December 19, 2022, opinions

Designated for publication

  • U.S. v. Montemayor, 21-40162, appeal from S.D. Tex.
    • Southwick, J. (Jones, Southwick, Ho), criminal, sufficiency of evidence, search and seizure
    • Affirming in part, reversing in part, and remanding; affirming conviction of _________; reversing conviction of for insufficient evidence; and remanding for Government to elect between overlapping counts of ________.
    • The Court found no reversible error in the district court’s denial of a motion to suppress cell service location information for cell phones that the defendants declined to stipulate to ownership of, pretermitting the res nova issue of the intersection of the Fifth and Fourth Amendment issues by holding that denial of the motion to suppress did not prejudice the defendants in light of the substantial evidence in the record supporting their convictions.
    • The Court held that the conviction and consecutive sentences for two firearm discharge counts with the same conspiracy predicate was a double jeopardy violation, and remanded for the government to elect which count to dismiss.
    • The Court held that, while it was plain error for the district court to not have the jury determine the drug quantity for purposes of determining the applicable mandatory minimum sentence, that plain error was not reversible because the defendants failed to show that the fairness, integrity, or public reputation of the judicial proceedings were seriously affected.
    • On the government’s concession, the Court reversed the conviction for commission of a firearms offense in relation to a conspiracy to possess with intent to distribute a mixture of cocaine and marijuana.
  • Gebrgzabher v. Garland, 21-60223, petition for review of BIA order
    • Willett, J. (Graves, Willett, Engelhardt), immigration
    • Denying Eritrean citizen’s petition for review of BIA order affirming denial of asylum and withholding of removal on basis that petitioner, while forcefully conscripted into Eritrean military, worked a military highway checkpoint where he impeded escape at the checkpoint and thus was found to have assisted in the persecution of captives, triggering the persecution bar to immigration relief.
    • The Court held that a petition need not have engaged in the commission of physical atrocities himself to be found to have assisted or participated in persecution. Even while unarmed, as a guard of the prisoners at the checkpoint his actions, the Court held, were sufficient participation in preventing their escape.
  • Louisiana v. Biden, 22-30019, appeal from W.D. La.
    • Engelhardt, J. (Graves, Willett, Engelhardt), Graves, J., dissenting; COVID-19
    • Affirming preliminary injunction enjoining enforcement of executive action requiring that federal government contractors ensure that their employees are fully vaccinated against COVID-19.
    • The Court held that Presidential authority under the Procurement Act has historically been subject only to a “sufficiently close nexus” requirement for the relatedness of the executive order and the Act’s values of economy and efficiency. “The ‘close nexus’ test combined with appropriate deference to presidential determinations leaves the President with nearly unlimited authority to introduce requirements into federal contracts.” The Court, therefore, held that one extra-statutory limit on presidential authority under the Procurement Act is the Major Questions Doctrine, that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”
    • Applying the MQD, the Court held that “this federal contractor mandate is neither a straight-forward nor predictable example of procurement regulations authorized by Congress to promote ‘economy and efficiency.'” The Court distinguished this mandate from other exercises of Procurement Act authority in that it did not seek to govern conduct of employers, but the individual healthcare decisions of federal contractors’ employees.
    • Judge Graves dissented, and would find that the federal contractor mandate is consistent with other orders that have been found to be permissible under the Procurement Act, particularly the requirement that federal contractors participate in the E-Verify system to ensure the immigration status of employees.


  • Sivalingam v. Garland, 20-60934, petition for review of BIA order
    • per curiam (Jones, Southwick, Ho), immigration
    • Denying Sri Lankan citizen’s petition for review of BIA order regarding credibility determination, denial of a continuance to gather more evidence, absence of corroboration for claims, and failure to provide a better translator for understanding of the proceedings.
  • Tomasella v. Kaufman County Child Support, 22-10760, appeal from N.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), § 1983
    • Affirming dismissal of civil rights complaint arising from child support proceedings.
  • Zavala v. Garland, 22-60122, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order affirming IJ’s denial of application for asylum, withholding of removal, and protection under the CAT.