alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-5-2005

USA v. Rivera

Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3097

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

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Recommended Citation

"USA v. Rivera" (2005). 2005 Decisions. Paper 1394.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1394
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 03-3097

____________

UNITED STATES OF AMERICA;

v.

DANIEL RIVERA,

 Appellant

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 02-cr-00553)

District Judge: Honorable Petrese B. Tucker

____________

Submitted Under Third Circuit LAR 34.1(a)

October 25, 2004

Before: SCIRICA, Chief Judge, FISHER and ALDISERT, Circuit Judges.

(Filed: April 5, 2005)

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appointed counsel for the

Appellant Daniel Rivera originally filed a motion to withdraw from representation and an

Anders brief, concluding, inter alia, that the sentence imposed on Appellant by the
We note, however, some dissatisfaction with the fact that the Anders brief failed 1

to even acknowledge the U.S.S.G § 3B1.2 issue, which was clearly important at

sentencing and which formed the basis for the informal brief submitted by Appellant after

the Anders brief was filed.

2

District Court was legal. The appeal was held C.A.V. pending United States v. Booker,

543 U.S. —, 125 S. Ct. 738 (2005), and Appellant’s counsel subsequently informed us by

letter dated February 22, 2005, that Appellant now challenges his sentence under Booker. 

We interpret this letter to withdraw counsel’s earlier filed motion to withdraw from

representation, and accordingly do not address whether the Anders brief previously

submitted met the Anders standard.1

Having determined that the sentencing issues Appellant raises are best determined

by the District Court in the first instance, we will vacate the sentence and remand for

resentencing in accordance with Booker.
### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

BUTLER PLUMBING, INC. and JON SABAROFF
, Appellant s ,

v.

DEER CREEK CONDOMINIUM COUNTRY CLUB ESTATES I ASSOCIATION, INC., et al.

, Appellee s

.

No. 4D 22

- 549

[ April 6, 2023 ]

Appeal from the Circuit Court for the Seven teenth Judicial Circuit,

Broward County ; John B. Bowman , Judge; L.T. Case No. CACE

- 21

- 007775

.

Tyler E. Mesmer of Topouzis & Associates, P.C., Miami, for appellants.

Seth A. Kolton and Ryan M. Blitz of Shendell & Pollock, P.L., Boca Raton, for appellees.

P ER C URIAM

.

Affirmed.

G ROSS
, C ONNER and F ORST
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.
Case: 1:03-cv-05044 Document #: 73 Filed: 12/03/04 Page 1 of 6 PageID #:544
Case: 1:03-cv-05044 Document #: 73 Filed: 12/03/04 Page 2 of 6 PageID #:545
Case: 1:03-cv-05044 Document #: 73 Filed: 12/03/04 Page 3 of 6 PageID #:546
Case: 1:03-cv-05044 Document #: 73 Filed: 12/03/04 Page 4 of 6 PageID #:547
Case: 1:03-cv-05044 Document #: 73 Filed: 12/03/04 Page 5 of 6 PageID #:548
Case: 1:03-cv-05044 Document #: 73 Filed: 12/03/04 Page 6 of 6 PageID #:549
# Official Journal L 325/12 D

| | ISSN 1725-2555 |
| --- | --- |
| Official Journal
  of the European Union | L 325 |
| | |
| English edition | Legislation | Volume 4812 December 2005 |

ISSN 1725-2555

Official Journal

of the European Union

L 325

English edition

Legislation

Volume 4812 December 2005

---

| Contents | | | page |
| --- | --- | --- | --- |
| | | Court of Justice |
| | * | Decision of the President of the Court of Justice recording that the European Union Civil Service Tribunal has been constituted in accordance with law | 1 |

Contents

page

Court of Justice

*

Decision of the President of the Court of Justice recording that the European Union Civil Service Tribunal has been constituted in accordance with law

1

| EN | Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.
  The titles of all other Acts are printed in bold type and preceded by an asterisk. |
| --- | --- |

EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.
#### Town of Oyster Bay, Appellant, v Marvec Allstate, Inc., Respondent.

[942 NYS2d 805]

In an action to recover damages for continuing public nuisance, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Ealmieri, J.), entered June 23, 2010, as, in effect, granted that branch of the defendant’s motion which was pursuant to CELR 3211 (a) (5) to dismiss the complaint as time-barred.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff alleges that, pursuant to a contract with Nassau County, the defendant completed certain sewer construction work in 1987, and that defects in the construction work constitute and contribute to a continuing public nuisance. The action is time-barred for the reasons stated in the companion case of *Village of Lindenhurst v J.D. Posillico, Inc.*(94 AD3d 1101 [2012] [decided herewith]). Rivera, J.P., Dillon, Angiolillo and Leventhal, JJ., concur.
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60494

Summary Calendar

JOSEPH R. EGLAND, 

 Petitioner

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, 

UNITED STATES DEPARTMENT OF LABOR; P.C. PFEIFFER COMPANY, 

INCORPORATED, 

 Respondents

Petition for Review of an Order of the 

Benefits Review Board

BRB No. 15-300

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Joseph R. Egland filed a claim against P.C. Pfeiffer Company (“P.C. 

Pfeiffer”) under the Longshore and Harbor Workers’ Compensation Act, 33 

U.S.C. § 901 et seq. (“the Act”). Egland alleged that, in violation of Section 49 

of the Act, P.C. Pfeiffer refused to allow him to return to work because he had 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2017

Lyle W. Cayce

Clerk

 Case: 16-60494 Document: 00513975573 Page: 1 Date Filed: 05/02/2017
No. 16-60494

2

previously filed a compensation claim. See 33 U.S.C. § 948a (prohibiting any 

employer from “discharg[ing] or in any other manner discriminat[ing] against 

an employee as to his employment because such employee has claimed or 

attempted to claim compensation from such employer”). Egland appeals the 

Benefits Review Board’s (“BRB”) decision affirming the administrative law 

judge’s (“ALJ”) denial of Egland’s claim. We AFFIRM the decision of the BRB.

“[O]nce the BRB affirms an order of the ALJ, we need only inquire 

whether the BRB ‘correctly concluded that the ALJ’s order was supported by 

substantial evidence on the record as a whole and is in accordance with the 

law.’” La. Ins. Guar. Ass’n v. Dir., OWCP, 614 F.3d 179, 185 (5th Cir. 2010) 

(quoting Ingalls Shipbuilding, Inc. v. Dir., OWCP, 991 F.2d 163, 165 (5th Cir. 

1993)). The ALJ “is entitled to consider all credibility inferences [and the 

ALJ’s] selection among inferences is conclusive if supported by the evidence 

and the law.” Id. (alterations in original) (quoting Mendoza v. Marine Pers. Co., 

46 F.3d 498, 500 (5th Cir. 1995)).

The ALJ weighed the evidence and determined that Egland set forth a 

prima facie case and that he was entitled to a presumption of discrimination 

under Section 49. But the ALJ then determined that P.C. Pfeiffer rebutted 

Egland’s presumption of discrimination and that Egland failed to meet the 

burden of persuasion for his claim. Egland argues that P.C. Pfeiffer did not 

rebut his presumption of discrimination. Viewing the record as a whole, we 

disagree. The BRB held that “[s]ubstantial evidence supports the [ALJ’s] 

conclusion that claimant did not establish that employer’s action in not 

allowing claimant to return to work was motivated by claimant’s filing a 

compensation claim.” Finding no error, we AFFIRM the decision of the BRB.

 Case: 16-60494 Document: 00513975573 Page: 2 Date Filed: 05/02/2017
#### Estrategia Corp. et al., Respondents-Appellants, v Lafayette Commercial Condo, Appellant-Respondent. (And a Third-Party Action.)

[944 NYS2d 878] —

Order, Supreme Court, New York County (Martin Shulman, J.), entered December 22, 2011, which, insofar as appealed from as limited by the briefs, denied the parties’ cross motions for summary judgment as to liability on the negligence cause of action, unanimously affirmed, without costs.

Plaintiffs’ failure to plead the doctrine of res ipsa loquitur in the complaint does not render the doctrine unavailable at trial. They pleaded negligence, and the circumstances warrant the doctrine’s application *(compare Ianotta v Tishman Speyer Props., Inc.,*46 AD3d 297 [2007], *with Yousefi v Rudeth Realty, LLC,*61 AD3d 677 [2009]).

However, while plaintiffs submitted sufficient evidence to give rise to a permissible inference of negligence on defendant’s part under the doctrine of res ipsa loquitur *(see Dermatossian v New York City Tr. Auth.,*67 NY2d 219, 226 [1986]), they have not shown that the inference of negligence is inescapable or that defendant failed to raise any material issue of fact in rebuttal thereof *(see Morejon v Rais Constr. Co.,*7 NY3d 203, 209 [2006]; *Shinshine Corp. v Kinney Sys.,*173 AD2d 293 [1991]). Concur— Friedman, J.P., Sweeny, Renwick, Freedman and Abdus-Salaam, JJ. [Prior Case History: 2011 NY Slip Op 33405(U).]
Glenn Stearns, Chapter 13 Trustee

801 Warrenville Road, Suite 650

Lisle, IL 60532-4350

Ph: (630) 981-3888 Fax: (630) 981-3896

In re:

JAMES A TOWNSEND

MELINDA M TOWNSEND

Case No. 10-01078

Account No. 2152

WELLS FARGO HOME MORTGAGE

1 HOME CAMPUS MAC# X-2501-01F

DES MOINES, IA 50328-0001

MALMQUIST & GEIGER

415 LIBERTY ST

MORRIS, IL 60450

NOTICE OF PAYMENT OF FINAL MORTGAGE CURE UNDER RULE 3002.1 (f)

Pursuant to Federal Rule of Bankruptcy Procedure 3002.1(f), the Chapter 13 Trustee, Glenn B. Stearns, files 

this Notice of Final Cure Payment. The amount required to cure the default in the claim has been paid in full.

Within 21 days of the service of the Notice of Final Cure Payment, the creditor MUST file and serve a 

Statement as a supplement to the holder's proof of claim on the debtor(s), debtor(s) Counsel and the Chapter 13 

Trustee, pursuant to Fed.R.Bank.P.3002.1(g), indicating:

1) Whether it agrees that the debtor(s) have paid in full the amount required to cure the default on the claim; 

and

2) Whether the debtor(s) are otherwise current on all payments consistent with 11 U.S.C. § 1322(b)(5).

The statement shall itemize the required cure or post-petition amounts, if any, that the holder contends remain 

unpaid as of the date of the statement, The statement shall be filed as a supplement to the holder's proof of claim 

and is not subject to Rule 3001(f). Failure to notify may result in sanctions.

The undersigned certifies that this notice was sent to the above named parties on March 20, 2015 .

 /S/ Ryan Faye

For: Glenn Stearns, Chapter 13 Trustee, Standing Trustee

Case 10-01078 Doc 74 Filed 03/20/15 Entered 03/20/15 09:28:40 Desc Page 1

 of 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. 07-51289

Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LUIS SANCHEZ-ARIZA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:07-CR-279-ALL

Before KING, STEWART, and PRADO, Circuit Judges. 

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Luis Sanchez-Ariza

raises arguments that are foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty

provision and not a separate criminal offense. United States v. PinedaArrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).

United States Court of Appeals

Fifth Circuit

F I L E D

March 5, 2008

Charles R. Fulbruge III

Clerk
No. 07-51289

2

The Government’s motion for summary affirmance is GRANTED, and the

judgment of the district court is AFFIRMED.
# IMMC.EESC-2021-00191-AC.ENG.xhtml.EESC-2021-00191-00-00-AC-TRA-EN.docx

EN

NAT/812

NAT/812

Fishing authorisations for Union fishing vessels in UK waters and

  fishing operations of UK fishing vessels in Union waters

  (Category C)

Fishing authorisations for Union fishing vessels in UK waters and

fishing operations of UK fishing vessels in Union waters

(Category C)

OPINION


  European Economic and Social Committee


  Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2017/2403 as regards fishing authorisations for Union fishing vessels in United Kingdom waters and fishing operations of United Kingdom fishing vessels in Union waters

OPINION

European Economic and Social Committee

Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2017/2403 as regards fishing authorisations for Union fishing vessels in United Kingdom waters and fishing operations of United Kingdom fishing vessels in Union waters

COM(2020) 830 final -2020/0366 COD

COM(2020) 830 final -2020/0366 COD

Referral

| Referral | European Parliament, 14/12/2020


  Council, 11/12/2020 |
| --- | --- |
| Legal basis | Article 43(2) and article 304 of the Treaty on the Functioning of the European Union |
| Section responsible | Agriculture, Rural Development and the Environment |
| Adopted at plenary | 27/01/2021 |
| Plenary session No | 557 |
| Outcome of vote
  (for/against/abstentions) | unanimous in favour |

Referral

European Parliament, 14/12/2020

European Parliament, 14/12/2020

Council, 11/12/2020

Council, 11/12/2020

Legal basis

Legal basis

Article 43(2) and article 304 of the Treaty on the Functioning of the European Union

Article 43(2) and article 304 of the Treaty on the Functioning of the European Union

Section responsible

Section responsible

Agriculture, Rural Development and the Environment

Agriculture, Rural Development and the Environment

Adopted at plenary

Adopted at plenary

27/01/2021

27/01/2021

Plenary session No

Plenary session No

557

557

Outcome of vote
  (for/against/abstentions)

Outcome of vote
  (for/against/abstentions)

unanimous in favour

unanimous in favour

Since the Committee endorses the content of the proposal and feels that it requires no comment on its part, it decided unanimously, at its 557th plenary session of 27 and 28 January 2021 (meeting of 27 January), to issue an opinion endorsing the proposed text.

Since the Committee endorses the content of the proposal and feels that it requires no comment on its part, it decided unanimously, at its 557th plenary session of 27 and 28 January 2021 (meeting of 27 January), to issue an opinion endorsing the proposed text.

Brussels, 27 January 2021

Brussels, 27 January 2021

Christa SCHWENG

The president of the European Economic and Social Committee

_____________
II

105TH CONGRESS

1ST SESSION S. 129

To amend title 10, United States Code, to authorize certain disabled former

prisoners of war to use Department of Defense commissary and exchange

stores.

IN THE SENATE OF THE UNITED STATES

JANUARY 21, 1997

Mr. INOUYE introduced the following bill; which was read twice and referred

to the Committee on Armed Services

A BILL

To amend title 10, United States Code, to authorize certain

disabled former prisoners of war to use Department of

Defense commissary and exchange stores.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. USE OF COMMISSARY AND EXCHANGE STORES

4 BY CERTAIN DISABLED FORMER PRISONERS

5 OF WAR.

6 (a) IN GENERAL.—Chapter 54 of title 10, United

7 States Code, is amended by inserting after section 1064

8 the following new section:
2

•S 129 IS

1 ‘‘§ 1064a. Use of commissary stores by certain dis2 abled former prisoners of war

3 ‘‘(a) IN GENERAL.—Under regulations prescribed by

4 the Secretary of Defense, former prisoners of war de5 scribed in subsection (b) may use commissary and ex6 change stores.

7 ‘‘(b) COVERED INDIVIDUALS.—Subsection (a) applies

8 to any former prisoner of war who—

9 ‘‘(1) is separated from active duty in the armed

10 forces under honorable conditions; and

11 ‘‘(2) has a service-connected disability rated by

12 the Secretary of Veterans Affairs at 30 percent or

13 more.

14 ‘‘(c) DEFINITIONS.—In this section:

15 ‘‘(1) The term ‘former prisoner of war’ has the

16 meaning given the term in section 101(32) of title

17 38.

18 ‘‘(2) The term ‘service-connected’ has the

19 meaning given the term in section 101(16) of title

20 38.’’.

21 (b) CLERICAL AMENDMENT.—The table of sections

22 at the beginning of such chapter is amended by inserting

23 after the item relating to section 1064 the following new

24 item:

‘‘1064a. Use of commissary stores by certain disabled former prisoners of war.’’.

Æ
* 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. 00-31085

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY TOUSSAINT, SR.,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 99-CR-357-ALL

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

April 10, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Gregory Toussaint appeals following his guilty-plea

conviction for being a felon in possession of a firearm. He

argues that the district court abused its discretion when it

denied his Fed. R. Crim. P. 32(e) motion to withdraw his guilty

plea. Toussaint contends that he is innocent, that his first

attorney pressured Toussaint to plead guilty, that his current

attorney located a witness who was willing to testify that the

gun found in the car was his and that Toussaint did not know

about the gun’s presence in the vehicle, and that there would not
No. 00-31085

-2-

have been a substantial inconvenience to the Government if the

plea was withdrawn. 

Although Toussaint stated that his prior attorney and the

newly located witness would either submit an affidavit or testify

on Toussaint’s behalf, Toussaint presented neither this court nor

the district court with an affidavit from his prior attorney or

with a statement from the witness. A review of Toussaint’s

guilty plea reveals that it was knowingly and voluntarily

entered, and Toussaint presented no evidence disproving his

responses when pleading guilty. See United States v. Abreo, 30

F.3d 29, 31 (5th Cir. 1994). His conclusional allegations about

being pressured to plead guilty and about the presence of a

witness were insufficient to establish that his guilty plea

should have been withdrawn. The district court did not abuse its

discretion when it denied Toussaint’s Rule 32(e) motion. See 

United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997); United

States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991).

AFFIRMED.
#### Lawrence S. Kleinfeld, as Trustee in Bankruptcy of Kenneth E. Pedersen, Appellant, v Yvonne G. Pedersen, Respondent.

— Order unanimously reversed, on the law, with costs, and motion granted. Memorandum: The court erred in failing to grant summary judgment to plaintiff, setting aside the transfer of certain property to defendant and directing a money judgment against her in the amount of the proceeds of *971any transfer by her of assets transferred to her by her insolvent husband. A wife may be a creditor of her husband within the meaning of Debtor and Creditor Law § 270 *(see, Kasinski v Questel,*99 AD2d 396, *appeal dismissed*62 NY2d 977), but the issue here is whether the transfer to her was fraudulent as to other creditors, since the transfer was from an insolvent husband. That turns on whether the transfer was for fair consideration (Debtor and Creditor Law § 273). Defendant has failed to allege facts raising an issue that there was fair consideration so as to defeat plaintiffs motion for summary judgment *(see, Century Center v Davis,*100 AD2d 564). To the extent that the consideration alleged was that the parties would continue to reside together, this does not constitute fair consideration, as a promise of future services is not valid as against existing creditors *(see, Rush v Rush,*19 AD2d 846; 30 NY Jur 2d, Creditors Rights and Remedies, § 263, at 180). To the extent that the consideration alleged was an antecedent debt, in recognition of the wife’s contribution to the assets in question over 32 years of marriage, defendant has provided no facts as to the amount of the antecedent debt, the value of the property transferred, or the relationship between the two *(see,*Debtor and Creditor Law § 272 [b]). Further, defendant’s reliance on an oral agreement to satisfy her right to equitable distribution of marital property is erroneous *(see,*Domestic Relations Law § 236 [B] [3]). (Appeal from order of Supreme Court, Yates County, Dugan, J. — summary judgment.) Present — Dillon, P. J., Doerr, Boomer, Green and Pine, JJ.
<PAGE>

                                                                      EXHIBIT 23



                        CONSENT OF ARTHUR ANDERSEN LLP



     As independent public accountants, we hereby consent to the incorporation
by reference in this Form 10- K of First Commonwealth, Inc., of our report,
dated February 11, 1998, on the consolidated financial statements of First
Commonwealth, Inc. and Subsidiaries (the "Company") included in the Company's
1997 Annual Report to Stockholders, and to the incorporation of our report,
dated February 11, 1998, on the financial statement schedule of the Company, and
included in this Form 10-K, into the Company's previously filed S-3 Registration
Statement, File No. 333-18379, and S-8 Registration Statement, File No. 333-
00474.



ARTHUR ANDERSEN  LLP


Chicago, Illinois
March 30, 1998