Designated for publication
- U.S. v. Jackson, 19-10627, appeal from N.D. Tex.
- per curiam (Wiener, Elrod, Higginson), criminal, crime of violence
- Vacating conviction of using a facility in aid of a racketeering enterprise with intent to commit a “crime of violence”; holding that predicate offense of sex trafficking of children is not a “crime of violence,” and that conviction, therefore, was plain error because, “if left uncorrected, [it] would seriously affect the fairness, integrity, and public reputation of judicial proceedings.”
- Under 18 U.S.C. § 16, a “crime of violence” is defined as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Supreme Court held in Sessions v. Dimaya that § 16(b) was unconstitutionally vague, leaving only § 16(a) as a viable definition for “crime of violence.” 138 S. Ct. 1204, 1223 (2018). The Court held (and the government conceded) that, under the categorical approach, sex trafficking of children may be achieved through non-violent means such as fraud and is therefore not a “crime of violence.”
- SED Holdings, L.L.C. v. TM Property Solutions, L.L.C., 19-20841, appeal from S.D. Tex.
- Duncan, J. (Haynes, Duncan, Engelhardt), fraud, breach of contract
- Denying motion for panel rehearing and to recall the mandate; withdrawing previous opinion at 2 F.4th 387 (June 17, 2021), and substituting with opinion that affirmed liability judgment on claim of fraud in the sale of millions of dollars of loans, remanded for remittitur of $14 million damages award, vacated separate judgment for breach of contract to service the loans, and remanding for new trial on that breach of contract claim.
- Hobbs v. EVO Inc., 20-20213, appeal from S.D. Tex.
- Higginbotham, J. (Higginbotham, Stewart, Wilson), Fair Labor Standards Act
- Affirming district court’s judgment that employee field engineers were non-exempt employees under the FLSA and that defendants’ failure to pay the field engineers overtime violated the FLSA, and affirming the district court’s determination that field engineers had a fluctuating workweek limited them to half-time rather than time-and-a-half overtime wages and that counsel’s attorneys fees should be reduced for pursuing meritless arguments.
- Prim v. Stein, 20-20387, appeal from S.D. Tex.
- Stewart, J. (Higginbotham, Stewart, Wilson), assault, false imprisonment, negligence, qualified immunity, Americans with Disabilities Act
- Affirming summary judgment dismissing false imprisonment claims, assault claim of one plaintiff against concert venue security guard, negligence claim of one plaintiff against concert venue on respondeat superior grounds, claims against officers on qualified immunity grounds, and claims under the ADA and Rehabilitation Act; reversing summary judgment dismissing assault and respondeat superior claims of other plaintiff; and remanding for further proceedings.
- Plaintiffs had attended a concert at the Woodlands venue, each drinking five glasses of wine before and during the concert. Afterwards, they were having difficulty walking back to the parking area, so a venue security guard escorted them to a security office, providing a wheelchair for the wife (who also suffered from MS) and at one point grabbing the husband by the arm. Once at the security office, the couple exhibited signs of inebriation, including red eyes, slurred speech, and a failure to pass a field sobriety test. At that point, police officers sought to find a ride for the couple, but they were unable to provide the officers with a phone number of anyone who could pick them up. The couple then stated they would walk home, though the route would have to cross to major roads, so the officers arrested them for public intoxication and assisted them home. The charges were later dropped.
- The Court affirmed the summary judgment dismissal of the wife’s claims of assault and respondeat superior liability against the security guard and the venue, arising from her being placed in a wheelchair, because her own testimony showed that she did not find the use of the wheelchair objectionable. The Court, however, reversed the summary judgment dismissal of the husband’s assault and respondeat superior claims against the security guard and the venue because there was a genuine dispute as to whether he found the physical contact of being grabbed by the arm objectionable.
- The Court affirmed the false imprisonment claims against the security guard because there was no genuine dispute that he did not force the couple to the security office or compel them to stay there.
- The Court affirmed the qualified immunity dismissal of the claims against the officers because, under an objective reasonability analysis they had probable cause to arrest the couple.
- The Court affirmed the summary judgment dismissal of the ADA and Rehab Act claims because the plaintiffs did not present a genuinely disputed issue that the alleged barriers to her participation in the concerts (the use of spotlights and strobe lights during a concert) were subject to readily available removal.
- U.S. v. Vargas, 20-40040, appeal from E.D. Tex.
- Higginbotham, J. (Higginbotham, Stewart, Wilson), criminal, sufficiency of evidence
- Affirming convictions of married couple co-defendants for transporting stolen goods in interstate or foreign commerce and conspiracy to do the same based on their participation in a crew of burglars, which targeted commercial tire stores. The husband was convicted for his role as leader of the crew, and the wife was convicted for her role as the crew’s paymaster.
- The Court held that the district court’s instruction to the jury that they could convict the defendants on the first three counts of the indictment if they found the defendants “‘transported or caused to be transported in interstate or foreign commerce items of stolen property,’ [or] if they ‘made an agreement to commit the crime of interstate or foreign transportation of stolen property,'” was not a constructive amendment of the indictment. Even if it had been error for the indictment to specify interstate commerce when the charged conduct was actually for the sale of the stolen tires in foreign commerce (to entities in Mexico), the Court held there was no plain error because the defendants failed to show how this affected their substantial rights.
- The Court held that, while it was “a close question,” there was sufficient evidence in the record to support the conviction for sale of stolen goods in foreign commerce because there was “enough evidence for a rational juror to conclude that Joel sold his stolen tires to buyers who then transported or sold them into Mexico.” The Court likewise held that there was sufficient evidence in the record to support the conviction for transporting stolen goods in interstate commerce. The Court also held there was sufficient evidence to support the conviction of the husband for witness tampering, for his threats to expose the father of one of the burglary crew to violence and retaliation from his motorcycle gang.
Unpublished
- Navarrete-Lopez v. Garland, 19-60415, petition for review of BIA order
- per curiam (Clement, Higginson, Engelhardt), immigration
- On remand from the U.S. Supreme Court, granting in part petition for review of BIA order denying motion to reopen, and remanding to BIA for proceedings in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
- Drake v. Spring Independent School District, 20-20376, appeal from S.D. Tex.
- per curiam (Clement, Haynes, Wilson), Americans with Disabilities Act
- Affirming summary judgment in favor of employer defendant on plaintiff’s claims that she had been discriminated against in violation of the ADA.
- U.S. v. Alridge, 20-20423, appeal from S.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
- Affirming 70-month sentence on conviction of possession of a firearm by a felon.
- U.S. v. Diaz, 20-20577, appeal from S.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Amiri v. Garland, 20-30435, appeal from W.D. La.
- per curiam (Higginbotham, Higginson, Duncan), habeas corpus
- Affirming district court’s dismissal of § 2241 petition for lack of jurisdiction.
- A-Pro Towing and Recovery, L.L.C. v. Cantu, 20-40599, appeal from S.D. Tex.
- per curiam (King, Dennis, Ho), § 1983
- Affirming summary judgment dismissal of plaintiff’s class-of-one Equal Protection and 14th Amendment “occupational liberty” claims against city commissioner who owned competitor towing companies and allegedly used his official position to direct city towing business away from plaintiff and to his own companies.
- U.S. v. Rios-Espinoza, 20-40841, appeal from S.D. Tex.
- per curiam (Smith, Stewart, Higginson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Mixon, 20-51019, appeal from W.D. Tex.
- per curiam (Smith, Stewart, Willett), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Lindsay, 20-51041, appeal from W.D. Tex.
- per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Hernandez-Colunga, 21-40077, appeal from S.D. Tex.
- per curiam (Southwick, Oldham, Wilson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Hernandez-Albarran, 21-40090, appeal from S.D. Tex.
- per curiam (Davis, Jones, Elrod), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Rangel, 21-40182, appeal from S.D. Tex.
- per curiam (Jolly, Willett, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
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