New opinions — criminal sentencing plain error, pre-emption

Two published opinions today.

In U.S. v. Tai, CA3 found plain error and remanded because the district court applied the USSG role enhancement without any finding that another participant was criminally culpable. The court denied other plain-error challenges.

Opinion by Shwartz (her 7th since joining the court), joined by Fuentes and Rosenthal SDTX. Arguing counsel were Peter Goldberger for the defendant and Paul Shapiro for the government.

In In re: Fosamax, the court affirmed dismissal of state-law product liability claims on pre-emption grounds. Remarkable to see an appeal where, on one side, an associate did the argument, and on the other side it was an NLJ top-100 lawyer backed by a big-firm who’s-who. Guess who won.

Opinion by Jordan, joined by Vanaskie and Greenberg. Arguing counsel, both out-of-circuit, were Brandon Bogle and Jay Lefkowitz.