Smith v. Capital Cartage
United States Court of Appeals, Seventh Circuit
636 F.3d 636
Even if Smith had argued generally that the district court‘s decision was wrong, without identifying a particular error, we agree with the court‘s conclusion that he did not establish a prima facie case for either race or age discrimination. Although Smith maintained that Cooley and Perkins were comparable employees, they were not similarly situated because, even if Smith had been promoted to driver in 2005, both Cooley and Perkins worked full time and neither had attendance problems like Smith. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002) (noting that, to be similarly situated, litigant must show that someone is “directly comparable to him in all material respects“). Moreover, Smith‘s documented attendance problems and unreliability meant that he was not meeting Capital Cartage‘s legitimate expectations. See Contreras v. Suncast Corp., 237 F.3d 756, 761 (7th Cir.2001). As for the switched assignment and the delay in receiving a new jacket, these did not constitute adverse employment actions because the job switch actually benefitted Smith, who received more hours and more pay as a result, and the jacket was a trivial matter. See O‘Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir.2004). Finally, we note that Smith has accused Hermanson of making a racial slur in her affidavit in support of the company‘s motion for summary judgment. Hermanson, in describing one of Smith‘s absences, commented that when he had called in sick, she believed his speech was slurred and she “could tell that he was under the influence of alcohol.” Nothing about her statement, however, suggests discrimination, nor does it have anything to do with the timeline of events involved in this litigation.
Accordingly, we AFFIRM the district court‘s judgment.
UNITED STATES of America, Plaintiff-Appellee, v. Jamie ROGERS, Defendant-Appellant.
No. 10-2849.
United States Court of Appeals, Seventh Circuit.
Submitted May 25, 2011. Decided June 1, 2011.
Michael Scudder, Skadden, Arps, Slate, Meagher & Flom, LLP, Chicago, IL, for Defendant-Appellant.
Before RICHARD A. POSNER, Circuit Judge, JOHN L. COFFEY, Circuit Judge and JOEL M. FLAUM, Circuit Judge.
ORDER
A jury found Jamie Rogers guilty of possessing a firearm as a felon,
Responding to a dispatch reporting possible drug dealing, two Rockford, Illinois, police officers noticed Rogers walking away from the suspected crime scene. Although the dispatcher had not given a physical description of a suspect, it was late at night, the April weather was cold and rainy, and Rogers was the only person they saw out in that high-crime neighborhood. The officers parked their car just ahead of Rogers, approached him on foot, and asked if they could question him. Rogers paused, turned toward them, and put his hands in his pants pockets. The officers instructed him to remove his hands, and when he did, a plastic baggie containing what appeared to be drugs fell to the ground. (Later testing confirmed that the baggie held marijuana and crack cocaine, but Rogers was never charged with a drug crime). One of the officers tried to grab Rogers by the arm, but he pulled away and ran. The two officers gave chase, and one of them saw Rogers throw a “dark black object” that looked to be a gun. Rogers was caught and arrested, and his loaded handgun was recovered just where he tossed it. And next to the gun was the hat that had fallen off Rogers during the chase.
In his Anders submission counsel first considers whether Rogers could argue that the district court erred in denying his motion to suppress the gun and the drugs. That motion was premised on the theory that the officers illegally seized Rogers during their initial contact with him, and thus tainted the discovery of the contraband. But the Fourth Amendment is not implicated when police officers simply approach a person in public to ask a few questions. United States v. Drayton, 536 U.S. 194, 200-01 (2002); United States v. Tyler, 512 F.3d 405, 409 (7th Cir.2008); United States v. Broomfield, 417 F.3d 654, 655-56 (7th Cir.2005). Not that it would mat
Next, counsel evaluates whether to claim that the district court erred by giving the prosecutor leeway to impeach Rogers with his prior felony convictions for witness tampering and violating an order of protection. In a pretrial motion in limine, Rogers argued that, under
Counsel also assesses the prospect of raising a claim that the prosecutor‘s closing argument deprived Rogers of a fair trial. To evaluate a claim of prosecutorial misconduct, we would first determine whether the comments were improper, and, if so, whether they prejudiced Rogers by depriving him of due process. Darden v. Wainwright, 477 U.S. 168, 180-81 (1986); United States v. Washington, 417 F.3d 780, 786 (7th Cir.2005). Improper comments during closing argument, however, “rarely rise to the level of reversible error.” United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009) (quoting United States v. Wilson, 985 F.2d 348, 353 (7th Cir. 1993)).
Counsel identifies two remarks and evaluates whether they could have undermined the integrity of the proceedings, but concludes that both were invited by defense counsel‘s attacks on the police investigation and neither was so prejudicial as to deny Rogers a fair trial. During defense counsel‘s closing argument, he repeatedly criticized the Rockford police for conducting a sloppy and inadequate investigation, emphasizing their failure to order DNA testing. In rebuttal, the prosecutor pointed out that Rogers also could have introduced DNA analysis, commended the police officers’ professionalism, and praised their work in apprehending Rogers. The government is allowed to defend its witnesses, see United States v. Nunez, 532 F.3d 645, 654 (7th Cir.2008); United States v. Johnson, 437 F.3d 665, 673-74 (7th Cir. 2006), and the prosecutor‘s comments were fair responses to defense counsel‘s attacks, see United States v. Young, 470 U.S. 1, 11-13 (1985); United States v. Wimbley, 553 F.3d 455, 461 (7th Cir.2009); United States v. Paul, 175 F.3d 906, 912 (11th Cir.1999); United States v. Palmer, 37 F.3d 1080, 1086 (5th Cir.1994). Thus, it would be frivolous to challenge the remarks.
Next, counsel examines whether Rogers could argue that his conviction is not supported by sufficient evidence. In assessing its sufficiency, we would view the evidence in the light most favorable to the government and uphold the conviction unless no rational jury could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Morris, 349 F.3d 1009, 1013 (7th Cir.2003). To convict under
We agree with counsel that the evidence was more than sufficient for a rational jury to find, beyond a reasonable doubt, that Rogers possessed the firearm. One of the officers involved in the chase testified that, when Rogers was approximately 10 to 15 feet ahead of him, he saw Rogers‘s hat come off and then saw him drop a “dark black object,” which made “a loud clinking noise” when it hit the ground, like a metal object would. The officer stated that when he retraced Rogers‘s route to the place he had seen the object discarded, he found a black revolver on the ground near Rogers‘s flyaway hat and that, despite the rain, the gun was relatively dry. The resident who owned the property where the gun was found also testified that she did not see a gun there when she had walked her dog about an hour before the police chase. These eyewitness accounts provided sufficient evidence to support a finding of guilt. See United States v. Rodriguez, 457 F.3d 109, 119 (1st Cir.2006); United States v. Taylor, 417 F.3d 1176, 1182 (11th Cir.2005). Although the government did not link the gun to Rogers with forensic evidence like a fingerprint or DNA match, the jury was entitled to credit the testimony of these two witnesses, and we would not second-guess the jury‘s finding of guilt. See United States v. Hampton, 585 F.3d 1033, 1041-42 (7th Cir.2009).
Finally, counsel considers whether Rogers could challenge the reasonableness of his sentence. First, counsel questions whether the district court clearly erred by applying a 2-level increase to Rogers‘s offense level for reckless endangerment during flight. See
Second, counsel considers whether Rogers could argue that the district court abused its discretion in sentencing him to the statutory maximum of 120 months, which is 15 months above the high end of his guidelines range. We would not presume an above-range sentence to be unreasonable, see United States v. Jackson, 547 F.3d 786, 792 (7th Cir.2008), and we would be more likely to find this sentence reasonable if the district court based its decision on factors “sufficiently particularized to the individual circumstances of the case,” United States v. Wachowiak, 496 F.3d 744, 750 (7th Cir.2007). Here, the district court correctly calculated a total offense level of 22 and concluded that Rogers‘s lengthy criminal history put him in the highest criminal history category of VI. The resulting imprisonment range of 84 to 105 months, the court decided, did not adequately address Rogers‘s extensive criminal history. Rogers, at 34 years old, already had six convictions for felonies—most involving violence or weapons—including second-degree murder, aggravated battery, gun possession, and violating an
We therefore GRANT the motion to withdraw and DISMISS Rogers‘s appeal.
UNITED STATES of America, Plaintiff-Appellee, v. John JACQUES, Defendant-Appellant.
No. 10-2888.
United States Court of Appeals, Seventh Circuit.
Submitted June 1, 2011.* Decided June 2, 2011.
Paul W. Connell, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before FRANK H. EASTERBROOK, Chief Judge, ILANA DIAMOND ROVNER, Circuit Judge and JOHN DANIEL TINDER, Circuit Judge.
ORDER
After pleading guilty to one count of possessing child pornography, see
Jacques appeals, but targets only the district court‘s denial of his motion to withdraw his plea. His argument is difficult to discern, but appears to contend that the court erred in accepting his plea as knowing and voluntary. He maintains that his
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See