Take the Fifth

Designated for publication

• U.S. v. Hudgens, 19-50628, appeal from W.D. Tex.
  • Clement, J. (Jones, Clement, Graves), Graves, J., dissenting; criminal, sentencing
  • Affirming 240-month sentence on guilty plea to two counts of conspiracy to possess with intent to distribute heroin and methamphetamine.
  • Defendant had provided heroin to his girlfriend, who immediately began to show signs of overdose. Defendant knew that his girlfriend suffered from an enlarged-heart condition. But, rather than call for help or take her to a hospital, defendant injected her with methamphetamine to try to reverse the overdose effect, then went to sleep. When he awoke, his girlfriend was unresponsive, and she later died in the emergency room. Because of her enlarged heart, the medical examiner was unable to attribute but-for causation for her death to the drug overdose, and the government did not charge defendant with distribution leading to death. Nevertheless, the district court upwardly varied the sentence from the Guidelines range to 240 months, which would have been the mandatory minimum for distribution leading to death.
  • The Court held that the upwardly varied sentence was not substantively unreasonable, under an abuse of discretion review. The Court held that the district court’s consideration of the death was not a clear error. The Court also noted that the sentence was still within the statutory maximum for the charged offense. The Court then held that the district court did not improperly rely on the heroin and the methamphetamine as the cause of defendant’s girlfriend’s death. “There is a distinction, however, between improperly punishing Hudgens for causing A.F.’s death and considering Hudgens’s behavior in the face of A.F.’s fatal intoxication and under the totality of the circumstances.” In other words, the Court held that the sentence was proper as punishment not for causing her death, but for failing to call for help in the face of an overdose. “Although the line is fine between improperly weighing the enhanced penalty, and appropriately considering Hudgens’s behavior under the totality of the circumstances, the district court successfully threaded the needle.”
  • Judge Graves dissented. He opined that the district court sentenced defendant expressly for a crime for which he was not charged (distribution leading to death), and that the Court has recently vacated a sentence from the same district court judge showing the same error, citing United States v. Bostic, 970 F.3d 607, 612 (5th Cir. 2020).

• Ochoa-Salgado v. Garland, 19-60519, petition for review of BIA order
  • Smith, J. (Smith, Ho, Barker (by desig.)), immigration
  • Denying Mexican citizen’s petition for review of BIA order denying cancellation of removal.
  • Petitioner was convicted for distribution of cocaine. Because that Texas conviction for cocaine distribution is included within the Controlled Substances Act, the Court held that the petition was not eligible for cancellation of removal.
  • The Court held that the offer-to-sell prong of liability under the Texas statute qualified as a drug trafficking crime under the CSA. The Court held that it was not bound under the rule of orderliness by two prior panel opinions that had reached an opposite result, because in those cases the government had not challenged or had conceded that point. “[A] panel’s assumption is not binding if the adverse party did not challenge and we did not consider that issue. Thus, the rule of orderliness applies where (1) a party raises an issue and (2) a panel gives that issue reasoned consideration. But where a party concedes an issue, that party does not raise it. And where a panel relies on that concession, without further analysis, it does not give the issue reasoned consideration.” (Internal quotation marks and footnotes omitted).

• Great American Life Insurance Co. v. Tanner, 20-60588, appeal from N.D. Miss.
  • Stewart, J. (Smith, Stewart, Ho), annuities, successions
  • Affirming district court’s judgment after trial that decedent’s daughter, rather than his widow and step-son, was entitled to proceeds from two annuities, an IRA, life insurance proceeds, and mineral rights.
  • The Court held that the district court did not err in finding that the step-son had exerted undue influence over the decedent in getting him to change his will and the beneficiaries of his annuities and policies. “The record confirms that Don rarely, if ever, acted independently of Craig and that Craig made at least half a dozen two-hour trips to accompany Don to make financial decisions that benefited himself or his mother. Further, there is no evidence in the record here … that Don was able to have private conversations with anyone outside of Craig’s presence or that he discussed the substance of the beneficiary changes with anyone before making them.”
  • The Court then held that the district court did not err in holding the step-son and widow jointly and severally liable. “[B]ecause the claims against Craig and Alita were founded on a single deprivation, the loss of the transferred assets, joint and several liability is appropriate.”

Unpublished

• Nawiini v. Garland, 18-60650, petition fore review of BIA order
  • per curiam (Jolly, Elrod, Graves), immigration
  • Denying in part and granting in part petition to review BIA orders denying motion to reconsider and to reopen removal proceedings.

• Papalote Creek II, L.L.C. v. Lower Colorado River Authority, 19-50850, appeal from W.D. Tex.
  • per curiam (Dennis, Elrod, Costa), Elrod, J., dissenting; breach of contract
  • Affirming district court’s judgment in dispute regarding the breach of a Power Purchase Agreement between the power authority and a wind farm development, which interpreted the PPA and its key provisions to limit to $60 million the Lower Colorado River Authority’s liability for damages for failure to perform its material obligations under the agreement.
  • Judge Elrod dissented. She opined that the majority’s interpretation rendered meaningless a take-or-pay provision in the agreement.

• Ramos-Martinez v. Garland, 20-60680, petition for review of BIA order
  • per curiam (Wiener, Dennis, Haynes), immigration
  • Dismissing in part and denying in part Salvadoran citizen’s petition for review of BIA order dismissing his appeal of an Immigration Judge’s (IJ) denial of his application for withholding of removal.

• U.S. v. Bowens, 20-61240, appeal from N.D. Miss.
  • per curiam (Smith, Stewart, Graves), criminal, First Step Act, compassionate release
  • Affirming district court’s denial of motions for sentence reduction under the First Step Act and for compassionate release.