8th U.S. Circuit Court of Appeals Digest: Nov. 14, 2022

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Administrative

Arkansas Video Service Act

Online Video Streaming Services

Requirement to Obtain Franchise

Plaintiff appealed the district court’s dismissal of its declaratory judgment action, seeking a ruling that defendants, online video streaming services, were obligated to comply with the Arkansas Video Service Act and obtain a certificate of franchise authority from plaintiff or from the state of Arkansas. The district court dismissed the action on defendants’ motion, ruling that the VSA did not confer standing upon plaintiff to bring the present suit.

Where the statute merely prevented municipalities from exercising rights, it did not in itself confer rights on municipalities, and such language did not confer a right of action where other state statutes contained language expressly conferring such rights onto municipalities, and municipalities were not a “special class” that the Arkansas legislature sought to protect through the VSA.

Judgment is affirmed.

City of Ashdown v. Netflix, Inc. (MLW No. 79083/Case No. 21-3535 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, Western District of Arkansas, Hickey, J. (Justin J. Hawal, of Mentor, OH for appellant; Adam J. Levitt, of Chicago, IL; Michael Chad Trammell, of Texarkana, AR; Austin Patrick Tighe, of Austin, TX; Anthony K. Bruster, of Southlake, TX; Mark Hamill, of Chicago, IL; and Bradley W. Beskin, of Austin, TX on the brief) (Gregory G. Garre, of Washington, D.C. and Victor H. Jih, of Los Angeles, CA for appellees; Jennifer H. Doan, of Texarkana, TX; Cole Alan Riddell, of Texarkana, TX; Jean A. Pawlow, of Washington, D.C.; Peter E. Davis, of Washington, D.C.; Mary Rose Alexander, of Chicago, IL; Robert C. Collins III, of Chicago, IL; Melissa R. Smith, of Marshall, TX; Andrew “Tom” Thompson Gorham, of Tyler, TX; Russell Kostelak, of Los Angeles, CA; Caleb Graves, of Los Angeles, CA; and Ryan Benyamin, of Los Angeles, CA on the briefs)

https://ecf.ca8.uscourts.gov/opndir/22/11/213435P.pdf

Administrative

Disability Insurance

State Medical Consultant Opinion

Residual Functional Capacity

Petitioner appealed the district court’s order affirming the denial of petitioner’s application for disability insurance benefits.

Where the ALJ found the state’s medical consultant’s opinion consistent with the objective evidence and the evidence would have been evaluated the same under prior and current regulations, the ALJ correctly denied benefits after finding that petitioner had a residual functional capacity.

Judgment is affirmed.

Clark v. Kijakazi (MLW No. 79063/Case No. 22-1989 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Missouri, Pitlyk, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/221989U.pdf

Civil Rights

• 1983

Acting under Color of Tribal Law

Indian Civil Rights Act

Plaintiff appealed the dismissal of his civil rights action under §1983 and the Indian Civil Rights Act.

Where §1983 actions could only arise from actions taking place under color of state law, plaintiff’s claim failed where he alleged defendants acted under color of tribal law, and his ICRA claims failed because only habeas relief was available under the statute.

Judgment is affirmed.

Nguyen v. Foley (MLW No. 79060/Case Nos. 21-3735 & 21-3821 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Minnesota, Tostrud, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/213735U.pdf

Civil Rights

• 1983

Summary Judgment

Plaintiff appealed the adverse grant of summary judgment in his §1983 action. The court affirmed summary judgment where the record contained no basis for reversal.

Judgment is affirmed.

Guirlando v. Union County Jail (MLW No. 79068/Case no. 21-3665 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Hickley, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/213665U.pdf

Civil Rights

Malicious Prosecution

Qualified Immunity

Failure to Issue Reviewable Ruling

Defendants appealed the denial of their motion to dismiss. Plaintiff filed suit asserting violations of his constitutional rights arising from defendants investigating plaintiff for his mother’s murder. The district court previously dismissed the case for lack of subject matter jurisdiction, but the court remanded for the district court to consider the merits. Defendants again moved to dismiss on grounds of qualified immunity. The district court denied the motion without addressing defendants’ qualified immunity argument.

Where circuit precedent called for resolving qualified immunity claims at the earliest opportunity, the district court erred in failing to address defendants’ assertion of qualified immunity.

Judgment is reversed, case remanded.

Carter v. Ludwick (MLW No. 79067/Case Nos. 21-3510 & 21-3651 – 3 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Southern District of Iowa.

https://ecf.ca8.uscourts.gov/opndir/22/11/213510U.pdf

Criminal Law

Child Pornography

Work Phone

Motion to Suppress

Defendant appealed his conviction for child pornography offenses, challenging the denial of his motion to suppress. Defendant was provided with a work cell phone which he could use as a personal phone. Defendant’s employer demanded to search the phone after a co-worker accused defendant of recording her. Defendant’s employer found suspected child pornography images and turned the phone over to law enforcement. Defendant moved to suppress evidence from the phone, which the district court denied.

Where defendant’s employer had apparent authority to consent to law enforcement’s search of the phone because he had told officers that the phone was a company phone and provided the officers with the passcode, the district court correctly denied defendant’s motion to dismiss.

Judgment is affirmed.

U.S. v. Langenberg (MLW No. 79069/Case No. 22-1071 – 3 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, Southern District of Iowa, Jarvey, J. (Heather Quick, APFD, of Cedar Rapids, IA for appellant) (Torrie J. Schneider, AUSA, of Davenport, IA for appellee)

https://ecf.ca8.uscourts.gov/opndir/22/11/221071P.pdf

Criminal Law

Cyberstalking

Entrapment

Motion to Withdraw Guilty Plea

Defendant appealed his guilty plea conviction and sentence for cyberstalking. Defendant raised multiple challenges to his conviction, including alleging that he was the victim of a conspiracy by law enforcement and prosecutors to cover up misconduct, and arguing that the district court erred in denying his motions, including a motion to withdraw his guilty plea.

Where defendant’s allegations had no merit, the district court did not err in denying his various motions, and his challenges to the restitution order were more properly heard in collateral review proceedings.

Judgment is affirmed.

U.S. v. Purdy (MLW No. 79071/Case No. 22-1289 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, District of Minnesota, Nelson, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/221289U.pdf

Criminal Law

Drug and Firearms Offenses

Plea Agreement

Appeal Waiver

Defendant appealed the judgment of sentence imposed for drug and firearms convictions, challenging the reasonableness of the sentence. Defendant pled guilty pursuant to a plea agreement that included an appeal waiver.

Where the appeal waiver was applicable to defendant’s challenge to the reasonableness of the sentence, the court dismissed the appeal.

Appeal is dismissed.

U.S. v. Costa (MLW No. 79064/Case No. 22-2411 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Western District of Arkansas, Hickley, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/222411U.pdf

Criminal Law

Drug and Firearms Offenses

Plea Agreement

Partial Appeal Waiver

Defendant appealed the sentence imposed after he pled guilty to drug and firearms offenses pursuant to a plea agreement containing a partial appeal waiver, under which defendant agreed to waive all challenges other than to criminal history.

Where the challenge to the weighing of sentencing factors fell within the scope of the appeal waiver, the court further affirmed the judgment of sentence where the criminal history point was correctly assessed.

Appeal is dismissed in part, judgment is affirmed in part.

U.S. v. Taylor (MLW No. 79066/Case No. 22-2344 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Missouri, Autrey, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/222344U.pdf

Criminal Law

Failing to Register as a Sex Offender

Substantive Reasonableness of Sentence

Consideration of Mitigating Factors

Defendant appealed his sentence, imposed following a guilty plea to failing to register as a sex offender, arguing that the district court failed to consider relevant mitigating factors during sentencing.

Where defendant failed to raise the claimed mitigating factors before the district court, its sentence was presumptively reasonable for being at the bottom of the Guidelines range.

Judgment is affirmed.

U.S. v. Bennett (MLW No. 79072/Case No. 22-1314 – 4 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Missouri, Limbaugh, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/221314U.pdf

Criminal Law

Firearms Offense

Motion to Suppress

Armed Career Criminal Designation

Defendant appealed his conviction and sentence for a firearms offense. Defendant argued that the district court improperly denied his motion to suppress and challenged his designation as an armed career criminal.

Where officers had reasonable suspicion to stop defendant after observing his vehicle touch the white fog line, the district court properly denied the motion to suppress, and the district court correctly found that defendant’s robbery and battery convictions qualified as a predicate offense even though defendant did not receive criminal history points for the convictions.

Judgment is affirmed.

U.S. v. Martin (MLW No. 79062/Case No. 22-1820 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas, Rudofsky, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/221820U.pdf

Criminal Law

Firearms Offense

Reasonableness of Sentence

Sentencing Factors

Defendant appealed the judgment of sentence imposed for a firearms offense, challenging the substantive reasonableness of the sentence.

Where the district court adequately considered the statutory sentencing factors, the district court affirmed the reasonableness of the sentence.

Judgment is affirmed.

U.S. v. Campbell (MLW No. 79070/Case No. 22-2330 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/222330U.pdf

Criminal Law

Possession of Firearm by Prohibited Person

Calculation of Guidelines Range

Kidnapping Cross-Reference

Defendant appealed the judgment of sentence imposed following his guilty plea conviction to possession of a firearm by a prohibited person. Defendant’s conviction arose from an incident in which he beat the victim with a pistol, restrained her in a vehicle, and threatened to kill her. On appeal, defendant argued that the district court erroneously calculated his advisory guidelines range because it applied the kidnapping cross-reference, contending that state law violations could not trigger the cross-reference.

Where the statute did not expressly exclude state offenses, the district court did not err in interpreting the statute to include state offenses within its scope, and there was sufficient evidence to find that defendant’s conduct violated the Iowa kidnapping statute where defendant refused to let the victim out of his vehicle at gunpoint.

Judgment is affirmed.

U.S. v. Perkins (MLW No. 79061/Case No. 21-3792 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Benton, J.) Appealed from U.S. District Court, Southern District of Iowa, Pratt, J. (Heather Quick, AFPD, of Cedar Rapids, IA for appellant) (MacKenzie Benson Tubbs, AUSA, of Des Moines, IA for appellee)

https://ecf.ca8.uscourts.gov/opndir/22/11/213792P.pdf

Criminal Law

Revocation of Supervised Release

Reasonableness of Sentence

Within-Guidelines Sentence

Defendant appealed the judgment of sentence imposed following the revocation of his supervised release, challenging the reasonableness of the sentence.

Where the district court imposed a within-Guidelines sentence and properly considered the statutory sentencing factors, the court rejected defendant’s challenge where the sentence was in line within defendant’s own recommendation.

Appeal is dismissed.

U.S. v. Thurmond (MLW No. 79065/Case No. 22-2111 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Northern District of Iowa, Reade, J.

https://ecf.ca8.uscourts.gov/opndir/22/11/222111U.pdf

Criminal Law

Sex Trafficking a Minor

Denial of Self-Representation

Sufficiency of Evidence

Defendant appealed his conviction for sex trafficking of a minor, arguing that the district court violated his constitutional right to self-representation by denying his request to proceed pro se. Defendant further argued that the evidence was insufficient to sustain his conviction and that the district court admitted unfairly prejudicial evidence. Finally, defendant argued that two of the conditions of his supervised release were vague and overbroad.

Where defendant’s sovereign-citizen arguments and behavior reached the point of delaying and obstructing the trial, the district court did not err in denying defendant’s request to proceed pro se, and the evidence was sufficient to support defendant’s conviction where the victim’s testimony was sufficient for the jury to conclude defendant knew or recklessly disregarded her age.

Judgment is affirmed, case remanded for clarification of conditions of supervised release.

U.S. v. Atkins (MLW No. 79059/Case No. 21-3166 – 13 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Rudofsky, J. (Sylvia Talley, AFPD of Little Rock, AR for appellant) (Kristin Huntington Bryant, AUSA, of Little Rock, AR for appellee)

https://ecf.ca8.uscourts.gov/opndir/22/11/213166P.pdf