Weekly Case Digests November 9, 2020 November 13, 2020.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Mark Milsna v. Union Pacific Railroad Company

Case No.: 19-2780

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

Focus: ADA Violation Reasonable Accommodation

When the Federal Railroad Administration put in place new regulations related to hearing, a train conductorwho has been hearing-impaired since youth and has worn hearing aids for yearswas caught in a bind. He passed a hearing acuity test, but only when using hearing aids without additional hearing protection.

According to the railroad, this placed him in violation of apolicy which requires that protection be worn if the employee is exposed to noise above a certain level. The railroad and the conductor could not agree on an accommodation for him to use other hearing devices. The railroad would not recertify the conductor, and he lost his job.

The conductor sued arguing that the railroad discriminated against him because of his hearing disability. The district court granted summary judgment to the railroad, finding that the conductor "failed to marshal enough evidence for a reasonable jury to conclude that he could fulfill the essential functions of the train conductor position with a reasonable accommodation." We view the record differently. Issues of fact exist as to whether wearing hearing protection is an essential function of the plaintiff's work as a conductor, as well as whether reasonable accommodations for the conductor were properly considered. So we reverse and remand for further proceedings.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: Gerald Peeters v. Andrew M. Saul

Case No.: 19-2530

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: ALJ Error Disability Benefits

Gerald Peeters appeals the denial of his claim for disability insurance benefits. In 2016 and 2018, the Administrative Law Judge (ALJ) determined Peeters was not disabled under the relevant regulations. Peeters sought relief in the district court, which reviewed the ALJ's opinion and found that the decision was supported by substantial evidence. Peeters contests the ALJ's weight and application of the opinions given by Dr. Sandra King and state agency psychologists. Because we find the ALJ's opinion was supported by substantial evidence, we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Hector Uriarte

Case No.: 19-2092

Officials: SYKES, Chief Judge, and FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WOOD, HAMILTON, BARRETT, BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines First Step Act

Section 403 of the First Step Act of 2018 amended the mandatory minimum sentence for certain firearm offenses. Although sentencing reform is generally prospective, Congress specifically mandated that these amendments were to apply to an offense committed before enactment "if a sentence for the offense has not been imposed as of such date of enactment." First Step Act of 2018, Pub. L. No. 115-391, 403(b), 132 Stat. 5194, 5222 (codified at 18 U.S.C. 924 note). We vacated, on unrelated grounds, Hector Uriarte's initial sentence before the enactment of the First Step Act. United States v. Cardena, 842 F.3d 959 (7th Cir. 2016). At resentencing, the district court ruled that he was entitled to be sentenced under the provisions of the Act. We agree with the district court and therefore affirm its judgment.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Rashod Bethany

Case No.: 19-1754

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

Focus: Sentencing Guidelines First Step Act

Rashod Bethany participated in a conspiracy to distribute crack cocaine in Chicago. He was sentenced originally in 2013, but that sentence was vacated, and he was resentenced in 2019 after the enactment of the First Step Act of 2018. He now appeals from that sentence. He submits that, in imposing the 2019 sentence, the district court should have applied to him two sections of the First Step Act, as well as three retroactive amendments to the Sentencing Guidelines. We hold that Mr. Bethany is entitled to the benefit of 401 of the First Step Act, but the record leaves us in doubt as to whether he would have received the same sentence if he had the benefit of that provision. Accordingly, we order a limited remand to the district court to ascertain whether the district court is inclined to impose a different sentence in light of our decision today. See United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).

Remanded

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7th Circuit Court of Appeals

Case Name: John Myers v. Ron Neal

Case No.: 19-3158

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

Focus: Ineffective Assistance of Counsel

Indiana University student Jill Behrman went for a bike ride one morning but never returned. The police later found her bicycle less than a mile from the home of John Myers II, on the north side of Bloomington. Two years later a woman named Wendy Owings came forward confessing to the murder, but the case was reopened when a hunter came upon Behrman's remains far from the location Owings described. A renewed investigation led the authorities to Myers, who was eventually charged with the murder. Six years after Behrman's disappearance, a jury convicted him. Multiple Indiana courts affirmed. Myers then sought relief in federal court, and the district court granted his application for a writ of habeas corpus, concluding that Myers's counsel performed so deficiently at trial as to undermine confidence in the jury's guilty verdict. We reverse.

The district court was right about the performance of Myers's trial counsel. It was deficient and plainly so in at least two ways. What leads us to reinstate Myers's conviction, though, is the strength of the state's case against him separate and apart from those errors. Among the most convincing evidence were the many self-incriminating statements that Myers made to many different people, like telling his grand- mother that, if the police ever learned what he did, he would spend the rest of his life in jail. The weight of these statements, when combined with other evidence, leads us to conclude that his counsel's deficient performance did not prejudice him. The proper outcome is to respect the finality of Myers's conviction in the Indiana courts.

Reversed and remanded

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7th Circuit Court of Appeals

Case Name: John Myers v. Ron Neal

Case No.: 19-3158

Officials: JOEL M. FLAUM, Circuit Judge, MICHAEL Y. SCUDDER, Circuit Judge , AMY J. ST. EVE, Circuit Judge.

Focus: Order Correcting Opinion

Petitioner-appellee filed a petition for rehearing and rehearing en banc on September 1, 2020. No judge in regular active service has requested a vote on the petition for rehearing en banc and all members of the original panel have voted to deny rehearing and to issue an amended opinion. The court's opinion dated August 4, 2020 is amended by the attached opinion, which includes changes on pages 30 and 31.Accordingly, IT IS ORDERED that the petition for rehearing and rehearing en banc is therefore DENIED.

Petition Denied

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7th Circuit Court of...