October 25, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Guevara-Fabian v. Garland, 20-60627, petition for review of BIA order
    • per curiam (Southwick, Higginson, Willett), immigration
    • Denying Salvadoran citizens’ petition for review of BIA order affirming IJ’s denial of application for asylum and withholding of removal. The Court held that the record did not compel a contrary finding to the IJ’s finding that no factual nexus exists between the familial relationship alleged by the petitioners to be a particular social group and the harm they alleged they endured.
  • Broussard v. U.S., 21-30376, appeal from W.D. La.
    • Duncan, J. (Wiener, Graves, Duncan), Graves, J., dissenting; Federal Tort Claims Act, timeliness
    • Affirming dismissal of plaintiff’s personal-injury suit arising from a collision with a U.S. Postal Service truck, as time-barred.
    • Plaintiff had submitted a claim under the FTCA for $15,000 in damage to his truck after the collision. More than six months after that claim was denied, plaintiff brought a second claim arising from the same accident, for $2 million for back injuries, which was denied, and the subsequent suit was dismissed as time-barred.
    • Under the FTCA, a claimant has six months after denial of a claim to seek reconsideration or file suit. Because the plaintiff waited eight months after the denial of his property damage claim to file a personal injury claim arising from the same accident, the district court dismissed his subsequent suit as time-barred.
    • The Court held that the plaintiff’s indication of “none so far” with regard to personal injury on his first claim form did not save his personal injury claim from being subject to the presentment and time limitations from denial of that claim. The Court held that his “entire claim” was presented in his first claim form, and that the plaintiff failed to make use of claim-amendment procedures that were available to him. Because the FTCA is a limited waiver of sovereign immunity, the Court held that its presentment procedures must be interpreted strictly, and that different categories of damages from the same incident may not be treated as separate claims.
    • The Court also held that there were no extraordinary circumstances that would have justified equitable tolling.
    • Judge Graves dissented. He would have found that the later claim for personal injury damages was separate from the claim for property damage.
  • U.S. v. Ferris, 22-50117, appeal from W.D. Tex.
    • Stewart, J. (Stewart, Dennis, Higginson), criminal, sentencing
    • Affirming conviction for impersonating an FBI agent, but vacating 12-month sentence based on cross-reference to sentencing guidelines provisions for drug-trafficking offenses, and remanding for resentencing.
    • Defendant had been convicted of impersonating an FBI agent, arising from his use of fake FBI credentials in conning a pharmacy to fill multiple fentanyl-patch prescriptions.
    • The Court held that the district court’s jury instruction regarding impersonation of an FBI agent, if erroneous, was harmless error because he never contested the conduct that would have supported conviction under a correct instruction and he never presented a defense that would have implicated his own proposed instruction.
    • The Court held that the district court incorrectly applied the cross-reference to sentencing guidelines for offenses committed in furtherance of a drug trafficking crime because “the record fails to support the Government’s argument that Ferris attempted to traffic fentanyl.”

Unpublished

  • U.S. v. Lopez-Guzman, 20-11178, appeal from N.D. Tex.
    • per curiam (Southwick, Higginson, Willett), criminal, sentencing
    • Affirming 18-month sentence on revocation of supervised release.
  • U.S. v. Connell, 21-20594, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Stricker v. Deutsche Bank National Trust Co., 21-50787, appeal from W.D. Tex.
    • per curiam (Haynes, Engelhardt, Oldham), foreclosure
    • Dismissing as frivolous appeal from dismissal of claims alleging fraudulent foreclosure.
  • U.S. v. Britton, 21-51146, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 63-month sentence on conviction of being a felon in possession of a firearm.
  • Miranda v. Garland, 21-60706, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying Indian citizen’s petition for review of BIA order dismissing appeal of IJ denial of applications for withholding of removal and protection under the CAT.
  • U.S. v. Esquivel, 22-10084, appeal from N.D. Tex.
    • per curiam (Southwick, Higginson, Willett), criminal, sentencing
    • Affirming 9-month sentence on conviction of stolen mail.
  • Burch v. Rushmore Loan Management Services, L.L.C., 22-10349, appeal from N.D. Tex.
    • per curiam (Smith, Dennis, Southwick), bankruptcy
    • Affirming district court’s affirming of bankruptcy court’s summary judgment disposing of appellant’s adversary proceeding claims against bank that foreclosed on her husband’s (the debtor’s) house, and declaring appellant to be a vexatious litigant.
  • Thompson v. Allred Unit, 22-10641, appeal from N.D. Tex.
    • per curiam (King, Jones, Smith), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claims.
  • Rollins v. Carter, 22-20365, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), sovereign immunity
    • Affirming dismissal of claims against state, county, and two justices of the peace, challenging the constitutionality of discovery procedures, as barred by sovereign immunity.
  • U.S. v. Scott, 22-30082, appeal from W.D. La.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 105-month sentence on conviction of being a felon in possession of a firearm.
  • Hardy v. McDonough, 22-30306, appeal from W.D. La.
    • per curiam (Jones, Haynes, Oldham), § 1983
    • Affirming dismissal of plaintiff’s § 1983 claims against Secretary of Department of Veterans Affairs.
  • Wadhams v. American Federation of Teachers, 22-40246, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willett), diversity jurisdiction
    • Affirming dismissal of suit for lack of diversity jurisdiction where plaintiff is a Massachusetts citizen and one of the defendants is an unincorporated association with at least some members being citizens of Massachusetts.
  • U.S. v. Whiteside, 22-50225, appeal from W.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Hall, 22-50226, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • Avila-Simaj v. Garland, 22-60054, petition for review of BIA order
    • per curiam (Jolly, Jones, Ho), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of application for asylum, withholding of removal, and protection under the CAT.