United States v Green

Green appealed the denial of his successive motion for sentence reduction. The panel affirmed. It held that 28 USC 3582(c)(2) does not bar second or successive motion to reduce under the same guideline amendment  as there is no numeric limitation in the text, can only be inferred and thus a jurisdictional bar is not clearly stated. The panel noted this is consistent with the decision of five other circuits on the issue. It nevertheless affirmed as the district court’s determination that Green’s good conduct while in prison did tnoa overcome his extensive criminal history, need for deterrence  and the fact he received a shorter sentence through plea bargaining was within  its discretion.

Hall v Conoco, Inc. et al.

Hall appealed the exclusion of her expert’s testimony on medical causation. The panel affirmed. It held the district court permissible excluded testimony from an oncologist as his methodology was unreliable given the impermissible use of the highest hourly average emission level without any qualified expert adopting such a level for use and his exposure analysis was based on a wrong period of exposure, shifting assumptions about daily exposure and inconsistency about what was being calculated and he failed to rule out idiopathic causes of Hall’s leukemia which meant he failed to rule out the explanation for over 70% of leukemia cases. It affirmed as to the other expert as she also failed to adequately address the issues surrounding exposure to benzene form Conoco’s plant. It affirmed summary judgment to Conoco as Hall was required to prove medical causation through expert witnesses and to quantify her exposure and after the exclusion of the expert testimony, here no proof was offered on these issues.

McCoy v Meyers et al.

McCoy appealed the grant of Meyers’ qualified immunity motion at summary judgment. The panel affirmed in part, reversed in part and remanded. It held immunity was proper as to the choke hold leading to unconsciousness and beating before McCoy was restrained in handcuffs and zip ties as the officers reasonably believed McCoy was going for an officer’s gun and no circuit precedent put reasonable officers on notice the force was excessive. It reversed as to a second choke hold leading to unconsciousness and a beating while McCoy was restrained and sitting on the ground as the crime of aggravated kidnapping is serious, a jury could conclude McCoy was not an imminent threat due to the restraints, any resistance had ceased as of the time of the second choke hold and beating and the circuit precedent as of the date of the incident clearly established the choke hold and beating after the threat was gone violate the 4th Amendment.