Take the Fifth

Designated for publication

• Boyd v. McNamara, 20-50945, appeal from W.D. Tex.
  • Elrod, J. (Elrod, Ho, Oldham), Oldham, J., dissenting in part; qualified immunity
  • Reversing summary judgment in favor of defendant jail officials on qualified immunity grounds, and remanding for further proceedings.
  • The plaintiff’s claims arise from being tasered while a pretrial detainee, when he alleges he was being fully compliant with the jail officials. The Court found, “Close inspection of the video evidence supports Boyd’s contention that he was nonthreatening and compliant throughout his interaction with Johnson. Starting with the question of whether Boyd posed a threat, nothing about Boyd’s posture or movements suggest that Boyd was or was about to become dangerous. To the contrary, Boyd stood with his back to Johnson and his hands in the handcuffing position for a full four seconds before Johnson deployed his taser. Boyd’s earlier actions likewise support the conclusion that Boyd was not a security risk. … We also note that this was not a situation where an officer arrived at the scene with little or no information and had to make a split-second decision.” (Internal quotation marks and citation omitted).
  • The Court held that prior precedent “put [the officer] on notice that he could not constitutionally fire a taser at a non-threatening, compliant subject. They likewise show that Boyd’s act of jerking his hand away from Johnson, yelling in apparent pain, and turning his head did not, standing alone, constitute the kind of threatening behavior or belligerence that justifies the use of force.” The Court made clear that its own precedent could render a constitutional violation “clearly established” for qualified immunity purposes, that Supreme Court precedent was not required.
  • The Court reversed and remanded the summary judgment as to all claims except the plaintiff’s deliberate indifference claim.
  • Judge Oldham dissented in part, dissenting on the excessive force claim. He would look to Supreme Court precedent for “clearly established” violations. Also, he is “increasingly concerned that our excessive-force cases are governed by Justice Stewart’s unsatisfying standard of ‘I know it when I see it.'” He concluded, “I think it is unwise to give a panel of three judges the power to set clearly established law and thereby bind every law enforcement officer in three States, governing every conceivable emergency situation in every community from El Paso to Pascagoula. And I think it is particularly unwise when the underlying legal standard is so open-ended and our precedents are so contradictory.”

• U.S. v. Vargas, 21-20140, appeal from S.D. Tex.
  • Duncan, J. (joined in full by Richman, Smith, Southwick, Engelhardt, JJ.; joined as to all but part III(C) by Jones, Oldham, JJ.; joined as to all but parts III(C) and III(D) by Higginson, Ho, JJ.; joined as to all but part III(D) by Willett, J.; joined as to all but parts III(A) and III(D) by Wilson, J.); Oldham, J., concurring in part (joined by Jones, J.); Elrod, J., dissenting in part and dissenting from the judgment (joined by Stewart, Haynes, Graves, Wilson, Douglas, JJ.); criminal, sentencing
  • Affirming 188-month sentence enhanced for multiple drug crimes as a career offender under Guideline § 4B1.1, holding that “controlled substance offense” includes drug conspiracies, even though conspiracies is not included in the Guidelines definition but only in the guidelines commentary. According to the commentary for § 4B1.1, the definition of “controlled substance offense” “include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” § 4B1.2 cmt. n.1.
  • In analysis joined by 10 judges, the Court held that the U.S. Supreme Court’s decision in Stinson v. United States, 508 U.S. 36 (1993), controls, directing that guidelines commentary be treated as authoritative “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” The Court held that Stinson was not modified by Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which would require that all traditional tools of statutory interpretation be exhausted and the regulation at issue be found to be truly ambiguous before deferring to an agency’s own interpretation of its regulation. The Court held, “nothing in Kisor suggests it meant to modify Stinson. Nowhere does Kisor mention the Sentencing Guidelines, the Commission, or the commentary.” The Court noted that “the Sentencing Commission and administrative agencies are different animals.” The Court held that the inclusion of Stinson in a string-cite in a footnote of cases that had relied on Seminole Rock, a prior agency-deference opinion, “signals no intention to change Stinson,” was “merely descriptive and is not even joined by a Court majority.” The Court also held that Stinson only borrowed in part from Seminole Rock, such that any modification of Seminole Rock by Kisor was not also a modification of Stinson.
  • In analysis joined by 11 judges, the Court held that the commentary guidelines on § 4B1.1 should be deferred to under the Stinson framework.
  • In analysis joined by 7 judges (hence, less than a majority), the Court held that the commentary should be deferred to even under the Kisor framework.
  • In analysis joined by 7 judges (less than a majority), the Court noted “doubt that the rule of lenity applies to the guidelines” to resolve any ambiguity in whether conspiracies are included as “controlled substance offenses.” The Court emphasized that the guidelines are now advisory, rather than mandatory, and therefore the concerns addressed by the rule of lenity were not at issue.
  • Judge Oldham concurred in part. He would not join in the part of the opinion holding that even under the Kisor framework, the guidelines commentary should be deferred to, because if Stinson were no longer the applicable standard then he would apply United States v. Booker, 543 U.S. 220 (2005), rather than Kisor. “Given that Booker renders the Guidelines themselves advisory, why would we apply ‘Kisor deference’ or any other kind of ‘deference’ to the Guidelines’ commentary?” He concluded, “Post-Booker, the world is topsy-turvy. The Sentencing Guidelines are not binding, but the commentary is. The Federal Rules are binding, but the Advisory Committee’s notes are not. Regardless, until the Supreme Court overrules Stinson, we are bound to follow it.”
  • Judge Elrod dissented in part and dissented from the judgment. “Whether Kisor modified Stinson is an unusually thorny question of vertical stare decisis, as evidenced by the growing division among the federal circuits. But regardless of whether we proceed under Stinson or Kisor, the commentary at issue here deserves no deference. Whatever way one looks at it—through the lens of consistency between the relevant Guideline and its commentary (Stinson) or ambiguity in the Guideline itself (Kisor)—the Guidelines definition of ‘controlled substance offense’ does not include conspiracy convictions as the commentary contends. I therefore take no position on Part III(A) of the majority opinion. But I dissent from Parts III(B) and (C). The commentary fails under both Stinson and Kisor. Separate and apart from my views on Stinson, Kisor, and Application Note 1 to U.S.S.G. § 4B1.2(b), I also dissent from the plurality’s holding in Part III(D) because it improperly cabins a ‘time-honored’ interpretive canon. Cargill v. Garland, 57 F.4th 447, 470 (5th Cir. 2023) (en banc). I agree with my colleagues on other circuits who would apply the rule of lenity when interpreting the Sentencing Guidelines.” (Footnote and internal citations omitted).

• January v. City of Huntsville, 22-20380, appeal from S.D. Tex.
  • Clement, J. (Jones, Clement, Haynes), Haynes, J., dissenting in part; employment discrimination, Americans with Disabilities Act, Age Discrimination in Employment Act
  • Affirming summary judgment dismissal of firefighter’s ADA and ADEA discrimination and retaliation claims.
  • The Court held that the district court did not err in denying the plaintiff’s Rule 56(d) motion for further discovery. The Court held that the plaintiff did not carry his burden of showing how the discovery sought will create a genuine issue of material fact.
  • The Court held that, while the plaintiff showed a temporal relationship between his complaint of discrimination and his termination sufficient to make a prima facie case of causation, he failed to show the “but-for” level of causation necessary to rebut that the City’s legitimate reason for firing him was not pretextual. The Court noted that the plaintiff argued “that the City’s reasons are ‘unworthy of credence’ and therefore pretextual. He challenges the City’s reasons beat-by-beat rather than leading the panel to separate evidence of pretext. We’ve made clear though that merely showing a reason is false is not enough.”
  • Judge Haynes dissented in part. She “diverge[d] from the majority opinion’s conclusions on pretext.”

Unpublished

• Calderon v. Hutto, 22-20582, appeal from S.D. Tex.
  • per curiam (Stewart, Dennis, Willett), prisoner suit
  • Affirming dismissal of Texas state prisoner’s § 1983 suit.

• Sherman v. Johnson, 22-30693, appeal from W.D. La.
  • per curiam (Stewart, Dennis, Willett), § 1983
  • Affirming dismissal of plaintiff’s claims arising from eviction.

• Gentry v. Hamilton-Ryker IT Solutions, L.L.C., 22-40219, appeal from S.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), Fair Labor Standards Act
  • Affirming the grant-in-part and denial-in-part of the parties’ cross-motions for summary judgment on plaintiffs’ FLSA overtime claims.

• U.S. v. Hawkins, 22-40766, appeal from E.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Paul v. Sabban, 22-51113, appeal from W.D. Tex.
  • per curiam (King, Southwick, Higginson), Bivens claim
  • Affirming dismissal as untimely of plaintiffs’ Bivens claim arising from search and seizure of plaintiffs’ properties.

• Washington v. Thomas, 23-30006, appeal from E.D. La.
  • per curiam (Stewart, Dennis, Willett), qualified immunity
  • Dismissing for lack of appellate jurisdiction the defendant’s appeal of denial of a qualified immunity summary judgment motion in claims arising from traffic stop.