October 20, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Martinez, 20-50984, appeal from W.D. Tex.
    • Costa, J. (King, Costa, Ho), criminal, sentencing, supervised release
    • Granting Anders motion to appointed defense counsel to withdraw as no non-frivolous grounds for appeal exist, but specifically addressing why there is not a non-frivolous argument that the orally pronounced terms of supervised release did not comport with the written judgment of sentence.
    • The Court held, “The only conceivable pronouncement problem is that the district court did not cite the district’s standing order when it orally imposed the ‘standard conditions.’ As defense counsel explains, however, that does not provide a basis for appeal. Because the court told Martinez it was imposing ‘standard conditions,’ he had notice and an opportunity to object (or, at a minimum, to ask for more specificity about the conditions). Martinez did not object, so any appeal would be subject to plain error review. … We have difficulty seeing any error—and certainly not the obvious one necessary to correct forfeited issues…—in orally imposing ‘standard conditions’ and then including in the judgment the district’s usual ‘standard conditions.’ There is no notice problem. Even before sentencing, the Presentence Report notified Martinez that ‘standard conditions’ would likely be imposed. The Western District’s standing order provided ‘advance notice’ of what those conditions might be.”

Unpublished

  • U.S. v. Mendoza-Villegas, 20-11254, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Doe v. Bridge City Independent School District, 20-40596, appeal from E.D. Tex.
    • per curiam (Dennis, Higginson, Costa), § 1983
    • Affirming district court’s denial of opportunity to amend § 1983 claims arising from assault on plaintiffs’ son in school locker room on basis that amendment would have been futile to cure the failure to state a claim.
  • U.S. v. Espinosa, 20-50787, appeal from W.D. Tex.
    • per curiam (Jones, Smith, Haynes), criminal, guilty plea
    • Affirming guilty plea conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, holding that the factual basis was sufficient to support the plea.
  • Banos-Megar v. Garland, 20-60543, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order affirming IJ’s denial of his applications for asylum, withholding of removal, and protection under the convention against torture, upholding the IJ’s credibility finding.
  • Del Cid v. Garland, 20-60917, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal of the denial by an immigration judge of his application for withholding of removal and protection under the CAT.
  • Covington Specialty Insurance Co. v. USAI LP, 21-10010, appeal from N.D. Tex.
    • per curiam (Stewart, Ho, Engelhardt), insurance
    • Affirming district court’s summary judgment in favor of defendant as to which insurance company had the duty to defend in an underlying lawsuit arising from the death of the insured’s employee.
  • U.S. v. Allen, 21-10466, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Donaldson v. Sam’s East, Inc., 21-30189, appeal from M.D. La.
    • per curiam (King, Smith, Haynes), King, J., dissenting in part; personal tort
    • Affirming in part and vacating in part summary judgment dismissing plaintiff’s premises liability claims, and remanding for further proceedings. Affirming dismissal of claims against Sam’s East; but vacating dismissal of claims with prejudice as to individual defendant on basis that he had been fraudulently joined and that the district court did not have jurisdiction over the claims against him, and remanding with instructions to dismiss claims against individual defendant without prejudice.
    • Judge King dissented in part, and would have found that genuine issues of fact existed as to the plaintiff’s premises liability claim against Sam’s East.
  • U.S. v. Prince, 21-40135, appeal from E.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Mustafat-Gonzalez, 21-40315, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rodriguez-Ruiz, 21-50095, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sufficiency of evidence
    • Affirming conviction of illegal reentry, finding evidence was sufficient to support jury’s verdict.
  • U.S. v. Laurian-Matuz, 21-50319, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming 96-month sentence on conviction of illegal reentry.
  • U.S. v. Proctor, 21-60318, appeal from S.D. Miss.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing, Armed Career Criminal Act
    • Affirming sentence imposed upon conviction of possession of a firearm by a felon, upholding invocation of ACCA on basis of three state convictions for selling cocaine.