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Opinions

Wednesday, November 25, 2020

[PUBLISHED] [Schermer, Author, with Nail and Dow, Bankruptcy Judges] Bankruptcy Appellate Panel. Bankruptcy Code Sec. 1232 does not allow a Chapter 12 plan to compel a taxing authority to disgorge pre-petition witholdings; decision to confirm debtors' Chapter 12 plan reversed.

Wednesday, November 25, 2020

[PUBLISHED] [Nail, Author, with Schermer and Dow, Bankruptcy Judges] Bankruptcy Appellate Panel. The default provisions in debtor's Chapter 12 plan were dispositive of the Bank's motion for relief from the automatic stay; debtor was in default on his payments under the plan, and the bank was entitled to relief.

Tuesday, November 24, 2020

[UNPUBLISHED] [Per Curiam - Before Erickson, Wollman and Stras, Circuit Judges] Civil case - Civil rights. Dismissal affirmed without comment.

Tuesday, November 24, 2020

[UNPUBLISHED] [Per Curiam - Before Erickson, Wollman and Stras, Circuit Judges] Criminal case - Sentencing. Where the district court granted defendant a First Step Act reduction, it did not abuse its discretion by not granting an even greater reduction; nor did it abuse its discretion by denying defendant's motion for reconsideration; a First Step Act motion cannot be used to collaterally attack a defendant's original sentence.

Monday, November 23, 2020

[PUBLISHED] [Gruender, Author, with Smith, Chief Judge, and Loken, Circuit Judge] Petition for Review - Immigration. Petitioner sought relief under the Convention Against Torture, arguing he would be tortured by Al-Shabaab if he returned to Somalia and that the Somali government would acquiesce in the torture; the BIA did not err in finding the record did not show that the Somali government has willfully turned a blind eye to Al-Shabaab's activities; rather the evidence suggests the government actively combats the organization and works to maintain order in the country; the fact that the government has not successfully ended the threat posed by Al-Shabaab is insufficient to establish that any torture would be with the consent or acquiescence of the Somali government.

Monday, November 23, 2020

[PUBLISHED] [Per Curiam - Before Smith, Chief Judge, Benton and Kobes, Circuit Judges] Criminal case - Criminal law. Under the fugitive disentitlement doctrine, Diaz forfeited his right to have his appeal heard by escaping from custody; this appeal will be dismissed thirty days from the date of the filing of this opinion unless Diaz submits himself to the jurisdiction of the United States District Court or is found and taken into custody by either state or federal officers.

Friday, November 20, 2020

[UNPUBLISHED] [Per Curiam - Before Erickson, Wollman and Stras, Circuit Judges] Criminal case - Criminal law. The evidence was sufficient to support Rush's guilty plea for being a felon in possession of a firearm; the court would not address the issue of ineffective assistance of counsel as the claim should be brought in a Section 2255 action.

Friday, November 20, 2020

[UNPUBLISHED] [Per Curiam - Before Colloton, Gruender and Grasz, Circuit Judges] Criminal case - Sentencing. The district court did not err in counting a 1998 conviction in defendant's criminal history calculation as he was still imprisoned 15 years before the commencement of this drug offense; the district court considered the 3553(a) factors and had a reasoned basis, grounded in the factors, for the sentence it imposed; the court provided an adequate explanation for its decision to vary upward; the district court did not base defendant's lengthened sentence on rehabilitation; defendant's sentence was substantively reasonable.

Friday, November 20, 2020

[PUBLISHED] [Per Curiam - Before Loken, Colloton and Benton, Circuit Judges] Civil case - Elections. For the court's decision denying a stay pending appeal, see Craig v. Simon, 978 F.3d 1043 (8th Cir. 2020). The district court did not err in granting a preliminary injunction finding that plaintiff, the Democratic candidate for the Second Congressional District of Minnesota, was likely to prevail on her claim that Minn. Stat. Section 204B.13, sub. 2(c) was preempted by federal law, 2 U.S. C. Section 7, which establishes a uniform date for congressional elections; for the reasons set forth in the prior decision in the matter, the court concludes that the death of the Legal Marijuana Now Party was not likely to be the sort of exigent circumstance that permits the State of Minnesota to refrain from holding the election for the U.S. Representative prescribed by federal law.

Friday, November 20, 2020

[PUBLISHED] [Shepherd, Author, with Loken and Stras, Circuit Judges] Civil case - Environmental law. The State of North Dakota's permitting decision that a coal pile maintained by defendant is not a part of its coal processing plant and not subject to the EPA's regulations in Subpart Y - Standards of Performance for Coal Preparation and Processing Plants, 40 C.F.R. pt. 60 - was entitled to deference, and defendant was not obligated to implement a plan to control dust from the coal pile or to include the dust emitted by the pile in its calculations of the amount of particulate matter pollutants it emitted; the regulations are ambiguous on the point of whether such a coal pile is "in" the processing plant, and the district court did not err in concluding the regulations, combined with EPA guidance, did not resolve the question of whether the coal pile was "in" a coal processing plant for regulation purposes; the district court did not err in determining that the best interpretive aid to determine whether Subpart Y applied to the coal pile was the North Dakota Department of Health permitting decision, which concluded the coal pile was not part of the processing plant and thus not subject to Subpart Y. Judge Stras, dissenting.

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