August 7, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Willis, 22-10384, appeal from N.D. Tex.
    • Oldham, J. (Dennis, Engelhardt, Oldham), criminal, sentencing
    • Vacating sentence–120-month sentences on each of three counts of possession of a firearm by a felon, to run consecutively “[o]nly to the extent it produces a total aggregate of 188 months”–as impermissibly vague, and remanding for resentencing.
    • The Court held that the district court did not have authority to conduct a “resentencing” based on a letter from the Bureau of Prisons after the defendant had already noticed his appeal from the initial sentencing. “Willis’s timely notice of appeal transferred the case from the district court to ours, which divested the district court of jurisdiction to resentence Willis. Because the district court lacked jurisdiction, the July resentencing is null and void.”
    • The Court held there was no plain-error in the district court’s imposition of three consecutive sentences, as “Willis clearly pled guilty to possessing distinct firearms during three distinct timeframes. And he was convicted of and sentenced for each of those distinct units of possession.”
    • The Court held there was no plain error in the treatment of two prior sentences imposed on the same day, for offenses without an intervening arrest, as two prior offenses for purposes of calculating his criminal history score.
    • The Court held that the within-Guidelines sentence was not substantively unreasonable, because the record was at best ambiguous that the district court had considered the defendant’s attitude at the sentencing hearing in imposing the 188-month aggregate sentence.
    • Nevertheless, the Court held that the sentence was impermissibly ambiguous. “If we give full effect to the requirement that the three 120-month terms run consecutively, then we must ignore the 188-month cap. And if we give full effect to the 188-month cap, then the requirement that the three 120-month terms run consecutively is either nonsensical (at worst) or incomplete and indeterminate (at best). As such, reasonable minds could differ on the interpretation of the sentence imposed.”
  • Garcia-Gonzalez v. Garland, 22-60501, petition for review of BIA order
    • Smith, J. (Smith, Higginson, Willett), immigration
    • Dismissing in part and denying in part Honduran citizen’s petition to review BIA order denying motion to reopen removal proceedings based on petitioner’s membership in a “particular social group” defined as the nuclear family of her son, who had allegedly been recruited by Honduran gangs.
    • “This circuit has not yet addressed in detail when family-based PSGs are cognizable, nor do we have precise guidance from the BIA or the Department of Justice. Despite the lack of precision, we lack jurisdiction over the BIA’s refusal to reopen Garcia-Gonzalez’s proceedings sua sponte, and we otherwise reject her claims on the merits.”
    • The Court held that it could not reverse the BIA’s conclusion that the petitioner failed to meet the PSG element of showing that membership in her son’s nuclear family was considered a socially distinct unit by Honduran society at large. “Despite the lack of executive guidance, and despite our being presented with an opportunity to clarify for this circuit the contours of cognizable family-based PSGs, the United States urges us to rule narrowly and deny Garcia-Gonzalez’s petition on the ground that she did not present any evidence at all regarding the social distinction of her proposed PSG. Thus, the Department of Justice issued guidance, vacated that guidance, was instructed to provide new guidance, failed to provide said guidance, and now asks us to refrain from providing any meaningful guidance ourselves. Nevertheless, the United States is correct that we may dispose of this case on narrow grounds, and we do. We therefore leave for another day the task of more precisely delineating the cognizability of family-based PSGs and the evidence needed to prove them. An alien seeking asylum or withholding of removal has the burden to demonstrate eligibility. See 8 U.S.C. §§ 1158(b)(1)(B)(i)–(ii), 1231(b)(3)(C); 8 C.F.R. §§ 208.13(a), 208.16(b). Garcia-Gonzalez failed to satisfy her burden. In her application, she did not proffer any evidence of the social distinction of her family in Honduran society or of the social saliency of the nuclear family unit in Honduran society generally. See W-G-R-, 26 I. & N. Dec. at 216–17. Even in her briefing before this court, Garcia-Gonzalez offers nothing more than the conclusory assertion that ‘family ties are a highly recognizable trait in’ Honduras.”

Unpublished

  • U.S. v. Del Rio, 21-11209, appeal from N.D. Tex.
    • per curiam (King, Smith, Elrod), criminal, sentencing
    • Affirming 360-month sentence on conviction of production of child pornography.
  • Dalpark Partners, Ltd. v. Verus Management One, L.L.C., 22-10884, appeal from N.D. Tex.
    • per curiam (Wiener, Graves, Douglas), trespass
    • Affirming summary judgment dismissal of trespass claims arising from plaintiff’s authorization of third party to install equipment beyond the parties’ lease agreement, on basis of lack of proof of physical entry.
  • U.S. v. Camacho, 22-11046, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Ruiz v. Fiesta Mart, L.L.C., 22-20489, appeal from S.D. Tex.
    • per curiam (Duncan, Wilson, Schroeder, by designation), personal tort
    • Vacating summary judgment dismissal of slip-and-fall case, and remanding with order to allow parties to conduct sufficient discovery, noting that “[t]his follows a pattern from this particular district court.”
  • Venequip, S.A. v. Mustang Machinery Co., 22-20520, appeal from S.D. Tex.
    • per curiam (Dennis, Engelhardt, Oldham), foreign discovery
    • Affirming denial of 28 U.S.C. § 1782 application for order to compel third-party U.S. company to produce certain discovery for use in Swiss action.
  • U.S. v. Mateo, 22-20579, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • James v. Clark, 22-30806, appeal from M.D. La.
    • per curiam (Smith, Southwick, Wilson), prisoner suit
    • Dismissing as frivolous appeal from dismissal of pretrial detainee’s § 1983 claims.
  • Spencer v. Harrison County, 22-40548, appeal from E.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), § 1983
    • Affirming summary judgment dismissal of claims that county’s policies allowing for shackling of juveniles was a constitutional violation.
  • U.S. v. Arroyo, 22-50845, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Tello v. Garland, 22-60537, petition for review of BIA order
    • Graves, J. (Wiener, Graves, Douglas), immigration
    • Denying Mexican citizen’s petition for review of BIA decision that prior conviction for interfering with an emergency call was a crime involving moral turpitude rendering the petitioner ineligible for cancellation of removal.
  • U.S. v. Martinez, 23-10062, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Herring v. Buc-ee’s Ltd., 23-20070, appeal from S.D. Tex.
    • per curiam (Stewart, Clement, Engelhardt), Title VII, employment discrimination
    • Dismissing as frivolous appeal from summary judgment dismissal of employment discrimination claims.
  • Guardado-Carias v. Garland, 23-60036, petition for review of BIA order
    • per curiam (Barksdale, Southwick, Graves), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from an order of the Immigration Judge (IJ) denying asylum, withholding of removal, and protection under the Convention Against Torture.