Designated for publication
- Securities and Exchange Commission v. Blackburn, 20-30464, appeal from E.D. La.
- Costa, J. (Dennis, Higginson, Costa), securities law
- Affirming the district court’s summary judgment in favor of the SEC against three defendants for selling unregistered securities and misleading investors in operating a penny stock company, and affirming remedy of disgorgement of defendants’ fraud proceeds as being “for the benefit of investors” under Liu v. SEC, 140 S. Ct. 1936, 1949 (2020).
- The Court noted that “[t]wo things keep [the disgorgement] remedy aimed at unjust enrichment from becoming punitive: Disgorgement cannot exceed the defendants’ ‘net profits’ and must ‘be awarded for victims.'” The Court found that both elements were satisfied here, with the second element satisfied because recovered funds would go tot he SEC, “acting as a de facto trustee,” which would “then disburse those funds to victims but only after district court approval.” Noting that it was the first Court of Appeals to apply Liu, the Court concluded, “The district court’s order—requiring disbursements to already-identified victims with court supervision to ensure compliance with that edict—easily satisfies Liu. We do not hold that this scheme is the only way to satisfy Liu as other cases may present greater challenges for ensuring that disgorgement benefits victims. Whatever the floor may be for Liu compliance, the remedy here rises well above it.”
Unpublished
- Johnson v. Russ, 20-30497, appeal from M.D. La.
- per curiam (Higginbotham, Higginson, Duncan), prisoner suit
- Vacating district court’s sua sponte dismissal of prisoner’s retaliation claim, which was issued without providing the plaintiff an opportunity to amend his complaint, and remanding for further proceedings.
- Williams v. Reilley, 20-40310, appeal from E.D. Tex.
- per curiam (Wiener, Dennis, Haynes), prisoner suit
- Affirming dismissal of prisoner’s deliberate indifference claims for failure to state a claim.
- U.S. v. Coalwell, 20-50869, appeal from W.D. Tex.
- per curiam (Wiener, Dennis, Haynes), criminal, sentencing
- Affirming convictions on three counts of mailing threatening communications; but vacating two 60- and one 70-month concurrent sentences for the clearly erroneous imposition of a six-level enhancement for an “offense [that] involved any conduct evidencing an intent to carry out such threat,” and remanding for resentencing.
- Pacheco v. Garland, 20-60324, petition for review of BIA order
- per curiam (Jolly, Willett, Engelhardt), immigration
- Denying Cuban citizen’s petition for review of BIA order upholding the IJ’s credibility finding, finding that he had failed to meet the burden of proof for asylum and withholding of removal, and finding that he had waived any challenge to denial of relief under the CAT by failing to brief the issue.
- U.S. v. Lewis, 21-10007, appeal from N.D. Tex.
- per curiam (King, Costa, Ho), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Medrano, 21-20254, appeal from S.D. Tex.
- per curiam (Wiener, Dennis, Haynes), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Smith, 21-50130, c/w 21-50156, appeals from W.D. Tex.
- per curiam (Wiener, Dennis, Haynes), criminal, sentencing
- Affirming sentence on conviction of possession of a firearm by a felon and for revocation of a term of supervised release from a prior conviction.
- U.S. v. Murillo-Uvas, 21-50390, c/w 21-50392, appeals from W.D. Tex.
- per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
- Granting summary affirmance of challenge to sentence falling under Almendarez-Torres v. United States, 523 U.S. 224 (1998).
- Lembou v. Garland, 21-60326, petition for review of BIA order
- per curiam (Jolly, Willett, Ho), immigration
- Denying in part and dismissing in part Gabonian citizen’s petition for review of BIA order denying his motions for reconsideration and reopening.
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