*1 Liberty Mutual prove to failed MEIROVITZ, Ray Sherman Looking at contract.
“breached” Plaintiff-Appellant letter, Liberty August Ward’s ‘recovery’ had that it “no agreed Mutual from any settlement monies
rights America, UNITED STATES it that it argued Ridgetop,” or Kiewit Defendant-Appellee. Statutоry “a claim to had Credit/offset No. 11-1887. Bacon from those any net to Mr. against Appeals, United States Court supra, Liberty explained As entities.” Eighth Circuit. declaratory-judgment answer Mutual’s August Ward’s consistently with reads March 2012. Submitted: answer, Liberty Mutual letter. its 7, 2012. Aug. Filed: it workers’ had a “bona fide stated Rehearing Rehearing En Banc entitling compensation [it] lien Denied Oct. netted [Bacon] for the funds credit by and through agreement the settlement Holdings, Ridgetop [Bacon]
between observed, court
Inc.” As settling of his lawsuit
“[u]pon Bacon’s Liberty per- Mutual Ridgetop,
against i.e., would, it it exactly itas said
formed the settlement against not assert lien
did
monies, claimed Ridgetop, from but rather against those monies to its future
an offset compensation obligations.”
workers’
Therеfore, not err the district did Liberty summary judgment to granting on Bacon’s breach-of-contract
Mutual
claim.
III. Conclusion
Accordingly, judgment affirm the we
the district court.4 claims, "Liberty Liberty Mutual Bacon's we need Mutual concedes court stated that the existence a contract.” law not address whether Iowa Nebrаska puni- have Bacon’s claim for would did Because hold that the district court damages. tive summary granting judgment not err
370
GRUENDER, Judge. Circuit A jury guilty found Sherman Meirovitz conspiracy pos- to distribute cocaine and session of cocaine with to distribute intent 841(a)(1), §§ in of 21 violation U.S.C. (b)(1)(A), Mеirovitz, United v. States (8th Cir.1990). 1376, The report presentence Meirovitz as classified a career with a guide- life, of 360 months and a pris- district court sentenced him to life in parole. appeal, on without On direct affirmed Meirovitz’s conviction and sen- 2010, In brought tencе. a Id. 2255, motion arguing under U.S.C. that, pursuant Johnson United U.S.-, 130 S.Ct. (2010), L.Ed.2d 1 his conviction for man- slaughter degree second under 609.205, Minnesota Statute section which to his contributed classification as a “ca- 4B1.1, reer offender” U.S.S.G. not a crime violence. The district motion, court1 deniеd Meirovitz’s appeals. Meirovitz now affirm We for the reasons follow. remedy by § provided encompass
“does not
all
claimed errors
sentencing.”
conviction and
Sun Bear v.
United
Cir.
2011) (en banc) (quoting United States v.
Addonizio,
442 (1979)).
2235,
(quoting
pro
An error of law
MURPHY, BRIGHT,
Before
vides a
for collateral attack
basis
GRUENDER,
Judges.
Circuit
when “the claimed error
a
constitute^]
Doty,
Judge
1. The Honorable David S.
District
for the
of Minnesota.
States
District
guidelines range
re-
did not amount to
inherently
ing
which
fundamental defect
miscarriage
complete
justice.”
justice.
a
Id. at 705.
sults
Addonizio,
(quoting
U.S. at
Id.
life
sen
(internal
2235)
marks omit-
quotation
S.Ct.
*3
statutory
does not exceed the
maxi
tence
ted).
his
does not contend that
Meirovitz
Additionally,
attorney
mum.
Meirovitz’s
statutory maximum
sentence exceeds the
argument
oral
that
during
conceded
the
juris-
that
court lacked
the
sentenсing guidelines range of 360 months
Furthermore,
opening
Meirovitz’s
diction.
received
to life under which Meirovitz
his
that his
allege
brief
not
sentence
does
guidelines
sentence is identical
the
violates the Constitution.2
range
that would have
absent the
closely
is
anal
рresent
matter
Thus,
career-offender enhancement.
as in
banc
ogous
this court’s en
decision
Bear, Meirovitz’s sentence does not
Sun
There,
sen
Bear.
the district court
Sun
maximum,
statutory
exceed the
is within
Dale Sun Bear
to 360
tenced Marlon
range,
pre-enhancement guidelines
the
and
guide
imprisonment
months’
based
a
be
even if
reimposed
could
we were to
to life in prison.
of 360 months
range
adopt
position
Meirovitz’s
that he is not a
guidelines
at
This
resulted
Id.
“career offender.”
enhancement,
a
frоm career-offender
attempts
distinguish
Meirovitz
Sun
at
pre-enhancement range
Bear’s
set
Sun
by noting
Bear
that Sun Bear’s sentence
months.
Id. Sun Bear submit
292
365
statutory
below the maximum
sen-
the
“alleging
§a
2255 motion
that
ted
while Meirovitz’s
tence
sentence
the
determination viоlated Be
career offender
maximum sentence allowable. While the
States,
U.S.
gay v.
Bear court noted that Sun Bear’s
Sun
(2008)
Id.
[
BRIGHT, Judge, concurring. Circuit precludes that degree his second man- slaughter majority conviction Minnesotа from I concur with the that this case be- ing considered a “crime of for by is controlled our en banc violence” decision States, career offender status Sun Bear v. under U.S.S.G. F.3d 700 banc). § Cir.2011) (en If 4B1.1. manslaughter con- though Even I viction cannot classify am the be used tо him a obligated apply controlling as prec- offender, I career write he would be separately edent resentenced my as a disagreement voice with our non-career offender and under holding a less- er resulting category guidelines, Sun Bear and its impact though with guideline Meirovitz. advisory same range of 360 (30 years) However, months to life. while classified as a was career of- government concedes that Johnson fender 4B1.1 under U.S.S.G. based on effect, states a new rule retroactive two prior degree convictions—second man- they contest application its to Meirovitz’s slaughter possession with the intent to manslaughter conviction. We do not reach (along distribute cocaine with lysergic acid because, notes, this issue as the majority (LSD), diethylamide and methamphet- Meirovitz was sentenced below the statuto- amine).4 The career offender status ry and, therefore, our en banc moved Meirovitz category from V to cate- court any has alleged concluded sen- gory sentеncing guidelines, VI within the tencing error not rise does to the level though it guideline did not alter the Bear, required for relief. See Sun (30 years) of 360 months to life. The F.3d at 705. While I am bound accepted court the career offender decision, I respectfully disagree. classification and sentenced Meirovitz to life in prison. sentencing judge high- provide Section 2255 can relief for a lighted manslaughter non-jurisdietional, conviction as non-constitutional error part of the reason he found Meirovitz to be law if that is “a error fundamental de- not.”). tangentially Additionally, Meirovitz's brief asserts Meirovitz’s counsel this court should remand the case to the dis argument during conceded ques- oral that the "questionable trict court to reconsider tion of whether the properly finding organizer оf an role under [U.S.S.G. organizer-role enhancement Meirovitz, 3B1.1(a).” however, § ] did not properly Meirovitz is not before this court. explain opening why in his brief this issue can be proceeding. addressed in this collateral only 4. His possession other conviction wаs for States, 704, See Anderson v. United 25 F.3d LSD, cocaine, methamphetamine (8th Cir.1994) ("A petitioner simply can eligible 1979 and was not for career offender not raise a nonjurisdic nonconstitutional or 4B1.2(2). status. See U.S.S.G. tional issue in a 2255 motion if the issue could have been appeal raised on direct other career of was “harsher than complete in a fence inherently results which feet significantly more violent Hill v. United fenders with justice.” miscarriage of 82 S.Ct. States v. Meir backgrounds....”6 United 368 U.S. (8th Cir.1990). (1962); States ovitz, also United see L.Ed.2d 178, 185, Addonizio, Jоhnson, If, Meirovitz should under (1979). The statuto- placed category 60 L.Ed.2d in the same have been be the cannot offenders, sentence ry-maximum career he deserves other violent not a miscar- whether or “Spec touchstone resentenced. oрportunity be sentencing. at justice has occurred riage of today might ulation that the district court it held as such when The Seventh Circuit enough to sentence is not impose the same § 2255 to a defendant granted relief that, at the time of his the fact overcome then-mandatory sentencing guide- whose was sen sentencing, [Meirovitz] initial by approximate- increased range was of a non upon equivalent based tenced to an erroneous ly years five due Narvaez, 674 F.3d at existent offense.” Narvaez v. United dеsignation. including a defendant as Wrongfully (7th Cir.2011). 621, 629-30 sentencing him to a career offender and *5 from this distinguishable is Narvaez While is prison based on that association life surround- underlying principles jus type “complete equal apply status ing career offender deserving tice” of 2255 relief. (noting n. 14 “to the at 630
forces.5 See id. I finality, quote concerns over As to the opinion this a tension between extent Judge views of Hill: the well-written reasoning in Bear Sun Eighth Circuit’s finality I that without there recognize exists, disagree with our respectfully we justice. equally But it is true can be no Circuit.”). Eighth on the colleagues that, finality nothing justice, without for a status is reserved offender Career than a bureaucratic achievement. more violent, and repeat, special subgroup Fi- on to the next. Case closеd. Move Id. at 629. Clas- defendants. incorrigible justice is achieved when nality with belonging an individual sifying meaningful had a imprisoned has as a malefactor category “brand[s them] judicial deter- for a reliable opportunity than greater punishment far deserving of claim. mination of his out for an otherwise usually meted F.3d v. Gilbert commit- individual who similarly situated (11th Cir.2011) J., (Hill, dissenting), Id. In Meirovitz’s the same offense.” ted (Mel- Bear, at 711 quoted Sun panel noted his sen- appeal, the original scheme,” sentencing opined below on a Circuit has 5. The Seventh maximum). range un- guideline remained where the case now-advisory changed under the sentenc- Bear, Wyatt, v. court sen- ing regime. See United States in Sun the district 6. Even Cir.2012) ("Narvaez to the bottom of tenced the defendant (30 years') mandatory guidelines im- guideline months' sentenced —360 judge "com- prisonment at a time Wyatt was sentenced scheme and —after young a man this guide- that it had 'not seen was aware the mented when the district court history type in the of this advisory have a criminal and so would be considered bench,’ opined years thаt I’ve sat on the precise yet scenar- have not considered Narvaez, ("the a career crimi- io.”); Bear was 'more than that Sun F.3d at 630 nal,’ having nothing entire life other ‘done his illegally Mr. Nar- increased status proper- people their steal years [and] than attack approximately five be- vaez’s sentence ” Bear, ty.’ 644 F.3d at n. [then-mandatory] Sun by yond that authorized I J., dissenting). working If were on a loy, slate, provide I would Meirovitz a
clean judicial
meaningful opportunity for review remanding to the the case first
to determine in the instance whether expressed in Johnson applies
the rule manslaughter
Minnesota’s statute.
LABORERS DISTRICT COUNCIL OF DAKOTA,
MINNESOTA AND NORTH Respondent,
Petitioner/Cross
NATIONAL LABOR RELATIONS
BOARD, Respondent/Cross
Petitioner. 11-2848,
Nos. 11-3115.
United States of Appeals, Court
Eighth Circuit. May
Submitted: Aug.
Filed: