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.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/02/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/03/2009 2009-11-03 10:00:18 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.

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.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/03/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/04/2009 2009-11-04 10:00:17 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.

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.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/05/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/06/2009 2009-11-06 10:00:18 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.

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.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/06/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/09/2009 2009-11-09 10:00:26 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.

073485P.pdf    11/09/2009   Edward Sunder   v.   U.S. Bank Pension Plan
U.S. Court of Appeals Case No: 07-3485
                                              and No: 07-3593
                                              and No: 07-3771
                                              and No: 08-1910
                                              and No: 08-2616
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Hansen, Author, with Murphy and Bye, Circuit Judges]
Civil case - ERISA. Neither ERISA nor the terms of the plan precluded defendant from calculating the plaintiffs' opening cash balances using the 8% discount rate set out in Appendix A of the plan rather than the Internal Revenue Code statutory discount rate; as a result, the district court erred in awarding plaintiffs damages based on its holding that the IRC discount rate should have been used; plaintiffs' cross-appeal issue on the date of the plan conversion was moot; argument concerning dismissal of plaintiff's ERISA age discrimination claim was waived as their appeal presented an entirely new argument on the issue.

073861U.pdf    11/09/2009   United States   v.   Dennis Keely
U.S. Court of Appeals Case No: 07-3861
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Criminal case - Sentencing. Anders case. Below-guidelines range sentence was not unreasonable.

081686P.pdf    11/09/2009   James E. Norman   v.   Tim Schuetzle
U.S. Court of Appeals Case No: 08-1686
                                              and No: 08-2219
District of North Dakota - Bismarck
[PUBLISHED] [Hansen, Author, with Wollman and Bye, Circuit Judges]
Prisoner case - prisoner civil rights. Warden was entitled to qualified immunity on failure-to-protect claim as there was no evidence he knew of and disregarded an excessive risk to plaintiff's safety and the risk was not so obvious that a reasonable prison official would have noticed it; court could not say case worker violated plaintiff's Eighth Amendment rights when he logged a possible threat to plaintiff and notified his supervisor but failed to take any further action, and the case worker was entitled to qualified immunity; similarly, a second caseworker's failure to take additional action was not a constitutional violation, and she was entitled to qualified immunity; existing case law did not put defendant Wrolstad on notice that his actions in showing plaintiff's kites to other inmates would put plaintiff at a substantial risk of harm from other inmates, thereby violating his rights, and, as a result, Wrolstad was entitled to qualified immunity on plaintiff's claims that his actions violated plaintiff's rights. Judge Bye, concurring in part and dissenting in part.

082631U.pdf    11/09/2009   Laura Rivera   v.   Tim Reisch, etc.
U.S. Court of Appeals Case No: 08-2631
U.S. District Court for the District of South Dakota
[UNPUBLISHED][Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Prisoner case - prisoner civil rights. Whatever right plaintiff had to different medical or mental health care, it was not so clearly established that defendants would have known their actions violated plaintiffs' rights, and they were entitled to qualified immunity on her claims.

082863U.pdf    11/09/2009   Woodrow Anderson   v.   CMS
U.S. Court of Appeals Case No: 08-2863
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Prisoner case - prisoner civil rights. Defendants' summary judgment affirmed without comment.

083050U.pdf    11/09/2009   United States   v.   Veronica Perales
U.S. Court of Appeals Case No: 08-3050
District of Nebraska - Omaha
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Criminal case - Sentencing. Sentence imposed upon revocation of defendant's supervised release was not unreasonable.

083374U.pdf    11/09/2009   Robert McCoy   v.   Carter-Jones Timber Company
U.S. Court of Appeals Case No: 08-3374
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Civil case - civil rights. District court properly determined it lacked subject-matter jurisdiction to hear the McCoy plaintiffs' Section 1983 claims under the Rooker-Feldman doctrine; district court did not err in finding the Lea plaintiffs had failed to state a claim upon which relief could be granted as to the private defendants; district court did not err in finding the state defendants were immune from plaintiffs' claims under the Eleventh Amendment; the court did not abuse its discretion in dismissing the remaining claims.

083378P.pdf    11/09/2009   Aida Diop   v.   Eric H. Holder, Jr.
U.S. Court of Appeals Case No: 08-3378
Board of Immigration Appeals
[PUBLISHED] [Wollman, Author, with Hansen and Shepherd, Circuit Judges]
Petition for Review - Immigration. Petitioner failed to establish an objective risk that her child will be subjected to FGM if they return to Senegal, and the denial of asylum is affirmed; exclusion of expert testimony did not create a due process violation; claim the IJ was biased rejected.

083617P.pdf    11/09/2009   Kenneth Rohrbough   v.   Luther Hall
U.S. Court of Appeals Case No: 08-3617
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Arnold, Author, with Bye and Smith, Circuit Judges]
Civil case - civil rights. Plaintiff made a sufficient showing that defendant Hall used excessive in effecting plaintiff's arrest, and the district court did not err in finding Hall was not entitled to qualified immunity; court would not consider Board of Police Commissioner's appeal as plaintiff's claim that they failed to supervise the defendant officers was not inextricably intertwined with Hall's interlocutory appeal.

091325P.pdf    11/09/2009   United States   v.   Lewis Curry
U.S. Court of Appeals Case No: 09-1325
U.S. District Court for the Eastern District of Missouri - Cape Girardeau
[PUBLISHED] [Wollman, Author, with Loken, Chief Judge, and Shepherd, Circuit Judge]
Criminal case - sentencing. In a proceeding to modify defendant's sentence under the amendments to the crack guidelines, the district court did not abuse its discretion in failing to explicitly state what sentence it would have imposed had the amendment been in effect when defendant was originally sentenced; district court's observation that defendant's original sentence was the product of negotiation was an accurate reflection of the record; district court did not abuse its discretion in denying defendant's motion to modify his sentence.

091484P.pdf    11/09/2009   Wilson Smith   v.   Officer Troy Taff
U.S. Court of Appeals Case No: 09-1484
U.S. District Court for the Western District of Missouri - Kansas City
[PUBLISHED] [Benton, Author, with Melloy and Gruender, Circuit Judges]
Civil case - civil rights. District court's determinations on qualified immunity issues were legal determinations and the court had jurisdiction over the defendant police officers' interlocutory appeal; at the time of the incident a reasonable officer would have understood that it was unlawful to enter a home without a warrant, absent consent or exigent circumstances, and the officer was not entitled to qualified immunity on plaintiff's claim that his Fourth Amendment rights were violated; district court did not err in denying officers' claims that they were entitled to qualified immunity on plaintiff's excessive force claim as there were genuine issues as to whether the officers used excessive force in violation of plaintiff's established Fourth Amendment rights.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/09/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/10/2009 2009-11-10 10:00:21 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.

081918U.pdf    11/10/2009   Jimmy J. Micius   v.   City of St. Paul
U.S. Court of Appeals Case No: 08-1918
U.S. District Court for the District of Minnesota - Minneapolis
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Civil case - civil rights. Defendants' summary judgment affirmed without comment.

082001P.pdf    11/10/2009   Reggie White   v.   National Football League
U.S. Court of Appeals Case No: 08-2001
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Wollman, Author, Riley and Colloton, Circuit Judges]
Civil case - Sports law. District court did not abuse its discretion in denying the League's Rule 60(b) motion to amend the judgment in a case involving the question of whether bonus payments made to Michael Vick could be recovered following his conviction on federal dog fighting charges; the Supreme court's rationale in Brown v. Pro Football, Inc., 518 U.S. 231 (1996) does not apply to this case and the district court's oversight of the settlement agreement between the players and the league is permissible and is not an unlawful meddling in the collective bargaining agreement; developments since the settlement, including recertification of the players union, the resumption of collective bargaining and the diminishing number of original class members still in the game, did not warrant modification of the settlement agreement; while the district judge would have been well advised not to opine about his role in enforcing an ongoing consent decree, his public comments did not create a reasonable perception of bias, and he did not err in denying the League's motion to recuse himself; to the extent the League's motion to recuse the judge relied on certain ex parte meetings with counsel for the Player's Association, the motion was untimely; the district court properly rejected the League's argument that Michael Vick's roster bonuses were signing bonuses subject to the years-performed test, and the court did not err in concluding that bonuses were earned, and not subject to forfeiture, after Vick met the roster provisions in his contract.

082016U.pdf    11/10/2009   Ronald Byers   v.   CIR
U.S. Court of Appeals Case No: 08-2016
Tax Court, Internal Revenue Service
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Civil case - Federal Tax. Tax court decision determining Byers's taxable income for certain years is affirmed without comment.

082807P.pdf    11/10/2009   John Middleton   v.   Larry Crawford
U.S. Court of Appeals Case No: 08-2807
                                              and No: 08-2813
                                              and No: 08-2894
                                              and No: 08-2895
U.S. District Court for the Western District of Missouri - Jefferson City
[PUBLISHED] [Riley, Author, with Smith and Shepherd, Circuit Judges]
Prisoner case - prisoner civil rights. Missouri death row prisoners challenging Missouri's execution protocol did not allege a sufficiently substantial risk of serious harm or a sufficiently imminent danger to state an Eighth Amendment claim, and the district court did not err, as a matter of law, in determining that the prisoners had failed to state a claim for violation of the Eighth Amendment; no error in denying motions to intervene.

083380U.pdf    11/10/2009   Robert Holt   v.   Larry Norris
U.S. Court of Appeals Case No: 08-3380
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Prisoner case -habeas. State was not an aggrieved party and did not have standing to appeal an order dismissing Holt's Section 2254 petition without prejudice for his failure to exhaust state remedies; fact that the state would have preferred a dismissal with prejudice did not make it an aggrieved party.

083672U.pdf    11/10/2009   United States   v.   Hipolito Barajas-Ortiz
U.S. Court of Appeals Case No: 08-3672
U.S. District Court for the Western District of Arkansas - Fayetteville
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Criminal case - Sentencing. Anders case. Within-guidelines-range sentence was not unreasonable.

091052U.pdf    11/10/2009   Henry Webb   v.   Unknown Gensler
U.S. Court of Appeals Case No: 09-1052
District of Nebraska - Omaha
[UNPUBLISHED] [Per Curiam - Before Murphy, Colloton and Shepherd, Circuit Judges]
Civil case - civil rights. Dismissal of Section 1983 action affirmed without comment.

091083P.pdf    11/10/2009   Cardrick Flowers   v.   Larry Norris
U.S. Court of Appeals Case No: 09-1083
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[PUBLISHED] [Gruender, Author, with Melloy and Benton, Circuit Judges]
Prisoner case - habeas. District court did not err in finding state court trial counsel's failure to move to sever felon-in-possession charge from aggravated robbery and theft charges was not ineffective assistance of counsel; defense counsel made a strategic decision not to move to sever based on Flowers's general denial defense and not on a mistaken understanding about the admissibility of Flowers's prior conviction.

091353P.pdf    11/10/2009   Unseld Nance, Sr.   v.   Erik Sammis
U.S. Court of Appeals Case No: 09-1353
U.S. District Court for the Eastern District of Arkansas - Jonesboro
[PUBLISHED] [Murphy, Author, with John R. Gibson and Riley, Circuit Judges]
Civil case - civil rights. In excessive force case, the district court did not err in denying officers' motion for summary judgment based on qualified immunity since there were material issues of fact concerning the actions of the officers and the shooting of DeAunta Farrow.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/10/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/12/2009 2009-11-12 10:00:21 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.

062284P.pdf    11/12/2009   United States   v.   Rodney Jensen
U.S. Court of Appeals Case No: 06-2284
                                              and No: 06-2497
U.S. District Court for the Northern District of Iowa - Sioux City
[PUBLISHED] [Colloton, Author, with Gruender, Circuit Judge, and Goldberg, Judge of the United States Court of International Trade]
Criminal case - Sentencing. Case remanded for resentencing in light of Gall and United States v. Burns, 577 F.3d 887 (8th Cir. 2009) (en banc).

082367U.pdf    11/12/2009   United States   v.   Craig Miller
U.S. Court of Appeals Case No: 08-2367
U.S. District Court for the Eastern District of Missouri - St. Louis
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judge]
Criminal case - Criminal law. Anders case. Defendant's appeal falls within the scope of his valid appeal waiver, and the appeal is dismissed.

082490U.pdf    11/12/2009   Darryl Browder   v.   SPO Cam
U.S. Court of Appeals Case No: 08-2490
                                              and No: 08-2491
                                              and No: 08-2492
U.S. District Court for the Southern District of Iowa - Des Moines
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Civil case - civil rights. Defendants' verdict affirmed without comment.

083319U.pdf    11/12/2009   United States   v.   Damon Bryant
U.S. Court of Appeals Case No: 08-3319
U.S. District Court for the Western District of Missouri - Kansas City
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Criminal case - criminal law and sentencing. Anders case. District court did not abuse its discretion in denying defendant's motion to withdraw his plea; appeal waiver covered defendant's appeal of his sentence, and that portion of the appeal is dismissed.

083557U.pdf    11/12/2009   United States   v.   Kevin Leggiton
U.S. Court of Appeals Case No: 08-3557
U.S. District Court for the Western District of Arkansas - Texarkana
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Criminal case - sentencing. Anders case. Sentence at the bottom of he advisory guidelines range was not unreasonable.

083698P.pdf    11/12/2009   United States   v.   Edward Whittington
U.S. Court of Appeals Case No: 08-3698
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Riley, Author, with Bright and Murphy, Circuit Judges]
Criminal case - criminal law. The burden is on the defendant to prove, by a preponderance of the evidence, that he is not competent to stand trial; here, the district court did not err in finding defendant was competent to stand trial regardless of whether the burden was on the defendant or the government; defendant had both a rational and factual understanding of the proceedings and was able to assist in his defense.

091368U.pdf    11/12/2009   United States   v.   Larry Saddler
U.S. Court of Appeals Case No: 09-1368
U.S. District Court for the Western District of Missouri - Joplin
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Criminal case - Sentencing. District court did not abuse its discretion by revoking defendant's supervised release and it imposed a reasonable sentence.

091878U.pdf    11/12/2009   United States   v.   Brandon Allen Wickman
U.S. Court of Appeals Case No: 09-1878
U.S. District Court for the District of Minnesota - St. Paul
[UNPUBLISHED] [Per Curiam - Before Riley, Hansen and Gruender, Circuit Judges]
Criminal case - Sentencing. Defendant's prior conviction for terroristic threats is a crime of violence under this circuit's precedents.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/12/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/13/2009 2009-11-13 10:00:21 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.

073432P.pdf    11/13/2009   Albert Bell   v.   Larry Norris
U.S. Court of Appeals Case No: 07-3432
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[PUBLISHED] [Melloy, Author, with Wollman and Gruender, Circuit Judges]
Prisoner case - habeas. In reviewing the question of whether Bell, a minor, made a knowing and intelligent waiver of his rights, the district court did not err in finding the Arkansas Supreme Court correctly identified the "totality-of-the-circumstances test" as the governing legal standard and that it applied the standard in a reasonable manner; Bell's request-for-counsel/voluntariness claim was procedurally barred.

073762U.pdf    11/13/2009   United States   v.   Shawn Tull
U.S. Court of Appeals Case No: 07-3762
District of Nebraska - Lincoln
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Criminal case - Sentencing. Anders case. District court did not err in finding defendant was subject to a two-level increase to his offense level under Guidelines Sec. 3b1.1(c); sentence at the bottom of the advisory Guidelines range was reasonable; pro se issues rejected.

082871U.pdf    11/13/2009   Bobby Olles   v.   Larry Norris
U.S. Court of Appeals Case No: 08-2871
U.S. District Court for the Eastern District of Arkansas - Little Rock
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Civil case. Denial of Rule 60(b) motion affirmed without comment.

082955U.pdf    11/13/2009   Jerald Fitzwater   v.   J. Skipper Ray
U.S. Court of Appeals Case No: 08-2955
U.S. District Court for the Western District of Arkansas - Harrison
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Civil case. Dismissal without prejudice for failure to file an amended complaint affirmed without comment.

082962U.pdf    11/13/2009   John Yoder   v.   United States
U.S. Court of Appeals Case No: 08-2962
U.S. District Court for the Southern District of Iowa - Des Moines
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Prisoner case - habeas. District court did not err in finding defendant's prior convictions qualified as violent felonies for purposes of 18 U.S.C. Sec. 924(e); as a result, counsel was not ineffective for failing to challenge their use as predicate offenses for sentencing under the statute.

083303U.pdf    11/13/2009   Gary Burke   v.   Bayer AG
U.S. Court of Appeals Case No: 08-3303
U.S. District Court for the District of Minnesota - Minneapolis
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Civil case - products liability. Defendants' summary judgment affirmed without comment.

083619U.pdf    11/13/2009   United States   v.   Timmie Cole, Sr.
U.S. Court of Appeals Case No: 08-3619
U.S. District Court for the Southern District of Iowa - Davenport
[UNPUBLISHED] [Per Curiam - Before Bye, Smith and Benton, Circuit Judges]
Criminal case - criminal law. District court's denial of motion for return of property affirmed without comment.

083844P.pdf    11/13/2009   Estate of Helen Christiansen   v.   CIR
U.S. Court of Appeals Case No: 08-3844
Tax Court, Internal Revenue Service
[PUBLISHED] [Melloy, Beam and Gruender, Circuit Judges]
Civil case - Federal Tax. Tax court finding that a partial disclaimer was valid at least as to an amount that subsequently passed to a foundation that the deceased named as contingent beneficiary in her will is affirmed; holding that the estate is entitled to a charitable deduction for this amount is also affirmed.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/13/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/16/2009 2009-11-16 10:00:21 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.

072981P.pdf    11/16/2009   United States   v.   Donald Bain, Jr.
U.S. Court of Appeals Case No: 07-2981
U.S. District Court for the Southern District of Iowa - Davenport
[PUBLISHED] [Per Curiam - Before Gruender, Baldock and Benton, Circuit Judges]
Criminal case - Sentencing. While the district court's Gall error was plain, defendant failed to show that there was a reasonable probability of a lower sentence in the absence of the error, and he was not entitled to relief under Gall; given the district court's detailed consideration of the 3553(a) factors, and the deferential abuse-of-discretion standard of review that applies to sentencing decisions, the court could not say that a sentence at the bottom of the advisory guidelines range was unreasonable. Judge Benton, concurring.

082141U.pdf    11/16/2009   Clyde Mansfield   v.   Marty C. Anderson
U.S. Court of Appeals Case No: 08-2141
U.S. District Court for the Western District of Missouri - Springfield
[UNPUBLISHED] [Per Curiam - Before Wollman, Riley and Smith, Circuit Judges]
Prisoner case - habeas. Dismissal of Section 2241 affirmed without comment.

082915U.pdf    11/16/2009   United States   v.   Adolfo Vargas-Vasquez
U.S. Court of Appeals Case No: 08-2915
U.S. District Court for the Western District of Arkansas - Fayetteville
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Criminal case - Sentencing. Anders case. The court finds no procedural error in defendant's sentencing; the court did not abuse its discretion in considering defendant's criminal history and his sentence was not substantively unreasonable.

083107P.pdf    11/16/2009   Phillip Parmley   v.   Larry Norris
U.S. Court of Appeals Case No: 08-3107
U.S. District Court for the Western District of Arkansas - Hot Springs
[PUBLISHED] [Melloy, Author, with Gruender and Benton, Circuit Judges]
Prisoner case - habeas. Arkansas Court of Appeals is not a state court of last resort, and the Supreme Court of the United States could not have reviewed either the affirmance of Parmley's conviction or the denial of his motion for rehearing; as a result, the expiration of time for seeking direct review does not include the time period that Parmley could have filed a petition for certiorari; the statute of limitations for Parmley's habeas petition began running immediately after the Arkansas Court of Appeals denied his motion for rehearing, and this petition was not filed until 390 days after that date; as a result, the district court did not err in finding the habeas petition was untimely. Judge Gruender, dissenting.

083761U.pdf    11/16/2009   United States   v.   Melvin Henre
U.S. Court of Appeals Case No: 08-3761
U.S. District Court for the Western District of Missouri - Springfield
[UNPUBLISHED][Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Criminal case - Sentencing. Anders case. Sentence was not unreasonable.

086038P.pdf    11/16/2009   Colleen Powers   v.   Odyssey Capital Group, LLC
U.S. Court of Appeals Case No: 08-6038
U.S. Bankruptcy Court for the District of Minnesota
[PUBLISHED] [Schermer, Author, with Venters and Saladino, Bankruptcy Judges]
Bankruptcy Appellate Panel. Orders closing debtor's Chapter 11 bankruptcy case and denying Powers' objection to the case closing order are affirmed, as Powers lacks standing to challenge the closing order; appeal from order denying IFP and refusing to seal Powers' IFP application was moot; requests for appointment of counsel and oral argument are denied.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/16/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/17/2009 2009-11-17 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.

083803P.pdf    11/17/2009   Barbara Brown   v.   J.B. Hunt Transport Services
U.S. Court of Appeals Case No: 08-3803
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Riley, Author, with John R. Gibson and Murphy, Circuit Judges]
Civil case - ERISA. The plan's failure to comply with its statutory duty to provide Brown with a reasonable opportunity for a full and fair review of the decision to terminate her long-term disability benefits excuses her failure to exhaust her administrative remedies before bringing suit; the appropriate remedy in the case is to remand the matter to the district court with instructions to remand to the plan for an out-of-time appeal; the district court correctly dismissed Brown's claim for penalties as neither the plan nor her employer can be held liable under 29 U.S.C. Sec. 1132(c).

091080U.pdf    11/17/2009   United States   v.   William Davis
U.S. Court of Appeals Case No: 09-1080
U.S. District Court for the Eastern District of Missouri - Cape Girardeau
[UNPUBLISHED][Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Criminal case - Sentencing. Anders case. Defendant's Florida burglary conviction was a violent felony for purposes of his armed career criminal status; Booker challenge to statutory minimum sentence rejected.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/17/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/18/2009 2009-11-18 10:00:18 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.

082883P.pdf    11/18/2009   United States   v.   Marzett Parker
U.S. Court of Appeals Case No: 08-2883
U.S. District Court for the Western District of Missouri - Joplin
[PUBLISHED] [Shepherd, Author, with Riley and Benton, Circuit Judges]
Criminal case - Criminal law. Stop of defendant's commercial vehicle was properly administered under the authority of the Missouri State Highway Patrol, and defendant was not unlawfully detained when he consented to the search; district court did not abuse its discretion in denying defendant' request for a continuance or in allowing certain identification testimony; evidence was sufficient to support convictions for conspiracy and possession with intent to distribute.

082890U.pdf    11/18/2009   Olen Gibson   v.   Kansas City Power & Light Co.
U.S. Court of Appeals Case No: 08-2890
U.S. District Court for the Western District of Missouri - Kansas City
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Civil case - employment discrimination. Dismissal affirmed without comment.

082909P.pdf    11/18/2009   United States   v.   Barry Jewell
U.S. Court of Appeals Case No: 08-2909
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Melloy, Author, with Wollman and Gruender, Circuit Judges]
Civil case - Asset Forfeiture. The arguments for and against permitting a petitioner prevailing on a 21 U.S.C. Sec. 853(n) claim to receive attorneys' fees from the government are too closely balanced for the court to conclude that Congress's waiver of sovereign immunity clearly and unequivocally applies to this situation, and the district court did not err in denying petitioner's request for fees.

083133U.pdf    11/18/2009   Sherry Smith   v.   Michael J. Astrue
U.S. Court of Appeals Case No: 08-3133
U.S. District Court for the Western District of Missouri - Kansas City
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Civil case - Social Security. ALJ's credibility findings were supported by multiple valid reasons and the record, and they were entitled to deference; ALJ did not err in finding claimant did not meet all of the requirements of Listing 12.05C.

083554U.pdf    11/18/2009   David Williams   v.   Anthony Bradley
U.S. Court of Appeals Case No: 08-3554
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Prisoner case - prisoner civil rights. Defendants' summary judgment affirmed without comment.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/18/2009 http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/19/2009 2009-11-19 10:00:17 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.

083006U.pdf    11/19/2009   S.A.   v.   Michael Leavitt
U.S. Court of Appeals Case No: 08-3006
U.S. District Court for the Western District of Missouri - Kansas City
[UNPUBLISHED] [Per Curiam - Before Bye, Bowman and Benton, Circuit Judges]
Civil case - Medicare. Substantial evidence supports the Secretary's decision to deny claims for Medicare benefits, and the district court's order is affirmed without further comment.

All Opinions Search Options ]]> http://www.ca8.uscourts.gov/cgi-bin/new/opnByDate.pl?filedDate=11/19/2009