Take the Fifth: March 29-31, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Burney, 20-10529, appeal from N.D. Tex.
    • Smith, J. (King, Smith, Haynes), criminal, sentencing
    • Affirming 60-month sentence on guilty plea to wire fraud. The presentence report recommended a guideline range of 12-18 months, “[b]ased on the severity of the offense, Burney’s acceptance of responsibility, and his criminal history,” but the district court held that an upward variance was in order “consider[ing] numerous factors, including the seriousness of Burney’s offense, the vulnerability of some of his victims, that his criminal history points didn’t fully account for the severity of his criminal past, the failure of previous lenient sentences to deter Burney’s continued criminality, and the need to protect the public from any future crimes.” The district court also commented that, relative to many others who would come before the court, the defendant did not have an abusive or poverty-stricken upbringing that he had had to struggle against: “You didn’t have that kind of upbringing. You should know better. Your father is a retired deputy sheriff. Your mother is a retired probation officer. You had a good childhood. Nobody is perfect. No childhood was perfect. But you had opportunities that other people in this court often didn’t have, and I have taken that into consideration.” The defendant argued on appeal that this wan an impermissible consideration of socio-economic status.
    • While the socio-economic status of a defendant should never be considered in sentencing, “‘highly relevant—if not essential—to the selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.’ Pepper v. United States, 562 U.S. 476, 488 (2011).” The Court held, “The district court, in essence, considered Burney’s ‘good childhood’ and upbringing in justifying the upward variance. It considered that he did not grow ‘up in abject poverty’ or ‘surrounded by violence,’ and it considered his parents’ occupations. Those considerations do not constitute his socioeconomic status; they are part of his background. A defendant’s childhood economic conditions, as opposed to his current ones, are generally not part of the defendant’s socioeconomic status. Nor is considering the occupation of the defendant’s parents, as distinguished from that of the defendant himself.”
  • Polyflow, LLC v. Specialty RTP, LLC, 20-20416, appeal from S.D. Tex.
    • Clement, J. (Jones, Clement, Graves), arbitration
    • Reversing district court’s denial of motion to compel arbitration, and remanding with instructions to order arbitration.
    • Plaintiff’s claims were that defendant violated a 2017 settlement agreement, which contained a clause requiring arbitration of “any cause of action arising out of” the settlement agreement. Plaintiff had originally filed a notice of arbitration, but defendant resisted that arbitration, so Plaintiff filed a suit in federal court, setting forth its claims and arguing for an order to compel arbitration or, alternatively, for the court to adjudicate any claims it determined were not subject to arbitration. The district court then denied a subsequent motion by the plaintiff to compel arbitration.
    • The Court first held that the federal courts had jurisdiction–an issue raised for the first time on appeal by defendant–holding that the Federal Arbitration Act’s “look through” jurisdiction led to a finding of federal question jurisdiction because the substantive rights underlying the claims between the two market competitors arose under the Lanham Act.
    • The Court then held that the claims were subject to the arbitration clause in the settlement agreement. “[I]f the parties have contracted to arbitrate, there is a presumption that their disputes will be deemed arbitrable unless it is clear that the arbitration clause has not included them.” (Internal quotation marks omitted). The Court held that the language in the arbitration clause here was a “broad” arbitration clause. The Court then conducted a claim-by-claim analysis and held that each claim arose from the conduct governed by the settlement agreement and was therefore arbitrable. The Court then held that none of the defendant’s defenses blocked arbitration, but were arguments to present to the arbitrator. In particular, the Court held that the defendant’s argument that the plaintiff waived arbitration by filing the suit “bordered on frivolous,” as it was the defendant’s initial resistance to arbitration that led to the plaintiff filing the suit, in which the primary relief the plaintiff sought was compulsion of arbitration.
  • Camacho v. Ford Motor Co., 20-50422, appeal from W.D. Tex.
    • Willett, J. (King, Elrod, Willett), product liability
    • Affirming district court’s dismissal of product liability suit against car manufacturer under Texas’s statute of repose, holding that the delivery of a car from the manufacturer to the independent dealer constitutes a “sale of the product” triggering the start of the time period for the statute of repose, and that the statutory rule that a period of minority not be included in a limitations period would not toll a statute of repose.
    • Texas’s product liability statute contains a 15-year statute of repose, requiring that a suit against a manufacturer must be brought within 15 years from the sale of the product by the defendant. The Court held that, before applying the definition of “sale” from other statutes, it must endeavor to determine the plain meaning of the term and determine if that plain meaning has an absurd result. The Court held that the plain meaning of the word “sale” comported with the definition of “sale” in the UCC, but not with the definition of “sale” in Texas’s Title Act. The Court then held, “[T]o the extent we need guidance from other statutes, the UCC is the appropriate place to look. And under the UCC’s definition of ‘sale’ or the similar dictionary definitions, ‘the sale of the product by the defendant’ happened on October 6, 2003, when Ford released the truck to the dealership.”
    • The Court then held that the statute of repose was not tolled for the claims of the plaintiffs child who was a minor at the time of the accident. While the Texas statute regarding the period of minority is contained in a larger section that regards both statutes of limitations and statutes of repose, the Court noted that the plaintiffs’ “argument is based on a selectively altered version of the statute. In their brief, the Camachos quote the statute as stating, ‘[f]or the purposes of this subchapter … the time of the disability is not included in a limitations period.’ The alteration obscures that the key language on which the Camachos rely appears in a different subsection than the tolling provision. ‘For the purposes of this subchapter’ is used only in § 16.001(a), which defines a legal disability, while ‘the time of the disability is not included in a limitations period’ is in § 16.001(b). Because ‘[f]or the purposes of this subchapter’ is cabined to subsection (a), it cannot be read to broadly apply all of § 16.001, including the tolling provision in subsection (b), to the entire subchapter. The phrase does not do the heavy lifting that the Camachos contend it does.” The Court then held, “Understanding the function of repose statutes allows us to glean an additional, and ultimately dispositive, clue from the statutory text. The tolling provision in § 16.001(b) applies when the claimant ‘is under a legal disability when the cause of action accrues.’ But statutes of repose don’t care about the accrual date; the language in § 16.001(b) therefore plainly refers to statutes of limitations.”

Unpublished

  • U.S. v. Johnson, 18-20764, appeal from S.D. Tex.
    • per curiam (Owen, Davis, Dennis), criminal, supervised release
    • Vacating sentence in part and remanding for the district court to amend written judgment to comport with orally pronounced supervised release conditions.
  • U.S. v. Anderson, 19-10180, appeal from N.D. Tex.
    • per curiam (Ho, Oldham, Wilson), criminal, sentencing
    • On remand from Supreme Court, reaffirming sentence on plain error review for being a felon in possession of a firearm.
  • Burke v. Ocwen Loan Servicing, LLC, 19-20267, appeal from S.D. Tex.
    • per curiam (Owen, Davis, Dennis), foreclosure, res judicata
    • Affirming dismissal of claims against loan servicer on res judicata grounds after plaintiffs had unsuccessfully brought prior claim against mortgage holder.
  • VanBuren v. Hunter, 19-30859, appeal from W.D. La.
    • per curiam (King, Smith, Wilson), § 1983
    • Affirming dismissal of claims brought by plaintiff regarding placement into a pretrial diversion program.
  • Salazar-Maldanado v. Garland, 19-60466, petition for review of BIA order
    • per curiam (Clement, Higginson, Engelhardt), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for withholding of removal and protection under the CAT.
  • Leal v. Garland, 19-60669, petition for review of BIA order
    • per curiam (King, Smith, Wilson), immigration
    • Denying in part and dismissing in part Cuban citizen’s petition for review of BIA order of removal and of IJ’s adverse credibility finding.
  • Argueta-Canales v. Garland, 19-60825, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying in part and dismissing in part El Salvadoran citizen’s petition for review of BIA order dismissing her appeal from an order of an IJ denying her application for asylum, withholding of removal, and relief under the CAT.
  • Perez-Tobar v. Garland, 19-60914, petition for review of BIA order
    • per curiam (Haynes, Willett, Ho), immigration
    • Denying El Salvadoran citizen’s petition for review of BIA denial of his application for withholding of removal.
  • Tran v. Garland, 19-60924, petition for review of BIA order
    • per curiam (Clement, Higginson, Engelhardt), immigration
    • Denying Vietnamese citizen’s petition for review of BIA order dismissing his appeal from the IJ’s denial of his motion to reopen the proceedings that resulted in his removal.
  • Jackson v. Valdez, 20-10344, appeal from N.D. Tex.
    • per curiam (Barksdale, Southwick, Graves), § 1983, recusal
    • Affirming denial of motion to recuse district court judge for animus against plaintiff based on LGBTQ identification, but reversing dismissal of § 1983 claim for pretrial treatment of plaintiff, who was transgender, and remanding for further proceedings.
  • U.S. v. Jimenez, 20-10452, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Taylor, 20-10457, appeal from N.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Affirming life sentences on guilty plea to two counts of sexual exploitation of children and one count of possession of a visual depiction of a minor engaged in sexually explicit conduct.
  • U.S. v. Price, 20-10538, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Affirming sentence on guilty plea to conspiracy to possess gamma hydroxybutyric acid with intent to distribute.
  • Mornes v. Valdez, 20-10834, appeal from N.D. Tex.
    • per curiam (Clement, Elrod, Haynes), prisoner suit
    • Dismissing appeal as frivolous, from dismissal of prisoner’s suit.
  • U.S. v. Mendivil, 20-10916, appeal from N.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, guilty plea, sentencing
    • Affirming guilty plea conviction and sentence for conspiracy to possess with intent to distribute methamphetamine.
  • U.S. v. Perkins, 20-30359, appeal from W.D. La.
    • per curiam (King, Smith, Haynes), criminal, sentencing
    • Affirming 156-month term on guilty plea to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.
  • U.S. v. Blank, 20-40006, appeal from E.D. Tex.
    • per curiam (Owen, Jolly, Dennis), criminal, supervised release
    • Affirming denial of motion to modify terms of supervised release.
  • U.S. v. Mata-Maldonado, 20-40035, appeal from S.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rutherford, 20-40619, appeal from E.D. Tex.
    • per curiam (Willett, Ho, Duncan), prisoner suit
    • Dismissing appeal as frivolous.
  • Garcia v. City of McAllen, 20-40646, appeal from S.D. Tex.
    • per curiam (Haynes, Willett, Ho), removal
    • Affirming denial of motion to remand § 1983 claims to state court.
  • Morris v. U.S., 20-50303, appeal from W.D. Tex.
    • per curiam (Willett, Ho, Duncan), habeas corpus
    • Dismissing as frivolous denial of § 2241 petition.
  • U.S. v. Rodriguez-Yanez, 20-50729, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Granting summary affirmance of 57-month sentence on guilty plea conviction of illegal reentry after removal.
  • U.S. v. Cruz-Urias, 20-50753, appeal from W.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, sentencing
    • Granting summary affirmance of 30-month sentence on guilty plea to illegal reentry.
  • Guadiana v. Banks, 20-60307, appeal from S.D. Miss.
    • per curiam (Higginbotham, Smith, Oldham), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 suit.
  • Montano v. Garland, 20-60378, petition for review of BIA order
    • per curiam (King, Smith, Wilson), immigration
    • Denying El Salvadoran citizens’ petition for review of BIA order dismissing their appeal of an IJ’s denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture.