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Posted by: Karen Belcher on Mar 3, 2021

MURPHY, Circuit Judge. Jennifer Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. Most of these gift cards had an average value of about $35 for a total value of about $47,000. The Sentencing Guidelines directed the district court to increase Riccardi’s guidelines range based on the amount of the “loss.” U.S.S.G. § 2B1.1(b)(1). Yet § 2B1.1 does not define the word “loss.” A search for its ordinary meaning might produce definitions such as “[t]he amount of something lost” or “[t]he harm or suffering caused by losing or being lost.” American Heritage Dictionary of the English Language 1063 (3d ed. 1992). Perhaps, then, the word is ambiguous on the margins. Does it, for example, cover only financial harms or emotional ones too? But one definition of “loss” that you will not find in any dictionary is the rule that the district court used for Riccardi’s stolen gift cards: a $500 minimum loss amount for each gift card no matter its actual value or the victim’s actual harm (which, for Riccardi, amounted to a total loss amount of $752,500).

Riccardi challenges the use of this $500 minimum loss amount, which comes from the Sentencing Commission’s commentary to § 2B1.1. The commentary instructs that the loss “shall be not less than $500” for each “unauthorized access device,” a phrase that Riccardi concedes covers stolen gift cards. U.S.S.G. § 2B1.1 cmt. n.3(F)(i). But guidelines commentary may only interpret, not add to, the guidelines themselves. United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam). And even if there is some ambiguity in § 2B1.1’s use of the word “loss,” the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall “within the zone of ambiguity” that exists. Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019). So this bright-line rule cannot be considered a reasonable interpretation of—as opposed to an improper expansion beyond—§ 2B1.1’s text. We thus reverse Riccardi’s sentence and remand for resentencing without the use of the commentary’s automatic $500 minimum loss amount for every gift card.

Posted by: Karen Belcher on Mar 3, 2021

CHAD A. READLER, Circuit Judge. Over the last year, governments at all levels have employed a range of precautionary measures in an attempt to curb the COVID-19 pandemic. In Kentucky, Governor Andrew Beshear’s pandemic response included instituting a “Mass Gathering Order.” By its terms, the Order prevented groups larger than ten in number from assembling for certain purposes.

Challenging that Order in federal court, plaintiffs alleged that the Order, both facially and as applied, violated their First Amendment rights to free speech and assembly. Later developments would reveal that, at least in an as-applied context, plaintiffs had been the victims of a textbook First Amendment violation, given Governor Beshear’s content-based application of the Order. For while Governor Beshear discouraged plaintiffs—through means including the threat of prosecution—from holding a mass gathering at the State Capitol to express their views opposing his COVID-19-related restrictions, he at the same time welcomed a large group of Black Lives Matter protestors to the State Capitol, even going so far as to speak to those protestors despite their plain violation of the Order.

On related grounds, the district court preliminarily enjoined enforcement of the Order. But before that decision could be fully litigated before us, Governor Beshear withdrew the Order. That action renders this appeal moot, as we are without a live controversy to resolve. To the extent plaintiffs claim that a threat of prosecution for their past violations of the Order keeps the broader case alive, we remand the case to the district court to determine what further relief, if any, is proper.

Posted by: Karen Belcher on Mar 3, 2021

The Appellant, Gary Wayne Bunch, pled guilty to two counts of theft under $1,000. The trial court sentenced him to concurrent sentences of ten years for each offense, and he was placed on supervised probation. Upon finding that the Appellant violated the conditions of his probation, the trial court revoked the Appellant’s probation and ordered him to serve his sentence in confinement. On appeal, the Appellant challenges the ruling of the trial court. Upon review, we affirm the judgment of the trial court.

Posted by: Karen Belcher on Mar 3, 2021

A Davidson County jury found Defendant, Kenzi Eugene Anderson, guilty on two counts each of aggravated burglary, employing a firearm during the commission of a dangerous felony, and aggravated robbery, for which the trial court sentenced Defendant to an effective sentence of twenty-three years’ incarceration. On appeal, Defendant contends that the trial court abused its discretion by denying Defendant’s motion to sever defendants and by imposing an excessive sentence and that the trial court committed plain error by failing to sever his offenses for trial. Following a thorough review, we affirm the judgments of the trial court.

Posted by: Karen Belcher on Mar 3, 2021

This appeal concerns an administrative judge’s decision to exclude several exhibits in a contested case between a hospital and the TennCare Division of the Tennessee Department of Finance and Administration. At issue in the contested case is the validity of two TennCare rules that regulate payment for emergency services provided to Medicaid beneficiaries when the hospital has no contract with the beneficiaries’ managed care provider. The exhibits contain out-of-court statements made by industry representatives and federal agency employees about the meaning and application of federal and state law. TennCare asserts that the exhibits are necessary to show the reasonableness of its decision- making process. The healthcare services provider argues that the exhibits contain irrelevant, inadmissible hearsay. Having determined that the exhibits are not admissible under the Uniform Administrative Procedures Act, we affirm the administrative judge’s ruling.

Posted by: Karen Belcher on Mar 3, 2021

City employees brought action against the city upon its amendment of the pension plan. The trial court ruled in favor of the city. The employees appeal. We affirm.

Posted by: Karen Belcher on Mar 2, 2021

Following a jury trial, the Defendant, Robert Edward Seaton, was convicted of facilitation of theft of property valued at $2,500 or more but less than $10,000, a Class E felony, and one count each of vandalism, evading arrest, and driving with a revoked license, second offense, Class A misdemeanors. See Tenn. Code Ann. §§ 39-11-403, -14-103, -14-105, - 14-408, -16-603, 55-50-504. In this appeal as of right, the Defendant contends (1) that the trial court erred by denying the Defendant’s motion for a mistrial when a court officer, who was acting as jury custodian, was called and sworn as a rebuttal witness; (2) that the court erred by denying the Defendant’s motion for a mistrial after the court elicited from a defense witness the name of the witness’s father-in-law, who was “a notorious criminal and murderer”; (3) that the court erred by admitting reputation or opinion evidence from three law enforcement officers regarding a defense witness’s character for truthfulness; (4) that plain error occurred when the State cross-examined a defense witness regarding prior criminal behavior not resulting in a conviction; and (5) that the cumulative effect of these errors deprived the Defendant of a fair trial. Following our review, we conclude that the admission of reputation and opinion evidence from law enforcement officers constitutes reversible error such that the Defendant is entitled to a new trial. Alternatively, we conclude that the Defendant would be entitled to relief due to cumulative error.

Posted by: Karen Belcher on Mar 2, 2021

The Juvenile Court for Anderson County (“the Trial Court”) entered its judgment on January 15, 2021. Appellant filed her notice of appeal with the trial court clerk on February 16, 2021. On February 22, 2021, appellant filed in this Court a motion to accept late-filed notice of appeal accompanied by a copy of the notice of appeal filed with the trial court clerk.

Posted by: Karen Belcher on Mar 2, 2021

GRIFFIN, Circuit Judge. In this action, Larry E. Parrish, P.C., a Tennessee law firm (the “Parrish Firm”) sued three judges of the Tennessee Court of Appeals because they allegedly made false statements in a written opinion resolving an appeal to which the Parrish Firm was a party. Plaintiff claims that the false statements were a violation of its Fourteenth Amendment rights, but as a remedy, it seeks no damages or injunctive relief—instead, requesting only a declaration that defendants violated its constitutional rights.

The district court, however, granted defendants’ motion to dismiss, reasoning that it was “not a close issue” that it lacked jurisdiction, and that even if it had jurisdiction, dismissal was required by judicial immunity and the relevant statute of limitations. Finally, even ignoring these sizable defects, the district court concluded that the facts pleaded by plaintiff were insufficient to state a claim. Now on appeal, plaintiff primarily challenges the district court’s rulings regarding jurisdiction and judicial immunity. We affirm the judgment of the district court and direct plaintiff and plaintiff’s counsel to show cause why sanctions should not be assessed against them on appeal.

Posted by: Karen Belcher on Mar 2, 2021

LARSEN, Circuit Judge. One evening in 1994, Edward Kendrick III fatally shot his wife outside a Chattanooga gas station. At trial, he insisted that his rifle had malfunctioned and fired without Kendrick pulling the trigger. But the jury didn’t buy his account. Instead, it convicted Kendrick of first-degree murder.

In his petition for state postconviction relief, Kendrick raised seventy-seven claims alleging either ineffective assistance of counsel (IAC) or prosecutorial misconduct. He succeeded in the Court of Criminal Appeals on two of his IAC claims, but the Tennessee Supreme Court reversed as to both. In doing so, it held that counsel’s decision not to adduce the testimony of a firearms expert was not constitutionally deficient performance. Neither was counsel’s failure to introduce favorable hearsay statements under the excited utterance exception.

Kendrick then sought federal habeas review. The district court denied his forty-eight- claim petition. We granted a certificate of appealability (COA) on the two IAC claims that the Tennessee Court of Criminal Appeals had initially found meritorious. Because the Tennessee Supreme Court did not unreasonably apply Supreme Court precedent in denying Kendrick relief, we now AFFIRM.


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