Take the Fifth: Sept. 30, 2020 opinions

Posted on by tadbartlett
  • Texas Alliance for Retired Americans v. Hughs, 20-40643, Designated for Publication
    • per curiam (Clement, Elrod, Haynes), elections law
    • Staying district court’s preliminary injunction of enforcement of Texas House Bill 25, which would eliminate straight-ticket voting.
    • HB25’s straight-ticket voting ban became effective September 1, 2020; District Court enjoined HB25 on September 25; early voting in Texas commences on October 13. District Court granted preliminary injunction on finding that plaintiffs had a likelihood of success on the merits that HB25 would place an undue burden on voters’ right to vote and freedom of association under the First and Fourteenth Amendments.
    • Fifth Circuit held, “[I]n staying a preliminary injunction that would change election laws eighteen days before early voting begins, we recognize the value of preserving the status quo in a voting case on the eve of an election, and we find that the traditional factors for granting a stay favor granting one here.” Court held that, even though HB25 only went into effect on September 1, it had been passed in 2017, giving the Secretary of State and Texas voters three years to prepare for the change, such that the elimination of straight-ticket voting had become the “status quo” that must not be changed on the eve of elections, even though the prohibition had not been in effect for any prior election.
  • Collier v. Dallas County Hosp. Dist., 19-10761, unpublished
    • per curiam (King, Jones, Costa), Title VII, employment
    • Affirming summary judgment for defendant in Title VII employment discrimination case brought by African-American employee. Plaintiff had been fired for insubordination and claimed this was pretext for retaliation for his complaints of racial discrimination. District Court granted summary judgment on findings that plaintiff (1) could not prove the charge of insubordination was pretextual, and (2) could not prove that his work environment was sufficiently hostile or abusive to constitute a racially hostile work environment.
  • U.S. v. Tovar, 19-20704, unpublished
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming within-Guidelines sentence for possession with intent to distribute more than 5 kilograms of cocaine.
  • Grant v. Vannoy, 19-30289, unpublished
    • per curiam (Owen, Davis, Southwick), habeas corpus, Fifth Amendment, ineffective assistance of counsel
    • Affirming denial of relief to petitioner who argued that the prosecutor violated his right to remain silent when using evidence of petitioner’s silence at the time of arrest as evidence of his guilt, and that the same conduct also showed ineffectiveness of his counsel. Panel found that Louisiana appellate court on direct review implicitly addressed petitioner’s arguments, and that its resolution of those issues was not clearly contrary to established federal law.
  • U.S. v. Martinez, 19-41048, unpublished
    • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
    • Affirming District Court’s reliance on Sentencing Guidelines enhancement for distributing a controlled substance through mass-marketing by means of an interactive computer service and for maintaining a premises for the purpose of manufacturing or distributing a controlled substance.
  • U.S. v. Lopez, 19-50508, unpublished
    • per curiam (Higginbotham, Jones, Costa), criminal, guilty plea, sentencing
    • Affirming conviction and sentence for possession with intent to distribute at least 500 grams of a substance containing methamphetamine. Finding no abuse of discretion in District Court’s denial of Lopez’s motion to withdraw his guilty plea; and no plain error in reliance on sentencing enhancement.
  • Sanchez-Lopez v. Barr, 19-60221, unpublished
    • per curiam (Higginbotham, Jones, Costa), immigration, reopening of deportation order, equitable tolling
    • Granting petition for review and remanding to Board of Immigration Appeals to hear, in the first instance, petitioner’s argument for application of equitable tolling to the time period for filing a motion to reopen his deportation proceedings.
  • U.S. v. Madrid, 20-10106, unpublished
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming District Court’s denial of application of downward variance to within-Guidelines sentence for possession with intent to distribute a substance containing methamphetamine.
  • U.S. v. Hatchett, 20-10119, unpublished
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing
    • Affirming 384-month sentence for conviction of conspiracy to interfere with commerce by robbery; interference with commerce by robbery; using, carrying, and brandishing a firearm during and in relation to a crime of violence; and two counts of kidnapping.
  • U.S. v. Hargers, 20-10382, unpublished
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing, First Step Act
    • Affirming District Court’s denial of motion to reduce sentence under the First Step Act.
  • U.S. v. Bell, 20-10427, unpublished
    • per curiam (Stewart, Graves, Higginson), prisoner suit, compassionate release
    • Denial of application for IFP status for appeal, and dismissal of appeal as frivolous, on prisoner’s appeal of denial of request for compassionate release.
  • Underwood v. Ocwen Loan Service, 20-20227, unpublished
    • per curiam (Wiener, Southwick, Duncan), res judicata, foreclosure, statute of limitations
    • Affirming District Court’s denial of homeowner’s suit to prevent foreclosure on the basis that the statute of limitations for the foreclosure had run, holding that homeowner’s suit was barred by res judicata, and upholding District Court’s order for homeowner’s attorney to refund fees to the homeowner.
  • U.S. v. Olmedo-Perez, 20-40077, unpublished
    • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
    • Affirming District Court’s denial of request to apply mitigating-role downward adjustment to sentence for possession with intent to distribute more than 500 grams of cocaine.
  • U.S. v. Ponce-Ruiz, 20-50005, unpublished
    • per curiam (Higginbotham, Jones, Costa), criminal, immigration
    • Affirming conviction of defendant, summarily denying his argument that a prior conviction must be a charged element of the offense for illegal reentry, rather than a sentencing factor, under Almendarez-Torres.
  • U.S. v. Morris, 20-50047, unpublished
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming sentence, holding that District Court properly relied on defendant’s post-Miranda statements as to quantity of the controlled substance involved.
  • U.S. v. Montague, 20-60058, unpublished
    • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
    • Affirming sentence of 114 months for violation of terms of conditional release.