Take the Fifth

Designated for publication

• U.S. v. Nelson, 19-41008, appeal from S.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Dennis), criminal, search and seizure, Miranda
  • Affirming conviction for conspiracy to possess with intent to distribute 50 kilograms or more of marijuana, on conditional guilty plea reserving right to appeal from district court’s denial of motion to suppress evidence seized from defendant’s vehicle and statements he made when Border Patrol agents stopped him allegedly without reasonable suspicion and subjected him to custodial interrogation without first giving him Miranda warnings.
  • The Court found, “[T]he totality of the circumstances here support a finding that Agent Stauffiger had reasonable suspicion to justify stopping Nelson’s vehicle. First, our Court has recognized that proximity to the border is ‘a paramount factor in determining reasonable suspicion.’ It is undisputed that Nelson’s vehicle was first spotted at the Laredo-North checkpoint less than 50 miles from the border, here 29 miles, a factor weighing in favor of the reasonableness of Stauffiger’s suspicions. Furthermore, ‘an officer’s experience is a contributing factor in determining whether reasonable suspicion exists.’ … [The Agent’s] training and experience at the border, as well as his specialized work investigating narcotics crimes support his suspicions here.” (Internal citations omitted). While the Court noted that the defendant’s consent to the initial scan of his trailer weighed against the reasonableness of suspicion, it held that not every factor has to weigh in favor of reasonable suspicion and that, “[h]ere, just 29 miles from the border, a highly experienced Border Patrol agent noticed anomalies with Nelson’s vehicle and saw what appeared to be bundles of narcotics inside. Accepting Nelson’s compliant behavior, viewing the totality of the circumstances in the light most favorable to the Government, we are satisfied that Stauffiger’s stop of Nelson’s vehicle was supported by reasonable suspicion.”
  • As to the defendant’s comments to the agent while they awaited the arrival of a canine unit, the Court held that all of the relevant factors weighed against finding that the defendant was “in custody” at the time, such that Miranda rights would have been triggered. “While Nelson makes much of the fact that he was not free to leave while waiting for the canine unit, this Court has recognized that temporary detention, by itself, does not automatically rise to the level of custodial interrogation. A reasonable person in Nelson’s position would have understood that ‘so long as . . . everything checked out,’ he would be able to leave shortly. Such limited restraint is not the type associated with formal arrest.”

Unpublished

• Walters v. Tenant Background Search, 19-50730, appeal from W.D. Tex.
  • per curiam (Jones, Costa, Wilson), Fair Credit Reporting Act
  • Dismissing as frivolous appeal from summary judgment dismissal of plaintiff’s claims under the Fair Credit Reporting Act.

• Bitco General Insurance Corp. v. Monroe Guaranty Insurance Co., 19-51012, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Higginson), insurance
  • Certifying to the Texas Supreme Court the question of “whether this court, applying Texas law, can consider extrinsic evidence—the stipulated date the drill bit became stuck—when deciding whether a[n insurer’s] duty to defend exists[,] … an important and determinative question of Texas law as to which there is no controlling Texas Supreme Court precedent.”

• Udensi v. Garland, 19-60315, petition for review of BIA order
  • per curiam (Davis, Stewart, Ho), immigration
  • Denying Cameroonian/Nigerian dual citizen’s petition for review of BIA order upholding IJ’s finding of a lack of corroborative evidence to support his applications for asylum, withholding, and CAT protection.

• Ruiz-Garcia v. Garland, 19-60633, petition for review of BIA order
  • per curiam (Davis, Stewart, Ho), immigration
  • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order upholding IJ’s “conclu[siono] that Ruiz-Garcia’s testimony was not credible and that the evidence established that the conduct underlying the transporting conviction amounted to aiding illegal entry, which rendered Ruiz-Garcia inadmissible and thus ineligible for adjustment.”

• Jackson v. Garland, 19-60874, petition for review of BIA order
  • per curiam (Davis, Stewart, Ho), immigration
  • Denying in part and dismissing in part Nigerian citizen’s petition to review BIA denial of her motion to reopen her removal proceedings.

• U.S. v. Sayasane, 20-10565, appeal from N.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion to withdraw and dismissing appeal.

• U.S. v. Chaney, 20-20049, appeal from S.D. Tex.
  • per curiam (Owen, Haynes, Costa), criminal, sufficiency of evidence
  • Affirming convictions on one count of conspiracy to commit wire fraud and six counts of aggravated identity theft and aiding and abetting.

• Theriot v. Building Trades United Pension Trust Fund, 20-30126, appeal from E.D. La.
  • per curiam (Haynes, Higginson, Oldham), Oldham, J., dissenting; ERISA
  • Vacating dismissal of plaintiff’s claims brought under ERISA and remanding to district court with instructions to refer Theriot’s claims to the pension plan to evaluate the merits of Theriot’s claim.
  • Judge Oldham dissented, asserting, “[T]he majority is wrong that the plan ‘actively discouraged Theriot from seeking administrative review.’ The plan simply reserved its rights to assert an exhaustion defense: ‘[T]he Fund reserves the right to assert that the claimants have failed to exhaust administrative remedies in accordance with Article XIII, Section 3 of the Plan.’ The plan would have no reason to reserve its rights if the case was already over.”

• Crayton v. Lumpkin, 20-40002, appeal from E.D. Tex.
  • per curiam (Haynes, Willett, Ho), prisoner suit
  • Dismissing as frivolous appeal from dismissal of prisoner’s suit regarding a voice he claimed came from the upper corner of his cell and followed him around wherever he went.

• U.S. v. Powell, 20-50023, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing, First Step Act
  • Affirming denial of motion for resentencing under the First Step Act.

• U.S. v. Bernal, 20-50710, appeal from W.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Affirming above-guidelines sentence of nine months’ imprisonment on guilty plea to making a false statement or representation to an agency or department of the United States.