Take the Fifth: Oct. 27, 2020 opinions

Designated for publication

  • U.S. v. Ramirez, 19-20098, appeal from S.D. Tex.
    • Oldham, J. (Smith, Clement, Oldham), criminal, sentencing
    • Affirming the district court’s sentencing of defendant to 300 months’ imprisonment for health care fraud.
    • Court held that there was no error in district court’s reliance on presentencing report to impose a 26-point adjustment to defendant’s sentencing level for defrauding Medicare of more than $25 million by certifying thousands of patients for home health care services without actually seeing the patients in person.
    • The Court also held that the district court did not err in applying a 2-point enhancement for use of identifying information because each certification form contained a unique Medicare identifier for each patient.
    • Finally, the Court held that the district court did not err in applying a 2-point enhancement for a crime with ten or more victims, because it held that each Medicare patient was a “victim” for purposes of his crime.
  • Banca Pueyo SA v. Loan Star Fund IX, 20-10049, appeal from N.D. Tex.
    • Costa, J. (Graves, Costa, Engelhardt), foreign discovery, jurisdiction, collateral order doctrine
    • Dismissing appeal from district court order denying motion to quash subpoenas in 28 U.S.C. § 1782 proceeding for discovery for use in a foreign proceeding, on holding that order was interlocutory and that Court therefore lacked jurisdiction.
    • Plaintiffs brought this 28 U.S.C. § 1782 proceeding to seek discovery from Texas-based private equity entities that had purchased Portuguese banking interests involved in financial institution collapses in Europe. The district court concluded that it was within its discretion to allow the proceeding to go forward and for subpoenas to issue. Defendants filed a motion to quash, challenging that ruling. The district court denied the motion to quash, finding its exercise of jurisdiction over the matter was appropriate and that defendants had failed to identify which requests were overly burdensome, though the magistrate invited the defendants to file a second motion to quash if necessary after conference of the parties. Defendants filed this appeal, though they also filed a second motion to quash. While the appeal was pending, the magistrate issued an extensive report and recommendations denying the second motion to quash, and Defendants filed a motion for reconsideration and objections with the district court that remained pending through the appeal.
    • The Court held that there was not a final, appealable order before it: “By no measure did the ruling on the first motion to quash ‘leave[] nothing for the court to do.’ Catlin, 324 U.S. at 233. The district court had a lot left to do, enough that the magistrate just issued a 52-page decision that is generating additional motions practice in the district court. No court has exercised appellate jurisdiction over a section 1782 case when a motion to quash that might limit the scope of discovery remained pending in the trial court. Rather, courts have allowed appeals only after the district court had ‘affirmatively decided the proper scope of discovery.’ Republic of Ecuador, 735 F.3d at 1182–83; see also Furstenberg, 877 F.3d at 1033–34 (allowing appeal after court definitively resolved motion to quash). The district court had not yet resolved the scope of discovery when this appeal was filed, so we would not have jurisdiction under the typical finality inquiry.”
    • The Court turned to the collateral order doctrine, which allows “jurisdiction over a nonfinal order when it is (1) conclusive as to the subject addressed, (2) resolves an ‘important question[] completely separate from the merits,’ and (3) is ‘effectively unreviewable on appeal from a final judgment.’ Digital Equipment Corp v. Desktop Direct, Inc., 511 U.S. 863, 867 (1992).” The Court held that this case failed to meet the first prong because “[t]he recent ruling on the second motion to quash, which curtails discovery in significant respects, drives home the point that the orders before us are preliminary.” The Court then held that defendants failed to meet the third prong because “[a]ll the issues respondents raise, including the ex parte nature of the initial ruling, whether petitioners meet the statutory requirements, and evaluation of the discretionary Intel factors, will be reviewable in an appeal after the district court conclusively determines the scope of any discovery.”
  • U.S. v. Martinez, 20-20148, appeal from S.D. Tex.
    • Elrod, J. (Elrod, Duncan, Wilson), criminal, supervised release
    • Vacating condition of supervised release and remanding for further proceedings.
    • As part of the conditions of supervised release included in district court’s sentence of defendant the requirement to “participate in an inpatient or outpatient substance-abuse treatment program” supervised by Martinez’s probation officer. The Court held that leaving the decision whether to require inpatient or outpatient treatment to the probation officer, the district court had impermissibly abdicated part of its judicial role to the probation officer. The Court, therefore, found an abuse of discretion in the district court’s sentence and vacated that portion of the sentence and remanded.

Unpublished

  • Robinette v. Wilson, 19-10801, appeal from N.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), habeas corpus
    • Affirming denial of § 2241 petition on jurisdiction grounds due to the availability of relief under § 2255.
  • U.S. v. Thompson, 19-40307, appeal from S.D. Tex.
    • per curiam (Jones, Barksdale, Stewart), criminal, guilty plea, sentencing
    • Finding guilty plea to be voluntary and dismissing appeal of sentence under the appeal-waiver provision of the guilty plea.
  • U.S. v. Garcia-Perez, 19-40659, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Ho), criminal, sufficiency of evidence, due process
    • Affirming conviction, finding sufficiency of evidence for conviction of transporting an illegal alien within the United States and conspiring to do the same, and rejecting due process claim.
  • U.S. v. Mora, 19-40665, appeal from S.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, supervised release
    • Vacating sentence and remanding to conform written special conditions of supervised release with conditions pronounced orally at the sentencing hearing.
  • U.S. v. Medel-Guadalupe, 19-40901, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Ho), criminal, sentencing
    • Affirming sentence on five counts regarding harboring illegal aliens.
  • Padilla v. Barr, 19-60420, petition for review of BIA order
    • per curiam (King, Smith, Wilson), immigration
    • Denying in part and dismissing in part BIA order dismissing appeal of IJ order denying application for withholding of removal.
  • U.S. v. Almaguer, 20-10051, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion and dismissing appeal.
  • U.S. v. Williams, 20-30118, appeal from M.D. La.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Affirming sentence enhanced for possession of a firearm capable of accepting a large-capacity magazine.
  • U.S. v. Dean, 20-40176, appeal from E.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion and dismissing appeal.
  • In re: Milam, 20-40663, on motion to authorize E.D. Tex. to accept successive § 2244 motion
    • per curiam (Elrod, Graves, Higginson), habeas corpus
    • Denying motion for authorization to file successive § 2244 motion.