April 6-12, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Sepulveda, 21-40574, appeal from S.D. Tex.
    • Higginson, J. (Wiener, Higginson, Wilson), criminal, sentencing, Brady violation, restitution
    • Affirming convictions of depriving two persons of their constitutional rights under color of law, arising from defendant’s sexual assault of two men while a police officer, and concurrent sentences of 12 and 360 months.
    • The Court held that withheld evidence was not material, such that there was no Brady violation.
    • The Court held that the district court did not draw an improper adverse inference from the defendant’s silence during the sentencing hearing.
    • The Court held that there was sufficient evidentiary basis to support a $10,000 restitution award to one of the victims.
  • Tobar v. Garland, 21-60875, petition for review of BIA order
    • Jolly, J. (Jolly, Haynes, Graves), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order affirming IJ’s denial of application for Temporary Protected Status on basis petitioner had not satisfied continuous physical presence requirement.
  • U.S. v. Butler, 22-20171, appeal from S.D. Tex.
    • Ho, J. (Ho, Oldham, Douglas), criminal, sentencing
    • Affirming application of two-level sentencing enhancement on conviction of sexual exploitation of a minor, holding that enhancement for “sexual contact” of “any person” includes masturbation.
  • Turtle Island Foods, S.P.C. v. Strain, 22-30236, appeal from M.D. La.
    • Clement, J. (Smith, Clement, Wilson), First Amendment
    • Reversing summary judgment in favor of manufacturer of plant-based meat substitutes, and vacating injunction against enforcement of Louisiana’s statute against misleading food labeling, rejecting plaintiff’s argument that statute violated its free speech rights.
  • Abdullah v. Paxton, 22-50315, appeal from W.D. Tex.
    • per curiam (Richman, Haynes, Graves), standing, First Amendment, Due Process
    • Affirming dismissal of public employee’s suit challenging the constitutionality of Texas Government Code § 808, which prohibits investment of public retirement funds in companies that boycott the country of Israel or otherwise engage in the boycott, divestment, and sanction movement regarding Israel’s treatment of Palestinians.
    • The Court held that the plaintiff failed to show an injury in fact.
  • Alliance for Hippocratic Medicine v. Food & Drug Administration, 23-10362, appeal from N.D. Tex.
    • per curiam (Haynes, Engelhardt, Oldham; Haynes, J., concurring only in part, as she would grant only a brief administrative stay and defer the question of stay pending appeal to the merits panel), abortion law
    • Granting in part and denying in part motion for stay pending appeal of district court’s injunction against FDA’s approval of mifepristone; and expediting merits appeal to the next available oral argument calendar.
    • The Court held that defendants were likely to prevail on the merits of their argument that the statute of limitations bars the plaintiffs’ challenge to the FDA’s initial approval of mifepristone in 2000, but that the defendants had failed to show that plaintiffs are unlikely to succeed on the merits of their alternative challenges to a series of FDA actions commencing in 2016.

Unpublished

  • U.S. v. Castro, 19-20594, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Spears v. Louisiana College, 20-30522, appeal from W.D. La.
    • per curiam (Richman, Davis, Dennis), employment discrimination
    • Reversing summary judgment dismissal of plaintiff’s age discrimination, sex discrimination, disability discrimination, and retaliation claims, and affirming summary judgment dismissal of breach of contract and defamation claims.
  • U.S. ex rel. Toledo v. HCA Holdings, Inc., 21-20620, appeal from S.D. Tex.
    • per curiam (King, Jones, Duncan), qui tam
    • Affirming summary judgment dismissal of retaliation claims brought under False Claims Act and 2013 National Defense Authorization Act against former employer and its corporate affiliate.
  • Grace v. Hooper, 21-30753, appeal from E.D. La.
    • Higginson, J. (Wiener, Higginson, Wilson), habeas corpus, Brady violation
    • Vacating district court’s grant of § 2254 petition on Brady claim, and remanding for district court to sufficiently analyze Louisiana state higher courts’ decisions on state post-conviction relief.
  • Rodriguez v. McMullen, 21-40593, appeal from S.D. Tex.
    • per curiam (Higginbotham, Smith, Engelhardt), prisoner suit
    • Affirming district court’s judgment on jury verdict in favor of defendant on Texas state prisoner’s tort claims.
  • U.S. v. Cisneros, 21-40860, appeal from S.D. Tex.
    • per curiam (King, Jones, Duncan), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Smith v. City of Bastrop, 21-51039, appeal from W.D. Tex.
    • per curiam (Richman, Ho, Engelhardt), due process, state constitutional claims
    • Affirming dismissal of plaintiffs’ substantive and procedural due process claims under the federal constitution, but vacating dismissal of claims under Texas constitution and remanding as the basis for dismissal was “not sufficiently clear to enable proper appellate review.”
  • U.S. v. Martinez-Rubio, 22-10109, appeal from N.D. Tex.
    • per curiam (Ho, Oldham, Douglas), criminal, sentencing
    • Affirming 10-year sentence on conviction of illegal reentry.
  • Holmes v. Thomson Reuters (Tax and Accounting) Inc., 22-10133, appeal from N.D. Tex.
    • per curiam (King, Jones, Duncan), Title VII, employment discrimination, Age Discrimination in Employment Act
    • Affirming summary judgment dismissal of ADEA and Title VII claims.
  • U.S. v. Woodall, 22-10745, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Lewis v. Greenwood Motor Lines, Inc., 22-10758, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), employment discrimination, Title VII, Americans with Disabilities Act
    • Affirming summary judgment dismissal of Title VII and ADA employment discrimination claims.
  • U.S. v. Hartfield, 22-10810, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Khan, 22-20313, appeal from S.D. Tex.
    • per curiam (Clement, Graves, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Addington v. Wells, 22-30220, appeal from W.D. La.
    • per curiam (Richman, King, Higginson), qualified immunity
    • Reversing denial of qualified immunity defense in claims against prison officials arising from death of plaintiffs’ father in custody.
  • U.S. v. Moore, 22-30361, appeal from E.D. La.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • De La Rosa v. King, 22-30367, appeal from E.D. La.
    • per curiam (Stewart, Dennis, Southwick), timeliness, personal tort
    • Affirming dismissal of car-accident claims as time-barred by one-year prescriptive period.
  • U.S. v. Hunt, 22-30411, appeal from M.D. La.
    • per curiam (Smith, Southwick, Douglas), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Kretser, 22-30415, appeal from W.D. La.
    • per curiam (Jolly, Oldham, Wilson), habeas corpus
    • Affirming denial of defendant’s new trial motion, construing it as a § 2255 petition.
  • U.S. v. Carreto-Cruz, 22-40161, appeal from E.D. Tex.
    • per curiam (Barksdale, Elrod, Haynes), criminal, sentencing
    • Affirming 78-month sentence on conviction of conspiracy to possess with intent to distribute and distribution of heroin; conspiracy to possess with intent to distribute and distribution of methamphetamine; and possession of with intent to distribute and distribution of heroin.
  • U.S. v. Kitchell, 22-40662, appeal from E.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Benson, 22-50132, appeal from W.D. Tex.
    • per curiam (Jolly, Oldham, Wilson), criminal, sentencing
    • Dismissing appeal of sentence on conviction of conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine and of possession of a firearm in furtherance of a drug trafficking crime.
  • U.S. v. Barton, 22-50204, appeal from W.D. Tex.
    • per curiam (King, Jones, Duncan), criminal, sentencing
    • Affirming 355-month sentence on conviction of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine.
  • U.S. v. Vesa, 22-50316, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Dismissing as barred by the appeal-waiver in guilty plea to conviction of production of child pornography the defendant’s appeal of the 360-month sentence.
  • U.S. v. Lopez, 22-50758, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 293-month sentence on conviction of conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of actual methamphetamine.
  • U.S. v. Bueno-Chavira, 22-50807, appeal from W.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • U.S. v. Peters, 22-50824, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Caulder, 22-50870, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Anderson, 22-50917, appeal from W.D. Tex.
    • per curiam (Clement, Southwick, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Villa, 22-50960, appeal from W.D. Tex.
    • per curiam (Higginbotham, Duncan, Wilson), habeas corpus
    • Dismissing as frivolous appeal from denial of Rule 33 motion construed as § 2255 petition.
  • U.S. v. Perez, 22-50981, c/w 22-51000, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Affirming conviction of illegal reentry and revocation of supervised release.
  • U.S. v. Simental-Murillo, 22-50983, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Lopez-Cristobal, 22-50985, c/w 22-50989, 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. Marquez, 22-51015, appeal from W.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, sentencing
    • Dismissing appeal of 57-month sentence on conviction of importation of five kilograms or more of cocaine and aiding and abetting, under guilty-plea appeal waiver.
  • Hernandez-Chan v. Garland, 22-60275, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying petition for review of BIA order dismissing appeal of IJ’s denial of withholding of removal and protection under the CAT.
  • Torres-Escamilla v. Garland, 22-60300, petition for review of BIA order
    • per curiam (Barksdale, Higginson, Ho), immigration
    • Dismissing in part and denying in part Honduran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of asylum, withholding of removal, and protection under the CAT.
  • Chambers v. Short, 22-60349, appeal from S.D. Miss.
    • per curiam (Higginbotham, Smith, Engelhardt), qualified immunity
    • Affirming in part and dismissing appeal in part from denial of qualified immunity.
  • Doe v. Fitch, 22-60481, appeal from S.D. Miss.
    • per curiam (Stewart, Dennis, Willett), attorneys’ fees
    • Affirming district court’s award of attorneys’ fees and costs to counsel for the Center for Constitutional Rights (“CCR”), who prevailed in a lawsuit challenging a Mississippi law requiring those convicted under the state’s Unnatural Intercourse statute to register as sex offenders.
  • U.S. v. Badger, 22-60511, appeal from N.D. Miss.
    • per curiam (Clement, Southwick, Higginson), Rule 60(b), criminal
    • Dismissing as frivolous appeal from denial of Rule 60(b) motion challenging restitution award.
  • U.S. v. Berry, 23-30036, appeal from E.D. La.
    • per curiam (Stewart, Dennis, Southwick), criminal, competency
    • Affirming district court’s order of an additional four-month period of mental health evaluation to determine competency of defendant to stand trial.