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USA v. Joshua Herman
18-3057
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Senior Judge James T. Moody.
Criminal. Majority led by Chief Judge Diane Wood denies en banc review, reverses and remands for resentencing of Joshua Herman on a charge of felon in possession of a firearm. Holds that the act of pointing a gun and ordering someone still, by itself, is not “physical restraint” under federal sentencing guidelines. Judges Joel Flaum and Michael Kanne dissent and would grant en banc review, and would find that the action of pointing a gun and ordering compliance is physical restraint. Judge William Bauer would affirm Herman’s 10-year sentence, with the physical restraint enhancement, for the reasons spelled out in Flaum’s dissent. Noting a now 5-4 circuit split on the conflicting views on the meaning of U.S.S.G. § 2B3.1(b)(4)(B), orders the Clerk of Court to send this opinion to the U.S. Sentencing Commission for its consideration.
Indiana Court of Appeals
Kirsten Kemp v. Robert E. Lee and Dartina James (mem. dec.)
18A-SC-2587
Small claims. Affirms Marion Small Claims Court’s award of damages to Dartina James and Robert E. Lee following Kirsten Kemp’s abandonment of a rented premises. Finds Kemp was not constructively evicted from the rented premises due to a malfunctioning toilet. Also finds the small claims court’s damage award was not erroneous.
Robert Burnett v. State of Indiana (mem. dec.)
19A-CR-130
Criminal. Affirms the revocation of Robert Burnett’s home detention and the imposition of his previously suspended sentence, to be served in the Department of Correction. Finds the state met its burden of proving by a preponderance of the evidence that Burnett had violated the terms of his home detention, so the Madison Circuit Court did not abuse its discretion by revoking his home detention.
Derek Heuring v. State of Indiana (mem. dec.)
19A-CR-140
Criminal. Affirms the denial of Derek Heuring’s motion to suppress evidence discovered during the execution of multiple search warrants, in which officers discovered drugs, paraphernalia and the GPS tracking device officers had previously placed on Heuring’s vehicle. Finds substantial evidence of probative value supports the Warrick Superior Court’s denial of Heuring’s moiton to suppress. Remands for proceedings.
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