Monday, December 12, 2005
Ind. Decisions - 7th Circuit posts six decisions today, including one from ND Ind., and others involving NLRB, sentencing, workers comp, and immigration
In USA v. Oritz (ND Ind. Judge Moody), Judge Williams writes:
Jose Ortiz pled guilty to one count of distributing marijuana and two counts of distributing cocaine. At sentencing, the district court found that Ortiz’s relevant conduct involved 100 kilograms of cocaine and sentenced him to 240 months imprisonment. Ortiz argues that the government witness’s testimony was inconsistent and therefore unreliable. Although we find aspects of that testimony troubling, we decline to find it incredible as a matter of law. Ortiz also appeals his sentence on the grounds that the district court improperly attributed to him quantities of cocaine not part of the offense of conviction. We agree and find that the additional cocaine that the district court attributed to Ortiz was not part of the same common scheme or plan as the crime to which Ortiz pled guilty, and is thus not relevant conduct. As such, we vacate Ortiz’s sentence and remand for resentencing. In light of this remand, we need not address Ortiz’s arguments under United States v. Booker, 125 S. Ct. 738 (2005).In Kllokoqi, Xhevgjet v. Gonzales the 7th Circuit sends back another immigration decision. Here Judge Williams writes:
Xhevgjet Kllokoqi, a citizen of the Kosovo region of the Federal Republic of Yugoslavia and an ethnic Albanian, appeals a final order of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ) denial of his application for political asylum and withholding of removal. Because the IJ discredited Kllokoqi without substantial evidence and failed to consider all of Kllokoqi’s persecution arguments, we vacate and remand for further proceedings. * * *
While the final choice of a presiding judge remains always with the BIA, we strongly encourage the BIA to assign Kllokoqi’s case to a different judge on remand in order to avoid any perception of lingering bias.
Posted by Marcia Oddi on December 12, 2005 01:00 PM
Posted to Ind. (7th Cir.) Decisions