United States v Wireman

Wireman appealed his child pornography sentence arguing the district court failed to adequately explain why his arguments for a reduced sentence were rejected. The panel, with one judge concurring in judgment, affirmed. The majority held that plain error applied because trial counsel failed to object to the method used by the district court in arriving at a sentence. It further held that under circuit precedent, the district court here was only required to indicate that it considered Wireman’s arguments and there is no exception for policy based arguments as within guideline sentences are presumed reasonable and allowing attacks for policy based arguments would be inconsistent with that presumption. The majority held that the district court did consider the arguments as it stated it should rely on the guidelines criticized by Wireman in order to promote uniformity and detailed Wireman’s criminal history and thus use of clothed pictures of children he knew as reasons to sentence Wireman wihtitn the guideline range and this was a functional rejection of the arguments which is all that circuit precedent requires. The concurrence argued that Wireman’s argument was that the guideline relied  upon represented an unsound judgment and thus the district court was required to address each augment on the record; that the presumption of reasonableness for within guidelines sentences should not apply when guidelines are not empirically based and tend to lump all defendants towards the statutory maximum as here; but, there is no evidence the sentence here would have been different given the criminal history and use of picture of children Wireman used. 

Vallejo v Berryhill

Berryhill appealed the district court order reversing the denial of disability benefits to Vallejo and remanding to the appeals board. The panel reversed and remanded. It held the order was a final order under 42 USC 405(g)as remand was not sought by Berryhill, Vallejo did not present any evidence to the district court, the district court reversed the appeals board ruling, entered judgment against Berryhill and warded attorney fees to Vallejo. It held the district court erred in finding the appellate panel did not give appropriate weight to the treating physician’s report as the applicable regulations do not impose any requirement to do so and circuit precedent recognizes the lack of a requirement. The case was remanded to consider Vallejo’s other arguments.