Take the Fifth

Designated for publication

• Pizza Inn, Inc. v. Clairday, 19-11302, appeal from N.D. Tex.
  • Smith, J. (Smith, Clement, Oldham), breach of contract, equitable intervention doctrine
  • Reversing district court’s upholding of jury verdict in favor of franchisee, applying equitable intervention doctrine and awarding damages and attorneys’ fees to franchisee for pizza franchise’s refusal to renew contract when franchisee opted to renew after the deadline to do so.
  • Court held, “Because strict compliance with the agreement does not result in unconscionable hardship, equitable intervention is inapplicable.”

• Atkins v. Hooper, 19-30018, appeal from W.D. La.
  • Southwick, J. (Southwick, Costa, Duncan), on petition for rehearing, Costa, J., dissenting in part; habeas corpus, Confrontation Clause, rehearing
  • On petition for rehearing, panel vacated its prior opinion and entered new opinion, affirming district court’s denial of habeas relief.
  • Court held that clearly established Supreme Court precedent showed that there was a potential Confrontation Clause violation in the prosecution’s use of a “wink-and-a-nod” reference to a con-conspirator’s statement to the investigating officers, where the officer testified that he took the statement of the co-conspirator (who did not himself testify) and based on that statement obtained a warrant for the defendant’s arrest.
  • However, the Court then held that it could examine sua sponte the harmlessness of any error, examining whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). The Court then held that, in light of the two victims’ prior familiarity with the defendant and identification of the defendant as their assailant, any error in the reference to the co-conspirator’s testimony was harmless.
  • Judge Costa dissented in part. Because the initial panel decision had decided not to exercise its discretion to sua sponte reach the harmless-error analysis that the State had failed to raise in prior stages of the litigation, Judge Costa opined that changing that discretionary decision on rehearing was a mis-use of the rehearing procedural posture. “The panel majority, however, does a 180 on rehearing. There is nothing wrong with that as a general matter. For more than 99% of cases, the court of appeals is the end of the road. The rehearing stage is usually the last chance to get the case right. Judges thus must guard against the certitude and pride that can get in the way of correcting one’s mistakes. Openness to reconsideration is a good thing. But this reversal is not due to any error, factual or legal, that the rehearing petition identified. Instead, the panel majority flips a judgment call on whether to forgive the state’s failure to preserve the harmlessness issue. The rehearing petition does not cite any new factors that should influence that decision.” Judge Costa then noted that the Court has never exercised its discretion to overlook a failure to preserve an argument below in favor of the petitioning prisoner. “If anything, this double standard—what’s good for the prisoner is not good for the government—has it backwards. Courts have long recognized that parties with liberty interests at stake present the strongest case for excusing forfeiture.”

• U.S. v. Kendrick, 19-30375, appeal from E.D. La.
  • Stewart, J. (Stewart, Dennis, Haynes), on petition for rehearing; criminal, search and seizure, sentencing, sufficiency of evidence
  • Withdrawing original panel opinion and entering new opinion affirming conviction and sentence.
  • The Court held there was no clear error in the issuance of Title III wiretaps on defendant’s phones, because, even if falsehoods in the underlying affidavit were found to be deliberate or made with reckless disregard and were excised from the affidavits, probable cause could still be found in the remaining attestations.
  • The Court also held that there was no plain error in the conviction for conspiracy, because there was sufficient evidence of concerted action between defendant and others, and not just discrete buy-and-sell transactions.
  • The Court also held that there was no error in the district court’s imposition of sentencing enhancement for firearm involvement and for repeat-offender status under the ACCA.

• In the Matter of: Buffets, L.L.C., 19-50765, appeal from Bankr. W.D. Tex.
  • Costa, J. (Stewart, Clement, Costa); Clement, J., dissenting in part and concurring in part; bankruptcy
  • Holding that the 2017 fee-increase for large Chapter 11 debtors for the quarterly fees paid for maintenance of the bankruptcy action, which was imposed automatically in 88 judicial districts that use trustees, but over a nine-month period for the other six judicial districts, was not unconstitutional.
  • Judge Clement dissented in part, opining that the establishment of the two systems, the trustee system (in the 88 districts) and the administrator system (in 6 districts), violated the Constitution’s requirement for “uniform Laws on the subject of Bankruptcies throughout the United States.” U.S. Const. art. I, § 8.

• Suate-Orellana v. Barr, 19-60729, on petition for review of BIA order
  • Jones, J. (Jones, Haynes, Ho), immigration
  • Denying petition for review of BIA order making adverse credibility determination and denying withholding of removal relief, claim under the Convention Against Torture, and motion for remand for new evidence.
  • Court held there was substantial evidence supporting the adverse credibility determination; that the petitioner failed to identify cognizable social groups that she was a member of that were subject to persecution; that there was State infliction of or acquiescence to the persecution or torture she alleged she would be subject to upon return to Honduras; and that there was no evidence of a connection between her son’s murder in Honduras and the threat to her own safety.

• U.S. v. Pike, 20-10168, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Court held there was no clear error in the district court’s denial of a mitigating-role reduction; and that there was no clear error in the district court’s failure to articulate a factual basis for the denial of the mitigating-role reduction, since such articulation was not requested by the defendant.

• PCL Civil Constructors, Inc. v. Arch Insurance Co., 20-30187, appeal from W.D. La.
  • Higginson, J. (Clement, Higginson, Engelhardt), forum
  • Affirming district court’s dismissal of claim, enforcing mandatory forum selection clause and denying forum non conveniens. Court held that plaintiff “waived any argument that public interest requires retention of this lawsuit in the federal court system.”

• U.S. v. Cartagena-Lopez, 20-40122, appeal from S.D. Tex.
  • Willett, J. (Dennis, Higginson, Willett), supervised release
  • Affirming district court’s revocation of supervised release. Defendant had served prison term and then “skipped out” on his supervised release, remaining a fugitive until after the term of supervised release was complete. Court held that the fugitive tolling doctrine applies to supervised release, joining the Second, Third, Fourth, and Ninth Circuits, and splitting from the First Circuit.

Unpublished

• U.S. v. Molina-Alonso, 18-40504, appeal from S.D. Tex.
  • per curiam (Jones, Haynes, Ho), criminal, supervised release
  • Affirming two special conditions of supervised release on finding that district court properly orally referenced the presentence report containing those conditions.

• Besser v. Texas General Land Office, 18-50291, appeal from W.D. Tex.
  • per curiam (Owen, Wiener, Dennis), Dennis, concurring in part and dissenting in part; employment discrimination, Americans with Disabilities Act, Family and Medical Leave Act
  • Affirming dismissal of discrimination and retaliation claims under the ADA and FMLA when plaintiff used leave to care for his husband.
  • Judge Dennis dissented, opining that plaintiff stated claim dismissal due to animosity based on protected status.

• U.S. v. Thompson, 19-11346, appeal from N.D. Tex.
  • per curiam (Clement, Elrod, Haynes), criminal, sentencing
  • Dismissing appeal as frivolous; denying IFP status.

• Wright v. Arlington Independent School District, 19-11377, appeal from N.D. Tex.
  • per curiam (Dennis, Higginson, Willett), § 1983, Age Discrimination in Employment Act, Americans with Disabilities Act, Title VII, Title VI, Family and Medical Leave Act, Fair Labor Standards Act, employment discrimination
  • Affirming dismissal of claims under Rule 12(b)(6).

• Davis v. City of Alvarado, 19-11391, appeal from N.D. Tex.
  • per curiam (Stewart, Duncan, Wilson), § 1983
  • Affirming dismissal of claim for confiscation of trailer.

• U.S. v. Coleman, 19-20401, appeal from S.D. Tex.
  • per curiam (Jones, Haynes, Ho), criminal, right to counsel
  • Affirming district court’s denial of motion to rescind waiver of counsel.

• U.S. v. Fonseca, 19-20701, appeal from S.D. Tex.
  • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
  • Limited remand for correction of clerical error, but otherwise affirming sentence, including two-level “stash house” enhancement.

• Hill v. International Association of Machinists and Aerospace Workers, 19-20845, appeal from S.D. Tex.
  • per curiam (Dennis, Higginson, Willett), employment, labor law
  • Affirming dismissal of suit by airline customer service representative, fired from her job, under the application of the collective bargaining agreement.

• Davis v. Double J Marine, LLC, 19-30655, appeal from E.D. La.
  • per curiam (Jones, Haynes, Ho), personal injury, maritime law
  • Affirming dismissal of maritime personal injury claim.

• GoVera Specialty Insurance Co. v. Odoms, 19-30971, appeal from E.D. La.
  • per curiam (Elrod, Duncan, Wilson), insurance
  • Affirming summary judgment in declaratory judgment action in favor of insurer for misrepresentation on insurance application.

• U.S. v. Collins, 19-31018, appeal from W.D. La.
  • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
  • Affirming denial of successive 18 U.S.C. § 3582 motion.

• U.S. v. Lozano, 19-40011, appeal from S.D. Tex.
  • per curiam (Dennis, Higginson, Willett), criminal, sentencing, supervised release
  • Affirming imposition of conditions of supervised release.

• 9503 Middlesex, Inc. v. Continental Motors, Inc., 19-50361, appeal from W.D. Tex.
  • per curiam (Dennis, Southwick, Ho), breach of contract, attorneys’ fees
  • Affirming in part and reversing in part judgment regarding breach of lease agreement, and vacating and remanding order regarding attorneys’ fees.

• AIG Europe, Ltd. v. Caterpillar, Inc., 19-40934, appeal from E.D. Tex.
  • per curiam (Jones, Haynes, Ho), negligence, products liability, expert witness
  • Affirming judgment striking expert report, and affirming summary judgment dismissing negligence and product liability claims.

• U.S. v. Renteria-Guitierrez, 19-50945, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Amasioni v. Barr, 19-60138, petition for review of BIA order
  • per curiam (Owen, Dennis, Haynes), immigration
  • Denying petition for review of BIA order affirming IJ denial of application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Almaguer v. Barr, 19-60170, petition for review of BIA order
  • per curiam (Jolly, Elrod, Graves), immigration
  • Denying in part and dismissing in part for lack of jurisdiction petition for review of BIA order dismissing appeal of IJ order denying reopening of removal proceedings.

• Mejia v. Barr, 19-60462, petition for review of BIA order
  • per curiam (Jolly, Elrod, Graves), immigration
  • Denying petition for review of BIA order dismissing appeal of IJ order denying application for withholding of removal and for protection under the Convention Against Torture.

• Martinez-Bulnes v. Barr, 19-60491, petition for review of BIA order
  • per curiam (Higginbotham, Jones, Costa), immigration
  • Dismissing petition for review of BIA order dismissing appeal of IJ order concluding petitioner was ineligible for cancellation of removal.

• U.S. v. Long, 20-10245, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Affirming sentence.

• U.S. v. Rivas, 20-10360, appeal from N.D. Tex.
  • per curiam (Jones, Haynes, Ho), criminal, sentencing, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Smith, 20-10414, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming judgment of district court denying motion for sentence reduction.

• Hotze v. Hollins, 20-20574, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Higginson), election law
  • Denying motion for injunctive relief to issue preliminary injunction banning drive-through voting on election day in Harris County.

• REC Marine Logistics, LLC v. Richard, 20-30170, appeal from E.D. La.
  • per curiam (King, Smith, Wilson), sanctions, jurisdiction
  • Dismissing appeal for lack of jurisdiction of sanctions order against attorney who had not withdrawn from the case until after the appeal was taken.

• Ladner v. Wal-Mart, Inc., 20-30352, appeal from E.D. La.
  • per curiam (King, Smith, Wilson), employment, retaliation
  • Affirming dismissal of claim of retaliatory “fecal harassment.”

• Affiah v. Texas Southmost College, 20-40045, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), Title VII, employment discrimination
  • Affirming district court’s denial of employment discrimination claims.

• Cruz v. Rodriguez, 20-40099, appeal from S.D. Tex.
  • per curiam (Haynes, Willett, Ho), § 1983, prisoner suit
  • Affirming dismissal of prisoner suit.

• U.S. v. Guitierrez, 20-40206, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming sentence.

• Ron v. Ron, 20-40248, appeal from S.D. Tex.
  • per curiam (Stewart, Duncan, Wilson), fraudulent transfer, arbitration
  • Affirming district court order compelling arbitration of fraudulent transfer claims against one defendant and dismissing remaining claims against second named defendant.

• U.S. v. Garcia-Melchor, 20-40286, appeal from S.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rodriguez, 20-50099, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Texas Democratic Party v. Hughs, 20-50683, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Oldham), election law, sovereign immunity, Ex Parte Young
  • Denying motion for summary affirmance of district court’s denial of motion for summary judgment on sovereign immunity grounds.