alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
* Pursuant to 5 TH C IR . 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that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED February 18, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50944 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus LEONEL LOPEZ-MERCADO, also known as Leonel L. Mercado, also known as Eder Lopez-Mercado, also known as Jesus Lopez-Valovinos, also known as Ivan Lopez-Mercado, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-03-CR-53-ALL

-------------------- Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM: * Leonel Lopez-Mercado appeals the sentence imposed following his guilty plea conviction of being found in the United States after deportation/removal in violation of 8 U.S.C. § 1326. Lopez-Mercado contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) define separate offenses. He argues that the prior conviction that resulted in his increased sentence is an elementNo. 03-50944 -2- of a separate offense under 8 U.S.C. § 1326(b) that should have been alleged in his indictment. Lopez-Mercado maintains that he pleaded guilty to an indictment which charged only simple reentry under 8 U.S.C. § 1326(a). He argues that his sentence exceeds the two-year maximum term of imprisonment which may be imposed for that offense.
In Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998), the Supreme Court held that the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, not elements of separate offenses. The Court further held that the sentencing provisions do not violate the Due Process Clause. Id. at 239-47. Lopez-Mercado acknowledges that his arguments are foreclosed by Almendarez-Torres , but asserts that the decision has been cast into doubt by Apprendi v. New Jersey , 530 U.S. 466, 490 (2000). He seeks to preserve his arguments for further review. Apprendi did not overrule Almendarez-Torres
. See Apprendi , 530 U.S. at 489-90; United States v. Dabeit , 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit , 231 F.3d at 984 (internal quotation marks and citation omitted). The judgment of the district court is
AFFIRMED. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.
#### Hanover Insurance Company, as Subrogee of Louis Glick, Respondent, v David Andrew Krivine et al., Appellants.

[941 NYS2d 145]

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 7, 2010, after a jury trial, adjudging that plaintiff is the owner of the subject diamond and ordering non-party Gemological Institute of America (GIA) to release the diamond to plaintiff, unanimously affirmed, with costs.

The verdict was not against the weight of the evidence. The jury reached its finding that the 2001 Glick diamond and the 2005 Krivine diamond are the same diamond based on a fair interpretation of the evidence which showed that the two submissions to the GIA were identical in color, style, and clarity, had the same scratch on the surface, as well as the same cloud and feather inside the stone *(Cohen v Hallmark Cards,*45 NY2d 493, 499 [1978]). The fact that the GIA’s reports on the two submissions showed a .03 millimeter difference in depth did not *420preclude the jury’s verdict. Plaintiffs witnesses explained that the GIA’s measurements had a margin of error of .02 millimeters per measurement which could result in a difference of up to .04 millimeters, and the actual difference in depth falls within that range.

The trial court, which “is vested with broad discretion to determine the materiality and relevance of proposed evidence” did not abuse its discretion in permitting plaintiff to introduce evidence that Ourel Golan was defendant Mimouni’s nephew *(Hyde v County of Rensselaer,*51 NY2d 927, 929 [1980]).

Defendants failed to preserve their argument that plaintiffs cause of action is time-barred and thus, it is not properly before this Court. Were we to review this argument, we would find it without merit. Concur — Friedman, J.E, DeGrasse, Freedman and Abdus-Salaam, JJ.
II

105TH CONGRESS

1ST SESSION S. 1052

To amend the Andean Trade Preference Act to prohibit the provision of

duty-free treatment for live plants and fresh cut flowers described in

chapter 6 of the Harmonized Tariff Schedule of the United States.

IN THE SENATE OF THE UNITED STATES

JULY 22, 1997

Mrs. BOXER introduced the following bill; which was read twice and referred

to the Committee on Finance

A BILL

To amend the Andean Trade Preference Act to prohibit

the provision of duty-free treatment for live plants and

fresh cut flowers described in chapter 6 of the Harmonized Tariff Schedule of the United States.

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

3 SECTION 1. PROHIBITION ON PROVISION OF DUTY-FREE

4 TREATMENT FOR LIVE PLANTS AND FRESH

5 CUT FLOWERS UNDER THE ANDEAN TRADE

6 PREFERENCES ACT.

7 (a) IN GENERAL.—Section 204 of the Andean Trade

8 Preference Act (19 U.S.C. 3203) is amended—
2

•S 1052 IS

1 (1) in subsection (b)—

2 (A) in paragraph (7), by striking ‘‘or’’ at

3 the end;

4 (B) in paragraph (8), by striking the pe5 riod at the end and inserting ‘‘; or’’; and

6 (C) by adding at the end the following:

7 ‘‘(9) live plants and fresh cut flowers described

8 in chapter 6 of the HTS.’’; and

9 (2) in subsection (e)(5)—

10 (A) by striking subparagraph (A); and

11 (B) by redesignating subparagraphs (B)

12 through (D) as subparagraphs (A) through (C),

13 respectively.

14 (b) EFFECTIVE DATE.—The amendments made by

15 subsection (a) shall apply with respect to goods entered,

16 or withdrawn from warehouse for consumption, on or after

17 the date that is 15 days after the date of enactment of

18 this Act.

Æ
# Official Journal C 214/4 Ju

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 214 |
| | |
| English edition | Information and Notices | Volume 644 June 2021 |

ISSN 1977-091X

Official Journal

of the European Union

C 214

English edition

Information and Notices

Volume 644 June 2021

---

| Contents | page |
| --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2021/C 214/01 | Authorisation for State aid pursuant to Articles 107 and 108 of the Treaty on the Functioning of the European Union — Cases where the Commission raises no objections (
  1
  ) | 1 |

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2021/C 214/01

Authorisation for State aid pursuant to Articles 107 and 108 of the Treaty on the Functioning of the European Union — Cases where the Commission raises no objections (
  1
  )

1

1

---

| | |
| --- | --- |
| | (1)   Text with EEA relevance. |

---

(1)   Text with EEA relevance.

1

| EN | |
| --- | --- |

EN
#### In the Matter of Courtney Kelly, Appellant, v Commissioner Hagler, as a Member of the Parole Board, Respondent.

[942 NYS2d 290]

Appeal from a judgment of the Supreme Court (Devine, J.), entered June 16, 2011 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release supervision.

Petitioner was convicted of, among other crimes, murder in the second degree and was sentenced to a prison term of 20 years to life. Following his third appearance before the Board of Parole, his request for parole release was denied. After he exhausted his administrative remedies, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

Parole release decisions are “deemed a judicial function and shall not be reviewable if done in accordance with law” (Executive Law 259-i [5]). Here, the parole hearing transcript reveals that the Board considered the relevant statutory factors, including petitioner’s institutional record, academic achievements, the deportation order issued against him, petitioner’s release and *1302employment plans and the seriousness of the offense *(see*Executive Law § 259-i [2] [c] [A]). We are unpersuaded by petitioner’s contention that, given the deportation order, it was irrational to conclude that his release would be incompatible with the welfare and safety of the community. A deportation order is only one factor to consider in determining parole release and the existence of such order does not require an inmate’s release *(see e.g. Matter of Silvero v Dennison,*28 AD3d 859 [2006]; *Matter of Hunter v New York State Div. of Parole,*21 AD3d 1178, 1179 [2005]). Inasmuch as the Board’s decision does not exhibit “irrationality bordering on impropriety” *(Matter of Silmon v Travis,*95 NY2d 470, 476 [2000] [internal quotation marks and citation omitted]), it will not be disturbed.

Peters, EJ., Spain, Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.
#### Rose Welsh Dollard, Plaintiff, v WB/Stellar IP Owner, LLC, et al., Defendants. (And a Third-Party Action.) WB/Stellar IP Owner, LLC, Second Third-Party Plaintiff-Respondent, v New York City Economic Development Corporation, Second Third-Party Defendant, and Friends of Greenwich Street, Inc., Second Third-Party Defendant-Appellant.

[948 NYS2d 243]

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 4, 2011, which denied the motion of second third-party defendant Friends of Greenwich Street, Inc. (Friends) to dismiss the second third-party complaint as against it, unanimously affirmed, without costs.

Plaintiff was injured when she allegedly tripped and fell on a cracked and uneven portion of the sidewalk that abutted a building owned by defendant/second third-party plaintiff WB/Stellar IP Owner, LLC (Stellar). Stellar commenced this second third-party action against, inter alia, Friends and asserted claims for contribution and common-law indemnification.

“In assessing a motion under CPLR 3211 (a) (7) ... a court may freely consider affidavits submitted by the [nonmoving party] to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” *(Leon v Martinez,*84 NY2d 83, 88 [1994] [internal quotation marks and citations omitted]). Here, the court properly concluded that the pleadings together with the affidavit from Stellar’s property manager sufficiently alleged claims for contribution and common-law indemnifica*534tion against Friends. Stellar and its property manager stated that Friends installed, inspected and maintained the portion of the sidewalk on which plaintiff fell and that it did so in a negligent manner (see *generally Raquet v Braun,*90 NY2d 177, 182-183 [1997]; see *Velez v 19-27 Orchard St. LLC,*70 AD3d 488 [2010]; *Peretich v City of New York,*263 AD2d 410, 411 [1999]). Concur — Andrias, J.P., Friedman, Sweeny, Manzanet-Daniels and Román, JJ. [Prior Case History: 2011 NY Slip Op 32921(U).]
#### UNITED STATES of America, Plaintiff-Appellee, v. Alberto ESPINOSA, Defendant-Appellant.

No. 09-7252.

United States Court of Appeals, Fourth Circuit.

Submitted: June 17, 2011.

Decided: Aug. 12, 2011.

Alberto Espinosa, Appellant pro se. Deborah A. Johnston, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

*839Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Alberto Espinosa appeals the district court’s order denying his motion to unseal documents. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. *United States v. Espinosa,*No. 8:97-cr-00343-AW-13 (D. Md. June 11, 2009). 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 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER

PURSUANT TO

18 U.S.C. SECTION 1350,

AS
ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

I, Paul DePond, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report of Notify Technology Corporation on Form 10-QSB
for the fiscal quarter ended June 30, 2006 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Quarterly Report on Form 10-QSB fairly presents in all
material respects the financial condition and results of operations of Notify Technology Corporation.



By:

/s/ Paul F. DePondName:

Paul F. DePondTitle:

Chief Executive Officer


Date: August 15, 2006

I, Gerald W. Rice, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Quarterly Report of Notify Technology Corporation on Form 10-QSB
for the fiscal quarter ended June 30, 2006 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Quarterly Report on Form 10-QSB fairly presents in all
material respects the financial condition and results of operations of Notify Technology Corporation.



By:

/s/ Gerald W. RiceName:

Gerald W. RiceTitle:

Chief Financial Officer


Date: August 15, 2006

A signed original of this written statement required by Section 906 has been provided to Notify Technology Corporation and will be retained by Notify Technology Corporation and furnished to the Securities and
Exchange Commission or its staff upon request.
#### David H. Thorne *v.*Margaret L. Moore

Decided March 14, 1990

*Serge G. Mihaly,*in support of the petition.

*Karen L. Karpie,*in opposition.

The defendant’s petition for certification for appeal from the Appellate Court, 21 Conn. App. 802, is denied.
Exhibit 32.2



CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002



In connection with the Quarterly Report of Radiologix, Inc. (the Company) on Form 10-Q for the quarterly period ended
September 30, 2005, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Michael N. Murdock, Senior Vice President and Chief Financial Officer of the Company, certify, pursuant to 18
U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of my knowledge that:



(1) The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934,
as amended; and



(2) The information contained
in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.



|                                                 
|-------------------------------------------------
|                                                 
|/s/    MICHAEL N.
MURDOCK                        
|Michael N. Murdock                               
|Senior Vice President and Chief Financial Officer



Dated: November 3, 2005



A signed original of this written statement required by Section 906 has
been provided to Radiologix, Inc. and will be retained by Radiologix, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
<PAGE>
                                                                    Exhibit 21.1

                         SUBSIDIARIES OF THE REGISTRANT

<TABLE>
<CAPTION>
                                                                 Jurisdiction of
           Name                                                  Incorporation
           ----                                                  ---------------
<S>                                                              <C>
           Hyperion International Corporation                    Delaware
           Little Tree Acquisition Corporation                   Delaware
           Hyperion Software Solutions Austria GmbH              Austria
           Hyperion Foreign Sales Corporation                    Barbados
           Hyperion Latin America Ltda                           Brazil
           Hyperion Solutions Nordic OY                          Finland
           Hyperion Solutions France SAS                         France
           Hyperion Solutions Deutschland GmbH                   Germany
           Hyperion Solutions Italia S.r.l.                      Italy
           Hyperion KK                                           Japan
           Hyperion Solutions Nederland, B.V.                    Netherlands
           HSC Acquisition Co.                                   Nova Scotia
           Hyperion Corporation of Canada, Ltd.                  Ontario
           Hyperion Solutions Asia Pte. Ltd.                     Singapore
           Hyperion Solutions Iberica, S.A.                      Spain
           Hyperion Solutions Nordic AB                          Sweden
           Hyperion Solutions Schweiz AG                         Switzerland
           Hyperion Solutions (UK) plc                           United Kingdom

</TABLE>
# Official Journal C 82/2023

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 82 |
| | |
| English edition | Information and Notices | Volume 666 March 2023 |

ISSN 1977-091X

Official Journal

of the European Union

C 82

English edition

Information and Notices

Volume 666 March 2023

---

| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Council |
| 2023/C 82/01 | Council Decision of 2 March 2023 appointing a member of the European Statistical Governance Advisory Board | 1 |
| | European Commission |
| 2023/C 82/02 | Euro exchange rates – 3 March 2023 | 3 |

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Council

2023/C 82/01

Council Decision of 2 March 2023 appointing a member of the European Statistical Governance Advisory Board

1

European Commission

2023/C 82/02

Euro exchange rates – 3 March 2023

3

---

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2023/C 82/03 | Prior notification of a concentration (Case M.11036 – EP POWER EUROPE / CAMDEN) – Candidate case for simplified procedure (
  1
  ) | 4 |
| 2023/C 82/04 | Prior notification of a concentration (Case M.11045 – MITSUBISHI CORPORATION / MITSUBISHI HC CAPITAL / JV) – Candidate case for simplified procedure (
  1
  ) | 6 |
| | OTHER ACTS |
| | European Commission |
| 2023/C 82/05 | Publication of an application for approval of an amendment, which is not minor, to a product specification pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs | 8 |
| 2023/C 82/06 | Publication of a communication of approval of a standard amendment to the product specification for a name in the wine sector referred to in Article 17(2) and (3) of Commission Delegated Regulation (EU) 2019/33 | 19 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2023/C 82/03

Prior notification of a concentration (Case M.11036 – EP POWER EUROPE / CAMDEN) – Candidate case for simplified procedure (
  1
  )

1

4

2023/C 82/04

Prior notification of a concentration (Case M.11045 – MITSUBISHI CORPORATION / MITSUBISHI HC CAPITAL / JV) – Candidate case for simplified procedure (
  1
  )

1

6

OTHER ACTS

European Commission

2023/C 82/05

Publication of an application for approval of an amendment, which is not minor, to a product specification pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

8

2023/C 82/06

Publication of a communication of approval of a standard amendment to the product specification for a name in the wine sector referred to in Article 17(2) and (3) of Commission Delegated Regulation (EU) 2019/33

19

---

| | |
| --- | --- |
| | (1)   Text with EEA relevance. |

---

(1)   Text with EEA relevance.

1

| EN | |
| --- | --- |

EN
#### Anthony G. BAILEY, Petitioner-Appellant v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee.

No. 10-30958

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 2011.

Anthony G. Bailey, Angola, LA, pro se.

Elizabeth Ann Engolio, Esq., District Attorney’s Office, Plaquemine, LA, for Respondent-Appellee.

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM: *

Petitioner-Appellant Anthony G. Bailey, Louisiana prisoner # 297843, filed a peti*814tion pursuant to 28 U.S.C. § 2254, challenging his jury trial conviction of attempted second degree murder in state court. Bailey now appeals the district court’s order directing the clerk to return a pleading unfiled, following its September 17, 2008 dismissal as time barred. Bailey contends that the district court unconstitutionally denied his access to the courts and also erred in not applying the principles espoused in *Jimenez v. Quarterman,*555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009), to equitably toll his limitations period.

We must examine the basis of our jurisdiction on our own motion if necessary. *Mosley v. Cozby,*813 F.2d 659, 660 (5th Cir.1987). The district court’s order instructing the clerk to return Bailey’s motion unfiled is not a final appealable order because Bailey did not seek “approval of a judicial officer” as contemplated by Middle District of Louisiana General Order Number 2006-07. Neither has the district court’s order been expressly certified by the district court as final under Federal Rule of Civil Procedure 54(b), nor is it an appealable interlocutory order or appeal-able under the collateral order doctrine. *See Cohen v. Beneficial Indus. Loan Corp.,*337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); *Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc.,*170 F.3d 536, 538 (5th Cir.1999); *Thompson v. Drewry,*138 F.3d 984, 985-86 (5th Cir.1998). We therefore do not have jurisdiction to consider Bailey’s appeal of that order. In so ruling, we do not reach the merits of the argument that Middle District of Louisiana General Order Number 2006-07 is unconstitutional or otherwise improper.

Accordingly, Bailey’s appeal is DIS- ' MISSED for lack of jurisdiction.

*

**Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *814published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.