Take the Fifth

Designated for publication

• U.S. v. Medel-Guadalupe, 19-40901, appeal from S.D. Tex.
  • per curiam (Jones, Haynes, Ho), criminal, sentencing, supervised release
  • Withdrawing opinion issued on Oct. 27, 2020, and entering new opinion, affirming sentence of 120 months’ imprisonment and three years’ supervised release for guilty plea to one count of harboring illegal aliens, and consecutive sentence of 12 months for revocation of prior term of supervised release.
  • The Court first held that the defendant waived his argument that the count he pled guilty to was defective because it prohibited duplicate behavior–by pleading guilty. While “[a]n ‘untimely’ Rule 12 motion is not waived and is reviewable for plain error…, [guilty please] are governed by Rule 11, not Rule 12, and there is no corresponding 2014 amendment to Rule 11. Further, the Advisory Committee Notes state that this change was driven by the intentional relinquishment connotation of ‘waiver,’ something not required by Rule 12. Here, Medel-Guadalupe intentionally and unequivocally relinquished this right.”
  • The Court then held that any error in the application of the “reckless endangerment” and “bodily injury” enhancements was harmless, as the district court expressed that it would have imposed the same sentence regardless of the enhancements.
  • The Court then held that the district court did not improperly delegate judicial powers where the supervised release conditions as to substance abuse treatment participation left up to the parole officer whether the treatment would be in-patient or out-patient, as well as the modality, duration, and intensity of that treatment. “[T]he district court expressly mandated that Medel-Guadalupe participate in the treatment program, leaving no decision for the probation officer to make regarding the core feature of the special condition. Instead, ‘inpatient or outpatient’ and ‘modality, intensity, duration;’ are all details of the conditions, decisions which can be properly delegated.”
  • And the Court held that the district court properly chose to rely on the Guidelines’ reasoning in determining to run the revocation sentence consecutively rather than concurrently.

• Broadnax v. Lumpkin, 19-70014, appeal from N.D. Tex.
  • Jones, J. (Jones, Higginson, Oldham), habeas corpus
  • Affirming dismissal of § 2254 petition on Batson claim, and denying COA as to other claims.
  • After petitioner exhausted his state post-conviction relief, including presentation of Batson claims, the district attorney’s office that prosecuted him produced a spreadsheet of all the prospective jurors in his case with the the Black and hispanic prospective jurors in bold. On his federal § 2254 petition, he sought to include the spreadsheet, but the district court precluded consideration of the spreadsheet because it had not been part of the records at the state court. The Court of Appeals granted a COA on the single issue of whether the spreadsheet should be considered as part of petitioner’s Batson challenge.
  • The Court held that consideration of the spreadsheet was precluded by the precedent in Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388 (2011). “Pinholster … confirms limitations on a federal habeas court’s consideration of new evidence when reviewing claims that have been adjudicated on the merits in state court. In such circumstances, the petitioner must demonstrate that habeas relief is warranted under § 2254(d) on the state court record alone. If the petitioner succeeds in satisfying this threshold requirement, then a federal habeas court may entertain new evidence pursuant to the limitations of § 2254(e)(2).”
  • The Court rejected the petitioner’s argument that an exception to Pinholster should lie where the DA had withheld the spreadsheet; the Court held that there was no direct assertion that the spreadsheet had been improperly withheld, but had been produced after the DA had changed an internal policy as to what was protected work product and what wasn’t, and that any Pinholster exception likely applied only to withheld exculpatory Brady evidence, not to non-exculpatory evidence that merely bolstered an existing claim for post-conviction relief and did not reveal grounds for an entirely new claim for relief. “Broadnax ignores the distinction between the separability of Brady claims and the mere (alleged) evidentiary enhancement of a singular Batson claim by the introduction of the spreadsheet. Broadnax’s ‘new claim’ is not just non-exculpatory but does not support any kind of freestanding Batson ‘claim’ at all.”
  • Additionally, the Court denied COA for petitioner’s other arguments that “(1) an unqualified juror sat on his jury; (2) the District Attorney’s decision to seek the death penalty was racially motivated; (3) Broadnax was unconstitutionally denied counsel when he gave media interviews; (4) his appellate counsel was ineffective for failing to challenge the admission of certain expert testimony on appeal; and (5) the district court applied erroneous legal standards and inadequately reviewed the record.”

• U.S. v. Martinez, 20-20148, appeal from S.D. Tex.
  • Elrod, J. (Elrod, Duncan, Wilson), criminal, sentencing, supervised release
  • Withdrawing opinion issued on October 27, 2020, and replacing it with new opinion, vacating district court’s imposition of supervised release condition leaving to the parole officer whether participation in a treatment program would include participation in an in-patient or out-patient program, and remanding for resentencing.
  • “The district court abused its discretion by giving Martinez’s probation officer the option to choose between inpatient and outpatient drug treatment. While probation officers may ‘manage aspects of sentences’ and oversee the conditions of supervised release, a probation officer may not exercise the ‘core judicial function’ of imposing a sentence, ‘including the terms and conditions of supervised release.'” Specifically, the Court held, “The decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers. Here, because of Martinez’s short ten-month sentence, the district court should not have delegated the decision to further restrict a defendant’s liberty during the course of treatment while on supervised release.”
  • The Court recognized the seemingly conflicting holding in Medel-Guadalupe (see above), and held that the distinction was in the length of the prison sentence preceding the supervised release (which in Medel was ten years, while in this case was ten months). Accordingly, the Court has set up a test of restriction of liberty interests that is dependent not an absolute measure but on a relative measure comparing the prison sentence to the supervised-release period.

• Harper v. Southern Pine Electric Cooperative, 20-60451, appeal from S.D. Miss.
  • Smith, J. (Higginbotham, Smith, Dennis), utility rate-payers
  • Affirming Rule 12(b)(6) dismissal of claim brought by rate-payers against utility for refund of $112 million in allegedly excess revenue.
  • The Court held that a new, amended version of the Mississippi utility statute at issue applied to plaintiffs’ claims, although they allegedly only applied to pre-amendment revenues, because the complete repeal-and-replacement of the statute defeated the presumption against retroactivity. The Court rejected plaintiffs’ argument that the retroactivity principle should only apply to public rights and not to a dispute between wholly private parties, as an exception having no legal basis. Reviewing Mississippi law, the Court held, “Unless plaintiffs can demonstrate that retroactive application would either impair the obligation of a contract or abrogate a vested right, the modern statute applies retroactively. With no contract at issue, our inquiry is confined to whether retroactive application would abrogate a vested right.” The Court then held that, as a matter of fact, the plaintiffs had no “vested right” created by the earlier version of the statute in a refund of excess utility revenues. The Court observed that the earlier version of the statute left the determination of when revenues were “excess” to the utility board, and that without such a determination there was no entitlement to a refund: “[T]he legislature left it up to the board to determine when its revenues were no longer ‘needed’ for specified purposes. Only once the board makes that determination does the statute require it to return those revenues to the members. The right that plaintiffs assert, then, is contingent upon a determination of the board. And a right that is contingent is, definitionally, not vested.”
  • The Court then held that the automatic trigger urged by plaintiffs–that a 30% asset-to-equity ratio was sufficient such that any further assets were “excess” revenue–may be “good policy,” but was not based in the statute, which instead left to the utility’s discretion how much revenue to retain.

Unpublished

• Ifechukwu v. Barr, 19-60571, petition for review of BIA order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying petition by Nigerian citizen for review of a BIA decision dismissing his appeal of an IJ order denying application for relief in which he requested protection under the CAT.

• Singh v. Wilkinson, 19-60608, petition for review of BIA order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying petition by Indian citizen for review of BIA dismissal of an appeal from an IJ order denying withholding of removal and relief under the CAT.

• Ndonyi v. Wilkinson, 19-60782, petition for review of BIA order
  • per curiam (Barksdale, Southwick, Oldham), immigration
  • Dismissing in part and denying in part petition by Cameroonian citizen for review of BIA decision dismissing appeal of an IJ denial of his application for asylum and denying his motion to remand based on previously unavailable evidence.

• U.S. v. Williams, 20-10001, appeal from N.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Ramirez v. Guadarrama, 20-10055, appeal from N.D. Tex.
  • per curiam (Jolly, Stewart, Oldham), qualified immunity
  • Reversing denial of qualified immunity to apprehending officers on Fourth Amendment claim arising from their discharge of tasers at victim during mental well-being call, where victim had doused himself in gasoline, which ignited, burning down the family home and killing him, and remanding with instructions to dismiss the claims against the officers.

• U.S. v. Byrd, 20-20470, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, compassionate release
  • Affirming district court’s denial of motion for compassionate release.

• U.S. v. Alvarado, 20-50538, appeal from W.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.