USA v. Pree, Bette J. (CD Ill.)
Before COFFEY, RIPPLE and KANNE, Circuit Judges.Sullivan, Jeffrey J. v. Bornemann, Jon (ED Wis.)
RIPPLE, Circuit Judge. Bette J. Pree was indicted by a grand jury for one count of failing to file a tax return for the tax year 1994, in violation of 26 U.S.C. § 7203, and two counts of filing false tax returns for the tax years 1995 and 1996, in violation of 26 U.S.C. § 7206(1). After trial, a jury found Ms. Pree not guilty of the failure to file charge but guilty of both counts of filing false tax returns. Ms. Pree appeals the convictions. For the reasons set forth in the following opinion, we affirm the judgment of conviction but vacate the sentence and remand the case to the district court for resentencing. The mandate of the court is stayed pending the Supreme Court’s decision in United States v. Booker, No. 03-4225, 2004 WL 1535858 (7th Cir. July 9, 2004), cert. granted, 73 U.S.L.W. 3073, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No.04-104). * * *D. Sentencing Enhancement. As a final matter, we address an issue not raised by the parties—the constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Pree’s case was briefed and argued prior to the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Following the Court’s decision in Blakely, this court held in United States v. Booker, No. 03-4225, 2004 WL 1535858 (7th Cir. July 9, 2004), cert. granted, 73 U.S.L.W. 3073, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-104), that enhancements imposed by the court without a jury finding violate the Sixth Amendment.
Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. See United States v. Seacott, 15 F.3d 1380, 1383 (7th Cir. 1994). Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.
The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this court’s decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Court’s decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case.17
Conclusion. Accordingly, we affirm the judgment of conviction but vacate the sentence and remand the case to the district court for resentencing. The mandate of the court is stayed pending the Supreme Court’s decision in Booker. AFFIRMED IN PART; VACATED IN PART
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17 It appears that Ms. Pree’s enhanced sentence will be completed prior to the decision of the Supreme Court. Any matter with respect to bail should be addressed to the district court.
Before FLAUM, Chief Judge, and POSNER and DIANE P. WOOD, Circuit Judges.Schimmer, Donald v. Jaguar Cars Inc (ND Ill.)
DIANE P. WOOD, Circuit Judge. After Jeffrey Sullivan was arrested for disorderly conduct, the Shawano County Jail in Wisconsin refused to admit him without a medical clearance, because of his high breathalyzer test result. To obtain that clearance, officers Jon Bornemann and Ed Whealon took Sullivan to the emergency room of a local hospital. After Sullivan failed voluntarily to produce a urine sample, the emergency room doctor ordered a catheterization. At the direction of medical personnel, Bornemann and Whealon physically restrained Sullivan during the brief procedure.Believing that the officers’ actions violated his constitutional rights, Sullivan brought suit under 42 U.S.C. § 1983 and added a supplemental battery claim under Wisconsin law. Ruling on stipulated facts, the district court concluded that even if Bornemann and Whealon were not authorized to restrain Sullivan, qualified immunity shielded the officers from any liability. We affirm the judgment based on our conclusion that no constitutional violation occurred, which makes it unnecessary for us to reach the second part of the qualified immunity inquiry.
Before RIPPLE, KANNE and ROVNER, Circuit Judges.C. Etta v. Barnhart, Joanne B. (CD Ill.)
KANNE, Circuit Judge. On January 15, 2000, Donald Schimmer bought a new 2000 Jaguar XK8, manufactured by Jaguar Cars, Inc., from Towne & Countree Auto Sales, Inc. Schimmer paid the $69,513.00 purchase price in cash. * * * Schimmer encountered various problems with the XK8 and took the car to authorized Jaguar dealerships for repairs under the manufacturer’s warranty on numerous occasions.After the dealers were unable to repair the XK8 to Schimmer’s satisfaction, Schimmer’s lawyer notified Jaguar, in a letter dated November 6, 2001, that Schimmer had revoked his acceptance of the vehicle. Jaguar refused to accept Schimmer’s revocation. Subsequent to the purported revocation, the XK8 has remained in storage. * * * Jaguar filed a timely notice of removal to federal district court on March 17, 2003, asserting that the court had federal subject-matter jurisdiction under the Magnuson-Moss Act. Once in federal court, Jaguar moved to dismiss Counts II and III of the complaint—Schimmer’s breach of implied warranty and revocation claims under the Magnuson- Moss Act—as well as Count IV, the state law claim. * * *
[W]e find that this case was improperly removed from state court and must be dismissed for lack of subject-matter jurisdiction.
III. Conclusion. Because the amount in controversy cannot exceed $50,000 to any legal probability, there is no federal subject-matter jurisdiction for Schimmer’s claims under the Magnuson-Moss Act. Without federal subject-matter jurisdiction, there can be no supplemental jurisdiction to consider the district court’s interpretation of the Illinois Lemon Law. We VACATE the district court’s decision and REMAND with instructions to dismiss for lack of subject-matter jurisdiction.
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.Holmes, Rochester v. Potter, John E. (ND Ind., Judge Moody)
KANNE, Circuit Judge. [Social Security disablity claim.] * * * For the foregoing reasons, although we sympathize with Ms. Rice due to her indubitably trying condition, the district court’s judgment is AFFIRMED.ROVNER, Circuit Judge, concurring in the judgment. I agree that the case may be summarily affirmed on the basis of the inadequately explained Circuit Rule 30 violation and I therefore concur in the judgment. As for the merits of the case, I cannot agree that the ALJ’s decision was supported by substantial evidence. The ALJ’s “reasoning” was thin at best, and contained a substantial error that even the SSA acknowledged on appeal. * * *
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit Judges.Conder, Agnes v. Union Planters Bank (SD Ind., Judge Tinder)
BAUER, Circuit Judge. Plaintiff-Appellant Rochester Holmes filed an action in the district court claiming discrimination, retaliation and breach of a settlement agreement. The district court disposed of the discrimination and retaliation claims though the entry of summary judgment against Holmes. A bench trial on the breach of a settlement agreement ended in favor of the Defendant. Holmes appeals. * * * Affirmed
Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.Posted by Marcia Oddi at September 14, 2004 02:35 PM
POSNER, Circuit Judge. This appeal from the dismissal of a diversity suit (governed by Indiana law) for failure to state a claim requires us to consider a bank’s liability to victims of a Ponzi scheme for allowing checks made out to the malefactors to be deposited without proper endorsements. * * * Affirmed.