alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
### C OURT OF 

### A PPEALS FOR THE



### F IRST 

### D ISTRICT OF 

### T EXAS AT 

### H OUSTON



### O RDER ON 

### M OTION



### November 7, 2008 Revision Cause number: 01

- 1 3

- 0 0 199

- C V

Style: Paccar, Inc., Cleveland Mack Sales, Inc. d/b/a Performance Kenworth, and Caterpillar, Inc.

v. Ho Ho Ho Express, Inc.

Date motion filed * : July 26

, 201 3

Type of motion: Unopposed m otion for extension of time to file appellee’s brief

Party filing motion: Appellee

Document to be filed: Appellee’s brief

Is appeal accelerated? No

If motion to extend time:

Original due date: N/A

Number of previous extensions granted: 0 Current Due date: N/A

Date Requested: August 30 , 2013

Ordered that motion is:

 Granted

If document is to be filed, document due:

 T he Court will not grant additional motions to extend time absent extraordinary circumstances

 Denied

 Dismissed ( e.g. , want of jurisdiction, moot ) with instructions.

 Other: _____________________________________

Appellee’s brief is due 30 days after the final appellant ’ s brief is filed. See T EX

. R. A PP

. P . 38.6(b).

Although Cleveland Mack Sales, Inc. and Caterpillar, Inc. have filed briefs, Paccar, Inc. has not yet filed

a brief in this appeal. Accordingly, appellee’s brief is not yet due and the motion is dismissed as moot. If

Paccar, Inc., moves to dismiss its appeal pursuant to settlement, rather than filing a brief, then the parties

shall promptly inform the court. Appellee’s brief will be due 30 days from the date that Paccar, Inc. either

files its brief or moves to di smiss its appeal.

Judge's signature: /s/ J a ne Bland



Panel consists of

____________________________________________

Date: August 2, 2013
Exhibit 32
Certifications
In connection with the annual report on Form 10-K for the year ended December31, 2003 of First SunAmerica Life Insurance Company as filed with theSecurities and Exchange Commission on the date hereof (the Report), each of,Jay S. Wintrob, Chief Executive Officer of the Company, and N. Scott Gillis,Senior Vice President and Chief Financial Officer of the Company, herebycertify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of Section 13(a) or15(d) of the Securities and Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly presents, in allmaterial respects, the financial condition and results of operations ofthe Company.     /s/ JAY S. WINTROB  Jay S. Wintrob Chief Executive Officer    /s/ N. Scott Gillis  N. Scott Gillis Senior Vice President and Chief Financial Officer
Date: March 29, 2004
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-4407

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL ANTHONY HALL,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. James A. Beaty, Jr.,

District Judge. (CR-95-277)

Submitted: November 21, 1996 Decided: December 6, 1996

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Danny T. Ferguson, Winston-Salem, North Carolina, for Appellant.

Walter C. Holton, Jr., United States Attorney, Scott P. Mebane,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

Michael Anthony Hall appeals his conviction for bank fraud in

violation of 18 U.S.C. § 1344 (1994). Hall claims he was denied

effective assistance of counsel in that he felt pressured by his

attorney to plead guilty. A claim of ineffective assistance is not

properly raised on direct appeal unless the record discloses conclusively that defense counsel was ineffective. United States v.

Williams, 977 F.2d 866, 871 (4th Cir. 1992), cert. denied, 507 U.S.

942 (1993). Because the record does not conclusively disclose that

Hall was denied effective assistance of counsel, we will not address his ineffective assistance claim. Rather, Hall may bring his

claim in a habeas corpus proceeding under 28 U.S.C. § 2255 (1994),

amended by Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214. To the extent that Hall challenges the voluntariness of his guilty plea, our review of the

record reveals that such a claim is without merit.

Accordingly, we affirm Hall's conviction and sentence. 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
10.100
  AMENDMENT
    TO AMENDED AND RESTATED EMPLOYMENT
    AGREEMENT
  Spanish Broadcasting System,
    Inc Marko Radlovic
  RECITALS
          New Title
  Discretionary Bonus
  Term
  Automobile
    Allowance
  Performance Bonus
  Performance Bonus
  $30,000




---



##### 



$15,000
  $15,000
  $25,000
    Additional Options
    st
    By:

    /s/ Raúl Alarcón, Jr.

Raúl
    Alarcón, Jr.
    President/CEOEMPLOYEE/s/ Marko Radlovic
    Marko
    Radlovic
    EVP/COO
LARRY MORTON

,

Petitioner,

v.

DEPARTMENT OF CORRECTIONS

,
Respondent. ___________________________/ IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

CASE NO. 1D 16

- 0768

Opinion filed September 16, 2016.

Petition for Writ of Certiorari

-- Original Jurisdiction

.
Larry Morton, pro se , Petitioner.

Kenneth S. Steely, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee , for Respondent.

PER CURIAM.

The petition for writ of certiorari is denied on the merits

.

RAY, KELSEY, and WINOKUR, JJ.

, CONCUR.
(December 18, 1997)

#### A. Walker Bingham, III, et al., Appellants-Respondents, v Catherine T. A. Struve, Respondent-Appellant.

[666 NYS2d 590]

—Appeal from order, Supreme Court, New York County (Carol Arber, J.), entered May 8, 1995, which, *inter alia,*denied plaintiffs’ motion for summary judgment, and granted plaintiffs’ request to strike defendant’s answer and counterclaims to the extent of striking the counterclaims only, unanimously dismissed, without costs; and, insofar as defendant has cross-appealed from that portion of the aforesaid order dismissing her counterclaims and denying her cross-motion for summary judgment, the order is unanimously affirmed, without costs.

Plaintiffs’ appeal from the above-described interlocutory order must be dismissed by reason of the subsequent entry of judgment dismissing the action *(see, Matter of Aho,*39 NY2d 241, 248). While we previously denied a motion by the defendant to dismiss the appeal, we did so by reason of our expectation that there would be an appeal from the final judgment bringing up for review the issues raised in the interlocutory appeal *(see,*CPLR 5501 [a] [1]). However, the appeal from the final judgment has never been perfected and as the time for doing so has come and gone and indeed been exceeded by many months during which there has been no request for enlargement, we believe it fair to conclude that, contrary to our expectations, the appeal from the final judgment has been abandoned. This being the case, it would appear clear that there exists no means by which the challenged interlocutory disposition might be placed before this Court, and, accordingly, that there is no point to the further retention of the appeal from that disposition on our docket.

Respecting the cross-appeal, it suffices to note that while the striking of a pleading pursuant to CPLR 3126 is a harsh and drastic remedy, it is nevertheless generally within the discre*155tion of the motion court to determine an appropriate penalty for a party’s deliberate failure to respond to a court order of disclosure *(Rich & Rich Trading Co. v Theodore, Ltd.,*225 AD2d 307). Here, defendant’s repeated, adamantine refusal to submit to court-ordered examination by plaintiffs’ expert provided ample justification—particularly under the circumstances of this case in which defendant had herself placed her psychiatric condition in issue—for the motion court’s dismissal of defendant’s counterclaims. Concur—Murphy, P. J., Sullivan, Wallach, Nardelli and Tom, JJ.
#### UNITED STATES of America, Plaintiff-Appellee v. Tyrone JONES, Defendant-Appellant.

No. 10-30680

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 8, 2011.

Gregory Martin Kennedy, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Stephen Andrew Higginson, Assistant U.S. Attorney, U.S. Attorney’s Office, New Orleans, LA, for Plaintiff-Appellee.

Robin Elise Schulberg, Assistant Federal Public Defender, Samuel J. Scillitani, Jr., Federal Public Defender’s Office, New Orleans, LA, for Defendant-Appellant.

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM: *

Tyrone Jones appeals the sentence imposed following the revocation of his supervised release subsequent to his convictions for felon in possession of a firearm and possession of a firearm while being subject to a protective order. Jones argues that his 24-month sentence, which was above the recommended guidelines range, was unreasonable given that his violations were only Grade C violations. Jones did not object to his sentence in the *429district court. Accordingly, we review his appeal for plain error only. *See United States v. Whitelaw,*580 F.3d 256, 259-60 (5th Cir.2009); *see also Puckett v. United States,*556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009).

Because the 24-month sentence Jones received on revocation was not greater than the term authorized by statute, it is “clearly legal.” *United States v. Pena,*125 F.3d 285, 288 (5th Cir.1997). Additionally, this court has routinely upheld sentences on revocation greater than the advisory policy range but within the statutory maximum. *See United States v. Jones,*182 Fed.Appx. 343, 344 (5th Cir.2006) (per curiam); *United States v. Milligan,*353 Fed.Appx. 954 (5th Cir.2009). Thus, there is no plain error with regard to Jones’s 24-month sentence. *See Puckett,*129 S.Ct. at 1429. Accordingly, the judgment of the district court 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.
#### Gerald J. Lenze et al., Plaintiffs, v Lehrer McGovern & Bovis, Inc., et al., Respondents, and G&G Concrete, Inc., Appellant, et al., Defendant. Lehrer McGovern & Bovis, Inc., et al., Third-Party Plaintiffs-Respondents, and G&G Concrete, Inc., Third-Party Plaintiff-Appellant, et al., Third-Party Plaintiff, v Earl B. Lowell et al., Third-Party Defendants.

[665 NYS2d 899]

—Judgment, Supreme Court, New York County (Leland DeGrasse, J., and a jury), entered September 16, 1996, *inter alia,*awarding defendant Lehrer McGovern & Bovis, Inc. and New York Foundling Charitable Corp. the sum of $88,391.29 against defendant G&G Concrete, Inc., and bringing up for review an order of the same court (Joan Lobis, J.), entered February 18, 1993, which granted said defendants’ motion for partial summary judgment, unanimously affirmed, without costs.

G&G Concrete, Inc.’s admitted failure to procure additional insured coverage pursuant to its contract entitled the general contractor, Lehrer McGovern & Bovis, Inc., to indemnification with respect to damages for plaintiffs injuries regardless of which party was culpable *(Roblee v Corning Community Coll.,*134 AD2d 803, *lv denied*72 NY2d 803; *206 E. 95th St. Assocs. v Insurance Co.,*234 AD2d 21). It was therefore immaterial on the motion for partial summary judgment whether the proof of G&G’s involvement in removing the temporary wood treads from the step where plaintiff was injured qualified as a business record. G&G’s contention that Lehrer waived its right to indemnification for the costs of its defense is unsupported by the record. Concur—Ellerin, J. P., Nardelli, Williams, Andrias and Colabella, JJ.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-6363

FRED GOODINE, JR.,

Petitioner - Appellant,

versus

RICHARD S. LINDLER, Warden; T. TRAVIS MEDLOCK,

Attorney General of the State of South Carolina,

Respondents - Appellees.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Cameron McGowan Currie, District

Judge. (CA-92-804-3-22BC)

Submitted: October 31, 1996 Decided: April 9, 1997

Before WIDENER and LUTTIG, Circuit Judges, and PHILLIPS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Fred Goodine, Jr., Appellant Pro Se. Donald John Zelenka, Chief

Deputy Attorney General, Columbia, South Carolina, for Respondents.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

Appellant appeals the district court's orders granting his

petition filed under 28 U.S.C. § 2254 (1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, 110 Stat. 1214, directing Respondent to fashion a remedy and

then approving the remedy. We have reviewed the record and the

district court's opinions and orders and find no reversible error.

Respondents elected to treat Appellant as parole eligible on

a twenty year basis, which is consistent with the representations

made to Appellant at the time of his guilty plea. This is a

satisfactory remedy that gives Appellant the benefit of his plea

bargain. See O'Tuel v. Osborne, 706 F.2d 498 (4th Cir. 1983).

Accordingly, we affirm both orders on the reasoning of the district

court. Goodine v. Lindler, No. CA-92-804-3-22BC (D.S.C. Feb. 29 and

Apr. 1, 1996). 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 by the Chief Executive Officer pursuant to 18 U.S.C. 1350
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002  In connection with the Quarterly Report of Entheos Technologies, Inc. (the Company) on the Form 10-QSB for the period ending September 30, 2006 as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Harmel Rayat, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. ss. 1350, as adopted pursuant to ss.906 of the Sarbanes-Oxley Act of 2002, that:  (i) the Report filed by the Company fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (ii) The information contained in that Report fairly presents, in all material respects, the financial condition and results of operations of the Company on the dates and for the periods presented therein.  ENTHEOS TECHNOLOGIES, INC.Date:  October 25, 2006By:/s/ Harmel RayatHarmel Rayat
President and Chief Executive Officer  This certification accompanies this Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. 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 required by Section 906, 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.
#### The People of the State of New York, Respondent, v Terrell Hale, Appellant.

[859 NYS2d 838]

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December 21, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]). Although defendant failed to preserve for our review his contention that County Court failed to comply with CPL 400.21 in sentencing him as a second felony offender *(see People v Kimmons,*39 AD3d 1180, 1180-1181 [2007]), we exercise our power to review that contention as a matter of discretion in the interest of justice *(see*CPL 470.15 [6] [a]). As the People correctly concede, the sentence must be vacated and the matter remitted for resentencing because the court erred in sentencing defendant as a second felony offender without complying with CPL 400.21 (3). The court failed to afford defendant the opportunity to controvert the prior felony conviction, and defendant did not *1178acknowledge the prior felony conviction during the proceedings *(see People v Cole,*31 AD3d 1190 [2006]). The People also correctly concede that the court’s imposition of a $50 DNA databank fee was illegal *(see*Penal Law § 60.35 [1] [a] [v]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing in compliance with CPL 400.21 and Penal Law § 60.35. In light of our determination, we do not address defendant’s challenge to the severity of the sentence.

Contrary to the contention of defendant, the court properly refused to suppress his statements to the police, based on the court’s determination that defendant implicitly waived his *Miranda*rights *(see People v Goncalves,*288 AD2d 883, 884 [2001], *lv denied*97 NY2d 729 [2002]). The contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel is based on facts outside of the record on appeal and thus is properly the subject of a motion pursuant to CPL article 440 *(see People v Washington,*39 AD3d 1228, 1230 [2007], *lv denied*9 NY3d 870 [2007]; *People v Swartz,*23 AD3d 917, 918 [2005], *lv denied*6 NY3d 818 [2006]). The remaining contentions of defendant in his pro se supplemental brief are not preserved for our review *(see*CPL 470.05 [2]) and, in any event, they are lacking in merit. Present — Scudder, EJ., Smith, Centra, Feradotto and Pine, JJ.
[No. 30168-1-III.

Division Three.

October 2, 2012.]

#### The State of Washington, *Appellant,*v. Charles Robert Tucker, *Respondent.*

Appeal from a judgment of the Superior Court for Spokane County, No. 10-1-03799-4, Jerome J. Leveque, J., entered July 18, 2011 *.Affirmed*by unpublished opinion per

Kulik, J.,

concurred in by Sweeney and Brown, JJ.
#### The People of the State of New York, Respondent, v Antwan Croskery, Appellant.

[858 NYS2d 631]

Appeal from a *1272judgment of the Erie County Court (Timothy J. Drury, J.), rendered December 6, 2006. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.

Now, upon reading and filing the stipulation of discontinuance signed by defendant on March 4, 2008 and by the attorneys for the parties on March 6, 2008,

It is hereby ordered that said appeal is unanimously dismissed upon stipulation. Present—Martoche, J.P, Smith, Centra, Lunn and Pine, JJ.
#### In the Matter of Mid-Hudson Workshop for the Disabled, Inc., Respondent, v City of Poughkeepsie et al., Appellants.

[665 NYS2d 941]

—In a proceeding pursuant to CPLR *292article 78, *inter alia,*to review a determination denying the petitioner a full property tax exemption pursuant to Real Property Tax Law § 420-a, the City of Poughkeepsie and Deborah Regula, as Assessor of the City of Poughkeepsie, appeal from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered December 4, 1996, which granted the petition.

Ordered that the judgment is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Dutchess County, for a hearing in accordance herewith.

The appellants granted the petitioner, a nonprofit corporation, a partial property tax exemption for the 1996 tax year. The petitioner then commenced this proceeding claiming that it is entitled to a full exemption pursuant to RPTL 420-a (1) (a). The Supreme Court granted the petition.

The court properly determined that this proceeding is not time-barred *(see, Matter of Adventist Home v Board of Assessors,*83 NY2d 878; *Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg,*78 NY2d 194). However, because the petitioner did not, as a matter of law, meet its burden of demonstrating that it is entitled to a full exemption *(see, Matter of New York Botanical Garden v Assessors of Town of Washington, 55*NY2d 328, 334), the court erred in granting the petition without conducting a hearing.

While there is no dispute that the petitioner is organized and conducted exclusively for an exempt purpose *(see,*RPTL 420-a [1] [a]), the record does not sufficiently establish that the petitioner’s property is used primarily for that exempt purpose *(see, Mohonk Trust v Board of Assessors,*47 NY2d 476, 483). The questions of fact raised in this proceeding should be resolved at a hearing *(see,*CPLR 7804 [h]).

The appellants’ remaining contention is without merit *(see,*RPTL 420-a [11]). Copertino, J. P., Sullivan, Pizzuto and Lerner, JJ., concur.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-7524

KEITH E. WYATT,

Plaintiff - Appellant,

v.

DANIEL T. MAHON, Warden, HCC; FRED SCHILLING, Director of

Health Services; DR. ROGER M. PHILLIPS, M.D., Prison Doctor,

HRRJ; DR. JOHN KING, M.D., Prison Doctor, HCC; DOCTOR K. W.

JARRETT, M.D., Prison Doctor, HCC; DOCTOR W. D. HENCEROTH,

M.D., Prison Doctor, PCC; DOCTOR BENJAMIN ULEP, M.D., Prison

Doctor, Sussex II State Prison,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Jerome B. Friedman, District

Judge. (2:06-cv-00348-JBF)

Submitted: June 17, 2008 Decided: July 8, 2008

Before WILKINSON and DUNCAN, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Keith E. Wyatt, Appellant Pro Se. Susan Bland Curwood, Assistant

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia; Lisa Ehrich, Jeff W. Rosen, PENDER & COWARD,

PC, Virginia Beach, Virginia; Edward Joseph McNelis, III, Elizabeth
- 2 -

Martin Muldowney, RAWLS & MCNELIS, PC, Richmond, Virginia, for

Appellees. 

Unpublished opinions are not binding precedent in this circuit.
- 3 -

PER CURIAM:

Keith E. Wyatt appeals the district court’s order

granting Defendants’ motions for summary judgment and dismissing

claims against Defendant King for failure to state a claim pursuant

to 28 U.S.C. § 1915A(b)(1). We have reviewed the record and find

no reversible error. Accordingly, we affirm for the reasons stated

by the district court. Wyatt v. Mahon, No. 2:06-cv-00348-JBF (E.D.

Va. Sept. 21, 2007). 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