...where a claimant has a nonexertional impairment which "significantly affects" the claimant's capacity to perform the full range of work he or she is otherwise exertionally capable of performing, the Commissioner must carry her burden of showing the availability of jobs in the national economy by other means. Id. (internal quotation marks and citation omitted). Usually, this involves obtaining the testimony of a VE. [And not simply rely on the Medical Vocational Guidelines (the Grid), 20 C.F.R. Part 404, Subpart P, App. 2.]
Ruiz-Casillas v. Camacho-Morales, No. 04-1793. Life would note be complete without another political discrimination case from Puerto Rico. The Plaintiff was the Administrative Director of the Federal Programs Division of Humacao. She was fired after an election. The district court found that the plaintiff “occupied a policymaking trust position, thereby foreclosing her First and Fourteenth Amendment claims given the party affiliation requirement.” The First Agreed, citing the two-prong inquiry in Jiménez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986).
Although Alvarez-Cuevas did not preserve his Booker claim and so must meet the plain error standard under Booker, we have recognized that an error in interpretation or application of the Guidelines may suffice to warrant a Booker remand.
Then it continues...
The question presented, of first impression, is whether the enhancement in §2A4.1(b)(6) applies when a fellow conspirator in the hostage taking has retained the taken child in his or her custody and the consideration received is no more than the conspirator's expected share of the ransom. We conclude that the Guideline is not applicable to Alvarez-Cuevas, and so defendant has established a reasonable probability of receiving a lower sentence on remand, under Antonakopoulos, and thus we remand for resentencing in light of Booker.
1. United States v. Bermudez: The Court held that the government was entitled to seek forfeiture of substitute assets (when the originally forfeitable assets could not be located) in a money-laundering case up to the full value of the laundered funds.
2. Sorenson v. City of New York: "The principal question raised by this appeal is whether a notice of appeal from a judgment that, while adverse to the appellant on some claims, is favorable to the appellant on the particular claim in question, serves to appeal from a subsequent amended judgment, which vacates the prior favorable judgment on the claim, substituting an adverse judgment in its place. We rule that it does not. A new, or amended, notice of appeal must be filed after entry of the adverse judgment."
3. Schulz v. IRS: The government moved to rehear a decision of the CA2 issued back in January that dismissed for lack of subject matter jurisdiction a motion to quash an IRS summons because the IRS had not actually sought to enforce the summons. (See AL&P's coverage here and here). On rehearing, the court held that: 1) absent an effort to seek enforcement through a federal court, IRS summonses "to appear, to testify, or to produce books, papers, records, or other data," 26 U.S.C. § 7604, issued "under the internal revenue laws," id., apply no force to the target, and no punitive consequences can befall a summoned party who refuses, ignores, or otherwise does not comply with an IRS summons until that summons is backed by a federal court order; 2) if the IRS seeks enforcement of a summons through the federal courts, those subject to the proposed order must be given a reasonable opportunity to contest the government’s request; 3) if a federal court grants a government request for an order of enforcement then any individual subject to that order must be given a reasonable opportunity to comply and cannot be held in contempt or subjected to indictment under 26 U.S.C. § 7210 for refusing to comply with the original, unenforced IRS summons, no matter the taxpayer’s reasons or lack of reasons for so refusing.
The Second Circuit has really been on a tear lately. Four opinions from yesterday:
1. Smith v. Duncan: The court affirmed the denial of a habeas petition because the petitioner did not frame his argument (about the admission of certain hearsay testimony) in constitutional terms to the state appellate courts, thereby procedurally defaulting the issue.
2. Cayuga Indian Nation of New York v. Pataki: The CA2 overturned a $248 million judgment in favor of the Cayuga (on a 200-year old land claim) because the claim was susceptible to the doctrine of laches, according to the Supreme Court's recent decision in City of Sherrill v. Oneida Indian Nation. District Judge Hall dissented in part.
3. Island Software and Computer Service v. Microsoft: "This appeal involves, primarily, the proof needed for finding, at the summary judgment stage, that copyright infringement was "willful." In the absence of evidence conclusively demonstrating actual, rather than constructive, knowledge of infringement, we conclude that summary judgment on the question of willfulness was inappropriate."
4. United States v. Tesoriero: The CA2 held that a Booker/Crosby remand is appropriate, even where the court sentenced the defendant to the statutory minimum, where the government asked for a downward departure under U.S.S.G. 5K1.1. In such a situation, the district court can sentence below the minimum, and so the rule of United States v. Sharpley does not apply.