Opinions posted daily on the Court's Web site. http://www.ca8.uscourts.gov/opns/opFrame.html en-us http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/02/2009 2009-11-02 10:00:15 DISCLAIMER:  The following unofficial case summaries are prepared by the clerk's office as a courtesy to the reader. They are not part of the opinion of the court.

082555P.pdf    11/02/2009   Donna Scroggin   v.   Wyeth
U.S. Court of Appeals Case No: 08-2555
                                              and No: 08-2711
                                              and No: 08-2713
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Wollman, Author, with John R. Gibson and Murphy, Circuit Judges]
Civil case - Products liability. Under recent Supreme Court precedent, plaintiff's state law claim for failure to warn was not preempted by federal law as there was no evidence that the FDA would not have permitted the strengthening of the labels of Premarin, Prempro and Provera in a manner consistent with Arkansas law and defendants have not shown that the state requirements obstruct the purposes of federal drug labeling regulation; plaintiff's claim was not barred by Arkansas's statute of limitations as the claim did not accrue until the publication of a study by the Women's Health Initiative linking hormone replacement therapy and breast cancer; plaintiff's evidence on specific and proximate causation was sufficient to support the jury's verdict finding Wyeth and Upjohn liable for her injuries; the district court did not err in admitting the testimony of plaintiff's expert on specific causation; district court did not err in modifying the Arkansas model jury instruction on proximate cause to reflect plaintiff's theory that estrogen plus progestin use promotes preexisting abnormal cells into malignancies; district court did not abuse its discretion in striking her expert's testimony on punitive damages; the district court's order granting judgment as a matter of law to Upjohn on plaintiff's punitive damages claim is affirmed as there was not substantial evidence showing Upjohn acted with such a conscious indifference to the consequences that malice may be inferred; with respect to Wyeth, the court adopts the district court's alternative finding and remands the matter for a new trial on punitive damages, as the evidence could allow a jury to find or infer that Wyeth was guilty of malicious conduct.

082609U.pdf    11/02/2009   United States   v.   Gregory Johnson
U.S. Court of Appeals Case No: 08-2609
U.S. District Court for the Southern District of Iowa - Davenport
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Criminal case - Sentencing. Defendant waived his right to appeal drug quantity calculation as part of his plea agreement, and the appeal is dismissed.

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081952P.pdf    11/03/2009   Randal McCullough   v.   Aegon USA
U.S. Court of Appeals Case No: 08-1952
U.S. District Court for the Northern District of Iowa - Cedar Rapids
[PUBLISHED] [Colloton, Author, with Bye, Circuit Judge, and Goldberg, Judge of the United States Court of International Trade]
Civil case - ERISA. The court's holding in Harley v. Minnesota Mining & Manufacturing Co., 284 F.3d 901 (8th Cir. 2002) remains valid in light of Sprint Communications Co. v. APCC Services, Inc., 128 S. Ct. 2531 (2008), and defendant's summary judgment is affirmed; given Harley's holding that a participant suffers no injury so long as the plan is substantially overfunded, there was no basis to authorize an action against the fiduciaries for injunctive relief. Judge Bye, dissenting.

082801U.pdf    11/03/2009   Li, Qiu Yan   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 08-2801
Board of Immigration Appeals
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Petition for Review - Immigration. Substantial evidence supports the BIA's determination that, even assuming the truth of petitioner's testimony, she failed to show that she suffered persecution on account of a protected ground; further, petitioner failed to offer specific, credible evidence that a reasonable person in her position would fear forcible sterilization if she returned to China.

082878U.pdf    11/03/2009   Abubakarr Fofanah   v.   Michael B. Mukasey
U.S. Court of Appeals Case No: 08-2878
Board of Immigration Appeals
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Petition for Review - Immigration. The BIA did not abuse its discretion by finding that petitioner did not show materially changed country conditions warranting reopening his case.

082880U.pdf    11/03/2009   Juan Mendoza-Mejia   v.   Michael Mukasey
U.S. Court of Appeals Case No: 08-2880
Board of Immigration Appeals
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Petition for Review - Immigration. Substantial evidence supports the BIA's determination that petitioner was not subjected to past persecution and did not have a well-founded fear of future persecution if he returned to Guatemala; the court lacks jurisdiction to review the BIA's determination that petitioner failed to prove that his removal would cause an exceptional and extremely unusual hardship to his spouse or child under 8 U.S.C. Sec. 1229b(b)(1)(D).

091875U.pdf    11/03/2009   United States   v.   Solomon Coffey
U.S. Court of Appeals Case No: 09-1875
District of Nebraska - Omaha
[UNPUBLISHED] [Per Curiam - Before Riley, Hansen and Gruender, Circuit Judges]
Criminal case - Sentencing. A district court resentencing a defendant based on the retroactive change in the crack Guidelines pursuant to 18 U.S.C. Sec. 3582(c), lacks authority to sentence a defendant below his newly calculated Guidelines range.

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073779U.pdf    11/04/2009   United States   v.   Adrian Davis
U.S. Court of Appeals Case No: 07-3779
U.S. District Court for the Western District of Missouri - Springfield
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Criminal case - criminal law. Anders case. Evidence was sufficient to support defendant's convictions for conspiracy to distribute crack and distribution of the drug.

083785U.pdf    11/04/2009   United States   v.   Mark Ayala
U.S. Court of Appeals Case No: 08-3785
U.S. District Court for the Southern District of Iowa - Des Moines
[UNPUBLISHED] [Per Curiam - Before Riley, Hansen and Gruender, Circuit Judges]
Criminal case - Sentencing. The district court properly denied defendant's request for relief under 18 U.S.C. Sec. 3582(c)(2) because defendant's guidelines range was calculated based on his distribution of drugs other than crack cocaine; the district court properly denied defendant's request for a reduced sentence under 18 U.S.C. Sec. 3582(c)(1)(A)(I) as the Director of the Bureau of Prisons did not file a motion requesting relief for extraordinary and compelling reasons.

091800U.pdf    11/04/2009   Dexter Nash   v.   Cobbs
U.S. Court of Appeals Case No: 09-1800
U.S. District Court for the Eastern District of Arkansas - Helena
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Civil case - civil rights. Dismissal of Section 1983 action affirmed without comment.

091899P.pdf    11/04/2009   Mary E. Petersen   v.   Tim Reisch
U.S. Court of Appeals Case No: 09-1899
U.S. District Court for the District of South Dakota
[PUBLISHED] [Riley, Author, with Hansen and Gruender, Circuit Judges]
Civil case - civil rights. The district court's denial of defendants' motion for summary judgment based on qualified immunity contemplated the filing of another motion after plaintiff's counsel clarified her pleading, and the order was not appealable.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/04/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/05/2009 2009-11-05 10:00:22 DISCLAIMER:  The following unofficial case summaries are prepared by the clerk's office as a courtesy to the reader. They are not part of the opinion of the court.

081205U.pdf    11/05/2009   Roger Day   v.   State of Minnesota
U.S. Court of Appeals Case No: 08-1205
U.S. District Court for the District of Minnesota - Minneapolis
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Civil case. Dismissal affirmed without comment.

082127U.pdf    11/05/2009   United States   v.   Jerry Angelle, Jr.
U.S. Court of Appeals Case No: 08-2127
U.S. District Court for the Northern District of Iowa - Sioux City
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Criminal case - criminal law. Anders case. Evidence was sufficient to sustain conviction; defendant waived his right to challenge admission of a prior conviction; challenge to jury instructions rejected; no error in imposing mandatory minimum sentence; ineffective assistance of counsel should be raised in a habeas.

082655U.pdf    11/05/2009   United States   v.   Angel Perez-Abarca
U.S. Court of Appeals Case No: 08-2655
U.S. District Court for the Northern District of Iowa - Sioux City
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Criminal case - Sentencing. Anders case. Sentence was not unreasonable as the district court imposed the mandatory minimum and defendant failed to show he was eligible for safety-valve sentencing; ineffective assistance of counsel claim should be raised in a habeas.

083519P.pdf    11/05/2009   Yitabarek Yohannes   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 08-3519
Board of Immigration Appeals
[PUBLISHED] [Wollman, Author, with Hansen and Shepherd, Circuit Judges]
Petition for Review - Immigration. While the ultimate decision as to whether to grant a marriage waiver under 8 U.S.C. Sec. 1186a(c)(4) is discretionary, the court has jurisdiction to consider the legal standard for a good faith marriage and to determine whether the credited evidence meets the standard; here, petitioner failed to proved that he entered into a bona fide marriage, and the BIA did not err in concluding that petitioner was ineligible for a waiver because he failed to satisfy the legal standards for a good faith marriage.

083778U.pdf    11/05/2009   Battlefield Center   v.   National City Bank
U.S. Court of Appeals Case No: 08-3778
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam -Before Wollman, Hansen and Shepherd, Circuit Judges]
Civil case. Defendant's summary judgment on plaintiff's claims of tortious interference with a business relation and fraud is affirmed without comment.

096027P.pdf    11/05/2009   Bonnie Lee Duncan   v.   John V. LaBarge, Jr.
U.S. Court of Appeals Case No: 09-6027
U.S. Bankruptcy Court for the Eastern District of Missouri
[PUBLISHED] [Kressel, Author, with Federman and Venters, Bankruptcy Judges]
Bankruptcy Appellate Panel. Bankruptcy court did not abuse its discretion in dismissing debtors' case on the ground that they had not filed the required credit counseling certificate; nor did the court err in concluding debtors had not demonstrated exigent circumstances meriting a waiver of the requirement; panel would not consider evidence and arguments not provided to the bankruptcy court.

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083638U.pdf    11/06/2009   United States   v.   Andre Dodds
U.S. Court of Appeals Case No: 08-3638
U.S. District Court for the Eastern District of Arkansas - Little Rock
[UNPUBLISHED][Per Curiam - Before Loken, Chief Judge, and Wollman and Shepherd, Circuit Judges]
Criminal case - Criminal law and Sentencing. Evidence was sufficient to support defendant's conviction for distributing crack; defendant's prior burglary and drug convictions were properly counted as violent felonies or serious drug offenses, and the district court did not err in sentencing defendant under the Armed Career Criminal Act.

083645P.pdf    11/06/2009   Charles Sell   v.   USA Dept. of Justice
U.S. Court of Appeals Case No: 08-3645
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED][Wollman, Author, with Hansen and Shepherd, Circuit Judges]
Civil case - Federal Tort Claims Act. District court did not err in finding that Sell's condition did not toll the two-year statute of limitations applicable to FTCA action as he had the knowledge and wherewithal to bring the action on a timely basis; district court did not err in finding that the continuous treatment exception did not apply.

083807P.pdf    11/06/2009   United States   v.   Michael Jones
U.S. Court of Appeals Case No: 08-3807
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Bright, Author, with Murphy and Riley, Circuit Judges]
Criminal case - criminal law. District court did not err in denying defendant's motion to suppress the seizure of an open duffel bag of marijuana as the officers found the bag during a lawful protective sweep, and the marijuana was visible in the open bag; in a prosecution for possession of methamphetamine with intent to distribute, the district court did not err in refusing to give an instruction on the lesser included offense of simple possession of methamphetamine as that instruction was not supported by the evidence, including defendant's own testimony in which he admitted he shared the drugs with others.

083878P.pdf    11/06/2009   United States   v.   Joe Madison
U.S. Court of Appeals Case No: 08-3878
U.S. District Court for the Northern District of Iowa - Sioux City
[PUBLISHED][Riley, Author, with Smith and Gruender, Circuit Judges]
Criminal case - Sentencing. Where a district court has authority to sentence below a statutory minimum only by virtue of a government motion under 18 U.S.C. Sec. 3553(e), the reduction must be based exclusively on assistance-related considerations; here, a review of the sentencing transcripts and memorandum established that the district court impermissibly considered the 18 U.S.C. Sec. 3553(a) factors, rather than relying exclusively on assistance-related factors, in determining to depart below the mandatory minimum sentence; case remanded for resentencing.

091432P.pdf    11/06/2009   United States   v.   Anthony Collier
U.S. Court of Appeals Case No: 09-1432
U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED][Loken, Chief Judge, with Wollman and Shepherd, Circuit Judges]
Prisoner case - habeas. Defendant waived his argument that the district court committed procedural error by treating the Guidelines as mandatory and by failing to consider the statutory factors in 18 U.S.C. Sec. 3553(a) in this resentencing proceeding; even if the contentions were not waived, the district court did not commit plain error; the court provided an adequate explanation for its sentencing decision; claim that the court erred in not making his federal sentence concurrent with an undischarged state sentence was procedurally barred as it had not been raised in defendant's direct appeal; further, defendant waived the issue when he stated he was not seeking concurrent sentence and was seeking, instead, credit for time served.

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