United States v DeRusse

The government appealed the time served sentence in DeRusse’s kidnapping case arguing it was substantively unreasonable. The panel, 2-1, affirmed. The majority held that the district court was not required to consider the same factors in evaluating its variance sentence as it was to depart from the guidelines, that any error in not properly evaluating the departure was harmless in light of the variance, there was no error in finding DeRusse’s actions were aberrant and the result of severe mental illness and the district court recognized the seriousness of the offense and the negative effects on the victim and her family and that the time served sentence was within the bounds of rational choices under eh circumstances. Baldock dissented arguing that the 70 day time served sentence is ludicrous given the kidnapping here was planned, involved luring the victim, laying in wait, an apparent gun, handcuffs, lasted 8 hours and was planned to last three weeks and one forced kiss and the district court’s focus on the DeRusse’s and victim’s immaturity appears to be a boys will be boys rationalization.

Sause v Bauer

Sause appealed the dismissal of her1983 action for injunctive and monetary relief. The panel, with one judge adding a concurrence, affirmed in part, reversed, and remanded in part. It held that at the time of the incident, no Supreme Court or circuit precedent gave notice that ordering a person to stop praying while officers were investigating a minor infraction inside a person’s home violated the first Amendment and thus the officers were entitled to qualified immunity. It held that while injunctive relief may be available here, Sause did not have standing, as she did not point to any real threat the conduct would reoccur and thus dismissal should have been without prejudice for lack of subject matter jurisdiction and the case was remanded for entry of judgment. Tymkovich added a concurrence arguing the conduct here may have violate the 4th Amendment as the initial legitimate interaction became and unlawful detention once the officers mocked Sause, ordered her to stop praying, order her to show her mastectomy scars and failed to actually investigate the noise complaint which they said was the reason they came, but, Sause didn’t bring such a claim.

United States v Gutierrez

Gutierrez appealed the grant of his motion for reduced sentence arguing the reduction should have been greater. The panel affirmed. It held under recent circuit precedent, the sentencing commission was authorized to bar departures below the guideline range valuated at the reduction proceeding and was authorized to conclude eliminating sentences below the new guidelines range serves the purposes of sentencing. It also rejected the “one book’ argument holding the amendment Gutierrez sought to apply was not made applicable to reduction proceedings and the one book policy does not require otherwise and the guideline about which amendments apply retroactively is more specific that the general sentencing statutes and thus controls.

Pohl v US Bank

Pohl appealed summary judgment to Bank in his Truth in Lending Act rescission case. The panel affirmed holding that Pohl could have raised the rescission claim in an earlier state quiet title action but did not and is thus barred from raising now by claim preclusion.