Weekly Case Digests August 30, 2021 September 3, 2021.

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Jacques S. Gholston

Case No.: 20-2168

Officials: EASTERBROOK, WOOD, and HAMILTON, Circuit Judges.

Focus: Motion to Suppress Evidence Denied 4th Amendment Violation

Officer Erik Cowick pulled over Jacques Gholston just after midnight on April 29, 2018, for turning without signaling. Because Cowick suspected that Gholston was a drug dealer, he called for a trained dog to perform a drug sniff at the scene. As Cowick was finishing the routine procedures required for a minor traffic violation, the dog arrived and alerted officers to the presence of methamphetamine.

The discovery of the drugs led in time to federal charges for possession of five or more grams of methamphetamine with intent to distribute, in violation of 21 U.S.C. 841(a)(1), (b)(1)(B). In response, Gholston filed a pretrial motion to suppress the evidence of the meth seized as a result of the dog sniff. He contended that Cowick unreasonably delayed the stop in order to allow the "K9" officer to arrive and perform an inspection. The district court denied the motion. Gholston then pleaded guilty, reserving his right to challenge the ruling on the motion to suppress. We conclude that the district court committed no reversible error in finding that Cowick did not unlawfully prolong the stop and thus did not violate Gholston's Fourth Amendment rights. We therefore affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Andrew McHaney

Case No.: 20-1690

Officials: ROVNER, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Statutory Interpretation Hobbs Act

Andrew McHaney is not the first defendant to try to persuade this court that Hobbs Act robbery is not a crime of violence as defined under 18 U.S.C. 924(c). And despite our growing, unequivocal precedent to the contrary, we suspect he will not be the last, as defendants who are subject to the 924(c) enhancement face significantly increased sentences. Unless the Supreme Court instructs otherwise, however, these attempts will be in vain. This court has declared several times that Hobbs Act robbery meets the definition of a crime of violence under 18 U.S.C. 924(c) and thus is a qualifying predicate crime under the statute. We see no cause to alter that precedent.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Olaitan Fowowe

Case No.: 20-3197

Officials: SYKES, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

Focus: Sentencing Guidelines First Step Act

In 2009, defendant-appellant Olaitan Fowowe was sentenced for a conviction for conspiracy to distribute crack cocaine. The following year, Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, which prospectively reduced the amount and kind of punishment for crack cocaine convictions like Fowowe's. Fowowesentenced well before the Fair Sentencing Act's August 3, 2010 enactmentwas ineligible for reduced sentencing under the Fair Sentencing Act.

Despite this initial ineligibility, eight years later, the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, created an avenue for people, like Fowowe, sentenced before August 3, 2010, to seek retroactive application of the Fair Sentencing Act. Section 404(b) of the First Step Act authorizesbut does not requiredistrict courts to reduce the punishment for a crack offense that occurred prior to August 3, 2010, with the Fair Sentencing Act's shorter sentences.

In federal district court, Fowowe requested a reduced prison sentence under 404(b) of the First Step Act to no avail. On appeal, Fowowe now argues the district court's evaluation of his request was deficient because the court failed to apply a Seventh Circuit decision that post-dated his initial sentencing by more than eleven years. To address Fowowe's argument, we must resolve a legal issue of first impression in this Circuit: Does 404(b) authorize or require a district court to apply a judicial decision issued after the defendant was initially sentenced? This question is one narrow issue within a broader, emerging circuit split on the parameters of district court 404(b) motion evaluation. We hold that 404(b) authorizes but does not require district courts to apply an intervening judicial decision in evaluating First Step Act motions. Given this, we conclude the district court did not abuse its discretion in declining to recalculate Fowowe's sentencing range. We now affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Debra Eaton v. J.H. Findorff & Son, Inc.,

Case No.: 20-1731

Officials: EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

Focus: Title VII Violation Retaliation Claim

Debra Eaton brought a Title VII claim against J.H. Findorff & Son, Inc. ("Findorff"), asserting that the company twice refused to hire her in retaliation for an earlier sex discrimination charge that she had leveled against the company. See 42 U.S.C. 2000e-3(a). The district court granted summary judgment in favor of Findorff and we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Marque Bowers v. Thomas J. Dart, et al.,

Case No.: 20-1516

Officials: RIPPLE, KANNE, and SCUDDER, Circuit Judges.

Focus: Prisoner ADA and Rehabilitation Act Violation

Cook County inmate Marque Bowers filed this federal civil rights lawsuit after other inmates at- tacked him in 2012. Bowers alleged that Cook County, the Cook County Sheriff, and other Cook County Jail employees failed to protect him, instituted an observation policy that caused the attack, and later discriminated against him because of a resulting disability. The district court dismissed most of Bowers's claims before trial and, after a jury returned a verdict in the Sheriff's favor on the remaining claims, denied Bowers's post-trial motions. Bowers now appeals from each of the district court's determinations. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Design Basics, LLC, et al., v. Kersteins Homes & Designs, Inc., et al.,

Case No.: 18-3202; 19-3118; 20-1515

Officials: KANNE, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Copyright Infringement

Copyright law protects individual expression while encouraging creativity and maintaining the public interest in spreading ideas. In recent years, however, a cottage industry of opportunistic copyright holdersearning the derisive moniker "intellectual property trolls"has emerged, in which a troll enforces copyrights not to protect expression, but to extract payments through litigation. Design Basics, LLC fits that bill. The firm, which holds copyright in several thousand single-family home floor plans, has brought over 100 infringement suits against home builders in recent years. But many defendantsthe targets of the settlement extraction schemeare starting to push back. This case is a good example.

We have affirmed dismissal of Design Basics's lawsuits twice in recent years. See Design Basics LLC v. Signature Construction, Inc., 994 F.3d 879 (7th Cir. 2021); Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017). We do so again today. In dismissing Design Basics's copyright infringement suit against the Kerstiens family's home building business, the district court recognized that the firm has a thin copyright in its plans because they consist largely of standard features found in homes across America. We agree and affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: Lawrence Krivak v. Home Depot U.S.A., Inc.,

Case No.: 20-1276

Officials: SYKES, Chief Judge, and EASTERBROOK and SCUDDER, Circuit Judges.

Focus: Court Error Abuse of Discretion

After Lawrence Krivak fell and injured himself in a Home Depot parking lot, he sued the store but failed time and again to prosecute his case. Krivak's counsel missed many court conferences and seemed to pay little attention to court rules and case deadlines. Along the way, counsel's delinquency drew a scolding and sanction from the magistrate judge and, in time, led to the district court giving one clear and final...