Designated for publication
- U.S. v. Nazerzadeh, 22-20238, appeal from S.D. Tex.
- Elrod, J. (King, Smith, Elrod), criminal, sex offender registration
- Reversing order granting request to terminate sex offender registration obligation.
- The Court held that “the unambiguous language of the Sex Offender Registration and Notification Act deems Nazerzadeh a tier II sex offender, and … that status demands that his registration continues.”
- U.S. v. Buendia, 22-50285, c/w 22-50286, appeal from W.D. Tex.
- Graves, J. (Higginbotham, Graves, Douglas), criminal, sentencing
- Affirming application of two-level sentencing enhancement for involuntarily detaining a migrant through threat or coercion, in sentencing for conviction of conspiring to transport and transporting undocumented immigrants resulting in serious bodily injury or death.
- The Court held that the conceded factual basis–that one of the immigrants in the defendant’s car asked him to stop after the high-speed pursuit began and that the defendant told him to “shut up and stay quiet”–when combined with the actions in the moment did not equate to either threat or coercion. However, the Court held that the error did not rise to plain error because the Court’s conclusion as to error “required a careful parsing of all the relevant authorities, including the sentencing guidelines and applicable decisions.”
- Discover Property & Casualty Insurance Co. v. Blue Bell Creameries USA, Inc., 22-50842, appeal from W.D. Tex.
- Elrod, J. (King, Smith, Elrod), insurance
- Affirming summary judgment in favor of insurers in coverage dispute regarding whether an underlying shareholder suit alleged an “occurrence” or sought “damages because of bodily injury,” arising from a lysteria outbreak and shutdown of the Blue Bell factories and the attendant financial losses.
- The Court first held, in disagreement with the district court, that the officers and directors were additional insureds, where the policy provided that they would be so when sued for actions “with respect to their duties.” Though the underlying lawsuit alleged that they had acted in breach of their duties to the company, the Court held that “duties” in the policy more broadly meant their “job” or “role” rather than specific fiduciary duties. “With this distinction in mind, it is possible that a director or officer breached his fiduciary duty (i.e., legal obligation) while still acting with respect to his duties (i.e., role) as a director or officer of the corporation.”
- The Court then held, however, that the allegations in the underlying shareholder suit against the officers and directors did not constitute an “occurrence” or “accident,” because the alleged acts of the officers and directors were intentional acts from which it was foreseeable that the alleged financial harm would ensue.
- The Court then made an Erie guess that, under Texas law, the underlying suit’s allegations of financial harm to the company were attributable “to bodily injury,” even though the illness of Blue Bell customers from the lysteria contamination also was a result of the alleged actions. “The shareholder complaint seeks damages to compensate for Blue Bell’s economic loss caused by its directors’ and officers’ breach of fiduciary duties. It does not seek to recover any damages on behalf of customers who may have suffered ‘bodily injury’ from the Lysteria outbreak.”
Unpublished
- U.S. v. Guidry, 21-50365, appeal from W.D. Tex.
- per curiam (Graves, Higginson, Douglas), habeas corpus
- Affirming denial of successive habeas petition.
- U.S. v. Modica, 22-11147, appeal from N.D. Tex.
- per curiam (King, Haynes, Graves), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Campos-Ochoa, 22-20490, appeal from S.D. Tex.
- per curiam (King, Higginson, Willett), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Smith v. Hooper, 22-30392, appeal from E.D. La.
- per curiam (Barksdale, Elrod, Haynes), habeas corpus
- Affirming denial of § 2254 petition.
- U.S. v. Bazan, 22-40549, appeal from S.D. Tex.
- per curiam (Wiener, Elrod, Engelhardt), criminal, compassionate release
- Affirming denial of motion for compassionate release.
- U.S. v. Menendez, 22-50314, appeal from W.D. Tex.
- per curiam (Haynes, Engelhardt, Saldaña, by designation), criminal, sentencing
- Affirming sentence enhancement on conviction of possession of a stolen firearm, for knowingly victimizing a government officer or employee.
- U.S. v. Pando, 22-50714, appeal from W.D. Tex.
- per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
- Affirming refusal to apply mitigating-role adjustment to sentencing level in sentence for conviction for conspiracy to possess with intent to distribute, and distribute, five grams or more of methamphetamine.
- Theodore v. Garland, 22-60410, petition for review of BIA order
- per curiam (Higginbotham, Graves, Douglas), immigration
- Dismissing Haitian citizen’s petition to review IJ’s negative reasonable fear and adverse credibility findings.
- Alvarez v. Garland, 22-60528, petition for review of BIA order
- per curiam (Wiener, Elrod, Engelhardt), immigration
- Denying Salvadoran citizens’ petition for review of BIA order dismissing their appeal from the Immigration Judge’s denial of their application for asylum and withholding of removal.
- U.S. v. Wagner, 22-60599, appeal from N.D. Miss.
- per curiam (Stewart, Dennis, Willett), criminal, sentencing
- Affirming 240-month sentence on conviction of bank robbery.
- U.S. v. Sparkman, 23-10116, appeal from N.D. Tex.
- per curiam (King, Higginson, Willett), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- DeLeon v. Nueces County, 23-40004, appeal from S.D. Tex.
- per curiam (Clement, Southwick, Engelhardt), § 1983, municipal liability
- Affirming dismissal of claims for Monell liability, excessive force, failure to train, and failure to intervene.
- U.S. v. Quintana-Reyes, 23-50016, appeal from W.D. Tex.
- per curiam (King, Higginson, Willett), criminal, sentencing
- Affirming conviction and sentence for illegal reentry.
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