Take the Fifth: Nov. 9 and 10, 2020 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Cooper, 19-50119, appeal from W.D. Tex.
    • Elrod, J. (Elrod, Duncan, Wilson), criminal, guilty plea
    • Affirming conviction on use or possession of a firearm in furtherance of a drug trafficking offense, where defendant had pled guilty, finding sufficient factual bases to support plea; but remanding to correct that plea was to superseding indictment rather than second superseding indictment.
    • The Court first noted the conflict in the record as to whether the defendant had pled guilty to the superseding indictment (which is what he pled to during his guilty plea) or the second superseding indictment (which is what the parties and court referred to during the sentencing hearing). While the Court held that “[t]here is a limit, of course, to what [Fed. R. Crim. P.] 36 can do,” because there was no substantive difference between the two indictments as to what the defendant pled guilty to, it was within the reach of Rule 36 for the district court to correct the judgment on remand.
    • The Court then turned to the merits. Upon arrest, a passenger in defendant’s vehicle had asserted that a backpack containing the firearm at issue was his, and that the firearm was his. On a plain-error standard of review, the Court held that this still presented a sufficient factual basis for defendant’s guilty plea to possession of the firearm, when combine with defendant’s presumed knowledge of the drugs and other drug paraphernalia in the same backpack and with the presumption that “firearms are common ‘tools of the trade’ of drug trafficking.” Further, the defendant agreed that he possessed the firearm in furtherance of the drug trafficking offense during his plea colloquy.
  • U.S. v. King, 19-51094, appeal from W.D. Tex.
    • Higginson, J. (Dennis, Higginson, Willett), criminal, child pornography
    • Affirming conviction and sentence of church pastor based on guilty plea for one count of production of child pornography. Defendant was sentenced to a Guidelines sentence of 360 months’ imprisonment and ten years’ supervised release after application of sentence enhancements for commission of an offense involving sexual contact, knowing distribution, and use of a computer in commission of the offense.
    • The Court held there was no plain error in the magistrate’s advising of defendant of the potential sentencing consequences of his guilty plea, as defendant indicated that he understood he faced a sentence between 15 and 30 years.
    • The Court then held that defendant’s factual guilty plea admissions that the phone and flash drive he used were manufactured outside the state of Texas was all the proof necessary under plain error review for the jurisdiction hook that images at issue were produced or transmitted using materials that had been shipped in interstate commerce.
    • The Court also held that there was sufficient factual basis for the application of the sentencing enhancements, noting that upholding just one of the enhancements would provide a Guidelines range including defendant’s sentence and that there was sufficient basis for the “sexual contact” enhancement.

Unpublished

  • Fintech Fund, FLP v. Horne, 18-20449, appeal from S.D. Tex.
    • Owen, C.J. (Owen, Jones, Stewart), forum, personal jurisdiction
    • Affirming district court’s exercise of personal jurisdiction over defendant and dismissal of suit under forum non conveniens due to parties’ agreement to litigate in United Kingdom.
  • Turner v. Texas Department of Criminal Justice, 18-20832, appeal from S.D. Tex.
    • per curiam (Graves, Costa, Engelhardt), mootness, prisoner suit, religion
    • Affirming dismissal for mootness of prisoner’s suit to wear a beard and yarmulke at all times, upon department’s policy change allowing religious beards and headgear.
  • U.S. v. Joiner, 18-50136, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Affirming sentence under the ACCA.
  • U.S. v. Amaya-Alvarez, 19-11239, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Coastal Bridge Co., LLC v. Heatec, Inc., 19-31030, appeal from W.D. La.
    • per curiam (Graves, Costa, Engelhardt), negligence, summary judgment, spoliation
    • Reversing dismissal on summary judgment of plaintiff’s negligence claims due to existence of disputed material facts, reversing district court’s imposition of sanctions against plaintiff for spoliation of evidence, and remanding for further proceedings.
  • U.S. v. Gonzalez-Mendoza, 19-41051, appeal from S.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Affirming denial of “minor participant” sentence reduction.
  • MWK Recruiting, Inc. v. Jowers, 19-51064, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), antisuit injunction
    • Vacating district court’s imposition of antisuit injunction against related litigation commenced in Hong Kong, and remanding for further proceedings.
  • Santos v. Barr, 19-60381, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying petition for review of BIA order affirming IJ’s denial of motion to reopen.
  • U.S. v. Harris, 20-10183, appeal from N.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Affirming sentence based on use-of-firearm and importation sentencing enhancement.
  • U.S. v. Mondragon, 20-10210, appeal from N.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Affirming sentence based on application of obstruction of justice enhancement and denial of acceptance of responsibility reduction.
  • Sterling v. U.S., 20-10487, appeal from N.D. Tex.
    • per curiam (Davis, Stewart, Dennis), Federal Tort Claims Act
    • Affirming summary judgment dismissing plaintiff’s FTCA claims.
  • U.S. v. Hordge, 20-10596, appeal from N.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing, First Step Act
    • Affirming sentence and district court’s denial of motion to reduce sentence under the First Step Act.
  • Melancon v. Carnival Corp., 20-30217, appeal from E.D. La.
    • per curiam (King, Smith, Wilson), timeliness
    • Affirming dismissal of slip-and-fall suit based on contractual limitations period provided on cruise passenger’s ticket.
  • U.S. v. Martinez, 20-40090, appeal from S.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Affirming calculation of sentence under Guidelines.
  • Zeng v. Texas Tech University Health Science Center at El Paso, 20-50210, appeal from W.D. Tex.
    • per curiam (King, Smith, Wilson), employment discrimination, Title VII, due process
    • Affirming district court’s summary judgment dismissal of plaintiff’s employment discrimination, Title VII, due process, and Texas state law claims.
  • U.S. v. Conde-Castillo, 20-50260, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Affirming sentence of 14 months for illegal reentry.
  • U.S. v. Huerta-Nunez, 20-50322, appeal from W.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Granting government’s motion for summary affirmance, and affirming sentence.
  • U.S. v. Martinez-Sario, 20-50370, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Granting government’s motion for summary affirmance, and affirming sentence.
  • U.S. v. Ruiz-Garcia, 20-50706, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, mootness
    • Dismissing defendant’s appeal of pretrial detention as moot because defendant had already pled guilty.
  • U.S. v. Beasley, 20-60113, appeal from S.D. Miss.
    • per curiam (Clement, Higginson, Engelhardt), criminal, search and seizure
    • Affirming conviction for firearms violation, upholding district court’s denial of motion to suppress.