Take the Fifth

Designated for publication

• U.S. v. Batiste, 19-30927, appeal from E.D. La.
  • Engelhardt, J., (Graves, Costa, Engelhardt), criminal, sentencing, First Step Act
  • Affirming in part sentence of imprisonment and denial of sentence-reduction under the First Step Act, but remanding in part the portion of the sentence regarding the term of supervised release for the district court to consider the First Step Act reduction-request with regard to the supervised-release term. While the statutory sentencing range at the time of sentencing had been 20 years to life, under the First Step Act that range would have been 10 years to life. With the incorporation of a career-offender enhancement, the defendant had been sentenced to a 262-month prison term, which was the bottom of the Guidelines range. The Guidelines range would have been the same even under the lower statutory minimum, due to the career-offender enhancement.
  • The Court first engaged in an extensive analysis of the 5th Circuit’s development of jurisprudence under the First Step Act. It then held that the district court correctly recognized that it could review all of the § 3553 factors for sentence-reduction but did not abuse its discretion in determining that no reduction was warranted for defendant here.
  • The Court then held that the district court’s six-page order denying the sentence reduction sufficiently explained the reason to deny a reduction in the prison sentence, but that it failed to address the defendant’s request for a reduction in the term of supervised release.

• Bacilio-Sebastian v. Barr, 19-50168, appeal from W.D. Tex.
  • Haynes, J. (Higginbotham, Elrod, Haynes), Higginbotham, J., dissenting; immigration, habeas corpus, mootness
  • Affirming denial of petitions for habeas corpus on mootness grounds.
  • Petitioners, Guatemalan nationals, had been taken into ICE custody upon entering the United States. Shortly thereafter, they had received notices of parole, but after transfer to a new detention facility, had their parole notices confiscated. They then filed these petitions for habeas corpus, also seeking declaratory relief regarding their status as paroled. ICE then released them from custody, but not on parole, and the government subsequently revoked their parole (though they remained out of custody).
  • The Court held that the petitions were moot, rejecting petitioners’ argument that the lack of a parole order carried collateral effects on their ability to gain employment. The Court acknowledged that the lack of a parole order might make employment more difficult, but that “the limitation on employment is based on their undocumented status, not, like a criminal case, on an underlying conviction that might be attacked in a habeas petition. Since neither actual confinement nor an underlying conviction are the basis for Petitioners’ employment obstacles, it appears that maintaining a habeas petition is not a viable means to obtain the relief that Petitioners seek.” In addition, the Court recognized that “nonstatutory consequences,” those depending on discretionary decisions by an employer or sentencing judge, are not actionable in habeas.
  • Judge Higginbotham dissented. “Because this adverse consequence is specific, concrete, and flows directly as a matter of law from the challenged government action, I would hold that Petitioners’ case is not moot.”

• U.S. v. Robinson, 19-50907, appeal from W.D. Tex.
  • Engelhardt, J. (Graves, Costa, Engelhardt), criminal, sentencing, First Step Act
  • Affirming denial of motion for sentence reduction. After an extensive summary of 5th Circuit jurisprudence under the First Step Act, the Court held that the district court here appropriately considered all of the defendant’s arguments and appropriately exercised its discretion to not resentence defendant under the amended guidelines.

• U.S. v. Arayatanon, 19-60233, appeal from S.D. Miss.
  • Higginson, J. (Dennis, Higginson, Willett), criminal, sentencing
  • Affirming conviction for conspiracy to possess with intent to distribute more than 500 grams of methamphetamine and sentence to life in prison.
  • The Court held there was no error in the district court’s overruling of defendant’s objection at trial to the excusing of two government agents from sequestration.
  • The Court held that there was no error in the district court’s admission into evidence of four jailhouse phone calls participated in by defendant, rejecting the argument that the presentation of phone calls made from incarceration were tantamount to and equally prejudicial as forcing a defendant to appear in shackles and prison garb.
  • The Court also upheld the district court’s calculation of drug quantity for sentencing purposes as it was based on a co-conspirator’s testimony that, while imprecise, was wholly unrebutted. The Court also upheld the application of the importation sentence enhancement because defendant’s argument that the methamphetamine could have been produced by a Mexican cartel inside the United States was mere speculation. Finally, the Court held that there was no clear error in the district court’s application of the career offender enhancement because the use of an abstract of judgment regarding a 2009 California conviction was sufficient to show that the conviction existed, and was corroborated by documents related to a 2013 conviction.

Unpublished

• U.S. v. Watts, 18-10959, appeal from N.D. Tex.
  • per curiam (Dennis, Higginson, Willett), criminal, sentencing
  • Affirming conviction and sentence for crimes including sex trafficking.

• Corrales v. Barr, 19-60099, petition for review of BIA order
  • per curiam (Clement, Higginson, Engelhardt), immigration
  • Denying petition for review of BIA order dismissing appeal from IJ order denying applications for asylum and withholding of removal.

• Wright v. Administrative Review Board, U.S. Department of Labor, 19-60561, petition for review of final decision of U.S. DOL Administrative Review Board
  • per curiam (Owen, Southwick, Willett), labor law, retaliation
  • Affirming DOL ARB ruling that upheld ALJ decision rejecting petitioner’s claims that he was terminated from Railroad Commission of Texas position in retaliation for protected activity under the Clean Water Act and the Safe Drinking Water Act.

• U.S. v. Estrada, 20-10336, appeal from N.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Granting motion for summary affirmance of sentence.

• U.S. v. Jackson, 20-10808, appeal from N.D. Tex.
  • per curiam (Willett, Ho, Duncan), criminal, sentencing, compassionate release
  • Affirming decision of district court denying motion for compassionate release.

• U.S. v. Ferrell, 20-20180, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming district court’s denial of motion for sentence reduction.

• Jones v. Southern University, 20-30231, appeal from M.D. La.
  • per curiam (King, Smith, Wilson), Title VI, retaliation
  • Affirming 12(b)(6) dismissal of Title VI retaliation claims.

• In re: Chinese Manufactured Drywall Products Liability Litigation, 20-30326, appeal from E.D. La.
  • Davis, J. (Davis, Stewart, Dennis), timeliness (statute of limitations), product liability
  • Affirming district court’s dismissal of products liability suit as time-barred under Mississippi’s statute of limitations.

• U.S. v. Smith, 20-50239, appeal from W.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Carrizal v. Brennan, 20-50333, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Dennis), employment discrimination
  • Affirming summary judgment dismissing employment discrimination claim against Postmaster General.

• Watson v. Texas State University, 20-50436, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), frivolous
  • Dismissing appeal of dismissal of claim based on meritless sovereign citizen-associated claims, and imposing sanctions.