July 13, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Morris, 20-30744, appeal from W.D. La.
    • per curiam (Dennis, Higginson, Costa), criminal, search and seizure, sentencing
    • Vacating the district court’s denial of the defendant’s motion to suppress evidence discovered during a consent search, on finding that the defendant had been subject to a stop and that, because the district court had not found that the apprehending officers effected a stop, the district court failed to undertake a reasonable suspicion analysis; remanding for reconsideration of the motion to suppress; and dismissing the appeal of defendant’s sentence.
    • The Court held that the district court erred in finding that the officers had not effected a stop, where they had flagged the defendant down as he was attempting to drive out of a parking lot. “It is unclear how the command of a visual signal from officers on foot differs materially from the flashing lights of a police cruiser.” Independently, the Court held that the district court erred in failing to analyze whether the officers’ subsequent order of the defendant to step out of his car effected a seizure and converted the encounter into a stop. “Under the Fourth Amendment’s ‘free to leave’ test, it is hard to conclude that a person ordered to a certain location by police would feel free to leave.” Further, the Court held there was clear error in the district court’s conclusion that nothing in the the officers’ language or tone would have made the defendant feel he was not free to leave, where the officers repeatedly told him that he would be able to go as soon as he complied with the questioning and a search. “Both the express terms of the deputy’s demand and the fact that he repeated it multiple times in response to Morris’s hesitations suggest inescapably that compliance with the officer’s request might be compelled.” (Internal quotation marks omitted).
  • U.S. v. Wills, 20-40648, appeal from S.D. Tex.
    • Davis, J. (Davis, Elrod, Haynes), criminal, law of the case
    • Affirming conviction of defendant of sexually abusing a minor girl over a period of three years and conspiring to obstruct justice by destroying his laptop computer.
    • The Court held that the law of the case doctrine barred the defendant’s arguments that he was subject to double jeopardy due to punitive pretrial bond conditions in state court prior to the federal prosecution, where the defendant had moved to dismiss the federal indictment on the same grounds prior to trial and the denial of that motion had been the subject of an interlocutory appeal.
    • The Court held that the defendant was not denied a meaningful opportunity to present a complete defense with regard to developing evidence of the financial motives of the victim, her mother, or her attorney, to assist in prosecuting the claims against him. The Court held likewise with regard to South African medical records showing that the defendant had a communicable disease, where the defendant had not complied with reciprocal discovery obligations to produce those records to the prosecution.
  • U.S. v. Alvarez, 21-40091, appeal from S.D. Tex.
    • Duncan, J. (Jones, Higginson, Duncan), Jones, J., dissenting; criminal, search and seizure
    • Reversing denial of defendant’s motion to suppress, vacating conviction and sentence for possession of a firearm by a felon, and remanding for further proceedings.
    • The police, in conducting a round-up of gang members with outstanding warrant, had been given a description of “a ‘Hispanic male’ who had ‘run from officers’ on a ‘bicycle with large handlebars’ in the ‘area of Leopard and Up River’ at some unspecified time in the past. The officers had nothing else—not the suspect’s photo, his age, his build, his clothing, or any other identifying features. Nor were they told when the suspect had last been seen in the area.” They later stopped the defendant, who met this “meager description,” and though he was not the person referred to in the tip, they conducted a search and then arrested him for being a felon in possession of a firearm.
    • “Reasonable suspicion to stop someone suspected of criminal activity is a low threshold, but not this low. Our cases require officers to have information more specific than ‘a Hispanic male who once rode away from police on a bicycle with large handlebars in a particular area,’ especially in Corpus Christi, Texas. That open-ended description would effectively authorize random police stops, something the Fourth Amendment abhors.”
    • Judge Jones dissented, opining that the majority’s focus on the physical description ignored the totality of the circumstances.

Unpublished

  • Gordon v. Garland, 19-60763, petition for review of BIA order
    • per curiam (Southwick, Oldham, Wilson), immigration
    • Dismissing in part and denying in part Sierra Leonian citizen’s petition for review of BIA order denying appeal of IJ’s denial of applications for withholding of removal, asylum, and protection under the CAT.
  • U.S. v. Davis, 21-30708, appeal from M.D. La.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming sentence on conviction of two counts of possession of a firearm after felony conviction.
  • U.S. v. Zuniga-Garcia, 21-40710, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming 135-month sentence on conviction of conspiracy to possess with intent to distribute 100 grams or more of a mixture or substance containing Fentanyl.
  • U.S. v. Rodriguez-Banda, 21-50343, appeal from W.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming 63-month sentence on conviction of illegal reentry.
  • Cabello v. U.S., 21-51066, appeal from W.D. Tex.
    • per curiam (King, Southwick, Willett), habeas corpus
    • Affirming dismissal of § 2241 petition.
  • U.S. v. Lozano, 21-51076, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, restitution
    • Vacating defendant’s sentence for vandalizing a federal building, which failed to include an attached schedule of restitution payments that was referenced in the written judgment, and remanding for resentencing on restitution; otherwise, affirmed.