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Order
Pending before the court is the Plaintiff’s Motion for Entry of Judgment By Default Against Defendant John Borich [Docket 9]. A review of the motion and of the court’s file indicates that the defendant, John Borich, has failed to answer or otherwise defend this action in a timely manner. Accordingly, the court DIRECTS the Clerk to enter a default, pursuant to Fed. R. Civ. P. 55(a), against Mr. Borich.
Order
Pending before the court is the plaintiff’s Motion to Amend the Second Amended Complaint and to Remand. [Docket 51]. For the reasons stated below, the court GRANTS the plaintiff’s motion to amend and to remand [Docket 51] and REMANDS this case Circuit Court of Kanawha County, West Virginia. All other pending motions in this case are DENIED AS MOOT.
Memorandum Opinion
The defendant, William H. Johnson, pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which prohibit the possession of a firearm by a convicted felon. On August 12, 2004, the defendant appeared before the court for sentencing. Pursuant to United States Sentencing Guidelines (the Guidelines), the base offense level for this crime is 14. U.S. Sentencing Guidelines Manual § 2K2.1(a)(6)(A) (2003). The pre-sentence report recommended a two-point enhancement because the defendant had stolen the gun involved in the offense from his brother’s home. Id. at § 2K2.1(b)(4). The total offense level recommended by the probation officer was therefore 16. After a three-point reduction for acceptance of responsibility, the offense level was 13. Id. at § 3E1.1(a). The probation officer attributed four criminal history points to the defendant, placing him in criminal history category III. Id. at §5A. Based on a total offense level of 13 and a criminal history category of III, the recommended sentencing range was 18-24 months. Id.
Order
Pending before the court are the United States’ Motion to File Out of Time [Docket 58] and six motions to file briefs in excess of page limitations [Docket 48, 53, 59, 90, 94, and 97]. For reasons appearing to the court, these motions are hereby GRANTED.
Order
Pending before the court are the plaintiffs’ Motion to Clarify the Court’s August 13, 2004, Order [Docket 113], the Motion of Consol of Kentucky, Inc. to Intervene as Defendant [Docket 114], the Intervening Mining Associations’ Motion for Reconsideration of the Court’s August 13, 2004, Order [Docket 116], and Green Valley Coal Company’s Motion for Reconsideration of the Order of August 13, 2004 [Docket 118]. For the reasons stated below, all pending motions [Dockets 113, 114, 116, 118] are DENIED.
Order
Before the Court is Plaintiff’s motion to remand (doc. no. 7). The Court finds it lacks subject matter jurisdiction over this action. Plaintiff’s motion is therefore GRANTED and this case is REMANDED to the Circuit Court of Roane County, West Virginia.
Order
The United States Supreme Court’s decision in Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), has given rise to inconsistent sentencing practices in federal courts. The Circuit Courts that have addressed the issue are split as to whether Blakely applies to the United States Sentencing Guidelines. U.S. v. Harris, 03-5256 (6th Cir. July 14, 2004); U.S. v. Pineiro, No. 03-30437 (5th Cir. July 12, 2004); U.S. v. Booker, No-CR-026-S-01 (7th Cir. July 9, 2004). The Second Circuit has certified the question to the United States Supreme Court. U.S. v. Penaranda, No. 03-1055(L) & U.S. v. Rojas, No. 03-1062(L) (2d Cir. July 12, 2004). Further, those courts finding that Blakely does apply to the Guidelines have taken different approaches to sentencing postBlakely. See, e.g., U.S. v. Croxford, 2:02-cr-00302PGC (D. Utah June 29, 2004); U.S. v. Shamblin, 2004 WL 1468561 (S.D. W. Va. June 20, 2004). This court, and several other district courts, have concluded that the Guidelines remain the law in sentencing matters to the extent that they can be applied in a manner consistent with Blakely . See, e.g., U.S. v. Shamblin, 2004 WL 1468561; U.S. v. Toro, 3:02-cr-362 (D. Conn. July 8, 2004); U.S. v. Montgomery, 2:03-cr-801 (D. Utah July 8, 2001). Some district courts, however, have found that Blakely renders the Guideline scheme unconstitutional in its entirety. See, e.g., U.S. v. Medas, 2004 Dist. LEXIS 12135 (July 1, 2004); U.S. v. Croxford, 2:02-cr-00302PGC.
Memorandum Opinion and Injunctive Order
Pending before the court are the plaintiffs’ Motion for a Preliminary Injunction and/or Summary Judgment on All of Their Claims [Docket 43], the Intervening Mining Associations’ Motion to Dismiss [Docket 21] and Cross-Motion for Summary Judgment [Docket 91], and the United States’ Motion for Judgment on the Pleadings [Docket 30] and Cross-Motion for Summary Judgment [Docket 95]. For the reasons stated below, the court FINDS that this case is ripe for adjudication, that the plaintiffs have standing to challenge Nationwide Permit 21, and that all necessary parties are joined in this lawsuit. The court further FINDS that Nationwide Permit 21 does not comply with the plain language, structure, and legislative history of the Clean Water Act. Section 404(e) of the Clean Water Act authorizes the Corps to issue nationwide permits only for those activities determined before issuance to have minimal environmental impact. Nationwide Permit 21 requires a case-by-case, post hoc determination of minimal environmental impact which runs afoul of that section. Accordingly, the plaintiffs’ motion [Docket 43] is hereby GRANTED, the Intervening Mining Associations’ motions [Docket 21, 91] are DENIED, and the United States’ motions [Docket 30, 95] are DENIED.
Memorandum Opinion and Order
A criminal defense attorney seeking to test the limits of the United States Supreme Court’s days-old decision in Blakely v. Washington, 2004 WL 1402697 (June 24, 2004), could not have conjured a more fitting defendant than Ronald Shamblin. Shamblin, who had previously pleaded guilty to Conspiracy to Manufacture Methamphetamine in violation of 21 U.S.C. § 846, was sentenced to 240 months in prison on June 21, 2004. The calculation of Shamblin’s sentence included so much offense conduct, so much relevant conduct, and so many enhancements that Shamblin’s sentencing range under the United States Sentencing Guidelines was, literally, off the chart. The guidelines indicated that Shamblin should receive a sentence of life imprisonment. Because no amount of methamphetamine was charged in his indictment, however, Shamblin’s sentence was limited, by the Fourth Circuit’s interpretation of Apprendi v. New Jersey, 530 U.S. 466 (2000), to the maximum sentence under the relevant statute.1 Now, on the last day that I may review his sentence for clear error under Fed. R. Crim. P. 35(a), Shamblin has benefitted again from the Supreme Court’s Apprendi decision, as further explained in Blakely. Yesterday, the defendant filed a Motion to Correct Unlawful Sentencing Within Seven Days [Docket 69]. For the reasons stated below, I have GRANTED the pending motion [Docket 69], and RESENTENCED Shamblin in accordance with Apprendi and Blakely.
Memorandum Opinion and Order
Pending before the court is the defendant’s Motion to Dismiss the Information and the government’s Motion to Transfer Proceedings Against Juvenile to Adult Status. Because the court lacks jurisdiction over this case, the Motion to Dismiss the Information is GRANTED and the Motion to Transfer Proceedings Against Juvenile to Adult Status is DENIED AS MOOT.