United States v. Villafuerte, No. 06-1292 (2d Cir. 2007)

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06-1292-cr United States v. Villafuerte 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2006 5 (Argued: May 23, 2007 6 Decided: September 21, 2007) Docket No. 06-1292-cr 7 -------------------------------------------------------x 8 UNITED STATES OF AMERICA, 9 Appellee, 10 -- v. -- 11 JORGE VILLAFUERTE, also known as George, 12 Defendant-Appellant. 13 -------------------------------------------------------x 14 15 16 B e f o r e : 17 WALKER and CABRANES, Circuit Judges, and GOLDBERG, Judge.* Appeal from a judgment of the United States District Court 18 for the Northern District of New York (Gary L. Sharpe, Judge), 19 sentencing the defendant-appellant to a 70-month term of 20 imprisonment. 21 AFFIRMED. 22 23 MOLLY CORBETT, Assistant Federal Public Defender (Alexander Bunin, * The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by designation. -1- 1 2 3 4 5 6 Federal Public Defender for the Northern District of New York, George E. Baird, Assistant Federal Public Defender, on the brief), Albany, New York, for DefendantAppellant. 7 8 9 10 11 12 13 14 BRENDA K. SANNES, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney for the Northern District of New York, Richard S. Hartunian, Assistant United States Attorney, on the brief), Syracuse, New York, for Appellee. 15 16 JOHN M. WALKER, JR., Circuit Judge: This case requires us to determine the consequences of a 17 criminal defendant s failure to object to a district court s 18 method of discharging some of its duties under 18 U.S.C. § 3553. 19 Defendant-appellant Jorge Villafuerte appeals from a March 8, 20 2006 judgment of the district court for the Northern District of 21 New York (Gary L. Sharpe, Judge), arguing that the district court 22 erred by (1) concluding that the sentence recommended by the 23 United States Sentencing Guidelines ( Guidelines ) accounted for 24 the factors under § 3553(a) and (2) failing to state adequately 25 its reasons for imposing the chosen sentence, as required by § 26 3553(c). 27 Villafuerte failed to object below, both challenges are subject 28 to plain error analysis, and neither alleged error is plain. 29 30 31 We need not decide whether there was any error; because BACKGROUND Villafuerte was indicted with five co-defendants for conspiring to possess with intent to distribute and conspiring to -2- 1 distribute over five hundred grams of cocaine in violation of 21 2 U.S.C. §§ 841(a)(1) and 846. 3 plea agreement and, five months later, was sentenced. 4 Villafuerte pled guilty without a The revised Presentence Report ( PSR ) calculated a 5 sentencing range under the Guidelines of 70 to 87 months, which 6 the parties did not contest. 7 Guidelines sentence based upon several circumstances: His strong 8 family ties, his drug usage since an early age, his remorse for 9 his crime and its effect on his family, the fact that he had been Villafuerte argued for a below- 10 gainfully employed for most of his adult life, and his lack of 11 prior convictions. 12 recommended sentence was greater than necessary and did not 13 further the purposes of sentencing. Villafuerte also contended that the PSR s 14 Unpersuaded, the district court adopted the PSR s 15 calculations and proposed sentence range and sentenced 16 Villafuerte to a 70-month term of imprisonment, the bottom of the 17 Guidelines range. 18 usage, finding that although Villafuerte was a drug abuser, his 19 crime was not drug-use induced but rather money-induced, as 20 shown by his purchase of a house in Texas with some of the 21 profits. 22 family situation but found that the effect of conviction on them 23 was irrelevant because it was the natural consequence of 24 Villafuerte s decision to commit the crime. 25 said: It rejected his argument with respect to drug The district court sympathized with Villafuerte s -3- Finally, the court 1 2 3 4 5 6 7 8 In this case, I find that the advisory guidelines take into account all of the 3553(a) factors and the other factors, in terms of determining what s an appropriate sentence, and I believe that the bottom of the advisory guideline range is the minimum, that is a fair sentence, in terms of the conduct that s involved here. Villafuerte did not object to this statement or his sentence 9 during the hearing. He now appeals his sentence. DISCUSSION 10 11 We review a district court s sentencing decisions for both 12 substantive and procedural reasonableness. United States v. 13 Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006). 14 review is similar to review for abuse of discretion and may 15 require reversal when the district court s decision cannot be 16 located within the range of permissible decisions or is based on 17 a legal error or clearly erroneous factual finding. 18 States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007) (internal 19 quotation marks omitted). 20 the length of the sentence imposed in light of the factors 21 enumerated under 18 U.S.C. § 3553(a). 22 132. 23 district court employs in arriving at a sentence. 24 v. Canova, 485 F.3d 674, 679 (2d Cir. 2007). 25 procedurally reasonable sentence, see United States v. 26 Giovanelli, 464 F.3d 346, 355 (2d Cir. 2006) (per curiam); 27 Rattoballi, 452 F.3d at 131, a district court must (1) normally 28 determine the applicable Guidelines range, (2) consider the Reasonableness United Substantive reasonableness involves Rattoballi, 452 F.3d at Procedural reasonableness concerns the procedures a -4- United States To impose a 1 Guidelines along with the other factors under § 3553(a), and (3) 2 determine whether to impose a Guidelines sentence or a non- 3 Guidelines sentence, see United States v. Crosby, 397 F.3d 103, 4 111-13 (2d Cir. 2005); see also United States v. Fernandez, 443 5 F.3d 19, 26 (2d Cir. 2006). 6 We review the district court s interpretation of the 7 Guidelines de novo and its findings of fact for clear error. 8 Rattoballi, 452 F.3d at 131. 9 10 I. Consideration of the 18 U.S.C. § 3553(a) Factors Villafuerte argues, for the first time on appeal, that his 11 sentence is unreasonable because the district court, in 12 concluding that a sentence under the Guidelines accounted for all 13 the § 3553(a) factors in his case, failed to consider the § 14 3553(a) factors. 15 to consider: 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 18 U.S.C. § 3553(a) requires the district court (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established [and recommended by the Guidelines] . . . ; (5) any pertinent policy statement . . . issued by the Sentencing Commission . . . ; -5- 1 2 3 4 5 (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 6 We conclude that Villafuerte s failure to object below is fatal 7 to this claim of error. 8 9 When a party properly objects to a sentencing error in the district court, we review for harmless error. See United States 10 v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (per curiam); see also 11 Fed. R. Crim. P. 52(a). 12 trial court because of oversight, including sentencing issues, 13 are normally deemed forfeited on appeal unless they meet our 14 standard for plain error. 15 23 (2d Cir. 1993); see also Fed. R. Crim. P. 52(b); United States 16 v. Yu-Leung, 51 F.3d 1116, 1121-22 (2d Cir. 1995) (distinguishing 17 forfeiture from waiver). 18 may sometimes review sentencing issues without full plain error 19 analysis despite lack of objection at trial . . . [although] 20 such consideration is not assured. 21 F.2d 88, 90 (2d Cir. 1991); see also United States v. Keigue, 318 22 F.3d 437, 441 (2d Cir. 2003) (noting the two types of review for 23 unraised sentencing errors); United States v. Sofsky, 287 F.3d 24 122, 125 (2d Cir. 2002). 25 By contrast, issues not raised in the United States v. Keppler, 2 F.3d 21, We have long stated, however, that we United States v. Baez, 944 When a defendant does not object to a district court s 26 alleged failure to properly consider all of the § 3553(a) 27 factors, it is unclear under our prior case law whether we review -6- 1 for plain error or under a less rigorous standard.1 2 States v. Pereira, 465 F.3d 515, 520 (2d Cir. 2006). 3 we applied plain error analysis to this sort of error without 4 providing any rationale for the choice. 5 Carter, 489 F.3d 528, 537 (2d Cir. 2007). 6 we ultimately held that there was no error at all and applied 7 none of the other requirements of plain error, see id. at 540-41, 8 arguably rendering its decision to review for plain error obiter 9 dictum. See United Recently, See United States v. In that case, however, Regardless of whether Carter prevents us from applying a 10 less rigorous standard, we now expressly hold that rigorous plain 11 error analysis is appropriate for such unpreserved errors. 12 Vacatur for sentencing error does not always come at the 13 same cost as vacatur for trial error, in part because noticing 14 unobjected to errors that occur at trial precipitates an entire 15 new trial that could have been avoided by a timely objection, 16 whereas correcting a sentencing error results in, at most, only a 17 remand for resentencing. 18 United States v. Williams, 399 F.3d 450, 455-57 (2d Cir. 2005) 19 (comparing the costs and effects of correcting unpreserved trial 20 errors with correcting unpreserved sentencing errors). 1 Sofsky, 287 F.3d at 125; see also This cost Our case law indicates that a less rigorous standard may not require strict compliance with all the requirements of plain error, see, e.g., United States v. Simmons, 343 F.3d 72, 80 (2d Cir. 2003), or may even allow relief due solely to prejudicial error, see, e.g., United States v. Goffi 446 F.3d 319, 321 (2d Cir. 2006) (dictum). Because we hold that full plain error analysis applies to the types of claims at issue, we need not define the precise content of a less rigorous standard. -7- 1 differential motivated us in Crosby to mandate limited remands to 2 dispose of unpreserved Booker procedural errors in direct appeals 3 of pre-Booker sentences. 4 reasons with respect to sentencing issues in general, we have 5 been more likely to avoid the full rigors of plain error analysis 6 when the sentence was imposed without giving the appellant - 7 whether the government or the defendant - prior notice of the 8 aspect of the sentence challenged on appeal. 9 F.3d at 125-26; see also United States v. Gilmore, 471 F.3d 64, See 397 F.3d at 116-17. For similar See Sofsky, 287 10 66 (2d Cir. 2006) (stating, without deciding, that these 11 circumstances might be met for the error at issue); Simmons, 343 12 F.3d at 80. 13 lack of objection where the sentencing issue was not 14 particularly novel or complex, see Keppler, 2 F.3d at 24, or 15 where the case had already been remanded for careful 16 reconsideration of the sentence, see Baez, 944 F.2d at 90. 17 On the other hand, we have declined to overlook a With this in mind, we hold that plain error analysis should 18 apply to the sort of error at issue here. Because we have 19 unambiguously required consideration of the § 3553(a) factors, in 20 addition to the now-advisory Guidelines, in every criminal 21 sentencing proceeding since we issued Crosby shortly after the 22 Supreme Court decided Booker, see Crosby, 397 F.3d at 115, we 23 cannot view this class of issues as novel. 24 was sentenced more than a year after our landmark decision in 25 Crosby, his counsel was plainly aware of the district court s -8- Because Villafuerte 1 obligation to consider the § 3553(a) factors. Although we have 2 noted that proper consideration of those factors is not a 3 cut-and-dried process of factfinding and calculation, Fernandez, 4 443 F.3d at 29, raising an objection to the failure to do so in 5 order to alert the district court to the problem is neither 6 difficult nor onerous. 7 court to a potential problem at the trial level and facilitates 8 its remediation at little cost to the parties, avoiding the 9 unnecessary expenditure of judicial time and energy in appeal and This requirement alerts the district 10 remand. 11 our sister circuits. 12 F.3d 1024, 1029, 1034-35 (6th Cir. 2007); United States v. 13 Traxler, 477 F.3d 1243, 1250 (10th Cir. 2007); United States v. 14 Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (dealing specifically 15 with the parsimony clause of § 3553(a)); United States v. Knows 16 His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006). 17 This conclusion, moreover, is consistent with several of See, e.g., United States v. Eversole, 487 To establish plain error, the defendant must establish (1) 18 error (2) that is plain and (3) affects substantial rights. 19 United States v. Banks, 464 F.3d 184, 189 (2d Cir. 2006); United 20 States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002); see also United 21 States v. Olano, 507 U.S. 725, 732 (1993). 22 these initial requirements, we then must consider whether to 23 exercise our discretion to correct it, which is appropriate only 24 if the error seriously affected the fairness, integrity, or 25 public reputation of the judicial proceedings. -9- If the error meets Doe, 297 F.3d at 1 82. 2 reversal for plain error should be used sparingly, solely in 3 those circumstances in which a miscarriage of justice would 4 otherwise result. 5 n.14 (1982). 6 We must also keep in mind the Supreme Court s guidance that United States v. Frady, 456 U.S. 152, 163 To begin with, there is a question here of whether the 7 district court committed any error at all. In recently holding 8 that courts of appeals may presume that a properly calculated, 9 within-Guidelines sentence is reasonable, the Supreme Court 10 stated that the Guidelines seek to embody the § 3553(a) 11 considerations, both in principle and in practice . . . [and] it 12 is fair to assume that the Guidelines, insofar as practicable, 13 reflect a rough approximation of sentences that might achieve § 14 3553(a) s objectives. 15 2464-65 (2007); see also Rattoballi, 452 F.3d at 133 ( [T]he 16 Sentencing Commission is an expert agency whose statutory charge 17 mirrors the § 3553(a) factors that the district courts are 18 required to consider. ). 19 sentencing judge s decision to place special weight on the 20 recommended guideline[s] range will often be appropriate, because 21 the Sentencing Guidelines reflect the considered judgment of the 22 Sentencing Commission, are the only integration of the multiple 23 [§ 3553(a)] factors and, with important exceptions, . . . were 24 based upon the actual sentences of many judges. 25 v. Capanelli, 479 F.3d 163, 165 (2d Cir. 2007) (per curiam) Rita v. United States, 127 S. Ct. 2456, Similarly, we have held that a -10- United States 1 (citations and internal quotation marks omitted) (alteration in 2 original). 3 within-Guidelines sentence based upon its conclusion that the 4 Guidelines account for the § 3553(a) factors in that particular 5 case does not necessarily constitute error. 6 need not decide whether the district court erred here because any 7 possible error is not plain. 8 9 Consequently, a district court s imposition of a In any event, we To be plain, the error must be clear or obvious, Olano, 507 U.S. at 734, at the time of appellate review, United States v. 10 Stewart, 433 F.3d 273, 290 (2d Cir. 2006). 11 threshold is high enough that the Supreme Court has stated that 12 the error must be so plain that the trial judge and prosecutor 13 were derelict in countenancing it, even absent the defendant s 14 timely assistance in detecting it. 15 also United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001) 16 (en banc). 17 In fact, the Frady, 456 U.S. at 163; see Even if the district court erred in concluding that the 18 Guidelines accounted for the § 3553(a) factors in this case, we 19 cannot say that the error is plain. 20 sentencing, we said that the Guidelines may serve as a sentencing 21 court s benchmark or a point of reference or departure. 22 States v. Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005). 23 is not obvious that the district court used the Guidelines range 24 as anything other than a benchmark here. 25 sentencing hearing clearly show that it knew that the Guidelines -11- Before Villafuerte s United And it Its statements at the 1 were only advisory and that it had to consider, among other 2 things, the § 3553(a) factors. 3 Guidelines [i]n this case . . . take into account all of the 4 3553(a) factors and other factors and that the advisory 5 guideline range is the minimum, that is a fair sentence, in terms 6 of the conduct that s involved here. 7 Guidelines as a starting point and finding that Villafuerte s 8 several § 3553(a) arguments did not merit deviation,2 any error, 9 assuming there was one, was not obvious. It also made clear the advisory In considering the 10 II. Statement of Reasons Under 18 U.S.C. § 3553(c) 11 Villafuerte next argues that the district court failed to 12 satisfy its obligation under 18 U.S.C. § 3553(c) to give the 13 reasons for imposing its chosen sentence. 14 provides in relevant part: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 3553(c) The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence-(1) is of the kind, and within the range, described in subsection (a)(4) and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or (2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and commitment . . . . 2 The record further shows that the district court considered the gravity of Villafuerte s § 3553(a) arguments: It recommended that he participate in a drug treatment program in prison and that he be placed in a facility as close to his family as possible, both of which Villafuerte requested. -12- 1 18 U.S.C. § 3553(c). 2 of (1) informing the defendant of the reasons for his sentence, 3 (2) permitting meaningful appellate review, (3) enabling the 4 public to learn why the defendant received a particular sentence, 5 and (4) guiding probation officers and prison officials in 6 developing a program to meet the defendant s needs. 7 States v. Molina, 356 F.3d 269, 277 (2d Cir. 2003) (citing S. 8 Rep. No. 98-225, at 79-80 (1983), as reprinted in 1984 9 U.S.C.C.A.N. 3182, 3262-63). 10 This requirement serves the important goals obligation post-Booker. 11 United The district court must meet this Crosby, 397 F.3d at 116. While this requirement does not require the district court 12 to issue a full opinion in every case, the length and level of 13 detail required varies depending upon the circumstances. 14 127 S. Ct. at 2468. 15 sentence, it may not need to offer a lengthy explanation, 16 particularly where the parties have not argued meaningfully 17 against a Guidelines sentence under § 3553(a) or for a departure. 18 Id. 19 the other hand, may require more discussion. 20 we do not insist that the district court address every argument 21 the defendant has made or discuss every § 3553(a) factor 22 individually. 23 any formulation a sentencing judge will be obliged to follow in 24 order to demonstrate discharge of the duty to consider the 25 Guidelines. Rita, When the district court imposes a Guidelines Non-frivolous arguments for a non-Guidelines sentence, on Fernandez, 443 F.3d at 30. Id. Nonetheless, We do not prescribe In other words, we will no more require robotic -13- 1 incantations by district judges than we did when the Guidelines 2 were mandatory. 3 we remain disinclined to require a more compelling accounting 4 the farther a sentence deviates from the advisory Guidelines 5 range. 3 6 F.3d at 134). 7 Crosby, 397 F.3d 103, 113 (2d Cir. 2005). And Sindima, 488 F.3d at 85-86 (quoting Rattoballi, 452 As with his previous claim of error, Villafuerte failed to 8 object below to the district court s allegedly insufficient 9 statement of reasons. And as with the previous claim of error, 10 it is unclear whether we should review this unpreserved claim for 11 plain error. 12 then decided not to address the issue because it was irrelevant 13 to their outcomes. 14 446 F.3d at 321; United States v. Lewis, 424 F.3d 239, 243 (2d 15 Cir. 2005). 16 without discussing why a sentencing error based on § 3553(c) is 17 not afforded an exception. 18 another decision held that failure to comply with § 3553(c), at 3 Several decisions have noted this uncertainty and See, e.g., Pereira, 465 F.3d at 520; Goffi, Another decision applied plain error analysis but See Molina, 356 F.3d at 277. And As a matter of practicality, however, our own ability to uphold a sentence as reasonable will be informed by the district court s statement of reasons (or lack thereof) for the sentence that it elects to impose. Rattoballi, 452 F.3d at 134. Accordingly, in the absence of a compelling accounting, we may be forced to vacate a sentence that deviates significantly from the advisory Guidelines range where the record is insufficient, on its own, to support the sentence as reasonable. Id. at 135; see also Pereira, 465 F.3d at 524. In its 2007 term, the Supreme Court will address this issue in Gall v. United States. Rita, 127 S. Ct. at 2467. -14- 1 least where there cannot be adequate appellate review, can render 2 a sentence imposed in violation of law, requiring vacatur. 3 United States v. Zackson, 6 F.3d 911, 923-24 (2d Cir. 1993). 4 See We now hold that plain error analysis in full rigor applies 5 to unpreserved claims that a district court failed to comply with 6 § 3553(c). 7 no novel or complex issues meriting greater consideration for its 8 violation: A defense counsel can quickly decide whether he is 9 dissatisfied with the district court s explanation and promptly Section 3553(c) s long-standing requirements present 10 object. See Keppler, 2 F.3d at 24; see also United States v. 11 Romero, - F.3d -, 2007 WL 1874231, at *4 (10th Cir. June 29, 12 2007) (noting that requiring objection for failure to follow a 13 well-known requirement such as § 3553(c) is not burdensome). 14 Further, the public interest underlying § 3553(c) is better 15 advanced when the district court is informed of its error 16 promptly at sentencing so that it can promptly correct it rather 17 than after a lengthy period of appellate review; to the extent 18 inadequately stated reasons for the sentence erode public trust 19 and understanding, correction earlier rather than later promotes 20 respect for the process. 21 district court is also better positioned to articulate its 22 reasons during the first sentencing hearing rather than long 23 after the fact. 24 objection creates incentives for the parties to help the district 25 court meet its obligations to the public and the parties. See Lewis, 424 F.3d at 247. The Requiring the error to be preserved by an -15- Cf. 1 United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) 2 (stating that one of the policy goals of Rule 52(b) is to 3 encourage timely objections and reduce wasteful reversals by 4 demanding strenuous exertion to get relief for unpreserved 5 error ). This holding is consistent with several of our sister 6 circuits. See, e.g., Romero, 2007 WL 1874231, at *4; Eversole, 7 487 F.3d at 1035 ( [C]ompliance with section 3553(c) . . . 8 generally will not amount to plain error because proof that it 9 affects the defendant s substantial rights is difficult. ); 10 United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007); 11 United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006). 12 Putting aside our doubts as to whether the district court 13 failed to comply with § 3553(c), any such error is certainly not 14 plain. 15 the Guidelines range, and such sentences often will not require 16 lengthy explanation. 17 district court did not blindly rest on the existence of the 18 Guidelines: It stated that the Guidelines already accounted for 19 the § 3553(a) factors in this case. 20 bottom of the Guidelines range was a fair sentence given 21 Villafuerte s conduct, which can be a proper basis for imposing a 22 particular sentence. 23 195 (2d Cir. 2006) ( [T]he judge is not prohibited from including 24 in [his] consideration [of the § 3553(a) factors] the judge s own 25 sense of what is a fair and just sentence under all the The district court imposed a sentence at the bottom of See Rita, 127 S. Ct. at 2468. And the Moreover, it found that the See United States v. Jones, 460 F.3d 191, -16- 1 circumstances. ). 2 thoughts on each of the § 3553(a) factors, it is clear that we 3 impose no such general requirement. 4 [W]e will not conclude that a district judge shirked [his] 5 obligation to consider the § 3553(a) factors simply because []he 6 did not discuss each one individually or did not expressly parse 7 or address every argument relating to those factors that the 8 defendant advanced. 9 While the district court did not recite its See Goffi, 446 F.3d at 321. Fernadez, 443 F.3d at 30. The district court was not mute at sentencing; it offered 10 reasons for rejecting Villafuerte s arguments for a non- 11 Guidelines sentence. 12 argument with respect to his drug abuse because the crime was 13 motivated by money rather than drug use. 14 it found his argument with respect to his family situation 15 irrelevant under the circumstances. 16 stated that it would not consider an earlier drug bust involving 17 Villafuerte in which marijuana was found because no conviction 18 resulted. 19 district court was derelict in discharging its § 3553(c) duty. 20 21 It stated that it rejected Villafuerte s It also explained that Finally, the district court Given this level of detail, it is not obvious that the CONCLUSION The judgment of the district court is AFFIRMED. -17-

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