Take the Fifth: Oct. 7, 2020 opinions

  • U.S. v. Omigie, 19-40526, appeal from E.D. Tex., designated for publication
    • Higginbotham, J. (Higginbotham, Jones, Higginson), criminal, sentencing, guilty plea, forfeiture, supervised release
    • Affirming conviction, remanding for determination of whether supervised release condition is consistent with oral pronouncement of court.
    • Court held there was no plain error in the district court’s informing the defendant of the mandatory minimum for the count to which he pled guilty, despite the district court remarking to the defendant that the mandatory minimum applicable by law “if any,” and stating that acceptance of the plea “could” result in a mandatory minimum sentence of ten years. The Court looked to the numerous mentions of the mandatory minimum in the record to find no plain error in an “inartful” pronouncement by the district court.
    • Court held that there was no plain error in the district court’s failure to follow every step required for a forfeiture under Rule 32.2, because the district court’s failure did not affect defendant’s substantive rights where defendant could not show that any forfeiture imposed would have been less than the $250,000 ordered.
    • Court found no clear error in the district court’s imposition of a sentence enhancement for a leadership role in the charged cocaine trafficking conspiracy. Defendant had initially gotten involved in the trafficking conspiracy because the head of the trafficking ring believed defendant had supernatural powers he could use to protect the ring from apprehension and ensure successful operations; eventually, defendant, through claimed reliance on his supernatural powers, began to dictate certain aspects of the trafficking operations. Court held that the evidence of this control was sufficient to justify the leadership sentencing enhancement.
    • Court upheld district court’s denial of a sentencing adjustment for acceptance of responsibility, since defendant did not plead guilty until after an extensive pretrial hearing, voir dire, and a half-day of trial testimony.
    • Court remanded to the district court for a determination whether defendant had been made aware of a special condition of his supervised release regarding reporting of financial transactions. While the en banc Fifth Circuit has held that, under the Fifth Amendment’s Due Process Clause, a defendant must be orally apprised of discretionary mandatory conditions of supervised release at the sentencing, but that this requirement may be satisfied by orally adopting a pre-sentencing report if that PSR had been provided to defendant and he was made aware of its contents. Here, the financial reporting special condition had been included in a document separate from the PSR that had been provided to defendant contemporaneously with the PSR, but the record was unclear whether the defendant had been specifically made aware of the separate document as ancillary to his PSR.
  • U.S. v. Hinojosa-Almance, 19-50942, appeal from W.D. Tex., designated for publication
    • Higginbotham, J. (Higginbotham, Jones, Higginson), criminal, sentencing
    • Court affirmed sentence. Court held that district court did not commit clear error in declining to apply a downward adjustment for acceptance of responsibility. The district court had declined to apply the adjustment on finding that defendant’s violation of pre-sentencing conditions regarding excessive drinking when he drank twelve beers and then drove while under the influence showed that his contrition was not entirely sincere and that he was not fully “withdrawn from criminal conduct.” Court held that, while the drunk driving incident was unrelated to the crime to which defendant had pled guilty, district court’s refusal to apply the downward adjustment was not entirely without foundation.
    • Defendant also urged that his within-Guidelines sentence was substantively unreasonable because it did not account for his clean record prior to the offense. However, because the defendant did not engage with the presumption of reasonableness that applies to within-Guidelines sentences, the Court held that there was no abuse of discretion in his sentence.
  • Jordan v. Maxfield & Oberton Holdings, L.L.C., 19-60364, appeal from S.D. Miss., designated for publication
    • Stewart, J. (Stewart, Clement, Costa), product liability
    • Affirming district court’s denial of plaintiffs’ Rule 59 and Rule 60 motions following a jury verdict in favor of defendant in product liability action that arose after plaintiff’s 22-month-old son swallowed eight “Buckyball” magnets that caused severe internal injuries.
    • Court held that there was no prejudicial error in the district court’s exclusion of evidence of post-sale actions by the Consumer Products Safety Commission (“CPSC”) to more stringently regulate the magnets as children’s toys, because the Mississippi Products Liability Act (“MPLA”) focuses exclusively on what the manufacturer knew about the product at the time of the sale of that product.
    • The Court also held that it could not review whether plaintiffs were improperly prevented from presenting evidence that would have showed the defendant was misrepresenting its communications with the CPSC, because plaintiffs had failed to proffer that evidence to the district court and therefore had failed to preserve the issue for either their post-trial Rule 60 motion or for appellate review.
    • Finally, the Court held that the district court did not abuse its discretion in failing to accept plaintiffs’ proposed jury instruction that federal magnet standards preempted the MPLA, because plaintiffs had failed to include this in the pretrial order and defendant would have been prejudiced by a late amendment of the pretrial order where their entire defense had been built around defending an MPLA claims.
  • U.S. v. Marshall, 18-10058, appeal from N.D. Tex., unpublished
    • per curiam (Higginbotham, Jones, Costa), habeas corpus
    • Affirming district court’s denial of relief on petitioner’s successive § 2255 petition regarding whether the enhancement of his sentence under the Armed Career Criminal Act was based on reliance on an impermissibly vague residual clause under that Act. The Court held that it was not “more likely than not” that the district court relied on the residual clause.
  • Schanzle v. Haberman, 19-51073, appeal from W.D. Tex., unpublished
    • per curiam (King, Graves, Willett), search and seizure, Fourth Amendment, Eighth Amendment, forfeiture
    • Affirming in part and vacating in part district court’s dismissal of plaintiff’s pro se lawsuit arising out of federal agents’ raid of his home and seizure of a comprehensive manifest of his personal property. Plaintiff alleged federal agents had used unreasonable force, humiliated him, and exposed bystanders to toxic fumes by drilling into a safe; he alleged that, when he asked for a warrant justifying the breadth of the seizure of property, that the agent gave him a copy of a warrant that referred to items listed on exhibits A and B to that warrant, but that he was never provided with those exhibits. He brought suit, pro se, against the agents, the magistrate judge who signed off on the warrant, and the prosecutor.
    • Court affirmed the dismissal of the claims against the magistrate judge and the prosecutor on the basis of judicial and prosecutorial immunity, and the dismissal of plaintiff’s Fourth Amendment claims based on force, humiliation, and toxic fumes.
    • As to plaintiff’s Fourth Amendment claim based on the lack of the warrant attachments, however, the Court vacated the dismissal. While the Court recognized that plaintiff had no Fourth Amendment right to see the warrant attachments at the time of the search, his claim was that he had never been provided the attachments, even though they had been ordered unsealed. The Court noted that it “would be a problem” if the property seized were not described in the attachments. And while the district court had articulated the length of the attachments and a conclusion that the seized property was included on them, the Court held that its de novo review meant it could not simply take the district court’s word for it.
    • As to plaintiff’s Eighth Amendment claim that was based on the alleged seizure of $2 to 3 million in assets without justification, the Court affirmed the dismissal of the claim but for different reasons than articulated by the district court. The district court had dismissed the claim because it found that plaintiff had cited to the wrong Eighth Amendment case in support of his claim. The Court held, “that does not move the ball: a pro se litigant who states a claim is just as likely to “fail[] to cite proper legal authority” as a pro se litigant who does not state a claim. However, the Court held that it could affirm the dismissal on the alternative grounds that it lacked jurisdiction because the claim was not ripe unless and until the government kept the seized property pursuant to a final forfeiture order.
  • Mejia-Urbina v. Barr, 19-60476, petition for review of BIA order, unpublished
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Court upheld denial of motion to reopen removal proceedings because petitioner’s Notice to Appear was perfected when the immigration court sent a notice of the time and place of hearing to the address provided by the petitioner, triggering the stop-time rule.
  • U.S. v. Hickmon, 20-10083, appeal from N.D. Tex., unpublished
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Court affirmed sentence, holding there was no clear or obvious sentencing error because the district court’s factfinding only changed the Guidelines range, but did not alter the maximum applicable statutory sentence or raise the statutory minimum.
  • U.S. v. Baltazar, 20-50064, appeal from W.D. Tex., unpublished
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Vacating sentence and remanding. Court found plain error in district court’s sentencing finding that the amount of substance involved a weight of actual methamphetamine rather than a weight of a substance containing methamphetamine, which increased the Guidelines maximum sentence from 262 months to 327 months.
  • Hovanec v. Miller, 20-50080, appeal from W.D. Tex., unpublished
    • per curiam (Graves, Costa, Engelhardt), Computer Fraud and Abuse Act, Stored Communications Act, damages
    • Affirming summary judgment dismissing plaintiff’s claims. Plaintiff and defendant had been close friends, when defendant allegedly hacked plaintiff’s iCloud account and sent her disparaging messages. Plaintiff sued defendant under the Computer Fraud and Abuse Act, seeking $1 million in damages for mental anguish and cost of responding to the hack. After plaintiff failed to provide any substantiation of damages in her deposition, defendant successfully brought a summary judgment motion on the basis of lack of damages. Court affirmed the grant of that motion, finding the record showed no evidence of actionable damages. The Court noted that the plaintiff’s 28-page affidavit filed in response to the summary judgment motion did not provide any attestation of a causal link between the hack and the damages, instead dwelling at length on numerous other break-downs and abuses in the former friends’ relationship. Court specifically rejected plaintiff’s argument that the Stored Communications Act did not require actual damages as an element of the claim.
  • U.S. v. Jefferson, 20-50405, appeal from W.D. Tex., unpublished
    • per curiam (Stewart, Graves, Higginson), compassionate release
    • Granting application. to proceed with appeal IFP, but affirming the district court’s denial of compassionate release. Court found that the district court considered the appropriate factors to balance in reaching denial, and noted that, “[a]lthough … Jefferson may disagree with how the district court balanced the § 3553(a) factors, his disagreement provides an insufficient ground for reversal.”