(Playing a bit of catch-up after some traveling and oral arguing, so the “Designated for Publication” summaries will be a bit briefer than usual)
Designated for publication
- Stringer v. Remington Arms Co., 18-60590, appeal from S.D. Miss.
- Graves, J. (Wiener, Graves, Oldham), Wiener, J., dissenting; products liability
- Affirming dismissal of products-liability claims against firearms manufacturer for an allegedly faulty trigger mechanism. The Court held that Mississippi’s fraudulent concealment statute could not toll the statute of limitations because plaintiffs’ complaint did not comply with Rule 9(b)’s pleading requirements for pleading fraud.
- Judge Wiener dissented, opining that the majority failed to apply the 12(b)(6) standard that all factual allegations in a complaint must be accepted as true and viewed in a light most favorable to the plaintiff.
- U.S. v. Palomares, 21-40247, appeal from S.D. Tex.
- Jolly, J. (Jolly, Willett, Oldham); Oldham, J., concurring; Willett, J., dissenting; criminal, sentencing, First Step Act
- Affirming 120-month sentence imposed on defendant on conviction for smuggling heroin, holding that the safety valve provision of the First Step Act at 18 U.S.C. § 3553(f)(1) would only apply if all three of the prerequisites spelled out in that provision are met, rather than any one of the three.
- Judge Oldham separately concurred in the judgment, expressing that he is “an ardent textualist,” but that textualism should not “mean hyper-literalism.” He then engaged in what he described as a proper textualist (i.e., non-hyper-literalist) interpretation of § 3553(f)(1) to arrive at the same result as the majority opinion.
- Judge Willett dissented from the majority’s and concurrence’s textualist interpretations. “The majority opinion holds that ‘and’ can have either a ‘distributive’ or a ‘joint’ sense and that only context can resolve the inherent ambiguity. Piercing the legalese, the idea is that ‘and’ can mean either ‘and’ or ‘or.’ To be fair, the majority isn’t alone. Courts facing clumsy drafting have sporadically reached that conclusion. The English language is never in stasis. Witness the off-definition misuse of ‘literally,’ which has literally come to mean ‘figuratively.’ But interchanging ‘and’ and ‘or’ is a mistake.”
- U.S. v. Meredith, 21-50487, appeal from W.D. Tex.
- Oldham, J. (Stewart, Willett, Oldham), criminal, guilty plea
- Dismissing appeal of setnencing enhancement and restitution awardon basis of appeal waiver in guilty plea.
- Golden Glow Tanning Salon, Inc. v. City of Columbus, 21-60898, appeal from N.D. Miss.
- Jones, J. (Jones, Ho, Wilson), Ho, J., concurring; COVID-19
- Affirming summary judgment dismissal of tanning salon’s civil rights suit against City based on shut-down in wake of epidemic. “Subsequent experience strongly suggests that draconian shutdowns were debatable measures from a cost-benefit standpoint, in that they inflicted enormous economic damage without necessarily ‘slowing the spread’ of Covid-19. The balance of impacts was not well understood at the time, however, and we are constrained to affirm.”
- Judge Ho concurred. “The Supreme Court has recognized a number of fundamental rights that do not appear in the text of the Constitution. But the right to earn a living is not one of them—despite its deep roots in our Nation’s history and tradition. Governing precedent thus requires us to rule against the countless small businesses, like Plaintiff here, crippled by shutdown mandates imposed by public officials in response to the COVID-19 pandemic. Cases like this nevertheless raise the question: If we’re going to recognize various unenumerated rights as fundamental, why not the right to earn a living?”
- Liggins v. Duncanville, 22-10100, appeal from N.D. Tex.
- Clement, J. (Clement, Duncan, Wilson), excessive force, municipal liability
- Affirming 12(b)(6) dismissal of excessive force, intentional disregard, and municipal liability claims arising from non-fatal shooting of plaintiff after officers were ordered to enter home where he was having a mental health breakdown, without a mental health intervention professional.
- Beatty v. Lumpkin, 22-70010, appeal from E.D. Tex.
- per curiam (Richman, Elrod, Haynes), Richman, C.J., concurring in judgment; habeas corpus
- Affirming judgment denying motion to compel Texas Department of Criminal Justice to unshackle the petitioner’s hands during expert evaluations, and denying motion to stay execution.
- Despite judgment being denominated as “per curiam,” Chief Judge Richman separately concurred in the judgment. “Even assuming a federal court had authority to act at some point to require a state actor to unshackle a prisoner during an expert evaluation (an issue on which I presently take no position), 18 U.S.C. § 3599 does not indicate that it creates original jurisdiction in the federal courts to decide issues such as the terms of access to a prisoner.”
Unpublished
- Timms v. Douthit, 20-10732, appeal from N.D. Tex.
- per curiam (Higginbotham, Graves, Ho), prisoner suit
- Affirming dismissal of Texas state prisoner’s § 1983 action.
- U.S. v. Rafiq, 20-11168, appeal from N.D. Tex.
- Southwick. J. (Smith, Wiener, Southwick), habeas corpus
- Affirming denial of petition for writ of habeas corpus, finding that petitioner was not prejudiced by any potential error by his counsel.
- U.S. v. Dupre, 20-30191, appeal from E.D. La.
- per curiam (Wiener, Dennis, Duncan), Dennis, J., dissenting; criminal, First Step Act
- Affirming denial of motion for sentence reduction under the First Step Act.
- Although denominated as “per curiam,” Judge Dennis dissented, “agree[ing] with Dupre that the district court abused its discretion by impermissibly relying on bare arrest records to deny him a reduction under the First Step Act[.]”
- U.S. v. McMurray, 20-50920, appeal from W.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
- Vacating sentence in part and remanding to amend written judgment of supervised release conditions to comport with orally pronounced conditions.
- Aranda v. Lumpkin, 20-70008, appeal from S.D. Tex.
- per curiam (Haynes, Graves, Engelhardt), habeas corpus
- Affirming denial of habeas relief on Miranda claim and ineffective assistance of counsel.
- U.S. v. Alcorta, 21-10410, appeal from N.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Wright, 21-11059, appeal from N.D. Tex.
- per curiam (King, Higginson, Willett), criminal, sentencing
- Affirming 60-month sentence on revocation of supervised release.
- Gaff v. MSNI Advantage, L.P., 21-11079, appeal from N.D. Tex.
- per curiam (Stewart, Duncan, Wilson), foreclosure
- Affirming denial of motion to remand and 12(b)(6) dismissal of claims arising from foreclosure.
- Spring Branch Independent School District v. O.W., 21-20475, appeal from S.D. Tex.
- per curiam (Stewart, Willett, Oldham), appellate jurisdiction
- Dismissing for lack of appellate jurisdiction appeal from order of court remanding case to administrative officer and administratively closing case.
- English v. Aramark Corp., 21-20554, appeal from S.D. Tex.
- per curiam (Stewart, Duncan, Wilson), prisoner suit
- Dismissing for mootness appeal from denial of former Texas prisoner’s unfair trade practices claim.
- Aucoin v. Terrebonne Parish Sheriff’s Office, 21-30322, appeal from E.D. La.
- per curiam (Davis, Duncan, Engelhardt), prisoner suit
- Affirming in part and dismissing appeal in part of dismissal of Louisiana state prisoner’s § 1983 claim.
- U.S. v. Boyet, 21-30690, appeal from E.D. La.
- per curiam (Smith, Dennis, Southwick), criminal, sentencing
- Dismissing appeal of 210-month sentence for distributing child pornography, pursuant to appeal waiver.
- Richardson v. Lumpkin, 21-50049, appeal from W.D. Tex.
- per curiam (Stewart, Duncan, Wilson), prisoner suit
- Affirming dismissal of Texas prisoner’s § 1983 claim.
- U.S. v. Carrasco, 21-50866, appeal from W.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal, sentencing
- Affirming sentence on conviction of conspiracy to possess with intent to distribute 500 grams of more of cocaine.
- Star v. Mayorkas, 21-50963, appeal from W.D. Tex.
- per curiam (King, Haynes, Oldham), immigration
- Dismissing as frivolous appeal from dismissal without prejudice of complaint challenging denial of naturalization application.
- U.S. v. Dominguez-Resendiz, 21-51201, c/w 21-51202, appeal from W.D. Tex.
- per curiam (Stewart, Duncan, Wilson), criminal, sentencing
- Affirming conviction and sentence for illegal reentry and revocation of supervised release.
- Anoumbissi v. Garland, 21-60839, petition for review of BIA order
- per curiam (Barksdale, Higginson, Ho), immigration
- Dismissing in part and denying in part Cameroonian citizen’s petition for review of BIA order dismissing appeal of IJ’s credibility determination and denial of application for asylum, withholding of removal, and relief under the CAT.
- Alvear v. Garland, 21-60954, petition for review of BIA order
- per curiam (King, Higginson, Willett), immigration
- Denying Mexican citizens’ petition for review of BIA order affirming denial of application for asylum and withholding of removal.
- Ramirez v. Garland, 21-60964, petition for review of BIA order
- per curiam (Smith, Dennis, Southwick), immigration
- Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order affirming IJ’s denial of withholding of removal and protection under the CAT.
- U.S. v. White, 22-10042, appeal from N.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal, sentencing
- Granting summary affirmance of conviction and 360-month sentence for production of child pornography.
- U.S. v. Smith, 22-10202, appeal from N.D. Tex.
- per curiam (Smith, Dennis, Southwick), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Zubia, 22-10221, appeal from N.D. Tex.
- per curiam (Smith, Dennis, Southwick), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Alvarez, 22-10233, appeal from N.D. Tex.
- per curiam (Davis, Graves, Duncan), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Yates, 22-10343, appeal from N.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Saldivar-Sanchez, 22-10395, appeal from N.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Olivo-Duron, 22-10496, appeal from N.D. Tex.
- per curiam (Higginbotham, Graves, Ho), criminal, sentencing
- Granting summary affirmance of conviction and sentence for illegal reentry.
- U.S. v. Delarosa, 22-10515, appeal from N.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Rodriguez, 22-10531, appeal from N.D. Tex.
- per curiam (Stewart, Duncan, Wilson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Sichanthavong v. Hernandez, 22-10694, appeal from N.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), diversity jurisdiction
- Affirming dismissal of action to enforce state-court judgment for unpaid rent, for lack of diversity jurisdiction.
- Carmona v. DeJoy, 22-20064, appeal from S.D. Tex.
- per curiam (Davis, Duncan, Engelhardt), employment discrimination
- Affirming dismissal of sex discrimination and failure-to-accommodate claims against employer.
- U.S. v. Okulaja, 22-20077, appeal from S.D. Tex.
- per curiam (Smith, Dennis, Southwick), criminal, sentencing
- Remanding for reconsideration of sentence for two counts of false use of a passport.
- Tuttle v. Sepolio, 22-20279, appeal from S.D. Tex.
- per curiam (Richman, Elrod, Oldham), qualified immunity
- Remanding to district court to rule on officer defendants’ motions to dismiss for qualified immunity.
- U.S. v. Eugene, 22-30148, appeal from E.D. La.
- per curiam (Stewart, Duncan, Wilson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Williams, 22-30292, appeal from W.D. La.
- per curiam (Stewart, Duncan, Wilson), criminal, sentencing
- Affirming 74-month sentence on conviction of possession of a firearm not registered to the defendant.
- Davis. v. Richardson, 22-30298, appeal from W.D. La.
- per curiam (Davis, Duncan, Engelhardt), § 1983
- Affirming summary judgment dismissal of constitutional claims arising from arrest of plaintiff.
- U.S. v. Armas-Lopez, 22-40026, appeal from E.D. Tex.
- per curiam (Stewart, Duncan, Wilson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Salazar, 22-40213, appeal from S.D. Tex.
- per curiam (Smith, Dennis, Southwick), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Bryan v. Cano, 22-50035, appeal from W.D. Tex.
- per curiam (Jones, Southwick, Ho), COVID-19
- Affirming summary judgment dismissing claim against county judge arising from shutting down of hotel for a month during the pandemic.
- U.S. v. South, 22-50041, appeal from W.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
- Affirming consecutive nature of within-Guidelines sentences on conviction of multiple counts.
- U.S. v. Wiebe-Neudorf, 22-50072, appeal from W.D. Tex.
- per curiam (Davis, Smith, Dennis), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Villalobos-Franco, 22-50208, c/w 22-50209, appeal from W.D. Tex.
- per curiam (Smith, Wiener, Elrod), criminal, sentencing
- Affirming conviction and sentence for illegal reentry and revocation of supervised release.
- Merkle v. Thomas, 22-50216, appeal from W.D. Tex.
- per curiam (Higginbotham, Graves, Ho), appellate jurisdiction
- Dismissing bankruptcy appeal for lack of appellate jurisdiction.
- U.S. v. Romero, 22-50309, appeal from W.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Ellis, 22-50425, appeal from W.D. Tex.
- per curiam (Smith, Wiener, Elrod), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Castro-Diaz, 22-50431, appeal from W.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
- Affirming 48-month sentence on conviction of illegal reentry.
- Evans v. Internal Revenue Service, 22-50509, appeal from W.D. Tex.
- per curiam (Elrod, Graves, Ho), prisoner suit
- Dismissing as frivolous appeal of denial of motion for IFP status.
- U.S. v. Stabler, 22-60005, appeal from S.D. Miss.
- per curiam (Stewart, Willett, Oldham), criminal, sentencing
- Affirming 120–month sentence for conviction of possession of a firearm by a felon.
- Alvarez-Flores v. Garland, 22-60021, petition for review of BIA order
- per curiam (Higginbotham, Graves, Ho), immigration
- Dismissing Mexican citizen’s petition for review of BIA order affirming IJ order denying application for cancellation of removal.
- Nevarez v. Garland, 22-60113, petition for review of BIA order
- per curiam (Stewart, Duncan, Wilson), immigration
- Dismissing Mexican citizen’s petition for review of BIA order affirming IJ’s denial of application for cancellation of removal.
- Holden v. Reiser, 22-60148, appeal from S.D. Miss.
- per curiam (Stewart, Duncan, Wilson), habeas corpus
- Affirming denial of § 2241 petition for lack of jurisdiction.
Take the Fifth 