February 1, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Sosebee, 20-11141, c/w 21-10780, appeal from N.D. Tex.
    • Higginbotham, J. (Higginbotham, Duncan, Engelhardt), criminal, sentencing, Armed Career Criminal Act, habeas corpus, mootness
    • Dismissing as moot appeal from denial of § 2255 petition challenging ACCA-enhanced sentence on prior conviction of being a felon in possession of ammunition, and affirming 15-year sentence enhanced by the ACCA upon revocation of supervised release and conviction of a new charge of being a felon in possession of ammunition.
    • The Court held that the appeal regarding the defendant’s habeas challenge to the sentence on his prior conviction was moot because he had already fully served the revocation sentence and initial term of that sentence, such that “even a favorable determination in this action will have no impact on his sentence.”
    • Holding that the defendant’s prior two state convictions were for robbery-by-threat, which Circuit precedent had deemed to be a violent felony for ACCA purposes, and adding in his prior conviction for being a felon in possession, the Court affirmed his ACCA-enhanced sentence on the new conviction for being a felon in possession.
  • U.S. v. Greer, 22-30211, appeal from W.D. La.
    • Higginson, J. (Richman, King, Higginson), criminal, sentencing, mootness
    • Vacating defendant’s 18-month sentence on revocation of supervised release (which supervised release term was part of another revocation sentence after he had violated conditions of supervised release under an original conviction for possession of child pornography), and remanding for resentencing.
    • The Court first held that the defendant’s challenges to the preliminary revocation hearing and pre-revocation detention were moot.
    • The Court then held that the district court committed “a reversible procedural error by sentencing Greer to two consecutive nine-month terms of imprisonment for violating two conditions of his supervised release.” The Court noted that, under the statute, a court may not impose a term of imprisonment for the violation of a condition of supervised release, but for the revocation of the term of supervised release.

Unpublished

  • U.S. v. Church, 20-40760, appeal from S.D. Tex.
    • per curiam (Higginson, Willett, Ho), criminal, guilty plea
    • Affirming as harmless any district court error in denying the defendant’s motion to withdraw his guilty plea.
  • Monroe v. Houston Independent School District, 21-20642, appeal from S.D. Tex.
    • per curiam (Stewart, Willett, Oldham), § 1983, attorneys’ fees
    • Affirming attorneys’ fee award to plaintiff who obtained some, but not all, of the relief sought in civil rights suit.
  • Frederick v. LeBlanc, 21-30660, appeal from M.D. La.
    • per curiam (Graves, Ho, Duncan), qualified immunity
    • Vacating district court’s denial of qualified immunity summary judgment, and remanding for district court to identify facts in the summary judgment record that plaintiff may be able to prove at trial.
  • Herrera v. Garland, 21-60120, petition for review of BIA order
    • per curiam (Jones, Ho, Wilson), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order upholding denial of application for cancellation of removal.
  • Echeverria v. Garland, 21-60181, petition for review of BIA order
    • per curiam (Richman, King, Higginson), immigration
    • Dismissing Guatemalan citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of request for cancellation of removal.
  • U.S. ex rel. Beck v. St. Joseph Health System, 22-10137, appeal from N.D. Tex.
    • per curiam (Wiener, Higginson, Wilson), qui tam, timeliness
    • Dismissing appeal from summary judgment in favor of defendants on plaintiff’s qui tam claims, on basis that notice of appeal was untimely.
  • Valero Title Inc. v. RLI Insurance Co., 22-20155, appeal from S.D. Tex.
    • per curiam (Elrod, Haynes, Willett), insurance
    • Affirming summary judgment in favor of plaintiff escrow agent on insurance coverage claim against insurer for denial of proof of loss arising from fraudulent routing number supplied to plaintiff.
  • U.S. v. Gonzalez, 22-20209, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming 100-month sentence on conviction of conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine and possession of a firearm after felony conviction.
  • U.S. v. Thompson, 22-20232, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming concurrent 90-month sentences on convictions of being a felon in possession of a firearm and possession with intent to distribute methamphetamine.
  • U.S. v. Riojas, 22-40389, appeal from E.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Shumaker v. Guzman, 22-40409, c/w 22-40496, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), CARES Act
    • Affirming denial of plaintiff’s claims against the SBA for rejection of his application for relief under the CARES Act.
  • Laborfest, L.L.C. v. City of San Antonio, 22-50038, appeal from W.D. Tex.
    • per curiam (Graves, Ho, Duncan), breach of contract, governmental immunity
    • Affirming district court’s dismissal of concert promoter’s claims against municipality as being barred by governmental immunity, and affirming denial of motion to amend complaint for an eleventh time.
  • U.S. v. Valencia, 22-50574, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, compassionate release
    • Affirming denial of motion to reconsider denial of motion for compassionate release.
  • Guardado-Guardado v. Garland, 22-60103, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Dismissing in part and denying in part petition for review of BIA order denying motion to reopen and terminate.
  • Palma v. Garland, 22-60138, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order denying motion to reopen.
  • Sanchez-Betancourt v. Garland, 22-60221, petition for review of BIA order
    • per curiam (Jolly, Jones, Ho), immigration
    • Denying Honduran citizens’ petition for review of BIA order dismissing appeal of IJ’s denial of asylum, withholding of removal, and protection under the CAT.