Notably however, "when a defendant has been sentenced as a career offender a Court does not, in all cases,…. In consideration of the defendant's motion, the government's response, the defendant's reply thereto, and for the following reasons, the defendant's motion will be granted. An indictment was filed against the defendant on June 16, , charging him with conspiring to distribute and distributing fifty 50 or more grams of cocaine base.
The defendant then entered a plea of guilty on August 27, A sentencing hearing was held before me on August 19, At the hearing, I imposed a sentence of months of imprisonment and a term of supervised release of five years. Based on the presentence report and guidelines calculations, I found that, initially, the appropriate offense level was 34, with a criminal history category of VI. I therefore found that the defendant's applicable guideline range was to months of imprisonment. Additionally, however, the government filed a 5K1. In doing so, I found as follows:.
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So we find initially that the appropriate offense level is 34, and the criminal history category is Roman numeral six. Thus the applicable guidelines range is to months of imprisonment. Poindexter would be ineligible for probation. Supervised release of five years. A fine in the range of 17, to 4,, dollars. And a special assessment of dollars. The government has however presented a 5K1.
And we are taking that into consideration. I further stated:. Poindexter, you are designated under the guidelines here what they call a career criminal. That brings the guidelines up considerably.
As I mentioned before, the guidelines, without any 5K motion, they call for to months of imprisonment. That is because of the career criminal designation. D Richard K.
Swartling, Attorney at Law, Ronald R. Hassig, Attorney at Law for the Claimants.
Mclver and Wilma L. Mclver, husband and wife respectively, and Earnest R. White and J0 Ann White, husband and wife respectively, owners of adjoining parcels of land situate on the west side of State Route No. The respondent moved to dismiss the claims on the grounds that condemnation proceedings were the only proper remedy, and by its. As the same factual situation, except as to the respective amounts of damages, existed as to both of these claims, it was agreed that they could be, and they were, heard together by the Court.
The evidence in the cases consists of the testimony of the two male claimants and five former employees of the respondent, namely Berner Phillips, Lester Kennedy, Edward Loehr, Yonsell Eller and Victor Pyles.
The testimony as to the accumulated thickness of the asphalt and other paving material put in from time to time varied from eleven to twenty feet. He discovered the gumbo cropping out along the ditch adjacent to the railroad track along the back side of the property, and he concluded that with the natural drainage down. Sovick also testified as to the various phases of the damages done to the building of the claimants.
On the day of the hearing of this case the Court with counsel for the parties personally viewed the lands and houses involved in these claims, so that evidence of the claimants and respondent could be better understood. The testimony of Mr. Sovick is most credible and the gumbo may have been the underlying cause of the sliding characteristic of the land at that place and if the probability of a slide had not been forseeable for a long time before it occurred, we could accept Mr.
We are of the opinion that the respondent should have forseen the probability of the result which occurred and was negligent in not providing against such result and the claimants are entitled to recover such reasonable damages they have suffered. The evidence is not very satisfactory as to the values of the properties damaged.
These values include the. The Court is of the opinion that there is little left of value in the houses or improvements.
Having viewed the premises as well as considered the evidence, we can only estimate what would be reasonable amounts to allow the claimants as their damages. The Court is of the opinion to and does hereby award the claimants William C.
Award to William C. Award to Earnest R. Opinion issued November 8, JOHN A. BACON vs. D Claimant appeared in person, without counsel. Hall, Esq. The following factual situation, as revealed by the record, gives rise to this claim. His family remained in Wheeling until some time in. The administrative practice of allowing expenses for a period of thirty days in addition to paying the reasonable expenses incurred by an employee in moving his household furniture, effects, and immediate family as a result of the reassignment, apparently was not specifically authorized by the statute providing for payment of reasonable traveling expenses and moving expenses of transferred employees W.
Code, Chapter 17, Article 2-A, Section 4a. The legality of the payment of rent and board by the State for a period of thirty days after reassignment has not been raised in this case by the State and this Court has not been requested to render an opinion thereon, both parties having tried the case on the assumption that said payment is within the purview of the statute and advantageous to and for the best interest of the State.
In any event, it has been a long established practice of the Department of Highways to make this allowance. The problem arises in this case because of the difficulty of the State employee to find a permanent home for his family in an area where there was a critical housing shortage. Later an additional request was made by the District Engineer to extend the payment of temporary expenses to September 1, , at which time housing would be available to the claimant.
It was con-. James R. Campbell, the District Engineer, testified that the expenses claimed were very reasonable, and that the claimant had made a sincere effort to keep expenses to a minimum by depriving himself of comfortable lodging and the ordinary charges for food.
Furthermore, this Court has no jurisdiction to render a judgment against the claimant for the amount paid on his behalf in excess of the claim. If It had been clearly established that the payment to the Stone Lodge was an illegal payment of State funds, for the benefit of the claimant, the set-off might be considered for the purpose of disallowing the claim in its entirety. D Frank A. Pietranton, Esq.
The claim is based on the alleged negligence of the West Virginia Department of Highways in the paving and maintenance of the hard-surfaced roadway of Route 8. Some time in or , the travelled width of the road, which was 18 feet, was widened to approximately 24 feet by adding a macadam strip on each side of the road.
The road improvement was made by a general contractor who added a three inch slag base or aggregate, compacted it, and covered the extended width with a layer or layers of bituminous coated aggregate. The old road which was a concrete road before the improvement was also coated with bituminous. This type of road improvement leaves a crack where the widening takes place, and because of inadequate compaction or different methods of compaction, as time goes on through wear and tear on the road and weather the crack or seam where the widening takes place separates and the elevation of the old road surface varies from the elevation of the widened portion because of settling.
At the place of the accident, according to the testimony of the claimants, a seam or gap had developed varying from 2 or 3 inches in width, which trapped the right front wheel of the automobile, which Margaret Swartzmiller was driving at approximately 30 miles per hour, causing it go out of control. The steering wheel was momentarfily wrested out of her hands, and the car was driven into the guardrail on the side of the road two or three times and eventually brought under control about a block or a block and a half from the alleged road defect.
It was further developed in the testimony that the respondent had been notified of the hazard prior to the accident and had neglected to take proper measures to repair the road so that it would be safe for ordinary travel. Whether the road defect constituted an unreasonable hazard, or whether the State was guilty of negligence in failing to keep the road in proper repair is an issue that need not be decided under all the circumstances of this accident.
It appeared from the testimony that the claimant was not exercising ordinary and reasonable care in the operation of her motor vehicle at the time of the accident. The accident occurred in the daytime on a roadway that she had travelled many times in the vicinity of her home over a period of five years.
She must have been thoroughly familiar with the condition of the road.