February 4-7, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Bates, 19-10813, appeal from N.D. Tex.
    • per curiam (King, Graves, Willett), criminal, sentencing, Armed Career Criminals Act
    • On remand from the U.S. Supreme Court, vacating and remanding for resentencing. The Court held that, under Borden v. United States, 141 S. Ct. 1817 (2021), the Texas crime of assault of a public servant was not a qualifying predicate crime of violence under the ACCA.
  • U.S. v. Lagos, 20-20283, appeal from S.D. Tex.
    • Willett, J. (Davis, Willett, Oldham), habeas corpus, ineffective assistance of counsel
    • Affirming district court’s denial of § 2255 petition urging argument of ineffective assistance of counsel.
    • The Court held that the trial court’s determination of the “actual loss” amount attributable to the petitioner’s wire-fraud conviction for sentencing purposes was subject only to a clear error review, requiring “considerable deference.” The Court held that it could not find clear error in the sentencing court’s inclusion of court-ordered advances paid during the bankruptcy within the foreseeable harm from his fraud, and therefore any objection by the petitioner’s trial counsel on foreseeability grounds would have lacked merit–such that the failure to make that objection could not constitute IAC.
  • Jackson v. Lumpkin, 20-20516, appeal from S.D. Tex.
    • Oldham, J. (Jolly, Willett, Oldham), habeas corpus
    • Affirming district court’s judgment that § 2244 petitioner’s Rule 60(b) motion was an impermissible successive habeas petition.
    • The Court distilled the analysis applicable to determining whether a Rule 60(b) motion is really a successive habeas petition: “How are courts to decide whether a Rule 60(b) motion presents a habeas ‘claim’? The Gonzalez Court focused on whether the motion ‘seeks to add a new ground for relief’ or ‘attacks the federal court’s previous resolution of a claim on the merits.’ It gave three examples of motions that qualify: first, a motion seeking leave to bring a new claim of constitutional error that was previously omitted due to ‘excusable neglect’; second, a motion seeking leave to present newly discovered evidence in support of a claim previously argued; and third, a motion seeking relief based on a subsequent change in substantive law. These are all quintessential habeas claims, and petitioners may not use Rule 60(b) to evade AEDPA’s limits on their cognizability. On the other hand, the Court clarified that a movant is not making a habeas claim ‘when he merely asserts that a previous ruling which precluded a merits determination was in error—for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.'” (Quoting and citing Gonzalez v. Crosby, 545 U.S. 524 (2005)).
    • The Court held that the petitioner’s arguments that new evidence shows his counsel’s ineffectiveness and his conviction’s constitutional infirmity are “fundamentally substantive” and are thus barred under Gonzalez.
  • Hess Corp. v. Schlumberger Tech. Corp., 20-20663, appeal from S.D. Tex.
    • Southwick, J. (Clement, Southwick, Willett), breach of contract
    • Affirming district court’s bench trial judgment on breach of contract claim that plaintiff failed to prove its revocation claim arising from its attempt to revoke acceptance of safety valves that defendant had recalled.
    • Under Section 2.608 of the Texas Business and Commerce Code, a “buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it . . . without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.”
    • The Court held that the plaintiff was incorrect in its arguments regarding interpretation of relevant API standards, and that Schlumberger therefore could not be held to have delivered non-conforming goods. “The district court did not err in interpreting API 14A Section 6.3.2.2 to require only that the drawings remain substantially the same and that the valves be manufactured using those drawings.” (Emphasis added). The Court also held that plaintiff was incorrect to interpret API 14A Section 7.6.2 to require destructive inspection to inspect rosette springs within a seal assembly instead of just dimensional inspection of the seal assemblies.
    • The Court held that there was no clear error in the district court’s factual findings regarding the defendant’s compliance with API 14A Section 6.3.2.2.
    • The Court then held that Hess did not meet its burden to prove that “any alleged non-conformity ‘substantially impair[ed] the value’ of the goods to Hess.” The Court held that the district court’s factual findings on this issue were not clearly erroneous, even under the plaintiff’s proposed standard of causation as “producing cause.”
  • U.S. v. Lyons, 20-50307, appeal from W.D. Tex.
    • Wilson, J. (Dennis, Southwick, Wilson), criminal, First Step Act
    • Affirming district court’s denial of defendant’s motion for a sentence reduction under the First Step Act.
    • The Court held that the district court did not abuse its discretion in denying the motion for sentence reduction, where the court could have considered an unused enhancement that had been not used in the original sentencing, to reach the defendant’s current sentencing level.
  • U.S. v. Norbert, 20-60106, appeal from S.D. Miss.
    • per curiam (Owen, Davis, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan), criminal, search and seizure
    • After March 16, 2021 panel opinion affirming pre-trial grant of motion to suppress was vacated by an order to rehear the matter en banc, the en banc court entered a per curiam opinion again affirming, but “by an equally divided court. Our judgment is not entitled to precedential weight no matter what reasoning may have supported it.” (Internal quotations and citation omitted).
  • U.S. v. Hammond, 21-30433, appeal from M.D. La.
    • Clement, J. (Owen, Clement, Engelhardt), criminal, sentencing
    • Affirming upward departure from Guidelines to impose 24-month sentence on revocation of supervised release.
    • After receiving a downward departure on sentencing for bank fraud conviction and being sentenced to one year and one day of prison and three years of supervised release, defendant committed two violations of supervised release conditions. The district court departed upward from the 5- to 11-month guideline range to sentence defendant to 24 months.
    • The Court held there was no plain error in the district court’s sentencing decision. The Court applied plain error review because it held that the defendant’s counsel’s “Just a note of objection to the Court’s ruling, Your Honor,” was insufficiently clear to preserve the specific objection. The Court then held that the “district court was not required to put Hammond on notice that it might upwardly depart,” but that the district court had nevertheless provided such notice.
  • U.S. v. Lujan, 21-50091, appeal from W.D. Tex.
    • Davis, J. (Davis, Willett, Oldham), criminal, sentencing
    • Vacating sentence on conviction of one count of conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, holding that the district court erred in calculating the amount of drugs attributable to the crime when it converted the entirety of the $10,694 in cash seized as being intended to purchase more methamphetamine, and remanding for resentencing.
    • The Court noted that the cash-to-drugs quantity determination is usually based on the how much drugs sold is represented by the cash amount, but that the district court here calculated the amount of drugs that the defendant could have bought at wholesale price to resupply her stash. “That assumption is purely speculative here, and we conclude that it is implausible on the facts presented to the district court. Outside of their illegal drug enterprise, neither Alvarado nor Lujan were employed or had any other source of income. It is inescapable that some of the proceeds of their drug business must have been devoted to living expenses such as housing, food, and medical needs. There is nothing in the PSR, or elsewhere in the record, that would enable the district court to determine which portion of the $10,694 would go to repurchase drugs, and which portion would go to other costs, including living expenses.”

Unpublished

  • Ruvalcaba v. Angleton Independent School District, 20-40491, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Oldham), Title IX
    • Affirming dismissal of plaintiff’s Title IX claim arising from school principal’s and school’s investigation of sexual assault on plaintiff by another student.
  • Rodriguez-Arevalo v. Garland, 20-60673, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying in part and dismissing in part Salvadoran citizens’ petition for review of BIA order dismissing their appeal of the Immigration Judge’s (IJ) denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Herrera-Duarte, 21-10764, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Landry v. Leesville Rehabilitation Hospital, L.L.C., 21-30423, appeal from W.D. La.
    • per curiam (Jones, Haynes, Costa), employment discrimination
    • Affirming dismissal of sexual harassment, racial discrimination, and retaliation claims arising from her termination of employment after incidents involving patient.
  • U.S. v. Ballardo-Ramos, 21-40306, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Remanding to district court to reform judgment to reflect conviction is for illegal reentry without an accompanying aggravated felon.
  • Hoenninger v. Leasing Enterprises, Ltd., 21-50301, appeal from W.D. Tex.
    • Higginson, J. (Davis, Higginson, Engelhardt), Fair Labor Standards Act, attorneys’ fees
    • Vacating award of attorneys’ fees after successful FLSA wage claim, and remanding for recalculation.
  • U.S. v. Arcuvia-Moreno, 21-50523, c/w 21-50532, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Granting summary affirmance of conviction and sentence under 8 U.S.C. § 1326(a) and (b)(2), and of revocation of supervised release.
  • U.S. v. Guinn, 21-60550, appeal from S.D. Miss.
    • per curiam (Davis, Willett, Oldham), criminal, guilty plea
    • Dismissing appeal of district court’s denial of petition for writ of audita querela to expunge conviction of being a felon in possession of a firearm after the underlying Louisiana felony conviction was expunged, on basis of waiver of collateral review in guilty plea.