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Aliens -- Removal -- Conviction of aggravated felony -- Illicit trafficking -- Board of Immigration Appeals properly held that section 893.13(1)(a)(1) was divisible, applied modified categorical approach for divisible statutes, and found alien removable as a noncitizen convicted of an aggravated felony based on his convictions for sale of controlled substance, in violation of section 893.135(1)(a)(1), Florida Statutes
VIEW OPINION

Criminal law -- Sentencing -- Enhanced -- Prior convictions -- Appeals -- Waiver -- A defendant may waive the requirements under 21 U.S.C. section 851 that must be met before a court may enhance a sentence under 21 U.S.C. section 841 -- Section 851 requirements are not jurisdictional -- Prior panel decisions that requirements under Section 851 are jurisdictional in nature and that statute imposes a jurisdictional limit on a district court's authority to impose an enhanced sentence absent government filing an information in accordance with requirements of Section 851 have been undermined to point of abrogation by subsequent decisions of Supreme Court -- Holding that Section 851 is not a jurisdictional requirement does not in any way affect prior panel holdings that statute imposes mandatory requirements on the government before a court may enhance a sentence under Section 841 based on prior felony drug offense -- Voluntariness of waiver -- Record established that defendant knowingly and voluntarily waived his right to appeal 240-month sentence imposed after pleading guilty to one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine -- Even if defendant had not knowingly waived his right to challenge his enhanced sentence on appeal, his claim fails on merits because he failed to meet his burden of establishing that district court erred, plainly or otherwise, in imposing a 240-month sentence -- Claims that inaccuracies in government's Section 851 notice rendered it insufficient, that government did not timely file the notice, that magistrate judge failed to conduct an appropriate Rule 11 colloquy, and that district court erred by not making a Section 851(b) inquiry were not raised in district court, and defendant failed to meet his burden under plain error review of showing error, let alone error that was plain or obvious; that any of claimed errors affected his substantial rights; or that alleged errors seriously affected fairness, integrity, or public reputation of judicial proceedings -- Judgment of district court must be affirmed, even if defendant did not waive his right to contest his sentence
VIEW OPINION

Insurance -- Uninsured motorist -- Bad faith failure to settle -- Count asserting claim for UM benefits against insurer is ambiguous and must be clarified where it is unclear whether insured is attempting to assert a claim “pursuant to” insurance contract for a determination of entitlement to and amount of damages, or a claim for breach of contract for failure to pay benefits currently owed, or both -- Count asserting bad faith claim against insurer is premature where claim for contractual UM benefits is unresolved -- Dismissal without prejudice, rather than abatement, is appropriate under circumstances -- Count requesting declaratory judgment as to damages arising from accident dismissed, as there is no current and definite controversy before the court
VIEW OPINION

Bankruptcy -- Dischargeable debts -- Late-filed claims -- 11 U.S.C. section 523(a)(3)(A), which excepts from discharge any debt that is not scheduled by debtor unless creditor had actual knowledge of case in time to timely file a proof of claim, does not apply in instant case where proof of claim was filed on behalf of creditors in time to share in the distribution of assets -- Under distribution approach, so long as even a tardily filed claim is filed in time to share in distribution from the estate, the purpose of statute in protecting unscheduled creditor's right to share in distribution has been accomplished
VIEW OPINION

Bankruptcy -- Dischargeable debts -- State court judgment -- False pretenses, false representation, or actual fraud -- Conversion -- Intent -- Debtor did not make false representation to deceive judgment creditor when he submitted two invoices for items which were provided to a creditor's corporate officer, who was later found to have been engaged in embezzlement scheme -- Debtor did not create false and misleading set of circumstances or false and misleading understanding of transaction in order to wrongfully induce judgment creditor to give him four checks, which checks were issued in payment of false invoices prepared and submitted by corporate officer without debtor's knowledge -- Misrepresentations on statement of financial affairs -- Debtor did not complete original statement of financial affairs with fraudulent intent -- Debtor's explanation of SOFA was credible, and misstatements were result of debtor's misunderstanding of income reporting requirements rather than fraudulent scheme to retain assets for his own benefit at expense of creditors -- Claims not excepted from discharge
VIEW OPINION

Civil rights -- Employment discrimination -- Disparate treatment -- Action by Equal Employment Opportunity Commission on behalf of black job applicant whose offer of employment was rescinded pursuant to employer's race-neutral grooming policy when applicant refused to cut off her dreadlocks -- EEOC's original and proposed amended complaint did not state plausible claim that employer intentionally discriminated against applicant because of her race -- EEOC, in both proposed amended complaint and its appellate briefs, conflated distinct Title VII theories of disparate treatment, the sole theory on which EEOC was proceeding, and disparate impact, a theory EEOC expressly disclaimed -- Controlling precedent holds that Title VII prohibits discrimination based on immutable traits, and proposed amended complaint did not assert that dreadlocks, although culturally associated with race, are an immutable characteristic of black persons -- Discussion of race in context of immutable traits and cultural associations
VIEW OPINION

Criminal law -- Habeas corpus -- Second or successive motion to vacate, set aside, or correct federal sentence -- District court properly dismissed defendant's habeas petition as second or successive -- State-court order dismissing count for which defendant received a suspended sentence did not create a new judgment under Magwood that would permit defendant to avoid AEDPA's bar on second or successive habeas petitions and to collaterally attack his remaining convictions anew, because the state court's dismissal did not affect the judgment pursuant to which defendant is in fact being held in custody -- Because defendant was never sentenced on the dismissed count, he was never held in custody pursuant to that count -- When a conviction is not attached to any type of sentence, as in this case, it is not a judgment within meaning of federal habeas statute -- Because dismissed count was never part of defendant's judgment for purpose of federal habeas statute, its dismissal did not create a new judgment under Magwood
VIEW OPINION

Criminal law -- Habeas corpus -- Section 2241 petition challenging prison disciplinary action, seeking to have good-time credits restored and disciplinary record expunged -- Due process -- District court erred in granting summary judgment in favor of warden on claim that petitioner's due process rights were violated because he did not receive copy of incident report prior to disciplinary hearing and was denied copy when he requested one and never received copy of disciplinary hearing officer's report, which would have outlined DHO's factual findings and explained basis for revoking good-time credits -- District court's conclusion that denial of section 2241 petition was proper because there was “some evidence” in the record that the disciplinary action taken against petitioner comported with due process under Wolff v. McDonnell -- When district court converts section 2241 petition into motion for summary judgment, it must generally give petitioner notice and opportunity to respond with additional evidence which may raise genuine dispute as to a material fact -- Warden's declaration that petitioner must have received DHO report because he filed an administrative appeal to which report was required to be attached was not sufficient to form basis for district court's ruling in favor of warden because copy of DHO report was not a necessary component of filing an administrative appeal under the cited regulation
VIEW OPINION

Criminal law -- Sentencing -- Federal guidelines -- Advisory sentencing guidelines -- Vagueness
VIEW OPINION

Contracts -- Collective bargaining agreement -- Arbitration -- Vacation of award -- Appeal from order of district court setting aside arbitration award in dispute involving the interpretation of a collective bargaining agreement on ground that arbitrator had exceeded her authority by improperly modifying CBA instead of interpreting it -- Applying the presumption in favor of enforcing arbitration awards, arbitrator engaged in interpretation, as opposed to modification of, the agreement when she announced in the written explanation accompanying her award that union worker had not violated the policy in CBA prohibiting employees from possessing government property without proper authority because worker did not know that property he possessed was government-owned -- Where the written explanation shows that arbitrator ruled in favor of employee because of her finding that union worker did not knowingly possess government property without authority, but there is no indication that arbitrator's imposition of knowledge requirement resulted from interpretation of agreement instead of modification and one could plausibly characterize her decision as either an interpretation or modification of the agreement, court must resolve the ambiguity by finding that award is an interpretation of contract and enforcing it -- Because arbitrator acted within her authority, award must be upheld
VIEW OPINION

Criminal law -- Conspiracy to traffic in stolen goods -- Conspiracy to traffic in contraband cigarettes -- Indictment -- District court did not err in denying motion to dismiss superseding indictment as being untimely under applicable statute of limitations because superseding indictment related back to original indictment which was returned within five years of last alleged overt act -- Timely filing of initial indictment tolled the statute of limitations for purposes of superseding indictment where superseding indictment actually narrowed, rather than broadened, the original charges -- Conspiracy charge in superseding indictment did not broaden the original conspiracy, even though it added trafficking in stolen goods as an object of the conspiracy, because original indictment which charged trafficking in contraband cigarettes sufficiently placed defendant on notice that government was alleging that he had joined an unlawful conspiracy that involved cigarettes that were not only untaxed, but which he believed to be stolen -- Defendant was not entitled to evidentiary hearing on his due-process claim that government's delay in bringing the indictment violated his due process rights, because he failed to establish that delay actually prejudiced his defense and that the pre-indictment delay was product of deliberate design by government to gain tactical advantage over him -- District court properly denied defendant's motion to compel discovery of government's dealings with tobacco company, or alternatively to dismiss the indictment, based on claimed government misconduct where defendant failed to show how the tobacco companies' claimed involvement in sting operation was in any way relevant to establish his innocence or mitigate his punishment -- Government's involvement in sting operation did not violate defendant's due process rights -- Tobacco companies' alleged interest in investigation of sale of untaxed cigarettes did not violate defendant's right to be tried by a disinterested prosecutor -- Even assuming that government was obligated to disclose, during discovery, the alleged benefits conferred on a tobacco company because of government's investigation of untaxed sales of cigarettes, defendant was not prejudiced -- Sufficiency of evidence -- Evidence was sufficient to prove beyond reasonable doubt that defendant knowingly conspired to traffic in stolen goods where government provided more than sufficient evidence from which jury could have inferred that defendant knew the stolen nature of cigarettes he purchased from undercover agents -- Superseding indictment did not make an official representation an element of charged conspiracy, and government was not required to prove an official representation to convict defendant -- District court did not err by denying request for a buyer-seller relationship instruction where court's general conspiracy instructions substantially addressed defendant's concern that jury might convict him based solely on buyer-seller relationship -- Error in failing to enter preliminary forfeiture order after jury rendered its verdict and before sentencing hearing was harmless, where record unambiguously establishes that defendant had fair notice prior to sentencing that government would seek forfeiture, notice of specific amount ordered forfeited, and opportunity to contest forfeiture at sentencing hearing -- Defendant has shown no basis for making his forfeiture liability joint and several, when he has agreed that amount he was ordered to forfeit represents his own proceeds from the offense -- Government did waive its rights to seek forfeiture when it decided not to seize the cigarettes involved in sting operation
VIEW OPINION

Criminal law -- Habeas corpus -- Counsel -- Ineffectiveness -- Habeas petitioner is not entitled to relief on claims that trial counsel rendered ineffective assistance by failing to request a no-adverse-inference jury instruction, which would have told jurors that they could not infer guilt from his failure to testify, because he has not carried his burden of showing prejudice by showing a reasonable probability that result of proceeding would have been different if counsel had requested and court had given the no-adverse-inference instruction -- Evidence against petitioner was overwhelming and jurors' mid-trial questions did not show that they had doubts about this guilt -- In light of overwhelming evidence of guilt, petitioner has not carried his burden of showing that jury inferred his guilt because of lack of a no-adverse-inference instruction -- Petitioner is not entitled to evidentiary hearing where he has not proffered any facts that would be relevant to issue of prejudice, and where he has not offered any justification for his failure to develop facts relevant to question of prejudice during evidentiary hearing held in state collateral proceeding
VIEW OPINION

Racketeering -- Civil -- Class actions -- Class of customers commenced civil suit against an airline under Racketeer Influenced and Corrupt Organizations Act claiming that airline engaged in elaborate criminal enterprise involving use of mail and wire fraud by portraying its passenger usage fee as a government-imposed or authorized fee when, in fact, it was merely a portion of base fare price of an airline ticket charged by airline -- Dismissal of complaint for failure to state a claim was appropriate where plaintiffs failed to adequately plead proximate cause, and also failed to properly plead existence of a RICO enterprise -- Causation -- Plaintiff failed to plead facts sufficient to give rise to reasonable inference that the claimed racketeering activity of misrepresenting the passenger usage fee through mail and wire fraud was the but-for and proximate cause of plaintiffs' injuries where plaintiffs alleged only that they and other class members were harmed in that they relied to their detriment on airline's conduct and, as a result, needlessly incurred excessive and unconscionable passenger usage fees -- Merely purchasing a ticket and paying the claimed unlawful passenger usage fee in the process does not establish that plaintiffs sustained an injury as the direct result of airline's claimed fraudulent misrepresentation -- Where plaintiffs failed to plead reliance on airline's alleged misrepresentations in purchasing their tickets, and thus failed to show they were injured by reason of a RICO violation, plaintiffs have not stated a claim upon which relief may be granted -- Enterprise -- District court correctly dismissed complaint because plaintiffs failed to adequately allege the common purpose or distinctiveness required of a RICO enterprise -- Complaint fails to plead existence of RICO association-in-fact enterprise because it has not adequately alleged a common purpose shared by airline and other members of alleged enterprise, including the technology and public relations vendors named in complaint -- Passing over complaint's wholly conclusory allegations, complaint does not allege sufficient facts to give rise to plausible inference that various vendors and consultants, either individually or in corporate form, knowingly cooperated with airline in a scheme that involved misrepresenting the passenger usage fee -- Even assuming airline's corporate officers shared a common purpose to misrepresent the source of passenger usage fee, plaintiffs' association-in-fact pleading would still fail because in an association-in-fact enterprise, a defendant corporation cannot be distinct for RICO purposes from its own officers, agents, and employees when those individuals are operating in their official capacities for the corporation -- Plaintiffs may not plead the existence of a RICO enterprise between a corporate defendant and its agents or employees acting within scope of their roles for corporation because a corporation necessarily acts through its agents and employees
VIEW OPINION

Taxation -- Federal income taxes -- Deficiency -- Tax court correctly ruled that taxpayers were liable for a tax deficiency due to improper characterization of income from sale of real property as a capital gain rather than as ordinary business income -- Tax court did not legally err in considering taxpayers' primary purpose in holding the property during years leading up to sale rather than only at the moment of tax sale -- Evidence of strategic and thorough involvement in pursuit of developing the property, even after land use restrictions were imposed, indicates that taxpayers were holding property for sale in ordinary course of business, and not merely as an investment property -- Tax court did not err in determining that taxpayers did not segregate some of property for sale in ordinary course of business and some for investment -- Taxpayers' fortuitous sale of their property was not entitled to capital gains tax treatment simply because property had appreciated in value, when sale arose from the engaging in ordinary course of the business of developing real estate -- Tax court did not reversibly err in its treatment of Winthrop factors for determining whether property is a capital asset -- Tax court reversibly erred in imposing a 20% accuracy-related penalty for substantial understatement of income tax pursuant to Section 6662 of Internal Revenue Code where court clearly erred in finding that taxpayers did not establish that they acted with reasonable cause and that their return was prepared in good faith
VIEW OPINION

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