September 26-28, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Clark, 17-11079, appeal from N.D. Tex.
    • per curiam (Jones, Ho, Wilson), criminal, sentencing, Armed Career Criminal Act
    • Vacating sentence on conviction of being a felon in possession of a firearm, and remanding for resentencing, disagreeing with the district court that the ACCA (which would increase the statutory maximum from ten years to a minimum of 15 years) was not triggered by defendant’s prior convictions for aggravated assault by threat of bodily injury, aggravated assault by causing bodily injury, burglary of a habitation, and possession with intent to distribute a controlled substance.
    • The Court held that the prior conviction of aggravated assault by threat of bodily injury was an ACCA predicate offense because it can only be committed intentionally or knowingly, rendering it a “crime of violence” for ACCA purposes.
    • The Court held that the prior conviction of aggravated assault by bodily injury can be committed with a mens rea of mere recklessness, such that that conviction could not be an ACCA crime of violence.
    • The Court held that any burglary under Texas Penal Code § 30.02(a) qualifies as an ACCA predicate offense under U.S. v. Herrold, 941 F.3d 173 (5th Cir. 2019), and that the government’s prior concession that it was not a predicate offense under prior interpretations of that statute did not create “invited error” and did not bind the Court.
    • The Court held that the prior conviction for possession with intent to distribute is a “serious drug offense” predicate under the ACCA.
  • Franklink Inc. v. BACE Services, Inc., 21-20316, appeal from S.D. Tex.
    • Jolly, J. (Jolly, Smith, Engelhardt), breach of contract, forum selection clause, attorneys’ fees, injunctive releif
    • Affirming in part, reversing in part, vacating in part, and remanding from judgment in favor of plaintiff staffing company and against franchisee, its principals, and a non-signatory employee and non-signatory competing staffing companies for breach of non-compete and non-solicitation clauses of franchise agreement.
    • The district court had denied a motion to dismiss for lack of personal jurisdiction filed by the non-signatory employee and non-signatory staffing company competitors, on the basis that the closely-related doctrine rendered those non-signatories nevertheless governed by the forum-selection clause in the franchise agreement.
    • On a question previously unaddressed in the Circuit, the Court held that it would accept the closely-related doctrine, applying a non-rigid test examining “fundamental factors” of relatedness for the doctrine’s application: “(1) common ownership between the signatory and the non-signatory, (2) direct benefits obtained from the contract at issue, (3) knowledge of the agreement generally and (4) awareness of the forum selection clause particularly.” Applying these factors, the Court held that the non-signatory employee, although a step-son of the principals of the franchisee who were themselves signatories, did not sufficiently meet the closely-related test. The Court held likewise as to the non-signatory competing staffing company that the step-son went to work for and on whose behalf he began soliciting the clients of the plaintiff and signatory franchisee. However, as to the non-signatory staffing agency that was owned by the signatory franchisees, the Court held that it was sufficiently closely-related so as to trigger the doctrine. Accordingly, the Court reversed the district court’s denial of the motion to dismiss as to the first two non-signatories, but affirmed as to the third.
    • The Court reversed a portion of the damages award as erroneously calculated.
    • The Court reversed and vacated the future damages, as conflicting with the permanent injunctive relief.
    • The Court then vacated the attorneys’ fee award and remanded for recalculation in light of the change in the “amount involved and results obtained.”
  • Bye v. MGM Resorts International, Inc., 22-60034, appeal from S.D. Miss.
    • Jones, J. (Jones, Ho, Wilson), Ho, J., dissenting in part; Title VII, pregnancy discrimination, employment discrimination, Fair Labor Standards Act
    • Affirming summary judgment dismissal of plaintiff’s claims for pregnancy discrimination under Title VII, constructive discharge, hostile work environment, and FLSA violations, all arising from alleged inadequacy of lactation breaks and co-worker harassment due to lactation breaks.
    • The Court held that the plaintiff’s subjective belief as to the motivations of her co-workers was insufficient, and the level of harassment alleged was insufficient, to reverse the district court’s finding that she had failed to make a prima facie case of hostile work environment or Title VII harassment.
    • The Court similarly held that, based on the alleged conduct, the treatment was not so severe as to constitute constructive discharge.
    • The Court also held that the district court did not err in dismissing the plaintiff’s later-filed FLSA claims as untimely.
    • Judge Ho dissented in part. He disagreed with the majority’s holding that the FLSA claim was time-barred, opining that the plaintiff had stated all the necessary facts for the FLSA claim in the original lawsuit and that the failure to invoke the FLSA itself was not a fatal oversight. “[T]he Supreme Court has made clear that plaintiffs need only plead facts–not legal theories.”

Unpublished

  • Hale v. Abangan, 18-60183, appeal from S.D. Miss.
    • per curiam (Jolly, Oldham, Wilson), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 claims.
  • EEOC v. Ryan’s Pointe Houston, L.L.C., 19-20656, appeal from S.D. Tex.
    • Richman, C.J. (Richman, Higginbotham, Willett), employment discrimination
    • Reversing summary judgment in favor of defendant on claims of national origin and sex-based employment discrimination, and remanding for further proceedings.
  • Waller v. Hoeppner, 21-10129, c/w 21-10457, c/w 21-10458, appeal from N.D. Tex.
    • per curiam (Richman, Clement, Engelhardt), qualified immunity, excessive force, municipal liability
    • Affirming summary judgment denial to police officer on denial of qualified immunity, and grant of summary judgment to city on municipal liability claim, and dismissing for lack of appellate jurisdiction appeal from dismissal of independent Fourth Amendment claim.
  • U.S. v. Ceniceros-Deleon, 21-10852, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, guilty plea
    • Affirming denial of post-judgment motion that had argued that defendant did not knowingly enter into guilty plea or request to be proceeded against as an adult on convictions of committing a hate crime, carjacking, and use of a firearm in a crime of violence.
  • U.S. v. Love, 21-10979, c/w 21-11246, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, compassionate release
    • Affirming denial of motion for sentence reduction.
  • U.S. v. Cobourn, 21-11242, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Woodruff v. Caris MPI, Inc., 21-11249, appeal from N.D. Tex.
    • per curiam (Jones, Ho, Wilson), COVID-19, employment
    • Vacating as moot denial of former employees’ request for injunctive relief from employer’s vaccination mandate, but remanding for further proceedings.
  • U.S. v. Sanchez, 21-11281, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Granting summary affirmance of 78-month sentence on conviction of being a felon in possession of a firearm.
  • Fire Protection Service, Inc. v. Survitec Survival Products, Inc., 21-20145, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), breach of contract, retroactivity
    • Reversing district court’s ruling that Texas’s Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act violated the Texas Constitution’s prohibition on retroactive laws.
  • U.S. v. Moreno, 21-50661, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing, sufficiency of evidence
    • Affirming convictions of conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine, possession with intent to distribute fentanyl, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a felon; vacating on plain-error review the 293-month sentence on the convictions of possession with intent to distribute methamphetamine, and remanding for resentencing; but affirming concurrent 240-month and 120-month sentences for possession of fentanyl and possession of a firearm by a felon and consecutive 60-month sentence on conviction of possession of a firearm in furtherance of a drug crime.
  • Marquez v. Benavides, 21-50952, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), Bivens claim
    • Affirming dismissal of Bivens claim.
  • U.S. v. Juarez, 21-51161, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 168-month sentence on conviction of possession with intent to distribute methamphetamine.
  • Farish v. Lynx, 21-51223, appeal from W.D. Tex.
    • per curiam (Haynes, Engelhardt, Oldham), prisoner suit
    • Remanding to district court to determine if plaintiff met requirements for extension of time to file notice of appeal from dismissal of § 1983 suit.
  • Lozano v. Garland, 21-60742, petition for review of BIA order
    • per curiam (Barksdale, Higginson, Ho), immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order dismissing appeal of IJ order sustaining charge of removability and denying application for cancellation of removal.
  • Echavarria v. Garland, 21-60760, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order upholding denial of motion to reopen.
  • Rodriguez v. Garland, 21-60903, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Dismissing in part and denying in part Mexican citizens’ petition for review of BIA order dismissing their appeal from IJ denial of applications for withholding of removal and protection under the CAT.
  • Duenas-Sanchez v. Garland, 21-60913, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Dismissing Guatemalan citizen’s petition for review of BIA order affirming IJ’s denial of motion to reconsider denial of motion to reopen removal order.
  • U.S. v. Garcia-Lara, 22-10176, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 12-month sentence on conviction of illegal reentry.
  • U.S. v. Encinas, 22-10180, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cruz, 22-10191, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cano, 22-10242, appeal from N.D. Tex.
    • per curiam (Elrod, Graves, Ho), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for sentence reduction.
  • U.S. v. Jordan, 22-10374, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Granting summary affirmance of conviction and sentence for possession of a firearm by a felon.
  • Miller v. Meacham, 22-10776, appeal from N.D. Tex.
    • per curiam (Smith, Dennis, Southwick), § 1983
    • Affirming dismissal of claims against U.S. Attorney and Judge.
  • U.S. v. Duhon, 22-30029, appeal from W.D. La.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 60-month sentence on conviction of mail fraud.
  • U.S. v. Pina-Carrillo, 22-40093, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Clay v. Hanson, 22-40180, appeal from E.D. Tex.
    • per curiam (Elrod, Graves, Ho), prisoner suit
    • Dismissing appeal from dismissal of prisoner’s suit. for lack of jurisdiction.
  • Moose v. FNU LNU, 22-50002, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), habeas corpus
    • Affirming dismissal of § 2241 petition.
  • U.S. v. Urias-Renteria, 22-50069, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Urias-Renteria, 22-50076, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 78-month sentence on conviction of possession of a firearm by a felon.
  • Evans v. NetSpend Corp., 22-50310, appeal from W.D. Tex.
    • per curiam (King, Jones, Smith), prisoner suit
    • Dismissing as frivolous detainee’s appeal from dismissal of § 1983 suit.
  • Jackson v. Daniel, 22-50558, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), § 1983
    • Affirming dismissal of § 1983 claim.
  • Medrano-Hernandez v. Garland, 22-60071, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Dismissing in part and denying in part Salvadoran citizen’s petition for review of BIA order affirming IJ order denying application for asylum and withholding of removal.
  • C.K. v. King, 22-60228, appeal from S.D. Miss.
    • per curiam (Jones, Haynes, Oldham), insurance
    • Affirming judgment in favor of life insurance holder’s minor child and against former wife, in interpleader action filed by insurer.