Take the Fifth

Designated for publication

• U.S. v. Gomez, 17-20526, appeal from S.D. Tex.
  • per curiam (Smith, Elrod, Oldham), criminal, sentencing
  • On remand from the U.S. Supreme Court, remanding to the district court to reform the judgment to impose sentence under 8 U.S.C. § 1326(b)(1) (applicable to predicate non-aggravated felonies) rather than under 8 U.S.C. § 1326(b)(2) (applicable to predicate aggravated felonies).
  • The Court held that the defendant’s prior conviction for aggravated assault in Texas does not qualify as an aggravated felony because the elements of that offense can be triggered by a mens rea of recklessness. However, the Court held that the defendant’s sentence was also well within the maximum for prior non-aggravated felonies.

• Esparza v. Garland, 19-60699, petition for review of BIA order
  • Owen, C.J. (Owen, Clement, Higginson), immigration
  • Dismissing Mexican citizen’s petition for review of BIA order finding him subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii), which permits the deportation of aliens who commit two crimes involving moral turpitude (CIMTs) after admission to the United States.
  • The petitioner had been charged with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) on the basis that prior convictions for deadly conduct and for resisting arrest were “aggravated felonies; those proceedings ended with a termination of removal proceedings by the BIA after going up to the U.S. Supreme Court and being remanded in light of Sessions v. Dimaya‘s holding that the statutory definition of “aggravated felony” was unconstitutionally vague. Subsequently, the petitioner was again charged with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) on the basis the two prior convictions were “crimes involving moral turpitude.”
  • The Court held that res judicata did not bar the new removal proceeding because it is based on a wholly separate statutory provision.
  • The Court then held that it owed Chevron deference to the BIA as to what constitutes a crime involving moral turpitude, and that the BIA did not abuse its discretion under the categorical approach adopted by the Court for such a deferential review. It held that the degree of harm involved in the Texas crime of deadly conduct rendered it a CIMT. “The inverse relationship between scienter and harm explains our holding in Gomez-Perez and renders that case inapplicable here. As explained above, Gomez-Perez concerned misdemeanor assault, which includes reckless infliction of de minimis bodily injury. Because its low degree of harm was not offset by a more culpable mental state, misdemeanor assault was not a CIMT. Deadly conduct, by contrast, demands an imminent threat of serious physical injury. Because its potential harm is grave, no countervailing, heightened mens rea is necessary for deadly conduct to constitute a CIMT; recklessness suffices.”
  • The Court also held that the petitioner’s adjustment of his residency status in 2005 was an “admission” for purposes of the removability statute. “In cases involving aliens who … enter the United States unlawfully then adjust to lawful permanent resident status, interpreting ‘admission’ to exclude these status adjustments generates absurdity under certain provisions of the INA.”

• Jordan v. Evanston Insurance Co., 20-60716, appeal from S.D. Miss.
  • Wilson, J. (King, Higginson, Wilson), insurance
  • Reversing district court’s judgment that a claim arising from a products liability suit involving a child’s ingestion of “Buckyballs” was made during the manufacturer’s insurance policy period, and rendering judgment in favor of the insurer on the question of whether the insurer was liable for coverage for the manufacturer’s defense and for a partial settlement of the plaintiffs’ claims.
  • During the policy period, the insured manufacturer forwarded news stories about the injuries caused to the plaintiff to its insurers. Evanston, an excess insurer, opened a claims file. But no claim was actually made against the manufacturer until several months later, when the plaintiff’s counsel sent a demand letter, by which point the manufacturer was no longer within the policy period.
  • Holding first that Mississippi law would apply, the Court held that no claim was timely made during the policy period. The Court rejected the district court’s approach of skipping the question of whether a claim was made because the insurer had taken steps as if a claim had been made. “Surmising that ‘[i]f it looks like a duck, swims like a duck, quacks like a duck, and is prepared for dinner like a duck, it’s probably a duck,’ the district court held that ‘[i]nformation received and recorded as a timely claim by the parties will be deemed a timely claim by the Court.’ But ducking the question of whether a timely claim was actually made, by ‘deeming’ it so, was error.”
  • The Court held that the news articles, and the plaintiffs’ statements quoted in those articles, were not a “claim.” “Even assuming they did, and that constituted a ‘claim’ under Evanston’s policy, Meaghin Jordan made the comments to a media outlet, not to M&O or Evanston. Her statements to CNN, while expressing an understandable sentiment, did not put M&O and its insurers in a position to defend against ‘[a] demand for money, property, or a legal remedy to which one asserts a right[.]’ Claim, Black’s Law Dictionary (11th Ed. 2019). … The fact that M&O became aware of media reports about Braylon’s injuries and sent those reports to Evanston, which in turn opened an internal ‘Claim/Occurrence’ file and monitored further developments, does not substitute for the Jordans actually making a timely claim against M&O.”

• Mary v. QEP Energy Co., 21-30195, appeal from W.D. La.
  • Davis, J. (Davis, Higginson, Engelhardt), trespass, damages
  • Affirming district court’s summary judgment in favor of defendant pipeline company on the issue of damages for the pipeline company’s construction of a pipeline partially outside its pipeline servitude.
  • Plaintiff landowners sought as damages for the encroachment of the pipeline outside the servitude boundaries a disgorgement of all profit earned by the defendant for gas that flowed through the pipelines. The Court held that “the most they could recover are the additional profits defendant earned as a direct result of the encroachment, as compared to the profits it would have earned if it had installed the pipelines entirely within the servitude.”
  • The Court held that, under the Louisiana property law concept of accession, “Although the Marys consented to the construction of the Pedro Pipelines on their property within the boundaries identified in the pipeline servitude, they did not consent to the installation of pipelines outside these boundaries. Because there was no servitude, contract, or other ‘act translative of ownership’ that allowed QEP to place its pipelines outside the servitude, QEP was in ‘bad faith’ under Article 487 once it became aware that the pipelines were outside the servitude or when the Marys brought this action.” Accordingly, the Marys could take ownership of the out-of-bounds segments of the pipeline subject to reimbursement to the pipeline for the current value of the materials and workmanship or the enhanced value of the land. However, as to “fruits” of the pipeline, the Court held that “gas is not a fruit; it is a product.” And, while “a landowner may recover products taken from his land without his consent, … the gas at issue here was not taken from the Mary’s land. It was produced from the Pedro Well, located on the neighbor’s land. Likewise, even if the gas or its proceeds were considered a ‘fruit,’ the Code does not support the Marys’ position that they are fruits of anything the Marys own.”
  • Then, accepting the decisions of the Louisiana Supreme Court in Rosenthal and Corbello as allowing the recovery of profits transported through the pipeline over the Marys’ land, the Court held nonetheless that “[d]isgorgement in this circumstance is limited to the additional profits QEP earned, if any, as a direct result of installing the Pedro Pipelines partly outside the servitude boundary, as compared to the profits QEP would have earned if it had installed the pipelines entirely within the servitude.”
  • The Court held further that disgorgement is not an available remedy under contract law.
  • The Court also held that, while a trespass occurred by the construction of the pipeline outside of the servitude boundaries, disgorgement was still not available for the same reasons it was not available under the property-law accession theory.

• Whole Woman’s Health v. Jackson, 21-50792, appeal from W.D. Tex.
  • Jones, J. (Jones, Higginson, Duncan), Higginson, J., dissenting; abortion law
  • On remand from the U.S. Supreme Court, certifying questions regarding attorneys’ fees under Texas S.B. 8 and regarding standing to sue Texas Licensing Officials to the Texas Supreme Court.
  • “[T]he issues before this court are not about abortion, nor about whether S.B. 8 is consistent with the federal Constitution, nor about the wisdom of S.B. 8,2 but about the constitutional authority of federal courts to entertain this pre-enforcement suit against a state law.”
  • “First, when holding that Plaintiffs’ case against Texas Licensing Officials may proceed past the motion to dismiss stage, the Supreme Court did not conclusively determine the scope of the officials’ state law duties, if any, under S.B. 8. Second, because the Supreme Court ordered remand in light of Texas’s explicit notice that it would seek certification from the Fifth Circuit, the remand order cannot be fairly read to have foreclosed certification. Third, if the Texas Supreme Court accepts certification, its decision interpreting state law will be controlling, as all judges and parties agree.”
  • Accordingly, the Court certified this question to the Texas Supreme Court: “Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.”
  • Judge Higginson dissented, opining that the certification to the Texas Supreme Court exceeded the mandate on remand from the U.S. Supreme Court. “The [Supreme] Court’s holding in this case was exact: ‘eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners.’ Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021). … By granting the defendants’ certification motion, we contravene the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory.”

Unpublished

• U.S. v. Hammond, 19-11371, appeal from N.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal, supervised release
  • Affirming the mental health condition in the defendant’s terms of supervised release on conviction of conspiracy to possess with intent to distribute a controlled substance.

• Carlucci v. Chapa, 19-50954, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Ho), Bivens claim
  • Affirming dismissal of plaintiff’s Bivens claim, but vacating the imposition of a strike for bringing a frivolous action under the PLRA.

• Andrade v. Amarillo Police Department, 20-11151, appeal from N.D. Tex.
  • per curiam (Southwick, Graves, Costa), prisoner suit
  • Dismissing as frivolous appeal from dismissal of prisoner’s civil rights complaint.

• Thompson v. Link, 20-30001, appeal from W.D. La.
  • per curiam (Wiener, Dennis, Haynes), Bivens claim
  • Affirming dismissal of Bivens claim.

• Acha v. Garland, 20-60674, petition for review of BIA order
  • per curiam (Wiener, Dennis, Haynes), immigration
  • Granting Cameroonian citizen’s petition for review of BIA order dismissing his appeal from the denial by the immigration judge (IJ) of Acha’s application for asylum, withholding of removal, and relief under the Convention Against Torture, and remanding for BIA to address claim for protection under the CAT.

• Skinner v. GPCH-GP, Inc., 20-60805, appeal from S.D. Miss.
  • per curiam (Smith, Higginson, Willett), prisoner suit
  • Dismissing as frivolous appeal from dismissal of prisoner plaintiff’s claim that his rights were violated by denying his request to release medical records pertaining to the treatment of two agents following the execution of a search warrant on his property.

• Peralta v. Garland, 20-60943, petition for review of BIA order
  • per curiam (Smith, Stewart, Graves), immigration
  • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order denying his motion to reopen his removal proceedings based upon his claim of ineffective assistance of counsel.

• U.S. v. Cook, 21-10387, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal, sentencing
  • Affirming 293-month sentence on conviction of attempted enticement of a minor.

• U.S. v. Romero-Arreola, 21-10842, appeal from N.D. Tex.
  • per curiam (King, Ho, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Grant, 21-20285, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Navarette, 21-20356, appeal from S.D. Tex.
  • per curiam (Jolly, Willette, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Grant, 21-30059, appeal from W.D. La.
  • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
  • Vacating denial of motion for compassionate release and remanding for consideration under United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).

• Castille v. City of League City, 21-40202, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), municipal liability
  • Affirming dismissal of plaintiff’s Monell claims against city.

• U.S. v. Luna-Reyes, 21-40364, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Salinas-Mancilla, 21-40675, appeal from S.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Montanez-Montanez, 21-50285, c/w 21-50295, appeal from W.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
  • Affirming consecutive 21-month and 12-month sentences for illegal reentry and revocation of supervised release.

• U.S. v. Walker, 21-50429, appeal from W.D. Tex.
  • per curiam (Barksdale, Willett, Duncan), criminal, sentencing
  • Affirming 192-month sentence on conviction of receipt of child pornography.