Weekly Case Digests – October 28, 2019 – November 1, 2019

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States v. Cordell Collins

Case No.: 18-3011

Officials: FLAUM, EASTERBROOK, and MANION, Circuit Judges.

Focus: Jurisdiction – Sentencing

Cordell Collins appeals several conditions he must abide by while on supervised release. The first condition he challenges requires him to stay in the “jurisdiction,” but the district court’s written judgment does not match its oral pronouncement of the condition and its definition at sentencing. Collins did not object to the other two conditions he now disputes when the district court gave him the opportunity to; rather, he agreed to them, therefore waiving his arguments on appeal. Accordingly, we affirm the district court’s judgment in all respects except for its use of the word “jurisdiction” in its written judgment. With respect to that condition, we remand with instructions for the district court to amend its written judgment to substitute the term “federal judicial district” for the word “jurisdiction.”

Affirmed in part. Remanded with instructions.

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7^th Circuit Court of Appeals

Case Name: United States of America v. Anthony Loren Gardner

Case No.: 18-1731

Officials: FLAUM, KANNE, and SYKES, Circuit Judges.

Focus: Sentencing Guidelines

Anthony Gardner was arrested after firing a gun at two vehicles thought to be driven by rival gang members. He pleaded guilty to possessing a firearm as a felon. The district judge imposed an above-Guidelines sentence based in part on Gardner’s use of violence in a prior burglary.

On appeal Gardner argues procedural error. He insists that the so-called “categorical approach,” with all its doctrinal arcana and limitations, applies when a judge exercises Booker discretion to impose an above-Guidelines sentence based on a defendant’s aggravating conduct in a prior crime. Not so. The sentencing judge may consider aggravating circumstances in a defendant’s criminal record without the constraints imposed by the categorical approach that usually applies to statutory sentencing enhancements and the determination of offense-level increases and criminal-history points under the Sentencing Guidelines. Gardner also argues that the judge inadequately addressed his mental-health challenges and relied on inaccurate information in the presentence report. These arguments are waived and forfeited, respectively, and the forfeited argument does not involve a plain error. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: John Vergara, et al. v. City of Chicago, et al.

Case No.: 18-1266

Officials: MANION, SYKES, and BRENNAN, Circuit Judges.

Focus: Equitable Estoppel

John Vergara, Carlos Ruiz, and Jose Garcia filed a civil-rights lawsuit against the City of Chicago and Chicago Police Officers John Dal Ponte, Boonserm Srisuch, and Perry Nigro. The defendants moved to dismiss the suit as untimely. The plaintiffs asked the district judge to equitably estop the defendants from raising the limitations defense, claiming that the officers intimidated them into silence.

The judge dismissed the suit in a minute order saying she would later file an opinion explaining her reasons. The promised opinion came almost two years later, and the plaintiffs then appealed. Under the Rules of Appellate Procedure, however, entry of judgment for appeal purposes occurred 150 days after the judge’s minute order, see FED. R. APP. P. 4(a)(7)(A), and the 30-day time to file a notice of appeal ran from that date, see Walker v. Weatherspoon, 900 F.3d 354, 356 (7th Cir. 2018). The appeal was therefore woefully late.

The defendants noted the untimeliness problem in their docketing statement, but this filing too was quite late. Our circuit’s rules require the appellee to identify errors in the appellant’s docketing statement within 14 days. 7TH CIR. R. 3(c)(1); see Hamer v. Neighborhood Hous. Servs. of Chi., 897 F.3d 835, 839 (7th Cir. 2018). The defendants missed that deadline by about six months.

After disentangling this procedural web, we decline to dismiss the appeal. The defendants’ objection to the Rule 4(a) violation came too late under Circuit Rule 3(c)(1). But the suit is untimely, and our precedent forecloses the plaintiffs’ equitable estoppel theory. We affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Michael Daniels v. United States of America

Case No.: 17-2618

Officials: EASTERBROOK, SYKES, and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

In 1991 Michael Daniels was sentenced to 35 years in prison for drug-trafficking crimes he committed while leading the violent Brothers of the Struggle street gang in Milwaukee in the 1980s. Based on two of his many prior crimes, he was sentenced as a career offender under the then-mandatory Sentencing Guidelines. But the designation did not affect his sentencing range, which was 360 months to life with or without it.

More than two decades later, Daniels moved to vacate his sentence under 28 U.S.C. § 2255 on the authority of Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the “residual clause” in the Armed Career Criminal Act as unconstitutionally vague. Daniels argued that the identically phrased residual clause in the career-offender guideline is likewise unconstitutionally vague. Because one of the predicate convictions for his career-offender status qualified only under the residual clause, Daniels maintained that he was entitled to resentencing. The district judge disagreed, relying on Beckles v. United States, 137 S. Ct. 886 (2017), which forecloses vagueness challenges to the post-Booker advisory Sentencing Guidelines. The judge certified his decision for appeal based on uncertainty about the status of circuit precedent regarding vagueness challenges to the pre-Booker mandatory Guidelines.

The parties addressed that question in their initial briefs. In the meantime, a panel of this court issued a definitive answer, ruling that defendants who were sentenced under the mandatory Guidelines may bring Johnson-based vagueness challenges to the career-offender guideline. Cross v. United States, 892 F.3d 288, 304–06 (7th Cir. 2018). Applying Johnson, the panel in Cross invalidated the residual clause of the “crime of violence” definition in the career-offender guideline and applied that ruling retroactively, authorizing relief under § 2255. Id. at 299–304.

We directed the parties to file new briefs addressing the effect of Cross on this case. We now affirm. Under Johnson and Cross, Daniels was wrongly designated a career offender. But the error was harmless because it did not affect his sentence.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Mary Carpenter v. Terry D. Carpenter

Case No.: 2017AP2396

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Divorce – Property Division

Terry Carpenter, pro se, appeals the property division portion of a judgment dissolving his marriage to Mary Carpenter. Terry argues that Mary failed to timely complete her financial disclosure statement; the circuit court judge was required to disqualify himself from the divorce proceedings; and the court erroneously exercised its discretion when dividing the marital property. We reject Terry’s arguments and affirm the judgment.

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WI Court of Appeals – District III

Case Name: M. Blank Properties, LLC, v. George Cole

Case No.: 2018AP699

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Court Error – Retaliatory Eviction

George Cole appeals a judgment awarding money damages to his former landlord, M. Blank Properties, LLC (Blank). Cole contends the circuit court erred by: (1) denying his counterclaim that Blank unlawfully withheld his security deposit after Cole vacated his apartment; (2) finding that Cole’s neglect caused water damage to a bathroom in the apartment; and (3) denying his retaliatory eviction counterclaim. We reject Cole’s arguments and affirm the judgment. Further, because we conclude that Cole’s entire appeal is frivolous, we grant Blank’s motion for costs and reasonable attorney fees incurred in this appeal under WIS. STAT. RULE 809.25(3) (2017-18), and we remand to the circuit court to determine the proper amount thereof. See Lessor v. Wangelin, 221 Wis. 2d 659, 669, 586 N.W.2d 1 (Ct. App. 1998).

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Keith H. Shoeder

Case No.: 2018AP997-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Statutory Interpretation – OWI

Keith Shoeder was observed operating his riding lawn mower on the shoulder of a public roadway and was subsequently arrested for fourth-offense operating a motor vehicle while intoxicated (OWI). Shoeder argues the circuit court erroneously denied his motion to dismiss that charge because a riding lawn mower is not a “motor vehicle” within the meaning of Wisconsin’s OWI statute, WIS. STAT. § 346.63(1)(a) (2017-18).  Instead, he argues his riding lawn mower is an “all-terrain vehicle,” the operation of which while intoxicated is subject to a different penalty scheme. We conclude the relevant statutes permit Shoeder’s prosecution for OWI because his riding lawn mower qualifies as a “motor vehicle.” We further conclude Shoeder’s riding lawn mower does not satisfy the statutory definition of an “all-terrain vehicle.” Accordingly, we affirm his OWI conviction.

Recommended for Publication

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael K. Lorentz

Case No.: 2018AP1515-CR

Officials: HRUZ, J.

Focus: Court Error – Injunctions

Michael Lorentz appeals a judgment, entered following a jury trial, that convicted him of one count of knowingly violating a domestic abuse injunction, contrary to WIS. STAT. § 813.12(8)(a), and three counts of knowingly violating a child abuse injunction, contrary to WIS. STAT. § 813.122(11). Lorentz raises three arguments on appeal. First, he argues the circuit court erred by publishing the injunctions to the jury without redacting the terms “domestic abuse” and “child abuse.” Second, he contends §§ 813.12(8)(a) and 813.122(11) are unconstitutional as applied to him because the underlying injunctions are unconstitutionally vague. Third, Lorentz argues the evidence at trial was insufficient to support his convictions.

Assuming without deciding that the circuit court erred by publishing the unredacted injunctions to the jury, we conclude any error in that regard was harmless. We further conclude that the injunctions are not unconstitutionally vague, and, as such, WIS. STAT. §§ 813.12(8)(a) and 813.122(11) are not unconstitutional as applied to Lorentz. Finally, we reject Lorentz’s argument that the evidence at trial was insufficient to support his convictions. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Anthony Murray

Case No.: 2018AP1537

Officials: Brash, P.J., Kessler and Dugan, JJ.

Focus: Ineffective Assistance of Counsel

Anthony Murray, pro se, appeals the order denying his WIS. STAT. § 974.06 (2017-18) motion without a hearing. Because Murray forfeited some of his claims by raising them for the first time on appeal and because he otherwise failed to show that his postconviction counsel was ineffective, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Vaylan G. Morris

Case No.: 2018AP1694-CR

Officials: Brash, P.J., Kessler and Dugan, JJ.

Focus: Sentencing Guidelines – Resentencing

Vaylan G. Morris appeals his judgment of conviction entered after he pled guilty to second-degree recklessly endangering safety as a party to a crime, and the trial court’s order denying his postconviction motion for resentencing. Morris was charged after the death of his infant daughter, O.M., who had been co-sleeping with Morris and O.M.’s mother, Monica Gonzalez. The cause of O.M.’s death was undetermined, but Morris admitted to smoking synthetic marijuana prior to co-sleeping with O.M. and thought he may have rolled over on her. Additionally, synthetic marijuana was detected in O.M.’s stomach contents, although it was determined not to have caused her death.

In his postconviction motion, Morris argued that the trial court relied on inaccurate information regarding O.M.’s cause of death. Specifically, the State represented at sentencing that the synthetic marijuana could have been the cause of O.M.’s death; however, the medical examiner had advised the State that the ingested synthetic marijuana was not the cause of death. The trial court denied Morris’s postconviction motion. It stated that the information presented by the State was not necessarily inaccurate just because it conflicted with the medical examiner’s opinion, even though the State conceded that point. The court also stated that it had not relied on the inaccurate information because the sentence imposed was not based on a particular theory of the cause of death, and thus any error relating to that inaccurate information was harmless.

We disagree. The record demonstrates that after the inaccurate information was presented by the State, the trial court repeatedly referred to Morris and Gonzalez as having caused O.M.’s death during Morris’s sentencing hearing. Furthermore, the record does not reflect that the court considered any other possible causes of death. We therefore reverse and remand this matter for resentencing.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Orlando C. Davis

Case No.: 2018AP2326-CR

Officials: DUGAN, J.

Focus: Plea Colloquy

Orlando C. Davis appeals the judgment of conviction, entered on his guilty pleas to the following three misdemeanors: (1) intimidation of a victim, as an act of domestic abuse, as a repeater; (2) knowingly violating a domestic abuse order-injunction, as an act of domestic abuse, as a repeater; and (3) criminal trespass to a dwelling, as an act of domestic abuse, as a repeater. He also appeals the denial of his postconviction motion for an order allowing him to withdraw his guilty pleas.

In his motion, Davis alleged that during the plea colloquy the trial court failed to explain the elements of the offenses that he was pleading guilty to, and it did not determine if Davis had read the relevant jury instructions or if trial counsel had read them to him. Davis argued that he did not understand the elements of those offenses when he entered his guilty pleas and, therefore, his pleas were not knowing, intelligent, or voluntary. As stated, the motion was denied. On appeal, Davis argues that the postconviction court erred as a matter of law because it held that the trial court’s plea colloquy complied with Wisconsin law and because it assigned him the burden of proving that his guilty pleas were not knowing, intelligent, and voluntary. We affirm the judgment and order.

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WI Court of Appeals – District III

Case Name: River Valley Bank v. Brenda M. White, et al.

Case No.: 2018AP2387

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Mortgage Foreclosure – Statutory Notice

In this mortgage foreclosure action, Brenda Gehring appeals an order denying her motion to set aside an order confirming a sheriff’s sale. Gehring argues the circuit court should have granted her motion because she did not receive a notice of the confirmation hearing that satisfied the requirements set forth in WIS. STAT. § 846.165. We agree that Gehring was entitled to, and did not receive, a notice of the confirmation hearing that complied with § 846.165. However, given that Gehring’s attorney had actual notice of the confirmation hearing, we conclude Gehring waived her objection to the lack of statutory notice by failing to object on that basis before the court confirmed the sheriff’s sale. We therefore affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. DeAngelo D. Tubbs

Case No.: 2019AP644-CR

Officials: DUGAN., J.

Focus: Probable Cause – Suppression of Evidence

Deangelo D. Tubbs appeals the judgment of conviction, following a guilty plea, for one misdemeanor count of possessing tetrahydrocannabinol. On appeal, Tubbs argues that the trial court erred in finding that the officer had probable cause to search his vehicle. Tubbs also argues that the officer lacked reasonable suspicion for a protective search of the vehicle for weapons. Tubbs argues that the trial court erred in denying his motion to suppress evidence seized during a warrantless search of his vehicle. We disagree and, therefore, affirm.

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WI Court of Appeals – District III

Case Name: Outagamie County Department of Health and Human Services v. R.P.

Case No.: 2019AP990; 2019AP991

Officials: STARK, P.J.

Focus: Termination of Parental Rights

R.P. appeals orders terminating her parental rights to her daughters, Amanda and Nicole. R.P. argues the circuit court erroneously exercised its discretion in concluding that terminating her parental rights was in the children’s best interests. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Scott L. Nutting

Case No.: 2017AP2049-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Ineffective Assistance of Counsel

Scott L. Nutting appeals from a judgment of conviction for second-degree sexual assault of a child and an order denying his postconviction motion for relief. He asserted his trial counsel was ineffective in failing to have the recording excluded or, in the alternative, the circuit court erred in failing to ensure that the recording complied with SCR 71.01(2)(e) (2019) and related statutes. Nutting seeks a new trial on the ground that the trial court record does not reflect which portions of an audio custodial interview of him were played to the jury. We conclude that the circuit court was able to sufficiently reconstruct what was played to the jury and did not err in determining that nothing prejudicial was played. Because we conclude that Nutting was not denied his right to a meaningful appeal and we reject his other challenges, we affirm.

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WI Court of Appeals – District II

Case Name: Marc Steven Roehl v. Ocwen Loan Servicing LLC

Case No.: 2019AP187

Officials: GUNDRUM, J.

Focus: Failure to State Claim

Marc Roehl appeals pro se from the circuit court’s grant of Ocwen Loan Servicing, LLC’s motion to dismiss Roehl’s complaint for failure to state a claim upon which relief may be granted. We affirm.

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