November 15, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Davis, 21-10996, appeal from N.D. Tex.
    • Duncan, J. (Clement, Duncan, Wilson), criminal, sentencing, forfeiture
    • Affirming conviction of numerous wire-fraud and money-laundering charges arising from fraud to induce Department of Veterans Affairs to pay over $71 million in GI-Bill funds to defendant’s trade school; and affirming sentence of 235 months and restitution to the VA of $65.2 million; but vacating a forfeiture order of $72 million and remanding for further proceedings.
    • The Court held that the seven wire-fraud counts and the money-laundering counts were sufficiently supported by the evidence.
    • The Court held that the superseding indictment was not improper, in that it gave the defendant “adequate notice about the underlying wire fraud that served as the basis for the money-laundering charges.”
    • The Court held that the wire-fraud instructions to the jury did not act as a constructive amendment of the indictment, and that the district court did not err in its money-laundering instructions.
    • The Court held that the testimony of a VA auditor was not impermissible expert testimony, that the calculations she conducted “relied on basic math,” and did not require any “particularized expertise.”
    • The Court then found no abuse of discretion in the restitution award, nor in the prison sentence.
    • The Court, however, found that the district court applied the wrong definition of “proceeds” in calculating the forfeiture amount; that the defendant should have been allowed to deduct from the amount of money acquired the direct costs incurred in providing the training.

Unpublished

  • Seaton v. Goodwin, 20-30254, appeal from W.D. La.
    • per curiam (King, Higginson, Willett), habeas corpus
    • Affirming denial of § 2254 petition.
  • U.S. v. Mendoza-Flores, 21-10984, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, guilty plea
    • Affirming conviction of prohibited possession of a firearm and possession of methamphetamine with intent to distribute, finding that guilty plea was not involuntary.
  • T & C Devine, Ltd. v. Stericycle, Inc., 21-20310, appeal from S.D. Tex.
    • Higginson, J. (Higginbotham, Southwick, Higginson), breach of contract
    • Affirming summary judgment dismissal of plaintiff’s breach of contract suit, on the basis that plaintiff’s consequential damages were not foreseeable.
  • Wellman v. HEB Grocery Co., 21-20660, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willett), employment discrimination
    • Affirming judgment on the pleadings dismissing plaintiff’s employment discrimination claims.
  • U.S. v. Loya, 21-40756, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming conviction and 360-month sentence for possession with intent to distribute methamphetamine and possession of a firearm after a felony conviction.
  • U.S. v. Nunley, 21-50572, appeal from W.D. Tex.
    • Higginson, J. (Higginbotham, Southwick, Higginson), criminal, sentencing, supervised release
    • Vacating supervised release terms of lifetime prohibition on use of computers, electronics, and the Internet, and remanding for limited purpose of resentencing the terms of supervised release to follow the 135-month imprisonment on conviction of possessing child pornography.
  • Ray v. Recovery Healthcare Corp., 22-10303, appeal from N.D. Tex.
    • per curiam (Stewart, Willett, Oldham), § 1983
    • Affirming dismissal of parolee’s § 1983 claims arising from allegedly faulty ankle monitor, as barred under Heck v. Murphy.