues the circuit court was biased, Diggs was entitled to the same procedural safeguards as in a termination of parental rights case, and the court erroneously determined Diggs’ consent was not required for the name change. We reject Diggs’ arguments and affirm. This opinion will not be published.

2013AP1013 In the matter of the change of name of Austin Diggs: Wieseler v. Diggs

Dist III, Outagamie County, Gage, J., Per Curiam

Attorneys: For Appellant: Diggs, James, pro se; For Respondent: Brown, David D., Green Bay

Wisconsin Court of Appeals

Civil
Administrative Law — judicial review — timeliness

Kenneth J. Kraemer, pro se, appeals the circuit court’s order dismissing his action. He sought judicial review of a decision of the Wisconsin Department of Children and Families substantiating charges that he sexually abused a child and therefore was ineligible for licensing or employment in certain settings involving children. The issue is whether the circuit court properly dismissed Kraemer’s petition for judicial review. We affirm. This opinion will not be published.

2012AP718 Kraemer v. Wisconsin Department of Children and Families, et al.

Dist I, Milwaukee County, Amato, J., Per Curiam

Attorneys: For Appellant: Kraemer, Kenneth J., pro se; For Respondent: Gibson, Charlotte, Madison

Wisconsin Court of Appeals

Civil
Tax — property taxes — objection

Where the record is silent on whether a taxpayer’s challenge to the previous year’s assessment was still pending, the case must be remanded for factfinding.

“The record before us reflects that Walgreen meets the first two conditions. Walgreen filed timely objections to its 2010 assessments and the 2011 assessments were for the same amounts as the previous year. The record provided to us, however, does not reflect the status of Walgreen’s 2010 objections as of May 11, 2011, the date of the first scheduled meeting of the BOR to hear objections to the 2011 assessments. If Walgreen and the City reached a settlement on the 2010 assessments prior to May 11, 2011, then Hermann applies; if Walgreen did not appeal the BOR’s decision on the 2010 assessments, then Hermann applies; if Walgreen did pursue an appeal of the BOR’s decision on the 2010 assessments and that appeal was rejected and not appealed (and the appeal time has run) to the court of appeals, then Hermann applies; if the BOR has not yet completed the evidentiary hearing on the 2010 assessments under WIS. STAT. §70.47(8) or has not rendered a decision under §70.47(12) or if the 2010 objections were pending in the circuit court or court of appeals as of May 11, 2011, then Duesterbeck applies.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1610 Walgreen Co. v. City of Oshkosh

Dist. II, Winnebago County, Gritton, J., Reilly, J.

Attorneys: For Appellant: Millis, Don M., Madison; Polakowski, Jessica Hutson, Madison; For Respondent: Carlson, Richard J., Appleton; Madison, Bree A., Appleton

Wisconsin Court of Appeals

Civil
Juveniles — waiver

This is a review of a juvenile court order waiving Kadeem R. into adult court. Whether to waive jurisdiction, once prosecutive merit is found, is within the discretion of the juvenile court. Because the court did not erroneously exercise its discretion, we must affirm. This opinion will not be published.

2013AP2769 In the interest of Kadeem R.: State v. Kadeem R.

Dist II, Racine County, Flancher, J., Brown, C.J.

Attorneys: For Appellant: McClendon, Jamie, Racine; For Respondent: Weber, Gregory M., Madison; Balter, Corinne L., Racine

Wisconsin Court of Appeals

Civil
Civil Procedure — frivolous actions — attorney fees

Catherine Conrad appeals a civil judgment dismissing multiple claims of action that she, Rodney Rigsby, and RigRad Music & Publishing, LLC brought against David and Sharon Batz and Shanauba Productions (collectively, Batz). The judgment also ordered Conrad, Rigsby, and RigRad to pay Batz over $7,000 in costs and attorney fees for having filed and maintained a frivolous lawsuit. Batz asks this court to declare Conrad’s appeal frivolous as well, and seeks an additional award of costs and attorney fees. For the reasons discussed below, we affirm the circuit court’s decision, declare the appeal frivolous, and remand for a determination of the amount of attorney fees incurred upon appeal. This opinion will not be published.

2013AP1367 Conrad et al. v. Batz et al.

Dist IV, Dane County, Sumi, J., Per Curiam

Attorneys: For Appellant: Conrad, Catherine, pro se; For Respondent: Gallagher, Karen M., Madison; Scholl, Amy F., Madison;

Wisconsin Court of Appeals

Civil
Property – foreclosure — equitable assignment

Calvin Calkins appeals a circuit court order and judgment of foreclosure entered against him and in favor of Nationstar Mortgage, LLC, after a trial. On appeal, Calkins makes a number of arguments challenging the judgment of foreclosure and the order dismissing Calkins’ counterclaims alleging that Nationstar’s predecessor in interest, Aurora Loan Services, LLC, breached a contractual obligation to enter into a permanent loan modification with Calkins. For the reasons set forth below, we affirm the judgment and order of the circuit court. This opinion will not be published.

2012AP2398 Nationstar Mortgage LLC v. Calkins, et al.

Dist IV, Dane County, Niess, J., Per Curiam

Attorneys: For Appellant: LaCava, Susan, Madison; For Respondent: Salberg, Amy Marie, West Bend; Posnanski, Timothy H., Milwaukee

Wisconsin Court of Appeals

Civil
Property – takings

A municipality that maintains a dam, but which did not engage in any action that resulted in the destruction of neighboring property, did not engage in a taking of property and is not liable for compensation.

“Further, even putting aside the lack of authority, Fromm fails to provide a convincing rationale to support the creation or application of a per se rule when it comes to dams and flooding, which would appear on its face to contravene the general requirement, discussed above, that there can be no taking without a causal government action. The closest he comes is to assert that the taxpayers should, in all fairness, compensate victims of flooding associated with government-operated dams where a dam remains standing and in contrast affected property owners suffer heavy losses. While this rationale has appeal where the government acted in a manner that took an individual’s property for the good of the public, Fromm fails to explain how this rationale supports a per se rule in the instant case, where he can identify no government action that caused the property loss.”

Affirmed.

Recommended for publication in the official reports.

2013AP14 Fromm v. Village of Lake Delton

Dist. IV, Sauk County, Evenson, J., Blanchard, J.

Attorneys: For Appellant: Grimmer, Kim, Madison; For Respondent: Waskowski, Ted, Madison; Vergeront, Margaret, Madison

Wisconsin Court of Appeals

Civil
Juveniles – TPR — denial of physical placement

In these consolidated appeals, Latasha G. appeals from orders of the circuit court terminating her parental rights to Ivyonna S. and Ceceilia S. The ground for termination at issue in these appeals is Wis. Stat. § 48.415(4), continuing denial of periods of physical placement. Latasha argues that the circuit court violated her right to substantive due process by finding that grounds existed to terminate her parental rights on that basis. Affirmed. This opinion will not be published.

2014AP45, 2014AP46 In re the termination of parental rights to Ivyonna S. et al.: Dane County Department of Human Services v. Latasha G.

Dist IV, Dane County, Flanagan, J., Sherman, J.

Attorneys: For Appellant: Hagopian, Suzanne L., Madison; For Respondent: Talis, John C., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — plea withdrawal — ineffective assistance

Iven Lee Caldwell appeals from an amended judgment of conviction, entered upon his no-contest plea, on one count of first-degree intentional homicide. He also appeals from an order denying his most recent postconviction motion to withdraw his plea and have a new trial. Caldwell contends that his trial, original postconviction, and resentencing attorneys were all ineffective and that the circuit courts erred in refusing to allow him to withdraw his plea prior to sentencing. We conclude that the circuit courts properly exercised their discretion in refusing the withdrawal requests and that the attorneys were not ineffective. Therefore, we affirm the judgment and order. This opinion shall not be published.

2013AP311-CR State v. Caldwell

Dist I, Milwaukee County, Martens, Wagner, JJ., Per Curiam

Attorneys: For Appellant: Auberry, Ann, Wauwatosa; For Respondent: Loebel, Karen A., Milwaukee; Weinstein, Warren D., Madison

Wisconsin Court of Appeals

Criminal
Sexually Violent Persons — discharge hearings

Scott Maher appeals an order denying his petition for discharge from civil commitment as a sexually violent person under Wis. Stat. ch. 980 (2011-12) without holding a discharge hearing. Maher argues that the circuit court’s denial of his petition without holding a discharge hearing was based on an impermissible weighing of the relative persuasiveness of conflicting examination reports of experts. We agree, and accordingly reverse. Not recommended for publication in the official reports.

2013AP1815 In re the commitment of Scott Maher: State v. Maher

Dist IV, Columbia County, Voigt, J., Blanchard, P.J.

Attorneys: For Appellant: Lang, Donald T., Madison; For Respondent: Kohlwey, Jane E., Portage; Remington, Christine A., Madison

Wisconsin Court of Appeals

Criminal
Evidence – relevance — undue prejudice

Cody Lee Cromwell appeals a judgment of conviction for strangulation/suffocation and misdemeanor battery, both as a repeater. He argues that the trial court erroneously exercised its discretion in allowing the jury to hear recorded phone calls he made from the jail and by sending the victim’s written statement to police into the jury room. He also requests a new trial under Wis. Stat. § 752.35 (2011-12), on the ground that the real controversy was not fully tried. We affirm the judgment. This opinion will not be published.

2012AP1595-CR State v. Cromwell

Dist IV, Grant County, Day, J., Per Curiam

Attorneys: For Appellant: Hintze, Donna L., Madison; For Respondent: Whelan, Maura F.J., Madison; Riniker, Lisa A., Lancaster

Wisconsin Court of Appeals

Criminal
Delivery of cocaine — sufficiency of the evidence — venue

Jorge Arenas appeals from a judgment, entered upon a jury verdict, convicting him of being party to a crime of delivering cocaine. He contends that the matter should have been dismissed in the first instance for lack of venue and then that there was insufficient evidence to establish his participation in the crime. Both his arguments fail. We affirm. This opinion will not be published.

2013AP1475 State v. Arenas

Dist II, Racine County, Boyle, J., Per Curiam

Attorneys: For Appellant: Easton, Joseph George, Kenosha; For Respondent: Balistreri, Thomas J., Madison; Chiapete, W. Richard, Racine

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion

The State of Wisconsin appeals from an order suppressing evidence obtained from the arrest of Matthew Moskopf in this operating a motor vehicle while intoxicated case. The arresting officer received information from dispatch, including the fact that Moskopf was “highly intoxicated,” and pulled him over. The people who called 911 about Moskopf did not say that he was intoxicated. The circuit court granted Moskopf’s motion to suppress, reasoning that neither dispatch nor the arresting officer had reason to suspect that Moskopf was intoxicated. We conclude that the arresting officer had reasonable suspicion to stop Moskopf based on reasonable inferences from the collective knowledge of the police department. This opinion will not be published.

2013AP771-CR State v. Moskopf

Dist II, Kenosha County, Rossell, J., Neubauer, P.J.

Attorneys: For Appellant: Weber, Gregory M., Madison; Jay, Annie, Kenosha; For Respondent: Easton, Joseph George, Kenosha

Wisconsin Court of Appeals

Criminal
Criminal Procedure — mental health records

Aaron Heroux appeals from a judgment convicting him of repeated sexual assault of the same child after a jury trial and from an order denying his postconviction motion. On appeal, Heroux challenges the circuit court’s refusal to grant him access to the victim’s privileged treatment and therapy records, argues that he should have been convicted under a newer version of the applicable statute, and claims that he should be resentenced. None of these arguments has merit. We affirm. This opinion will not be published.

2012AP2420-CR State v. Heroux

Dist II, Ozaukee County, Wolfgram, J., Per Curiam

Attorneys: For Appellant: Lee, Esther Cohen, Milwaukee; For Respondent: Gerol, Adam Y., Port Washington; Burgundy, Sarah, Madison

U.S. Supreme Court

Civil
Transportation — preemption

The Airline Deregulation Act of 1978 pre-empts a state-law claim for breach of the implied covenant of good faith and fair dealing if it seeks to enlarge the contractual obligations that the parties voluntarily adopt.

Because respondent’s implied covenant claim seeks to enlarge his contractual agreement with petitioners, it is pre-empted by §41713(b)(1). Under Minnesota law, which controls here, the implied covenant must be regarded as a state-imposed obligation. Minnesota law does not permit parties to contract out of the covenant. And when a State’s law does not authorize parties to free themselves from the covenant, a breach of covenant claim is pre-empted under Wolens. As an independent basis for this conclusion, if, as Minnesota law provides, the implied covenant applies to “every contract” except employment contracts for “policy reasons,” then the decision not to exempt other types of contracts must likewise be based on a policy determination, namely, that the policy reason for the employment contract rule does not apply in other contexts.

695 F. 3d 873, reversed and remanded.

12-462 Northwest Inc. v. Ginsberg

Alito, J.

U.S. Supreme Court

Civil
Constitutional Law — First Amendment — campaign contributions — aggregate limits

The aggregate limits on campaign contributions in the Federal Election Campaign Act do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance.

This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. See Davis, supra, at 741. Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U. S. 449, 457 (opinion of ROBERTS, C. J.).

893 F.Supp.2d 133, reversed and remanded.

12-536 McCuthcheon v. FEC

Roberts, C.J.; Thomas, J., concurring; Breyer, J., dissenting.

U.S. Court of Appeals for the Seventh Circuit

Civil
Immigration — relief from removal

Prosecutorial discretion in immigration enforcement is not subject to judicial review.

“The Patels offer two replies, but both are unavailing. First, they argue that, even if the Board properly denied their motion, the Board should have reopened the proceedings sua sponte. But we do not review the Board’s decisions not to reopen sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir. 2013); Anaya–Aguilar v. Holder, 683 F.3d 369, 372–73 (7th Cir. 2012). Second, they insist that, despite the untimeliness of their motion, the Board should have reopened their case as a favorable exercise of prosecutorial discretion, following the advice in the memorandum from Immigration and Customs Enforcement. This contention is flawed on several levels. The Board is not empowered to exercise prosecutorial discretion in agency enforcement of immigration laws. See Kim v. Holder, 737 F.3d 1181, 1185 (7th Cir. 2013). Also, government decisions about prosecutorial discretion in immigration enforcement are not subject to judicial review. Id. Moreover, the memorandum explicitly states that it does not create any rights or benefits enforceable at law. Finally, the Patels have never explained how a favorable exercise of discretion is the proper reward for their decision to flout the grant of voluntary departure in 2002, the purpose of which was to facilitate removal ‘without requiring the agency and courts to devote resources to the matter.’ Alimi v. Ashcroft, 391 F.3d 888, 892 (7th Cir. 2004).”

Petition Denied.

13-2442 Patel v. Holder

Petition to Review an Order of the Board of Immigration Appeals, Rovner, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Employment — public employment — due process — pre-termination hearing

Where a terminated employee alleges that additional grounds for dismissal were added after his pre-termination hearing, the district court erred in granting the employer’s motion to dismiss his complaint alleging lack of due process.

“Turning to Carmody’s second theory on the pre-termination process, the later-added charge for failure to report a security breach, we also agree with Carmody at the pleadings stage that this charge may have been sufficiently distinct from the original charges that he did not receive fair notice before the July 28 meeting that he faced this charge. Relying on a new charge without providing a meaningful opportunity to respond violates due process. See Staples v. City of Milwaukee, 142 F.3d 383, 384, 387 (7th Cir. 1998) (reversing grant of summary judgment for employer because employee was informed of one grievance before a pre-termination meeting but not another and arguably had no meaningful opportunity to respond to new charge); Peery v. Brakke, 826 F.2d 740, 743–44 (8th Cir. 1987) (reversing judgment notwithstanding the verdict for employer because employee had notice of only some charges against him and was not ‘given any opportunity to respond to the new charges before being fired’); see also Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (‘Procedural due process guarantees are not met if the employee has notice only of certain charges or portions of the evidence and the deciding official considers new and material information.’).”

Affirmed in part, and Reversed in part.

13-2302 Carmody v. Board of Trustees of the University of Illinois

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Hamilton, J.

U.S. Court of Appeals for the Seventh Circuit

Civil
Civil Procedure — class actions

Where the defendant presented no evidence that a class action alleging it sent junk faxes would effectively compel it to settle despite a defense on the merits, the petition to appeal class certification is denied.

“If the expected damages are so great in relation to the defendants’ assets that if the class certification order stands, the defendants may well be forced — even if they have a strong case on the merits — to settle, in order to avoid the risk of a catastrophic judgment, we would give careful consideration to the request for leave to appeal the order. Kohen v. Pacific Investment Management Co., 571 F.3d 672, 677–78 (7th Cir. 2009); Blair v. Equifax Check Services, Inc., 181 F.3d 832, 834–35 (7th Cir. 1999). But the defendants haven’t told us what their assets are — just that the corporate defendant is ‘a small family owned business.’ It is no doubt small in relation to such family-owned businesses as Koch Industries and Walmart, but maybe not so small that a contingent liability of $15 million would force it to settle; it hasn’t settled yet, and this suit will be celebrating its fifth birthday later this year.”

Petition Denied.

14-8004 Chapman v. Wagener Equities Inc.

Petition for Leave to Appeal from the United States District Court for the Northern District of Illinois, Tharp, J., Posner, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Evidence — relevance

In a prosecution for fraud, the court properly admitted photographs of real property taken at the tie of trial, rather than at the time of the alleged fraud.

“Causey raises five issues — four evidentiary and one sentencing — on appeal. First, he argues the court improperly admitted irrelevant and prejudicial photographs taken of the houses around the time of trial rather than at the time of the sale. We reject this argument because the photographs gave the jurors a sense of the size, location and style of the house, and the jurors were repeatedly reminded when the pictures were taken. Second, evidence of a fraudulent sale that took place outside of the conspiracy was properly admitted because Causey placed his intent to defraud and knowledge of the fraudulent scheme at issue by claiming he was an innocent pawn, and this sale demonstrated his fraudulent knowledge and intent. Third, a defense witness’s testimony was properly excluded as undisclosed expert testimony because the witness had no personal knowledge of the transactions at issue and was asked instead about industry norms, which is only permissible if a witness is qualified as an expert. Fourth, Causey argues the district court erred in allowing an unqualified co-conspirator to give broad expert testimony and allowing her to testify as both a fact and expert witness without a limiting instruction. Since the witness was never referred to as an expert in front of the jury, there was extensive cross examination about her credentials and the basis for her opinion, and her opinion was not significant to the government’s case, we reject Causey’s arguments. Finally, a two-level sentencing enhancement for being an ‘organizer, leader, manager, or supervisor of the conspiracy’ was properly assessed because Causey was responsible for recruiting the buyers into the conspiracy and exercised control over them during their involvement, which included submitting fraudulent paperwork during closings, and some buyers were also uncharged criminally responsible parties.”

Affirmed.

13-1321 U.S. v. Causey

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Williams, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — mandatory minimums — safety valve

Where the defendant did not truthfully provide information, the district court properly denied safety-valve relief from the mandatory minimum sentence.

“There is no dispute that Sandoval deceived court officers about his identity and citizenship. And the district court did not clearly err in finding that Sandoval failed to express extraordinary acceptance of responsibility for his crime and that he did not truthfully provide all information and evidence related to his criminal conduct at his safety-valve hearing. Therefore, the district court did not err in imposing the obstruction of justice enhancement, withholding credit for acceptance of responsibility, or denying safety-valve relief from the statutory mandatory minimum.”

Affirmed.

13-3050 U.S. v. Sandoval

Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Manion, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — reasonableness

Where the defendant conspired to burn her house down, and filed a frivolous action against her insurance company, an above-guideline sentence of 60 months was appropriate.

“She also argues that the district court did not explain or justify its above-guideline sentence. But the court adequately considered the factors under 18 U.S.C. § 3553(a), see United States v. Hodge, 729 F.3d 717, 721 (7th Cir. 2013), and offered compelling justifications for the sentence, see United States v. Bradley, 675 F.3d 1021, 1025 (7th Cir. 2012); United States v. Johnson, 612 F.3d 889, 896 (7th Cir. 2010). The district judge acknowledged that Hargis has no criminal history and is unlikely to commit future crimes, see 18 U.S.C. § 3553(a)(2)(C). He also considered several letters from Hargis’s family and friends attesting to her good character. But the judge identified several aggravating circumstances. The applicable guideline, see U.S.S.G. § 2K1.3(a)(5), the judge observed, deals with explosive materials and does not appear to be designed to account for arson-for-profit cases like Hargis’s. The judge also remarked that Hargis’s crime was ‘incredible’ because she had schemed and lied to the court, her insurance company, and her own family. See id. § 3553(a)(1). As further evidence of the seriousness of Hargis’s offense, see id. § 3553(a)(2)(A), the judge noted that: She burned down the house that she shared with her two children and contained many of their personal belongings; the fire posed a substantial risk of harm to a neighbor who entered the house in fear that Hargis’s children were inside, as well as the firefighters who responded; and finally, Hargis inflated the amount of loss from the fire, committed perjury, and filed a frivolous lawsuit against her insurance company. Because the district judge discussed factors ‘sufficiently particularized’ to Hargis’s individual circumstances and adequately justified the sentence, we find no error. See United States v. Stinefast, 724 F.3d 925, 932–33 (7th Cir. 2013) (quotation marks and citation omitted).”

Affirmed.

12-2153 U.S. v. Hargis

Appeal from the United States District Court for the Southern District of Indiana, Young, J., Rovner, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — crack cocaine

The Fair Sentencing Act applies to defendants sentenced after the Act was passed.

“Island received the pre-FSA mandatory minimum of 240 months after the judge found him accountable for 259 grams of crack cocaine and determined that he had previously been convicted of a drug felony. Under the FSA these findings wouldn’t have been enough: The 240-month mandatory minimum would apply only if Island were responsible for over 280 grams of crack cocaine. See 21 U.S.C. § 841(1)(A)(iii). Island argued at his sentencing hearing that the FSA should apply, a position later vindicated by the Supreme Court in Dorsey. See 132 S. Ct. at 2326. The government concedes that because Island preserved his challenge on this point, he is entitled to resentencing in accordance with the FSA.”

Affirmed in part, and Vacated in part.

11-3888, 12-1048, 12-1267, 12-1538 & 12-2665 U.S. v. Long

Appeals from the United States District Court for the Northern District of Illinois, Zagel, J., Sykes, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Habeas Corpus – AEDPA — statute of limitations

A prisoner’s mental incompetence tolls the statute of limitations under the AEDPA.

“Although the Supreme Court has never addressed that question, courts of appeals regularly hold that mental incompetence justifies the tolling of federal periods of limitations. Barett v. Principi, 363 F.3d 1316, 1319–20 (Fed. Cir. 2004), collects decisions from most circuits. Our own leading decision is Miller v. Runyon, 77 F.3d 189 (7th Cir. 1996), which dealt with tolling the periods for federal employment-discrimination statutes. That there seem to be more recent decisions concerning mental incompetence and tolling under the AEDPA than under all other federal statutes put together may reflect the fact that outside prison an incompetent person often has a guardian, who must adhere to statutory time limits. Mentally incompetent persons in prison, by contrast, usually do not have the benefit of a guardian who attends to their legal problems — nor are prisoners who want to seek collateral relief automatically entitled to appointed counsel. Davis did not have a lawyer until this court issued a certificate of appealability, see 28 U.S.C. §2253(c), and appointed counsel for him under the Criminal Justice Act, 18 U.S.C. §3006A(a)(2)(B). The likelihood that mentally marginal prisoners will lack the assistance of guardians or lawyers means that, for them, it is especially important to follow the norm under which incompetence permits tolling.”

Vacated and Remanded.

13-1326 Davis v. Humphreys

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Easterbrook, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — crack cocaine

When a prisoner’s original Guidelines sentence is below the statutory floor, the minimum becomes the Guidelines sentence and precludes reduction under sec. 3582(c)(2).

“Johnson argues that Poole was superseded by the 2011 amendments to the Sentencing Guidelines, which defined ‘applicable guideline range’ for the first time. He suggests that the new definition includes only the criminal history category and offense level calculations, without consideration of any statutory mandatory minimums. We recently found prisoners whose original Guidelines ranges exceeded the relevant mandatory minimum eligible for reduction under § 3582(c)(2). United States v. Wren, 706 F.3d 861, 864 (7th Cir. 2013). But, at the same time, we noted that when a prisoner’s original Guidelines sentence is below the statutory floor, the minimum becomes the Guidelines sentence and precludes reduction under § 3582(c)(2). Id. Johnson falls into the latter category, and his motion must fail.”

Affirmed.

13-2732 U.S. v. Johnson

Appeal from the United States District Court for the Central District of Illinois, McDade, J., Kanne, J.

U.S. Court of Appeals for the Seventh Circuit

Criminal
Sentencing — restitution

In setting restitution, the district court properly disregarded possible offsets from a pending state court action.

“In sum, the district judge’s restitution award was supported by the preponderance of the evidence regarding O’Hern’s loss and the cash that was returned to him, the only two relevant factors. It would have been error for the district judge to consider other amounts O’Hern may be adjudged to owe Malone or Anderson in a forthcoming state court decision. Since those other amounts were irrelevant, the district judge did not err in failing to postpone the determination of restitution under 18 U.S.C. § 3664(d)(5) to allow time to determine those amounts. Nor did she misunderstand her discretion to apply the complexity exception or abuse her discretion by not doing so where the restitution calculation was straightforward.”

Affirmed.

13-2432 U.S. v. Malone

Appeal from the United States District Court for the Central District of Illinois, Darrow, J., Gilbert, J.

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