Take the Fifth

Designated for publication

• U.S. v. Sincleair, 20-10495, appeal from N.D. Tex.
  • Davis, J. (Davis, Haynes, Oldham), Oldham, J., dissenting; criminal, sentencing
  • Vacating sentence reached upon application of two-point enhancement for possession of dangerous weapon, and remanding for resentencing.
  • The Court held, “[I]t is not clear whether the district court determined that Sincleair personally possessed the firearm or that one of Sincleair’s ‘unindicted co-conspirators’ possessed it during the commission of an offense.”
  • While a combination of temporal and spatial proximity between the defendant and the weapon may be enough, or possession by a co-conspirator that was reasonably foreseeable to the defendant, the PSR here did not contain adequate information regarding either. Hence, the Court held, “[W]e do not need to determine whether Sincleair personally possessed the weapon or whether a co-conspirator (if any) possessed it and the possession was reasonably foreseeable to Sincleair, because we ‘cannot be sure what rationale the [district] court had in mind to support the enhancement, based on its limited statement.'”
  • Judge Oldham dissented. He opined that the PSR was clear in stating the first theory of possession was supported, and that the co-conspirator theory was merely stated in the alternative. “Giving two alternative and independent bases for a conclusion is not the same as hemming and hawing between those alternatives.”

• Harmon v. City of Arlington, 20-10830, appeal from N.D. Tex.
  • Jones, J. (Jones, Southwick, Engelhardt), qualified immunity
  • Affirming district court’s dismissal of claims on qualified immunity grounds, arising from the officer’s fatal shooting of a driver who began trying to drive away from the scene while the officer was on the vehicle’s running board.
  • The Court noted, that the “brief interval—when Tran is clinging to the accelerating SUV and draws his pistol on the driver—is what the court must consider to determine whether Tran reasonably believed he was at risk of serious physical harm.” The Court then held that the belief was reasonable.
  • The Court rejected the plaintiffs’ argument that the officer had a more reasonable alternative. “The plaintiffs also contend that Tran could have simply stepped off the running board and let Terry drive away, the availability of that alternative, they argue, makes Tran’s use of deadly force unreasonable. But qualified immunity precedent forbids that sort of Monday morning quarterbacking; the threat of harm must be ‘judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'”
  • The Court also held that, even if the officer’s conduct was unreasonable, his actions did not violate a “clearly established” right, as there is no excessive force case squarely on point.
  • The Court held that the passenger, who was not shot, failed to identify a Fourth Amendment right.
  • The Court held that the municipal liability claims were correctly dismissed where the plaintiffs failed to identify a cognizable predicate constitutional violation.

• Frego v. Settlement Class Counsel, 20-30596, appeal from E.D. La.
  • Costa, J. (Elrod, Southwick, Costa), settlement agreements
  • Dismissing appeal from allocation of class settlement proceeds under appeal waiver in settlement agreement. Appellants had been placed in the wrong settlement group by their counsel, who repeatedly failed to rectify the mistake; as a result, they received only 5% of damages calculated under the settlement agreement formula, rather than 20% or 100%. The Court held that the settlement agreement’s appeal-waiver precluded an appeal of the misallocation.

• Jaco v. Garland, 20-60081, petition for review of BIA order
  • Elrod, J. (Jolly, Elrod, Oldham), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing appeal of IJ’s order denying applications for asylum, withholding of removal, and protection under the Convention Against Torture, and her petition for review of a denial of reconsideration. Due to a prior remand to the BIA, the BIA dealt with both the original petition and the motion for reconsideration together, enabling a petition for review of both BIA orders in a single petition.
  • As to the petitioner’s argument that the BIA should have considered two other social groups of which she claimed to be a persecuted member that had not been put before the IJ, the Court held that the BIA “has discretion to entertain novel particular social group claims but does not commit reversible error by declining to do so. … The record reflects that Jaco’s counsel made a strategic decision not to proffer additional particular social group claims before the IJ. Because whether to address the novel social group claims was squarely within the BIA’s discretion, it did not abuse its discretion in declining to do so.
  • As to the cognizability of the petitioner’s proffered membership in a social group, Honduran women who are unable to leave domestic relationships, the Court held that the nexus requirement was not met because “the group must be sufficiently defined and particularized by characteristics other than persecution.” The Court concluded, “In holding that Jaco’s proposed group is not cognizable, we do not hold that women who have suffered from domestic violence are categorically precluded from membership in a particular social group. We hold only that a particular social group’s immutable characteristics must make the group sufficiently particularized and socially distinct without reference to the very persecution from which its members flee. … Accordingly, even if Jaco’s group meets the immutable characteristic and nexus requirements, we still hold that her group is neither particularized nor socially distinct.”

• Colony Insurance Co. v. Wright, 20-61139, appeal from S.D. Miss.
  • Southwick, J. (Elrod, Southwick, Costa), Costa, J., concurring; insurance
  • Affirming declaratory judgment that a CGL insurance policy issued to a sawmill did not cover a driver’s death when that driver’s personal vehicle collided with the sawmill’s metal gate that had swung out into the roadway.
  • The Court held that the “absolute auto exclusion” in the policy foreclosed coverage. “There is no coverage for injuries arising ‘directly or indirectly out of the . . . use . . . of any auto’ without limiting the provision’s effect to the insured’s autos. The policy must be interpreted as written.”
  • Judge Costa concurred. He fully joined the majority opinion, but wrote to add that the forfeiture rule, whereby the court could examine an argument raised for the first time on appeal where the issue is purely legal and its forfeiture would result in a miscarriage of justice, is no longer freely applicable. Noting that two cases approving the doctrine in the previous twenty years did so only where a prior decision of the Court endorsed the plaintiff’s otherwise-forfeited argument, the Court noted, “an opinion from our court already recognized the legal principle that was belatedly invoked on appeal. Finding the issue forfeited would have resulted in a decision contrary to binding precedent and the laws the legislatures had enacted. One of the keys to understanding the exception, then, is the ‘pure’ modifier to the ‘question of law’ element. Most appeals will involve some questions of law. The issue in this case—how to interpret a contract—is a legal question subject to de novo review. But such a question of law is not necessarily, or even usually, the same as a pure question of law.”

• U.S. v. Contrera-Rojas, 21-50500, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal, sentencing
  • Granting summary affirmance of sentence imposed on conviction of illegal reentry under enhancement for prior conviction, where prior conviction was neither alleged in indictment nor found by a jury beyond a reasonable doubt, an issue foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). The Court took the opportunity of the summary affirmance to note, “Over fourteen years ago, this court opined that appeals based on Almendarez-Torres are virtually all frivolous. See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). After hundreds, if not thousands, more cases challenging Almendarez-Torres, we reiterate and reaffirm our statement that ‘[i]n the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism.’ Id. at 626. We urge ‘appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.’ Id. at 626. We meant it then and mean it now.”

Unpublished

• U.S. v. Bevill, 18-10708, appeal from N.D. Tex.
  • per curiam (Elrod, Southwick, Costa), habeas corpus
  • Vacating district court’s denial of dismissal of petitioner’s Rule 60(b) motion from denial of 2255 petition, filed upon the petitioner learning that notices mailed to him in prison had been returned as undeliverable; and remanding for further proceedings.

• U.S. v. Serrato, 19-11219, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Pineda-Campuzano, 19-40517, appeal from S.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Vacating 60-month sentence on conviction of possession with intent to distribute approximately 212 kilograms of marijuana, and remanding for application of safety-valve provision.

• Benitez v. Garland, 19-60819, petition for review of BIA order
  • per curiam (Jones, Southwick, Engelhardt), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing an appeal of the Immigration Judge’s denial of an application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Chhim v. City of Houston, 20-20568, appeal from S.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), employment discrimination, Title VII, Age Discrimination in Employment Act
  • Dismissing as frivolous appeal from summary judgment dismissal of discrimination claims.

• U.S. v. Arreola-Mendoza, 20-40068, appeal from S.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, sentencing
  • On remand from U.S. Supreme Court, affirming 37-month sentence on conviction of illegal reentry.

• U.S. v. Martinez-Alvarado, 20-40150, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Zheng v. Garland, 20-60183, petition for review of BIA order
  • per curiam (King, Higginson, Wilson), immigration
  • Denying in part and dismissing in part Chinese citizen’s petition for review of BIA order denying petition for asylum.

• Sanchez-Diaz v. Garland, 20-60395, petition for review of BIA order
  • per curiam (Smith, Stewart, Graves), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order denying motion to reopen.

• Siles-Andrades v. Garland, 20-60858, petition fore review of BIA order
  • per curiam (Davis, Jones, Elrod), immigration
  • Denying in part and dismissing in part Nicaraguan citizen’s petition for review of BIA order denying her applications for asylum, withholding of removal, and relief under the CAT.

• U.S. v. Ramirez-Rubio, 21-10244, appeal from N.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Affirming 72-month sentence on conviction for illegal reentry.

• U.S. v. Lucio, 21-10415, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Murphy v. Dalton, 21-10589, appeal from N.D. Tex.
  • per curiam (Costa, Ho, Duncan), personal tort, Rule 11
  • Affirming dismissal of plaintiff’s state-law claims arising from dispute with neighbor who drove truck onto his property, and affirming Rule 11 sanctions against plaintiff.

• Sanchez v. Marathon Oil Co., 21-20223, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Elrod), arbitration
  • Dismissing for lack of appellate jurisdiction an appeal from an order compelling arbitration of FLSA and Title VII claims, under arbitration provision of consulting agreement.

• U.S. v. Camargo-Chavez, 21-40144, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Thompson, 21-40169, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Silvestre-Gregorio, 21-50289 c/w 21-50304, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, sentencing
  • Granting summary affirmance of conviction and sentence under 8 U.S.C. § 1326(a) and (b)(1), along with the revocation of a term of supervised release imposed for his previous illegal reentry offense.

• U.S. v. Ortiz-Martinez, 21-50432, appeal from W.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Granting summary affirmance of 21-month sentence on conviction of illegal reentry.