May 5-8, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Thompson v. Texas Department of Criminal Justice, 21-20241, appeal from S.D. Tex.
    • Higginbotham, J. (Higginbotham, Southwick, Willett), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claim for impeding access to medical care after the onset of stroke symptoms, upon holding that plaintiff’s claims were malpractice claims but did not allege a deprivation of constitutionally secured rights.
    • The Court held, “We conclude that Thompson’s claim arises to medical negligence, not deliberate indifference. Any officials who knew of a risk to Thompson acted on their concerns. Under the facts alleged, medical staff likely should have identified Thompson’s emergency medical issue but failed to do so.”
  • U.S. v. Richardson, 22-10697, appeal from N.D. Tex.
    • Higginson, J. (Clement, Graves, Higginson), Graves, J., dissenting in part; criminal, restitution
    • Affirming with modification a restitution award to mini mart robbed by defendant as part of sentence of defendant for Hobbs Act robbery.
    • The Court rejected the defendant’s argument that a “person” to whom restitution may be awarded under the MRVA may only be a natural person and not a business entity.
    • The Court upheld as modified the amount of restitution awarded by the district court, which included $1000 for the value of stolen money and merchandise and $4000 for the lost income from the closure of the store during the investigation. The Court modified the $4000 component to $3500 as “a better-supported estimate of lost sales.”
    • Judge Graves dissented in part, disagreeing with the majority’s finding that $3500 was a proper lost-sales restitution. He would find that the PSR supported a finding of $1,312.50 in lost sales.

Unpublished

  • Castro v. Wallace, 21-50909, appeal from W.D. Tex.
    • per curiam (Richman, Stewart, Dennis), prisoner suit
    • Affirming in part and vacating in part dismissal of Texas state prisoner’s § 1983 claims, and remanding for further proceedings.
  • U.S. v. Hutchison, 21-51188, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming sentence on conviction of possession with intent to distribute five kilograms or more of cocaine.
  • U.S. v. Crawford, 21-60755, appeal from N.D. Miss.
    • Higginson, J. (Graves, Higginson, Douglas), criminal, sentencing, sufficiency of evidence
    • Affirming conviction and 121-month sentence for two counts of selling firearms to a felon.
  • Ellis v. Clarksdale Public Utilities, 21-60885, appeal from N.D. Miss.
    • per curiam (Higginbotham, Southwick, Willett), § 1983, taking
    • Affirming summary judgment in favor of defendants on plaintiffs’ § 1983 inverse condemnation claim arising from flow of storm and sanitary sewer system effluent across plaintiffs’ property.
  • U.S. v. Martinez, 22-10649, appeal from N.D. Tex.
    • per curiam (Higginbotham, Southwick, Willett), criminal, sentencing
    • Affirming 24-month sentence on conviction of illegal reentry.
  • U.S. v. Martinez, 22-10958, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Salinas, 22-10989, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, guilty plea
    • Affirming guilty plea conviction of conspiring to possess methamphetamine with intent to distribute.
  • U.S. v. Vaughn, 22-11038, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Brooks, 22-30390, appeal from W.D. La.
    • per curiam (Elrod, Ho, Wilson), criminal, sentencing
    • Affirming 120-month sentence on conviction of being a felon in possession of a firearm.
  • Allen v. Our Lady of the Lake Hospital, Inc., 22-30546, appeal from M.D. La.
    • per curiam (Richman, Stewart, Dennis), employment discrimination, Title VII
    • Affirming summary judgment dismissal of plaintiff’s hostile work environment and constructive discharge claims.
  • U.S. v. Wilson, 22-40591, appeal from E.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, search and seizure
    • Affirming conviction of being a felon in possession of a firearm, upholding denial of motion to suppress and finding no error in district court’s refusal to instruct jury on defense of justification.
  • Edge v. TLW Energy Services, L.L.C., 22-50288, appeal from W.D. Tex.
    • per curiam (Barksdale, Southwick, Higginson), default judgment, Fair Labor Standards Act
    • Vacating district court’s sua sponte dismissal with prejudice for failure to move for default judgment within the time ordered by the court.
  • Carrasco v. Henkell, 22-50439, appeal from W.D. Tex.
    • per curiam (King, Jones, Duncan), qualified immunity
    • Reversing denial of qualified immunity for officer defendant on claim that he swore out an incomplete probable cause affidavit to arrest the plaintiff.
  • U.S. v. Hernandes, 22-50796, appeal from W.D. Tex.
    • per curiam (Smith, Southwick, Douglas), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Howell, 22-50864, appeal from W.D. Tex.
    • per curiam (Jolly, Jones, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Aparicio-Martinez, 22-50969, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Affirming 30-month sentence on conviction of illegal reentry.
  • U.S. v. Betero-Carrillo, 22-50988, c/w 22-50993, 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. Wilson, 22-60286, appeal from N.D. Miss.
    • per curiam (Higginbotham, Southwick, Willett), criminal, expert witness
    • Affirming conviction of defendant for conspiracy to possess with intent to distribute methamphetamine and marijuana, possession with intent to distribute marijuana, and possession of firearms by a felon, finding any error was harmless in district court’s failure to first qualify a law enforcement witness as an expert before allowing him to testify about the meaning of slang words used in the conspirators’ secretly recorded conversations.
  • Torres v. Garland, 22-60293, petition for review of BIA order
    • per curiam (Richman, Stewart, Dennis), Dennis, J., specially concurring; immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of motion for cancellation of removal.
    • Judge Dennis specially concurred, concurring “in the majority opinion’s assessment that binding circuit precedent requires us to conclude an alien has no liberty interest in cancellation of removal because it is a discretionary form of relief and thus also requires us to reject the Petitioner’s due process claim,” but “writ[ing] separately to explain how this precedent is unsound—as well as inconsistently applied—and should be reconsidered.”
  • Marquez v. Garland, 22-60452, petition for review of BIA order
    • per curiam (Jones, Haynes, Oldham), immigration
    • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of application for withholding of removal.
  • Duarte v. Garland, 22-60531, petition for review of BIA order
    • per curiam (Stewart, Duncan, Wilson), immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of cancellation of removal, withholding of removal, and protection under the CAT.
  • Reyes-Alvarado v. Garland, 22-60616, petition for review of BIA order
    • per curiam (Smith, Southwick, Douglas), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of application for cancellation of removal.
  • U.S. v. James, 23-50044, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, pretrial detention
    • Affirming denial of motion to reopen detention hearing.