Take the Fifth

• U.S. v. Strother, 19-40361, appeal from E.D. Tex., designated for publication
  • Higginson, J. (Higgonbotham, Jones, Higginson), criminal, sentencing, guilty plea
  • Affirming conviction and sentence. Defendant had pled guilty to possession of a firearm by a felon. Thereafter, his counsel successfully moved to withdraw as counsel, and defendant filed a pro se motion to withdraw his guilty plea, asserting that he had only pled guilty under the flawed advice and pressure form his counsel, arguing that his guilty plea was rendered involuntary due to ineffective assistance of counsel (“IAC”). The district court denied defendant’s motion to withdraw his guilty plea.
  • Court held that the IAC exception to defendant’s appeal-waiver in his guilty plea was appropriately triggered, as the defendant’s IAC claim was central to his argument why he should have been allowed to withdraw his guilty plea.
  • On the merits of defendant’s argument, applying the seven-factor review framework of U.S. v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984), the Court held the district court did not abuse its discretion in denying defendant’s motion for withdrawal of his guilty plea. The Court found no clear error in the district court’s determination that the first Carr factor–assertions of actual innocence–weighed against granting defendant’s motion, because there was no substantial supporting record to counter the presumption created by defendant’s repeated sworn affirmative statements in court that he knew the essential elements of the crime and that he knew the firearm was in the trunk of the car he was pulled over in and that the firearm belonged to him. Applying the fifth Carr factor, close assistance of counsel, the Court held the district court did not clearly err in finding that factor weighed against granting defendant’s motion because counsel consulted with defendant approximately twenty times and spent approximately 100 hours working on his case prior to the guilty plea. Under the sixth Carr factor, the Court held that the defendant had not received IAC because he communicated unequivocally that he understood the elements of the crime to which he was pleading guilty, including the “knowingly possessed” element as to which he now argues he was not adequately informed by counsel. The Court held there was no clear error in the district court’s application of the remaining Carr factors.

• U.S. v. Leontaritis, 19-40498, appeal from E.D. Tex., designated for publication
  • Haynes, J. (Higginbotham, Elrod, Haynes), criminal, sentencing
  • Affirming district court’s sentencing of defendant. Defendant had been guilty by jury of conspiracy to possess with intent to distribute 500 grams or more of a mixture containing methamphetamine, but that the defendant was personally responsible for not more than 50 grams of the mixture. District court then sentenced the defendant to concurrent terms of 240 months’ imprisonment and three years’ supervised release on a finding by a preponderance that defendant was personally responsible for 176 grams of the mixture.
  • Court held there was no error in district court’s quantity finding for sentencing purposes, because the jury’s finding only bound the district court as to the statutory maximum and minimum, but not as to application of the Sentencing Guidelines within that statutory range. Court also held that any error in the district court’s imposition of a two-level enhancement for abuse of a position of trust was harmless because the district court indicated it would have arrived at the same sentence regardless of the enhancement. And the Court held that defendant failed to meet his burden of proving that application of a two-level reduction for acceptance of responsibility was warranted, in light of his dispute of the conduct supporting his conviction.

• In re: Huffines Retail Partners, L.P., 20-10581, appeal from N.D. Tex., designated for publication
  • Unattributed opinion (not denominated as “per curiam”) (Jones, Higginson, Oldham), Higginson, J., dissenting; mandamus, lis pendens
  • Order granting petition for writ of mandamus. Petitioners are LLCs owning various multi-family housing units in Lewisville and Rowlett, Texas. Respondents entered into multiple agreements to acquire all of the membership interests in the LLCs. The agreements were predicated on lender consents, which did not materialize, and the closing on the acquisitions did not occur; so the seller LLCs filed suit alleging breach of contract and breach of guaranty claims, which suit was subsequently removed. The buyers then filed notices of lis pendens in two Texas counties. Sellers filed motions to expunge and to cancel the lis pendens motions, alleging the notices tied up title to approximately 102 acres of real property with $365 million in value. The magistrate recommended denial of the motions, and the district court adopted that recommendation.
  • “After careful review of the record,” two members of the panel issued an order that “conclude[d] that the district court misread the governing acquisition documents, misapprehended Texas law regarding notices of lis pendens, misapplied the facts to the law and therefore acquiesced in a gross abuse by Purchasers of state lis pendens law.” The Court held that the factor of Texas lis pendens law that the underlying dispute involve a transaction regarding transfer of real property was not met, as the underlying agreement was for the transfer of LLC membership interests–and that the district court erroneously conducted a review for facts outside the agreement. The Court then held that mandamus was a proper procedural vehicle for expunction of the lis pendens motions because no other adequate legal remedy existed.
  • Dissenting, Judge Higginson emphasized that the Texas lis pendens law required the underlying dispute to be one involving interest in real property, such that the appropriate inquiry is whether the party asserts a direct interest in real property through the dispute rather than merely a collateral one; and that there was no clear or patent error in the district court’s finding that there was a genuine dispute as to that question here.
  • The point of departure between the panel opinion and the dissent is the role of the lack of Texas law specifically supporting one outcome or the other. The panel observed that there was no Texas case law supporting the use of extrinsic evidence to determine the nature of the underlying transaction; while Judge Higginson’s dissent observed, “Without Texas caselaw that demonstrates the district court reached even an erroneous result—and no federal mandamus caselaw on this issue at all—I would deny the writ.”

• U.S. v. Chavez, 18-50981, appeal from W.D. Tex., unpublished
  • per curiam (King, Stewart, Southwick), criminal, co-conspirator statements, hearsay
  • Affirming conviction that was arrived at after district court overruled objection to certain testimony on the grounds the testimony contained co-conspirator statements that constituted hearsay.
  • The Court first noted that defendant had likely waived his arguments on appeal because, although his counsel timely objected to the testimony at issue during trial, in his appeal brief he did not “specifically identify” the offending statements when he either paraphrased them or made citations to where they were found in the record. The Court then held that, regardless, his arguments were unpersuasive. The Court found that all of the statements at issue were made by co-conspirators during and in furtherance of a drug conspiracy, and were therefore admissible. The Court held that the admission of one statement may have been erroneous in that it was not in furtherance of the conspiracy, but then held that error was harmless in light of the remaining evidence supporting the defendant’s guilt.

• Priester v. Deutsche Bank National Trust Co., 19-40158, appeal from E.D. Tex., unpublished
  • per curiam (Graves, Costa, Engelhardt), foreclosure, removal, fraudulent joinder, abstention, res judicata
  • Court affirmed district court’s denial of motion to remand after a removal by the defendants, motion to abstain, and summary judgment in favor of defendants.
  • Plaintiffs had brought suit against the original issuer of their mortgage, on the basis that, contrary to their affidavit at closing, they had not been provided with the closing information at least twelve days prior to closing and had not executed the closing documents in one of the venues prescribed under the Texas constitution. Making an Erie guess, the Fifth Circuit held that the constitutional claim was barred by the statute of limitations. Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 674 (5th Cir. 2013). Three years later, the Texas Supreme Court held in a different case that the statute of limitations did not apply to constitutional claims as the Fifth Circuit had interpreted it in Priester v. JP Morgan. More than a year later, plaintiffs filed a Rule 60(b)(6) motion to vacate the judgment in Priester v. JP Morgan, which the district court denied and the Fifth Circuit affirmed. Priester v. JP Morgan Chase Bank, N.A., 927 F.3d 912, 913-14 (5th Cir. 2019). JP Morgan then sold the mortgage to defendants here, including Deutsche Bank.
  • Deutsche Bank obtained an order in state court to move forward with foreclosure on plaintiffs’ home. Plaintiffs filed a separate suit against Deutsche Bank, Select Portfolio, and other, non-diverse defendants, in Texas state court, to block the foreclosure. Defendants removed to federal court, and the district court denied plaintiffs’ motion to remand on the basis of fraudulent joinder of the non-diverse defendants. The district court then denied a separate motion for abstention brought by the plaintiffs, and denied a motion to dismiss defendants’ counterclaim that had asserted that Deutsche Bank lacked standing to foreclose. Finally, the district court granted summary judgment to defendants on all claims except judicial foreclosure as to the counterclaim, ordering a bench trial on that issue. Following the bench trial, the district court reconsidered its denial of summary judgment as to judicial foreclosure, and granted summary judgment; alternatively, the district court held that defendants would be entitled to judicial foreclosure even if it had not reconsidered its summary judgment ruling.
  • The Court held that the district court properly applied a 12(b)(6)-like analysis in determining the plaintiffs failed to assert a claim for relief against the non-diverse defendants.
  • The Court then held that plaintiffs were not entitled to Burford abstention because the case did not involve unsettled issues of state law and required no Erie guesses.
  • On the merits, the Court held that the district court correctly dismissed plaintiffs’ non-constitutional claims under res judicata based on the prior JP Morgan case.
  • The Court held that the district court properly denied plaintiffs’ motion to dismiss the foreclosure counterclaim for lack of standing, because plaintiffs failed to show that there had been a break in the chain of title of the mortgage-holder.
  • On the merits of judicial foreclosure, the Court held that there is a cause of action under Texas law for judicial foreclosure. It then held that there is not a burden of proof on the lender in such a claim to affirmatively allege and prove a rebuttal of every possible affirmative defense arising from compliance with Texas’s constitutional requirements; and plaintiffs provided no summary judgment evidence to rebut their own affidavit signed at closing that the constitutional requirements had been complied with–such that plaintiffs were estopped from arguing constitutional infirmity in the mortgage.

• U.S. v. Hernandez, 19-40655, appeal from S.D. Tex., unpublished
  • per curiam (Davis, Stewart, Dennis), criminal, sufficiency of evidence, ineffective assistance of counsel
  • Affirming conviction. Because defendant had not raised a motion for acquittal, his argument for insufficiency of the evidence to support his conviction was reviewed for plain error, requiring the Court to reject defendant’s sufficiency claim “unless the record is devoid of evidence” supporting his conviction. Court held that, regardless whether there was evidence showing actual or constructive possession of controlled substance, the record was not devoid of evidence for aiding and abetting possession of the controlled substance (which did not require actual or constructive possession by the defendant). Court also held that it would not entertain on direct appeal the IAC claim for defendant’s counsel’s failure to raise the motion for acquittal.

• Lee v. Lumpkin, 19-50606, appeal from W.D. Tex., unpublished
  • per curiam (King, Smith, Wilson), § 1983
  • Affirming dismissal of prisoner’s § 1983 claim for violation of his constitutional rights for enforcement of the supervised release condition that he register as a sex offender. Holding that plaintiff had abandoned appeal of merits by not briefing them; and that his sole remedy would have been in habeas.

• U.S. v. Becerra, 19-50665, appeal from W.D. Tex., unpublished
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing, supervised release
  • Affirming sentence, finding no plain error in district court’s oral adoption of standing order as an appropriate oral pronouncement of supervised release conditions.

• U.S. v. Pena-Garcia, 20-10240, appeal from N.D. Tex., unpublished
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Affirming sentence, finding no abuse of discretion in the district court’s upward departure from the Guidelines range of 2 to 8 months to a sentence of 15 months based on criminal history.

• Jones v. Saul, 20-60491, appeal from N.D. Miss., unpublished
  • per curiam (King, Smith, Wilson), social security
  • Affirming the district court’s affirmance of Social Security Administrator’s denial of Social Security benefits to plaintiff. Court held that there was substantial evidence to support the ALJ’s weighing of contradictory testimony as to plaintiff’s residual functional capacity to determine if he had a “disability” within the meaning of the Act. Court also held that ALJ’s reliance on vocational expert with regard to classification of plaintiff’s past employment was not erroneous.