Take the Fifth: May 5, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Smith, 20-50304, appeal from W.D. Tex.
    • Haynes, J. (King, Smith, Haynes), Smith, J., dissenting; criminal, guilty plea, firearms violation
    • Vacating guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) based on on factual basis that defendant’s only interaction with firearm was that he “touched” it, and remanding for entry of new plea and further proceedings.
    • While at a friend’s house, defendant touched a .38 caliber revolver that police later recovered as one of three stolen firearms; defendant, based on his admitting to touching the gun, was arrested and charged with being a felon in possession of a firearm. On pleading guilty to violation of 18 U.S.C. § 922(g) on a factual basis of his touching the gun, the district court sentenced him to 57 months in prison.
    • The Court held that possession requires either direct or constructive possession. “The common denominator between the two is control; absent some indication that the defendant controlled the firearm, conviction is improper under either theory of possession.” The Court found that there was no evidence in the record of either direct or constructive possession, as he did not possess or own the gun, which was at his friend’s house, and no evidence in the record shoed direct possession. Even as to fingerprints from touching it, the Court noted that the record only showed the detective asking the defendant why his fingerprints “would be” on the gun. “A detective’s question is not evidence of a fact: it could just as easily be an interrogation tactic to get Smith to confess; indeed, the officers posed the same question with respect to two other firearms that Smith maintains he never touched at all. In fact, we see no actual evidence of any fingerprints whatsoever (and the Government points to nothing else), let alone the sort of fingerprint evidence that would suggest Smith controlled the firearm.” The Court then held that “[t]he plain text of § 922(g), logic, and an analysis of our precedents all reveal that mere touching is insufficient to establish possession,” and held that there was clear and obvious error in the district court’s acceptance of the guilty plea based on that factual basis. In comparing dictionary definitions of “possess,” the Court rejected the Webster’s Third Dictionary’s inclusion of “seize,” where the Webster’s Second described “seize” as an archaic definition of the word. The Court held that the issue was not whether the defendant possessed the firearm for a sufficient length of time, but whether he possessed it at all when he merely touched it.
    • The Court then held that the error affected the defendant’s substantial rights, as it induced him to enter the guilty plea, and therefore completed the test for finding plain error.
    • Judge Smith dissented. He opined, “Based on inapposite precedent and dictionary definitions, the majority precludes prosecutors from proving possession of a firearm solely through physical touch. Now, the government must show that the defendant is the ‘master of’ the firearm—whatever that means. The majority thus engrafts a requirement reminiscent of constructive possession onto our law about actual possession and splices part of an affirmative defense onto § 922(g)’s possession requirement. Worse, it manufactures this newfangled approach on plain-error review.”
  • Alvarez v. Akwitti, 20-50464, appeal from W.D. Tex.
    • Ho, J. (Smith, Stewart, Ho), prisoner suit
    • Vacating district court’s sua sponte dismissal of plaintiff’s pro se suit against assistant prison warden who left plaintiff in danger of violent sexual predator after being informed of an imminent attack, which then did occur when prison guards outed the plaintiff as a “snitch,” and remanding for district court to consider the merits of plaintiff’s claim in the first instance.
    • As usual for a Judge Ho opinion, the Court laid out the crux of the issues in his opening paragraph: “While ‘[t]he Constitution “does not mandate comfortable prisons,”‘ Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)), it does prohibit ‘cruel and unusual punishments,’ U.S. Const. amend. VIII. And while we do not hold prison wardens strictly liable for all harm that occurs to inmates during their incarceration, the Supreme Court has made clear that ‘[h]aving incarcerated persons with demonstrated proclivities for antisocial criminal, and often violent, conduct’—and ‘having stripped them of virtually every means of self-protection and foreclosed their access to outside aid’—’the government and its officials are not free to let the state of nature take its course.’ Id. at 833 (cleaned up). ‘Being violently assaulted in prison is simply not “part of the penalty that criminal offenders pay for their offenses against society.”‘ Id. at 834 (quoting Rhodes, 452 U.S. at 347).”

Unpublished

  • U.S. v. Gipson, 19-40735, appeal from E.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sanchez, 19-40802, appeal from E.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Barnett, 19-50913, appeal from W.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez-Fuentes, 20-10184, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lambert-Duck, 20-10404, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Adair, 20-10636, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hubbard-Nguyen, 20-10659, appeal from N.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Vasquez, 20-10694, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Bethley, 20-10701, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rivera-Solano, 20-20133, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garcia-Servin, 20-20296, appeal from S.D. Tex.
    • per curiam (Ho, Oldham, Wilson), criminal, sentencing
    • Affirming 24-month sentence on guilty plea conviction of illegal reentry after deportation.
  • U.S. v. Johnston, 20-30579, appeal from W.D. La.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reyes-Cruz, 20-40042, appeal from S.D. Tex.
    • per curiam (Dennis, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hinojosa-Uribe, 20-40366, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Koteras v. Briggs Equipment, Inc., 20-50482, appeal from W.D. Tex.
    • per curiam (Ho, Oldham, Wilson), Age Discrimination in Employment Act
    • Affirming summary judgment in favor of employer dismissing plaintiff’s ADEA claim.
  • U.S. v. McAlister, 20-50515, appeal from W.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.