February 3, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Landmark American Insurance Co. v. SCD Memorial Place II, L.L.C., 20-20389, appeal from S.D. Tex.
    • Elrod, J. (Elrod, Willett, Engelhardt), insurance
    • Reversing summary judgment in favor of insured on action regarding coverage of flood-related damage sustained during Hurricane Harvey, and rendering judgment in favor of insurer.
    • The policy at issue here is a “deductible buyback” policy, covering the amount of deductible for a primary policy. The insured’s primary policy was an all-risks policy that covered flood damage. The deductible-buyback insurer’s policy covered damage “caused by any of such perils as are set forth in item 3 of the schedule, and which are also covered by … the ‘Primary Insurer(s).'” Item 3 covered “Windstorm or Hail associated with a Named Storm.”
    • The Court held that the insurer’s interpretation of “Windstorm or Hail associated with a Named Storm” “makes sense of the framing phrase ‘Perils Covered.’ This framing sets up ‘Windstorm’ and ‘Hail’ as specific perils that may be associated with a number of weather events rather than as weather events that may encompass any number of perils.”

Unpublished

  • U.S. v. Lipscomb, 18-11168, appeal from N.D. Tex.
    • per curiam (Clement, Ho, Duncan), habeas corpus, sentencing, Armed Career Criminal Act
    • On remand from the U.S. Supreme Court, applying Borden v. United States, 141 S. Ct. 1817 (2021), to affirm the panel’s prior decision that the defendant had at least three qualifying prior violent felony convictions under the ACCA, and vacating the district court’s grant of a § 2255 petition and remanding to reinstate original sentence.
  • Phillips v. Hooper, 19-30199, appeal from W.D. La.
    • per curiam (Jones, Haynes, Costa), habeas corpus
    • Affirming denial of § 2254 petition on issues of failure to hold a pretrial sanity commission hearing and failure to ascertain knowing and intelligent waiver of counsel.
  • U.S. v. Zamora, 20-11266, appeal from N.D. Tex.
    • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
    • Affirming 60-month sentence on conviction of illegal reentry.
  • U.S. v. Danna, 20-40690, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Phillips, 20-40796, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sufficiency of evidence
    • Affirming conviction of two counts of forcibly resisting a federal officer.
  • Garcia v. Garland, 20-60563, petition for review of BIA order
    • per curiam (Barksdale, Willett, Duncan), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal of an Immigration Judge’s (IJ) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Gutierrez-De Rivas v. Garland, 20-61169, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing her appeal from the denial by an immigration judge (“I.J.”) of her application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • Micah v. Garland, 20-61238, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Nigerian citizens’ petition for review of BIA order affirming IJ’s denial of their motion to reopen and to rescind the in absentia removal orders entered against them.
  • U.S. v. Bowling, 21-10147, appeal from N.D. Tex.
    • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
    • Affirming 145-month sentence on conviction of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2); and transporting a stolen firearm.
  • U.S. v. Sila, 21-10347, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of 87-month sentence on conviction of two counts of theft of public funds in violation of 18 U.S.C. §§ 2 and 641 (Counts I and III) and with aggravated identity theft.
  • U.S. v. Kimbrough, 21-30102, appeal from W.D. La.
    • per curiam (Barksdale, Willett, Duncan), criminal, search and seizure, sentencing
    • Affirming 120-month sentence and conviction of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and to possessing a firearm with an obliterated serial number, including upholding district court’s denial of motion to suppress.
  • U.S. v. McIntyre, 21-30585, appeal from W.D. La.
    • per curiam (Smith, Stewart, Graves), criminal, search and seizure
    • Granting summary affirmance of conviction of possession with the intent to distribute methamphetamine and possession of a firearm in furtherance o drug trafficking, including upholding district court’s denial of motion to suppress.
  • Cruz v. W.H. Braum, Inc., 21-40477, appeal from E.D. Tex.
    • per curiam (Owen, Clement, Engelhardt), personal tort
    • Affirming summary judgment dismissal of plaintiff’s slip-and-fall claim.
  • U.S. v. Truijillo-Balverde, 21-50229, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 46-month sentence on conviction of illegal reentry.
  • U.S. v. Varela-Gonzalez, 21-50312, appeal from W.D. Tex.
    • per curiam (Barksdale, Willett, Duncan), criminal, sentencing
    • Affirming 12-month sentence on revocation of supervised release.