August 10. 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Butler, 19-40095, appeal from E.D. Tex.
    • Smith, J. (Owen, Smith, Graves), criminal, sentencing
    • Affirming imposition of special conditions of release and temporary denial of federal benefits as part of sentence on guilty plea to conspiracy to possess methamphetamine.
    • Defendant entered into a guilty plea agreement that indicated a sentence of 144 months’ imprisonment and a 5-year term of supervised release, but that did not mention what special conditions may accompany the supervised release term or temporary ineligibility for federal benefits under 21 U.S.C. § 862(b)(1)(B). The plea agreement also contained an appeal waiver. Defendant did not object to the PSR that recommended imposition of special conditions and a five-year denial of federal benefits.
    • The Court held that, due to the lack of an objection to the district court, the review would be for plain error.
    • The Court held that silence in the plea agreement with regard to special conditions and benefits eligibility does not constrain the district court’s discretion in those areas. Where silence does not equate to a prohibition on those conditions, then the district court’s imposition of those conditions is not a rejection of any part of the plea agreement. “[W]here Butler bargained for the court not to exercise its usual sentencing discretion, the plea agreement made that clear. For instance, the parties agreed that Butler ‘will not receive a fine.’ But they did not do that for § 862 or special conditions of SR. By expressio unius, the parties did not indicate any intent to bar the court from exercising its discretion vis-à-vis § 862 or special conditions of SR.”
    • The Court then held that defendant’s argument that, if the district court had discretion to deny benefit eligibility then it abused that discretion, was barred by the appeal-waiver.
  • The Mitchell Law Firm, L.P. v. Bessie Jean Worthy Revocable Trust, 20-10492, appeal from N.D. Tex.
    • Oldham, J. (Higginbotham, Costa, Oldham), jurisdiction, attorneys’ fees
    • Affirming district court’s Rule 60(b)(4) vacatur on lack-of-subject-matter-jurisdiction grounds of its entry of an agreed-judgment on plaintiff’s suit to recover its fees from a breach-of-fiduciary-duty suit.
    • The Court held that res judicata did not bar the 60(b)(4) vacatur on jurisdictional grounds. The Court held that a void judgment does not have preclusive effect. “This case involves a paradigmatic void judgment. The district court obviously lacked subject-matter jurisdiction under 28 U.S.C. § 1332 because Mitchell is a Texas plaintiff suing a Texas defendant. But the combination of Mitchell’s misleading citizenship allegations and his use of an officemate as ‘opposing’ counsel meant that the district court had no clue about the jurisdictional defect. So the district court rendered a judgment that was void and properly vacated under Rule 60(b)(4).”
    • After holding that the plaintiff forfeited its argument as to standing of the new trustee of the defendant to bring the Rule 60 motion, the Court rejected plaintiff’s argument that the district court lacked jurisdiction to order the return of funds that had already been paid pursuant to the void judgment. “It would be quite something if a party could invoke federal jurisdiction under false pretenses and then invoke the limitations of federal jurisdiction to keep tens of thousands of dollars in ill-gotten gains. But that has never been the law. It is axiomatic that ‘power is inherent in every court … to undo what it had no authority to do originally.'”
  • Jim S. Adler, P.C. v. McNeil Consultants, L.L.C., 20-10936, appeal from N.D. Tex.
    • Southwick, J. (Jones, Southwick, Costa), Lanham Act, trademark infringement
    • Reversing dismissal of plaintiff’s trademark-infringement suit arising from “bait-and-switch” internet advertising scheme making use of plaintiff’s trademarks as keyword Google ads, vacating denial of a motion for leave to amend the complaint, and remanding for further proceedings.
    • The Court held that plaintiff had pled “initial interest confusion” as the actionable likelihood of confusion to support its Lanham Act claim. The Court held that, “in the context of internet searches and search-engine advertising in particular, the critical issue is whether there is consumer confusion. Distraction is insufficient.” The Court then held that plaintiff had specifically alleged the type of consumer confusion to survive a motion to dismiss, where plaintiff alleged that the defendant’s use of generic text in its advertisements rather than language clearly identifying that the ad belonged to the defendant rather than the plaintiff and the use of “click to call” ads that route the consumer to a phone call rather than a website. The Court found “that Adler made specific factual allegations describing how the use of the Adler marks as keyword terms — combined with generic, unlabeled advertisements and misleading call-center practices — caused initial interest confusion. This pleading included factual matter beyond the mere purchase of trademarks as keywords for search-engine advertising, and the district court should have considered those allegations.”
  • U.S. v. Torres, 20-40611, appeal from E.D. Tex.
    • Graves, J. (Owen, Smith, Graves), criminal, sufficiency of evidence
    • Affirming conviction of defendant, who detonated a bomb outside a church’s administrative building, under 18 U.S.C. § 844(i), which requires that a building that is damaged by fire or explosion be used in or influence interstate commerce.
    • The Court held that, while church buildings are not typically deemed to be used in interstate commerce, “a church building can be used for commercial purposes and thus fall within § 844(i)’s ambit.” Here, because the church runs childcare programs for which it charges tuition, and the administrative building is the locus for those and for administering the rental of its facilities “to vendors and to individuals for receptions, parties, townhalls, cotillion, dances, and other nonreligious gatherings,” it was a building used for interstate commerce under the statute.
  • U.S. v. Aguirre-Rivera, 20-50609, appeal from W.D. Tex.
    • Elrod, J. (Wiener, Elrod, Higginson), criminal, sentencing
    • Affirming district court’s denial of acquittal on charge of conspiring to possess with intent to distribute one kilogram or more of heroin, but vacating sentence that was levied under wrong statutory provision, and remanding for resentencing.
    • The Court held that the jury’s response to a special interrogatory–answering “no” to the question whether the defendant “knew or reasonably should have known that the scope of the conspiracy involved at least one kilogram or more of a mixture or substance containing a detectable amount of heroin”–did not undermine its response of “yes” on the general interrogatory as to whether defendant was guilty of the charge. The Court held that the negative finding as to knowledge of the amount of heroin only affected the sentencing range, not the conspiracy conviction itself, as the drug amount only impacted the statutory minimum sentence. “[B]ecause the drug quantity is not a formal element of the conspiracy offense, the jury’s answer to the second special interrogatory negated only the sentencing enhancement under § 841(b), not the general guilty verdict.”
    • Consequently, the Court held that the district court erred in sentencing the defendant under the statutory minimum for the drug amount that the jury found had not been proven. “We agree that the district court improperly relied on an incorrect mandatory minimum. Aguirre-Rivera was not subject to any mandatory minimum because of the jury’s answer to the second special interrogatory. … This was constitutional error.”

Unpublished

  • Villarreal v. Tropical Texas Behavioral Health, 20-40782, appeal from S.D. Tex.
    • per curiam (Davis, Haynes, Oldham), Family and Medical Leave Act, Americans with Disabilities Act
    • Affirming summary judgment in favor of employer defendant on plaintiff’s claims that her termination after missing substantial work time without leave violated the FMLA and ADA.
  • U.S. v. Placancia-Rosendo, 20-50919, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming guilty-plea conviction of unlawfully transporting aliens for commercial advantage and 21-month sentence.
  • U.S. v. Lane, 21-10052, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.