Second Circuit Notes Split Re Sentencing under Criminal Rule 11(c)(1)(C) and Recourse to Resentencing

Per U.S. v. Walker, Slip Copy, 2009 WL 983031 (2d Cir. Apr. 14, 2009):

As the Government correctly notes in its 28(j) letter, there is currently a circuit split on the legal issue of whether defendants sentenced under Federal Rule of Criminal Procedure Rule 11(c)(1)(C) plea agreements may ever have recourse to resentencing pursuant to § 3582(c)(2). We need not resolve this issue for our Circuit today, however, because the district court in this case provided sufficient justification for its determination that it would not resentence Walker even if given the opportunity.

Seventh Circuit Notes Split Re When a Copyright Registration Application is Complete

Per Brooks-Ngwenya v. Indianapolis Public Schools, --- F.3d ----, 2009 WL 996998 (7th Cir. Apr. 15, 2009):

Compliance with the registration requirements of 17 U.S.C. § 411(a) is not a condition of copyright protection but is a prerequisite to suing for infringement. 17 U.S.C. § 411(a); Automation By Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749, 752 n. 1 (7th Cir.2006). The circuits have split over whether registration is complete when an application is made or only after the Copyright Office has acted on the application. Compare Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir.2006) (application is sufficient), and Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 365 (5th Cir.2004) (same), with Jennette v. United States, 77 Fed.Cl. 126, 131 (2007) (action on application is required); La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1201 (10th Cir.2005) (same); cf. Chicago Board of Education v. Substance, Inc., 354 F.3d 624, 631 (7th Cir.2003) (“an application for registration must be filed before the copyright can be sued upon”).

11th Cir. Notes Split Re Whether Federal Rule of Criminal Procedure 32(i)(1)(A) Requires the District Court to Personally Ask Defendant about PSI

Per U.S. v. Martinez, Slip Copy, 2009 WL 839093 (11th Cir. Apr. 1, 2009):

Martinez contends that the district court plainly erred, under Fed.R.Crim.P. 32(i)(1)(A), in failing to personally ask him whether he had read the PSI [presentence investigation report]prior to sentencing. . . . [T]he parties have not cited, and research does not reveal, any binding case law requiring a district court to personally address the defendant to determine whether he read and discussed the PSI with counsel, and other circuits are split on the issue. See United States v. Romero, 491 F.3d 1173, 1179-80 & n. 3 (10th Cir.2007) (noting a circuit split on the issue).

11th Cir. Discusses Split Re Impact of IIRIRA on Section 212(c) of the INA

Per Ferguson v. U.S. Attorney General, --- F.3d ----, 2009 WL 824434 (11th Mar. 31, 2009):

INS v. St. Cyr addressed the way that two statutory amendments to the INA-namely, AEDPA and IIRIRA-impacted § 212(c), 8 U.S.C. § 1182(c).

. . .

The circuits are split on how to apply St. Cyr to aliens outside of the guilty plea context. The majority of circuits to address the issue have held that IIRIRA does not have an impermissible retroactive effect on aliens who relied on § 212(c) relief in deciding to go to trial. See Hernandez-Castillo v. Moore, 436 F.3d 516, 520 (5th Cir.2006); Montenegro v. Ashcroft, 355 F.3d 1035, 1036-37 (7th Cir.2004); Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.2003); Chambers v. Reno, 307 F.3d 284, 290-93 (4th Cir.2002); Dias v. INS, 311 F.3d 456, 458 (1st Cir.2002) (“[A]pplication of the new statutory limitations on discretionary relief does not have an impermissible retroactive effect on those aliens who would have been eligible for discretionary relief when they were convicted of a felony after trial.”).

. . .

Although our Court has not squarely decided the retroactivity issue splitting the circuits, we have come close to doing so on two occasions. We have all but said that St. Cyr 's retroactivity analysis does not apply to aliens who were convicted after a trial-as opposed to a guilty plea-and that § 212(c) relief is, therefore, not available to such aliens.

1st Cir. Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68

Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009):

The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 648-49 (7th Cir.2001); but it did so citing a prior case, Gavoni v. Dobbs House, Inc., 164 F.3d 1071 (7th Cir.1999), involving joint plaintiffs, who present quite different problems; and the result in Harbor Motor was more than justified on a different ground, namely, that the verdict in favor of the co-defendant was being reversed, Harbor Motor, 265 F.3d at 644-45, so the plaintiff's total package could in the end well exceed the package offer.

Similarly, the Fifth Circuit also said the failure to allocate was fatal; but it did so on facts where it was otherwise plainly right to refuse to shift costs because the judgment against the defendant exceeded the offer-when combined with a settlement received from the other. Johnston, 803 F.2d at 870. The apportionment notion was invoked to reach a correct result but one properly reached by saying that the joint offer was less than the total amount actually recovered by the plaintiff.

The Third Circuit, by contrast, approved use of Rule 68 cost shifting where an unapportioned offer had been made that exceeded the amount recovered; it said that the suit against multiple defendants involved joint liability and an indemnification contract, although it is not clear how much this mattered to the court nor why it should matter. Le v. Univ. of Pa., 321 F.3d 403, 408 (3d Cir.2003). And district courts have employed Rule 68 without difficulty in multiple defendant cases where the offer was not apportioned and the total recovery was less than the unapportioned offer.^FN4

. . . .

[W]e agree with the outcomes in the Seventh and Fifth Circuit decisions ( Harbor Motor and Johnston ) because comparability was impossible in the first case and favored the plaintiff in the second, but not the putative rationales adopted by those courts, and we align ourselves with the Third Circuit, save that we do not see why it matters whether liability was joint or several or how the defendants were related: a package offer is simply to be taken on its own terms and compared with the total recovery package.

6th Cir. Reveals Split Re Whether Comity and Federalism Preclude Federal Jurisdiction over State Taxation Claims

Per Commerce Energy, Inc. v. Levin, 554 F.3d 1094 (6th Cir. Feb 04, 2009):

Yet there is a circuit split. The district court heavily relied on DIRECTV v. Tolson, 513 F.3d 119 (4th Cir.2008), which, in dismissing a § 1983 claim, rejected the idea that Hibbs did anything to limit an expansive reading of Fair Assessment because the comity principle is “broader than the Act itself, and its scope is not restricted by § 1341.” DIRECTV, 513 F.3d at 127 (citing Fair Assessment, 454 U.S. at 110). To the Fourth Circuit, the comity principle's breadth “was simply not before the Supreme Court in Hibbs.” Id. at 127-28.

Other circuits disagree. The Seventh Circuit, for instance, has reconciled these cases by holding that Fair Assessment cannot bar each and every challenge to a state's taxation scheme because Hibbs “restrict[s] comity to cases that could tie up rightful tax revenue.” Levy v. Pappas, 510 F.3d 755, 761 (7th Cir.2007) (quotations omitted).

. . . .

Similarly, the Ninth Circuit, in Wilbur v. Locke, 423 F.3d 1101 (9th Cir.2005), took at face value Hibbs's admonition that comity principles preclude jurisdiction “only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection” and observed that the plaintiffs before it sought “no such relief.” 423 F.3d at 1110 (quoting Hibbs, 542 U.S. at 107 n. 9, 124 S.Ct. 2276).

Animating these courts' disagreement with the Fourth Circuit are twin concerns. First, a sweeping reading of Fair Assessment runs squarely against Hibbs's instruction that comity guts federal jurisdiction only when plaintiffs try to thwart tax collection. Hibbs, 542 U.S. at 107 n. 9, 124 S.Ct. 2276.^FN4 Second, an unduly broad view of comity would render an Act of Congress-the Tax Injunction Act-effectively superfluous, as its contours would never be dispositive so long as extant “comity principles” uniformly barred challenges to state taxation. In recognizing this, the Hibbs Court warned lower courts that prior cases in this area are “not fairly cut loose from their secure, state-revenue-protective moorings.” Id. at 107, 124 S.Ct. 2276.

SCOTUS Resolves Split Regarding Nature of Required Predicate Offense in the Gun Control Act

Last month the Supreme Court issued a ruling in U.S. v. Hayes, 129 S.Ct. 1079 (Feb. 24, 2009), which resolved a split regarding the question of whether 18 U.S.C. § 922(g)(9) requires that the offense predicate to a defendant's firearm possession conviction have as an element a domestic relationship between offender and victim. Here is an excerpt:

The federal Gun Control Act of 1968, 18 U.S.C. § 921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” § 922(g)(9). The definition of “misdemeanor crime of domestic violence,” contained in § 921(a)(33)(A), is at issue in this case.

. . .

Asserting that his 1994 West Virginia battery conviction did not qualify as a predicate offense under § 922(g)(9), Hayes moved to dismiss the indictment. Section 922(g)(9), Hayes maintained, applies only to persons previously convicted of an offense that has as an element a domestic relationship between aggressor and victim. The West Virginia statute under which he was convicted in 1994, Hayes observed, was a generic battery proscription, not a law designating a domestic relationship between offender and victim as an element of the offense. The United States District Court for the Northern District of West Virginia rejected Hayes's argument and denied his motion to dismiss the indictment. 377 F.Supp.2d 540, 541-542 (2005). Hayes then entered a conditional guilty plea and appealed.

In a 2-to-1 decision, the United States Court of Appeals for the Fourth Circuit reversed. A § 922(g)(9) predicate offense, the Court of Appeals held, must “have as an element a domestic relationship between the offender and the victim.” 482 F.3d 749, 751 (2007). In so ruling, the Fourth Circuit created a split between itself and the nine other Courts of Appeals that had previously published opinions deciding the same question. According to those courts, § 922(g)(9) does not require that the offense predicate to the defendant's firearm possession conviction have as an element a domestic relationship between offender and victim. We granted certiorari, *1084 552 U.S. ----, 128 S.Ct. 1702, 170 L.Ed.2d 512 (2008), to resolve this conflict.

. . .

Most sensibly read, then, § 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as a misdemeanor offense that (1) “has, as an element, the use [of force],” and (2) is committed by a person who has a specified domestic relationship with the victim. To obtain a conviction in a § 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense.