April 25-26, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Mejia-Banegas, 21-50459, appeal from W.D. Tex.
    • per curiam (King, Jones, Duncan), King, J., concurring; criminal, supervised release
    • Affirming special condition of supervised release terms that allowed probation officer to require the defendant to notify a person he may pose a risk to and to inform them about that risk.
    • On plain error review, the Court held that the special condition was not an improper delegation of judicial authority to probation officers. “Under the risk-notification condition, the probation officer does not unilaterally decide whether the defendant is subject to the condition. Rather, the risk-notification condition only allows the probation officer to direct when, where, and to whom the defendant must give notice.”
    • The Court also took the federal public defender’s office to task for filing a number of similar appeals involving this risk-notification provision, which is part of a standing order in the Western District of Texas, without first objecting at the district court. “This amounts to a deliberate bypass of the district courts, which should have been alerted to the issue in the regular course of sentencing proceedings. District court judges are well acquainted with the realities of probation that this recommended condition invokes, and having been apprised of the issue, could have added valuable insights to this court’s appellate work.”
    • Judge King concurred in the judgment, and would have stopped at the plain-error element that the error could be neither plain nor obvious since the Court had not yet reached the merits of the issue in prior decisions. “That is also true here, and imposition of the selfsame condition is still not plain error. The court thus does not need to reach the merits question to decide this case.”
  • Whole Woman’s Health v. Jackson, 21-50792, appeal from W.D. Tex.
    • per curiam (Jones, Higginson, Duncan), Higginson, J., dissenting in part and concurring in part; abortion law
    • Remanding to the district court with instructions to dismiss all challenges to the private enforcement provisions of Texas S.B. 8, to consider whether plaintiffs have standing to challenge Tex. Civ. Prac. Rem. Code Ann. § 30.022, in light of the Texas Supreme Court’s ruling.
    • Judge Higginson dissented in part and concurred in part. “[B]ecause the Supreme Court specifically held that ‘this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young,’ Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021), I do not believe that we have the authority to order the case dismissed. Accordingly, I would simply remand the case for proceedings not inconsistent with the opinions of the United States Supreme Court and the Texas Supreme Court.”

Unpublished

  • Williams v. Hooper, 19-30523, appeal from E.D. La.
    • per curiam (King, Jones, Duncan), habeas corpus
    • On an abuse-of-discretion review, affirming district court’s ruling that petitioner was not entitled to equitable tolling for the 16-day delay in the Louisiana Supreme Court’s mailing of notice of its judgment in the state post-conviction proceedings to him.
  • Young v. LeBlanc, 20-30592, appeal from E.D. La.
    • per curiam (Jones, Duncan, Engelhardt), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 suit.
  • U.S. v. Belducea-Mancinas, 20-50929, appeal from W.D. Tex.
    • per curiam (Southwick, Haynes, Higginson), Higginson, J., concurring; criminal, sentencing
    • Affirming 151-month sentence on conviction of possession of marijuana with intent to distribute.
    • Judge Higginson concurred, noting that, while the case did not meet the bar of plain error, there was sentencing error nevertheless, because the hemp that the defendant had been prior convicted of possessing should not have been used in the career-offender enhancement applied to his sentencing.
  • Cook v. TTUHSC Medical Personnel, 21-10053, appeal from N.D. Tex.
    • per curiam (Southwick, Graves, Costa), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 ADA claim.
  • U.S. v. Bonilla-Turcios, 21-10702, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez, 21-40161, appeal from S.D. Tex.
    • per curiam (King, Jones, Duncan), criminal, sentencing
    • Affirming in part, vacating in part, and remanding for resentencing on conviction of importing methamphetamine, on basis that discretionary conditions of supervision in defendant’s written judgment conflicted with her orally pronounced sentence.
  • U.S. v. Hughes, 21-50458, appeal from W.D. Tex.
    • per curiam (Jolly, Smith, Engelhardt), criminal, sentencing
    • Affirming 46-month sentence on conviction of being a felon in possession of a firearm.
  • U.S. v. Jones, 21-50672, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, sentencing
    • Affirming 27-month sentence on conviction of possession of a firearm after a felony conviction.
  • U.S. v. Flores, 21-50998, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Ray v. Crow, 21-51068, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), habeas corpus
    • Affirming dismissal of § 2241 petition.