Take the Fifth: Oct. 16, 2020 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Barry, 19-11091, appeal from N.D. Tex.
    • Smith, J. (Smith, Clement, Oldham), criminal, sentencing
    • Affirming sentence that was based on a calculation of drug-quantity involved that relied in part on a conversion of the amount of cash possessed by defendant into the amount of drugs that would have been sold to reach that amount. Defendant pled guilty to conspiracy to possess with intent to distribute, admitting to selling 122 grams of methamphetamine, but the quantity of methamphetamine used by the district court in calculating the sentence was an additional 852.2 grams of methamphetamine based on a conversion from the $14,658 possessed by defendant.
    • Court held that there was no clear error in the district court’s conversion of the cash amount to a drug quantity. The Court held, first, that the district court implicitly found that the quantity of drugs seized did not reflect the scale of the offense when it overruled defendant’s objection to the presentencing report’s conversion of cash quantity to drug amount. “[T]here is no requirement that such a finding be explicit.”
    • The Court then held that sufficient evidence supported this implicit finding. “Though Barry is correct that there is little direct evidence tying the money to sales of meth, there is ample circumstantial evidence.”
  • M.D. v. Abbott, 19-41015, appeal from S.D. Tex.
    • Ho, J. (Barksdale, Elrod, Ho), mandate
    • Reversing district court’s modifications to permanent injunction and remanding with instructions to enforce injunction without further modification.
    • Plaintiffs are a certified class of minor children in the permanent managing conservatorship of the Texas Department of Family Protective Services–children in the Texas foster care system–who had brought § 1983 claims seeking imposition of conditions to protect foster children in that system. The district court had issued a permanent injunction putting in place various protections for the plaintiffs, which the State appealed. The Court of Appeals had agreed with certain of the district court’s constitutional analyses, and remanded for modifications to the injunction consistent with the Court of Appeals’ opinion. The district court modified the injunction and the State appealed again. The Court of Appeals agreed with some of the district court’s changes, but not with others, and remanded to the district court to begin enforcing the injunction as modified by the Court of Appeals and with the specific instruction to not make further modifications.
    • Specifically, the Court of Appeals had required that foster homes with more than six children provide 24-hour “awake-night” supervision, so that there was an awake adult at all times. Despite the instruction to make no further modifications, the district court added another condition, such that foster homes with more than six children had to seek approval of the district court before transferring foster children to other facilities to avoid this requirement. The State again appealed.
    • The Court of Appeals took the district court to task for ignoring the instruction to make no further modifications. “It is black-letter law that a district court must comply with a mandate issued by an appellate court.” The Court acknowledged that a court supervising the implementation of equitable relief subsequently may provide specific implementing instructions, but held that where an appellate court and a district court disagree as to the “proper exercise of equitable powers,” the rule of mandate requires that the district court defer to the ruling of the Court of Appeals just as the district court must do in disagreements as to the proper interpretation of laws. “[M]ake no mistake,” cautioned the Court, “[a]ccepting Plaintiffs’ approach would replace judicial hierarchy with judicial anarchy.”
    • If it were to become necessary to further modify the injunction, noted the Court, then the only avenue open to the plaintiffs would be to apply to the Court of Appeals for reconsideration or modification of its judgment, which the Court conceded is “rarely granted.” “But if that seems like strong medicine, the lesson is for appellate courts to draft their mandates carefully, not for district courts to ignore established rules of appellate procedure.”

Unpublished

  • U.S. v. Jessie, 19-10824, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Higginson), criminal, sentencing
    • Affirming district court’s increase of sentencing level.
  • Chaudhary v. Arthur J. Gallagher & Co., 19-20039, appeal from S.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), preemption, flood insurance
    • Affirming in part and vacating and remanding in part district court’s dismissal of plaintiffs’ claims for coverage for Hurricane Harvey-related damage to their insured residence as preempted by federal law governing federal flood insurance.
  • Stanton v. Heiberg, 19-40896, appeal from E.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), § 1983
    • Affirming district court’s dismissal of plaintiff’s § 1983 claims with prejudice and plaintiff’s Tennessee state law claims for fraud and wrongful death without prejudice, on finding no non-frivolous arguments for appeal.
  • Navarette-Lopez v. Barr, 19-60415, petition for review of BIA order
    • per curiam (Clement, Higginson, Engelhardt), immigration
    • Denying petition for review of BIA order.
  • Riney v. Lockheed-Martin, Corp., 20-10361, appeal from N.D. Tex.
    • per curiam (King, Smith, Wilson), Title VII, employment discrimination
    • Affirming district court’s summary judgment dismissing plaintiff’s gender discrimination claim.
  • Drakos v. Gonzalez, 20-20298, appeal from S.D. Tex.
    • per curiam (Clement, Elrod, Haynes), § 1983, prisoner suit, Covid-19, mootness
    • Denying motion for Certificate of Appealability and dismissing appeal of dismissal of prisoner suit seeking modifications to carceral conditions to account for Covid-19 as moot upon plaintiff’s release from confinement.