March 7-8, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Sheperd, 19-20073, appeal from S.D. Tex.
    • Willett, J. (Smith, Willett, Duncan), criminal, Sixth Amendment, ineffective assistance of counsel
    • Remanding to district court to hold evidentiary hearing on whether defendant’s pretrial counsel’s conflict of interest adversely affected her right to representation.
    • From Judge Willett’s comprehensive introduction: “‘The Sixth Amendment is the heartland of constitutional criminal procedure.’ One of four amendments in the Bill of Rights that guarantees basic protections to the criminally accused, the Sixth Amendment enshrines a cluster of rights to ensure the fairness, accuracy, and legitimacy of ‘all criminal prosecutions.’ This case concerns the Amendment’s final clause: ‘Assistance of Counsel.’ But ‘[t]his last right is a big one,’ as the right to counsel, perhaps the central feature of our adversarial system, helps make real the Constitution’s other criminal procedure promises. Ann Sheperd, the owner of a home-health agency, lawyered up after being indicted for Medicare fraud. But there was a tiny problem: Unbeknownst to Sheperd, her pretrial lawyer—who represented her until days before trial—also represented one of the Government’s star witnesses. Oops. Sheperd retained new counsel, was convicted (and sentenced to 30 years), and now appeals on various grounds related to her attorney’s conflict of interest. We agree with Sheperd that ‘Assistance of Counsel’ necessarily means effective assistance, and effective assistance demands conflict-free representation. This is certainly no less true during the pretrial phase, particularly today, when roughly 97.8 percent of federal criminal convictions are obtained not through a constitutionally prescribed jury trial but through plea bargaining.” (Footnotes omitted).
  • U.S. v. Anguiano, 20-30807, appeal from W.D. La.
    • Elrod, J. (Owen, Higginbotham, Elrod), criminal, sentencing
    • Affirming 120-month sentence for conviction of attempting to obtain or possess methamphetamine in prison, based on application of sentencing guidelines enhancements for intent to distribute and acting as the leader in the scheme.
    • The Court held there was no clear error in the finding of an intent to distribute, as there was testimony from a fellow inmate that the defendant offered to “hook [him] up,” and because the amount of methamphetamine being smuggled was 54 grams, an amount inconsistent with personal use. The Court also noted that the 97% purity of the meth, and the lack of any record of the defendant using meth personally, supported the finding of intent to distribute.
    • The Court held that the leadership role enhancement was also justified, based on a letter from the defendant’s daughter, who had supplied the meth, which the defendant himself had submitted to the district court as mitigation evidence, and based on the defendant’s representing to the fellow inmate that he could hook him up.
  • U.S. v. Blanco, 21-40307, appeal from S.D. Tex.
    • Elrod, J. (Owen, Higginbotham, Elrod), criminal, sentencing
    • Vacating defendant’s 36-month sentence for forcible and intentional assault while on a Royal Caribbean cruise, finding that the application of 3 criminal history points for a previous conviction was inappropriate, though upholding the application of the bodily injury enhancement, and remanding for resentencing.
    • The Court held that the district court committed clear error in including in the defendant’s criminal history a 2002 conviction for operating a motor vehicle after forfeiture of his driver’s license for life because the sentence imposed for that offense did not total more than 13 months and was originally imposed more than 10 years before the commencement of the assault. The Court held that this error affected the defendant’s substantive rights. “While Blanco’s criminal history and other characteristics were factors in his below-Guidelines sentence, the Guidelines were still the starting point and basis for his sentence. … Although the district court ultimately varied from the Guidelines range it originally calculated, a defendant’s substantial rights are affected if: (1) a district court uses the Guidelines as a starting point; (2) the Guidelines calculation is incorrect; and (3) the record is silent as to what the district court might have done had the Guidelines range been correct. All three are present in this case.” (Internal citation omitted).
    • The Court held that there was sufficient evidence in the record to support the plausibility of the bodily injury enhancement.

Unpublished

  • Bowling v. Dalheimer, 20-40642, appeal from E.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), sec. 1983
    • Affirming 12(b)(6) and 12(b)(1) dismissal of plaintiff’s sec. 1983 suit against her husband and various officers of the court arising from divorce proceedings.
  • Thompson v. Grillehouse of Southaven, L.L.C., 20-60722, appeal from N.D. Miss.
    • per curiam (Wiener, Graves, Duncan), Fair Labor Standards Act, attorneys fees
    • Reversing and remanding district court’s denial of motion for attorneys’ fees after successful FLSA claim as untimely.
  • Martinez-Galeas v. Garland, 20-61029, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal from an order of the immigration judge (IJ) that denied his motion to reopen removal proceedings.
  • Ochoa v. Garland, 20-61077, petition for review of BIA order
    • per curiam (Southwick, Oldham, Wilson), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order affirming the Immigration Judge’s denial of her claims for withholding of removal, protection under the CAT, and voluntary removal.
  • U.S. v. Campbell, 20-61174, appeal from S.D. Miss.
    • per curiam (Wiener, Graves, Duncan), criminal, First Step Act
    • Vacating denial of compassionate release under the First Step Act, and remanding for consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • U.S. v. Sah, 21-10791, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Nguyen v. Nguyen, 21-11114, appeal from N.D. Tex.
    • per curiam (Clement, Haynes, Higginson), sec. 1983
    • Affirming dismissal of sec. 1983 claims for lack of nonfrivolous grounds for appeal.
  • U.S. v. King, 21-20110, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gaderson, 21-20190, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Eagan v. Walgreen Co., 21-20352, appeal from S.D. Tex.
    • per curiam (Wiener, Graves, Duncan), personal tort, spoliation
    • Affirming summary judgment in favor of defendant and denial of plaintiff’s motion for spoliation sanctions in slip-and-fall case.
  • Savoy v. Stroughter, 21-30170, appeal from M.D. La.
    • per curiam (King, Costa, Ho), excessive force
    • Vacating summary judgment in favor of defendant in excessive force claim, and remanding to district court to consider plaintiff’s Rule 72 motion for review of magistrate’s ruling on motion to compel.
  • Rouses Enterprises, L.L.C. v. Clapp, 21-30293, appeal from E.D. La.
    • per curiam (Wiener, Graves, Duncan), non-compete
    • Affirming dismissal of suit to enforce non-compete agreement, holding it was unenforceable because counter-party was not employed at the time he signed the agreement.
  • U.S. v. Gibbs, 21-30434, appeal from M.D. La.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hinkson v. U.S., 21-20174, appeal from E.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Affirming denial of petition for coram nobis to vacate 1999 conviction for illegal reentry.
  • U.S. v. Raza Services, L.L.C., 21-40507, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), SBA loan
    • Affirming summary judgment in favor of Small Business Administration in suit to collect on defaulted SBA loan.
  • Washington v. Rodriguez, 21-50347, appeal from W.D. Tex.
    • per curiam (Wiener, Graves, Duncan), Family and Medical Leave Act
    • Affirming summary judgment dismissal of plaintiff’s FMLA retaliation claim.
  • U.S. v. Martinez, 21-50358, appeal from W.D. Tex.
    • per curiam (Wiener, Graves, Duncan), criminal, sentencing
    • Affirming conviction and 292-month sentence for conspiracy to distribute at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine.
  • U.S. v. Ramirez-Perez, 21-50705, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Galvan-Silva, 21-50769, c/w 21-50778, 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. Pascual-Miguel, 21-50867, c/w 21-50872, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • Argueta-Martinez v. Garland, 21-60026, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order denying his motion to reopen in absentia removal proceedings.
  • Hawkins v. City of Lexington, 21-60838, appeal from S.D. Miss.
    • per curiam (Jolly, Willett, Ho), sec. 1983
    • Affirming taxation of costs against pro se plaintiff after unsuccessful sec. 1983 claim.