February 27, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., 17-20545, appeal from S.D. Tex.
    • per curiam (en banc Court); Clean Air Act, standing
    • Ordering en banc rehearing, and vacating panel opinions in matter from July 29, 2020 (968 F.3d 357; Davis, Costa, Oldham; opinion by Costa, J.; dissent in part by Oldham, J.) and August 30, 2022 (47 F.4th 408; Davis, Costa, Oldham; opinion by Costa, J.; dissent by Oldham, J.). At issue is the traceability element of the standing analysis for citizen suits under the Clean Air Act.
  • Crane v. City of Arlington, 21-10644, appeal from N.D. Tex.
    • per curiam (voting against en banc rehearing: Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Engelhardt, Douglas; voting for en banc rehearing: Richman, Jones, Smith, Duncan, Oldham, Wilson); Ho, J., concurring in denial of en banc rehearing; Oldham, J., dissenting from denial of en banc rehearing (joined by Jones, Smith, Duncan, Wilson); qualified immunity
    • Denying en banc rehearing in qualified immunity case.
    • Judge Ho concurred in the denial of en banc rehearing, noting that he voted against rehearing merely because he had concluded that it was futile to address what he sees as the en banc Court’s inconsistencies in granting qualified immunity to government officials and police officers who are violating citizens’ clearly established rights while denying qualified immunity to police officers who are engaged in split-second decisionmaking about protecting the public. “I have no desire to tilt at windmills. En banc rehearing can be taxing on our court, but well worth the effort–so long as there’s a genuine opportunity to advance the rule of law. But I see no hope of advancing the cause here. Rehearing this case en banc would be futile. It doesn’t matter than I fully agree with the dissent. Seven votes (the six dissenters and me) do not a majority make on our en banc court.”
    • Judge Oldham dissented from denial of rehearing, urging that the panel opinion’s use of the obvious-case exception in a split-second, excessive-force case swallowed the rule from Mullenix v. Luna, 577 U.S. 7 (2015). “[B]y refusing to rehear this case and others like it, we sow the seeds of uncertainty in our precedents–which grow into a briar patch of conflicting rules, ensnaring district courts and litigants alike.”
  • U.S. v. Alfred, 21-10658, appeal from N.D. Tex.
    • Richman, C.J. (Richman, Elrod, Oldham), criminal, restitution, guilty plea
    • Dismissing as waived by the appeal-waiver in defendant’s guilty plea his appeal from the $61,500 restitution award to seven victims depicted in the child sexual abuse material that was the subject of defendant’s conviction of transportation of child sexual abuse material.
  • U.S. v. Hagen, 21-11273, c/w 21-11279, appeal from N.D. Tex.
    • Higginson, J. (Higginbotham, Southwick, Higginson), criminal, sentencing, restitution
    • Affirming convictions of conspiracy to defraud the United States and to pay and receive health care kickbacks, and conspiracy to commit money laundering; 151-month sentences; and restitution order for $27,104,359.
    • The Court held that the district court did not abuse its discretion in excluding testimony from a witness where that testimony was irrelevant and “needlessly cumulative” with other testimony.
    • The Court held that the defendants did not put forth sufficient evidence to warrant the district court instructing the jury as to a safe-harbor defense to the Anti-Kickback Scheme violations.
    • The Court held that the defendants’ challenge to the imposition of a two-level sentencing enhancement for sophisticated money laundering was meritless.
    • The Court held that a categorical approach to application of the Mandatory Victims Restitution Act to find that the defendants’ crimes of conviction were not crimes against property would be inappropriate and out of line with other circuits’ treatment of the question.
  • Paymentech, L.L.C. v. Landry’s Inc., 21-20447, appeal from S.D. Tex.
    • Duncan, J. (Higginbotham, Duncan, Engelhardt), breach of contract, indemnification, subrogation
    • Affirming dismissal of merchant’s third-party complaints against credit card companies and summary judgment in favor of bank/acquirer in claims arising from data-theft of credit card information from merchant’s databases; remanding for calculation of pre-judgment interest.
  • Chapa v. Garland, 21-60039, petition for review of BIA order
    • Oldham, J. (Richman, Elrod, Oldham), immigration
    • Dismissing for lack of jurisdiction Mexican citizen’s petition for review of BIA order dismissing appeal and denying motion to reconsider dismissal of appeal of IJ’s denial of application for cancellation of removal.
    • The Court held that Congress did not grant the judiciary with “jurisdiction to review the BIA’s purely discretionary decision to deny cancellation.”
    • The Court also held that it did not have jurisdiction to resolve the petitioner’s argument that the BIA acted ultra vires when it allowed a temporary board member to sign the dismissal of his appeal after that board member’s six-month term had expired.
  • Zamaro-Silverio v. Garland, 21-60324, petition for review of BIA order
    • Smith, J. (Smith, Clement, Wilson), immigration
    • Granting Mexican citizen’s petition for review of BIA order denying cancellation of removal and voluntary departure, vacating BIA’s order, and remanding for determination of whether petitioner’s conviction in a hit-and-run was a conviction of a crime involving moral turpitude.
  • Mexican Gulf Fishing Co. v. U.S. Department of Commerce, 22-30105, appeal from E.D. La.
    • Elrod, J. (Richman, Elrod, Oldham), Oldham, J., concurring in part; administrative law, Administrative Procedure Act
    • Reversing judgment of the district court, and rendering judgment that Department of Commerce regulation requiring charter-boat owners to install an onboard vessel-monitoring system transmitting the boat’s GPS coordinates to the government at all times, whether the boat is being used for commercial or personal purposes, was promulgated in a manner that violated the APA and “very likely violated the Fourth Amendment.”
    • The regulation at issue was promulgated pursuant to the Magnuson-Stevens Fishery Conservation and Management Act of 1976, and was intended to ensure compliance of charter-boat owners who provided recreational-fishing charter services.
    • Employing the Chevron deference rubric, the Court held that the GPS regulation was outside the scope of the Magnuson-Stevens Act. While the Court noted that, “[t]o be sure, Chevron has become something of the-precedent-who-must-not-be-named–left unmentioned by the Supreme Court in two recent decisions addressing the reasonableness of agency action,” and that many jurists “have questioned Chevron‘s consistency with our duty to say what the law is,” the Court held that it would “name Chevron, and apply its precedent–until and unless it is overruled by our highest Court.” Because the government was unable to show that the 24-hour GPS tracking is “a device [that] facilitates the enforcement of the Magnuson-Stevens Act,” the Court held that the requirement was not authorized by the “equipment” provision of 16 U.S.C. § 1853(b)(4). The Court noted that all of the same information is already provided by charter-boat operators in required reporting, and that the government failed to show that operators failed to properly make those reports. “The data the Government demands does not communicate the location or duration of fishing, nor does it communicate the number and type of fish caught, or the equipment used to catch those fish. See 16 U.S.C. § 1853(a)(5). It only communicates a particular charter boat’s exact location. Because that information does not further the enforcement of any provision of the Magnuson-Stevens Act, and based on the record before us, a VMS device is not ‘equipment’ whose use the Government may mandate.”
    • The Court also held that the Magnuson-Stevens Act’s two “necessary and appropriate” catch-all provisions did not authorize the GPS requirement, holding that those requirements “at a minimum require[] that its benefits reasonably outweigh its costs.”
    • The Court then held that, even if, arguendo, the Act were ambiguous as to its scope, it must still construe the provisions against authorizing the regulation “because to do otherwise would raise grave constitutional concerns.” The Court held, “To begin, the requirement that charter boats transmit their GPS location to the Government appears to be a search, and no warrant authorizes that search.” The Court rejected the appellants’ argument that a closely-regulated-industry exception to the warrant requirement could only apply to industries that pose a clear and significant risk to the public welfare, but agreed with the appellants that the district court conducted its closely-regulated-industry analysis at too high a level of generalization when it examined the regulation of the commercial fishing industry rather than the charter boat fishing industry. “[F]ederal statutes and regulations distinguish between fishing and charter-boat fishing, as well as between commercial and recreational fishing.”
    • The Court concluded, “Ultimately, we need not address the merits of this [Constitutional] question because, as explained above, the requirement violates the APA for other, non-constitutional reasons. But to the extent that it is ambiguous whether the provisions at issue should be accorded the broad reading advanced by the Government, our interpretation is further supported by the obligation to construe texts to avoid serious constitutional problems.”
    • The Court also held that the GPS regulation was arbitrary and capricious because the agency failed to take into account and address public comments regarding the Fourth Amendment concerns, and because the rule-making failed to take into account the costs for the charter-boat industry of implementing the GPS requirement.
    • Finally, the Court held that a business-information requirement in the Final Rule was invalid because it was beyond the scope of information-gathering that was included in the Proposed Rule.
    • Judge Oldham concurred in part, joining the majority “except as to its invocation of Chevron,” noting that “it’s unclear how ‘the Lord Voldemort of administrative law’ comports with our legal history and tradition.”

Unpublished

  • U.S. v. Washington, 21-30339, appeal from W.D. La.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Affirming 120-month sentence on conviction of conspiracy to distribute methamphetamine and to possess methamphetamine with the intent to distribute it.
  • U.S. v. Bah, 21-40712, appeal from S.D. Tex.
    • per curiam (Higginbotham, Duncan, Engelhardt), criminal, sentencing
    • Affirming 300-month sentence on conviction of armed bank robbery while endangering another’s life by the use of a firearm and one count of using, carrying, and discharging a firearm in relation to a crime of violence.
  • U.S. v. Pond, 21-51232, appeal from W.D. Tex.
    • per curiam (Davis, Haynes, Graves), criminal, sentencing
    • Affirming 12-month sentence on conviction of conspiracy to transport illegal noncitizens.
  • U.S. v. Spell, 21-60878, appeal from S.D. Miss.
    • per curiam (Jones, Smith, Graves), criminal, guilty plea
    • Dismissing appeal of sentence and restitution award on conviction of sexual exploitation of minors, based on appeal-waiver in guilty plea.
  • Hernandez-Guerrero v. Garland, 21-60929, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying in part and dismissing in part Mexican 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.
  • Oli v. Garland, 21-60939, petition for review of BIA order
    • per curiam (Smith, Dennis, Southwick), immigration
    • Denying Nepali citizen’s petition for review of BIA order dismissing appeal from IJ credibility finding and denial of application for asylum, withholding of removal, and protection under the CAT.
  • U.S. v. Rudd, 22-10243, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Reyna, 22-10375, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Affirming conviction of possessing a firearm after a felony conviction.
  • U.S. v. Ortega-Torres, 22-10550, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Poff v. Carr, 22-10623, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), habeas corpus
    • Affirming dismissal of § 2241 petition.
  • U.S. v. Kadlec, 22-10642, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Alexander, 22-10658, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • U.S. v. Jackson, 22-10744, appeal from N.D. Tex.
    • per curiam (Jolly, Oldham, Wilson), criminal, sentencing
    • Affirming conviction of robbery under the Hobbs Act and brandishing a firearm in furtherance of a crime of violence, and consecutive 78- and 84-month sentences.
  • U.S. v. Hemphill, 22-10809, appeal from N.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kettle, 22-10817, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Buchanan v. Barnes, 22-20037, appeal from S.D. Tex.
    • Jolly, J. (Jolly, Oldham, Wilson), prisoner suit
    • Affirming dismissal of pretrial detainee’s § 1983 complaint.
  • Walker v. Harmony Public Schools, 22-20260, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), employment discrimination
    • Affirming summary judgment dismissal of employment discrimination action.
  • U.S. v. Engeling, 22-20285, appeal from S.D. Tex.
    • per curiam (Jolly, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Thompson, 22-30276, appeal from W.D. La.
    • per curiam (Jolly, Jones, Ho), criminal, search and seizure, sentencing
    • Affirming 270-month sentence and conviction of possession with intent to distribute fentanyl and possession of a firearm in furtherance of drug trafficking, and upholding denial of motion to suppress.
  • U.S. v. Tilford, 22-30283, appeal from M.D. La.
    • per curiam (Barksdale, Higginson, Ho), criminal, search and seizure
    • Affirming conviction of being a felon in possession of a firearm, and upholding denial of motion to suppress.
  • U.S. v. Mendoza-Alcasar, 22-40179, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Vacating in part sentence on conviction of possessing with intent to distribute five kilograms or more of cocaine and being an alien in unlawful possession of a firearm, and remanding for purpose of conforming written sentence to oral pronouncement with regard to supervised release conditions.
  • Schlumberger Technology Corp. v. Carolina Casualty Insurance Co., 22-40271, appeal from S.D. Tex.
    • per curiam (Higginbotham, Duncan, Engelhardt), insurance
    • Reversing district court’s judgment that insurer was obligated to defend insured in underlying state-court negligence lawsuit, and rendering in favor of insurer.
  • U.S. v. Munoz-Garcia, 22-40432, appeal from S.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jimenez, 22-40485, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mendez, 22-40506, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lopez-Chavez, 22-40547, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Affirming conviction of possessing with intent to distribute 500 grams or more of cocaine.
  • U.S. v. Zamora-Hernandez, 22-40585, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mendez, 22-40586, appeal from E.D. Tex.
    • per curiam (Smith, Wiener, Elrod), criminal, nunc pro tunc
    • Dismissing appeal of denial of nunc pro tunc motion for sentence reduction.
  • Shafer v. Muro, 22-40594, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), prisoner suit
    • Dismissing for lack of jurisdiction appeal from dismissal of Texas state prisoner’s § 1983 complaint.
  • Bonner v. Pearcy, 22-40757, appeal from S.D. Tex.
    • per curiam (Haynes, Oldham, Douglas), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 complaint.
  • U.S. v. Rodriguez, 22-50018, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 120-month sentence on conviction of being a felon in possession of a firearm.
  • U.S. v. Regalado, 22-50243, appeal from W.D. Tex.
    • per curiam (Jones, Willett, Douglas), criminal, sentencing
    • Affirming 15-month sentence on special conditions of supervised release term upon revocation of prior sentence of supervised release.
  • U.S. v. Skaggs, 22-50296, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 8-month sentence on revocation of supervised release.
  • U.S. v. Nevarez-Zamudio, 22-50374, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Alaniz, 22-50418, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 200-month sentence on conviction of conspiracy to possess 50 grams or more of methamphetamine actual with intent to distribute.
  • Carlos v. VanNess, 22-50445, appeal from W.D. Tex.
    • per curiam (Elrod, Haynes, Willett), medical malpractice
    • Affirming summary judgment dismissal of medical malpractice case against remote neuromonitoring physician.
  • U.S. v. Vasquez-Santana, 22-50459, c/w 22-50460, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. Chaparro-Barro, 22-50487, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. De La Pena, 22-50513, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Evans, 22-50590, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • U.S. v. Gallegos-Hernandez, 22-50708, c/w 22-50710, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. Rubalcaba-Capuchino, 22-50716, c/w 22-50719, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. Velazquez, 22-50806, appeal from W.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal, sentencing
    • Affirming sentence for illegal reentry.
  • U.S. v. Cardenas-Gomez, 22-50880, c/w 22-50881, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. Williams, 22-60062, appeal from S.D. Miss.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming 180-month sentence on conviction of being a felon in possession of a firearm.
  • Fernandez v. Garland, 22-60106, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying Mexican citizens’ petition for review of BIA order dismissing appeal of IJ’s denial of asylum, withholding of removal, and protection under the CAT.
  • Alvarez-De Sauceda v. Garland, 22-60140, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order denying reconsideration of its denial of a number barred motion to reopen.
  • Abrego-Esparza v. Garland, 22-60181, petition for review of BIA order
    • per curiam (Barksdale, Elrod, Haynes), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of application for asylum, withholding of removal, and protection under the CAT.
  • Marquez v. Garland, 22-60241, petition for review of BIA order
    • per curiam (Barksdale, Elrod, Haynes), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of application for withholding of removal and protection under the CAT.
  • Nolasco v. Garland, 22-60272, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Ho), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing in part and remanding in part appeal from IJ’s denial of asylum, withholding of removal, and protection under the CAT.
  • Ramos-Alanis v. Garland, 22-60326, petition for review of BIA order
    • per curiam (Barksdale, Higginson, Ho), immigration
    • Dismissing Mexican citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of applications for cancellation of removal and voluntary departure.
  • Vasquez v. Lumpkin, 22-70009, on application for COA from S.D. Tex.
    • per curiam (Haynes, Engelhardt, Wilson), habeas corpus
    • Denying COA for review of district court’s denial of Rule 60(b) motion for relief from judgment in federal habeas case.