September 7-9, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. McClaren, 17-30524, appeal from E.D. La.
    • Stewart, J. (Stewart, Higginson, Wilson), criminal, severance, Batson challenge, sufficiency of evidence, sentencing, First Step Act
    • Granting government’s petition for panel rehearing of May 18, 2021 opinion; withdrawing previous panel opinion and substituting new one; denying defendants’ petition for panel rehearing and for rehearing en banc; affirming convictions arising from defendants’ participation in a New Orleans street gang in part, vacating in part, and reversing in part.
    • Upholding district court’s denial of two co-defendants’ motions to sever.
    • Finding no clear error in district court’s denial of Batson challenges.
    • Holding there was sufficient evidence to support RICO convictions.
    • Holding there was sufficient evidence to support convictions under Violent Crimes in Aid of Racketeering Act.
    • Holding there was sufficient evidence to support drug trafficking conspiracy convictions.
    • Holding there was sufficient evidence to show that one co-defendant, who had been a minor at the time of the commencement of the charged RICO conspiracy, ratified his participation in the drug and RICO conspiracies through acts taken after he turned eighteen.
    • Holding there was sufficient evidence to show four co-defendants’ were involved in the trafficking of more than 280 grams of crack cocaine; but holding there was insufficient evidence as to one co-defendant’s drug-quantity calculation for purposes of the drug-trafficking conspiracy conviction, and vacating that defendant’s sentence and remanding for resentencing.
    • Reversing one co-defendant’s conviction on firearms offenses for failure to show a violation of 18 USC § 924(c). Affirming two other co-defendants’ convictions of the firearms offenses.
    • Holding that the co-defendants were not entitled to a new trial on the basis of the admission of another co-defendant’s plea-agreement documents.
    • Affirming the district court’s denial of codefendants’ motion for new trial.
    • Finding no abuse of discretion in the district court’s sentencing of one co-defendant to 192 months; and in the denial of a sentence-reduction under the First Step Act to another defendant.
  • U.S. v. Olvera-Martinez, 18-40338, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Duncan), criminal, sentencing
    • On remand from the U.S. Supreme Court, reforming defendant’s judgment of conviction to show that his conviction was under 18 USC § 1326(b)(1) rather than (b)(2), and affirming 36-month sentence for illegal reentry.
  • U.S. v. Cardenas, 18-40790, appeal from S.D. Tex.
    • Oldham, J. (Jolly, Duncan, Oldham), habeas corpus
    • Affirming district court’s judgment that petitioner’s motion to vacate his life sentence on various firearm- and drug-related convictions under 28 USC § 2255 was time-barred by AEDPA’s one-year limitations period.
    • The Court held that the district court did not abuse its discretion in declining to apply equitable tolling to the petitioner’s late-filed § 2255 motion or to characterize earlier pro se filings of the petitioner as timely § 2255 petitions. Petitioner had argued his attorney’s admitted error in calculating the deadline for the § 2255 petition should entitle him to equitable tolling, which the Court held was foreclosed by its precedent. The Court also noted that the substance of the petitioner’s pro se filings had not been for habeas relief.
  • Hewitt v. Helix Energy Solutions Group, Inc., 19-20023, appeal from S.D. Tex.
    • Ho, J. (Owen, Jones, Smith, Wiener, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson), joined by Smith, Stewart, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham, Wilson, JJ.; Ho, J., concurring; Jones, J., dissenting, joined by Owen, Wiener, Elrod, Southwick, JJ.; Wiener, J., dissenting, joined by Owen, Jones, Dennis, Elrod, JJ.; Fair Labor Standards Act
    • Reversing district court’s summary judgment that employer was exempt from FLSA requirements as to plaintiff as a highly compensated executive employee because it failed to provide for a minimum guaranteed weekly payment, and remanding for further proceedings.
    • Plaintiff worked as a tool-pusher in one-month “hitches” for defendant, and was paid on a daily rate at $963 per day. Defendant argued it did not need to comply with the minimum weekly guarantee and reasonable-relationship requirements of 29 CFR § 541.604(b); that all that was required was that the employee meet the income threshold and duties requirements to be an exempt highly-paid executive. The parties did not dispute that the plaintiff met the income threshold and duties elements, but did dispute whether he needed to meet the minimum weekly guarantee requirement in order to be exempt.
    • The majority of the en banc Court held, “This appeal requires us to do nothing more than apply the plain text of the regulations. Under 29 C.F.R. § 541.601, a highly compensated employee must be paid on a ‘salary basis’ in order to avoid overtime.” The Court held that the “two-prong test [contained in § 541.604(b)] protects employees in two ways. First, the ‘minimum weekly’ guarantee ensures that a daily-rate employee still receives a guaranteed amount each week ‘regardless of the number of hours, days or shifts worked.’ In other words, it sets a floor for how much the employee can expect to earn, ‘regardless’ of how many hours, days, or shifts the employee works. Second, the reasonable-relationship test ensures that the minimum weekly guarantee is not a charade—it sets a ceiling on how much the employee can expect to work in exchange for his normal paycheck, by preventing the employer from purporting to pay a stable weekly amount without regard to hours worked, while in reality routinely overworking the employee far in excess of the time the weekly guarantee contemplates.”
    • The Court specifically rejected the defendant’s arguments that it does not need to satisfy the test under 541.604(b) if the employee is a “highly compensated employee” under 541.601 or if it is in compliance with 541.602.
    • The Court also rejected the defendant’s argument that it goes against the purpose of the FLSA to treat an employee such as the plaintiff, who makes well over $200,000 per year, as a non-exempt employee; “it it should go without saying that we are governed by the text of the FLSA and its implementing regulations, not some unenumerated purpose.”
    • The Court concluded, “Our job is to follow the text—not to bend the text to avoid perceived negative consequences for the business community. That is not because industry concerns are unimportant. It is because those concerns belong in the political branches, not the courts.”
    • Judge Ho separately concurred with his majority opinion, in order to rebut arguments made by various amici and the dissenters, to “explain why they are all at war with the text.”
    • Judge Jones dissented. She opined, “[T]he regulations further presumptively exclude such workers who are ‘highly compensated’—at half of Hewitt’s salary. 29 C.F.R. § 541.601 (the ‘HCE’ provision). For a statute designed to elevate the workingman, the majority’s result seems counterintuitive, and in fact it is incorrect.”
    • Judge Wiener dissented. He opined “to emphasize how common sense and a reasonable reading of the law combine to demand a result opposite the one reached originally by the panel majority and today by the en banc majority. Frankly, I cannot fathom how a majority of the active judges of this court can vote to require Helix to pay overtime to Hewitt, the supervisor of 12 to 13 hourly, hands-on workers, when he was already paid more than twice the cap of $100,000 per annum for overtime eligibility. And, if that is not incomprehensible enough, keep in mind that Hewitt worked for Helix no more than half of the days during the calendar years at issue!”
  • Hicks v. Martinrea Automotive Structures (USA), Inc., 20-60926, appeal from N.D. Miss.
    • Jones, J. (Jones, Southwick, Costa), jurisdiction
    • Reversing summary judgment in favor of defendant employer on plaintiff’s Mississippi state-law claims for interference with employment and witness tampering, on a holding that a non-diverse defendant had not been improperly joined such that the district court did not have subject-matter jurisdiction; and remanding with instructions to remand to state court.
  • U.S. v. Garrett, 20-61083, appeal from S.D. Miss.
    • Smith, J. (Owen, Smith, Graves), Graves, J., dissenting; criminal, compassionate release
    • Affirming district court’s denial of motion for compassionate release, on basis that movant had failed to exhaust his administrative remedies.
    • Judge Graves dissented. “I agree with the majority that the district court erred in its application of the exhaustion requirements in denying Leondus Garrett’s motion for compassionate release. However, I disagree with the majority that the district court nonetheless reached the correct outcome.”

Unpublished

  • U.S. v. Gabaldon, 19-50777, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Carpenter, 20-10902, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting summary affirmance of guilty-plea conviction for obstruction of justice.
  • U.S. v. Nunez-Gonzalez, 20-11150, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 72-month sentence on conviction for illegal reentry.
  • U.S. v. Benitez, 20-11157, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Perez v. Collier, 20-20036, appeal from S.D. Tex.
    • per curiam (Higginbotham, Willett, Duncan), qualified immunity
    • Reversing qualified-immunity summary judgment in favor of prison officers arising from alleged beating of prisoner plaintiff, and remanding for further proceedings.
  • Roberson v. Morgan, 20-20381, appeal from S.D. Tex.
    • per curiam (Southwick, Graves, Costa), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 action.
  • Canada Hockey, L.L.C. v. Marquardt, 20-20530, appeal from S.D. Tex.
    • Graves, J. (Owen, Smith, Graves), qualified immunity
    • Dismissing Texas A&M employee’s appeal of denial of qualified immunity for lack of appellate jurisdiction.
  • Edelstein v. City of Brownsville, 20-40211, appeal from S.D. Tex.
    • Smith, J. (Jones, Smith, Elrod), Elrod. J., dissenting in part; § 1983
    • Affirming 12(b)(6) dismissal of female attorneys’ § 1983 claim against city under the Due Process Clause and the Equal Protection Clause arising from city’s advertisement for and hiring of a municipal judge.
    • Judge Elrod dissented on the basis that she believed that the district court erred in not allowing an amendment of the plaintiffs’ complaint.
  • Landers v. Adelstein, 20-40322, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), prisoner suit
    • Affirming dismissal of prisoner’s suit against clerk of court related to filing of objections.
  • U.S. v. Lee, 20-40721, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming 46-month sentence on conviction of transporting aliens within the United States.
  • U.S. v. Reed, 20-50937, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, supervised release
    • Affirming conviction of revocation of supervised release.
  • Cao v. BSI Financial Services, Inc., 21-20073, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), foreclosure
    • Affirming dismissal of claims arising from foreclosure on plaintiff’s property.
  • Butler v. Z&H Foods, Inc., 21-20086, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), arbitration
    • Affirming judgment to dismiss employment discrimination claims and compel arbitration.
  • Molero v. Ross Stores, Inc., 21-30171, appeal from E.D. La.
    • per curiam (King, Costa, Ho), personal injury
    • Affirming summary judgment dismissal of premises liability claim arising from shopper’s jamming of pinky finger while at store.
  • U.S. v. Flores-Campos, 21-40159, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to dismiss, and withdrawing appeal.
  • U.S. v. Lopez-Reynoso, 21-50168, appeal from W.D. Tex.
    • per curiam (Southwick, Graves, Costa), criminal, compassionate release
    • Remanding to district court to determine if there is excusable neglect or good cause for an extension of time to file notice of appeal 34 days after underlying order.