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Javier Lavagnino, Esq.

Javier Lavagnino, Esq.

Articles written


Latest Articles

  • Conviction in Drug-Distribution Conspiracy Upheld Over Claim of Gov't Breach of Plea

    In US v. Quesada, No. 08-2183, the court of appeals handled an appeal from a defendant's conviction and sentence on criminal charges revolving around a drug-distribution conspiracy.

  • Denial of a Sentence Reduction Upheld

    In US v. Williams, No. 09-5331, a defendant challenged an order denying his motion to reduce his sentence for possession of with intent to distribute and for being a felon in possession of a firearmThe Sixth Circuit affirmed the ruling as the career offender guidelines, and not crack cocaine guidelines, controlled his original sentence, and thus the district court lacked jurisdiction to resentence defendant under section 3582(c)(2).

  • Dismissal of RICO Suit Against Health Insurer is Upheld, Plus Criminal Matters

    Riverview Health Inst. v. Med. Mut. of Ohio, No. 08-4431, involved an action brought by out-of-network providers of health care services against an insurer and its officers raising claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), ERISA, and state law.

  • Denial of Withholding Relief Based on Claimed Political Persecution Upheld

    Pablo-Sanchez v. Holder, No. 09-3301, involved a Mexican family's petition for review of a BIA decision denying withholding of removal.The circuit court denied the petition finding that the BIA permissibly determined that petitioner-husband did not suffer mistreatment on account of his political opinions (petitioner was a former Green Party candidate for a seat in Mexico's Congress).

  • Provisions of Immigration Laws Limiting Jurisdiction Cover Actions Purportedly Arising Under the Constitution

    In Elgharib v. Napolitano, No. 09-3029, the circuit court was faced with an appeal from a dismissal of a petition for a writ of prohibition challenging an in absentia removal order based on lack of jurisdiction under 8 U.S.C. section 1252(a)(5) & (g).

  • Economic Damages Award in FTCA Suit Rejected Due to State No-Fault Law

    In Premo v. US, No. 09-1426, the circuit court dealt with an appeal in an action brought against the government arising from injuries sustained by plaintiff when she was struck by a USPS postal truck.The district court below had found that, pursuant to the Federal Tort Claims Act, Michigan state law (in this case the Michigan No-Fault Automobile Insurance Act) applies to plaintiff's claim for personal injury benefits.

  • Court Rejects "De Minimis" Injury Requirement in Prisoner's Excessive Force Case

    The other ruling the Court handed down today, Wilkins v. Gaddy, No. 08-10914, involved a 42 U.S.C. section 1983 claim of excessive force by a prisoner.  The district court had dismissed the complaint and the Fourth Circuit had affirmed such ruling. But, as the Court wrote:  "In requiring what amounts to a showing of significant injury in order to state an excessive force claim, the Fourth Circuit has strayed from the clear holding of this Court in Hudson. . . .

  • Contract Ruling in Law Debenture Trust Co. v. Maverick Tube Corp.

    In one of the appeals decided today, the Second Circuit dealt with an alleged breach of an indenture.In Law Debenture Trust Co. v. Maverick Tube Corp., No. 08-5668, plaintiff noteholders in defendant corporation sued for breach of contract and unjust enrichment based on defendant's refusal to allow certain noteholders to convert their notes to cash and stock following the acquisition of defendant.  The district court granted summary judgment to defendant.

  • Fowler v. UPMC Shadyside, No. 07-4285


  • US v. Saybolt, No. 07-4392

    Convictions for conspiracy to defraud the IRS are affirmed where: 1) materiality is an essential element of the charged 18 U.S.C. section 286 offense, but is not required to show a section 287 violation; 2) despite the fact that the indictment did not use the term material, it sufficiently alleged facts that warrant an inference of materiality  and 3) the deficiency in the jury instructions as to materiality was harmless error.  Read US v. Saybolt, No.

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