Take the Fifth

Designated for publication

• U.S. v. Kelley, 20-20580, appeal from S.D. Tex.
  • Jones, J. (Jones, Southwick, Oldham), Oldham, J., concurring in judgment; criminal, Speedy Trial Act, sentencing
  • Affirming conviction on being a felon in possession of a firearm, affirming application of sentence enhancement for reckless endangerment, but vacating determination that prior state conviction of attempted aggravated assault on public servants was a “crime of violence,” and remanding for resentencing.
  • In charges from an incident that also resulted in state-court prosecution, the defendant was convicted in federal court of being a felon in possession of a firearm and sentenced to 84 months. The state and federal charges all arose from the defendant’s attempt to flee from members of the Houston Police Department on April 6, 2019. He was arrested that day and charged with various state offenses; while he posted bail on those charges, he was held on a parole violation from an earlier arrest. He was separately charged in August 2019 with a burglary charge and continued to be held. He was not indicted by a federal grand jury on the federal possession charge until October 24, 2019; was convicted of the federal charge at a bench trial on August 13, 2020, and then sentenced at a hearing on November 5, 2020. In the interim, the federal district court denied a motion to dismiss the federal indictment under the Speedy Trial Act, on the basis that he had failed to show that the state detention was a ruse in order to detain him for the later federal prosecution.
  • The Court held that the Speedy Trial Act clock does not begin to run until the arrest and taking into custody on the federal charge, regardless of cooperation between federal and state authorities where the defendant is first detained by the state. And where there is a lawful basis for the state detention, then the “ruse” exception does not apply.
  • The Court then held that the district court did not err in applying the reckless endangerment sentencing enhancement where the defendant had discharged a firearm while fleeing from the police. Regardless whether the defendant had intended to harm anyone when he discharged the weapon, he created a “substantial risk” of danger to others.
  • The Court held on plain-error review that attempted aggravated assault on a public servant is not a “crime of violence” for sentencing purposes.
  • Judge Oldham separately concurred in the judgment. He opined that, while the Court was obligated to vacate the sentence on “crime of violence” grounds due to Supreme Court precedent, “this is another circumstance where it’s hard to identify an ‘error,’ much less a ‘plain’ one.” Specifically, he noted that the district court’s crime-of-violence determination was “plainly right” at the time of the sentencing, but was only plainly erroneous when applying a subsequent Supreme Court decision.

• Tucker v. Gaddis, 20-40267, appeal from E.D. Tex.
  • per curiam (King, Graves, Ho); King, J., concurring; Ho, J., concurring; mootness
  • Reversing dismissal as moot claims of inmate seeking congregation rights in Texas prisons for “the Nation of Gods and Earths” under the Religious Land Use and Institutionalized Persons Act, holding that TDCJ’s change in policy to recognize members of the Nation as within the umbrella of the Islamic primary services and the rights of the Nation members to apply for secondary services subject to the same approval requirements as all other faiths (including approval by a committee based on time, venue, and security concerns) did not render the plaintiff’s claims moot.
  • The Court held that the plaintiff’s complaint did not seek an equal right to apply for secondary services, but the religious accommodation of the Nation through an approved scheduled time and venue for their services. “TDCJ’s policy change gives Tucker nothing more than the right to apply for a congregation—to date TDCJ has never approved the Nation for congregation. And it is the latter that this suit seeks to obtain.”
  • Judge King concurred, to emphasize that the ruling on mootness did not imply any finding of error in the TDCJ’s policies, but that those merits questions are still in play. “Any consideration of how the TDCJ is applying its broadly applicable policies, which affect all inmates and every religious creed to which they belong, goes to the merits of Tucker’s case and is beyond the scope of this appeal. Instead, Tucker’s live claim must be considered in light of these global rules of engagement to ensure that they are being applied fairly and equally and are not being used as clandestine measures to renew a de facto form of the TDCJ’s former categorical ban.”
  • Judge Ho concurred, to emphasize the difficulty worthy civil rights claims against a governmental entity face: “When a plaintiff seeks money damages, ‘an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell …—frequently conspires to turn winnable claims into losing ones.’ And if a plaintiff foregoes damages and asks for an injunction instead, public officials often try to evade trial by claiming the case is moot: Just stop engaging in the challenged conduct, declare that there’s no need for an injunction, and see if enough compliant and deferential judges agree. So no damages for past injury, due to immunity—and no injunction to stop future injury, due to mootness. Heads I win, tails you lose. To be clear, it’s not supposed to be this way. It shouldn’t be that easy for the government to avoid accountability by abusing the doctrine of mootness. But judges too often dismiss cases as moot when they’re not—whether out of an excessive sense of deference to public officials, fear of deciding controversial cases, or simple good faith mistake. And when that happens, fundamental constitutional freedoms frequently suffer as a result.” (Internal citation omitted).

• Harris v. Clay County, 21-60456, appeal from N.D. Miss.
  • Costa, J. (Smith, Costa, Wilson), qualified immunity, appellate jurisdiction
  • Dismissing appeal of denial of summary judgment motion to dismiss claims against County on Monell claims, for lack of appellate jurisdiction; affirming denial of summary judgment qualified immunity dismissal to sheriff and deputy on basis that they violated clearly established Constitutional rights when they continued to detain the plaintiff in jail for more than six years after he was adjudged to be incompetent to stand trial and his civil commitment proceeding was dismissed.

Unpublished

• Hardison v. Skinner, 20-30643, appeal from W.D. La.
  • per curiam (Dennis, Southwick, Wilson), Dennis, J., specially concurring; employment discrimination
  • Denying petition for panel and for en banc rehearing, withdrawing prior opinion and substituting new opinion affirming dismissal of plaintiff’s employment discrimination, defamation, and state law claims against school board and superintendent.
  • Judge Dennis specially concurred, disagreeing with the panel majority’s conclusion that the plaintiff failed to show disparate treatment for purposes of her prima facie burden, and taking issue with the majority’s “novel” “innovation” of injecting into the prima facie burden a requirement to show a white male “nearly identical” in position committed “nearly identical” conduct that did not draw unfavorable treatment. He also noted that he only concurred in the judgment because of the Fifth Circuit-only “ultimate employment decision” requirement.

• U.S. v. Wheeler, 21-11182, appeal from N.D. Tex.
  • per curiam (King, Southwick, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Cooks, 21-50953, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Vasquez-Rodriguez v. Garland, 21-60103, petition for review of BIA order
  • per curiam (Smith, Duncan, Oldham), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order denying a motion to reopen removal proceedings.

• Disotuar-Garcia v. Garland, 21-60133, petition for review of BIA order
  • per curiam (Wiener, Dennis, Haynes), immigration
  • Dismissing Cuban citizen’s petition for review of BIA order dismissing his appeal of the decision of the immigration judge (IJ) denying his motion to reopen his removal proceedings and rescind his in absentia order of removal.

• Jones v. Rivers, 21-60211, appeal from S.D. Miss.
  • per curiam (King, Costa, Ho), habeas corpus
  • Affirming dismissal of habeas petition.

• Akuchu v. Garland, 21-60513, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying Cameroonian citizen’s petition for review of BIA order denying him asylum and withholding of removal.