alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
(March 18, 1985)

#### In the Matter of Bruce R. Baird, Respondent, v Ralph B. Ness, Appellant, et al., Respondents.

Per Curiam.

Appeal *976from a judgment of the Supreme Court at Special Term (Bryant, J.), entered March 12,1985 in Tompkins County, which granted petitioner’s application, in a proceeding pursuant to the Election Law, to declare invalid the independent nominations of respondents Thomas Smith and Robert Scott for the office of Trustee of the Village of Trumansburg in the March 19, 1985 general election.

Respondents Thomas Smith and Robert Scott timely filed independent nominating petitions on or before February 26, 1985, the last day for filing those petitions *(see,*Election Law § 15-108 [8] [a]). They did not, however, file their certificates of acceptance on or before March 1, 1985, the last day on which they could be filed *(see,*Election Law § 15-108 [8] [b]). Instead, the candidates filed their certificates of acceptance on March 4, 1985. Petitioner commenced this proceeding on March 8, 1985 for an order directing that the names of the candidates be removed from the ballot due to the late filing of their certificates of acceptance. Special Term granted the petition and this appeal ensued.

Despite the fact that the certificates of acceptance filed by the candidates were untimely and that this defect, if properly raised for judicial review, would be deemed fatal *(see,*Election Law § 1-106 [2]), there must be a reversal. Persons seeking to judicially challenge an independent nomination for public office must do so by means of a proceeding pursuant to the Election Law (Election Law § 16-102 [1]). The only time limitation contained therein which could apply to a challenge to an untimely filed certificate of acceptance is the seven-day provision of Election Law § 16-102 (2), which runs from the “last day to file the petition for such village election or independent nomination”. Therefore, since this proceeding was not commenced on or before March 5, 1985 (seven days after the Feb. 26 deadline for filing petitions), it must be dismissed as untimely.

In so holding, we reject petitioner’s argument that the seven-day limitation of Election Law § 16-102 (2) is inapplicable to this proceeding since it is not a “proceeding with respect to a petition”, but, rather, a proceeding with respect to a nomination. We refrain from embracing this logic, since to do so would result in a situation in which there would be no time limitation to challenges based on untimely certificates of acceptance, a situation which is at variance with the entire statutory scheme enacted to govern the conduct of elections in this State.

Judgment reversed, on the law, without costs, and petition dismissed. Mahoney, P. J., Casey, Weiss and Levine, JJ., concur.
Alton WADDELL-EL, petitioner, v. Stan YOUNG, Warden.

No. 12-10131.

Supreme Court of the United States

Aug. 30, 2013.

Petition for rehearing denied.
[No. 37826-1-I.

Division One.

August 25, 1997.]

#### D.J. Hopkins, Inc., *Individually and as Representative, Appellant,*v. GTE Northwest, Inc., *Respondent.*

Appeal from a judgment of the Superior Court for King County, No. 95-2-04801-3, Peter D. Jarvis, J., entered November 14, 1995. *Affirmed*by unpublished opinion per Grosse, J., concurred in by Agid and Becker, JJ. Now published at 89 Wn. App. 1.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5047

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CALVIN LAMONT MCFADYEN, a/k/a Nino,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (CR-95-83)

Submitted: April 20, 2005 Decided: May 17, 2005

Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

Because the Sentencing Guidelines relating to revocation of

supervised release have always been advisory, see U.S. Sentencing

Guidelines Manual Ch. 7, Pt. A, the sentence in this appeal is not

impacted by the decision in United States v. Booker, 125 S. Ct. 738

(2005).

- 2 -

PER CURIAM:

Calvin Lamont McFadyen appeals from the district court’s

judgment revoking his supervised release and imposing a forty-two

month sentence. Because our review of the record discloses no

reversible error, we affirm the revocation of McFadyen’s supervised

release and the sentence imposed.

Based on McFadyen’s admission to a criminal association

violation, his no contest plea to a criminal conduct violation, and

the probation officer’s proffer of evidence, the district court

found that McFadyen violated the conditions of his supervision and

properly revoked his supervision. See 18 U.S.C.A. § 3583(e)(3)

(West Supp. 2004). McFadyen challenges the length of the sentence,

which exceeded the thirty-to-thirty-seven month range suggested by

the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual

§ 7B1.4(a) (1994). However, this range is not binding on the

sentencing court.*

 United States v. Davis, 53 F.3d 638, 640-41

(4th Cir. 1994). Indeed, a greater sentence may be warranted

where, as here, the original sentence was the result of a downward

departure. See USSG § 7B1.4, comment. (n.4). Because McFadyen

received a significant downward departure from his original

sentence, the district court’s decision to impose a sentence above
- 3 -

the range suggested in § 7B1.4(a) was reasonable. Additionally, we

note that the imprisonment and supervised release terms did not

exceed the maximum sentence that could be imposed on revocation.

See 18 U.S.C.A. § 3583(e)(3); Johnson v. United States, 529 U.S.

694, 702 (2000); United States v. Maxwell, 285 F.3d 336, 341 (4th

Cir. 2002). Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED
EXHIBIT 31

CERTIFICATION

I,
Mike Ulrich, certify that:

In
giving the foregoing certifications in paragraphs 4 and 5, I have relied to the extent I consider reasonable on information provided to me by the working interest owners and
the managing general partner of the Mesa Offshore Trust Partnership, in which the registrant owns a 99.99% interest.

|                      |  |                                                                                                                                          
|--------------------- |  | -----------------------------------------------------------------------------------------------------------------------------------------
|Date: August 14, 2009 |  | /s/ MIKE ULRICH Mike Ulrich Vice President and Trust OfficerThe Bank of New York Trust Company, N.A.,
as attorney-in-fact for the Trustee

---



QuickLinks
* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-20322

Conference Calendar

 

ERIC VICTOR ESTEVES, 

also known as Zetheary A. Reed,

Plaintiff-Appellant,

versus

COUNTY OF HARRIS; 

HARRIS COUNTY COMMISSIONERS COURT,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. CA-H-94-1715

- - - - - - - - - -

December 10, 1996

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Eric Victor Esteves, Texas prisoner # 517832, appeals from

the judgment of the district court dismissing his civil rights

action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). He

argues that the appellees were deliberately indifferent to his

serious medical needs by failing to create a procedure for

treating nicotine-addicted inmates as part of their policy to ban
No. 96-20322

- 2 -

smoking in the Harris County Jail. We have reviewed the record

and the district court’s opinion and find no reversible error.

Esteves can present no legal points arguable on their

merits, and the appeal is frivolous. See Howard v. King, 707

F.2d 215, 220 (5th Cir. 1983). Because the appeal is frivolous,

it is DISMISSED. See 5th Cir. Rule 42.2. We caution Esteves

that any additional frivolous appeals filed by him will invite

the imposition of sanctions. To avoid sanctions, Esteves is

further cautioned to review any pending appeals to ensure that

they do not raise arguments that are frivolous.

APPEAL DISMISSED. SANCTION WARNING ISSUED.
EXHIBIT 32.1

  Certification of Chief Executive Officer Regarding Periodic Report Containing
 Financial Statements Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

I, Robert A. Placek, the Chief Executive Officer of Wegener Corporation (the
"Company"), in compliance with 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, hereby certify that, to the best
of my knowledge, the Company's Quarterly Report on Form 10-Q for the quarter
ended December 3, 2004 (the "Report") filed with the Securities and Exchange
Commission:

      o     fully complies with the requirements of Section 13(a) or 15(d) of
            the Securities Exchange Act of 1934; and

      o     the information contained in the Report fairly presents, in all
            material respects, the financial condition and results of operations
            of the Company.

                                 /s/ Robert A. Placek

                                 Name:   Robert A. Placek
                                 Title:  Chairman of the Board, President and
                                         Chief Executive Officer
                                         (Principal Executive Officer)
                                 Date:   January 18, 2005
No. 99-40770

-1-

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40770

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN AARON PRUETT,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:98-CR-47-15

--------------------

February 11, 2000

Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

 John Aaron Pruett pleaded guilty to conspiracy to

distribute heroin and cocaine and to the knowing and intentional

distribution of heroin “which resulted in the death of the user” 

in violation of 21 U.S.C. §§ 841 and 846. Pruett argues that 21

U.S.C. § 841 is unconstitutional because it lists as sentencing

considerations factors which should be substantive elements of

the offense. Specifically, Pruett asserts that whether the death

of a user was caused by the drug distribution is more than a mere
No. 99-40770

-2-

sentencing consideration. Pruett relies on a recent Supreme

Court case which construed the federal carjacking statute, 18

U.S.C. § 2119, as establishing three separate offenses due to its

specification of different punishments based on the level of

injury suffered by the victim. Jones v. United States, 526 U.S.

227, ___, 119 S. Ct. 1215, 1218-28 (1999). In Jones, the Supreme

Court held that increased penalties imposed for increased injury

to the victim could only be imposed if the injury were alleged in

the indictment and proved at trial. Jones, 119 S.Ct. at 1228. 

Assuming without deciding, that Pruett is correct in his

argument that the level of injury to a victim must be pleaded as

part of an offense rather than treated as a mere sentencing

factor, the facts of his case are fatal to his claim for relief. 

The record shows that the indictment did charge him with the

death of a user and that he admitted the same both in his plea

agreement and in open court. This satisfies the requirement of

Jones, that an offense based on the level of injury to the victim

must be pleaded and proved. See Jones, 119 S.Ct. at 1228. 

AFFIRMED.
CONSENT



To:
        Olympus Pacific Minerals Inc.And to:
        Berns & Berns, Counselors at LawAnd to:
        U.S. Securities & Exchange Commission(the Securities Regulator)


Gentlemen:

RE: TECHNICAL REPORTS - BONG MIEU AND PHUOC SON GOLD PROJECTS

Reference is made to the technical reports (the Technical Reports) entitled A Technical Review of the Bong Mieu Gold Project in Quang Nam Province, Vietnamdated August 31, 2007, and Preliminary Assessment of the Phuoc Son Project in Quang Nam Province, Vietnam dated December 2007, by Terra Mining Consultants and Stevens & Associates which we prepared forOlympus Pacific Minerals Inc.(the Company or Olympus).

We hereby consent to the filing of the Technical Reports with the Securities Regulator, and to the written disclosure of the Technical Reports and the inclusion of extracts therefrom or a summary thereof in the annual Form 20-F. We further agree to being named as an expert in the annual statement (Form 20-F).

Dated this 26th day of March, 2008.



Sincerely,STEVENS & ASSOCIATESSigned by Murray StevensPrincipal




TERRA MINING CONSULTANTSSigned by Graeme FultonDirector




---
```

[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1492 Engrossed Amendment Senate (EAS)]

  
  
  
  
  
  
  
  
  
  

                  In the Senate of the United States,

                                                     November 16, 2006.
    Resolved, That the bill from the House of Representatives (H.R. 
1492) entitled ``An Act to provide for the preservation of the historic 
confinement sites where Japanese Americans were detained during World 
War II, and for other purposes.'', do pass with the following

                              AMENDMENTS:

On page 2, line 15 through 20, strike and insert:
    (b) Grants.--
            (1) Criteria.--The Secretary, after consultation with 
        State, local, and tribal governments, other public entities, 
        educational institutions, and private nonprofit organizations 
        (including organizations involved in the preservation of 
        historic confinement sites), shall develop criteria for making 
        grants under paragraph (2) to assist in carrying out subsection 
        (a).
            (2) Provision of grants.--Not later than 180 days after the 
        date on which funds are made available to carry out this Act, 
        the Secretary shall, subject to the availability of 
        appropriations, make grants to the entities described in 
        paragraph (1) only in accordance with the criteria developed 
        under that paragraph.
On page 3, line 21, strike [25 percent] and insert: 50 percent

            Attest:

                                                             Secretary.
109th CONGRESS

  2d Session

                               H. R. 1492

_______________________________________________________________________

                               AMENDMENTS
```
#### Leslie Wyn BOWDEN, Plaintiff-Appellant, v. Christine O. GREGOIRE; et al., Defendants-Appellees.

No. 10-35253.

United States Court of Appeals, Ninth Circuit.

Submitted May 24, 2011.*

Filed June 8, 2011.

Leslie Wyn Bowden, Walla Walla, WA, pro se.

Daniel John Judge, Senior Counsel, Office of the Washington Attorney General, Olympia, WA, for Defendants-Appellees.

Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R.App. P. 34(a)(2).

MEMORANDUM **

Leslie Wyn Bowden, a Washington state prisoner, appeals pro se from the district court’s judgment dismissing his civil rights action for failure to exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to exhaust, *Wyatt v. Terhune,*315 F.3d 1108, 1117 (9th Cir.2003), and we affirm.

The district court properly dismissed Bowden’s action because Bowden failed to exhaust administrative remedies prior to filing suit. *See*42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions ... until such administrative remedies as are available are exhausted.”); *Woodford v. Ngo,*548 U.S. 81, 85, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (“proper exhaustion” is mandatory and requires adherence to administrative procedural rules); *see also Wyatt,*315 F.3d at 1120 (“A prisoner’s concession to nonexhaustion is a valid ground for dismissal _”).

We construe the dismissal of Bowden’s claims to be without prejudice. *See Wyatt,*315 F.3d at 1120 (dismissals for failure to exhaust administrative remedies are without prejudice).

*796Bowden’s remaining contentions are unpersuasive.

We do not consider claims raised for the first time on appeal. *See Janes v. Wal-Mart Stores Inc.,*279 F.3d 888, 887 (9th Cir.2002) (“Issues raised for the first time on appeal usually are not considered.”).

Bowden’s motions for acceptance of his supplemental reply brief are granted, and we instruct the clerk to file the supplemental reply brief received on October 5, 2010. Bowden’s motion filed on November 5, 2010 is construed as a citation of supplemental authorities. Bowden’s remaining pending motions are denied.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
#### BECKER, Respondent, v. THIRD AVE. R. CO., Appellant.

(Supreme Court, Appellate Division, First Department.

November Term, 1897.)

Action by Charles Becker against the Third Avenue Railroad Company.

No opinion. Judgment affirmed, with costs. See 46 N. Y. Supp. 503.
#### Frank F. Bodenmiller, Jr., Appellant, v William E. Regan et al., Respondents.

— In a proceeding pursuant to CPLR article 78 to review a determination of respondents discharging petitioner from his position as a volunteer auxiliary police officer, petitioner appeals from a judgment of the Supreme Court, Suffolk County (Cannavo, J.), dated October 4, 1983, which dismissed the proceeding.

Judgment affirmed, without costs or disbursements.

We agree with Special Term’s conclusion that petitioner was not constitutionally or statutorily entitled to a hearing when dismissed from his position as a volunteer auxiliary police officer for misconduct *(see,*McKinney’s Uncons Laws of NY § 9122 [4] [b] [“State Defense”, L 1951, ch 784]). Section 10-3 of the Rules and Regulations of the Suffolk County Auxiliary Police Force (McKinney’s Uncons Laws of NY § 9122 [4] [c] [“State Defense”, L 1951, ch 784]) provides that: “[a] member of the Auxiliary Police who has been dismissed may seek and, at the discretion of the County Director of the Department of Emergency Preparedness, be granted a review of his case by the Suffolk County Director of the Department of Emergency Preparedness”.

In the case at bar, respondent Regan upheld the original determination to dismiss petitioner and declined to grant further review. Given respondents’ evidence of petitioner’s misconduct, respondents did not act arbitrarily or capriciously *(see, Matter of Pell v Board of Educ.,*34 NY2d 222). O’Connor, J. P., Rubin, Lawrence and Eiber, JJ., concur.
MANAGEMENTS ASSERTION OF COMPLIANCE



Management of the Agency and Trust division of Citibank, N.A. (or Company) is responsible for assessing compliance with the servicing criteria set forth in Item 1122(d) of Regulation AB promulgated by the Securities and Exchange Commission.



Management has determined that the servicing criteria in Item 1122 (d) of Regulation AB are applicable in regard to the servicing platform for the period as follows:



Platform:  Publicly-issued (i.e., transaction-level reporting initially required under the Securities Exchange Act of 1934, as amended) automobile loan or lease-backed securities and student loan-backed securities issued on or after January 1, 2006, for which the Company provides the following servicing functions (the Platform): trustee and paying agent services.



Applicable Servicing Criteria:  All servicing criteria set forth in Item 1122(d), to the extent required by Item 1122(d) servicing criteria in regards to the activities performed by the Company with respect to the Platform as to any transaction, except for the following criteria: 1122(d)(1)(i)-1122(d)(1)(iv), 1122(d)(2)(i), 1122(d)(2)(iii), 1122(d)(2)(vi), 1122(d)(2)(vii), 1122(d)(3)(i) and 1122(d)(4)(i)-1122(d)(4)(xv), which management has determined are not applicable to the activities the Company performs with respect to the Platform (the Applicable Servicing Criteria).



Period:  Twelve months ended December 31, 2007 (the Period).



With respect to the Platform as of and for the Period, the Companys management provides the following assertion of compliance with respect to the Applicable Servicing Criteria:

·

The Companys management is responsible for assessing the Companys compliance with the Applicable Servicing Criteria.

·

The Companys management has assessed compliance with the Applicable Servicing Criteria.  In making this assessment, management used the criteria set forth by the Securities and Exchange Commission in paragraph (d) of Item 1122 of Regulation AB.

·

Based on such assessment, the Company has complied, in all material respects, with the Applicable Servicing Criteria.

KPMG LLP, a registered public accounting firm, has issued an attestation report with respect to managements assertion of compliance with the Applicable Servicing Criteria as of and for the Period.



CITIBANK, N.A.



By: /s/ Karen Montbach

Karen Montbach

Its:

Managing Director





Dated: February 29, 2008
<TABLE> <S> <C>

<ARTICLE> 5
       
<S>                             <C>
<PERIOD-TYPE>                   9-MOS
<FISCAL-YEAR-END>                          DEC-31-1995
<PERIOD-END>                               JUN-30-1995
<CASH>                                       9,305,051
<SECURITIES>                                         0
<RECEIVABLES>                                  191,710
<ALLOWANCES>                                         0
<INVENTORY>                                          0
<CURRENT-ASSETS>                            10,097,316
<PP&E>                                               0
<DEPRECIATION>                                       0
<TOTAL-ASSETS>                              12,287,545
<CURRENT-LIABILITIES>                        2,525,404
<BONDS>                                              0
<COMMON>                                       874,471
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<OTHER-SE>                                   6,906,612
<TOTAL-LIABILITY-AND-EQUITY>                12,287,545
<SALES>                                              0
<TOTAL-REVENUES>                                     0
<CGS>                                                0
<TOTAL-COSTS>                                        0
<OTHER-EXPENSES>                                     0
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                             133,674
<INCOME-PRETAX>                            (7,442,852)
<INCOME-TAX>                                         0
<INCOME-CONTINUING>                        (7,442,852)
<DISCONTINUED>                                       0
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                               (7,442,852)
<EPS-PRIMARY>                                  ($0.38)
<EPS-DILUTED>                                  ($0.38)
        

</TABLE>