1st Circuit Court of Appeals, October, 2007, Federal Case law

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Federal Courts - 1st Circuit Court of Appeals - October 26 - October 30, 2007

City of Fall River v. FERC, Nos. 06-1203 and 06-2146, 06-1204 and 06-2147, 06-1220, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 26, 2007, Decided
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Overview: Because the United States Coast Guard and the Department of the Interior had not completed their respective evaluations of some aspects of the natural gas terminal project, the appellate court declined to review the merits of the FERC's conditional project approval because it was not yet ripe for review under U.S. Const. art. III.

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Lopes v. Keisler, No. 07-1352, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 26, 2007, Decided
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Overview: An alien was subject to removal based on a conviction for an aggravated felony under 8 U.S.C.S. ? 1227(a)(2)(A)(iii), since the state-court record indicated that the alien was convicted of assault and, under state law, assault necessarily involved the use of physical force and was thus a crime of violence.

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Perry v. Wolaver, Nos. 06-2270, 06-2271, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 26, 2007, Decided
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Overview: District court properly excluded from the purchase price adjustment the cash and other assets to be retained by the sellers after the sale as assets of the companies for purposes of determining the net assets at closing because the buyers were purchasing the assets belonging to the companies, and the disputed assets belonged to the sellers.

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Johansen v. United States, No. 06-2037, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 29, 2007, Decided
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Overview: When the government ceased to have an interest in the property owner's residential property because the tax liabilities had been paid, the property owner's suit to quiet title to that property became moot since the only remedy to which she had been entitled under 28 U.S.C.S. ? 2410, was removal of the lien, and that removal was accomplished.

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Journal v. Keisler, No. 07-1109, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 29, 2007, Decided
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Overview: Alien did not qualify as a refugee under 8 U.S.C.S. ? 1101(a)(42) because he testified to only one incident in which he was struck on head and arms as result of his political activities, and family members' ability to relocate and live in Haiti safely and without harassment significantly undercut alien's contention that he would not be safe there.

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Ouk v. Keisler, No. 07-1413, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 29, 2007, Decided
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Overview: Denial of an alien's asylum claim was proper because of the circumscribed standard of review in 8 U.S.C.S. ? 1252(b)(4)(B). However, in applying 8 U.S.C.S. ? 1158(b)(1)(B)(iii), it was contradictory for the immigration judge to maintain, as to an individual testimonial element, that the alien's testimony was both credible and not plausible.

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United States v. Barnes, No. 06-2129, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 29, 2007, Decided
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Overview: Detective's knowledge was insufficient to endow him with the requisite reasonable suspicion to order a body cavity search since his testimony was completely lacking in any factual detail regarding the informant's tip. Accordingly, the district court's order suppressing the cocaine base seized from defendant was vacated and remanded.

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United States v. Codarcea, No. 06-2426, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 29, 2007, Decided
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Overview: Attributing the total amount of the loss to defendant, which resulted in the 12-level enhancement under U.S.S.G. ? 2B1.1(b)(1)(G) was proper where it was more likely than not that the total loss across all three periods was the result of one overarching conspiracy, and therefore the total loss was reasonably foreseeable to defendant.

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United States v. Milo, No. 06-2185, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 30, 2007, Decided
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Overview: When defendant pled to conspiracy to possess with intent to distribute and to distribute marijuana pursuant to 21 U.S.C.S. ??846, his sentence of time served (18 days), supervised release, and a fine, was vacated as, even given his complete remorse and cooperation with the Government, no adequate basis could be established for a near-zero sentence.

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