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opinion should not be published and is not precedent except under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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-20171

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NAYEL ELOURI,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-248-1

February 26, 2003

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM: *

Nayel Elouri appeals his sentence following a guilty plea to

conspiring to traffic in counterfeit motion pictures and other

audiovisual works in violation of 18 U.S.C. § 371, 2318. Elouri

argues that the district court erred in finding that he occupied an

aggravating role in the offense warranting a three-level increase2

in his offense level pursuant to U.S.S.G. § 3B1.1(b). The district

court did not clearly err in determining that Elouri qualified for

an aggravating-role-in-the-offense adjustment. U nited States v.

Miranda

, 248 F.3d 434, 446 (5th Cir. 2001), cert. denied

, 534 U.S.

980, 1086 (2002). Nor did the court clearly err in refusing to

grant a reduction in Elouri’s offense level pursuant to U.S.S.G. §

3B1.2. S e e Burton v. United States , 237 F.3d 490, 503 (5th Cir.

2000).

Elouri argues that t he district court erred in awarding

$136,050 in restitution to the Motion Picture Assoc iation of

America (MPA) pursuant to the Victim and Witness Protection Act, 18

U.S.C. §§ 3663, 3663A (the VWPA ). Elouri argues that the MPA is

not a “victim” of his offense for purposes of 18 U.S.C. § 3663A

because the MPA is an industry trade association. This argument

was not adequately raised below. Elouri has not demonstrated plain

error with respect to this argument. See United States v. Greer

,

137 F.3d 247, 252 (5th Cir. 1998); 18 U.S.C. § 3663A(a)(2).

Elouri argues that judicial estoppel should bar the Government

from maintaining the position that the MPA is a victim for

restitution purposes. Because Elouri has not demonstrated that the

Government’s position is clearly inconsistent with its position in

another case, the district court did not abuse its discretion in

refusing to invoke the doctrine of judicial estoppel. See IN re

Coastal Plains, Inc.

, 179 F.3d 197, 205-06 (5th Cir. 1999); Ergo3

Science, Inc. v. Martin , 73 F.3d 595, 598 (5th Cir. 1996).

Elouri argues that the district court erred in ordering as a

special condition of supervised release that he provide financial

information to the probation officer. Because the court imposed an

order of restitution, the special condition was proper and

consistent with th e Sentencing Guidelines. S ee U.S.S.G. §

5D1.3(d)(3), p.s.; see United States v. Ismoila

, 100 F.3d 380, 394

(5th Cir. 1996).

AFFIRMED.
#### Morgan Miller *v.*J. M. Brunswick & Bro.

Sales — When Purchaser Becomes Bailee of the Property.

Where the purchasers of property got possession of it before the sale was consummated, they were made bailees or custodians of the property which might be reclaimed by the owners if the purchasers should refuse to make partial payment and execute a mortgage for •the residue, according, to the contract of purchase.

APPEAL FROM MoCRACKEN CIRCUIT COURT.

March 19, 1873.

Opinion by

Judge Hardin :

Whatever might have been the relative rights as to priority of the appellant, as landlord, and the appellees as- mortgagors of Settle and Allensworth, if the billiard tables had been voluntarily delivered to the latter by the appellees or their agents, and placed upon the leased premises before the execution of the mortgage, yet as the evidence satisfied us that by the terms of purchase the ownership of the property was not to vest in Settle & Allensworth till they paid part of the price and mortgaged the tables for the residue, and that the appellees’ rights under this contract were not waived by themselves or their agents, although it seems the tables were by some means removed from the wharf boat before the lease commenced. We must consider such possession as Settle & Allensworth may have had of the tables, before the mortgage was made, as that of mere *572bailees or custodians, which might have been divested and the tables reclaimed by the appellees if the purchasers had not complied with their agreement by. making the payment and the execution of the mortgage.

*Bidwell, for appellant.*

*Nigger &Mop, for appellee.*

This being so, no landlord’s lien could have attached unless at the very instant the legal title became vested in Settle & Allensworth for the purpose of being at once returned to the appellees, bv means of the mortgage as security for their debt; and the delivery and execution of the mortgage and notes being simultaneous and materially dependent parts of one and the same transaction, there is obviously no' reasonable ground for the position assumed in the argument for the appellant that a lien in his favor could have-attached between the vesting of the title in Settle & Allensworth and the completion of the transaction by the execution of the mortgage.

The judgment is *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 Court of Appeals

Fifth Circuit 

## FILED February 15, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10721 Summary Calendar

DEJUAN ANDRE BOULDS, Plaintiff-Appellant,

versus PRISCELLA MILES; BOBBY THOMPSON; JERRY BECK, Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas

USDC No. 4:06-CV-422

-------------------- Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PER CURIAM: * DeJuan Andre Boulds, Texas prisoner No. 7687730, appeals the dismissal of his 42 U.S.C. § 1983 suit for failure to state a claim under 28 U.S.C. 1915A. Boulds alleged that, on specific dates in December 2005 and February 2006, he was subjected to sub-freezing temperatures in his cell because the prison heating system was not working properly. Boulds further alleged that, in addition to failing to maintain and repair the prison heating system, the defendants failed to provide prisoners with supplemental heaters and extra blankets during extremely cold periods and that theyNo. 06-10721 -2- failed to investigate and respond to complaints that the heat was not working. Bould attached to his complaint prison grievance forms showing that he had exhausted his administrative remedies with regard to both periods when his cell was allegedly not heated. The district court held that Boulds’s allegations of “extremely cold temperatures in his cell block” did not state a violation of the Eighth Amendment because the Constitution does not require “comfortable prisons.” See, e.g. , Rhodes v. Chapman, 452 U.S. 337, 349 (1981) (holding that double-celling is constitutional). The district court also held that the allegation that prison officials failed to investigate Boulds’s complaints and

were deliberately indifferent to his needs did not state a claim for relief because Boulds had not shown “that the defendants exhibited anything more than a lack of due care” and that he had failed to establish that they had “a culpable state of mind.” A prison official has a duty to provide prisoners “the minimal civilized measure of life’s necessities.” Wilson v. Seiter , 501 U.S. 294, 304 (1991). This requirement includes a responsibility to provide “adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Allowing a prisoner to be exposed to extreme temperatures may violate the Eighth Amendment. See Wilson, 501 U.S. at 304; Gates v. Cook , 376 F .3d 323, 333-40 (5th Cir. 2004). In Wilson, the Supreme Court speculated that the combination of a failure to issue blankets and

a cold cell at night could violate the Eighth Amendment. Moreover,No. 06-10721 -3- Boulds’s charge that he complained to prison officials about the cold adequately alleges a culpable state of mind. We vacate the dismissal of the complaint and remand for further proceedings consistent with this opinion. VACATED AND REMANDED.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4794

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RICKY CAMPBELL,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. David A. Faber, Chief

District Judge. (CR-05-13)

Submitted: May 26, 2006 Decided: July 12, 2006

Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joan A. Mooney, Morgantown, West Virginia, for Appellant.

Charles T. Miller, United States Attorney, Miller A. Bushong, III,

Assistant United States Attorney, Beckley, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

Ricky Campbell pled guilty to manufacturing, by growing

and cultivating approximately 205 marijuana plants, a Schedule I

controlled substance (Count 2) and was sentenced to sixty months of

imprisonment. Counsel raises two issues on appeal and Campbell

raises one issue pro se. For the reasons that follow, we affirm.

Counsel first argues under the Sentencing Guidelines that

the district court improperly enhanced Campbell’s sentence because

he possessed firearms, under U.S. Sentencing Guidelines Manual §

2D1.1(b)(1) (2004), and for obstruction of justice, under USSG

§ 3C1.1. We find no reversible error and note that Campbell’s

sentence was not increased for possession of firearms. United

States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (stating

review standard). Neither do we find that the district court

improperly declined to apply the safety valve provision in USSG

§ 5C1.2. 

We grant Campbell’s motion to file a pro se supplemental

brief wherein he alleges that his trial counsel was ineffective for

failing to seek a safety valve reduction. Contrary to Campbell’s

assertions, however, the record is clear that his trial counsel did

seek a safety valve reduction for him at sentencing, which the

district court rejected. Thus, Campbell has failed to meet the

demanding burden of establishing ineffective assistance of counsel
- 3 -

in his direct appeal. United States v. Richardson, 195 F.3d 192,

198 (4th Cir. 1999). 

Accordingly, we affirm. 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, JOHN P. GRAZER, certify that:

1. I have reviewed this annual report on Form 10-K, and all reports on
Form 8-K containing distribution or servicing reports filed in respect of
 periods included in the year covered by this annual report, of Argent
 Securities, Inc. 2004-W9:

2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;

3. Based on my knowledge, the distribution or servicing information
required to be provided to the trustee by the servicer under the pooling
and servicing, or similar agreement, for inclusion is included in these
reports;

4. I am responsible for reviewing the activities performed by the servicer
under the pooling and servicing, or similar agreement and based upon my
knowledge and the annual compliance required under that agreement, and except
as disclosed in the reports, the servicer has fulfilled its obligations under
that agreement; and

5. The reports disclose all significant deficiencies relating to the
servicer's compliance with the minimum servicing standards based upon the
report provided by and independent public account, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the pooling and servicing, or
similar, agreement, that is included in these reports.


In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Deutsche Bank National
Trust Company.

<page>



Date: March 1, 2005

ARGENT SECURITIES INC.


/s/: John P Grazer
John P Grazer
CFO
<TABLE> <S> <C>

<ARTICLE> 9
<CIK> 0001049535
<NAME> CAVALRY BANCORP, INC.
<MULTIPLIER> 1000
       
<S>                             <C>
<PERIOD-TYPE>                   9-MOS
<FISCAL-YEAR-END>                          DEC-31-1998
<PERIOD-END>                               SEP-30-1998
<CASH>                                          12,231
<INT-BEARING-DEPOSITS>                          33,278
<FED-FUNDS-SOLD>                                     0
<TRADING-ASSETS>                                     0
<INVESTMENTS-HELD-FOR-SALE>                     48,525
<INVESTMENTS-CARRYING>                           1,696
<INVESTMENTS-MARKET>                             1,705
<LOANS>                                        243,344
<ALLOWANCE>                                      3,100
<TOTAL-ASSETS>                                 353,743
<DEPOSITS>                                     246,880
<SHORT-TERM>                                         0
<LIABILITIES-OTHER>                              4,894
<LONG-TERM>                                          0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                        73,877
<OTHER-SE>                                      28,092
<TOTAL-LIABILITIES-AND-EQUITY>                 343,743
<INTEREST-LOAN>                                 16,113
<INTEREST-INVEST>                                1,348
<INTEREST-OTHER>                                 2,275
<INTEREST-TOTAL>                                19,736
<INTEREST-DEPOSIT>                               7,233
<INTEREST-EXPENSE>                               7,233
<INTEREST-INCOME-NET>                           12,503
<LOAN-LOSSES>                                      308
<SECURITIES-GAINS>                                   0
<EXPENSE-OTHER>                                  9,046
<INCOME-PRETAX>                                  6,874
<INCOME-PRE-EXTRAORDINARY>                       6,874
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                     4,295
<EPS-PRIMARY>                                     0.62
<EPS-DILUTED>                                     0.62
<YIELD-ACTUAL>                                    5.25
<LOANS-NON>                                         37
<LOANS-PAST>                                         0
<LOANS-TROUBLED>                                     0
<LOANS-PROBLEM>                                      0
<ALLOWANCE-OPEN>                                 2,804
<CHARGE-OFFS>                                       31
<RECOVERIES>                                        18
<ALLOWANCE-CLOSE>                                3,100
<ALLOWANCE-DOMESTIC>                             3,100
<ALLOWANCE-FOREIGN>                                  0
<ALLOWANCE-UNALLOCATED>                              0
        

</TABLE>
_________________________________________ 

 

 

Order Michigan Supreme Court

Lansing, Michigan 

September 10, 2007 Clifford W. Taylor,

 Chief Justice 

Michael F. Cavanagh 

Elizabeth A. Weaver 133765 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman, PEOPLE OF THE CITY OF DEARBORN, Justices 

Plaintiff-Appellee, 

v SC: 133765 

 COA: 272342 
 Wayne CC: 06-100001-01

BOGDAN F. MUZYK, 19th DC: 04 C247391 

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the March 1, 2007 order 

of the Court of Appeals is considered, and it is DENIED, because we are not persuaded 

that the questions presented should be reviewed by this Court. 

d0830 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

September 10, 2007 

 Clerk
Exhibit 10.56


 


Amendment to Employment
Agreement


 


This Amendment is
made this 9th day of September, 2005, by and between Interline
Brands, Inc., a New Jersey Corporation (“Company”), whose address is 801 West
Bay Street, Jacksonville, Florida  32204
and William R. Pray (“Executive”).


 


WHEREAS, the Executive
is currently an employee of the Company; and


WHEREAS, the Company
and the Executive desire to amend and restate the employment agreement entered
into by, and between the parties, dated as of December 15, 2004 (“Agreement”);
and


WHEREAS, the Company
considers it essential to its best interests and the best interests of its
stockholders to provide for the continued employment of the Executive by the
Company and to amend the Agreement; and


WHEREAS, the Executive
is willing to accept and continue his employment on the terms hereinafter set
forth in this Amendment;


NOW,
THEREFORE, in consideration of the premises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Company and Executive agree as follows:


 


1.                                       Section 4 of the Agreement entitled “Bonus” is hereby deleted in its entirety and shall be
replaced with the following provisions and incorporated into the Agreement as
the new and substituted Section 4:


 


“4.           Bonus.  With respect to each calendar year during the
Employment Term, the Executive shall be eligible to earn an annual bonus award with
a target of 50% percent of the Base Salary, based upon and subject to the terms
of any bonus program established by the Board or a committee thereof from time
to time.


 


2.                                       Except as modified or amended herein, the
Agreement remains in full force and effect. 
Nothing contained herein invalidates or shall impair or release any covenant,
condition or stipulation in the Agreement, and the same, except as herein
modified and amended, shall continue in full force and effect.


 


3.                                       This Amendment may be executed in one or
more counterparts, each of which shall constitute an original and all of which
taken together shall constitute one Agreement. 
The parties specifically agree that facsimile signatures are acceptable
and permitted and shall be considered original and authentic.  Each party executing this Amendment
represents that such party has the full authority and legal power to do so.


 


IN WITNESS WHEREOF, the parties hereto have executed this Amendment,
which is effective as of the date first above written.


 


	
  INTERLINE BRANDS, INC.

  	
   

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  (Signature)

  	
   

  	
  (Signature)

  
	
  Name: 

  	
   

  	
   

  	
  Name: 

  	
  William R. Pray

  
	
  Title: 

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
  Date:

  	
   

  	
   

  	
  Date:
|Exhibit 32.1
|------------

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 Mercari Communications Group, Ltd. on Form 10-QSB for the period ending February 29, 2008, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, L. Michael Underwood, President/Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge and belief:

| | (1) | the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and                              
| | --- | ---------------------------------------------------------------------------------------------------------------------------------------------------
| |    
| | (2) | the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
| |    



|/s/ L. Michael UnderwoodL. Michael UnderwoodPresident(Principal Executive Officer)
|----------------------------------------------------------------------------------



|April 11, 2008
|--------------

A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement 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.

---
**Exhibit 32**

 

**TIME AMERICA, INC. AND SUBSIDIARY**

 

**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 on Form 10-QSB of Time America, Inc. (the “Company”) for the quarter ended December 31, 2005, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Thomas S. Bednarik, President and Chief Executive Officer of the Company, and Craig J. Smith, Vice President - Finance and Administration and Chief Financial Officer of the Company, each hereby certify, pursuant to 18 U.S.C. ss. 1350, as adopted pursuant to ss. 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) of the Securities Exchange Act of 1934; and

 

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

 
| By:    | /s/ Thomas S. Bednarik                                                  |   |
|--------|-------------------------------------------------------------------------|--------|
|   | Thomas S. Bednarik                                                      |
|   | President and Chief Executive Officer                                   |
|   | February 14, 2006                                                  |
|   |                                                                    |
| By:    | /s/ Craig J. Smith                                                      |   |
|   | Craig J. Smith                                                          |
|   | Vice President - Finance and Administration and Chief Financial Officer |
|   | February 14, 2006                                                  |

 

----