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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JONATHAN KEITH,
Defendant-Appellant.


No. 07-5202

Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 06-00038—David L. Bunning, District Judge.
Argued: January 16, 2009
Decided and Filed: March 18, 2009
Before: KENNEDY, COLE, and GILMAN, Circuit Judges.

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OPINION
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COLE, Circuit Judge. Jonathan Keith pleaded guilty to several counts, including possession of crack cocaine with intent to distribute and possession of a firearm in furtherance of drug-trafficking. He reserved the right to appeal the district court’s denial of his motion to suppress evidence obtained as a result of an investigatory Terry stop. He claims that the officer who stopped him lacked the requisite reasonable suspicion of criminal conduct. He also asserts that the district court committed errors at sentencing. For the following reasons, we REVERSE the district court’s denial of Keith’s motion to suppress evidence. This renders the sentencing issues moot.


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No. 07-1736
STANLEY R. NICKELS,
Plaintiff-Appellant,
v.
GRAND TRUNK WESTERN RAILROAD, INC.,
Defendant-Appellee.
No. 07-2437
DONALD C. COOPER,
Plaintiff-Appellant,
v.
CSX TRANSPORTATION, INC.,
Defendant-Appellee.


Nos. 07-1736/2437

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 06-11846; 05-73392—Robert H. Cleland,
Paul D. Borman, District Judges.
Argued: July 31, 2008
Decided and Filed: March 18, 2009
Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.

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OPINION
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ALICE M. BATCHELDER, Circuit Judge. In this consolidated action, Stanley Nickels and Donald Cooper appeal entries of summary judgment on their Federal Employers’ Liability Act (“FELA”) claims. These former railway employees allege injuries caused by years of walking on oversized track ballast. The district courts below held that a Federal Railway Safety Act (“FRSA”) regulation covers the issue of ballast size, precluding plaintiffs’ negligence actions. We affirm.


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JENNIFER A. DURAND, on behalf of herself and all others similarly situated,
Plaintiff-Appellant,
v.
THE HANOVER INSURANCE GROUP, INC. and THE ALLMERICA FINANCIAL CASH BALANCE PENSION PLAN,
Defendants-Appellees.


No. 07-6468

Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 07-00130—Charles R. Simpson III, District Judge.
Argued: October 28, 2008
Decided and Filed: March 18, 2009
Before: NORRIS, ROGERS, and KETHLEDGE, Circuit Judges.

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OPINION
_________________________

KETHLEDGE, Circuit Judge. Plaintiff Jennifer A. Durand appeals the district court’s dismissal of her complaint filed under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA). The district court held that Durand had failed to exhaust her administrative remedies. We conclude that exhaustion of those remedies would have been futile, and reverse.


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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY LYNDALE FORD,
Defendant-Appellant.


No. 08-5091

Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 07-00113-001—Joseph M. Hood, District Judge.
Submitted: January 14, 2009
Decided and Filed: March 18, 2009
Before: MERRITT, COLE and SUTTON, Circuit Judges.

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OPINION
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SUTTON, Circuit Judge. Jeffrey Ford challenges his sentence for bank robbery, arguing that the district court improperly sentenced him as a career offender under § 4B1.1(a) of the sentencing guidelines. Because his previous conviction for a “walkaway” escape is not a “crime of violence” under this provision of the guidelines, we reverse and remand for resentencing.


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AMERICAN COUNCIL OF LIFE INSURERS; AMERICA’S HEALTH INSURANCE PLANS; LIFE INSURANCE ASSOCIATION OF MICHIGAN,
Plaintiffs-Appellants,
v.
KEN ROSS, Acting Commissioner of the Office of Financial and Insurance Services, Michigan Department of Labor and Economic Growth,
Defendant-Appellee.


No. 08-1406

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 07-00631—Richard A. Enslen, District Judge.
Argued: January 13, 2009
Decided and Filed: March 18, 2009
Before: MERRITT, COLE, and SUTTON, Circuit Judges.

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OPINION
_________________________

COLE, Circuit Judge. Defendant-Appellee Ken Ross is the Commissioner (“Commissioner”) of the Michigan Office of Financial and Insurance Services (“OFIS”). Under OFIS’s authority to regulate insurance, it promulgated rules, Mich. Admin. Code Rules 500.2201-500.2202 and 550.111-550.112, prohibiting insurers from issuing, delivering, or advertising insurance contracts or policies that contain “discretionary clauses” (the “rules”). Such clauses provide that courts will give deference to a plan administrator’s decision to award or deny benefits or interpretation of plan terms in any court proceeding challenging such decisions or interpretations. Plaintiffs-Appellants American Council of Life Insurers, America’s Health Insurance Plans, and Life Insurance Association of Michigan (collectively, “Insurance Industry”) filed suit, seeking declaratory and injunctive relief to prevent OFIS from enforcing the rules. Both parties moved for summary judgment, with the Insurance Industry arguing that the rules are preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 1001 et seq. The district court concluded that because the rules constitute laws regulating insurance under ERISA’s savings clause, ERISA § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A), they are not preempted by ERISA, and granted summary judgment in favor of the Commissioner. The Insurance Industry appealed. For the following reasons, we conclude that Michigan’s rules fall within the ambit of ERISA’s savings clause insofar as they are state laws regulating insurance, and thus are not preempted by ERISA.