July 26, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Cortez-Balderas, 22-30296, appeal from E.D. La.
    • per curiam (Haynes, Engelhardt, Saldaña, by designation), Engelhardt, J., concurring; criminal, sentencing
    • Affirming upward departure from 15-21-month guidelines range to impose 72-month sentence for convictions of identity theft and possession of a firearm by a convicted felon.
    • The Court held that the district court did not abuse its discretion, as the district court considered the guidelines range and engaged in “permissible considerations and not simply on a mechanical approach or personal policy” in determining to vary upward from it.
    • Judge Engelhardt concurred, to more “sufficiently explain the record facts before the district court.”

Unpublished

  • Harper v. McAndrews, 20-40754, appeal from E.D. Tex.
    • per curiam (King, Smith, Elrod), qualified immunity
    • Dismissing for lack of appellate jurisdiction officer defendant’s appeal from denial of qualified immunity summary judgment on plaintiff’s excessive force claim.
  • Class v. Lumpkin, 21-20560, appeal from S.D. Tex.
    • per curiam (King, Stewart, Haynes), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claims from original complaint, but vacating the “with prejudice” portion of the dismissal and remanding for an opportunity to re-plead the claims.
  • U.S. v. Castaneda, 22-10844, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, search and seizure
    • Affirming conviction of conspiring to distribute and possess with intent to distribute 50 grams or more of methamphetamine (actual), and of possession with the intent to distribute 50 grams or more of methamphetamine (actual), upholding denial of motion to suppress on basis of reasonable suspicion of arresting officer to initiate traffic stop.
  • U.S. v. Porter, 22-10943, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal
    • Granting summary affirmance of conviction of possession of a firearm by a felon.
  • U.S. v. Garcia, 22-11043, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, guilty plea
    • Affirming voluntary nature of guilty plea for conviction of possession with intent to distribute a mixture and substance containing a detectable amount of methamphetamine.
  • Jones v. Garrido, 22-11103, appeal from N.D. Tex.
    • per curiam (Jones, Haynes, Oldham), habeas corpus
    • Affirming dismissal of § 2241 petition for failure to exhaust administrative remedies.
  • U.S. v. Gonzalez, 22-11234, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sorenson, 22-20640, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), criminal, sentencing
    • Affirming upward departure to 240-month sentence on conviction of receiving and possessing child pornography.
  • U.S. v. Kinzy, 22-30169, appeal from E.D. La.
    • Higginson, J. (Barksdale, Southwick, Higginson), criminal, sentencing
    • Affirming 87-month sentence for possession of a firearm by a felon, including enhancement for committing the offense in connection with another felony, although concluding that a prior state conviction for resisting an officer was not a “crime of violence” under the Sentencing Guidelines. The Court determined that the incorrect categorization of the prior crime as a “crime of violence” was harmless error because the record showed that the district court considered the proper sentencing range and properly articulated that it would have imposed the same sentence either way.
  • Menard v. Targa Resources, L.L.C., 22-30178, appeal from M.D. La.
    • per curiam (King, Stewart, Haynes), employment law
    • Affirming judgment concluding that plaintiff was entitled to protection under the Louisiana Environmental Whistleblower Statute and that his protected activity was the but-for cause of his termination by defendant.
  • Abbott v. Otis-Sanders, 22-30561, appeal from W.D. La.
    • per curiam (Jones, Haynes, Oldham), Bivens claim
    • Affirming dismissal of federal inmate’s Bivens claim based on lack of private action under the Prison Rape Elimination Act.
  • Turner v. Wal-Mart Louisiana, L.L.C., 22-30647, appeal from W.D. La.
    • per curiam (Smith, Southwick, Douglas), personal tort
    • Affirming summary judgment dismissal of plaintiff’s personal injury claim arising from Wal-Mart allowing him to use a wrench on his automobile that he brought in for servicing.
  • Murphy v. Edgefield Holdings, L.L.C., 23-20016, appeal from S.D. Tex.
    • per curiam (Jones, Haynes, Oldham), attorneys’ fees, sanctions
    • Affirming award of attorneys’ fees as sanctions for bad faith conduct against plaintiff and his counsel in quiet-title action.