Take the Fifth: Dec. 2, 2020 opinions

Designated for publication

  • U.S. v. Cano, 19-11297, appeal from N.D. Tex.
    • Higginbotham, J. (Higginbotham, Smith, Dennis), criminal, sentencing, supervised release
    • Affirming sentence of consecutive 24-month imprisonment terms for violating terms of supervised release. Defendant had left the jurisdiction during his supervised release without informing his probation officer, to return to Mexico and assist his ex-wife and family. He contacted his probation officer to inform him where he was and why. After the birth of his daughter, he returned to the U.S. and turned himself in. The government sought sentencing of three to nine months. Observing that defendant had also failed to appear for his initial trial and left the jurisdiction then, too, the district court sentenced defendant to consecutive 24-month terms, an upward departure from the guidelines range, in order to promote respect for the law.
    • Because defendant failed to object to the district court’s reliance on this sentencing consideration, the Court reviewed his appeal on a plain-error standard.
    • The Court held that the district court’s reliance on defendant’s prior absconding before his trial was not an impermissible reliance on the improper consideration of respect for the law, but was an appropriate consideration of the defendant’s history with regard to the crime. The Court held that a “passing reference” to respect for the law did not convert this consideration into plain error.
    • The Court also held that the sentence was not substantively unreasonable because it appeared that the district court did have defendant’s history of self-surrender in front of it during the revocation sentencing hearing.
  • Hines v. Quillivan, 19-40605, appeal from S.D. Tex.
    • Southwick, J. (Elrod, Southwick, Haynes), Elrod, J., concurring in part and dissenting in part; First Amendment, Equal Protection
    • Affirming in part and reversing in part dismissal of veterinarian’s lawsuit against Texas officials for prohibition on veterinarians offering telemedicine–individualized advice on the care for pets without physically examining those pets.
    • Plaintiff had brought suit in 2013, alleging that Texas’s veterinarian telemedicine prohibition violated his rights to free speech and to due process, and that suit was dismissed for failure to state a claim. In 2017, Texas changed its physician rules to allow telemedicine for human patients, but did not change the similar rules for veterinarians; and in 2018 the Supreme Court held that regulation of what information abortion providers had to tell potential patients abrogated their “professional speech” under the First Amendment, in National Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018). So Plaintiff filed a new suit, claiming that NIFLA abrogated the decision dismissing his First Amendment claim in his first suit, and that the different treatment of telemedicine between physicians and veterinarians was the basis for an Equal Protection claim. The district court dismissed both claims.
    • The Court held that the intervening decision in Vizaline, L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020), has already specifically recognized that NIFLA abrogated the original lawsuit decision in this case. Therefore, the Court reversed the district court’s dismissal of Plaintiff’s First Amendment claim and remanded for a determination of whether “the state’s licensing requirements regulate only speech, restrict speech only incidentally to their regulation of non-expressive professional conduct, or regulate only non-expressive conduct.”
    • On the Equal Protection claim, the Court held that there was a rational basis for the state’s differing treatment of telemedicine and televeterinary services: “We agree with the State here that it is rational to distinguish between humans and animals based on the species’ differing capabilities. More to the point, though, the law’s differentiating between medical doctors and veterinarians is a logical distinction, unlike the artificial line-drawing of the casket rule considered in St. Joseph Abbey. Texas’s statutory requirements for medical doctors are found in Title 3 of the Texas Occupations Code, while the requirements for veterinarians are in Title 4. The occupations have different governing boards and rulemaking bodies. They require different schooling. They treat different subjects, and the treatment sometimes differs substantially. The professions have their similarities, of course, but in our inquiry, there are rational reasons to believe regulations suitable for one profession are not constitutionally required for the other.”
    • Judge Elrod dissented in part, opining that, for Rule 12(b)(6) purposes, the Plaintiff had stated a claim that he was treated differently from similarly situated persons (physicians) and that there was not a rational basis for the distinction: “As Dr. Hines argues, ‘[i]t simply is not rational to allow telemedicine without a physical examination for babies but deny the same form of telemedicine for puppies on the ground that puppies cannot speak.’ Babies and other non-communicative adults were intentional beneficiaries of Texas’s expansion of telemedicine, not the subjects of unwitting overinclusion. Texas has never shown a preference for animals over humans that would support requiring higher standards for animals’ medical treatment.”


  • Carr v. Hoover, 18-60603, appeal from N.D. Miss.
    • per curiam (Owen, King, Engelhardt), qualified immunity, search and seizure
    • Affirming dismissal of pro se suit against arresting officer for arrest made allegedly without warrant or probable cause. Court held that there was no Fourth Amendment violation in officer’s look into plaintiff’s truck while it was parked in the driveway of a home he was temporarily visiting. Court did not reach the qualified immunity arguments.
  • U.S. v. Mitchell, 19-10722, appeal from N.D. Tex.
    • per curiam (Owen, King, Engelhardt), criminal
    • Affirming conviction on possession of a firearm by a felon.
  • Clark v. Sanofi-Aventis, U.S., LLC, 19-30631, appeal from E.D. La.
    • per curiam (Clement, Ho, Duncan), products liability
    • Affirming dismissal and denial of motions for reconsideration by plaintiffs alleging hair loss caused by chemotherapy drugs.