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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID PENNINGTON,
Defendant-Appellant. |
No. 22-5181 |
Appeal from the United States District Court for the Eastern District of Kentucky at London.
No. 6:19-cr-00074-7—Claria Horn Boom, District Judge.
Argued: June 15, 2023
Decided and Filed: August 21, 2023
Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.
_________________________
OPINION
_________________________
KAREN NELSON MOORE, Circuit Judge. While facing charges for violating
18 U.S.C. § 1594(c), Defendant David Pennington improperly communicated with witnesses in
the case against him. Pennington’s § 1594(c) charge alleged that he participated in a conspiracy
to engage in human trafficking in violation of 18 U.S.C. § 1591(a)(1), 1591(b)(1). The
government then charged Pennington with witness tampering, in violation of 18 U.S.C.
§ 1512(b)(1), and dismissed the § 1594(c) conspiracy charge when Pennington pleaded guilty to
the witness-tampering charge. When the district court sentenced Pennington, it applied the U.S.
Sentencing Guideline that corresponds with his witness-tampering conviction, which prompted a
series of cross-references to other guidelines. The final guideline in that chain, U.S.S.G.
§ 2G1.1, applies to certain human-trafficking offenses and supplies two possible base-offense
levels. U.S. Sent’g Guidelines Manual § 2G1.1(a) (U.S. Sent’g Comm’n 2021). Subsection (a)(1)
provides a base-offense level of “34, if the offense of conviction is 18 U.S.C. § 1591(b)(1)”;
subsection (a)(2) provides a base-offense level of “14, otherwise.” U.S.S.G. § 2G1.1(a)(1)–(2).
Despite the fact that Pennington had not been convicted of violating 18 U.S.C. § 1591(b)(1), and
no other guideline permitted a court to treat Pennington as if he had been, the district court used
subsection (a)(1)’s base-offense level of thirty-four as its starting point. This was an error.
Accordingly, we VACATE Pennington’s sentence and REMAND to the district court for
resentencing under the properly calculated Guidelines range. |
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NATHANIEL PEMBROOK (21-1503); ORLANDO JOHNSON
(21-1519),
Defendants-Appellants. |
Nos. 21-1503/1519 |
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:14-cr-20525—Laurie J. Michelson, District Judge.
Decided and Filed: August 21, 2023
Before: BATCHELDER, GIBBONS, and NALBANDIAN, Circuit Judges.
_________________________
OPINION
_________________________
ALICE M. BATCHELDER, Circuit Judge. In this consolidated appeal, which follows a
remand for resentencing, two convicted bank robbers challenge the district court’s decision to
redo the guidelines calculations and sentencing proceedings entirely, and to apply a new
sentencing enhancement that was not considered or applied in their original sentencing. We
affirm. |
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TRAVIS SOTO,
Petitioner-Appellant,
v.
BRIAN SIEFKER, Putnam County Sheriff,
Respondent-Appellee. |
No. 21-4229 |
Appeal from the United States District Court for the Northern District of Ohio at Toledo.
No. 3:21-cv-00167—Donald C. Nugent, District Judge.
Argued: June 15, 2023
Decided and Filed: August 21, 2023
Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.
_________________________
OPINION
_________________________
KETHLEDGE, Circuit Judge. Jeopardy attaches to an “offence,” for purposes of the
Double Jeopardy Clause, only when a court or jury has power to determine the defendant’s guilt
or innocence as to that “offence.” Here, an Ohio trial court dismissed a manslaughter charge
against Travis Soto, pursuant to his agreement to plead guilty to another charge. Ten years later,
in connection with the same incident, the State charged Soto with murder. We agree with the
Ohio Supreme Court and the district court that the Double Jeopardy Clause does not bar that
prosecution |
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JOHN DOE,
Plaintiff-Appellee,
v.
UNIVERSITY OF MICHIGAN; BOARD OF REGENTS OF THE
UNIVERSITY OF MICHIGAN; PAMELA HEATLIE; ROBERT
SELLERS; MARTIN PHILBERT; ERIK WESSEL; LAURA
BLAKE JONES; E. ROYSTER HARPER; SUZANNE
MCFADDEN; PAUL ROBINSON,
Defendants-Appellants. |
No. 22-1654 |
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:18-cv-11776—Terrence George Berg, District Judge.
Argued: May 5, 2023
Decided and Filed: August 21, 2023
Before: MOORE, CLAY, and MATHIS, Circuit Judges.
_________________________
OPINION
_________________________
KAREN NELSON MOORE, Circuit Judge. On its surface, this appeal concerns an
award of attorney fees. It presents, however, issues of ripeness, standing, and mootness that have
gone unaddressed through more than five years of litigation. John Doe was an undergraduate
student at the University of Michigan (“the University”) who was accused of sexual assault in
2018. Before the University’s investigation had concluded and before any discipline had been
issued, he filed a lawsuit alleging that the University’s disciplinary procedures for cases
involving sexual assault violated his due-process rights. The district court granted him a
preliminary injunction enjoining the disciplinary process from moving forward, and the
University appealed, arguing that Doe did not have standing to file his lawsuit and therefore the
district court lacked subject-matter jurisdiction. We remanded for reconsideration in light of our
decision in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), in which we held that the University’s
disciplinary procedures violated due process, and in light of the University’s new disciplinary
policy implemented in response to that decision. The district court granted in part and denied in
part the University’s motion to dismiss and granted in part Doe’s motion for partial summary
judgment. The University appealed again, renewing its jurisdictional arguments. Before the
appeal could be heard, the complainant decided she no longer wished to participate in the
disciplinary process. We determined that the appeal had become moot and vacated the district
court’s order granting summary judgment. Doe then moved for attorney fees, which the district
court granted, and the University appealed once again. We hold that Doe had standing to sue to
seek the release of his transcript, but that the district court lacked jurisdiction over his remaining
claims. We further hold that Doe was the prevailing party only as to his due-process claim
seeking the release of his transcript. We therefore VACATE the district court’s order and
REMAND for recalculation of attorney fees. |
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