United States v Pam

Pam appealed the dismissal of his habeas petition. The panel affirmed on different grounds than those relied upon by the district court. It held the district court erred in ruling the habeas challenge was barred because the sentence was based on agreement under Rule of Criminal Procedure 11(c)(1)(C) as the agreement here relied upon the armed career criminal statute to increase the sentence beyond the 10 year maximum under the felon in possession statute. It held the district court erred in ruling the habeas challenge was barred by the plea agreement’s collateral review waiver because the waiver only applied to challenges to conviction not challenges to sentence. It held that, while it was a close question, Pam’s prior convictions under New Mexico Statutes Annotated 30-3-8(B) qualified as violent felonies under the modified categorical approach as the statute is divisible and sets out three different crimes based on the plain language of the statute, the uniform jury instructions and the charging documents for Pam’s offenses and under circuit precedent voluntary reckless use of physical force is sufficient to satisfy the elements test, New Mexico law requires that the discharge of the gun at or from a car be done with knowledge the discharge creates substantial and foreseeable risk to the welfare of others and New Mexico case law limits 8(B) to cases where the welfare of person is endangered not the welfare of the car.

Owings v United of Omaha Life Insurance Company

Ownings appealed summary judgment to Company in his challenge to the calculation of his disability benefits. The panel reversed. It held company’s interpretation of the policy here was arbitrary and capricious as it required Owings to prove inability to perform all main duties of his job instead of proving inability to do at least one main duty of his as stated in the policy and also acted arbitrarily and capriciously in setting the date disability as there is no basis to set the date as no earlier as the first day after injury or as the last day worked as neither is part of the policy language, erred in relying on statements form employer about last day worked instead of when Owing became disabled and thus Owning is entitled to summary judgment and recalculation of benefits based on his higher salary at the time of injury.

HCG Platinum, LLC v Preferred Product Placement Corporation

Preferred appealed the district court’s order precluding introduction of evidence about damages and the subsequent judgment to Platinum on Preferred’s counterclaim. The panel reversed and remanded. It held the district court abused its discretion in considering Platinum’s motion for exclusion of damages evidence as a discovery sanction because it failed to consider most of the required factors set out in the circuit’s Woodworker precedent and granting the motion was contrary to the limited initial discussion of the factors at the hearing on the motion which indicated the motion should not be granted. The panel offered guidance to evaluate motions to exclude evidence of damages or similar motions to exclude when the practical effect of dismissal instructing district courts to consider the efficacy of lesser sanctions just as in cases where a party moves to dismiss for discovery violations and reiterated that dismissal typically requires finding of bad faith or willful misconduct or that a lesser sanction would be futile.

United States v Williams

Williams appealed his bank fraud and identity theft convictions arguing insufficient evidence. The panel affirmed. It held Williams’ made material misrepresentation by using of a false name, social security number, date of birth and eligibility for a Veterans Administration loan on a loan application and those misrepresentation had the capability to influence the loan decision as creditworthiness, reliance on statements in the application go into the process and the misrepresentations increased the amount of and types of loans Williams could receive. The panel rejected Williams’ counterarguments holding misrepresentations in incomplete applications are material because the bank here sometimes considers incomplete applications, the fact a decision maker never actually saw the misrepresentation is irrelevant and the misrepresentations under Williams’ theory actually inflicted the decision to not offer a loan. It held the evidence was sufficient to prove risk of loss as the credit information from the false name established Williams’ eligibility for a loan and incomplete applications sometimes proceed at the bank here and Williams provided additional information which restarted the loan application process and also put the bank at risk of lending to Williams.