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Weekly Case Digests – September 14, 2020 – September 18, 2020

By: Derek Hawkins//September 18, 2020//

Weekly Case Digests – September 14, 2020 – September 18, 2020

By: Derek Hawkins//September 18, 2020//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Nathaniel Ruth

Case No.: 20-1034

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – Resentencing

In what is becoming an all-too-familiar subject, this appeal raises a question about whether a state drug statute sweeps more broadly than its federal counterpart because the former includes a particular isomer of a substance that the latter does not. Nathaniel Ruth pleaded guilty to federal gun and drug charges and received an enhanced sentence due to his prior Illinois conviction for possession with intent to deliver cocaine. The Illinois statute defines cocaine to include its positional isomers, whereas the federal definition covers only cocaine’s optical and geometric isomers. Ruth now appeals and claims that the district court erred in sentencing him because, using the categorical approach, the overbreadth of the Illinois statute disqualifies his prior conviction as a predicate felony drug offense. We agree and therefore vacate Ruth’s sentence and remand for resentencing.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Daniel Sarauer, et al., v. International Association of Machinists, et al.,

Case No.: 19-3142

Officials: MANION, HAMILTON, and BARRETT, Circuit Judges.

Focus: Subject-matter Jurisdiction – Collective Bargaining Agreement

Private labor relations in this country are governed almost exclusively by federal law. This case is about the “almost.” Under federal law, unions and employers may enter into collective bargaining agreements with “union security” clauses, which require employees either to become union members after being hired or, if they do not join, to pay fees to the union for representing them, as federal law requires of the union. Congress has allowed states to take a different view of such clauses, however. More than half the states today have “right to work” laws prohibiting unions and employers from entering into union security agreements.

Wisconsin’s Act 1 enacted in 2015 is a right‐to‐work law. Plaintiffs are ten Wisconsin employees who contend that Act 1 invalidated the union security clause in the 2015–2018 collective bargaining agreement between their employer and their bargaining unit’s union, both defendants here. Plaintiffs filed this suit in a Wisconsin state court, and defendants removed to federal district court. The district court held that removal was proper because the case arises under federal law, not state law. The court then held as a matter of federal law that defendants’ collective bargaining agreement was formed before Act 1 took effect so that plaintiffs are not entitled to relief. The court granted summary judgment for the defense. We affirm as to both jurisdiction and the merits.

Affirmed

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7th Circuit Court of Appeals

Case Name: Angela Tonyan v. Dunham’s Athleisure Corporation

Case No.: 19-2939

Officials: EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.

Focus: ADA Violation – Disparate Treatment Claim

Angela Tonyan worked as a store manager at Dunham’s Athleisure Corporation (Dunham’s) when she suffered a series of injuries, requiring multiple surgeries and temporary restrictions to her shoulder, arm, and hand movement. After her doctor imposed permanent restrictions, including one preventing her from lifting more than two pounds with her right arm, Dunham’s fired her.

Dunham’s asserts, because of its lean staffing model, that store managers must perform various forms of physical labor, such as unloading and shelving merchandise, as essential functions of their job duties. Tonyan, on the other hand, argues that physical tasks were not essential functions of her job and that, in any event, she was able to perform her job’s essential functions.

We conclude that physical tasks were essential functions of Tonyan’s job. As a result, in light of the severe restrictions on her movement, no reasonable factfinder could determine that Tonyan was capable of performing the essential functions of her position. We therefore affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Finas J. Glenn

Case No.: 19-2802

Officials: SYKES, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

Focus: Probable Cause – Suppression of Evidence

Police investigating drug trafficking in Vermilion County, Illinois, sent an informant to buy two ounces of cocaine at the home of Finas Glenn. The transaction was recorded on audio and video. About a month later the police asked for a warrant to search Glenn’s home. A state judge put agent Pat Alblinger under oath, took his testimony (which was recorded), and issued a warrant. A search turned up cocaine and guns. Indicted on drug and weapons charges, Glenn moved to suppress the evidence seized in the search. A district judge held a hearing and concluded that the warrant was supported by probable cause. 2019 U.S. Dist. LEXIS 89507 (C.D. Ill. May 29, 2019). Glenn then pleaded guilty to one firearms charge, see 18 U.S.C. §922(g)(1), and the prosecutor dismissed the remaining counts. The plea reserved Glenn’s right to contest on appeal the denial of his motion to suppress. See Fed. R. Crim. P. 11(a)(2). The judge sentenced Glenn to 102 months’ imprisonment.

A judge in a criminal prosecution must afford “great deference” to the probable-cause finding by the judge who issued a warrant. See Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. McIntire, 516 F.3d 576 (7th Cir. 2008). That norm is as applicable to warrants based on live testimony as it is to warrants based on affidavits. See United States v. Patton, 962 F.3d 972 (7th Cir. 2020). This warrant rests on the “controlled buy” plus Alblinger’s testimony that the informant had for more than a decade provided reliable information. Glenn contends that this is not enough to show probable cause, because Alblinger did not tell the state judge whether agents had searched the informant before the transaction, that the informant had a long criminal record and was cooperating to earn lenience, and that the informant’s record of providing accurate information was with the local police as a whole rather than with Alblinger personally. Like the district judge, we think these omissions unfortunate. But they do not negate probable cause, when, as Gates requires, the evidence is viewed as a whole and the federal court gives the state judge great deference.

The principal reason to search an informant before a controlled buy is to make sure that he does not try to trick the investigators by providing the drugs himself and then asserting that he bought them from the target. It is possible that some sleight of hand might be practiced even when a transaction is recorded, but the audio and visual record of this transaction would have allowed a conviction beyond a reasonable doubt. Probable cause is a lower standard. The Fourth Amendment does not require best practices in criminal investigations. That the agents could have managed this controlled buy to provide an even higher level of confidence does not imply that probable cause is missing.

Given the audio and video evidence of the controlled buy, the informant’s reliability and motivations are not material to the existence of probable cause. Gates observed that these considerations can be important to the total mix of information, which is why police do well to provide details to the judge asked to issue a warrant, but the omissions do not detract from the powerful audio and video evidence. Glenn contends that the evidence provided by the controlled buy was stale by the time the agents searched his house. Yet the passage of time does not necessarily imply that a retail site for drug sales has ceased to be so. See United States v. Lamon, 930 F.2d 1183, 1187–88 (7th Cir. 1991). If the house had been sold in the interim, or if there were some reason to think that Glenn had changed his line of business, then the passage of time would provide reason to doubt the inference that a place used to distribute drugs in the recent past is still used for that purpose. But there is no such evidence. To the contrary, in an interview shortly before agent Alblinger applied for the warrant, Glenn conceded that he sold cocaine from his home—and although Glenn said that he sold only “small quantities,” retail drug sales are retail drug sales. Alblinger did not present this confession to the state judge, so it does not factor into the finding of probable cause, but it negates any possibility that Alblinger knew that the information after the controlled buy implied that Glenn’s house no longer contained cocaine. Alblinger told the federal court that the delay was designed to prevent Glenn from inferring the informant’s identity. That’s a good reason to wait, and Glenn was not injured by the delay.

Affirmed

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7th Circuit Court of Appeals

Case Name: Central States, Southeast and Southwest Areas Health and Welfare Fund, et al., v. Shelby L. Haynes, et al.,

Case No.: 19-2589

Officials: BAUER, EASTERBROOK, and WOOD, Circuit Judges.

Focus: ERISA – Repayment Clause – Covered Dependent

Doctors removed Shelby Haynes’s gallbladder in 2013. She was injured in the process and required additional surgery that led to more than $300,000 in medical expenses. Her father’s medical-benefits plan (the Fund) paid these because Haynes was a “covered dependent”. The plan includes typical subrogation and re payment clauses: on recovering anything from third parties, a covered person must reimburse the Fund. In 2017 Haynes settled a tort suit against the hospital, and others, for $1.5 million. But she and her lawyers refused to repay the Fund, which brought this action to enforce the plan’s terms under §502(a)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1132(a)(3).

Haynes concedes that the Fund paid her medical bills but insists that she never agreed to reimburse it. She did not sign a promise to follow the plan’s rules and was not a participant (as opposed to a beneficiary). The district judge disagreed with her and granted summary judgment to the Fund for the full amount of its outlay. 397 F. Supp. 3d 1149 (N.D. Ill. 2019). Along the way, the district court enjoined Haynes, Haynes’s malpractice lawyer, and the lawyer’s firm from dissipating the proceeds of the settlement. The Fund named each of them as a defendant to avoid ambiguity about who possessed the money. See Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 214 (2002). Haynes contends that counsel should be able to keep a share of the settlement under equitable principles. But §11.14(j) of the plan expressly forbids this approach, and “if a contract abrogates the common-fund doctrine, the insurer is not unjustly enriched by claiming the benefit of its bargain.” McCutchen, 569 U.S. at 100.

Haynes also maintains that she shouldn’t be bound by this provision because a summary plan description does not explain that the plan displaces the common-fund doctrine. Yet the Fund makes the plan available online, mails printed copies on request, and sent the relevant provisions to her lawyer before the malpractice settlement. The point of a summary plan description is to summarize; some terms necessarily are omitted. At all events, if the plan and the summary plan description conflict, the plan controls. CIGNA Corp. v. Amara, 563 U.S. 421, 438 (2011).

Finally, Haynes’s complaint about the district court’s decision to exclude an expert’s report, 2018 U.S. Dist. LEXIS 234265 (N.D. Ill. Oct. 24, 2018), is beside the point; this case has been resolved on legal grounds that are unaffected by any expert’s conclusions, admissible or not.

Neither the plan, the Act, nor the common law excuses Haynes from her obligation to reimburse the Fund. Her status as a beneficiary—whether minor or adult—doesn’t deprive a fiduciary of the ability to obtain appropriate equitable relief under §502(a)(3) of the Act.

Affirmed

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7th Circuit Court of Appeals

Case Name: Elijah Manuel v. Nick Nalley, et al.,

Case No.: 18-3380

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

Focus: Prisoner – 1st Amendment Violation – Summary Judgment

Elijah Manuel sued prison personnel under 42 U.S.C. § 1983, claiming First Amendment violation when his cell was searched following a disagreement over a grievance procedure. The district court allowed Manuel to proceed on these claims, eventually granting summary judgment in favor of the prison personnel. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Robert Hosler

Case No.: 19-2863

Officials: BAUER, EASTERBROOK, and WOOD, Circuit Judges.

Focus: Sufficiency of Evidence

Robert Hosler was convicted after a bench trial of using a facility or means of interstate commerce to attempt to “persuade[], induce[], entice[], or coerce[]” a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The charge stemmed from Hosler’s communications over a period of several weeks with an undercover police detective posing as a mother offering her 12-year-old daughter for sex in exchange for money. Hosler argues that his conduct did not meet the requirements of the statute because he did not attempt to transform or overcome the supposed minor’s will. The evidence was sufficient to support Hosler’s conviction for attempting to persuade or entice a minor into a sexual relationship, in violation of 18 U.S.C. § 2422(b). We therefore AFFIRM the judgment of the district court.

Affirmed

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7th Circuit Court of Appeals

Case Name: Dawn Hanson, et al., v. Chris LeVan

Case No.: 19-1840

Officials: MANION, KANNE, and WOOD, Circuit Judges.

Focus: Qualified Immunity

For some government jobs, political affiliation is an appropriate position requirement. But that’s generally not the case. And unless political affiliation is an appropriate job requirement, the First Amendment forbids government officials from discharging employees based on their political affiliation. Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990) (citing Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980)).

After stepping into his elected office as Milton Township Assessor, Chris LeVan dismissed a group of employees who were Deputy Assessors, allegedly because they supported his political rival and predecessor. The fired deputies sued LeVan, claiming the terminations violated their First Amendment rights. In a motion to dismiss for failure to state a claim, LeVan asserted a qualified‐immunity defense. The district court concluded that LeVan is not entitled to qualified immunity at this pleading stage, and LeVan appealed.

We affirm because, taking as true the plaintiffs’ well‐ pleaded allegations about the characteristics of the Deputy Assessor position, a reasonable actor in LeVan’s position would have known that dismissing the deputies based on their political affiliation violated their constitutional rights.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Ralkphfield Hudson, et al.,

Case No.: 19-2075; 19-2476; 19-2708

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

Focus: Sentencing Guidelines – First Step Act

The First Step Act allows district courts to reduce the sentences of criminal defendants who have been convicted of a “covered offense.” See Pub. L. No. 115-391, 132 Stat. 5194, § 404(a) (2018). A “covered offense” is a federal crime (committed before August 3, 2010) for which the statutory penalties were modified by the Fair Sentencing Act of 2010. Id. § 404(a).

These consolidated appeals present two questions: First, if a defendant’s aggregate sentence includes both covered and non-covered offenses, may a court reduce the sentence for the non-covered offenses? Second, if the Fair Sentencing Act did not alter the Guidelines range for a defendant’s covered offense, may a court reduce the defendant’s sentence for that offense? We answer both questions affirmatively.

Because each defendant was eligible for a sentence reduction under the First Step Act, and because the district courts may reduce sentences for both non-covered offenses grouped with a covered offense and covered offenses for which the Guidelines range has not changed, we REVERSE and REMAND for review and rulings consistent with this opinion.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Quincy Bioscience, LLC, v. Ellishbrooks, et al.,

Case No.: 19-1799

Officials: FLAUM, RIPPLE, and WOOD, Circuit Judges.

Focus: Sanctions

After our decision on the merits, Quincy Bioscience, LLC v. Ellishbooks, 957 F.3d 725 (7th Cir. 2020), we later granted Quincy Bioscience, LLC’s (“Quincy”) motion for sanctions. The order directed Quincy to submit a statement of its costs and fees incurred in the case within fourteen days and gave the appellants (collectively “Ellishbooks”) fourteen days to raise any objections. Quincy has submitted its statement and requests $50,059.50 in attorneys’ fees. Ellishbooks has responded in opposition and also seeks confirmation that sanctions were not imposed against its attorney, Robert DeWitty. Quincy sought, and was granted, leave to file a sur-reply to counter Ellishbooks’s assertion that the sanctions were imposed only against Ellishbooks, and not its counsel.

The underlying facts are fully set forth in our merits opinion, see Quincy Bioscience, LLC, 757 F.3d at 726–28, and we therefore only briefly summarize them here. Quincy filed suit against Ellishbooks alleging that it violated the Lanham Act, 15 U.S.C. §§ 1114, 1125, and various state laws when it engaged in the unauthorized and unlawful sale of Quincy’s dietary supplements bearing the Prevagen® trademark. Quincy successfully sought a default judgment, and, after a prove‐up hearing the district court awarded Quincy $480,968.13 plus costs. The court also permanently enjoined Ellishbooks from infringing upon Quincy’s trademark and selling stolen products bearing the Prevagen® mark. We affirmed, concluding that Ellishbooks’s arguments on appeal were meritless. Quincy then moved for sanctions under Federal Rule of Appellate Procedure 38. We granted the motion because Ellishbooks’s arguments “had virtually no likelihood of success” on appeal and because it appeared that Ellishbooks had attempted to draw out the proceedings for as long as possible. Quincy Bioscience, LLC v. Ellishbooks, 961 F.3d 938, 941 (7th Cir. 2020) (per curiam). Sanctions are awarded against both the appellants and Mr. DeWitty in the amount of $44,329.50.

So ordered

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7th Circuit Court of Appeals

Case Name: Jason Wells v. Angela Caudill

Case No.: 18-2617

Officials: EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.

Focus: Sentencing Guidelines

Jason Wells was sentenced in Illinois for two drug offenses: he received two years’ imprisonment for the first and one year for the second, to run consecutively. The sentencing judge gave him credit for pretrial detention: 255 days for the first sentence and 97 days for the second. Wells and the Illinois Department of Corrections promptly disagreed about how much time he needed to spend in prison.

Wells calculated his term as three years (1095 days) less 255 days less 97 days, for a total of 743 days. The prison system calculated 1095 less 255, for a total of 840. It disregarded the 97-day credit because it believed that, after his arrest for the second offense (which he committed while on bail from the first), Wells had been in custody on both charges simultaneously. The Department understands Illinois law to allow only the greatest of multiple credits to be applied when a person is in pretrial detention on multiple charges at the same time. See People v. Latona, 184 Ill. 2d 260, 271–72 (1998). Wells filed grievances, which were reviewed by several persons, including Angela Caudill, the Records Office Supervisor at East Moline Correctional Center. Although Wells did not articulate a legal position, the best would have been that he served sequential periods of pretrial detention (arrest, detention, release, rearrest, more detention), so that both credits should be applied even though he was in custody on two charges during the second period. But Caudill agreed with the calculation performed by one of her subordinates and initialed the worksheet. Wells was held until the expiration of the 840-day term (less good-time credits).

After his release, Wells filed this suit under 42 U.S.C. §1983, contending that Caudill and two other state employees violated the Cruel and Unusual Punishments Clause of the Eighth Amendment (applied to the states through the Fourteenth) by omitting the 97-day credit when determining his release date. The district court granted summary judgment to two of the defendants, ruling that they were not responsible for the calculation, and Wells has abandoned any claim against them. (Their names have been removed from the caption.) But the judge stated that the claim against Caudill required a trial to resolve two issues: who was right about the length of Wells’s sentences, and whether Caudill acted with the mental state required to violate the Eighth Amendment. The parties agreed to a bench trial, which was brief. Wells explained on the stand that he thought the prison system’s calculation mistaken, presented the state judges’ orders as evidence, and rested. The trial spans only 14 pages of transcript.

We have resolved this case as the litigants presented it. Because the district judge did not make a clearly erroneous finding when concluding that Wells had not shown that Caudill acted with the necessary state of mind, the judgment is affirmed.

Affirmed

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7th Circuit Court of Appeals

Case Name: Taphia Williams, et al., v. Thomas J. Dart, et al.,

Case No.: 19-2108

Officials: KANNE, WOOD, and HAMILTON, Circuit Judges.

Focus: Due Process Violation and Equal Protection Claims

“In our society,” the Supreme Court has said, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). Not as a statistical matter, says the Bureau of Justice Statistics. See Jail Inmates in 2018, at 5 (2020), available at bjs.gov/content/pub/pdf/ji18.pdf (in 2018, 490,000 jail inmates (two thirds of total) had not been convicted of offense). To better enforce the norm and police the exceptions more carefully, Cook County, Illinois, like other jurisdictions across the country, recently revised its pretrial detention policies in favor of broader access to pretrial release.

The plaintiffs in this case allege that defendant Thomas Dart, the Cook County Sheriff, disagreed with the revised policies and substituted in their place policies of his own making that denied them release. Plaintiffs are nine black residents of Chicago, arrested and charged with felonies, whom the Cook County trial courts admitted to bail subject to electronic monitoring supervised by the Sheriff. According to plaintiffs, the Sheriff independently reviewed plaintiffs’ bail orders and decided they should not be released on those conditions. As a result, plaintiffs were neither released on monitoring nor left at liberty. Instead, they languished in the Sheriff’s jail for up to two weeks after the bail orders were issued while their families and lawyers scrambled to find out what was happening. Motions for rules to show cause were filed. Two plaintiffs were released in the dead of night, hours before the motion hearings could be held.

Plaintiffs allege federal constitutional and state-law claims on behalf of the nine named plaintiffs and a putative class of other arrestees whose bail orders were disregarded by the Sheriff. After three rounds of pleading, the district court dismissed most of the suit for failure to state a claim. Plaintiffs abandoned the balance and took this appeal. We reverse in part and remand. Plaintiffs’ allegations are sufficient to proceed on federal constitutional claims for wrongful pretrial detention and denial of equal protection, and on state-law claims for contempt of court.

Affirmed in part. Reversed and remanded in part.

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7th Circuit Court of Appeals

Case Name: Detlef Sommerfield v. Lawrence Knasiak

Case No.: 18-2045

Officials: FLAUM, RIPPLE, and WOOD, Circuit Judges.

Focus: Punitive Damages

After experiencing virulent anti-Semitic abuse at the hands of Sergeant Lawrence Knasiak, Officer Detlef Sommerfield of the Chicago Police Department (CPD) filed a lawsuit against Knasiak and the City of Chicago in which he alleged discrimination, harassment, and retaliation based on his German national origin and his Jewish ethnicity. After the City was dismissed from the case, a jury returned a verdict for Sommerfield and awarded him $540,000 in punitive damages; he also received a modest award representing pre-judgment interest for backpay and pension benefits he already had received. Knasiak has appealed, contending that he was entitled to judgment as a matter of law, or at least a new trial, and that the court should have reduced the punitive-damage award. We recognize that this was a closely contested case, but in the end we find no error in the district court’s decisions, and so we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Vincent Corner

Case No.: 19-3517

Officials: WOOD, BARRETT, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – First Step Act

Vincent Corner violated the conditions of his supervised release, and he was sentenced to 18 months’ imprisonment followed by 42 months’ supervised release. Corner later moved for a reduced sentence under section 404 of the First Step Act of 2018. The district court did not assess Corner’s eligibility for relief under the Act, explaining that it would not lower his sentence regardless of his eligibility because he had violated the terms of his release. Corner appeals, arguing that it was procedural error for the district court to deny relief without first determining whether the Act applied to his sentence and what the new statutory penalties would be. We agree, so we vacate the judgment and remand for further proceedings.

While serving a term of supervised release for possessing with intent to distribute 11 grams of cocaine base (i.e., crack), 21 U.S.C. § 841(a)(1), Corner violated the conditions by using and possessing illegal drugs, failing to comply with drug testing, and lying to his probation officer about his inability to maintain employment. Because Corner had tested positive for controlled substances more than three times in one year, the district court determined that revocation of his supervised release was mandatory. See 18 U.S.C. § 3583(g)(4). The court noted that the statutory maximum for Corner’s reimprisonment was three years, id. § 3583(e)(3), and that another term of supervised release of 60 months, minus the revocation sentence, could be imposed, id. § 3583(h). It sentenced Corner to 18 months’ imprisonment (half of the statutory maximum) and 42 months of supervised release.

Shortly after Corner was sentenced, Congress passed the First Step Act of 2018, which empowers district courts to re‐ duce a defendant’s sentence by applying the Fair Sentencing Act of 2010 retroactively. First Step Act of 2018, Pub. L. No. 115–391, § 404(b), 132 Stat. 5194. The Fair Sentencing Act, in relevant part, modified 21 U.S.C. § 841(b)(1)(B)(iii)—under which Corner was convicted—by reducing the statutory minimum penalties and increasing the amount of crack necessary to trigger those penalties from 5 grams to 28 grams. Fair Sentencing Act, Pub. L. 111‐220, § 801, 124 Stat. 2372.

Congress afforded district courts wide discretion in the First Step Act context. But by not considering what reduced penalties would now apply to Corner’s offense, the district court fell short of the review envisioned by the Act. Corner has finished serving his revocation sentence, but his appeal is not moot because the court could still reduce his term of supervised release. See Mont v. United States, 139 S. Ct. 1826, 1834 (2019); United States v. Sutton, 962 F.3d 979, 982 (7th Cir. June 23, 2020). We therefore VACATE the district court’s judgment and REMAND for further proceedings.

Vacated and remanded

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7th Circuit Court of Appeals

Case Name: Moses Perez, et al., v. K & B Transportation, Inc., et al.,

Case No.: 19-2984

Officials: EASTERBROOK, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Negligence Claim – Summary Adjudication

Plaintiff Moses Perez was driving a sport‐utility vehicle when he apparently hit a patch of ice, lost control, and was then hit from behind by defendant Kiara Wharton driving a tractor‐trailer. After excluding Perez’s expert witnesses on accidents and truck‐driving, the district court granted summary judgment for Wharton and her employer, K & B Transportation, Inc. We conclude that this classic negligence case was inappropriate for summary adjudication. Under Illinois law, a reasonable jury could infer that Wharton was driving negligently based on the evidence that she rear‐ended Perez and that she was driving too fast for the weather conditions. We reverse and remand for trial.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Nathan Sigler v. Geico Casualty Company, et al.,

Case No.: 19-2272

Officials: SYKES, Chief Judge, and KANNE and BARRETT, Circuit Judges.

Focus: Insurance – Total-loss Claim

Nathan Sigler totaled his 2001 Dodge Ram and filed a claim with GEICO, his auto insurer, for the loss. GEICO paid him for the value of the car, adjusted for depreciation, minus his deductible. Sigler claims he is entitled to more—namely, sales tax and title and tag transfer fees for a replacement vehicle, though he did not incur these costs. He filed a proposed class action against GEICO seeking damages for breach of contract. Illinois law governs this dispute. The district court dismissed the suit, holding that neither the GEICO policy nor Illinois insurance law requires payment of these costs when the insured does not incur them.

We affirm. The premise of Sigler’s suit is that sales tax and title and tag transfer fees are always part of “replacement cost” in a total-loss claim—regardless of whether the insured incurs these costs. That misreads the policy and the relevant Illinois insurance regulation. GEICO’s policy doesn’t promise to pay sales tax or title and tag transfer fees, and the Illinois Administrative Code requires a settling auto insurer to pay these costs only if the insured actually incurs and substantiates them with appropriate documentation. Because Sigler did not do so, the judge properly dismissed the suit.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Wade Bonk

Case No.: 19-1948

Officials: RIPPLE, WOOD, and SCUDDER, Circuit Judges.

Focus: Plea & Sentencing

A grand jury returned a superseding indictment charging Wade Bonk and his two codefendants, Darcy Kampas and Timothy Wood, with conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

Wood and Kampas pleaded guilty to the conspiracy count in accordance with their plea agreements. Mr. Bonk also pleaded guilty to the conspiracy count, but without the benefit of a cooperation plea agreement. He was sentenced to 262 months’ imprisonment, less than the guidelines range but more than what Mr. Bonk had requested, due to the nature and extent of Mr. Bonk’s past criminal conduct, combined with the nature of the offense of conviction. Final judgment was entered, and Mr. Bonk timely filed a notice of appeal. There is nothing substantively unreasonable about this sentence.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: State of Wisconsin v. Frank Tyrone Whitehead

Case No.: 2018AP83

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

Focus: Postconviction Relief – Ineffective Assistance of Counsel

Frank Whitehead, pro se, appeals from the circuit court’s denial of his WIS. STAT. § 974.06 (2017-18)1 postconviction motion without a hearing. We conclude all claims Whitehead attempts to raise are barred. Whitehead’s briefs on appeal are very difficult to follow. We construe his arguments to reassert five claims raised in his WIS. STAT. § 974.06 motion and supplements. We conclude one claim is barred as having been previously litigated. See § 974.06(4); State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991). The remaining four claims are barred because Whitehead cannot show that these claims are clearly stronger than the claims postconviction counsel raised during the direct appeal. See State v. Romero-Georgana, 2014 WI 83, ¶4, 360 Wis. 2d 522, 849 N.W.2d 668. Consequently, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Antonio L. Simmons

Case No.: 2018AP591-CR

Officials: Brash, P.J., Donald and White, JJ.

Focus: Motion for Reconsideration Denied and Due Process Violation

Antonio L. Simmons appeals an order from the circuit court denying his motion for postconviction deoxyribonucleic acid (DNA) testing on several items of evidence, pursuant to WIS. STAT. § 974.07 (2017-18). He also appeals orders denying his motion for reconsideration and his motion requesting supplemental briefing on his related due process argument regarding the items that were destroyed. We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Rodney Timm

Case No.: 2018AP1922

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

Focus: Discharge of Commitment

Rodney Timm appeals an order denying his petition for discharge from his commitment as a sexually violent person under WIS. STAT. ch. 980 (2017-18). Upon our de novo review, we conclude as a matter of law that Timm has failed to demonstrate his condition has sufficiently changed from the time of his commitment such that he is entitled to a discharge trial. We reach this conclusion based only upon the contents of Timm’s petition and the undisputed facts of record, without our “weighing” any evidence. Accordingly, we need not, and do not, resolve the parties’ dispute over the proper standard for obtaining a discharge trial under WIS. STAT. § 980.09(2), in light of the fractured decision issued by our supreme court in State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17. For these reasons, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Craig Felix Lathon

Case No.: 2019AP36; 2019AP37

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

Focus: Postconviction Relief – Newly Discovered Evidence

Craig Lathon was convicted of three counts of first-degree intentional homicide based on jury verdicts in 1992. He appeals an order denying his WIS. STAT. § 974.06 (2017-18) postconviction motion for a new trial.  The postconviction motion is based on purported newly discovered evidence which he contends shows that he was convicted based on the perjured trial testimony of three witnesses who conspired to frame him. He further argues that based on purported newly discovered evidence, the State failed to disclose exculpatory evidence to the defense before trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). He also argues that the trial court erred in not granting an evidentiary hearing on his motion. We reject Lathon’s arguments related to the alleged conspiracy to frame him based on controlling propositions in State v. McAlister, 2018 WI 34, 380 Wis. 2d 684, 911 N.W.2d 77. We reject his Bradybased argument because, even assuming such a failure to disclose, we conclude that he fails to show that he has evidence of the materiality required to sustain a Brady claim. Accordingly, we affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Bobby L. McNeil

Case No.: 2019AP467-CR; 2019AP468-CR

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

Focus: Sentence Modification

Bobby L. McNeil appeals his judgments of conviction in two cases: the first case, where he was convicted of obstructing an officer; and the second case, where he was convicted of several counts of possession of controlled substances, obstructing an officer, and felony bail jumping. He also appeals an order denying his postconviction motion without a hearing.

McNeil argues that he is entitled to resentencing or sentence modification as a result of inaccurate information presented at his sentencing hearing relating to the presence of fentanyl in the cocaine he was charged with possessing. The trial court discussed this as an aggravating factor, even though the evidence presented at trial was that the fentanyl present in the sample tested was not sufficient for conclusive identification.

McNeil further argues that the trial court erroneously exercised its discretion in granting the State’s request for joinder of the two cases, and for admitting other-acts evidence relating to McNeil’s previous incidents of drug dealing. Additionally, McNeil argues that he received ineffective assistance of counsel based on his trial counsel’s failure to object to allegedly erroneously admitted character evidence. Furthermore, McNeil raises the issue of sufficiency of the evidence for his conviction on the drug possession charges in the second case.

We conclude that McNeil is entitled to resentencing due to the reliance of the trial court on inaccurate information regarding the presence of fentanyl in the cocaine McNeil possessed. We therefore reverse the order of the postconviction court and remand this matter for resentencing. As for McNeil’s other claims, we affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jason Allen Donahue

Case No.: 2019AP590-CR

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

Focus: Miranda Warnings

Jason Donahue appeals from a judgment, entered upon his no-contest plea, convicting him of first-degree sexual assault of a child under the age of thirteen. Donahue argues the circuit court erred by denying his motion to suppress incriminating statements he made to police during a custodial interrogation for two reasons: (1) he did not knowingly, intelligently and voluntarily waive his Miranda rights prior to giving his statements; and (2) even assuming he validly waived his Miranda rights, his statements were involuntary. We reject his arguments and affirm.

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WI Court of Appeals – District III

Case Name: Roger V. Jackson, et al., v. Kay D. Childs

Case No.: 2019AP606

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

Focus: Sufficiency of Evidence

Kay Childs appeals a judgment, entered following a bench trial, determining that Roger and Debra Jackson acquired title to a parcel of land by adverse possession. Childs argues the evidence at trial was insufficient to establish adverse possession. We disagree and affirm.

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WI Court of Appeals – District III

Case Name: Gordon Kosobucki, et al., v. Marlene A. Kosobucki, et al.,

Case No.: 2019AP846

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

Focus: Sufficiency of Evidence and Damages

This appeal involves a dispute between the children of John A. Kosobucki.  A jury awarded Kosobucki’s son Gordon $625,000 on his defamation claim against two of his siblings, John and Marlene. John and Marlene argue the evidence was insufficient to support the jury’s finding that, in making the statements in question, John and Marlene abused the family member well-being privilege. In the alternative, John and Marlene argue the circuit court should have reduced the jury’s award of $625,000 in damages. We reject these arguments and affirm the jury’s verdict in favor of Gordon on the defamation claim.

Gordon and his two other brothers, Dennis and Karl, cross-appeal, arguing the circuit court erred by rejecting their undue influence claim against John and Marlene. Gordon, Dennis, and Karl also argue that they were entitled to have a jury, rather than the circuit court, determine whether they had proved their undue influence claim. Again, we reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Michael Thomas Martell

Case No.: 2019AP927-CR

Officials: SEIDL, J.

Focus: Unlawful-stop Claim – Reasonable Suspicion

Michael Martell appeals a judgment, entered upon his no-contest plea, convicting him of second-offense operating a motor vehicle while intoxicated (OWI). Martell argues the circuit court erred by denying his motion to suppress evidence obtained during his traffic stop, contending the law enforcement officer lacked reasonable suspicion to stop his vehicle. We conclude the officer had reasonable suspicion to stop Martell’s vehicle and, therefore, affirm.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Joseph K. Edwards

Case No.: 2019AP2138-CR

Officials: DONALD, J.

Focus: Jury Instructions

Joseph K. Edwards appeals a judgment of conviction, following a jury trial, of one count of disorderly conduct with the use of a dangerous weapon. He also appeals from the order denying his postconviction motion for a new trial. On appeal, Edwards again contends that the trial court erred in failing to provide the jury with the “true threat” language of WIS JI—CRIMINAL 1900. We disagree We affirm.

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Chase M.A. Boruch

Case No.: 2018AP152

Officials: Sheila T. Reiff Clerk of Court of Appeals

Focus: Order Correcting Opinion

PLEASE TAKE NOTICE that the correction was made to paragraph 24 n.5, in the above-captioned opinion which was released on May 19, 2020. A corrected electronic version in its entirety is available on the court’s website at www.wicourts.gov.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Jeffrey T. Ziegler

Case No.: 2019AP858-CR

Officials: NASHOLD, J.

Focus: Plea Withdrawal – Sufficiency of Evidence

Jeffrey Ziegler appeals judgments of conviction, based on his guilty pleas, for two counts of invasion of privacy. He also appeals an order denying his motion to withdraw his guilty pleas. Ziegler argues that the circuit court erred in denying his motion to withdraw because there was no factual basis for the guilty pleas. Specifically, he asserts that the facts are insufficient to show that he looked into the victims’ windows “for the purpose of sexual arousal or gratification,” an element of invasion of privacy under WIS. STAT. § 942.08(2)(d). The judgments and order are affirmed.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Christopher S. Petros

Case No.: 2020 WI 71

Focus: Attorney Disciplinary Hearing

We review the recommendation of the referee, Allan Beatty, recommending that Attorney Christopher S. Petros’ license to practice law be suspended for two years due to his professional misconduct. The referee also recommended that Attorney Petros be ordered to pay restitution to the Wisconsin Lawyers’ Fund for Client Protection (“the Fund”) in the amount of $24,000, and pay the full costs of this proceeding, which are $4,387.44 as of April 10, 2020. The referee’s findings of fact, conclusions of law, and recommendations derive from two stipulations filed by the parties.

We adopt the referee’s findings of fact and conclusions of law. We agree that the seriousness of Attorney Petros’ professional misconduct warrants a two-year suspension of his law license. We further agree that Attorney Petros should pay restitution as recommended by the referee and that he should pay the full costs of this proceeding.

Attorney’s license suspended

Concur:

Dissent:

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