Take the Fifth: April 28, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Onyeri, 18-50869, appeal from W.D. Tex.
    • Clement, J. (Owen, Clement, Higginson), criminal, RICO, search and seizure
    • Affirming RICO conviction for pattern of criminal activity culminating in attempted assassination attempt on state judge.
    • The Court held that the district court did not err in denying a motion to suppress evidence from a cell phone seized during a traffic stop, that evidence in the record supported the credibility of the arresting officer’s account of the reason for the traffic stop. Accordingly, the Court held there was no clear error in the district court’s factual findings.
    • The Court then held there was sufficient evidence to support the RICO conviction, specifically the element of conspiring to violate the RICO statute.
    • The Court then held that, as to the district court’s order of garnishment of monthly annuity payments the defendant received following the death of his father, the defendant had failed to appeal the garnishment order within the time required under FRAP 4.
  • Hammoud v. Ma’at, 19-50914, appeal from W.D. Tex.
    • per curiam (en banc court), habeas corpus
    • Ordering en banc rehearing of Nov. 30, 2020 decision affirming dismissal of § 2241 in lieu of filing a second § 2255 motion challenging that conviction, arguing that he should be deemed to have satisfied § 2255(e)’s “savings clause” because he claimed he is actually innocent.
  • U.S. v. Cooper, 20-20485, appeal from S.D. Tex.
    • Higginson, J. (Owen, Clement, Higginson), criminal, compassionate release, First Step Act, COVID-19
    • Vacating district court’s denial of motion for compassionate release under the First Step Act, and remanding for further proceedings. Based on the Court’s opinion earlier this month in United States v. Shkambi, No. 20-40543, 2021 WL 1291609, at *4 (5th Cir. Apr. 7, 2021), the Court noted that the district court incorrectly concluded it was bound by the Sentencing Commission’s policy statement as to what constitutes “extraordinary and compelling reasons” warranting a sentence reduction.
  • Laufer v. Mann Hospitality, LLC, 20-50858, appeal from W.D. Tex.
    • Duncan, J. (Jones, Costa, Duncan), Americans with Disabilities Act, standing
    • Affirming district court’s dismissal of plaintiff’s ADA claims for lack of standing, but vacating award of attorneys’ fees to defendant where ADA only allows award of “just costs,” and not fees.
    • Plaintiff brought suit for lack of ADA accommodations at the defendant inn, based on the failure to show accessibility accommodations on the inn’s website, though she had never been to the inn, or even to Texas, and had no definitive plans to travel there. “[W]hile grateful for her show of interest in the region, we note that Laufer has filed hundreds of identical lawsuits in federal district courts around the country. She considers herself a ‘tester,’ monitoring places of public accommodation and suing to ensure their compliance with the ADA.” The Court held, “[S]he visited the [inn’s online reservation system] to see if the motel complied with the law, and nothing more. Such allegations do not show enough of a concrete interest in Mann’s accommodations to confer standing.”

Unpublished

  • U.S. v. Chamberlain, 19-11058, appeal from N.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garza, 19-11279, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Auram v. Garland, 19-60648, petition for review of BIA order
    • per curiam (Higginbotham, Jones, Costa), immigration
    • Denying Bangladeshi citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Gjini v. Garland, 19-60883, petition for review of BIA order
    • per curiam (Higginbotham, Jones, Costa), immigration
    • Denying Albanian citizen’s petition for review of BIA approval of his order of removal.
  • U.S. v. Cortez, 20-30601, appeal from W.D. La.
    • per curiam (King, Smith, Wilson), criminal, supervised release
    • Dismissing for lack of jurisdiction appeal regarding the reasonableness of supervised release special conditions.