USA v. Zingsheim, Philip J. (ED Wis.)
Before EASTERBROOK, MANION, and WOOD, Circuit Judges.Gontcharova, Evgueni v. Ashcroft, John (On Petition for Review of an Order of the Board of Immigration Appeals)
EASTERBROOK, Circuit Judge. After Darvin Moore entered a plea of guilty in a federal criminal prosecution, the district judge startled both sides by announcing that from that day on the prosecutor must reveal extra details as part of any request under U.S.S.G. §5K1.1 that the defendant receive a lower sentence to reward substantial assistance in the apprehension or prosecution of other offenders. The directive, which no one had requested and the district judge labeled a “standing order,” reads: [see decision] * * *The United States has informed the judge that it will not provide the information about its deliberative process required by subparts (3)(c), (d), and (e); the district judge in turn has failed to act on any motion to reduce a sentence under §5K1.1. Although the record does not suggest that Moore would have been the beneficiary of such a motion in the absence of the order, the United States has filed a petition for mandamus, asking us to expunge the standing order.
In a second prosecution, however, the effect is demonstrable: the United States filed a motion asking the judge to sentence Philip Zingsheim below the guideline range. The district court ignored that motion and gave Zingsheim the highest sentence within the guideline range. Zingsheim and the United States have appealed. * * *
Standing orders have much the status of local rules, and the body entitled to decide whether a given rule of procedure (no matter its label) is inappropriate under the Rules Enabling Act, 28 U.S.C. §2071–77, and Fed. R. Crim. P. 57, is the Judicial Council of the circuit. This standing order is problematic, not only for the procedural reasons given by In re Dorner, 343 F.3d 910 (7th Cir. 2003), but also because it treats a decision by the United States to protect the confidentiality of internal deliberations as a reason to increase the defendant’s punishment. * * *
Zingsheim’s sentence is unlawful for a simple reason: the district court failed to exercise the discretion created by U.S.S.G. §5K1.1. See also 18 U.S.C. §3553(e), 28 U.S.C. §944(n). District judges must resolve motions that may affect sentences; they cannot be ignored, as the prosecutor’s was. Deferral is not an option. * * *
By ignoring rather than denying the prosecutor’s motion, the district judge withheld from the parties and this court the reasons for his decision. The standing order says that motions will be denied, not that they will be swept under the rug. The difference raises the question whether something else underlies the inaction, though the lack of explanation precludes a confident answer. * * *
Zingsheim must be resentenced. When deciding whether a sentencing discount is appropriate, the judge must not hold against Zingsheim the prosecutor’s decision not to provide information that meets the description of the standing order’s subparts (3)(c), (d), and (e). Judges may not demand that litigants surrender evidentiary privileges as a condition of adjudication: what a “privilege” means is an entitlement to withhold information even if it would bear on the merits of a disputed issue. * * *
Zingsheim’s sentence is vacated, and the case is remanded with instructions to resentence him as appropriate under §5K1.1 and this opinion. The petition for a writ of mandamus is denied.
Before CUDAHY, RIPPLE, and WILLIAMS, Circuit Judges.Christopher, Dennis v. Buss, Edward (ND Ind., Chief Judge Miller)
CUDAHY, Circuit Judge. The question in this asylum case is whether the immigration judge properly applied the “corroboration rule,” under which an asylum applicant may be required to present evidence corroborating her testimony even when that testimony is deemed credible. The test, as set forth by the Board of Immigration Appeals, hinges on whether it is “reasonable to expect” the applicant to produce particular pieces of evidence. Because we conclude that the rule was unreasonably applied in this case, we grant the petition for review. * * *We GRANT the petitions for review, VACATE the IJ’s decision, and REMAND the case for further proceedings. Although the choice of a presiding judge is left to the discretion of the BIA, we urge the BIA to assign a different judge to this case on remand.
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Indiana prisoner Dennis W. Christopher brought this lawsuit under 42 U.S.C. § 1983, alleging as relevant here that seven employees of Westville Correctional Facility violated the Eighth Amendment by failing to correct what he refers to as a “protrusive lip” on the prison softball field. He claims that the “lip” caused a ball to bounce up and hit him in the face, permanently injuring his right eye. The district court dismissed Christopher’s complaint prior to service, see 28 U.S.C. § 1915A, for failure to state a claim upon which relief may be granted. Christopher appeals, and we affirm. * * *It is at the objective stage of the inquiry that Christopher’s complaint fails. Even if the defendants knew about the field condition (we assume at this stage that they did) and purposefully ignored it, Christopher would not be entitled to relief. A “protrusive lip” on a softball field, even if hazardous when a ball hits it in a certain way, does not amount to a condition objectively serious enough to implicate the Eighth Amendment. Such “lips” where the infield joins the outfield doubtless exist on subpar fields across the country. To say that “exposure” to such a field could violate the Eighth Amendment would be to imply that prison officials violate the Eighth Amendment by letting inmates play sports at all, because the risk of injury, even serious injury, is inherent. Cf. James v. Hillerich & Bradsby Co., 299 S.W.2d 92, 94 (Ky. Ct. App. 1957) (negligence case noting “ordinary risks of personal injury involved in a baseball or softball game”).