Take the Fifth

Designated for publication

• Ovalles v. Rosen, 17-60438, petition for review of BIA order
  • Jones, J. (Jones, Smith, Elrod), immigration, equitable tolling
  • On remand from the Supreme Court, denying petition for review of BIA order denying motion to reopen and failing to apply equitable tolling.
  • The Court had originally dismissed the petition for review for lack of jurisdiction. After the Supreme Court vacated that dismissal and remanded, the Court now denies the petition, finding that equitable tolling did not apply. Petitioner had urged that the Fifth Circuit’s decision in Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) that the 90-day window for filing a motion to reopen could be equitably tolled by an intervening change in the law, was not itself an intervening change in the law. The Court held that the Lugo-Resendez court had acknowledged that the question had been an open question prior to that opinion, such that that opinion was the settling of an unaddressed point of law rather than an intervening change in the law. “[U]ncertain legal terrain does not create an obstacle that stands in the way of an individual meeting the motion to reopen deadline.” Instead, noted the Court, the law previous to the purported change must have been such that it stood in the way of and prevented the relief sought in the otherwise untimely motion.

• Taylor-Travis v. Jackson State University, 17-60856, appeal from S.D. Miss.
  • Owen, C.J. (Owen, Wiener, Dennis), Title IX, retaliation, breach of contract, invasion of privacy, employment
  • Affirming judgment on jury verdict in favor of plaintiff on breach of contract claim, and against plaintiff on Title IX retaliation claim; and reversing district court judgment in favor of plaintiff on invasion of privacy claim; all arising from termination of plaintiff’s employment as head basketball coach at University.
  • The University appealed the judgment. of breach of contract, arguing that its termination of plaintiff for misappropriation of travel and meal funds in violation of University policies and mistreatment of student athletes was a termination “for cause” under the employment contract, such that it did not owe plaintiff the money owed through the end of her contract term. The Court disagreed. Because there was conflicting evidence on each of the reasons for termination, the Court held that there was legally sufficient evidence to uphold the jury’s verdict of breach of contract. “Drawing all reasonable inferences in favor of Taylor, the jury had sufficient evidence to conclude that any policy violation was not ‘deliberate, serious and willful’ and that Taylor performed her duties ‘in good faith.'”
  • The Court held that the district court did not abuse its discretion in refusing the University’s proposed jury instruction that the jury should not compare the University’s administration of the policies at issue to similarly situated employees, because the Mississippi Supreme Court case relied on by the University was distinguishable where the questions of the coach’s good faith and whether her violations of policy were knowing and willful were at issue.
  • The Court then held that the plaintiff’s invasion of privacy claim–premised on the University’s limited release of materials to the press in response to a public records request–failed as a matter of law. In four pages at issue, the allegations and charges against the coach by the University were summarized. The Court held that, because these were matters of public concern, they did not constitute disclosure of “private facts.” “Taylor admitted that as a head coach at a major public university, she was in the public eye. The public’s interest extends to the reason for her termination.”
  • The Court rejected plaintiff’s arguments that the district court incorrectly instructed the jury as to the causation element of her Title IX retaliation claim. Confronting the parties’ arguments regarding the causation standard from an earlier Fifth Circuit decision, the Court held, “To the extent that it addressed that issue, Lowrey stated that ‘the anti-retaliation provision of title IX is similar to those of title VII and the ADEA and should be accorded a similar interpretation.’ Accordingly, Lowrey did not announce a sole causation standard for Title IX retaliation claims; it suggested that the causation standard for Title IX claims should be the same as the causation standard for Title VII claims while clarifying that complaints about conduct barred by Title VII could not form the basis of a Title IX claim. Regardless, a new trial is not warranted because the district court’s instruction ‘substantially covered’ the correct standard: that there must be a ‘causal connection’ between the Title IX complaint and the adverse employment action.”

• U.S. v. Hernandez-Zavala, 18-40669, appeal from S.D. Tex.
  • Smith, J. (Jones, Smith, Elrod), habeas corpus
  • Affirming district court’s dismissal of petitioner’s § 2255 petition challenging sentence on revocation of supervised release.
  • Court held that district court did not err in failing to sua sponte provide the petitioner an opportunity to amend his § 2255 petition. to cure vagueness.

• U.S. v. Morton, 19-10842, appeal from N.D. Tex.
  • Jolly, J. (Jolly, Southwick, Wilson), criminal, search and seizure
  • Vacating sentence of conviction on child pornography charges, reversing district court’s denial of motion exclude images found on cell phone, and remanding for further proceedings.
  • Defendant had been stopped for speeding, then consented to a search of his van when the apprehending officer smelled marijuana. In addition to discovering ecstasy pills and marijuana and a pipe, the officer found paraphernalia leading him to believe child exploitation may be a concern. The arresting officers then submitted an affidavit for a search warrant to search three cell phones, supporting that affidavit with the evidence uncovered regarding drug possession; and with that warrant they discovered thousands of images of child pornography.
  • In determining whether the good faith exception to thee exclusion rule applied to the recovery of the child pornography images based on an affidavit that only attested to potential drug possession activity, the Court looked to whether “the warrant so lack[ed] indicia of probable cause that the officers’ reliance on it was entirely unreasonable.” (Internal quotation marks and citation omitted). The Court also noted that probable cause is required separately for each type of information sought to be accessed on a cell phone (i.e., contacts separate from texts separate from photos, etc.). “[T]his observation means that the facts as alleged in Trooper Blue’s affidavits must raise a ‘fair probability’ or a ‘substantial chance’ that evidence relevant to Morton’s crime—that is, simple drug possession—will be found in each place to be searched: his contacts, his call logs, his text messages, and his photographs. There must be a specific factual basis in the affidavit that connects each cellphone feature to be searched to the drug possession crimes with which Morton was initially charged.”
  • The arresting officer’s affidavit had alleged that, based on his experience, photographs could reveal images of co-conspirators and illicit drugs and proceeds. “The search warrant is thus expanded to seek information of an alleged narcotics trafficking conspiracy based solely on Morton’s arrest for, and evidence of, simple drug possession.” The Court observed that the syllogism that the personal-use quantity of drugs found in defendant’s possession meant that the defendant was dealing drugs was unsupported by key facts that showed that there was not probable cause to believe the defendant was a drug dealer. “[I]ndications of drug trafficking were lacking: no significant amount of drugs; paraphernalia for personal use, not sale; and no large amounts of cash. Or precisely: there was no evidence supporting drug trafficking.” Accordingly, the Court held there was no probable cause to search the photos on the defendant’s cell phones.
  • The Court then turned to the good cause exception to the exclusion rule, asking “whether the officers’ good faith reliance on these defective warrants was objectively reasonable.” The Court found, “The facts here lead to the sensible conclusion that Morton was a consumer of drugs; the facts do not lead to a sensible conclusion that Morton was a drug dealer. Under these facts, reasonably well-trained officers would have been aware that searching the digital images on Morton’s phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause, despite the magistrate’s approval.”

• U.S. v. Delgado, 19-20697, appeal from S.D. Tex.
  • Higginson, J. (Dennis, Higginson, Willett), criminal, sufficiency of evidence, sentencing, bribery
  • Affirming conviction and sentence of former judge for accepting bribes to issue personal recognizance bonds to attorney’s clients; convictions included for conspiracy to commit bribery, bribery, use of interstate commerce to assist a racketeering enterprise, and obstruction of justice.
  • The Court held that the jurisdictional threshold amount on the bribery charges–$5,000–could be met for transactions where the attorney would pay the judge $250 to $300 for a small bundle of firewood in exchange for a PR bond that would require the underlying defendant to pay $5000 if the bond was forfeited. The Court held that this supported the jury’s verdict that the “thing of value” was at least $5000, and that the valuation need not be tied to the amount of the bribe.
  • The Court then held that there was sufficient evidence to support the jury’s verdict of conviction even where the attorney/informant did not testify about an express agreement to issue PR bonds in exchange for money but there was sufficient circumstantial evidence in that testimony to support the conclusion that the money at issue was in exchange for favorable rulings.
  • The Court also held that there was sufficient evidence to support the verdict on obstruction of justice because the testimony showed that the judge/defendant tried to “cover his tracks” by recasting one large payment by the attorney as a campaign contribution.
  • The Court then held that there was no plain error in the district court’s valuation of the amount of the benefit derived from the bribe as $5000 for each PR bond, for purposes of calculating the sentencing enhancement. “At its core, the ‘value’ someone receives from a PR bond is intertwined with a liberty interest that is hard to definitively quantify. We do not think it was error—let alone clear error—for the district court to value the bonds at the amount Perez’s clients were willing to risk forfeiting in order to secure the bonds.”

• U.S. v. Tanner, 19-30833, appeal from W.D. La.
  • Smith, J. (Jones, Smith, Elrod), criminal, sentencing
  • Affirming amount of restitution in written judgment on federal student aid fraud conviction, finding that, while the oral pronouncement of the restitution amount was ambiguous, it was not in conflict with the written judgment.

• Cordua Restaurants, Inc. v. National Labor Relations Board, 19-60630, petition for review of NLRB decision and order
  • Higginson, J. (Dennis, Higginson, Willett), labor law
  • Affirming NLRB finding that restaurant group violated the National Labor Relations Act by firing an employee for engaging in conduct protected by the NLRA.
  • The employee had initiated an FLSA lawsuit against the restaurant group, and over time had been joined in that lawsuit by 19 other employees of the restaurant group as they learned about the lawsuit. The employee was then approached by an assistant manager of one of the restaurants for information about joining the lawsuit or for contact information for his lawyer, and also offered to provide him with wage records. The employee was subsequently terminated after management of the restaurant group had intercepted text messages between the employee and the assistant manager, on the basis that the employee had attempted to access confidential records and then lied to management about it.
  • The Court held that an NLRA breach occurs when an employee is. terminated for engaging in NLRA-protected activities, such as engaging in concerted activities for the purpose of mutual aid or protection. The Court held that the NLRB decision that a violation had occurred need only be supported by substantial evidence in the record that the employee’s protected activity was a substantial or motivating factor in the termination (not that it was the sole motivating factor), and that circumstantial evidence would suffice.
  • The Court found that the NLRB did not err in finding that the employee engaged in protected activities by discussing wage issues with his coworkers, attempting to obtain his own personnel records, and filing the FLSA lawsuit; and that the NLRB had not based its decision on a finding that any attempt to access other employees’ records was a protected activity. The Court then upheld the NLRB’s finding of animus by the restaurant group related to the employee’s protected activities, based on a manager’s surveillance of the employee’s text conversations with the assistant manager and hostile questioning of the employee, the timing of the restaurant group’s investigation into the employee soon after the announcement of the lawsuit to managers of the restaurant group, internal inconsistencies in the restaurant group’s response to the purported misconduct, and the failure of the restaurant group to engage in a “meaningful investigation.”
  • The Court also held that the evidence, including credibility determinations of testimony by the ALJ, supported the NLRB’s finding that the employee had not been dishonest in denying that he had sought access to other employees’ personnel records. Accordingly, the Court rejected the restaurant group’s arguments that it should have prevailed on an affirmative defense that it would have terminated the employee regardless of his protected activity; and that the employee should have been estopped from receiving a backpay award.

• Lindsley v. TRT Holdings, Inc., 20-10263, appeal from N.D. Tex.
  • Ho, J. (Clement, Ho, Duncan), employment discrimination, Title VII
  • Reversing in part district court’s grant of summary judgment dismissing plaintiff’s claims of sexual discrimination in compensation, and remanding for further proceedings.
  • Judge Ho summarized the case before the Court: “Equality of opportunity is fundamental to who we are, and to who we aspire to be, as a nation. Our commitment to this ideal is deeply engrained in our Constitution and in numerous federal and state laws. And a core component of our promise of equal opportunity, regardless of the circumstances of one’s birth, is non-discrimination in pay. Pay disparities can of course exist for any number of reasons, including disparities that are rational in relation to value added or driven by the pool of labor available. But what we do not accept are pay disparities due to the employee’s race or sex. And that is the problem here: Sarah Lindsley has put forth a prima facie cas of sex discrimination. It is undisputed that she was paid less than all three men who preceded her as food and beverage director of the Omni hotel in Corpus Christi, Texas. If there is a good explanation for that disparity, Omni is required to put one forth if it wishes to prevail in this litigation. Omni failed to do so. Yet the district court granted summary judgment to Omni anyway. That was wrong—the lack of a plausible, non-discriminatory explanation for the pay disparity may very well mean that Lindsley has a viable claim of sex discrimination.
  • Based on the lack of dispute that the three predecessors in the same job plaintiff held were all paid more than her, the Court held that plaintiff had made a prima facie showing of pay discrimination under Title VII and under the Texas Labor Code.
  • However, because the Equal Pay Act contains a “same establishment” requirement, the Court affirmed summary judgment dismissing plaintiff’s claims based on disparity in salary to men who held the same position at other hotels run by the defendant hotel group.
  • The Court also upheld summary judgment dismissing plaintiff’s claim of promotion discrimination, finding that the defendant had provided evidence that the employee had been offered the promotion but had turned it down.
  • Finally, the Court upheld the dismissal of plaintiff’s retaliation claims, holding that she had failed to make a case of adverse employment actions, as the promotion of a new menu without her input was a “petty slight or annoyance,” not a removal of a job function; and verbal abuse by her supervisor did not rise to the level of an adverse employment action.

• Echeverry v. Jazz Casino Co., LLC, 20-30038, appeal from E.D. La.
  • Southwick, J. (Jolly, Southwick, Wilson), negligence, damages, sufficiency of evidence
  • Affirming district court’s denial of defendant’s motion for judgment as a matter of law and motion for new trial upon judgment in favor of plaintiff on claims for negligence arising from being struck by man-lift outside casino, but vacating $1 million damages award for future pain and suffering and disfigurement to be excessive and remanding for further proceedings.
  • The Court held that the evidence was sufficient to support liability verdicts on plaintiff’s theories of negligence in hiring, in operational control, and in authorization of unsafe work practices.
  • The Court then held that there was no abuse of discretion in the district court’s admission of the Better Business Bureau’s “F” rating of the contractor being used by the Casino, the contractor’s insurance certificate showing its insurance had expired prior to the work it was doing on the Casino, the Casino’s internal policies regarding hiring contractors, and photographs of construction sites around New Orleans.
  • The Court then held that the $1 million award for future pain and suffering, arising from plaintiff’s broken ankle and that likelihood of life-long pain and scarring following the three surgeries on her ankle, was beyond that which a reasonable trier of fact could assess. The Court also analyzed published dispositions from Louisiana state court cases involving similar injuries, and found that, adjusting for inflation and applying a 50% premium showed that plaintiff’s $1 million award was still unreasonably excessive.

• U.S. v. Thompson, 20-40381, appeal from E.D. Tex.
  • Smith, J. (Jones, Smith, Elrod), criminal, compassionate release
  • Affirming denial of motion for early release as compassionate release on grounds related to Covid-19.
  • The defendant suffered from hypertension, high cholesterol, and had suffered a stroke ten years before from which he suffered no lingering effects; he requested from the warden early release due to concerns about heightened risk of adverse effect from Covid-19, and was denied. His motion for compassionate release to the district court was also denied.
  • “Extraordinary and compelling reasons” may justify shortening of a sentence for compassionate release. Because nearly half of the adult population of the U.S. suffers from hypertension, and 12% from high cholesterol, the Court held these factors were neither “extraordinary” nor “compelling.” “Fear of COVID doesn’t automatically entitle a prisoner to release. Thompson can point to no case in which a court, on account of the pandemic, has granted compassionate release to an otherwise healthy defendant with two, well-controlled, chronic medical conditions and who had completed less than half of his sentence.”

Unpublished

• Gohmert v. Pence, 21-40001, appeal from E.D. Tex.per curiam (Higginbotham, Smith, Oldham), standing, jurisdiction, election law
  • Denying motion to expedite appeal as moot, and affirming district court’s dismissal of suit for lack of standing and Article III jurisdiction.
  • From the district court’s ruling: “This case challenges the constitutionality of the Electoral Count Act of 1887, as codified at 3 U.S.C. §§ 5, 15. The Court cannot address that question, however, without ensuring that it has jurisdiction. See, e.g., U.S. CONST. art. III, § 2; Cary v. Curtis, 44 U.S. 236, 245 (1845). One crucial component of jurisdiction is that the plaintiffs have standing. This requires the plaintiffs to show a personal injury that is fairly traceable to the defendant’s allegedly unlawful conduct and is likely to be redressed by the requested relief. See, e.g., U.S. CONST. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Requiring plaintiffs to make this showing helps enforce the limited role of federal courts in our constitutional system. The problem for Plaintiffs here is that they lack standing. Plaintiff Louie Gohmert, the United States Representative for Texas’s First Congressional District, alleges at most an institutional injury to the House of Representatives. Under well-settled Supreme Court authority, that is insufficient to support standing. Raines v.  Byrd, 521 U.S. 811, 829 (1997). The other Plaintiffs, the slate of Republican Presidential Electors for the State of Arizona (the “Nominee-Electors”), allege an injury that is not fairly traceable to the Defendant, the Vice President of the United States, and is unlikely to be redressed by the requested relief.”

• Diggs v. Vannoy, 18-31152, appeal from W.D. La.
  • per curiam (Wiener, Costa, Willett), habeas corpus, timeliness, equitable tolling
  • Affirming dismissal of petition for post-conviction relief as untimely.

• U.S. v. Argueta-Portillo, 18-40955, appeal from S.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming sentence and supervised release terms.

• U.S. v. Chavez, 18-50939, appeal from W.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. O’Neal, 18-51703, appeal from W.D. Tex.
  • per curiam (Davis, Elrod, Oldham), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Macedo-Benitez, 19-11049, appeal from N.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Remanding to district court to conform written judgment, which included 12 supervised release conditions not in the oral pronouncement, to the oral pronouncement.

• U.S. v. Partaka, 19-11160, appeal from N.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Affirming sentencing based on enhancement for two separate occasions of prohibited sexual activity with a minor.

• U.S. v. Wilson, 19-11312, appeal from N.D. Tex.
  • per curiam (Graves, Costa, Engelhardt), Graves, J., dissenting; criminal, sentencing
  • Affirming sentence enhancement for maintaining a premises for the purpose of distributing a controlled substance.
  • Judge Graves dissented.

• U.S. v. Garcia, 19-11316, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal
  • Affirming motion to deny sentence-reduction motion filed after direct appeal of sentence was final.

• U.S. v. Miller, 19-11332, appeal from N.D. Tex.
  • per curiam (Jones, Smith, Elrod), criminal, search and seizure
  • Affirming conviction and order denying motion to suppress evidence of explosive devices found after warrantless search of car based on officers’ spotting methamphetamines in the car.

• U.S. v. Ramirez, 19-40381, appeal from S.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Affirming sentence and terms of supervised release, “subject to the interpretation that approval is not required for each instance of computer usage and Internet access.”

• U.S. v. Snell, 19-40852, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sufficiency of evidence
  • Affirming conviction for conspiracy with intent to distribute cocaine.

• U.S. v. Preciado, 19-50926, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Doe v. Harrell, 19-51013, appeal from W.D. Tex.
  • per curiam (Haynes, Higginson, Oldham), First Amendment
  • Affirming dismissal of plaintiff’s claims arising from his failing exams in his Ph.D. epidemiology program, for lack of subject matter jurisdiction and for failure to state a claim.

• U.S. v. Mayfield, 19-51170, appeal from W.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Affirming sentence of 57 months of imprisonment following his guilty plea conviction of possession of a firearm by a felon.

• Sorev v. Rosen, 19-60320, petition for review of BIA order
  • per curiam (Wiener, Southwick, Duncan), immigration
  • Denying petition for review of BIA order dismissing appeal of IJ order denying petition for asylum, withholding of removal, and protection under CAT.

• Doan v. Rosen, 19-60485, petition for review of BIA order
  • per curiam (Haynes, Willett, Ho), immigration
  • Denying petition for review of BIA order denying motion to reconsider.

• Perez-Escobar v. Rosen, 19-60500, petition for review of BIA order
  • per curiam (Higginbotham, Jones, Costa), immigration
  • Dismissing in part and denying in part petition to review BIA order dismissing appeal of IJ order denying motion reopen removal proceedings and rescind in absentia removal.

• Espinoza-Villasenor v. Barr, 19-60532, petition for review of BIA order
  • per curiam (Barksdale, Graves, Oldham), immigration
  • Denying petition for review of BIA order dismissing appeal of IJ order denying application for withholding of removal and protection under CAT.

• Acosta v. Rosen, 19-60871, petition for review of BIA order
  • per curiam (Wiener, Southwick, Duncan), immigration
  • Dismissing petition for review of BIA order dismissing appeal of IJ order denying application for asylum, withholding of removal, and protection under CAT.

• U.S. v. Rubi-Rojas, 20-10193, appeal from N.D. Tex.
  • per curiam (Graves, Willett, Duncan), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Regan, 20-10198, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, search and seizure
  • Affirming conviction and sentence on child pornography counts.

• Penni v. Giorgi, 20-10349, appeal from N.D. Tex.
  • Jones, J. (Higginbotham, Jones, Costa), defamation
  • Affirming dismissal of defamation claims.

• U.S. v. Martinez, 20-10464, appeal from N.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, First Step Act
  • Affirming denial of motion for sentence reduction.

• U.S. v. Benitez, 20-10494, appeal from N.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • Granting motion for summary affirmance and affirming within-guidelines sentence for illegal reentry.

• Burch v. Freedom Mortgage Corp., 20-10498, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), bankruptcy
  • Dismissing appeal of one set of claims arising from Chapter 11 bankruptcy for lack of subject matter jurisdiction, and affirming dismissal of remaining claims.

• U.S. v. Hamilton, 20-10566, appeal from N.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Walker, 20-10590, appeal from N.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming sentence for revocation of supervised release.

• U.S. v. Williams, 20-10693, appeal from N.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, First Step Act
  • Granting motion for summary affirmance of denial of motion for sentence reduction.

• U.S. v. Hamilton, 20-10717, appeal from N.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Blair v. Harris County, 20-20249, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), employment discrimination, Age Discrimination in Employment Act
  • Affirming summary judgment dismissal of age discrimination claim.

• Ochoa-Castillo v. Carroll, 20-20274, appeal from S.D. Tex.
  • per curiam (King, Smith Wilson), immigration
  • Affirming district court’s dismissal of lawsuit challenging the United States Customs and Immigration Service’s denial of his petition for Special Immigrant Juvenile status.

• U.S. v. Orellana, 20-20320, appeal from S.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Affirming sentence for illegal reentry.

• U.S. v. Mathes, 20-30183, appeal from M.D. La.
  • per curiam (Jones, Smith, Elrod), criminal, sentencing
  • Vacating sentence for distribution of cocaine and remanding for resentencing.

• Price v. City of Bossier, 20-30263, appeal from W.D. La.
  • per curiam (Jones, Smith, Elrod), excessive force
  • Affirming dismissal of plaintiff’s excessive force claims for failure to state a claim.

• Shivers v. BP, plc, 20-30300, appeal from E.D. La.
  • per curiam (Haynes, Higginson, Oldham), intentional infliction of emotional distress
  • Affirming dismissal of claims of intentional infliction of emotional distress arising from cleanup of Deepwater Horizon oil spill.

• Mendoza v. FDIC, 20-30315, appeal from M.D. La.
  • per curiam (Wiener, Southwick, Duncan), receivership
  • Affirming summary judgment dismissal of claim against receiver by holder of promissory note.

• U.S. v. Byrd, 20-30347, appeal from W.D. La.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Dismissing appeal of sentence for lack of jurisdiction.

• Price v. Irons, 20-30412, appeal from E.D. La.
  • per curiam (Jolly, Elrod, Graves), sovereign immunity, judicial immunity
  • Affirming dismissal of claims against state court judges and entities on basis of sovereign immunity and judicial immunity, and against opposing law firm in state court litigation for failure to state a claim.

• U.S. v. Perez, 20-40181, appeal from S.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, search and seizure
  • Affirming conviction based on denial of motion to suppress evidence resulting from a traffic stop.

• U.S. v. Joshi, 20-40186, appeal from E.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
  • Affirming above-guidelines range sentence imposed upon his guilty plea to sending threatening communications to injure another.

• U.S. v. Curiel-Trevino, 20-40217, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• Willard v. Friendswood Independent School District, 20-40273, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), employment, Americans with Disabilities Act
  • Affirming summary judgment dismissal of constructive discharge and hostile work environment claims under the ADA.

• U.S. v. Villarreal, 20-40483, appeal from E.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, compassionate release
  • Vacating district court’s denial of motion for compassionate release on COVID-19 grounds and remanding for further proceedings.

• Milam v. Lumpkin, 20-40849, appeal from E.D. Tex.
  • per curiam (Elrod, Graves, Higginson), habeas corpus
  • Affirming order transferring second-in-time petition to Court of Appeals. and denying motion for stay of execution.

• U.S. v. El-Hennawi, 20-50035, appeal from W.D. Tex.
  • per curiam (Owen, Dennis, Ho), criminal, sentencing
  • Affirming guidelines sentence of 100 months of imprisonment imposed following his conviction for conspiracy to possess with intent to distribute synthetic marijuana.

• Torres v. Lowe’s Home Centers, LLC, 20-50077, appeal from W.D. Tex.
  • per curiam (Jones, Smith, Elrod), abandonment
  • Affirming dismissal. ofclaims under Rule 41(b) for failure to prosecute claim.

• U.S. v. Martinez-Nino, 20-50145, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Affirming within-guidelines 70-month concurrent sentences for one count of conspiracy to transport an illegal alien and two counts of transporting an illegal alien for financial gain.

• U.S. v. Montoya, 20-50241, appeal from W.D. Tex.
  • per curiam (Davis, Elrod, Oldham), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Reyes-Torres, 20-50476, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Granting motion for summary affirmance and affirming bench trial conviction and the resulting 15-month sentence imposed for possession of a firearm by an alien illegally and unlawfully in the United States.

• U.S. v. Riley, 20-50588, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, First Step Act
  • Remanding to district court for ruling on still-pending motion for reconsideration of order denying sentence reduction.

• U.S. v. Lopez-Hernandez, 20-50742, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Costa), criminal, sentencing
  • Granting motion for summary affirmance and affirming sentence of 16 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry.

• Warnock Engineering, LLC v. Canton Municipal Utilities, 20-60238, appeal from S.D. Miss.
  • per curiam (Jones, Smith, Elrod), breach of contract
  • Affirming dismissal of claims for wrongful discharge, copyright infringement, RICO violations, injunctive relief, negligence, open account, misappropriation, declaratory judgment, and breach of contract.

• Blair v. Yum! Brands, Inc., 20-60791, appeal from S.D. Miss.
  • per curiam (King, Smith, Wilson), res judicata
  • Affirming dismissal of claims as barred by res judicata.