Weekly Case Digests December 31, 2018 January 4, 2019.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Vickie L. Sanders

Case No.: 18-2165

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges

Focus: Sentencing Guidelines Enhancement

Vickie Sanders pleaded guilty to a federal drug offense. About twenty years earlier, she was convicted of a felony drug offense in California, and therefore, the government sought to impose a ten-year mandatory minimum term of imprisonment pursuant to a recidivist enhancement provision, 21 U.S.C. 841(b)(1)(B). After her guilty plea, but before sentencing, a California state court reclassified Sanders's state drug offense as a misdemeanor pursuant to Proposition 47, Cal. Penal Code 1170.18. Nevertheless, the district court still imposed the ten-year mandatory minimum. We affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: NewSpin Sports, LLC, v. Arrow Electronics, Inc.

Case No.: 18-1666

Officials: FLAUM, MANION, and ST. EVE, Circuit Judges.

Focus: Reconsideration Motion Denied

On January 17, 2017, plaintiff-appellant NewSpin Sports, LLC ("NewSpin") filed a complaint against defendant-appellee Arrow Electronics, Inc. ("Arrow"). In this complaint, NewSpin brought several contract and tort-based claims against Arrow relating to allegedly defective goods Arrow manufactured and shipped pursuant to a contract between the parties. The district court dismissed the original complaint in its entirety as untimely and entered judgment against NewSpin on the same day. The district court also denied NewSpin's motion for reconsideration and for leave to file an amended complaint. For the reasons below, we affirm in part and reverse in part the district court's dismissal of NewSpin's complaint. We also reverse the district court's denial of NewSpin's request to amend its complaint in its reconsideration motion, and we remand for further proceedings.

Reversed and Remanded

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7th Circuit Court of Appeals

Case Name: United States of America v. Robert D. Taylor

Case No.: 18-1545

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

Focus: Sentencing Guidelines Enhancement

Robert Taylor pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. 2252(a)(4)(B). His plea agreement contemplated an offense level of 31, which reflected a two-level reduction because Mr. Taylor had not sought to distribute child pornography. When the probation officer prepared the presentence report, she concluded that this two-level reduction was not available under the Guidelines. At the sentencing hearing, the parties stated that they had no objection to the presentence report; the district court then accepted the probation officer's offense level calculation of 33 and sentenced Mr. Taylor to 135 months' imprisonment, the low end of the guidelines range for a level 33 offense.

Mr. Taylor now contends that the Government was bound to advocate for a sentence within the lower range contemplated by the plea agreement. He submits that the Government's advocacy for a within-Guidelines sentence based on the corrected calculation constitutes a breach of the plea agreement. He also contends that two enhancements contained within the plea agreement are erroneous. He asks that we remand the case for resentencing without the application of the enhancements and permit him the option to withdraw from the plea in its entirety.

We affirm. Under the plea agreement, the Government was bound to advocate for a within-Guidelines sentence; it fulfilled that obligation. The agreement has not been breached. Further, Mr. Taylor's stipulations in the agreement waived his right to appeal the enhancements he now challenges. Even were we to disregard that waiver, we would conclude that the district court was on solid ground in imposing sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Lawrence S. Brodsky, et al. v. HumanaDental Insurance Co., et al.

Case No.: 17-3067; 17-3506

Officials: WOOD, Chief Judge, and FLAUM and KANNE, Circuit Judges.

Focus: Abuse of Discretion TCPA Violation Class Certification

These appeals, which we have consolidated for purposes of disposition, both concern the Federal Communication Commission's "Solicited Fax Rule." Despite the decline and fall of the fax machine, litigation continues between fax advertisers and unwilling recipients of their messages. Behind all this is the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227, as amended by the Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359, and as implemented through FCC regulations. The lead plaintiffs in our casesLawrence Brodsky and Alpha Tech Pet, Inc. received faxed advertisements that did not comply (so they said) with the TCPA and the FCC's Solicited Fax Rule. Each plaintiffwanted to pursue litigation not just individually, but as the head of a class. And in each case, the district court refused to certify the proposed class, largely on the authority of the D.C. Circuit's decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017) (Kavanaugh, J.). Our review of decisions on class certification, pro or con, is deferential. Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir. 2012). We see no abuse of discretion here, and so we affirm the orders of the district courts declining to certify the proposed classes.

Affirmed

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7th Circuit Court of Appeals

Case Name: Craig Stand v. Curtis Minchuk

Case No.: 18-1514

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

Focus: Qualified Immunity

We consider whether the district court erred at summary judgment in denying qualified immunity to a police officer who, in the context of an argument and fist fight over parking tickets, shot a semi-truck driver. The officer fired the shot after the driver stopped fighting, stepped back from the officer, andwith his hands in the airtwice said "I surrender." The district court concluded that a material question of fact existed as to whether the driver continued to pose a threat at the exact moment the officer fired the shot.

We affirm. We cannot read the facts in the light most favorable to the plaintiff and, on the record as it presently stands, conclude as a matter of law that the officer is entitled to qualified immunity. Doing so would mark a stark departure from clearly established law regarding an officer's use of deadly force. A trial is necessary to determine the precise timeline and circumstances leading to and surrounding the officer's deployment of such force.

Affirmed

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7th Circuit Court of Appeals

Case Name: Theresa Riffey, et al. v. Bruce V. Rauner

Case No.: 16-3487

Officials: WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

Focus: Abuse of Discretion Collective Bargaining Agreement

When this case was last before our court, we upheld the district court's decision declining to certify a class of home health care assistants ("the Assistants") who were seeking a refund of the fair-share fees they had paid to a union for collective-bargaining representation. We agreed with the putative class that no one could be compelled to pay fair-share fees, pursuant to the Supreme Court's decision in Harris v. Quinn, 134 S. Ct. 2618 (2014), and that any such objector would be entitled to have his or her payments refunded. The only question on the table was whether, with that common issue resolved, the district court abused its discretion when it determined that for purposes of Federal Rule of Civil Procedure 23(b)(3), issues common to the class would not predominate over individual issues and a class action would not be a superior vehicle for resolving the claims. Any person who wished to pursue an individual claim for a refund remained free to do so.

Seeking review of our decision, the putative class representatives filed a petition for a writ of certiorari in the Supreme Court. On June 28, 2018, the Court granted that petition and remanded the case to this court for further consideration in light of Janus v. State, County, and Municipal Employees, 138 S. Ct. 2448 (2018). See 138 S. Ct. 2708 (2018) (remand order). In accordance with Circuit Rule 54, we invited and have received statements from the Assistants and from one of the...