alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### UNITED STATES of America, Plaintiff-Appellee, v. Domingo JIMENEZ, Defendant-Appellant.

No. 02-41793.

Conference Calendar

United States Court of Appeals, Fifth Circuit.

Aug. 20, 2003.

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM.*

Domingo Jimenez appeals his guilty plea conviction for possession of less than 100 grams of heroin. Jimenez argues that 21 U.S.C. §§ 841(a) and (b) were rendered facially unconstitutional by *Apprendi v. New Jersey,*530 U.S. 466, 490, 120 S.Ct. *4062348, 147 L.Ed.2d 435 (2000). Jimenez concedes that his argument is foreclosed by our opinion in *United States v. Slaughter,*238 F.3d 580, 581-82 (5th Cir.2000) (revised opinion), *cert. denied,*532 U.S. 1045, 121 S.Ct. 2015, 149 L.Ed.2d 1015 (2001), which rejected a broad *Apprendi*based attack on the constitutionality of that statute. He raises the issue only to preserve it for Supreme Court review. A panel of this court cannot overrule a prior panel’s decision in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court. *Burge v. Parish of St. Tammany,*187 F.3d 452, 466 (5th Cir. 1999). No such decision overruling *Slaughter*exists. Accordingly, Jimenez’s argument is foreclosed.

AFFIRMED.

*

 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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 of America, Plaintiff — Appellee, v. Betzy AGUILAR-CARDENAS, Defendant — Appellant.

No. 02-50028.

D.C. No. CR-01-02440-IEG.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 7, 2002*

Decided Nov. 12, 2002.

*846Before PREGERSON, THOMPSON and WARDLAW, Circuit Judges.

*

 This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

MEMORANDUM**

Betzy Aguilar-Cardenas appeals her conviction after pleading guilty to the charge of importation of marijuana in violation of 21 U.S.C. §§ 952, 960. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Aguilar-Cardenas first argues that 21 U.S.C. § 952 and § 960 are unconstitutional in light of *Apprendi v. New Jersey,*530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have recently rejected this argument. *See United States v. Mendoza-Paz,*286 F.3d 1104, 1110 (9th Cir.2002) (finding § 960 constitutional against a challenge based on *Apprendi)-, United States v. Varela-Rivera,*279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (finding § 952 constitutional despite the rule in *Apprendi).*

Aguilar-Cardenas next contends that the indictment is insufficient because it did not allege mens rea as to drug type and quantity. This contention is also foreclosed. *United States v. Camnza,*289 F.3d 634, 644 (9th Cir.2002) (Mens rea as to drug type and quantity need not be alleged in the indictment nor found by a jury).

Lastly, Aguilar-Cardenas contends that, in connection with her Rule 11 plea colloquy, the government should have informed her that it would have to prove drug type and quantity under *Apprendi.*The court did inform her that the government must prove that the amount of marijuana was 73.74 pounds and that it was a Schedule I controlled substance. The government also informed Aguilar-Cardenas that it must prove (1) she brought marijuana into the United States and (2) she knew it was a controlled substance — all that is necessary to be found guilty. *See United States v. Buckland,*289 F.3d 558, 570 (9th Cir.2002) (en banc) (Drug quantity determination giving rise to a sentence below the statutory maximum need not be determined by jury.). As she was given notice of all elements of the crime with which she was charged, there was no *Apprendi*due process violation. Therefore, judgment of the district court is AFFIRMED.

**

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
ex10_1.htm


Exhibit 10.1


 





 


CoroWare, Inc.


601 108th Avenue NE


Suite 1900


Bellevue, WA  98004


Phone: (800) 641-2676


http://www.coroware.com


 


To Whom It May Concern,








This Series G Convertible Preferred Stock Recipient Agreement is made on             by and between              , whose address is, hereinafter referred to as the "Creditor ", and CoroWare, Inc. whose principal place of business is located at 600 Market Street, Suite 1900, Bellevue, WA  98004, hereinafter referred to as "Company".










WHEREAS, the Company acknowledges that it owes Creditor an outstanding debt (the “Outstanding Debt”) in the form of past due accounts payable, deferred salary and commissions, promissory notes that are currently in default, convertible debt that is currently in default, or any other outstanding debt that is documented in writing and mutually recognized as outstanding debt by the Company; and







WHEREAS, Creditor wishes to accept the Company’s Series G Convertible Preferred Stock (the “Preferred Shares”) in lieu of the Outstanding Debt.










NOW, THEREFORE, in exchange for good and valuable consideration the receipt of which is acknowledged the Creditor and the Company affirm the following:


 










Creditor has accepted the Preferred Shares in lieu of payment of Outstanding Debt due to her/him in the amount of $              ;


 


Creditor agrees the Preferred Shares shall be valued at $              ;


 


Creditor recognizes that the Company may not presently have sufficient authorized shares of common stock available to allow Creditor to exercise the conversion feature of the Preferred Shares, and, in such case, Creditor agrees not to exercise the conversion rights of Creditor’s Preferred Shares until such time as such additional common shares are authorized and available for exercise of the conversion rights of Creditor’s Preferred Shares without any penalty or consequence to the Company.


 









 



	 	 	 
	Creditor   	 	Effective Date
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	
Lloyd Spencer


Interim Corporate Secretary


CoroWare, Inc.

	 	Effective Date





 


 



Series G Convertible Preferred Stock Recipient Agreement
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<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS AND NOTES INCLUDED IN THIS FORM 10-Q AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
       
<S>                             <C>
<PERIOD-TYPE>                   9-MOS
<FISCAL-YEAR-END>                          DEC-31-1998
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<TOTAL-LIABILITY-AND-EQUITY>                   290,740
<SALES>                                        132,036
<TOTAL-REVENUES>                               140,506
<CGS>                                          105,141
<TOTAL-COSTS>                                  125,393
<OTHER-EXPENSES>                                     0
<LOSS-PROVISION>                                     0
<INTEREST-EXPENSE>                               2,720
<INCOME-PRETAX>                                 15,113
<INCOME-TAX>                                        77
<INCOME-CONTINUING>                             15,036
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</TABLE>
Exhibit (31) 

CERTIFICATION 

I, Michael H. Thaman, Chief FinancialOfficer of the registrant, certify that: 

I have reviewed this quarterly reporton Form 10-Q of Owens Corning; 

Based on myknowledge, this report does not contain any untrue statement of a material fact or omitto state a material fact necessary to make the statements made, in light of thecircumstances under which such statements were made, not misleading with respect to theperiod covered by this report;  

Based on myknowledge, the financial statements, and other financial information included in thisreport, fairly present in all material respects the financial condition, results ofoperations and cash flows of the registrant as of, and for, the periods presented in thisreport;  

The registrant’s othercertifying officer and I are responsible for establishing and maintaining disclosurecontrols and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for theregistrant and have:
Exhibit 32.3

Statement of Chief Executive Officer

Pursuant to 18 U.S.C. Sec 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned Chief Executive Officer of Southern California Gas Company (the "Company") certifies that:

the Quarterly Report on Form 10-Q of the Company filed with the Securities and Exchange Commission for the year ended March 31, 2006 (the "Quarterly Report") fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
the information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

May 2, 2006

/S/  Edwin A. Guiles
Edwin A. Guiles
Chief Executive Officer
EX-35 (d)
(logo) WELLS FARGO

Corporate Trust Services
MAC N2702-011
9062 Old Annapolis Road
Columbia, MD 21045
410 884-2000
410 715-2380 Fax

Wells Fargo Bank, N.A.

March 23, 2007

Merrill Lynch Mortgage Investors, Inc.
4 World Financial Center
New York, NY 10281

RE: Annual Statement As To Compliance for Merrill Lynch Mortgage Investors
Trust, Series 2006-Al

Per Section 3.16 of the Pooling and Servicing Agreement, dated as of 3/1/2006,
the undersigned Officer of Wells Fargo Bank, N.A., (Master Servicer), hereby
certifies the following for the 2006 calendar year or portion thereof:

(i)     a review of such party's activities during the preceding calendar year
        or portion thereof and of such party's performance under this Agreement
        has been made under such officer's supervision and

(ii)    to the best of such officer's knowledge, based on such review, such
        party has fulfilled all its obligations under this Agreement in all
        material respects throughout such year or portion thereof, or, if there
        has been a failure to fulfill any such obligation in any material
        respect, specifying each such failure known to such officer and the
        nature and status thereof.

Certified By:
/s/ Scott Strack
Scott Strack, Vice President

Certified By:
/s/ Gordon Johnson
Gordon Johnson, Assistant Secretary
221 So.2d 121

#### Terrance MARINSHAW v. STATE of Alabama.

4 Div. 357.

Supreme Court of Alabama.

April 3, 1969.

Geo. W. Dean, Jr., Destín, Fla., for petitioner.

MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., opposed.

BLOODWORTH, Justice.

This cause is submitted on the State’s motion to strike defendant’s petition for writ of certiorari to the Court of Appeals.

The motion is due to be granted because the petition was not “filed” within fifteen days after the Court of Appeals overruled application for rehearing as required by Rule 39, Revised Rules of the Supreme Court, 279 Ala. XXI, XXXIX. It was “presented” to the Clerk the twenty-first day.

Neither does the brief accompanying the petition (required by Rule 39, supra) contain a certificate of service on the attorney general, as required by Rule 11, Revised Rules of the Supreme Court, 279 Ala. XXI, XXVII. Bruner v. State, 265 Ala. 357, 91 So.2d 224.

Motion to strike granted.

SIMPSON, MERRILL, and COLEMAN, JJ., concur.
#### Daniel J. M. Walker, Appellant, *v.*Osee Welch et al., Appellees.

APPEAL EROM JO DAVIESS.

A motion to discharge defendant on common bail is addressed to the discretion of the court, and its decision cannot be assigned for error.

This was an action of assumpsit, brought by the appellees against the appellant on book account, and tried before á jury at the May Term 1852, of the Jo Daviess Circuit Court, Sheldon, Judge, when a verdict was found against the defendant below, and judgment rendered thereon. The defendant below appealed. The suit was commenced by capias.

Glover and Cook, and J. P. Stevens, for appellant.

Higgins and Strother, for appellees.

Treat, C. J.

There is not the semblance of error in this record. The motion to discharge the defendant on common bail, was addressed to the discretion of the court, and its decision cannot be assigned for error. Bruner *v.*Ingraham, 1 Scammon, 556; Bancroft *v.*Eastman, 2 Gilman, 259; Morrison *v.*Silverburgh, 13 Illinois, 551. It was too late to withdraw the set-off, after the jury had passed upon the evidence.

The judgment is affirmed.

*Judgment affirmed.*
#### Fogarty *v.*Witty, Appellant.

*Contract*— Builder’s *contract*— Defenses—Case *for jury.*

In an action of assumpsit to recover a balance due on a written contract for the erection of a building in accordance with certain plans and specifications where the defense is that plaintiff had failed substantially to perform his contract and that one of defendants had been released from his obligations by the plaintiff, but where it appears that the question of substantial performance was submitted to the jury with full and accurate instructions and that the allegation that one of the defendants had been released from his obligations is not sustained by the evidence, a verdict and judgment for plaintiff will be sustained.

Argued Jan. 7, 1914.

Appeal, No. 176, Jan. T., 1913, by Charles H. Witty, from judgment of C. P. No. 3, Philadelphia Co., June T., 1911, No. 3572, on verdict for plaintiff in case of Owen Fogarty v. Joseph F. A. Hagan, and Charles H. Witty.

Before Fell, C. J., Bbown, Mestrezat, Potter, Stewart and Moschzisker, JJ.

Affirmed.

*92Assumpsit to recover a balance alleged to be due on a building contract. Before Ferguson, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $30,534.72 and judgment thereon. Defendant Witty appealed.

*Errors assigned*were various rulings on evidence and the charge to the jury.

*Daniel B. Rothermel,*with him *Walter Biddle Saul,*for appellant.

*Owen J. Roberts,*of *Roberts, Montgomery & McKeehan,*for appellee.

February 9, 1914:

Pee Curiam,

The appellant, Witty, is one of two defendants against whom a judgment was obtained in an action on a written contract for the erection of a building in accordance with certain plans and specifications. A recovery in the action was resisted by both defendants. on the ground of failure of the plaintiff to substantially perform the contract and by Witty for the additional reason alleged by him that he had been released from his contract obligations by the plaintiff. The first ground of defense was submitted to the jury with full and accurate instructions to which we find no valid objection. The second ground was not sustained by proof received and the offers of testimony rejected would not have sustained it, if admitted. The offers were not to prove that the plaintiff had released Witty or that they had mutually released each other — they went only to the extent of showing that Witty had withdrawn from the enterprise into which he and his coobligor entered and that of this he had notified the plaintiff.

We find no error in the record and the judgment is affirmed.
#### Yvonne Franklin, *alias*Viola Ducrest v. State.

No. 24704.

March 15, 1950.

*Justice, Moore & Justice,*by *Wm. Wayne Justice,*Athens, for appellant.

*George P. Blackburn,*State’s Attorney, Austin, for the state.

WOODLEY, Judge.

Appellant was charged by complaint and information with the offense of transporting whiskey in a dry area “in an automobile on a public highway,” and for the purpose of seeking enhancement of the punishment as provided by Art. 61, P. C., it was alleged that she had been previously convicted of a like offense of transporting intoxicating liquor in a dry area, and prior to that offense, of the offense of possession for the purpose of sale of intoxicating liquor in a dry area.

*376The court, in his charge to the jury, authorized the enhancement of the punishment in the event the jury convicted appellant arid found that she had been so previously convicted. Appellant was found guilty by the jury and her punishment was assessed at a fine of $400.

Appellant excepted to the charge submitting the enhancement of punishment, on the ground that there was no evidence to raise the issue.

It was stipulated that Yvonne Franklin and Viola Ducrest was one and the same person, and the state introduced in evidence certified copies of two judgments of conviction as described in the information and complaint against Viola Ducrest.

There was no testimony or stipulation that appellant was the same Viola Ducrest who was the defendant in such previous convictions.

The certified copies of the judgments of conviction alone are not sufficient. The accused must be identified as the person who was so convicted. See Phariss v. State, 149 Tex. Cr. R. 406, 194 S. W. 2d 1007, and cases there cited.

It was therefore error for the court to instruct the jury to enhance the punishment, there being insufficient proof of the prior convictions alleged. See 12 Tex. Jur. 800, Sec. 407.

The judgment is therefore reversed and the cause remanded.

Opinion approved by the court.
#### UNITED STATES of America, Plaintiff — Appellee, v. Brandon Gratz SEAMAN, Defendant— Appellant.

No. 02-30063. D.C. No. CR-01-84-GF-SEH.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 2002.

Decided Nov. 13, 2002.

Before TROTT, T.G. NELSON, and THOMAS, Circuit Judges.

MEMORANDUM *

Brandon Seaman appeals the sentence imposed after his guilty plea to one count of conspiracy to distribute methamphetamine. We affirm. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

I

The district court did not err by enhancing Seaman’s sentence pursuant to U.S.S.G. § 2Dl.l(b)(l), a decision which we review for an abuse of discretion. *United States v. Berry,*258 F.3d 971, 976 (9th Cir.2001). Here, the district court provided Seaman with an opportunity to provide evidence in open court challenging the credibility of Nyre’s testimony. The district court considered the competing evidence and resolved the factual dispute against Seaman. Although Seaman contests the actual resolution, there is a sufficient factual basis for the enhancement for us to conclude that the district court did not abuse its discretion.

II

The district court did not clearly err in its calculation of methamphetamine attributable to Seaman. Seaman contends that the district court double-counted six to seven grams that Green testified he provided to Seaman. However, even if this issue were resolved in Seaman’s favor it would not require reversal because it would have no effect on his base offense level given the undisputed quantity of methamphetamine attributable to him.

*864III

The district court did not abuse its discretion in imposing a ninety-month sentence. Seaman contends that such sentence was impermissibly disproportionate in light of the fact that his co-defendants Green and Nyre must have received substantial downward departures in their sentencing for their cooperation.

The record indicates that Green pled guilty to a lesser charge of intent than the conspiracy charge underlying Seaman’s conviction. An inquiry of substantial disparity between sentencing is not relevant between individuals who have engaged in different criminal conduct. *See United States v. Bischel,*61 F.3d 1429, 1437 (9th Cir.1995). Nyre provided evidence that led to Seaman’s arrest. “[L]enient sentencing in exchange for cooperation with the government is a valid exercise of discretion.” *U.S. v. Baker,*10 F.3d 1374, 1420 (9th Cir.1993) (citation omitted), *overruled on other grounds, United States v. Nordby,*225 F.3d 1053 (9th Cir.2000). Thus, based on the record before us, we cannot conclude that the sentence was impermissibly disproportionate to the sentences of the co-defendants.

AFFIRMED.

*

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
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</TABLE>
#### John Finck v. Albert S. Del Gaudio.

Motion denied on terms stated in order.