June 18 and 21, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Huawei Technologies USA, Inc. v. Federal Communications Commission, 19-60896, petition for review of FCC Order
    • Duncan, J. (Elrod, Duncan, Wilson), administrative law, Administrative Procedures Act, ripeness, vagueness, Due Process
    • Denying petition for review of FCC order barring recipients of federal telephone and internet service subsidies from purchasing equipment or services from companies designated as “national security risks,” including petitioner Huawei. “[The] most troubling challenge is that the rule illegally arrogates to the FCC the power to make judgments about national security that lie outside the agency’s authority and expertise. That claim gives us pause. The FCC deals with national communications, not foreign relations. It is not the Department of Defense, or the National Security Agency, or the President. If we were convinced that the FCC is here acting as ‘a sort of junior-varsity [State Department],’ Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting), we would set the rule aside. But no such skullduggery is afoot. Assessing security risks to telecom networks falls in the FCC’s wheelhouse. And the agency’s judgments about national security receive robust input from other expert agencies and officials. We are therefore persuaded that, in crafting the rule, the agency reasonably acted within the broad authority Congress gave it to regulate communications. Additionally, having carefully considered the companies’ other challenges under the Administrative Procedure Act and the Constitution, we find those unavailing as well.”
    • The Court held first that the challenge was ripe, as the FCC issued its final designation of Huawei while the appeal was pending (though it did note that a challenge of an initial designation would be unripe).
    • The Court then held that the FCC did not exceed its statutory authority, because the statute did not explicitly withhold authority to promulgate the rule regarding national security risks, and because the promulgation of the rule fell within Chevron deference.
    • The Court additionally held that the petitioners had sufficient notice of the rulemaking to satisfy the APA and the Due Process clause, and that the FCC’s designation was not arbitrary and capricious.

Unpublished

  • U.S. v. Penn, 19-20846, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reyes, 19-40912, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reyes, 19-41060, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Morris v. Lumpkin, 19-51104, appeal from W.D. Tex.
    • per curiam (Haynes, Willett, Ho), prisoner suit, mootness
    • Affirming dismissal as moot prisoner’s suit to receive nutritionally sufficient Kosher meals.
  • Hernandez v. Lumpkin, 20-10013, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Costa), prisoner suit
    • Vacating district court’s denial of prisoner’s suit for injunctive relief to protect him from being required to cut his hair due to religious practice, and remanding for further proceedings.
  • Hunter v. Schopmeyer, 20-10301, appeal from N.D. Tex.
    • per curiam (Stewart, Graves, Higginson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of suit that prisoner’s trial counsel and various state officials conspired to defraud him and deprive him of constitutional rights.
  • U.S. v. Rosales, 20-10648, appeal from N.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
    • Affirming denial of motion for sentence reduction.
  • U.S. v. Foots, 20-10669, appeal from N.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, First Step Act
    • Vacating district court’s denial of motion for compassionate release under the First Step Act and remanding for further consideration under United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • U.S. v. Williams, 20-10803, appeal from N.D. Tex.
    • per curiam (Haynes, Willett, Wilson), criminal, sentencing
    • Affirming 30-month sentence on conviction of escaping from federal custody.
  • U.S. v. Alvarez, 20-11011, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Trejo-Ramos, 20-11059, appeal from N.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Granting summary affirmance of 33-month sentence for illegal reentry after removal from the United States.
  • U.S. v. Ramseur, 20-11112, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Affirming 44-month sentence for failure to surrender for service of sentence and being a felon in possession of a firearm.
  • U.S. v. Reyes, 20-11222, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Green v. Windsor Park Asset Holding Trust, 20-11226, appeal from N.D. Tex.
    • per curiam (Haynes, Willett, Ho), foreclosure
    • Affirming summary judgment in favor of defendants in suit brought by plaintiff arising from foreclosure on his home.
  • U.S. v. Ruiz-Camacho, 20-20009, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Curtis v. Brunsting, 20-20566, appeal from S.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), Rule 60
    • Affirming district court’s denial of Rule 60(b)(6) and 60(d)(3) motions that sought relief from long-prior orders to amend her lawsuit and to remand to state court.
  • U.S. v. Mack, 20-30160, appeal from W.D. La.
    • per curiam (Ho, Oldham, Wilson), criminal, search and seizure, sufficiency of evidence, sentencing
    • Affirming conviction on firearms and controlled substance offenses, upholding denial of motion to suppress and finding sufficient evidence to support the conviction; and affirming 210-month sentence.
  • U.S. v. Hawkins, 20-30207, appeal from M.D. La.
    • per curiam (Wiener, Southwick, Duncan), criminal, appellate jurisdiction
    • Remanding case to district court to rule on timely filed motion for reconsideration.
  • Mouton v. U.S., 20-30425, appeal from W.D. La.
    • Costa, J. (Jones, Southwick, Costa), Federal Tort Claims Act
    • Affirming district court’s award of $88,921 to plaintiff in FTCA fender-bender case.
  • U.S. v. Mayo, 20-30553, appeal from W.D. La.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Affirming conviction of possession of ammunition by a felon, and 51-month sentence.
  • Thornton v. Lymous, 20-30629, appeal from E.D. La.
    • per curiam (Higginbotham, Stewart, Wilson), § 1983
    • Affirming dismissal of § 1983 suit by plaintiff against New Orleans Police Department for violation of his Fourth Amendment rights.
  • Hudgins v. Catoe, 20-40355, appeal from E.D. Tex.
    • per curiam (Clement, Elrod, Haynes), prisoner suit
    • Dismissing as frivolous appeal of dismissal of prisoner’s § 1983 claims.
  • Hope v. Harris, 20-40379, appeal from E.D. Tex.
    • per curiam (King, Smith, Haynes), Haynes, J., concurring in part and dissenting in part; prisoner suit, Eighth Amendment
    • Affirming in part, vacating in part, and remanding prisoner’s suit challenging various aspects of his solitary confinement.
    • Judge Haynes dissented, as she would have not restricted the scope of the remand to the extent that the majority did.
  • U.S. v. Rider, 20-40548, appeal from E.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sufficiency of evidence, sentencing
    • Affirming conviction of one count of conspiring to possess and distribute methamphetamine (Count One); one count of aiding and abetting in the knowing and intentional possession of methamphetamine with the intent to distribute (Count Three); one count of aiding and abetting in the knowing and intentional possession of methamphetamine with the intent to distribute (Count Twelve); and one count of aiding and abetting in the knowing and intentional possession of cocaine base with the intent to distribute (Count Thirteen); and 360-month sentence.
  • U.S. v. Cardwell, 20-40657, appeal from E.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Vega-Vazquez, 20-40852, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Villaurrutia, 20-40872, appeal from E.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, pretrial detention
    • Affirming district court’s revocation of magistrate’s order of pretrial release pending trial.
  • U.S. v. Villalobos-Ortiz, 20-50285, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ramos, 20-50527, appeal from W.D. Tex.
    • per curiam (King, Smith, Haynes), criminal, sentencing
    • Affirming 63-month sentence on conviction of possessing a firearm as a felon.
  • U.S. v. Roberts, 20-50560, appeal from W.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Oldenburg v. The University of Texas at Austin, 20-50648, appeal from W.D. Tex.
    • per curiam (Jones, Costa, Duncan), employment discrimination
    • Affirming summary judgment for employer university on claims of age discrimination in hiring and of retaliatory termination.
  • U.S. v. Lopez-Jimenez, 20-50779, appeal from W.D. Tex.
    • per curiam (King, Smith, Haynes), criminal, sentencing
    • Granting summary affirmance of within-guidelines sentence for conviction of illegal reentry and revocation of supervised release.
  • U.S. v. Gonzalez, 20-51008, appeal from W.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • U.S. v. Shorter, 20-51017, appeal from W.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, compassionate release
    • Affirming denial of compassionate release.
  • Mendez v. Garland, 20-60175, petition for review of BIA order
    • per curiam (Davis, Stewart, Dennis), immigration
    • Granting Mexican citizen’s petition for review of BIA order denying motion to remand and dismissing appeal of IJ order denying reopening of in absentia removal proceeding, and remanding for further proceedings.
  • Portillo v. Garland, 20-60258, petition for review of BIA orders
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying in part and dismissing in part Mexican citizens’ petition for review of BIA order denying second motion to reopen.
  • Adnan v. Garland, 20-60383, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying Bangladeshi citizen’s petition for review of BIA order affirming the Immigration Judge’s (“IJ”) adverse credibility determination and denial of his applications for asylum, withholding of removal, and relief under the CAT.
  • Alvarenga-Alvarado v. Garland, 20-60402, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying El Salvadoran citizen’s petition for review of BIA order dismissing his appeal of an Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the CAT.
  • U.S. v. Lacy, 20-61132, appeal from S.D. Miss.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Dismissing appeal of sentence of five years’ probation for guilty plea conviction of simple assault on a federal officer, under appeal waiver in guilty plea.
  • Deng v. FBI Agencies, 21-10187, appeal from N.D. Tex.
    • per curiam (Willett, Ho, Wilson), § 1983
    • Affirming dismissal of suit.
  • U.S. v. Dugger, 21-40048, appeal from E.D. Tex.
    • per curiam (King, Smith, Haynes), criminal, compassionate release
    • Affirming district court’s denial of motion for compassionate release.