Take the Fifth: April 1-2, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Knowlton, 19-41042, appeal from E.D. Tex.
    • Elrod, J. (Elrod, Willett, Engelhardt), criminal
    • Affirming conviction for receiving material containing child pornography.
    • The Court held that the flash drives, external hard drives, and computer hard drives were “materials containing” child pornography and not merely child pornography itself, rejecting defendant’s argument that he only received child pornography and not materials containing child pornography.
  • U.S. v. Mims, 19-50921, appeal from W.D. Tex.
    • Smith, J. (King, Smith, Haynes), Haynes, J., dissenting; criminal, sentencing
    • Affirming sentence on revocation of supervised release. The Court held that, while the district court considered an incorrect advisory range on sentencing upon revocation of supervised release, the defendant failed to object at the resentencing and there was no plain error in the district court’s sentencing. The Court held, “Mims continued to seek positions of trust to steal from her employers and their customers: Indeed, she has now been convicted thrice for crimes involving financial fraud. Similar circumstances have warranted affirming plain error in the past.”
    • Judge Haynes dissented, opining that the first three prongs of the plain error test were met, and that the Supreme Court has “put the brakes” on the exercise of discretion to affirm plain error in a fourth prong of the test.
  • Rodriguez v. Garland, 19-60456, petition for review of BIA order
    • per curiam (King, Smith, Haynes), immigration
    • Dismissing in part and denying in part Honduran citizen’s (and legal permanent resident’s) petition for review of BIA order dismissing appeal of IJ order of removability after petitioner had violated probation after an initial robbery conviction.
    • The Court held that res judicata did not bar a second charge of removability after the government had agreed to defer adjudication of an initial charge of removability. Though the predicate offense for both charges was a 2012 robbery, the statutory offense was different–first, 8 U.S.C. § 1227(a)(2)(A)(i), and next, 8 U.S.C. § 1227(a)(2)(A)(iii).
    • The Court then held that it had no jurisdiction to review the petitioner’s arguments regarding due process and removability under 8 U.S.C. § 1227(a)(2)(A)(iii), because the petitioner had not raised these in his appeal from the IJ to the BIA.
  • The CBE Group, Inc. v. Lexington Law Firm, 20-10166, appeal from N.D. Tex.
    • Stewart, J. (Stewart, Higginson, Wilson), fraud
    • Affirming judgment setting aside verdicts of fraud and fraud by nondisclosure against defendant law firms that offer credit-repair services on claims brought by companies that furnish consumer financial information to credit bureaus and financial institutions.
    • Defendant credit-repair firms had signed engagement letters with their clients allowing them to send letters to the financial reporting services on behalf of the clients and without indicating that they were coming from the law firms. The Court held that this did not constitute fraud because the firms had express permission from the clients. The Court also held that there was no fraud or fraud by nondisclosure because the plaintiff financial firms could not show that they justifiably relied on any purported misrepresentation or nonrepresentation.
  • Dillon Gage, Inc. v. Certain Underwriters at Lloyd’s, 20-10262, appeal from N.D. Tex.
    • Graves, J. (Barksdale, Southwick, Graves), insurance law
    • Certifying question to the Texas State Supreme Court regarding whether “Dillon Gage’s losses were sustained consequent upon handing over insured property to UPS against a fraudulent check, causing the policy exclusion to apply”; and whether “UPS’s alleged errors are considered an independent cause of the losses under Texas law.”
  • Ross v. Judson Indep. School District, 20-50250, appeal from W.D. Tex.
    • Willett, J. (Elrod, Willett, Engelhardt), employment discrimination
    • Affirming summary judgment dismissal of principal’s claims of employment discrimination after non-renewal of contract by defendant school board.
    • The Court held that the plaintiff failed to “show either that she was replaced by someone outside her protected class or treated less favorably than similarly situated individuals who were outside her protected class.” The Court noted that both the interim replacement and the next replacement principals were also African-American women, that the second replacement principal served in the position for three years before a white woman was named as principal, and that there was no evidence that the second replacement principal had even been considered to be temporary.
  • Roque v. Harvel, 20-50277, appeal from W.D. Tex.
    • Willett, J. (King, Elrod, Willett), qualified immunity
    • Affirming district court’s denial of qualified immunity to officer who shot and killed suicidal suspect. The Court summarized, “The Fourth Amendment turns on reasonableness. And ‘[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’ This allowance is particularly understandable when police officers encounter suicidal suspects. At some point, however, and even in the most difficult circumstances, the reasonableness rope ends. Here, the district court decided a jury should determine whether it ended after Officer Harvel’s first shot. We agree and therefore affirm the district court’s denial of summary judgment.”

unpublished

  • Castro-Rodriguez v. Garland, 18-60300, petition for review of BIA order
    • per curiam (Ho, Oldham, Wilson), immigration
    • Denying Honduran citizen’s petition to review BIA order dismissing her appeal from the Immigration Judge’s (IJ) denial of asylum and withholding of removal.
  • U.S. v. Smith, 19-10077, appeal from N.D. Tex.
    • per curiam (Owen, Jolly, Dennis), criminal, sentencing
    • Affirming 180-month sentence and lifetime supervised release for guilty-plea conviction to receipt of a visual depiction of a minor engaged in sexually explicit conduct, and reversing imposition of special conditions of supervised release that were not in compliance with orally pronounced conditions.
  • Salomon v. Kroenke Sports & Entertainment, LLC, 19-10350, appeal from N.D. Tex.
    • per curiam (Jones, Smith, Elrod), breach of contract
    • Affirming district court’s summary judgment dismissal of plaintiff’s suit arising from failed negotiation to acquire business.
  • Smith v. Marvin, 19-31019, appeal from W.D. La.
    • per curiam (Ho, Oldham, Wilson), prisoner suit
    • Affirming dismissal of prisoner suit for lack of jurisdiction.
  • In re: Silverman, 19-40295, appeal from W.D. Tex.
    • per curiam (Ho, Oldham, Wilson), attorney discipline
    • Affirming imposition of reciprocal discipline on attorney after district court discovering that attorney had failed to disclose he had been disciplined by two other federal district courts, suspending his ability to practice law in the Eastern District of Texas and removing him from two pending cases.
  • U.S. v. Reyes, 19-41014, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Torres, 20-10603, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez, 20-10837, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal
    • Affirming conviction on two counts of being a felon in possession of a firearm.
  • Rodney v. Elliott Security Solutions, LLC, 20-30521, appeal from E.D. La.
    • per curiam (King, Smith, Haynes), attorneys’ fees
    • Affirming district court’s reduction to plaintiffs’ requested amount of attorney’s fees.
  • Bank of Louisiana v. FDIC, 20-30645, appeal from E.D. La.
    • per curiam (Wiener, Southwick, Duncan), banking law
    • Affirming dismissal for lack of jurisdiction, rejecting bank’s arguments that a district court may review FDIC orders arising from the FDIC’s enforcement proceedings against it.
  • Sheppard v. Kempt, 20-40007, appeal from E.D. Tex.
    • per curiam (Willett, Ho, Duncan), prisoner suit
    • Affirming dismissal of prisoner’s suit as frivolous.
  • Byrd v. Lakeview Loan Servicing, LLC, 20-50254, appeal from W.D. Tex.
    • per curiam (King, Smith, Haynes), foreclosure
    • Affirming summary judgment dismissal of plaintiff’s claims arising from defendant’s foreclosure.
  • U.S. v. Calvillo-Palacios, 20-50870, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), criminal, sentencing
    • Granting summary affirmance of within-guidelines sentence of 96 months and three years of supervised release, imposed following defendant’s guilty plea for illegal reentry after removal.
  • Oncor Electric Delivery, LLC v. National Labor Relations Board, 20-60229, petition for review of NLRB decision
    • per curiam (Owen, King, Engelhardt), labor law
    • Granting in part and denying in part company’s petition for review of NLRB decision and NLRB’s petition for enforcement of decision regarding protection of a bargaining unit of electrical workers.