alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
*

The Honorable James E. Gritzner, United States District Judge for the Southern

District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3133

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Octavio Monzalvez-Salinas, also *

known as Fredy Herrera, also known * [UNPUBLISHED]

as Juan Cogles-Pagan, *

*

Appellant. *

___________

Submitted: March 13, 2006

Filed: March 20, 2006

___________

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.

___________

PER CURIAM.

Octavio Monzalvez-Salinas pleaded guilty to conspiracy to distribute five

hundred grams or more of actual methamphetamine, and to illegally reentering the

United States after deportation. The district court*

 sentenced Monzalvez-Salinas

post-Booker to 151 months in prison and five years of supervised release. 
-2-

On appeal, Monzalvez-Salinas contends the district court committed error in

enhancing his offense level under U.S.S.G. § 3B1.4 for using a minor to commit the

offense and under § 3B1.1(c) for being an organizer, leader, manager or supervisor in

his offense. According to Monzalvez-Salinas, there is no factual basis for the

enhancements because he did not admit the underlying facts and a jury did not make

the necessary findings. Because the district court applied the guidelines in an advisory

manner, however, the court could properly find sentence-enhancing facts by a

preponderance of the evidence. United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th

Cir. 2006). The district court did not commit clear error in making its findings. The

evidence supports the court’s conclusion that Monzalvez-Salinas recruited and then

directed another person in the conspiracy to distribute methamphetamine, see United

States v. Bahena, 223 F.3d 797, 804 (8th Cir. 2000), and that the person recruited and

directed was a minor, see United States v. Paine, 407 F.3d 958, 964-65 (8th Cir. 2005).

Monzalvez-Salinas also argues the district court committed error in denying

him relief under the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. §

5C1.2(a). To qualify for safety valve relief, Monzalvez-Salinas must show, among

other things, that he does not have more than one criminal history point, and that he

did not organize, lead, manage, or supervise others in the offense. United States v.

Marshall, 411 F.3d 891, 895 (8th Cir. 2005). We have already rejected MonzalvezSalinas's contention that the district court improperly found he was the organizer,

leader, manager, or supervisor of another in the offense. Monzalvez-Salinas also

argues his criminal history category of II overstates the seriousness of his past

criminal history. Even if the seriousness of a defendant’s past criminal conduct is

overstated, criminal history points cannot be deleted for the purposes of the safety

valve. United States v. Langmade, 236 F.3d 931, 932 (8th Cir. 2001) (per curiam).

Thus, Monzalvez-Salinas is not eligible for safety valve relief. 

We affirm the district court.

______________________________
§ 170.502 Are nationwide management systems required for the TTP? ( a ) To the extent appropriate, the Secretaries, in consultation with Tribes, will implement safety, bridge, pavement, and congestion management systems for the Federal and Tribal facilities included in the NTTFI.
( b ) A Tribe may develop its own Tribal management system based on the nationwide management system requirements in 23 CFR part 973. The Tribe may use either TTP formula funds or transportation planning funds defined in 23 U.S.C. 202(c) for this purpose. The Tribal system must be consistent with Federal management systems.
#### John C. WENZEL and Zilpha L. Wenzel, husband and wife, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 2287.

United States District Court D. Idaho, Central Division.

Jan. 3, 1964.

Calvin Dworshak, Wm. R. Padgett, Boise, Idaho, for plaintiffs.

Sylvan A. Jeppesen, U. S. Atty., Robert E. Bakes, Asst. U. S. Atty., Boise, Idaho, for defendant.

CHASE A. CLARK, Chief Judge.

This matter was tried before the Court without a jury at Moscow, Idaho. The matter was then submitted on briefs for final determination by the Court.

This action is brought under the Federal Torts Claims Act for alleged loss of market value of certain real property, allegedly sustained by plaintiff Wenzel when officers and employees of the United States Forest Service entered upon his lands for the purpose of fighting a forest fire, burning in the immediate area.

The Federal Torts Claims Act makes the United States liable in the same manner and to the same extent as a private individual under like circumstances.

The first question for the Court to consider is that raised by the Government’s defense that the United States is excused from liability based on the common law doctrine of “emergency and necessity”.

The Court feels that the test as to emergency and necessity is the test ordinarily used in tort cases: would it appear to be an emergency and of necessity to a reasonable prudent person under like or similar circumstances then and there existing.

This Court feels that the evidence here shows that the United States Forest Service officials acted as a reasonable prudent person would have acted under like or similar circumstances; that the immediate and imminent danger required the trespass and the doctrine of necessity protects the defendant from any damages which may have been inflicted upon the property of plaintiffs.

This makes it unnecessary for the-Court to pass upon the question of damages alleged by Plaintiffs, but the Court having heard the evidence as to damages was impressed by the fact that the plain*727tiffs suffered no damage but, in fact, benefitted by the building of the road *by*the Forest Service.

Counsel for Defendant may prepare .Findings, Conclusions and Judgment and -submit them in accordance with the rules ■of this Court.
Pension Benefit Guaranty Corporation 

82-20 

July 27, 1982 

REFERENCE: 

 [*1] 4203(d) Complete Withdrawal. Trucking Industry Exemption 

OPINION: 

 This responds to your request for PBGC's opinion as to whether a letter of credit may satisfy the bond or escrow

requirement of Section 4203(d)(3)(B)(ii) of ERISA. That section establishes special withdrawal rules for qualifying

trucking industry multiemployer pension plans. We conclude that a letter of credit in the required amount can satisfy

the requirement. 

Section 4203(d) provides that trucking industry employers, which cease to perform work in the jurisdiction of

trucking industry pension plans to which they are obligated to contribute are not considered to have withdrawn from the

plan within the meaning of Section 4203(a) if certain conditions are met: (1) the employer furnishes for 60 months a bond

or an amount in escrow for 50% of what would have been its withdrawal liability; and (2) during the 60 months PBGC

does not determine that the plan has suffered substantial damage to its contribution base as a result of the cessation of

contributions. 

In our view a letter of credit, held for the requisite period of time and the terms of which are satisfactory to a plan,

satisfies the security requirements of Section 4203(d)(3)(B)(ii). [*2] We note, however, that it is the responsibility of

the plan sponsor to determine the acceptability of the specifics of any letter of credit arrangement. 

Henry Rose 

General Counsel
### §8663. Number in service in time of peace

In time of peace, the President may keep in service such vessels of the Navy as are required and keep the rest in reserve.

(Aug. 10, 1956, ch. 1041, 70A Stat. 449, §7293; renumbered §8663, Pub. L. 115–232, div. A, title VIII, §807(d)(2), Aug. 13, 2018, 132 Stat. 1836.)

| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
| --- | --- | --- |
| 7293 | 34 U.S.C. 452. | R.S. 1534. |

The words "vessels of the Navy" are substituted for the words "of the public armed vessels". The words "actual", "in his opinion", and "by the nature of the service" are omitted as surplusage. The words "in reserve" are substituted for the words "to be laid up in ordinary in convenient ports" to conform to modern terminology.

#### **Editorial Notes**

#### Prior Provisions

A prior section 8663, act Aug. 10, 1956, ch. 1041, 70A Stat. 533, authorized Secretary of Air Force to parole or remit sentence and restore to duty offenders who are confined in the United States Disciplinary Barracks, prior to repeal by Pub. L. 90–377, §6(3), July 5, 1968, 82 Stat. 288.

#### Amendments

2018—Pub. L. 115–232 renumbered section 7293 of this title as this section.

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title.
### §881. Art. 81. Conspiracy

(a) Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

(b) Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.

(Aug. 10, 1956, ch. 1041, 70A Stat. 66; Pub. L. 109–366, §4(b), Oct. 17, 2006, 120 Stat. 2631.)

| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
| --- | --- | --- |
| 881 | 50:675. | May 5, 1950, ch. 169, §1 (Art. 81), 64 Stat. 134. |

The words "or persons" are omitted as surplusage, since under section 1 of title 1 words importing the singular may apply to several persons.

#### **Editorial Notes**

#### Amendments

2006—Pub. L. 109–366 designated existing provisions as subsec. (a) and added subsec. (b).
##### 



Exhibit 32.2 CERTIFICATION PURSUANT TO 18 UNITED STATES CODE SECTION 1350, AS ADOPTED PURSUANT TO SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002 I, Edward L. Pierce, Director, Executive Vice President and Chief Financial Officer of BindView
Development Corporation (the Company), certify that
(i) the Companys Form 10-Q/A, Amendment No. 1 for the quarter
ended June 30, 2004 fully complies with the requirements of Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 and (ii) the information
contained in the Form 10-Q/A, Amendment No. 1 for the quarter
ended June 30, 2004 fairly presents, in all material respects, the financial condition and the
results of operations of the Company. By
    
    /s/ EDWARD L. PIERCE

Edward L. Pierce
Director, Executive Vice President and 
Chief Financial OfficerDecember 20, 2004 A signed original of the foregoing certification has been provided to the Company and
will be retained by the Company and furnished to the Securities and Exchange Commission or its
staff upon request.
§ 226.28 Shutdown, abandonment, and plugging of wells. No productive well shall be abandoned until its lack for further profitable production of oil and/or gas has been demonstrated to the satisfaction of the Superintendent. Lessee shall not shut down, abandon, or otherwise discontinue the operation or use of any well for any purpose without the written approval of the Superintendent. All applications for such approval shall be submitted to the Superintendent on forms furnished by him/her. ( a ) Application for authority to permanently shut down or discontinue use or operation of a well shall set forth justification, probable duration the means by which the well bore is to be protected, and the contemplated eventual disposition of the well. The method of conditioning such well shall be subject to the approval of the Superintendent.
( b ) Prior to permanent abandonment of any well, the oil lessee or the gas lessee, as the case may be, shall offer the well to the other for his recompletion or use under such terms as may be mutually agreed upon but not in conflict with the regulations. Failure of the Lessee receiving the offer to reply within 10 days after receipt thereof shall be deemed as rejection of the offer. If, after indicating acceptance, the two parties cannot agree on the terms of the offer within 30 days, the disposition of such well shall be determined by the Superintendent.
( c ) The Superintendent is authorized to shut in a lease when the lessee fails to comply with the terms of the lease, the regulations, and/or orders of the Superintendent.
### **CHAPTER 821—OFFICERS IN COMMAND**

Sec.
8162.
Aviation commands: eligibility.
8163.
Naval shipyards.
8164.
Marine Corps officers: limitation on power to command.
8165.
Staff corps officers: limitation on power to command.
8166.
Precedence accorded commanding officers.
8167.
Requirement of exemplary conduct.
8168.
Consular powers: senior officer present afloat.
8169.
Policy as to leave and liberty.
8171.
Continuation of authority after loss of vessel or aircraft.
8172.
Marine Corps organizations on vessels: authority of officers.

#### **Editorial Notes**

#### Amendments

**2018**—Pub. L. 115–232, div. A, title VIII, §807(e)(2)(A), (f)(1), Aug. 13, 2018, 132 Stat. 1837, 1838, redesignated chapter 551 of this title as this chapter and items 5942 to 5949, 5951, and 5952 as 8162 to 8169, 8171, and 8172, respectively.

**1980**—Pub. L. 96–513, title V, §503(41), Dec. 12, 1980, 94 Stat. 2914, struck out item 5955 "Retired officers withdrawn from command".

**1968**—Pub. L. 90–235, §5(a)(4), (b)(2), Jan. 2, 1968, 81 Stat. 761, struck out item 5941 "Assignment to command: regulations", item 5950 "Exemption from Supply Corps duties", item 5953 "Executive officer: assignment; authority", and item 5954 "Command: when different commands of Marine Corps and Army or Air Force join".
SERVED : JANUAR Y 5 , 201 2 U.S . DEPARTMEN T O FTRANSPORTATIO N'':^N'^lM^lyTDr

OFFIC EO FHEARING S WASHINGTON , D C i'Ji l Jih ; I N TH EMATTE RO F JOSEP H MOESSE R FA A DOCKE T NO . [T O B EASSIGNED ]

(Civi l Penalty Action ) FDM S NO . FAA-2011-128 6 NOTIC EO FASSIGNMEN T O FPROCEEDIN G Thi s proceedin g (heretofor e designate da s Cas e No . 2010NM720001 ) ha s bee n assigne dt o Administrativ e La w Judg e Richar dC . Goodwin . Al l future pleading s an d othe r communication s regardin g thi s proceedin g shal l b e serve do nth e Judge , th e FAA Hearin g Docket , an dth e othe r persons o nth e attache dServic e List . /'— ) lonni e A . Yode r

y' ^ Chie f Administrativ e L

. Attachmen t

- Servic e Lis tFDM S No . FAA-2011-128 6 (Civi l Penalty Action ) SERVIC ELIS T ORIGINA L& ON ECOP Y Federal Aviatio n Administratio n 80 0 Independenc e Avenue , S.W . Washington , D C 2059 1 Attention : Hearin g Docke t Clerk , AGC-43 0 Wilbu r Wrigh t Building—Suit e 2W1000 ' ON ECOP Y Gregory G . Skordas , Respondent' s Counse l Skordas , Casto n & Hyde , LL C 34 1 Sout hMai n Street , Suite 30 3 Sal t Lake City , U T 84111-270 7 TEL : 801-531-744 4 FAX : 801-531-888 5 Jeffrey M . Harper , Complainant' s Counse l Attorney , Offic e o f

th e Regiona l Counse l Northwes t

Mountai n Region , ANM- 7 Federa l Aviatio n Administratio n 160 1 Lin dAvenu e S.W . Renton , WA 9805 7 TEL : 425-227-216 1 FAX : 425-227-100 7 Th e Honorabl e Richar dC . Goodwin , Administrativ e La w Judg e Offic e o f Hearings , M-2 0 U.S . Departmen t

o f Transportatio n 120 0 Ne w Jerse y Avenue , S.E . Washington , D C 2059 0 TEL : 202-366-213 9 Attorney-Adviso r 202-366-512 1 Legal Assistan t FAX : 202-366-753 6

' Servic e wa s b y U.S . Mail . Fo r servic e inperso nor

b y expedite dcourier , us e th e followin g address : Federal Aviatio n Administration , 600 Independenc e Avenue , S.W. , Wilbu r Wrigh t Building—Suit e 2W1000 , Washington , D C 20591 ; Attention : Hearin g Docke t Clerk , AGC-430 . -2 -