Weekly Case Digests — June 2-6, 2014

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Wisconsin Law Journal’s Case Digests, June 2-6, 2014 

CIVIL OPINIONS

CIVIL PROCEDURE

U.S. Court of Appeals for the 7th Circuit

Civil
Civil Procedure — class actions

Where the settlement of a class action effectively provided nothing to class members, it was error for the district court to approve the settlement.

“In sum, almost every danger sign in a class action settlement that our court and other courts have warned district judges to be on the lookout for was present in this case. See, e.g., Synfuel Technologies, Inc. v. DHL Express (USA), Inc., supra, 463 F.3d at 654; Smith v. Sprint Communications Co., 387 F.3d 612, 614 (7th Cir. 2004); Mirfasihi v. Fleet Mortgage Corp., supra, 356 F.3d at 785–86; Reynolds v. Beneficial National Bank, supra, 288 F.3d at 282–83; Crawford v. Equifax Payment Services, Inc., 201 F.3d 877, 880 (7th Cir. 2000); In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935, 946–47 (9th Cir. 2011); Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 525 (1st Cir. 1991). Most were not even mentioned by the district judge, and those that were received a brush-off. The settlement flunked the ‘fairness’ standard by the one-sidedness of its terms and the fatal conflicts of interest on the part of Saltzman and Weiss. This is a case in which ‘the lawyers support the settlement to get fees; the defendants support it to evade liability; the court can’t vindicate the class’s rights because the friendly presentation means that it lacks essential information.’ Kamilewicz v. Bank of Boston Corp., 100 F.3d 1348, 1352 (7th Cir. 1996) (dissent from denial of rehearing en banc).”

Reversed and Remanded.

13-2091, 13-2133, 13-2136, 13-2162 & 13-2202 Eubank v. Pella Corp.

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

CONSUMER PROTECTION

Wisconsin Court of Appeals

Civil
Consumer Protection — Lemon Law

The issue in this case is whether Gerald and Susan Barth made their motor vehicle “available for repair” four times within one year of taking delivery of the vehicle, as required by Wisconsin’s lemon law, Wis. Stat. § 218.0171 (2011-12). A jury found that they did. Ford Motor Company appeals the judgment entered on the jury verdict awarding the Barths $138,657.20 in statutory double damages, attorneys’ fees, expenses, interest, and statutory costs and disbursements. Ford contends that making a vehicle “available for repair” contemplates an express demand for inspection or repair. We disagree and affirm. This opinion will not be published.

2013AP2338 Barth v. Ford Motor Company

Dist II, Washington County, Muehlbauer, J., Per Curiam

Attorneys: For Appellant: Hruz, Thomas M., Milwaukee; Remington, Brian M., Milwaukee; For Respondent: Dowling, Robert G., Waukesha

FAMILY LAW

Wisconsin Court of Appeals

Civil
Family — property division — income

Mary Falstad appeals her judgment of divorce, arguing the circuit court erroneously considered Steven Falstad’s pension as an income stream and not an asset subject to division. We agree and reverse. The matter is remanded for consideration of the pension in the property division. This opinion will not be published.

2013AP2197-FT In re the marriage of: Falstad v. Falstad

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

Attorneys: For Appellant: Smith, Todd A., Rice Lake; For Respondent: Martell, Jason William, Chippewa Falls

INTELLECTUAL PROPERTY

U.S. Supreme Court

Civil
Intellectual Property – patents — inducing infringement

A defendant is not liable for inducing infringement under sec. 271(b) when no one has directly infringed under sec. 271(a) or any other statutory provision.

Liability for inducement must be predicated on direct infringement. Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S. 336, 341. Assuming that Muniauction’s holding is correct, respondents’ method has not been infringed because the performance of all of its steps is not attributable to any one person. Since direct infringement has not occurred, there can be no inducement of infringement under §271(b). The Federal Circuit’s contrary view would deprive §271(b) of ascertainable standards and require the courts to develop two parallel bodies of infringement law. This Court’s reading of §271(b) is reinforced by §271(f)(1), which illustrates that Congress knows how to impose inducement liability predicated on noninfringing conduct when it wishes to do so. The notion that conduct which would be infringing in altered circumstances can form the basis for contributory infringement has been rejected, see Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 526–527, and there is no reason to apply a different rule for inducement.

692 F. 3d 1301, reversed and remanded.

12-786 Limelight Networks Inc. v. Akamai Technologies Inc.

Alito, J.

U.S. Supreme Court

Civil
Intellectual Property – patents — definiteness requirement

A patent is invalid for indefiniteness if its claims, read in light of the patent’s specification and prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.

The Federal Circuit’s standard, which tolerates some ambiguous claims but not others, does not satisfy the statute’s definiteness requirement. The Court of Appeals inquired whether the ’753 patent’s claims were “amenable to construction” or “insolubly ambiguous,” but such formulations lack the precision §112, ¶2 demands. To tolerate imprecision just short of that rendering a claim “insolubly ambiguous” would diminish the definiteness requirement’s public-notice function and foster the innovation-discouraging “zone of uncertainty,” United Carbon, 317 U. S., at 236, against which this Court has warned. While some of the Federal Circuit’s fuller explications of the term “insolubly ambiguous” may come closer to tracking the statutory prescription, this Court must ensure that the Federal Circuit’s test is at least “probative of the essential inquiry.” Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U. S. 17, 40. The expressions “insolubly ambiguous” and “amenable to construction,” which permeate the Federal Circuit’s recent decisions concerning §112, ¶2, fall short in this regard and can leave courts and the patent bar at sea without a reliable compass.

715 F. 3d 891, vacated and remanded.

13-369 Nautilus Inc. v. Biosig Instruments Inc.

Ginsburg, J.

PROFESSIONAL RESPONSIBILITY

Wisconsin Supreme Court

Civil
Professional Responsibility — dismissal

Where any violation of the rules by attorney Roger G. Merry was de minimis, the complaint is dismissed.

“The weakness of the OLR’s case makes it an outlier. The OLR typically pursues claims of failure to cooperate in cases where there is little dispute that the lawyer failed to cooperate. Typically, the failure to cooperate charge accompanies a determination that the lawyer engaged in some underlying misconduct. Here, however, Attorney Merry is exonerated of any underlying misconduct and the information he allegedly withheld from the OLR — the name of the specific person who told him an apparently correct piece of information — appears to be of dubious relevance. While the referee correctly concluded that a violation of SCRs 22.03(6) and 20:8.4(h) occurred, we deem it a de minimis one, insufficient to warrant imposing the recommended discipline with its attendant costs of $13,727.71. We therefore dismiss the complaint.”

2011AP3009-D OLR v. Merry

Per Curiam.

Attorneys: For Appellant: Kolb, Christopher T., Milwaukee; Merry, Roger G., Monroe; For Respondent: Weigel, William J., Madison; Kluck, Kim M., Sun Prairie

Wisconsin Supreme Court

Civil
Professional Responsibility — suspension

Where attorney Colleen R. Tyree suffers from medical incapacity, her license to practice law is indefinitely suspended.

“Based on the agreement of the parties and the findings and recommendation of the referee, which this court approves and adopts, we conclude that Attorney Tyree currently suffers from a medical incapacity that substantially prevents her from performing the duties of an attorney to acceptable professional standards.”

2013AP490-D OLR v. Colleen R.T.

Per Curiam.

PROPERTY

Wisconsin Court of Appeals

Civil
Property — parking easements — condominiums

Metropolitan Place Apartments LLC appeals summary judgment entered in favor of the Metropolitan Place Residential Condominium Owners Association, Inc., and the Metropolitan Place Parking Condominium Owners Association (collectively, the Associations) on the issue of whether a parking easement granting the residents of Metropolitan Place Apartments the right to park in the Metropolitan Place Parking Condominium, a parking structure, is valid. The circuit court determined on summary judgment that the easement was not valid and granted summary judgment in favor of the Associations. For the reasons discussed below, we affirm the circuit court’s determination that summary judgment is appropriate in this case, but do so for reasons different than those articulated by the circuit court. Not recommended for publication in the official reports.

2013AP2295 Metropolitan Place Apartments LLC v. Metropolitan Place Residential Condominium Owners Association Inc. et al.

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

Attorneys: For Appellant: Harrison, Kendall W., Madison; Brown, Dustin B., Madison; For Respondent: Lawless, Lisa M., Milwaukee; Chartre, Lydia J., Milwaukee

Wisconsin Court of Appeals

Civil
Property – foreclosure — standing

This case arises under Wisconsin’s adoption of the Uniform Commercial Code (UCC), Wis. Stat. chs. 401 through 411 (2011-12). Mark Raatz, pro se, appeals a judgment of foreclosure granted in favor of JPMorgan Chase Bank, National Association. We reject Raatz’s contentions that Chase lacked standing to pursue the foreclosure and that the circuit court was biased and denied him due process. We affirm. This opinion will not be published.

2013AP2489 JPMorgan Bank NA v. The Raatz Trust Dated July 26, 1995 et al.

Dist II, Washington County, Martens, J., Per Curiam

Attorneys: For Appellant: Raatz, Mark E., pro se; For Respondent: Finerty, John D., Jr., Milwaukee; Allen, Victor Jay, Milwaukee

TORTS

Wisconsin Supreme Court

Civil
Torts — wrongful death — damage caps

Wisconsin’s damage cap on wrongful death actions does not apply where the plaintiff died out-of-state.

“We agree with Waranka. Michigan Comp. Laws §600.2922 creates a cause of action for wrongful death in Michigan. The statute permits juries to award damages that are ‘fair and equitable.’ Mich. Comp. Laws § 600.2922(6). Wisconsin Stat. §895.04 differs from the Michigan statute in that it places a monetary cap on the amount of non-economic damages a plaintiff may recover. However, as discussed above, Wis. Stat. § 895.04 does not apply independently from Wis. Stat. § 895.03, and Wis. Stat. §895.03 does not apply to deaths caused outside of the state. Thus, there is no applicable wrongful death statute from Wisconsin that conflicts with Michigan’s wrongful death statute.”

Affirmed.

2012AP320 Waranka v. Wadena Ins. Co.

Bradley, J.

Attorneys: For Appellant: Tyndall, Susan R., Waukesha; Jaskulski, Robert L., Milwaukee; For Respondent: Wick, William R., Manitowoc; McNally, Patrick D., Milwaukee; Schmidt, Richard E., Milwaukee; Conway, James O., Sheboygan; Goss, Thomas E., Jr., Milwaukee; Herrick, James C., Jr., Fond du Lac; Cirillo, Corrado, Sheboygan

Wisconsin Court of Appeals

Civil
Torts – negligence — failure to protect — public policy

Alice Golden appeals a judgment entered on a jury verdict that found her negligent for failing to warn or protect her granddaughters, E.S. and S.S., from being sexually assaulted by Alice’s now former husband Kenneth Golden. Alice argues the circuit court erred by failing to dismiss the negligence claims against her on public policy grounds. She asserts allowing recovery in this case would enter a field that has no sensible starting or stopping point. We reject Alice’s argument, and affirm. This opinion will not be published.

2013AP2447 E. S. and S. S., minors by their Guardian ad Litem Anne E. Schmiege vs. Golden

Dist III, Polk County, Galewyrick, J., Per Curiam

Attorneys: For Appellant: Williams, Owen R., Amery; For Respondent: Brose, Michael J., New Richmond; Schmiege, Anne E., New Richmond; Rasmussen, Christine A., New Richmond

TRUSTS AND ESTATES

Wisconsin Court of Appeals

Civil
Trusts and Estates — undue influence

In 2011, Laurence Arnold executed a new will naming his fiancée, Vohnie Rabuck, as the primary heir of his estate and made non-testamentary transfers in Rabuck’s favor. These transfers included interests in a house, a car, and beneficiary designations on life insurance policies and an investment account. Arnold subsequently died. After his death, his stepdaughter, Kathleen Gibeaut, challenged the 2011 will and non-testamentary transfers to Rabuck on the grounds that Rabuck had exercised undue influence over Arnold when he executed the 2011 will and made the transfers.

Following a court trial, the circuit court concluded that Rabuck did not exercise undue influence over Arnold in connection with the will or any challenged transfer. Gibeaut appeals, arguing that the court erred in failing to conclude that she had created a rebuttable presumption that Rabuck had unduly influenced Arnold based on two factors: (1) there was a confidential or fiduciary relationship between Arnold and Rabuck; and (2) the will was created and the transfers were made under suspicious circumstances. For the following reasons, we affirm. Not recommended for publication in the official reports.

2013AP2007 In re the estate of Laurence L. Arnold: Gibeaut v. Rabuck

Dist IV, Juneau County, Roemer, J., Blanchard, P.J.

Attorneys: For Appellant: Kopp, Josh, Madison; For Respondent: Arndt, Daniel C., Sparta

CRIMINAL OPINIONS

U.S. Supreme Court

Criminal
Chemical Weapons — necessary and proper clause

18 U. S. C. 229(a)(1) does not apply to any criminal offense that involves a chemical.

An ordinary speaker would not describe Bond’s feud-driven act of spreading irritating chemicals as involving a “chemical weapon.” And the chemicals at issue here bear little resemblance to those whose prohibition was the object of an international Convention. Where the breadth of a statutory definition creates ambiguity, it is appropriate to look to the ordinary meaning of the term being defined (here, “chemical weapon”) in settling on a fair reading of the statute.

The Government’s reading of section 229 would transform a statute concerned with acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. In light of the principle that Congress does not normally intrude upon the States’ police power, this Court is reluctant to conclude that Congress meant to punish Bond’s crime with a federal prosecution for a chemical weapons attack. In fact, only a handful of prosecutions have been brought under section 229, and most of those involved crimes not traditionally within the States’ purview, e.g., terrorist plots.

681 F. 3d 149, reversed and remanded.

12-158 Bond v. U.S.

Roberts, C.J.; Scalia, J., concurring; Thomas, J., concurring. Alito, J., concurring.

CRIMINAL PROCEDURE

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Paul Dwayne Westmoreland, pro se, appeals orders denying his motions for reconsideration of an order denying postconviction relief. We affirm, albeit based on reasoning that differs from that offered by the trial court. This opinion will not be published.

2013AP1563 State v. Westmoreland

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

Attorneys: For Appellant: Westmoreland, Paul Dwayne, pro se; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — successive appeals

Edward Alex Meade, pro se, appeals an order denying his motion for collateral postconviction relief brought pursuant to Wis. Stat. § 974.06. Meade argues that he received constitutionally ineffective assistance from his trial lawyer. Three of Meade’s claims of ineffective assistance are procedurally barred because Meade raised them in his direct appeal. Meade’s fourth claim of ineffective assistance of counsel is conclusory. Therefore, we affirm the circuit court’s order denying the motion without a hearing. This opinion will not be published.

2013AP1248 State v. Meade

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

Attorneys: For Appellant: Meade, Edward Alex, pro se; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure – competency — right to counsel

Jared Molner appeals a judgment of conviction for robbery and receiving stolen property, and an order denying his post-conviction motion for a competency examination under Wis. Stat. § 971.14. The current criminal proceedings were initiated against Molner when he was found incompetent by federal authorities and released from custody. Molner generally refused to speak to the court or his attorney and displayed other bizarre behavior, and a doctor who examined Molner shortly before trial opined in a post-conviction report procured by the defense that he was not competent during the proceedings.

Without ordering a competency examination, the court declared Molner to be playing a game by which he sought a tactical advantage.

A court must order a competency examination when there is “reason to doubt a defendant’s competency to proceed.” Wis. Stat. § 971.14(1r)(a). Because we conclude there was reason to doubt Molner’s competency as a matter of law, we reverse the post-conviction order and remand for the circuit court to determine whether a meaningful nunc pro tunc inquiry can be made regarding Molner’s competency to understand and assist in the proceedings against him. If the court determines a meaningful inquiry can be made, it must order a competency examination and hold a hearing. If a meaningful inquiry cannot be made, the court shall vacate the judgment of conviction and order a new trial. This opinion shall not be published.

2013AP820-CR State v. Molner

Dist IV, Vernon County, Rosborough, J., Per Curiam

Attorneys: For Appellant: Leeper, David, Madison; For Respondent: Balistreri, Thomas J., Madison; Gaskell, Timothy J., Viroqua

Wisconsin Court of Appeals

Criminal
Criminal Procedure — Confrontation Clause — exculpatory evidence

Antonio D. Williams appeals the judgment entered on a jury verdict convicting him of four counts of first-degree intentional homicide, see Wis. Stat. § 940.01(1)(a), as party to a crime, see Wis. Stat. § 939.05. He also appeals the trial court’s denial of his motion for postconviction relief. He argues here that: (1) the trial court improperly limited cross-examination of the State’s witnesses who testified as “cooperating” witnesses; (2) the trial court erred when it let the State use the contents of a letter found in Williams’s jail cell to impeach his alibi witness; (3) the trial court should have granted his request for a mistrial made after the State asked a defense witness about seeing Williams with an assault weapon a year before these shootings; (4) the State violated Brady v. Maryland, 373 U.S. 83 (1963), by not giving Williams a report listing names of people whose identification cards were scanned in at a bar where two State witnesses reported seeing one of Williams’s co-actors the night of the shooting, because the report did not list the names of the co-actors and one of the witnesses; and (5) we should reverse under Wis. Stat. § 752.35 because the cumulative effect of all these errors prevented Williams from “fully and fairly” presenting the “real controversy.” We affirm. Publication in the official reports is not recommended.

2013AP814-CR State v. Williams

Dist I, Milwaukee County, Dallet, J., Fine, J.

Attorneys: For Appellant: Provis, Timothy A., Port Washington; For Respondent: Loebel, Karen A., Milwaukee; Probst, Robert, Madison

Wisconsin Court of Appeals

Criminal
Criminal Procedure — ineffective assistance

Victor Garcia appeals a judgment convicting him after a jury trial of two counts of armed robbery with use of force, one count of substantial battery with use of a dangerous weapon, one count of armed burglary with a dangerous weapon, and one count of felony bail jumping, all as a repeater and all as a party to a crime except for bail jumping. Victor Garcia also appeals an order denying his postconviction motion. He argues that his trial lawyer provided him with constitutionally ineffective assistance. We affirm. This opinion will not be published.

2012AP1685-CR State v. Garcia

Dist IV, Rock County, Daley, J., Per Curiam

Attorneys: For Appellant: Garcia, Victor, pro se; For Respondent: Urbik, Gerald A., Janesville; Winter, Tiffany M., Madison

OWI

Wisconsin Court of Appeals

Criminal
Motor Vehicles – OWI — reasonable suspicion

Alberta R. Rose appeals from her conviction for third-offense operating a motor vehicle while under the influence of an intoxicant arguing that reasonable suspicion did not exist to support the traffic stop of her vehicle and that the evidence gathered after the stop should have been suppressed. We disagree and affirm. This opinion will not be published.

2013AP2783-CR State v. Rose

Dist II, Sheboygan County, Bolgert, J., Reilly, J.

Attorneys: For Appellant: Hagopian, Suzanne L., Madison; For Respondent: Weber, Gregory M., Madison; Wagner, Mary T., Sheboygan

SENTENCING

Wisconsin Court of Appeals

Criminal
Sentencing — penalty enhancers

Adam Miller, pro se, appeals orders denying his postconviction motion to vacate his sentence and his motion for reconsideration. Miller argues that the circuit court erred when it applied a penalty enhancer to increase his term of initial confinement in prison without first imposing the maximum term of imprisonment. The State argues that the circuit court properly applied a penalty enhancer to Miller’s sentence because “there is no statute or case law that provides that a sentencing court can impose a penalty enhancer only after it has first imposed the maximum term of imprisonment.”

Based on our interpretation of Wis. Stat. §§ 939.62(1) and 973.01(2)(c), we conclude that a court may apply a penalty enhancer to increase the term of initial confinement beyond the maximum prescribed by law without first imposing the maximum term of imprisonment, including both initial confinement and extended supervision. Here, the circuit court properly applied a penalty enhancer to impose a term of initial confinement longer than the maximum term of initial confinement prescribed by law. We therefore affirm the circuit court’s orders. Not recommended for publication in the official reports.

2013AP2218 State v. Miller

Dist IV, La Crosse County, Horne, J., Kloppenburg, J.

Attorneys: For Appellant: Miller, Adam W., pro se; For Respondent: Gruenke, Tim, La Crosse; Larson, Sara Lynn, Madison

Wisconsin Court of Appeals

Criminal
Sentencing – PSIs — discretion

Michael Buchanan appeals a judgment of conviction. The issue is whether the circuit court erred by denying his presentence motion to strike parts of the presentence investigation report. We conclude it did not. We affirm. This opinion will not be published.

2011AP1997-CR State v. Buchanan

Dist IV, Wood County, Mason, J, Per Curiam

Attorneys: For Appellant: Ehmann, Joseph N., Madison; Grunder, Steven D., Madison; For Respondent: Moeller, Marguerite M., Madison; Lambert, Craig S., Wisconsin Rapids

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing — reasonableness

A total sentence of 109 months for bank fraud counts was not unreasonable.

“It was not plain error for the district court to accept Arojojoye’s guilty plea to Count 36. Although it was error to sentence Arojojoye under the guidelines in effect on the date of his sentencing, and not on the dates he committed his crimes, under Peugh and our subsequent precedent the error was harmless because the district court clearly stated it would impose the same sentence regardless. The district court’s conclusion that Arojojoye managed or supervised two codefendants was not plainly erroneous. The district court also did not commit clear error by holding Arojojoye accountable for the $441,899.03 loss resulting from the stolen Navistar checks because, when considered in context and in cumulation, this loss was reasonably foreseeable. Finally, Arojojoye waived his right to contest the district court’s imposition of the sophisticated means enhancement, and even if he did not, the district court did not commit plain error by imposing it.”

Affirmed.

13-2224 U.S. v. Arojojoye

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Manion, J.

Wisconsin Court of Appeals

Criminal
Sentencing — restitution

Patrick L. Hibl appeals from a judgment of conviction for negligent handling of burning material, party to a crime, including a condition to pay $24,220 in restitution to William Eubanks for fire damage to Eubanks’s house. Hibl argues that there was no nexus established between the crime and the damage to the house. Additionally, Hibl argues that the trial court failed to consider Hibl’s ability to pay the restitution. We reject Hibl’s arguments and affirm. This opinion will not be published.

2013AP2723-CR State v. Hibl

Dist II, Walworth County, Race, J., Neubauer, P.J.

Attorneys: For Appellant: Giesen, Charles W., Madison; For Respondent: Weber, Gregory M., Madison; Rea, Haley, Elkhorn

Wisconsin Court of Appeals

Criminal
Sentencing — accurate information

Darcel L. Wilson appeals from a judgment, entered upon his plea of no contest, convicting him of false imprisonment and from an order denying his postconviction motion for resentencing. Because we reject his contention that he was sentenced in reliance on inaccurate information, we affirm the judgment and order. This opinion will not be published.

2013AP1968-CR State v. Wilson

Dist II, Winnebago County, Jorgensen, J., Per Curiam

Attorneys: For Appellant: Dirden, Angela Dawn, Green Bay; For Respondent: Weber, Gregory M., Madison; Gossett, Christian A., Oshkosh

Wisconsin Court of Appeals

Criminal
Sentencing — sentencing after revocation

Douglas Richer pleaded no contest to two counts of delivery of a prescription drug without a prescription, contrary to Wis. Stat. § 450.11. Count 1 included a repeater enhancer, whereas the enhancer in Count 2 was dropped pursuant to a plea agreement. Richer was convicted on both counts and sentenced to sixty days’ jail on the first count. On the second, the court withheld sentence and placed Richer on probation, which was subsequently revoked. Richer was ultimately sentenced to three years’ initial confinement and three years’ extended supervision on the second count.

Richer appeals the judgment of conviction on Count 2, and an order denying his post-conviction motion. He claims the court failed to demonstrate sufficient knowledge of his previous sentencing and to explain the disparity between his sentences on the two counts. Richer also contends the sentencing court considered inaccurate information. For the reasons set forth below, we reject these arguments and affirm. This opinion will not be published.

2013AP1826-CR State v. Richer

Dist III, Eau Claire County, Theisen, J., Per Curiam

Attorneys: For Appellant: Petersen, Melissa M., Hager City; For Respondent: Gansner, William L., Madison; King, Gary M., Eau Claire

U.S. Court of Appeals for the 7th Circuit

Criminal
Sentencing — supervised release — reimprisonment

Consideration of 18 U.S.C. 3553(a)(2)(A) in revoking supervised release is not a procedural error.

“By contrast, two circuits bar consideration of § 3553(a)(2)(A) because Congress excluded it from the list of relevant factors in § 3583(e). See United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011); United States v. Hammons, 558 F.3d 1100, 1104 (9th Cir. 2009). But the Sentencing Commission’s introduction to chapter 7 of the guidelines explains that the reason courts should not focus on § 3553(a)(2)(A) in revocation hearings is the provision’s ‘just punishment’ clause; revocation is a sanction for violating the terms of supervision, not punishment for a new crime. See U.S.S.G. ch. 7, pt. A, 3(b); cf. United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (‘[T]he difference between sanctioning a supervised release violator for breach of trust and punishing him in order to promote respect for the law is subtle indeed.’).”

Affirmed.

13-3510 U.S. v. Clay

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Flaum, J.