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CHAD THOMPSON; WILLIAM T. SCHMITT; DON KEENEY,
Plaintiffs-Appellees,
v.
RICHARD MICHAEL DEWINE, in his official capacity as the Governor of Ohio; AMY ACTON, in her official capacity as Director of Ohio Department of Health; FRANK LAROSE, in his official capacity as Ohio Secretary of State,
Defendants-Appellants,

OHIOANS FOR SECURE AND FAIR ELECTIONS; DARLENE L. ENGLISH; LAURA A. GOLD; ISABEL C. ROBERTSON; EBONY SPEAKES-HALL; PAUL MOKE; ANDRE WASHINGTON; SCOTT A. CAMPBELL; SUSAN ZEIGLER; HASAN KWAME JEFFRIES; OHIOANS FOR RAISING THE WAGE; ANTHONY CALDWELL; JAMES E. HAYES; DAVID G. LATANICK; PIERRETTE M. TALLEY,
Intervenors-Appellees.
   No. 20-3526
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:20-cv-02129—Edmund A. Sargus, Jr., District Judge.
Decided and Filed: May 26, 2020
Before: SUTTON, McKEAGUE, and NALBANDIAN, Circuit Judges.


_________________________
ORDER
_________________________

PER CURIAM. By all accounts, Ohio’s public officials have admirably managed the problems presented by the unprecedented COVID-19 pandemic. This includes restricting Ohioans’ daily lives to slow the spread of a highly infectious disease. Nearly every other state and the federal government have done the same. And these are the types of actions and judgments that elected officials are supposed to take and make in times of crisis. But these restrictions have not gone unchallenged. See, e.g., Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (per curiam); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020). Our Constitution, of course, governs during both good and challenging times. Unlike those cases, however, the Plaintiffs and Intervenors here do not challenge the State’s restrictions per se. Rather, they allege that COVID-19 and the State’s stay-at-home orders have made it impossibly difficult for them to meet the State’s preexisting requirements for initiatives to secure a place on the November ballot—violating their First Amendment rights. So they challenge Ohio’s application of its general election and ballot-initiative laws to them.

. . .

There is no doubt that the COVID-19 pandemic and Ohio’s responsive restrictions to halt the spread of that disease have made it difficult for all Ohioans to carry on with their lives. But for the most part we are letting our elected officials, with input from public health experts, decide when and how to apply those restrictions. The election context is no different. And while the Constitution provides a backstop, as it must—we are unwilling to conclude that the State is infringing upon Plaintiffs’ First Amendment rights in this particular case.

For these reasons, we GRANT Defendants’ motion for a stay pending appeal and DISMISS AS MOOT their motion for an administrative stay.



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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMEL T. SMITHERS,
Defendant-Appellant.
   No. 19-5849
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:06-cr-00037-1—Charles R. Simpson, III, District Judge.
Decided and Filed: May 26, 2020
Before: DAUGHTREY, GIBBONS, and MURPHY, Circuit Judges.


_________________________
OPINION
_________________________

MURPHY, Circuit Judge. In the First Step Act of 2018, Congress gave district courts discretion to modify some criminal sentences that have long been final. Jamel Smithers appeals a district court’s discretionary denial of his request that the court reduce his sentence under that Act. Yet another federal criminal statute—18 U.S.C. § 3742(a)—identifies only four grounds on which a defendant may seek appellate review of an “otherwise final sentence.” Id. The interrelationship of these laws raises many significant legal questions: Does § 3742(a) apply to Smithers’s appeal of the denial of a sentence reduction under the First Step Act? If so, does his appeal fall within one of the statute’s four authorized grounds? If not, does he have another route to our review? Cf. United States v. Foreman, __ F.3d __, 2020 WL 2204261, at *5–7 (6th Cir. May 7, 2020).

We can avoid these questions in this case. Because § 3742(a) does not affect our subjectmatter jurisdiction, the United States may forfeit the argument that § 3742(a) restricts our review by failing to raise that argument. It failed to do so in this case. Yet the district court did not abuse its discretion when denying Smithers’s request for a reduced sentence. So we affirm.