8th U.S. Circuit Court of Appeals Digest: March 28, 2022

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Administrative Law

SSDI/SSI

Denial of Benefits

Consideration of Subjective Complaints and Treating Provider’s Opinion

Plaintiff appealed from the district court’s order affirming the denial of his application for SSDI or SSI.

Where the ALJ properly considered the weight of plaintiff’s treating physician’s opinion based on their notes and objective findings, and the ALJ properly discounted plaintiff’s subjective complaints as not fully supported by the medical record, plaintiff was properly denied benefits.

Judgment is affirmed.

Dover. v. Kijakazi (MLW No. 78049/Case No. 21-2862 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Miller, J.

https://ecf.ca8.uscourts.gov/opndir/22/03/212862U.pdf

Bankruptcy

Bankruptcy Appeal

Motion to Disqualify

Imposition of Sanctions

Petitioners appealed from the bankruptcy appellate panel’s denial of their motion for sanctions and to disqualify the bankruptcy judge and the imposition of sanctions against petitioners. Petitioners argued that the BAP engaged in impermissible fact finding because the appeal record was not properly transmitted from the bankruptcy court and the BAP instead accepted appellee’s brief and appendix.

Where none of the alleged technical errors prejudiced petitioners, they were not entitled to relief from the BAP’s decision.

Judgment is affirmed.

In re: Scott (MLW No. 78042/Case No. 21-2102 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. Bankruptcy Appellate Panel for the Eighth Circuit, Fenimore, J.

https://ecf.ca8.uscourts.gov/opndir/22/03/212102U.pdf

Criminal Law

Armed Drug Trafficking

Motion for Reduction of Sentence

Extraordinary and Compelling Reasons

Defendant appealed from the denial of his motion for reduction of sentence following his conviction on multiple offenses that included possession of a firearm in furtherance of drug trafficking. Defendant had been sentenced to consecutive terms of five years, 25 years, and 25 years for the three firearms offenses.

Where a non-retroactive change in the law could not support finding extraordinary and compelling reasons for sentence reduction, the district court did not err in denying defendant’s motion.

Kelly, J., concurring: “Had this case been decided first, I would have voted to reverse and remand. In my view, sentence disparities such as those created by amendments to § 924(c) are properly considered as part of an individualized assessment of whether extraordinary and compelling reasons for a sentence reduction exist under the First Step Act.”

Judgment is affirmed.

U.S. v. Taylor (MLW No. 78048/Case No. 21-1627 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Missouri, Phillips, J.

https://ecf.ca8.uscourts.gov/opndir/22/03/211627P.pdf

Child Pornography

Cross-Examination with Extrinsic Evidence

Striking of Prospective Jurors

Defendant appealed from his conviction for production of child pornography and extortion. On appeal, defendant argued that the district court improperly restricted him from cross-examining a government witness with extrinsic evidence of a text message in which the witness allegedly confessed to the charged crimes. Defendant also argued that the district court improperly denied his Batson challenge and failed to strike a juror that expressed safety concerns.

Where the text message had features that undercut its reliability, including the fact that the message referred to defendant in a different way than the witness normally addressed him, and defendant’s wife had been known to use the witness’s phone to send text messages, the district court did not err in precluding cross-examination of the witness with the text message.

Judgment is affirmed.

U.S. v. Cumbie (MLW No. 78043/Case No. 21-1186 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Moody, J. (Robby Golden, of Little Rock, AR for appellant) (Kristin Huntington Bryant, AUSA, of Little Rock, AR for appellee)

https://ecf.ca8.uscourts.gov/opndir/22/03/211186P.pdf

Expert Witness

Sexual Exploitation

Where a defendant challenged his conviction for sexual exploitation of a child and possession of child pornography, challenging the admission of expert testimony that identified the fingers in an explicit photo as those of the defendant, any error was harmless due to the overwhelming evidence of guilt.

Judgment is affirmed.

U.S. v. Red Legs (MLW No. 78051/Case No. 20-3506 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Shepherd, J.) Appealed from U.S. District Court, District of South Dakota, Lange, J. (Ellery Grey, Rapid City, SD argued for appellant) (Jay P. Miller, Pierre, SD argued for appellee).

https://ecf.ca8.uscourts.gov/opndir/22/03/203506P.pdf

Firearms Offenses

Denial of Acceptance of Responsibility Reduction

Substantive Reasonableness of Sentence

Defendant appealed from his guilty plea conviction for firearms offenses, arguing that the district court erred in denying his motion for a sentencing reduction for acceptance of responsibility. Defendant therefore contended that his sentence was substantively unreasonable.

Where the district court also considered defendant’s post-arrest statements that minimized his conduct, it did not err in declining to impose a sentencing reduction for acceptance of responsibility, and his sentence was substantively reasonable as the district court properly weighed the sentencing factors.

Judgment is affirmed.

U.S. v. Garfield (MLW No. 78044/Case No. 21-2235 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Holmes, J.

https://ecf.ca8.uscourts.gov/opndir/22/03/212235U.pdf

Motion to Correct Sentence

Ineffective Assistance of Counsel

Failure to File Direct Appeal

Petitioner appealed from the denial of his motion to vacate, set aside, or correct his sentence, alleging ineffective assistance of counsel. On appeal, petitioner argued that his counsel was ineffective for failure to file a direct appeal despite petitioner’s direct instructions to do so.

Where the district court’s credibility determinations supported counsel’s assertion that petitioner had not given clear instructions to file an appeal, the district court properly denied petitioner’s motion as based on his “bare assertion” without evidentiary support.

Judgment is affirmed.

Dressen v. U.S. (MLW No. 78046/Case No. 20-2846 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Kelly, J.) Appealed from U.S. District Court, District of South Dakota, Schreier, J. (Ashley Rae Brost, of Sioux Falls, SD for appellant) (Eric D. Kelderman, AUSA, of Rapid City, SD for appellee)

https://ecf.ca8.uscourts.gov/opndir/22/03/202846P.pdf

Post-Conviction Relief

Ineffective Assistance of Counsel

Failure to Object to Sentencing Enhancement

Petitioner appealed from the denial of his motion for post-conviction relief on grounds of ineffective assistance of counsel, arguing that his trial counsel failed to cite a case that, at the time of petitioner’s sentencing, was controlling authority holding that petitioner’s prior state law offense was not crime of violence.

Where the failure to object was not prejudicial because the precedent relied upon by petitioner had since been overturned, petitioner’s ineffective assistance of counsel claim failed.

Judgment is affirmed.

Collins v. U.S. (MLW No. 78041/Case No. 20-3662 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Western District of Missouri, Fenner, J. (William Peter Nacy, of Jefferson City, MO for appellant) (Philip M. Koppe, AUSA, of Kansas City, MO for appellee)

https://ecf.ca8.uscourts.gov/opndir/22/03/203662P.pdf

Sentencing

Substantive Reasonableness

Where a defendant challenged his sentence in a child pornography case, the within-guidelines sentence was not substantively unreasonable.

Judgment is affirmed.

U.S. v. Anderson (MLW No. 78052/Case No. 21-1406 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Western District of Arkansas, Brooks, J. (Anna Marie Williams, Fayetteville, AR argued for appellant) (Carly Marshall, Fort Smith, AR argued for appellee).

https://ecf.ca8.uscourts.gov/opndir/22/03/211406P.pdf

Vehicle Search

Automobile Exception

Where defendant challenged a warrantless search of his vehicle, the police had probable cause to believe that the vehicle contained drugs and they knew the vehicle was mobile, so the automobile exception applied and no further exigency was required.

Judgment is affirmed.

U.S. v. Barron (MLW No. 78050/Case No. 20-3440 – 5 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas.

https://ecf.ca8.uscourts.gov/opndir/22/03/203440U.pdf

Employer-Employee

Employee’s Lawsuit

Adverse Summary Judgment

Lack of Basis for Appeal

Plaintiff appealed from the grant of summary judgment in favor of defendant in plaintiff’s employment action.

Where the court found no basis in the record for reversal, it affirmed the district court’s judgment.

Judgment is affirmed.

Jones v. Baldwin (MLW No. 78045/Case No. 21-3112 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Brooks, J.

https://ecf.ca8.uscourts.gov/opndir/22/03/213112U.pdf

Immigration

Cancellation of Removal

Standard of Review

Failure to Provide Record Reasons

Plaintiff petitioned for review of the BIA’s denial of his application for cancellation of removal, after upholding an IJ’s determination regarding plaintiff’s moral character. Plaintiff argued that the BIA applied the wrong standard of review, failed to consider his arguments, and did not provide a sufficient basis for its decision to permit appellate court review.

Although the court found the BIA’s decision had a level of brevity that the court declined to condone, it held that there was no error in denying plaintiff’s application where plaintiff had pending charges from a motor vehicle accident he caused while severely intoxicated.

Judgment is affirmed.

Hernandez v. Garland (MLW No. 78047/Case No. 20-3575 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Erickson, J.) Petition for Review of an Order of the Board of Immigration Appeals. (Tiffany J. Lieu, of Brookline, MA for petitioner; Trina A. Realmuto, of Brookline, MA; Brian J. Blackford, of Omaha, NE on brief) (Rachel Berman-Vaporis, USDOJ, OIL, of Washington, D.C. for respondent)

https://ecf.ca8.uscourts.gov/opndir/22/03/203575P.pdf