January 11-14, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Williams v. Boeing Co., 18-31158, appeal from E.D. La.
    • Southwick, J. (Southwick, Graves, Engelhardt), personal tort, multi-district litigation
    • Reversing in part final judgment entered in mesothelioma case by district court in Louisiana after summary judgment by MDL court in Pennsylvania, and remanded for further proceedings.
    • The Court held that the MDL district court erred in making inferences regarding the plaintiff’s exposure to airborne friable asbestos fibers in favor of the defendant. “Although the MDL court concluded that the record did not support a finding that Williams was exposed, we cannot say that, taking all inferences in favor of Williams, the non-moving party, that no reasonable juror could have found for him on the evidence before the court.”
    • As to the MDL district court’s decision to limit discovery by denying plaintiffs a six-month reopening of the discovery period as to Boeing, the Court did not reverse, but found there was insufficient evidence on the record to determine if that decision was an abuse of discretion, so it instructed the Louisiana district court on remand to “ascertain what responsive information the Plaintiffs could have reasonably accessed as part of the MDL and whether additional discovery is appropriate.”
    • The Court held that the MDL district court did not err in dismissing the plaintiffs’ wrongful death claims as time-barred.
  • Santos-Zacaria v. Garland, 19-60355, petition for review of BIA order
    • Owen, C.J. (Owen, Clement, Higginson), Higginson, J.; immigration
    • Denying in part and dismissing in part Guatemalan citizen’s petition for review of BIA order denying her application for withholding of removal and for relief under the Convention Against Torture.
    • The IJ had determined that the evidence that the petitioner–a transgender woman with a sexual preference for men–had been sexually assaulted at age 12 as a result of her sexual preference was insufficient to prove past persecution, such that she was not eligible for withholding of removal, and also denied her application for protection under the CAT. The BIA had found that she had sufficiently proven past persecution and was therefore entitled to a presumption of future persecution, but that the government had successfully rebutted that presumption. As a result, the BIA affirmed the IJ’s decision.
    • The Court held that it did not have jurisdiction to review the petitioner’s argument that the BIA engaged in impermissible fact-finding, because she failed to present that argument first to the BIA in a motion for reconsideration.
    • The Court held that there was substantial evidence that the petitioner could reasonably relocate within Guatemala to avoid persecution.
    • As to the petitioner’s CAT claim, the Court held that there was not evidence on the record to compel the conclusion that she would be tortured on return to Guatemala with the acquiescence of a public official.
    • Judge Higginson dissented. He concluded that the BIA engaged in impermissible fact-finding; “[w]hen the Board, in a single-member decision, determined that ‘the presumption of future persecution … has been rebutted in this case,’ it engaged in factfinding not permitted by the regulations.” He would find that the petitioner adequately requested that the BIA remand her case to the IJ for further fact-finding, such that the issue was preserved for the Court’s review. As to the merits of the petitioner’s claim for withholding of removal, Judge Higginson found that the evidence that the petitioner had testified that she could safely relocate within Guatemala was “a gross mischaracterization of the record.”
  • Siplast, Inc. v. Employers Mutual Casualty Co., 20-11076, appeal from N.D. Tex.
    • per curiam (King, Higginson, Wilson), insurance
    • Reversing district court’s summary judgment in favor of insurer defendant, holding that the insurer does have a duty to defend, and remanding for further proceedings.
    • The Court held that a “your product/your work” exclusion to the insured roofing company’s CGL policy did not apply to negate the insurer’s duty to defend. “If the complaint alleges damage to and seeks damages for any property that is not the insured’s product or directly subject to the insured’s work, as occurred in Wilshire Insurance, then the claim falls outside of a ‘your product/your work’ exclusion and the insurer has a duty to defend. However, as in Building Specialties, if the complaint solely alleges facts and damage to the insured’s own products, or solely seeks to recover the costs to repair the insured’s work, then it is covered by a ‘your product/your work’ exclusion and the duty to defend remains dormant. … Each of Siplast’s and EMCC’s claims that are at issue in this case can largely be reduced to a single question: does the Underlying Complaint contain allegations of damage to property other than Siplast’s roof membrane as part of the cause of action against Siplast? Liberally construed, it does.”
  • Vikas WSP, Ltd. v. Economy Mud Products Co., 20-20309, appeal from S.D. Tex.
    • Smith, J. (Higginbotham, Smith, Ho), settlement agreement
    • Vacating in part and remanding in part district court’s rulings arising from controversy related to parties’ dispute as to settlement agreement. The district court had denied the underlying dispute between the parties with prejudice upon their entry into a settlement agreement, but retained jurisdiction to the extent necessary to enforce the settlement agreement. After the settlement agreement blew up, the parties brought further litigation before the court, and the district court granted an order declaring that Vikas had breached the settlement agreement, granted a motion to strike Vikas’s pleadings as a sanction, and granted a summary judgment that Vikas had procured the settlement agreement through fraud, causing $40 million in damages.
    • “The district court lacked subject-matter jurisdiction to issue the summary judgment for fraud, so we vacate it and deny as moot Vikas’s related appeals. By dismissing the original suit, the district court relinquished jurisdiction over the controversy except to enforce the parties’ settlement. That limited power does not extend to hearing tort claims—even one that arises from or relates to the settlement.”
    • “We then vacate the sanctions order. Insofar as the order strikes Vikas’s pleadings in the dispute that the parties had settled, we vacate it for want of subject-matter jurisdiction. And insofar as the order denies Vikas’s motions in the parties’ post-settlement controversy, we vacate it as an abuse of discretion.”
    • “Lastly, we vacate the ruling that Vikas breached the settlement. In his terse 250-word decree, the district judge ignored key provisions of the settlement and failed to support his judgment with relevant record evidence. Because we are ‘a court of review, not of first view,’ we cannot affirm on such flimsy grounds. Montano v. Texas, 867 F.3d 540, 546 (5th Cir. 2017) (cleaned up). We thus remand for further findings of fact.”
  • U.S. v. Pursley, 20-20454, appeal from S.D. Tex.
    • Engelhardt, J. (Davis, Higginson, Engelhardt), criminal
    • Vacating tax-fraud conviction due to failure to afford defendant his timely raised statute of limitations defense, and remanding for new trial.
    • After outlining the facts relevant to when a foreign government (the Isle of Man) took a “final action” for purposes of the suspension of the limitations period, the Court held that the district court erred in not giving the jury a statute of limitations instruction. “Once a statute of limitations defense was raised, the Government was required to prove that at least one overt act or affirmative act took place within the limitations period as to each count. The jury never made any such finding in this case, on the jury form or elsewhere, as it was never instructed that it was required to do so. On remand, the district court is hereby directed to calculate the length of the suspension, as detailed above. Pursley is entitled to a new trial, in which a jury must find that an overt or affirmative act was committed in the proper limitations period as to each count.”
  • Wantou v. Wal-Mart Stores Texas, L.L.C., 20-40284, appeal from E.D. Tex.
    • Engelhardt, J. (Stewart, Ho, Engelhardt), Ho, J., dissenting in part; employment discrimination, Title VII
    • Affirming district court’s summary judgment dismissal of plaintiff’s discrimination and hostile workplace claims, jury’s rejection of Title VII retaliation claims regarding termination and first two job-coaching incidents, jury’s failure to award front-pay, jury’s finding of Title VII retaliation for third job-coaching incident, and jury’s award of $75,000 in punitive damages. Plaintiff, a Black man from Cameroon, was a pharmacist employed by defendant.
    • Judge Ho dissented in part, as he “would vacate the judgment as to the hostile work environment claim and remand for further proceedings. I would not affirm on alternative grounds not reached by the district court in the first instance, nor addressed by Wantou in his pro se brief on appeal—namely, whether Wal-Mart took prompt remedial action to redress the situation in a manner sufficient to avoid liability under Title VII. That is an issue that should be decided in the first instance by the district court, if not by a jury.” Judge Ho succinctly summarized the facts that formed the basis of his dissent on the hostile work environment claim: “Yves Wantou is a pharmacist. But for five of his co-workers at Wal-Mart, all they saw was the color of his skin. According to the summary judgment evidence, his co-workers repeatedly called him a ‘monkey,’ a ‘chimp,’ ‘a little African,’ and an ‘African fart.’ They constantly mocked his accent in front of co-workers and customers. And they made numerous comments disparaging Cameroon, Wantou’s country of origin, as ‘Ebola infested,’ ‘fly-infested,’ and a ‘dirty place.’ As one co-worker told Wantou: ‘I see pictures of dirty children from Africa with running nose and flies all over their face all the time. Being from Africa, there is no reason for you to be annoyed by flies. You come from a dirty and fly-infested country.’ This evidence establishes a troubling pattern of racial harassment— one that a jury could find sufficiently pervasive to alter the conditions of employment and thereby support a claim of hostile work environment under Title VII of the Civil Rights Act of 1964.”
  • Fessler v. Porcelana Corona de Mexico, S.A. de C.V., 20-40357, c/w Cone v. Porcelana Corona de Mexico, S.A. de C.V., 20-40358, appeal from E.D. Tex.
    • Jones, J. (Jones, Clement, Graves), Graves, J., dissenting; attorneys’ fees
    • Vacating $4.3 million in attorneys’ fees awarded to class counsel for consumer class claim against manufacturer of toilet tanks, where class initially sought injunctive relief and monetary damages for seven models produced over nine years and eventually settled for damages related to two models produced in one year and injunctive relief for four years; and remanding for consideration of time spent on unsuccessful claims and comparison of relief sought to remedy actually realized.
    • The Court held that, where manufacturing defect claims must be attributed to a particular locus of manufacturing, and where the unsuccessful claims related to different manufacturing sites than the successful claims, the district court must make a finding regarding the fees attributable to the successful claims as distinct from the fees attributable to the unsuccessful claims, and that, if a factual distinction is difficult to make on the record, then the distinction may be made on a pro rata reduction from the overall requested fees.
    • The Court also held that the district court abused its discretion in not considering a downward adjustment under the Johnson factors for the comparison of results-obtained to results-sought. “[T]he [district] court stated simply that ‘the work done did not prove fruitless—it resulted in two settled classes receiving a host of monetary and non-monetary benefits they would not have received but for the Class Counsel’s diligent work.’ In other words, not receiving every bit of relief requested is no reason to reduce the lodestar. But this misconstrues Fifth Circuit precedent. The court was required to consider what was sought— compensatory, punitive, and treble damages for five tank models manufactured across nine years.18 Yet, the Class members only received a maximum of $4000 in damages for two tank models manufactured in one year. The court’s mere uncertainty about the actual monetary value obtained by the Class is no reason to duck the required inquiry. If the projections of future benefit to the Class are too fluid, the district court is capable of staying its determination of attorneys’ fees until the comparison can be properly made. Failure to ‘consider[] the appropriate criteria’ is a reversible abuse of discretion.”
    • Judge Graves dissented. He would find that there was no clear error in the district court’s fee award, which must be upheld under the abuse of discretion standard. “The majority misses a key part of the percentage reduction analysis—hours awarded may be reduced ‘to substitute for the exercise of billing judgment’ where the court has determined that ‘there is no evidence of billing judgment.’ Walker v. City of Mesquite, 313 F.3d 246, 251 (5th Cir. 2002). The majority fails to address whether Class Counsel actually lacked billing judgment or whether any evidence supports a percentage reduction for a failure to exercise billing judgment.” Judge Graves concluded, “Lastly, the majority misstates the impact and function of the lodestar method—’the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.’ Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (emphasis in original). In other words, if Class Counsel represented a paying client, they could reasonably be expected to recover for the hours they expended working for that client. The district court appropriately used its discretion in awarding fees that roughly approximate the fees a prevailing attorney would have received in a similar situation.”
  • Parker v. Blackwell, 20-40398, appeal from E.D. Tex.
    • Dennis, J. (Dennis, Higginson, Costa), qualified immunity
    • Affirming in part and reversing in part denial of qualified immunity dismissal at the pleadings stage, and remanding for further proceedings, regarding claims by a jail detainee who had been sexually assaulted by sheriff’s employee that Sheriff had violated 14th Amendment right to procedural and substantive due process by rehiring the jailer after he had been previously fired for abusing detainees, and by failing to properly train and supervise the jailer.
    • The Court affirmed the denial of qualified immunity to the Sheriff on the rehiring claim. “[O]ne’s rights can be infringed when an official is deliberately indifferent to a specific risk of harm posed by a hiring decision, such as a risk of sexual assault. Gros, 209 F.3d at 434–36; Rivera v. Bonner, 952 F.3d 560, 565–67 (5th Cir. 2017); Hardeman, 244 F. App’x at 596. Here, the alleged connection between McClure’s prior termination from the Shelby County Jail for abusing detainees and the alleged abuse of Parker and other detainees in the Shelby County Jail is sufficient to state a claim for deliberate indifference in rehiring McClure.”
    • The Court held that the failure to supervise and train claim was not alleged with the required specificity to defeat qualified immunity as to that claim. “Here, Parker’s allegations fall short. Parker’s allegations are generic at best, providing no specific facts that rise above the speculative level. Parker merely alleges that Blackwell’s supervision was ‘grossly inadequate,’ that Blackwell ‘breached [his] duty to provide Defendant McClure with adequate supervision,’ and that such a failure was a ‘producing and proximate cause of … Parker’s injuries.’ Parker does not allege any facts regarding the lack of a training program, nor are there allegations that the alleged abusive conduct occurred with such frequency that Blackwell was put on notice that training or supervision was needed.”
  • Domain Protection, L.L.C. v. Sea Wasp, L.L.C., 20-40411, c/w 20-40518, appeal from E.D. Tex.
    • Costa, J. (Elrod, Southwick, Costa), Stored Communications Act, standing, cross-appeals
    • Affirming district court’s summary judgment on liability for conversion and violations of the Stored Communications Act arising from dispute over domain names, affirming jury’s take-nothing verdict on damages and district court’s entry of a dismissal with prejudice of plaintiff’s claims based on that verdict, affirming district court’s determination that neither party would be awarded attorneys’ fees, but vacating award of sanctions against plaintiff’s counsel for failing to reveal creditor relationship with the plaintiff and thereby stood to gain from the plaintiff’s claims, and remanding for further proceedings.
    • The Court rejected the defendant’s argument that the court lacked Article III standing because the plaintiff had no contractual right to the domain names at the center of the dispute. “Whether a party has a contractual right to bring this suit is not a question of Article III standing. ‘Contractual standing’ is instead an issue of contract interpretation that goes to the merits of a claim.” (Internal citations omitted).
    • The Court affirmed the jury’s finding of no-damages on the conversion claim, because the property–the domain names–had already been returned to the plaintiff under the district court’s earlier preliminary injunction to mandate that the defendants unlock the domains.
    • The Court affirmed the award of no damages for the Stored Communications Act violations, holding that the $1,000 statutory floor for damages only kicks in once the plaintiff has proven some actual damages. Where no actual damages are proved, then the $1,000 floor is not triggered.
    • The Court affirmed the district court’s determination that the plaintiff should be awarded no attorneys’ fees, as the Stored Communications Act’s attorney-fee provision is a discretionary one.
    • The Court declined to rule on the defendant’s cross-appeal as to the entry of summary judgment on liability in favor of plaintiff, as that issue was only an argument for an alternative grounds to affirm the dismissal with prejudice that was entered on the take-nothing verdict. The Court noted that an alternative ground for affirmance is not properly brought in a cross-appeal, but only in an appellee brief. “This is not just an academic point. Cross-appeals are inefficient. They ‘complicate[] briefing schedules and the number and length of the briefs in ways that may generate more confusion than enlightenment.’ Maxim Crane, 11 F.4th at 350 (quoting 15A Wright & Miller, supra, § 3904). Cross-appeals should thus be confined to their proper place.”
    • The Court held that the defendant’s argument that the district court should have awarded it attorneys’ fees as the prevailing party was, however, a proper argument for cross-appeal, as it sought “something the judgment did not include.” The Court, however, affirmed the district court’s finding that neither party was a prevailing party here, since the plaintiff received the control of the domain names under the preliminary injunction, but the defendant received the benefit of the take-nothing judgment.
    • The Court then vacated the district court’s imposition of sanctions on the plaintiff’s counsel for failing to disclose his creditor relationship with plaintiff. It held this disclosure was not required under the rules’ corporate disclosure statement requirement, which only applied to disclosure of parties who own 10% more of a party’s stock. And it also noted that the purpose of the corporate disclosure rule is only to inform judges for recusal purposes, and the attorneys are already included for that purpose in their capacity as attorneys. The Court found, however, that the omission could have violated the general duty of candor to a tribunal. “Schepps’s failure to disclose his relationship with Domain Protection is sanctionable for violating the duty of candor only if that relationship was relevant to some decision in this case. That relevance is not apparent from the record. But recognizing the complexity of this case and the district court’s much greater familiarity with it, we believe a remand is appropriate for the court to identify when Schepps should have disclosed his relationship with Domain Protection and why his failure to do so mattered.”
  • U.S. v. Vargas, 20-50082, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, guilty plea, sentencing
    • Affirming guilty plea conviction for conspiracy to possesses with intent to distribute a controlled substance and possession with intent to distribute a controlled substance, and sentence including terms of supervised release.
    • The Court held there was no plain error in the district court’s acceptance of the factual basis for the guilty plea.
    • As to the inclusion of standard terms of supervised release in the sentence, the Court held, “[T]he district court did not err, plainly or otherwise, in including the standard conditions of supervised release in Vargas’s sentence. Although the court did not recite the conditions in full, its shorthand reference to its standard conditions of supervision at sentencing was adoption all the same.” (Internal quotation marks and citation omitted).
  • U.S. v. Lara, 20-50112, appeal from W.D. Tex.
    • Higginson, J. (King, Higginson, Wilson), criminal, sentencing, sufficiency of evidence, hearsay
    • Affirming sisters’ conviction of “various drug trafficking counts after attempting to drive a pickup truck containing over 38 kilograms of methamphetamine hidden in a compartment in the truck’s tires from Mexico into the United States,” and 288-month sentence.
    • The Court held that there was sufficient evidence to prove the knowledge element of the sisters’ convictions. “If a defendant controls a vehicle with drugs in a hidden compartment and then engages in additional suspicious behavior that demonstrates a general consciousness of guilt but not necessarily specific knowledge of the presence of a controlled substance, is that enough evidence to sustain a conviction? Our hidden compartment cases often speak of the required consciousness of guilt in general terms and focus on suspicious behavior that is not offense-specific. … [C]ontrol over a vehicle containing hidden drugs plus evidence of the defendant’s general consciousness of guilt is enough to prove the ‘knowledge’ element of the possession with intent to distribute and importation of a controlled substance offenses. In this case, the record contains ample evidence of the Laras’ general consciousness of guilt.”
    • The Court then held that the defendants did not properly preserve an objection to the expert testimony by a border protection agent, where they had achieved a positive ruling on the issue in a pretrial motion in limine, but had failed to object contemporaneously when the testimony was elicited at trial. “When a district court grants a party’s pretrial evidentiary objection, that party must contemporaneously object to any evidence it believes contravenes the district court’s previous ruling. If the party does not object, the admission of that evidence is reviewed for plain error.” The Court held that the testimony here, on the ultimate question of whether the Laras knew of the drugs being smuggled in the truck, was not plain error because it did not affect the Laras’ substantial rights. “We caution that under circumstances such as these, involving above all a violation of a pre-trial order, the Government would not be able to show that the error was harmless had an objection been preserved. However, considering that the Laras have not cited any cases or pointed to any facts in the record to support their argument that Agent Huerta’s testimony affected their substantial rights,” the Court held that the error was not plain error.
    • The Court held that, under plain error review, the government’s series of rhetorical questions in its opening and closing statements could not be construed as comments on the Laras’ decision not to testify, in violation of the Fifth Amendment.
    • The Court held that the testimony by the arresting officer about statements by the Laras constituted impermissible hearsay if offered for the truth of the matter, and the failure of the district court to instruct the jury not to accept that testimony for its substance, was error, but was not plain error because the defendants could not show it affected their substantive rights.
    • The Court held that the district court did not err in including a sentence enhancement for the use of a minor to help facilitate the crime, because there was sufficient evidence in the record that the defendants knew they were going to commit an illegal activity when they chose to bring children with them on the smuggling trip. “By … using a child as a diversionary tactic during the commission of a previously planned crime, Melissa Lara committed an affirmative act that involved the child in drug trafficking.”
  • Betts v. Brennan, 21-30101, appeal from E.D. La.
    • Duncan, J. (Owen, Clement, Duncan), qualified immunity
    • Reversing denial of summary judgment on qualified immunity grounds, as to plaintiff’s claims of excessive force after officer tased him and arrested him for resisting arrest during a traffic stop.
    • The Court held, “The parties chiefly dispute the degree of Betts’s resistance. Indeed, this was the main ground for the district court’s rejecting Brennan’s argument—namely, that when tased Betts was ‘at most, passively resisting.’ That reasoning misapplies our excessive-force precedents. True, we ‘have paid particular attention to whether officers faced active resistance when they resorted to a taser.’ Cloud, 993 F.3d at 384. But the line between active and passive resistance is sometimes hazy and must be judged in light of the ‘necessarily fact-intensive’ nature of the inquiry. … Betts repeatedly contested why he was stopped, ignored dozens of Brennan’s commands, disputed Brennan’s authority, accused him of lying, batted away his hand, warned Brennan to call other officers, and dared Brennan to tase him. Most importantly, Betts repeatedly disputed Brennan’s power to order him to stand behind the truck. Faced with an angry driver, Brennan reasonably wanted to get Betts away from the driver’s compartment where a weapon might easily be hidden.” The Court also noted that the defendant only tased the plaintiff once, and that he did so after first telling him “to stand behind the truck by invitation, explanation, command, and even by grasping his arm,” and then only after verbal warning.
    • The Court also held that, even if there had been a 4th Amendment violation in the single tase, it was not “clearly established.”
  • Sylvester v. Chaffe McCall, L.L.P., 21-30186, appeal from E.D. La.
    • per curiam (Smith, Elrod, Oldham), bankruptcy
    • Vacating award of attorney fees against debtor for certain fees to a law firm that assisted the Chapter 7 trustee, and remanding for further proceedings.
    • The Court held that “§ 330(a) allows a court to compensate an attorney only for services requiring legal expertise.”
    • The Court then held that, “[e]ven though the court recognized its ‘duty to determine whether the services rendered by Chaffe were legal in nature or whether they were actually administrative or ministerial duties of the trustee,’ it chose to ‘assume the tasks performed by Chaffe required legal expertise’ rather than make the required determination.”
  • Estate of Miranda v. Navistar, Inc., 21-40421, appeal from S.D. Tex.
    • Davis, J. (Davis, Higginson, Engelhardt), products liability, preemption
    • Affirming dismissal of products liability claim against school bus manufacturer for failing to design bus with an electronic safety mechanism to prevent a rear emergency exit from being opened while a school bus is in motion.
    • The Court held “that the district court correctly dismissed this suit on the ground that a federal regulation promulgated by the National Highway and Traffic Safety Administration (NHTSA), Federal Motor Vehicle Safety Standard 217 (FMVSS 217), conflicts with and therefore preempts a state common law duty to include such an automatic lock. We agree with the district court’s reading of FMVSS 217 that a school bus manufacturer must outfit school buses with rear emergency exits that can be opened in only one way: by operating a manual release mechanism. Thus, it would be impossible to comply with the regulation while implementing the change argued for by plaintiffs.”
  • Preston Hollow Capital, L.L.C. v. Cottonwood Development Corp., 21-50389, appeal from W.D. Tex.
    • Ho, J. (Higginbotham, Smith, Ho), taking
    • Affirming dismissal of taking claim for failure to return $15 million loaned by plaintiff to defendant development company for defendant city’s benefit.
    • The Court held that, when a city is acting in its contractual or proprietary capacity, claims that otherwise would be breach of contract claims are not constitutionalized into takings claims merely because one of the contracting parties is a governmental entity.

Unpublished

  • U.S. v. Ware, 19-40989, c/w 20-40652, appeal from E.D. Tex.
    • per curiam (Smith, Elrod, Oldham), criminal
    • Affirming conviction of conspiracy to possess with intent to distribute methamphetamine, rejecting arguments of violation of 6th Amendment right to effective counsel, 14th Amendment right to due process, and various trial process violations.
  • Romero-de Rodriguez v. Garland, 19-60106, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Salvadoran citizens’ petition for review of BIA order dismissing appeal of IJ decision denying application seeking asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Maines, 20-11200, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Willett), habeas corpus
    • Dismissing as frivolous appeal from district court’s denial of Rule 60(b) motion from denial of sec. 2255 petition.
  • U.S. v. Kim, 20-20611, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Callis, 20-40218, c/w 20-40346, appeal from S.D. Tex.
    • per curiam (Owen, Dennis, Ho), criminal, sanctions
    • Affirming convictions for one count of possession with intent to distribute more than 500 grams of a mixture or substance containing a detectable amount of cocaine, one count of possessing a firearm in furtherance of a drug trafficking crime, and one count of conspiring to possess with the intent to distribute a synthetic cannabinoid mixture and substance containing a detectable amount of 5F-MDMB-PINACA; and issuing a sanctions warning to the court-appointed attorney for failing to fulfill his role as advocate. “The claims that counsel does present are conclusory and lack sufficient support or advocacy. In particular, the brief addresses the elements of the wrong offense and relies on caselaw that has been superseded by statute.”
  • Helt v. Sethi Petroleum, L.L.C., 20-40240, appeal from E.D. Tex.
    • per curiam (Jolly, Elrod, Oldham), receivership
    • Affirming district court’s denial of motion to intervene into receivership.
  • U.S. v. Garcia, 20-40377, appeal from S.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • On remand from U.S. Supreme Court, vacating sentence and remanding to district court to expeditiously reconsider sentence for illegal reentry in light of Borden v. United States, 141 S. Ct. 1817, 1825 (2021).
  • U.S. v. Majors, 20-40699, appeal from E.D. Tex.
    • per curiam (Owen, Dennis, Ho), criminal, sentencing
    • Affirming 540-month sentence on conviction of conspiracy to kidnap, interstate travel in aid of racketeering enterprises, and conspiracy to launder proceeds of an unlawful activity.
  • U.S. v. Garces, 20-40835, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Affirming 144-month sentence on conviction of conspiracy to possess with intent to distribute 500 grams or more of cocaine and interference with commerce through Hobbs Act robbery by unlawfully taking controlled substances and drug proceeds.
  • U.S. v. Gomez, 20-51048, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Velasquez-de Hernandez v. Garland, 20-60104, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order affirming the immigration judge’s denial of her application for asylum and withholding of removal.
  • Ortiz v. Garland, 20-60454, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying Mexican citizens’ petition for review of BIA order dismissing their appeal of the denial by an Immigration Judge (IJ) of their application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Geels v. Garland, 20-60468, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Granting Australian citizen’s petition for review of BIA order dismissing his appeal from the determination that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(E)(i) for being convicted of a crime of domestic violence, and remanding for further proceedings.
  • Emmanuel-Tata v. Garland, 20-60487, petition for review of BIA order
    • per curiam (Clement, Southwick, Willett), immigration
    • Granting Cameroonian citizen’s petition for review of BIA order affirming the Immigration Judge’s denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture, and remanding for further proceedings.
  • Hernandez v. Garland, 20-60548, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing her appeal from the denial by an immigration judge (IJ) of asylum, withholding of removal, and relief under the Convention Against Torture.
  • Ramos v. Garland, 20-60578, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Mexican citizen’s petition for review of BIA order denying his motion to reconsider its decision affirming the denial of his motion to terminate the removal proceedings.
  • Gamez-Padilla v. Garland, 20-60682, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying Honduran citizens’ petition for review of BIA order dismissing their appeal from the immigration judge’s denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Zhou v. Garland, 20-60753, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying Chinese citizen’s petition for review of BIA affirmance of both the Immigration Judge’s adverse credibility finding and denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Hermosillo v. Garland, 20-60788, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal and affirming the decision of the immigration judge.
  • Urdaneta v. Garland, 20-60812, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Venezuelan citizen’s petition for review of BIA dismissal of his appeal from the Immigration Judge’s (IJ) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Tomas-Perez v. Garland, 20-60822, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing her appeal of IJ’s denial of her application for asylum and withholding of removal.
  • U.S. v. Brown, 20-60958, appeal from N.D. Miss.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Vacating district court’s denial of motion for compassionate release, and remanding for consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • Nguyen v. Garland, 20-61120, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Vietnamese citizen’s petition for review of BIA order dismissing his appeal of the Immigration Judge’s (IJ) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Lawrence v. Frost Bank, 21-10103, appeal from N.D. Tex.
    • per curiam (Owen, Jones, Wilson), bankruptcy
    • Affirming judgment that debtor’s debt was nondischargeable based on false representation and actual fraud.
  • U.S. v. Villasenor, 21-10135, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. May, 21-10308, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming 240-month sentence on conviction of receipt and distribution of child pornography.
  • U.S. v. Rios, 21-10371, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Remanding appeal of denial of motion for compassionate release to determine if untimely notice of appeal could be construed as motion for extension of time to notice appeal.
  • U.S. v. Rodriguez, 21-10418, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hunt, 21-10502, appeal from N.D. Tex.
    • per curiam (Jolly, Willet, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Brown, 21-10633, appeal from N.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Tepp, 21-10641, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Rudzavice, 21-10714, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Dismissing as frivolous appeal from district court’s denial of his motion to dismiss his criminal case for lack of jurisdiction under the Federal Rules of Civil Procedure.
  • U.S. v. Martinez, 21-10715, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Rodriguez, 21-10745, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Moore, 21-10775, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lyle, 21-20005, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming the compassionate-release reduction of defendant’s aggregate sentence from 1,141 months to 493 months of imprisonment and not the full amount of reduction defendant sought.
  • Alabbassi v. Whitley, 21-20070, appeal from S.D. Tex.
    • per curiam (Jones, Higginson, Duncan), Title VII
    • Affirming dismissal of Title VII claims for failure to provide a renewed appointment of position.
  • Su v. C Whale Corp., 21-20147, appeal from S.D. Tex.
    • per curiam (Stewart, Haynes, Graves), bankruptcy
    • Affirming bankruptcy court’s Sale Order, district court’s holding that Su’s appeal was moot, and district court’s finding there was no evidence of bad faith by Pacific Orca.
  • U.S. v. Thomas, 21-20176, appeal from S.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Martinez-Cervantes, 21-20438, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • BlueTarp Financial, Inc. v. Robertson Development, L.L.C., 21-30056, appeal from E.D. La.
    • per curiam (Elrod, Southwick, Costa), breach of contract
    • Reversing summary judgment in favor of plaintiff and remanding on the basis of the existence of a genuine issue of material fact.
  • U.S. v. Hogan, 21-30234, appeal from W.D. La.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming sentence on conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.
  • Francois v. Anslum, 21-30311, appeal from W.D. La.
    • per curiam (Davis, Jones, Elrod), 1983
    • Affirming dismissal of plaintiff’s sec. 1983 claim as untimely.
  • Frew v. Young, 21-40028, appeal from E.D. Tex.
    • Graves, J. (Stewart, Haynes, Graves), Medicaid
    • Affirming district court’s termination of the Corrective Action Orders and Decree provisions governing the State’s outreach obligations under Texas’s administration of its Medicaid Early and Periodic Screening, Diagnosis, and Treatment program.
  • U.S. v. Juarez-Salgado, 21-40129, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Owens, 21-40217, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Galan, 21-40325, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, guilty plea
    • Affirming guilty-plea conviction of conspiring with intent to distribute 500 grams or more of methamphetamine.
  • U.S. v. Baez-Vaquera, 21-40605, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Barrios-Alvarado, 21-50001, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cummings, 21-50089, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming 120-month sentence for conviction of being a felon in possession of a firearm.
  • Flores v. Hartnett, 21-50139, appeal from W.D. Tex.
    • per curiam (Owen, Southwick, Wilson), immigration
    • Affirming dismissal of plaintiffs’ claims of arising from denial of their Applications for Certificate of Citizenship, for failure to exhaust administrative remedies.
  • U.S. v. Reed, 21-50143, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Perez-Vides, 21-50269, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Granting summary affirmance of 27-month sentence on conviction of illegal reentry.
  • U.S. v. Hungerford, 21-50278, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 105-month sentence on conviction of possession with intent to distribute five grams or more of actual methamphetamine.
  • U.S. v. Baltazar, 21-50287, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming 327-month sentence on conviction of possession with intent to distribute 5 grams or more of actual methamphetamine.
  • U.S. v. Pena-Saenz, 21-50407, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming 21-month sentence on conviction of transporting illegal aliens for financial gain.
  • U.S. v. Leatherwood, 21-50462, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Agustin-Miguel, 21-50512, c/w 21-50514, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Granting summary affirmance of conviction of illegal reentry and sentence for conviction and for revocation of supervised release.
  • U.S. v. Montoya-Velasquez, 21-50516, c/w 21-50534, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Granting summary affirmance of conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. Rodriguez, 21-50537, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Samayoa-Salazar, 21-50547, c/w 21-50550, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Granting summary affirmance of conviction and sentence for illegal reentry and revocation of supervised release.
  • Inmobiliaria Buda S. de R.L. de C.V. v. Brown, 21-50660, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), fraud
    • Affirming dismissal of claims alleging fraud in real estate transactions.
  • U.S. v. Medina-Rios, 21-50725, c/w 21-50728, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. Aldaba-Roman, 21-50851, c/w 21-50852, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of conviction and sentence for illegal reentry and revocation of supervised release.
  • Lopez-Rivera v. Garland, 21-60058, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying Guatemalan citizens’ petition for review of BIA order dismissing their appeal of the denial by an Immigration Judge (IJ) of their application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Iglesias-Bonilla v. Garland, 21-60264, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying Salvadoran citizens’ petition for review of BIA order dismissing consolidated appeal from the immigrations judge’s (IJ) denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Nickey, 21-60382, appeal from S.D. Miss.
    • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
    • Affirming 36-month sentence on conviction of three counts of embezzlement by an employee of a gaming establishment on Indian Lands.
  • U.S. v. Kyles, 21-60403, appeal from S.D. Miss.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Granting summary affirmance of 171-month sentence and restitution order imposed following his guilty plea conviction for Hobbs Act robbery and using a firearm during and in relation to the robbery.
  • Rios-Aguilar v. Garland, 21-60430, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order dismissing appeal of IJ order denying his application for withholding of removal and protection under the Convention Against Torture.
  • Poon-Atkins v. Sappington, 21-60467, appeal from S.D. Miss.
    • per curiam (Smith, Stewart, Graves), personal tort
    • Affirming grant of summary judgment dismissing claims arising from auto accident, based on deemed-admitted requests for admission.
  • Owen v. Kijakazi, 21-60545, appeal from N.D. Miss.
    • per curiam (Higginbotham, Higginson, Duncan), social security
    • Affirming denial of social security benefits.