Context: However, this case did not turn on a finding that Herrera's impairments were not severe at step two; rather, the ALJ concluded that Herrera was not disabled because, despite his severe impairments, he retained the residual functional capacity to do other work. Therefore, the ALJ's failure to assess the severity of Herrera's anxiety or learning impairments at step two is not a basis for remand.

"[I]f the ALJ proceeds past the impairment step in the sequential evaluation process the court must infer that a severe impairment was found."

See Adams v. Bowen, 833 F.2d 509, 512 (5th Cir.1987) (ALJ’s failure to make a severity finding at step two not a basis for remand where ALJ proceeded to later steps of the analysis); see also Mays v. Bowen, 837 F.2d 1362, 1365 (5th Cir.1988) (per curiam) (“[I]f the ALJ proceeds past the impairment step in the sequential evaluation process the court must infer that a severe impairment was found.”).

ALJ's failure to make a severity finding at step two not a basis for remand where ALJ proceeded to later steps of the analysis


Context: The Florida burglary statute is, to some extent, divisible -- it proscribes "entering or remaining in a structure or a conveyance with the intent to commit an offense therein." SS 810.02, Fla. Stat. (emphasis added). Insofar as the statute distinguishes between structures and conveyances, it is indeed divisible.

explaining that a divisible statute "sets out one or more elements of the offense in the alternative -- for example, stating that burglary involves entry into a building or an automobile"

Descamps, 133 S.Ct. at 2281 (explaining that a divisible statute “sets out one or more elements of the offense in the alternative — for example, stating that burglary involves entry into a building or an automobile”): accord Howard, 742 F.3d at 1348; cf. Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (explaining that “[f]or example, in a State whose burglary statutes include entry of an automobile as well as a building, ... then the Government should be allowed to use the conviction for enhancement” if it can present appropriate documents showing that the defendant was charged with, and necessarily found guilty of, burglary of a building rather than burglary of an automobile).

explaining that "[f]or example, in a State whose burglary statutes include entry of an automobile as well as a building, ... then the Government should be allowed to use the conviction for enhancement" if it can present appropriate documents showing that the defendant was charged with, and necessarily found guilty of, burglary of a building rather than burglary of an automobile


Context: The right of access to the courts, if it has constitutional grounding, probably stems from the Fourteenth Amendment's Due Process or Equal Protection Clauses. A liberal reading of Boswell's complaint uncovers another claim, however -- that of a First Amendment violation of the sort prohibited by this court's Muhammad opinion.

See Muhammad, 35 F.3d at 1085 (“[T]he conduct that is challenged in the present case ... burdens Plaintiffs First Amendment rights.”); see also Kensu, 87 F.3d at 174 (recognizing a First Amendment right to receive mail, subject to uniform policies of opening mail to ensure prison security).

"[T]he conduct that is challenged in the present case ... burdens Plaintiffs First Amendment rights."


"[Tjhis Court has not yet recognized First Amendment rights of prisoners in this context [of opening mail from attorneys]."

But cf. Wolff, 418 U.S. at 575, 94 S.Ct. 2963 (“[Tjhis Court has not yet recognized First Amendment rights of prisoners in this context [of opening mail from attorneys].”) (citations omitted).


Context: As noted above, where the ultimate fact yielded by the impermissible presumption remained as a contested issue in the case, the Sand-strom error will still be deemed harmless if the evidence produced at trial as to that ultimate fact was overwhelming. When that is the case, the error is harmless because the jury would have found it unnecessary to rely on the invalid presumption; the predicate facts of the crime are such that we can say beyond a reasonable doubt that the jury would have inferred intent from these facts.

See, e.g., High v. Kemp, 819 F.2d 988, 995 (11th Cir.1987) (after repeatedly telling victim that he was about to die, defendant ordered victim to lie on ground and then shot him); Potts v. Kemp, 814 F.2d 1512, 1515-16 (11th Cir.1987) (defendant drove victim to dirt road, forced him out of car, and then shot him); Burger v. Kemp, 785 F.2d 890, 892 (11th Cir.1986) (defendant locked victim in car trunk and then submerged car in pond), aff'd, — U.S. -, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987); Dobbs v. Kemp, 790 F.2d 1499, 1509 (11th Cir.1986) (defendant ordered victim to lie on floor and then shot him in stomach), cert. denied, — U.S. -, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987); Tucker v. Kemp, 762 F.2d 1496, 1502-03 (11th Cir.1985) (en banc) (victim died of one crushing blow to skull), cert. denied, — U.S. -, 106 S.Ct. 3340, 92 L.Ed.2d 743 (1986); cf. Francis v. Franklin, 720 F.2d 1206, 1212 (11th Cir.1983) (evidence of intent not so overwhelming as to render Sandstrom error harmless where defendant’s gun went off after victim slammed door into it), aff'd, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).

evidence of intent not so overwhelming as to render Sandstrom error harmless where defendant's gun went off after victim slammed door into it


defendant drove victim to dirt road, forced him out of car, and then shot him


defendant locked victim in car trunk and then submerged car in pond


defendant ordered victim to lie on floor and then shot him in stomach


Context: . In construing a statute, Courts may look to constructions of analogous statutes as interpretive aids.

"[AJssistance in interpreting statutory language may be drawn from the interpretation of similar language in earlier analogous legislation."

See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972) (To determine the meaning of a state statue which has not yet been interpreted by the state courts, federal courts may look to, inter alia, interpretations the state courts have given to analogous statutes); United States v. Deutsch, 451 F.2d 98, 110 (2d Cir.1971) (As aids in interpreting the Investment Company Act, the court looked to, inter alia, interpretations of statutes analogous to the act); see also United States v. Rose, 549 F.Supp. 830, 832 (S.D.N.Y.1982) ("[AJssistance in interpreting statutory language may be drawn from the interpretation of similar language in earlier analogous legislation.”)


As aids in interpreting the Investment Company Act, the court looked to, inter alia, interpretations of statutes analogous to the act


Context: The O'Hare opinion has been cited for this holding, but not since 1920 and only in the context of this particular section of the Espionage Act, which has since been repealed. Further, there has been significant developmenl in First Amendment jurisprudence in the context of civil rights suits.

See Broadrick v. Oklahoma, 413 U.S. 601, 611-12 & n. 9, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (as long recognized, First Amendment needs breathing space, and statutes attempting to burden or restrict its exercise must be narrowly drawn and represent considered legislative judgment that specific mode of expression must give way to other compelling needs of society); see also City of Houston, 482 U.S. at 461, 107 S.Ct. 2502 (First Amendment protects significant amount of verbal criticism and challenge directed to police officers).


Context: Further, the record shows that D. L. T. has been in the same foster home since she was about five months old, that she is bonded to her foster parents and is doing very well in their home, and that the foster parents want to adopt her. Evidence that the mother failed to take the steps necessary for reunification, that the foster parents have provided the child with a stable and secure home, and that they want to adopt the child will support a finding that the child would be harmed by further deprivation.

finding insufficient evidence that keeping the children in foster care while their mother worked on completing the case plan would harm the children, when the children's foster family did not wish to adopt the children and there were no identifiable prospects for placing the children in a permanent adoptive home

In the Interest of C. J., 279 Ga. App. at 217-218 (1); see also In the Interest of A. K, 272 Ga. App. 429, 438 (1) (d) (612 SE2d 581) (2005) (the court is “authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm” to the child) (footnote omitted); In the Interest of B. I. F, 264 Ga.App. 777, 781 (1) (592 SE2d441) (2003) (“itis well established that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems”) (footnote omitted); cf. In the Interest of D. F., 251 Ga. App. 859, 862 (555 SE2d 225) (2001) (finding insufficient evidence that keeping the children in foster care while their mother worked on completing the case plan would harm the children, when the children’s foster family did not wish to adopt the children and there were no identifiable prospects for placing the children in a permanent adoptive home).

the court is "authorized to consider the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm" to the child


"itis well established that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems"


Context: (See J.A. 93-94.) Likewise, Smith testified that she heard shots coming from behind them and then turned and saw Joseph fall to the ground, also indicating a lack of provocation. (J.A. 142-43.)

noting that victim was shot twice in the back as a factor in establishing defendant's specific intent to kill

See Nicholas, 56 V.I. at 736 (highlighting the lack of argument and the circumstance that the victim was shot from behind as indicators of premeditation); see also Szuchon v. Lehman, 273 F.3d 299, 319 (3d Cir. 2001) (noting that victim was shot twice in the back as a factor in establishing defendant’s specific intent to kill).


Context: (Comply 16.) The Tenth Circuit has held that a recording device attached to a home telephone extension, such as that alleged in this case, qualifies for the Extension Phone Exemption because it is the telephone receiver, and not the recording device, that constitutes the intercepting mechanism.

listing possible exceptions to liability where one spouse records conversation of another spouse and including Extension Phone Exemption contained in SS 2510(5

See United States v. Harpel, 493 F.2d 346, 350 (10th Cir.1974); see also Thompson, 970 F.2d at 748 n. 5 (listing possible exceptions to liability where one spouse records conversation of another spouse and including Extension Phone Exemption contained in § 2510(5)(a)(i)); Newcomb, 944 F.2d at 1536 (“The interception of a family member’s telephone conversations by use of an extension phone in the family home is arguably permitted by a broad reading of the exemption contained in 18 U.S.C. § 2510(5)(a)(1).”); cf. Scheib, 22 F.3d at 151 (addressing merits of the plaintiffs Extension Phone Exemption argument without first discussing whether “intercepting equipment” — answering machine attached to a home phone extension' — qualified for the Extension Phone Exemption).

addressing merits of the plaintiffs Extension Phone Exemption argument without first discussing whether "intercepting equipment" -- answering machine attached to a home phone extension' -- qualified for the Extension Phone Exemption


"The interception of a family member's telephone conversations by use of an extension phone in the family home is arguably permitted by a broad reading of the exemption contained in 18 U.S.C. SS 2510(5


Context: . Appellant cites to several cases in this jurisdiction where we found error in the giving of instructions that permitted a non-unanimous verdict. All are distinguishable from the present case in that they each involved two separate incidents chargeable as two separate offenses.

Hack v. United States, 445 A.2d 634, 641 (D.C.1982) (possession of separate packets of marijuana in plastic bag on street and in police car; harmless error); Hawkins v. United States, 434 A.2d 446 (D.C.1981) (assault on complaint by swinging fist through open window of car and, after initial fight, assault on complainant with tire jack outside of car); Johnson v. United States, 398 A.2d 354, 368-70 (D.C.1979) (assault with intent to kill by pushing complainant partially out of fifth floor window and later by throwing complainant into Potomac River); see also Blockburger v. United States, 284 U.S. 299, 301-03, 52 S.Ct. 180, 181-82, 76 L.Ed. 306 (1932) (successive sales of morphine to same person constitute distinct and separate offenses); cf. Davis v. United States, 448 A.2d 242 (D.C.1982) (possession of two separate packets of marijuana, one that appellant had thrown into a taxicab, the other that he had later hidden in the rear seat of a police car).


possession of two separate packets of marijuana, one that appellant had thrown into a taxicab, the other that he had later hidden in the rear seat of a police car


assault with intent to kill by pushing complainant partially out of fifth floor window and later by throwing complainant into Potomac River


Context: The definition of "insured" is therefore linked to the "actual use" of one of the two automobiles covered by the Policy, and the plaintiffs reasoning overlooks the critical fact that neither vehicle had any involvement in the accident in this case. See PL's Mem. at 1-2. Indeed, by the plaintiffs own admission, the only vehicle involved here was driven by Mr. Carr.

"[The Court] may not 'indulge in forced constructions to create an obligation against the insurer.' " (quoting Cameron, 733 A.2d at 968

See Chase 780 A.2d at 1127 (“[The Court] may not ‘indulge in forced constructions to create an obligation against the insurer.’ ” (quoting Cameron, 733 A.2d at 968)); see also Unfoldment, Inc. v. D.C. Contract Appeals Bd., 909 A.2d 204, 209 (D.C.2006) (“A court must honor the intentions of the parties as reflected in the settled usage of the terms they accepted in the contract ... and will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.”) (citations and internal quotation marks omitted); 1010 Potomac Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205 (D.C.1984) (“The writing must be interpreted as a whole, giving a reasonable, lawful, and effective meaning to all of its terms.”) (emphasis added) (citations omitted).

"The writing must be interpreted as a whole, giving a reasonable, lawful, and effective meaning to all of its terms."