July 1, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Adeeko v. Garland, 19-60703, petition for review of BIA order
    • Wilson, J. (Clement, Haynes, Wilson), Haynes, J., concurring; immigration
    • Denying petition for review of BIA order affirming IJ’s order of removal of Nigerian citizen after the Department of Homeland Security charged him as being removable upon his conviction of online solicitation of a minor.
    • The Court first held that it properly had jurisdiction and venue over the petitioner’s appeal because, although he had been detained in New Mexico, his proceedings were before an IJ in Texas.
    • The Court then held that it was appropriate to apply Chevron deference to the BIA’s interpretation of a “crime of child abuse” pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), which makes deportable “[a]ny alien who at any time after admission is convicted of … a crime of child abuse[.]” Under this deference, the Court held that the BIA interpretation of § 1227 was a categorical match with the crime the petitioner was convicted of, Texas Penal Code § 33.021(c).
    • Judge Haynes concurred. She agreed that the Court was bound by the Chevron-deference opinion rendered by a previous panel in Garcia v. Barr, 969 F.3d 129, 132 (5th Cir. 2020), as to the reasonableness of the BIA’s interpretation of “crime of child abuse,” though she disagreed with Garcia’s determination that the broad interpretation by the BIA was reasonable, “particularly in light of the recent statutory analysis used by the Supreme Court in addressing a different immigration statute.” (Citing Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480-85 (2021)).
  • U.S. v. Scott, 20-30256, appeal from E.D. La.
    • Willett, J. (Elrod, Willett, Engelhardt), habeas corpus, ineffective assistance of counsel
    • Affirming the denial of § 2255 petitioner’s ineffective assistance of counsel claim, challenging the effectiveness of his trial counsel when trial counsel declined to file a motion to suppress evidence of a firearm and drugs found on the petitioner during a traffic stop that petitioner claimed was not lawful.
    • The petitioner had been observed by DEA agents making what those agents believed to be a “hand to hand” narcotics transaction. Later that evening, after the DEA agents completed the buy-bust arrest of the drug dealer they had been watching, the agents saw the petitioner in a restaurant drive-thru and decided to make an investigatory stop. They handcuffed him for their safety and performed a protective search, finding a loaded revolver and multiple clear plastic baggies containing heroin and other drugs. When petitioner’s appointed counsel reviewed the DEA agents’ report with the petitioner, the petitioner contested it, explaining he did not know the suspected drug dealer who had been the subject of the DEA agents’ buy-bust operation and asking his appointed counsel to file a motion to suppress. After the counsel explained that she did not believe the motion would be successful, petitioner “backed off” and decided to plead guilty.
    • In reviewing the petitioner’s IAC claims, the district court found that, while a motion to suppress may have been meritorious, petitioner’s trial counsel had made a strategic decision to forego that motion due to “potential negative consequences” if a suppression hearing went forward, including that the petitioner might be charged with drug offenses and not just the offense of being a felon in possession of a firearm.
    • The Court held that petitioner’s trial counsel did not run afoul of the Strickland standard, because her strategic decision was made with full knowledge of the law with regard to Terry stops, and upon factual investigation including review of discovery from the prosecution, the DEA report, discussion of the DEA report with the petitioner, and legal research. Accordingly, the Court held that trial counsel’s representation was constitutionally adequate.
  • Jackson v. Gautreaux, 20-30442, appeal from M.D. La.
    • Oldham, J. (Davis, Duncan, Oldham), qualified immunity
    • Affirming summary judgment grant of qualified immunity to officer defendants who shot and killed Travis Stevenson after unsuccessful efforts to deescalate a situation where Stevenson repeatedly slammed his car into a concrete pillar of an apartment complex and a police cruiser while yelling “Kill me!”
    • The Court held that it’s precedents provided three reasons why it was required to find no Fourth Amendment violation. First, the Court held that Stevenson was using his car as a weapon, as the first responding officer on the scene was trapped between parked cars in the area where Stevenson was driving his car back and forth while ramming into the cruiser and the apartment building. Second, the Court held that Stevenson was exhibiting volatile behavior, both before and during the incident, facts that were known to the responding officers. And third, the Court held that the plaintiffs had failed to present any evidence “that suggests the officers might’ve had a reasonable alternative course of action.” Noting that plaintiffs’ counsel had suggested at oral argument that the officers could have just backed off and waited for Stevenson’s episode to conclude before moving in, the Court held, “That’s absurd. Lieutenant Birdwell was inches from the front left bumper of Stevenson’s car while he was repeatedly driving it backwards and forwards and violently crashing into things. Whatever reasonable alternatives officers might’ve had, doing nothing and praying for the best is not one of them. And without a reasonable alternative to the officers’ conduct, Plaintiffs are without a Fourth Amendment claim that the officers behaved ‘unreasonably.'”
    • The Court also held that the district court did not err in dismissing the plaintiffs’ failure-to-train claim against the sheriff. The Court held that the plaintiffs impermissibly had switched their failure-to-train claim from an argument of failure to train the officers to avoid the use of excessive force to a claim of failure to train officers to deal with mentally unstable individuals, making that switch in response to the summary judgement motions. “This is precisely the sort of surprise switcheroo that our precedents forbid.”
  • Taylor Energy Co., LLC v. Couvillion Group, LLC, 20-30552, appeal from E.D. La.
    • Stewart, J. (Smith, Stewart, Ho), federal contractor defense
    • Affirming summary judgment for contractor to federal government on oil spill containment project where the Coast Guard had assumed the response role from Taylor Energy, the responsible party under the Oil Pollution Act.
    • The contractor, Couvillion, had initially represented that it could perform the containment of the sea-floor oil spill for $3 million, but under contract with and oversight by the Coast Guard, which was to be paid for by Taylor, had performed more than $40 million in work. Taylor brought tort-based claims against Couvillion for trespass and unauthorized activities at Taylor’s well site, arguing that Couvillion was not acting under the supervision of the Coast Guard because the Coast Guard had not been actually exercising control over the project.
    • Under Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), a contractor to the federal government where the authority to carry out the project is validly conferred enjoys “derivative sovereign immunity.” See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016). The Court held that the Statement of Work issued by the Coast Guard to Couvillion eliminated any genuine material dispute of fact as to whether Couvillion was operating under the government’s authorization and at the government’s direction. The Court then held that “[t]he appropriate inquiry is whether Couvillion adhered to the Government’s instructions as described in the contract documents.” The Court found no genuine dispute as to that factual inquiry.
    • The Court then held that Couvillion’s authority to act was validly conferred by Congress because the Coast Guard’s On-Scene Coordinator of Work validly delegated the work to Couvillion, pursuant to 33 U.S.C. § 1321(c)(1)(B) and 40 C.F.R. § 300.322(b).

Unpublished

  • Smith v. MTGLQ Investors, L.P., 19-20665, appeal from S.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), foreclosure
    • Affirming dismissal of plaintiff’s foreclosure-based claims for failure to state a claim.
  • U.S. v. Piedra, 19-20780, appeal from S.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Marcial-Pedro, 19-40464, appeal from E.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, sentencing
    • Affirming sentence on conviction for illegal reentry after removal.
  • Casildo v. Garland, 19-60322, petition for review of BIA order
    • per curiam (Clement, Higginson, Engelhardt), immigration
    • Granting Honduran citizen’s petition for review of BIA order denying appeal of IJ’s denial of application for relief under the Convention Against Torture; vacating BIA order; and remanding to BIA with instructions to remand to IJ.
  • Gallagher v. Vokey, 20-11000, appeal from N.D. Tex.
    • per curiam (Clement, Haynes, Wilson), arbitration
    • Reversing district court’s denial of motion to compel arbitration in attorney fee dispute, and remanding.
  • Gahan v. Sanofi-Aventis, U.S., LLC, 20-30229, appeal from E.D. La.
    • per curiam (Jolly, Southwick, Costa), products liability
    • Affirming dismissal of failure-to-warn and fraud-based claims brought by breast cancer patient against chemotherapy manufacturer.
  • U.S. v. Garnett, 20-40049, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Adams, 20-40091, appeal from E.D. Tex.
    • per curiam (Higginbotham, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Villasana-Mar, 20-40117, appeal from S.D. Tex.
    • per curiam (Davis, Elrod, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ysassi, 20-40195, appeal from E.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Paz-Gonzalez, 20-40545, appeal from E.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Espinoza-Naranjo, 20-40566, appeal from S.D. Tex.
    • per curiam (Higginbotham, Costa, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Searcy v. Abbott, 20-50231, appeal from W.D. Tex.
    • per curiam (Higginbotham, Smith, Oldham), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claim arising from alleged confiscation of UCC materials used in attempting to get a pardon from Governor Abbott.
  • U.S. v. Michaelis, 20-50553, appeal from W.D. Tex.
    • per curiam (Clement, Haynes, Wilson), criminal, sufficiency of evidence, sentencing
    • Affirming conviction on one count of conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine; but finding plain error and reversing defendant’s sentence, and remanding for resentencing.
  • U.S. v. Hernandez, 20-50593, appeal from W.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jimenez, 20-51024, appeal from W.D. Tex.
    • per curiam (Dennis, Southwick, Engelhardt), criminal, First Step Act
    • Dismissing as untimely appeal from denial of motion for sentence reduction under the First Step Act.
  • Garcia v. EEOC, 20-60169, petition for review of EEOC order
    • per curiam (Clement, Haynes, Wilson), employment discrimination
    • Denying petition for review of EEOC denial of former magistrate judge’s claims of employment discrimination in the allowance of her term to lapse without reappointment, which she alleged was retaliation for her expressed concerns about pay disparity based on gender.