January 24-25, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Garrett, 17-10516, appeal from N.D. Tex.
    • Jolly, J. (Jolly, Jones, Southwick), criminal, sentencing, Armed Career Criminal Act
    • On remand from the U.S. Supreme Court, reinstating prior judgment reversing imposition of a lesser sentence not enhanced under the ACCA and remanding for resentencing.
    • The panel had previously held that a prior conviction for simple robbery under Texas law was a predicate offense for an enhanced sentence under the ACCA. The Supreme Court vacated and remanded for consideration in light of Borden v. United States, 141 S. Ct. 1817 (2021).
    • The Court held that the “robbery offense of which appellee was convicted under the Texas simple robbery statute, Tex. Penal Code Ann. § 29.02, was robbery-by-threat, a valid ACCA predicate for an enhanced sentence that was not affected by Borden.”
  • SCF Waxler Marine, L.L.C. v. Aris T M/V, 20-30019, appeal from E.D. La.
    • Elrod, J. (Jones, Smith, Elrod), maritime law
    • Affirming the district court’s judgment in allocation of parties’ liability, limitation of parties’ liability, and dismissal of personal injury claim arising from three vessels’ allision on the Mississippi River. “On the evening of January 31, 2016, three vessels were travelling on the Mississippi River. Unfortunately, they did not pass peacefully in the night. This case is about why, and how fault should be assigned.”
    • Plaintiffs with shore interests that were damaged in the allision, and plaintiffs with interests in vessels that had been moored and been damaged in the allision, brought in rem and in personam claims against two of the vessels involved in the failed passing maneuver, who in turn brought a third-party claim against the third vessel involved in the failed maneuver. All three vessels also asserted limitation of liability defenses. In addition, a worker on one of the docks, who stumbled and fell while rushing to react to the allision, brought a personal injury claim. The district court found two of the vessel owners (of the Elizabeth and the Loretta) each 45% liable, and the third vessel owner (of the Aris T) 10% liable. Finding the Loretta Interest and the Elizabeth Interest themselves negligent, the district court held they could not limit their liability, but held that the Aris T Interest could limit its liability because culpability rested solely with the compulsory pilot, Pilot Leone. The district court had previously denied the Shore Interests’ summary judgment motion on whether the Insurance Parties could limit their liability if the Loretta Interest could. And the district court dismissed the shore worker’s personal injury claims with prejudice, finding that his injuries were caused by his own carelessness and inattention and not from the Aris T‘s allision with a different berth, that the worker was not in the “zone of danger” and could not establish the duty or cause elements of his claim.
    • The Court held there was no clear error in the district court’s apportionment of liability among the three vessel interests. “We do not find error in the district court’s evaluation of the Elizabeth’s violations of the Inland Navigation Rules or in the Loretta’s violations of the Inland Navigation Rules. … [G]iven that the Aris T was entering the outside bend of a west-bound turn in high-current conditions, we infer that the district court concluded that the Aris T did not violate Inland Rule 14 because she could not have altered her course any more than she already had leading up to the incident. See id. § 83.14. And in any event, the conflicting evidence on what the Aris T could have done under those circumstances leaves little room for legal error.”
    • As to the district court’s rulings under the Limitation of Liability Act, the Court held, “[W]hen the cause of the allision was the crew’s errors, the owner’s ability to limit its liability turns on whether the crew was incompetent, which the owner should have known, or whether the crew made mere mistakes of navigation, which the owner could not have known about.” While the Court held as to the Elizabeth Interests’ liability that the district court erred in finding its Captain incompetent, it upheld the district court’s denial of limitation of liability on the alternate grounds that the Elizabeth Interests had failed to provide the Captain with training on the Rose Point navigation system, and that their general manager had approved the downstreaming maneuver without a tugboat-assist. As to the denial of the limitation of the Loretta Interests’ liability, the Court held there was no clear error in the district court’s findings of causation between a failure of the vessel’s face wire connection with its barges. The Court upheld the limitation of the Aris T Interests’ liability because the Aris T’s master “was entitled to trust Pilot Leone’s greater expertise on the spacing in the Hahnville Bar. … Pilot Leone had adequate knowledge of the Inland Rules of Navigation; the point of having compulsory pilots for areas with specific navigational rules is to compensate for the crew’s lack of knowledge in that area.”
    • Summarizing the facts supporting the district court dismissal of the personal injury claim, the Court observed that the “Shell/Motiva employee was working on a berth when he caught sight of the Aris T alliding with a berth over 1,000 feet away. The berth he was standing on was not struck and did not move or shake. Morris simply panicked at the surprising sight of the vessel alliding with another berth, lost his footing, and fell.”
  • Amin v. Mayorkas, 21-20212, appeal from S.D. Tex.
    • Costa, J. (King, Costa, Willett), immigration, Administrative Procedures Act
    • Affirming the district court’s summary judgment in favor of the U.S. Citizen and Immigration Service denying a “genius” visa to the plaintiff. “This case involves Bhaveshkumar Amin’s attempt to obtain the modern version of this preference: an extraordinary ability visa. Amin, a Canadian citizen, is a talented chemical engineer who has made valuable contributions to oil and gas projects. But given the lofty bar for extraordinary ability classifications, we cannot say that the agency acted arbitrarily when it determined that Amin was not ‘extraordinary’ but merely very good.”
    • The Court held that the USCIS regulations did not require appeal of the visa denial to the agency’s Appeal Unit prior to judicial review.
    • The Court then held that the USCIS’s visa denial was not arbitrary or an abuse of discretion under the APA. The Court rejected the plaintiff’s argument that meeting three of the documentary requirements for the visa created a presumption of qualification for the visa. “The agency’s reading is consistent with the governing statute and regulation. The regulation does not say that meeting the regulatory criteria presumptively qualifies an applicant for a visa. It addresses what evidence must ‘accompany[]’ a petition. 8 C.F.R. § 204.5(h)(3). As most college applicants learn, submitting all the required application materials does not guarantee a favorable decision.”
    • The Court also held that USCIS’s policy memo setting out its review process was an interpretive rule, rather than a legislative one, and did not require notice and comment.
    • The Court then held that USCIS’s substantive decision was not arbitrary, as “the agency considered Amin’s evidence and explained why it does not meet the regulatory standard.”
  • U.S. v. Zarco-Beiza, 21-40060, appeal from S.D. Tex.
    • Higginson, J. (Jolly, Higginson, Engelhardt), criminal, sentencing
    • Affirming substantive reasonableness of 65-month sentence on defendants’ guilty-plea conviction of illegal reentry.
    • Defendant’s Guidelines range was 10 to 16 months, but the PSR noted that an upward departure may be necessary because the Defendant’s criminal history category “under-represents the defendant’s past criminal conduct” due to the remoteness of some of his prior convictions and because one criminal charge was still pending. Over the Defendants’ objections, the district court imposed an upward variance to 65 months, “relying on Zarco-Beiza’s history of immigration offenses (and the associated lengthy sentences), his other past criminal convictions, and his pending DWI charge,” and also cited the § 3553(a) factors of providing for the community’s safety, deterring further criminal conduct, and promoting respect for the law.
    • The Court noted that it had already rejected the argument that the Sentencing Commission had already considered the possibility of under-represented criminal history in formulating the criminal history categories.
    • The Court also rejected the argument that the sentence was substantively unreasonable because the district court relied on a bare arrest record at the sentencing–specifically that the pending DWI charge of which he had not yet been convicted was a bare arrest record. The Court held that the standard of review was dispositive, and that it would only review for plain error because the Defendant’s general objection to the substantive reasonableness of the sentence was not sufficiently specific to preserve his bare-arrest-record argument. Accordingly, on plain error review, while the Court held that the reliance on a bare arrest record was in error, the error was not reversible because the Defendant “has not demonstrated a reasonable probability that he would have received a lesser sentence but for the court’s consideration of his bare arrest record.” (Internal quotation marks and citation omitted). “[A] review of the sentencing hearing as a whole makes clear that the district court’s primary motivation for imposing the upward variance was Zarco-Beiza’s history of re-entering the United States after being deported.”

Unpublished

  • Letizia v. Lumpkin, 20-20511, appeal from S.D. Tex.
    • per curiam (Southwick, Graves, Costa), habeas corpus
    • Dismissing as frivolous appeal from dismissal of habeas petition challenging confinement under a governor’s warrant for extradition to Florida.
  • Goodrich v. U.S., 20-30422, appeal from W.D. La.
    • per curiam (Higginbotham, Stewart, Wilson), successions, tax
    • After denial of certification request by the Louisiana Supreme Court, affirming magistrate judge’s partial grant and partial denial of the IRS’s and the Goodriches’ competing summary judgment motions regarding the taxability of funds in the succession of Mr. Goodrich, which ordered “the IRS to return $86,774, which represented the Goodriches’ share of proceeds from the sale of some of the community property that had been deposited into the succession checking account[;] [but] held that the Goodriches were not entitled to any funds attributable to their portion of the liquidated Goodrich securities. Relying on Louisiana state court precedent and the Louisiana Civil Law Treatise, he reasoned that the IRS’s claim to that money took priority over that of the Goodriches since they were essentially ‘unsecured creditors’ of the disputed funds in Henry Sr.’s succession.”
  • U.S. v. Davis, 20-30438, appeal from M.D. La.
    • per curiam (Owen, Smith, Elrod), criminal, sentencing
    • Affirming prison official defendant’s conviction of one count of depriving an inmate of his civil rights by assaulting the inmate, conspiracy to obstruct justice, obstruction of justice, witness tampering, and perjury, and 110-month sentence.
  • U.S. v. Schaub, 20-50063, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lewis, 20-50135, appeal from W.D. Tex.
    • per curiam (Owen, Smith, Elrod), criminal, sentencing
    • Affirming 384-month sentence on conviction of one count of conspiracy to interfere with commerce by threats or violence, a violation of the Hobbs Act; eleven counts of money laundering; one count of money transactions in property derived from specific unlawful activity; seven counts under the Hobbs Act for interference with commerce by threats or violence; and one count of possession of a firearm by a felon.
  • U.S. v. Dembinsky, 20-50503, c/w 20-50507, appeal from W.D. Tex.
    • per curiam (Owen, Smith, Elrod), criminal, sentencing
    • Affirming consecutive 293-month and 120-month sentences, and concurrent 240-month sentence, on conviction of one count of conspiring to possess with the intent to distribute and distribution of methamphetamine and two counts of obstructing the due administration of justice and retaliating against a witness, victim, or informant.
  • U.S. v. Smith, 20-50879, appeal from W.D. Tex.
    • per curiam (Owen, Smith, Elrod), criminal, sentencing
    • Affirming 264-month sentence on conviction of possessing with intent to distribute 50 grams or more of actual methamphetamine.
  • Garcia-Gonzalez v. Garland, 20-60581, petition for review of BIA order
    • per curiam (Higginbotham, Higginson, Duncan), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing her appeal from the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Crayton, 21-10538, appeal from N.D. Tex.
    • per curiam (Barksdale, Costa, Engelhardt), criminal, First Step Act
    • Affirming denial of motion for reduction of sentence under the First Step Act.
  • Doe v. Harris County, 21-20251, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), excessive force, Americans with Disabilities Act
    • Affirming dismissal of plaintiff’s claims that, while he was detained for 36 hours, prison officials violated his Eighth Amendment rights and failed to accommodate his epileptic disability in violation of the ADA and the Rehabilitation Act.
  • U.S. v. Daigle, 21-30271, c/w 21-30273, appeal from M.D. La.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Torres-Soreano, 21-40203, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Bustillos-Ramirez, 21-50124, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hill, 21-50411, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, search and seizure
    • Affirming conviction on conditional guilty plea to possessing a firearm as a convicted felon.
  • U.S. v. Kimbay, 21-50471, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mallard, 21-60407, appeal from S.D. Miss.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 1-day imprisonment and 24-month supervised release sentence imposed upon revocation of prior term of supervised release.