September 1-5, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Hill, 22-10460, appeal from N.D. Tex.
    • Wilson, J. (Duncan, Wilson, Schroeder, by designation), criminal, sentencing
    • Affirming 480-month sentence on conviction of conspiring to possess a controlled substance with the intent to distribute it and distributing a detectable amount of a substance containing cocaine base.
  • Hicks v. LeBlanc, 22-30184, appeal from M.D. La.
    • Higginbotham, J. (Higginbotham, Southwick, Willett), qualified immunity
    • Affirming denial of qualified immunity on Louisiana state prisoner’s sec. 1983 claims of “over-detention,” for being detained sixty days past the end of his sentence.
  • Louisiana v. i3 Verticals Inc., 22-30553, appeal from M.D. La.
    • Ho, J. (Elrod, Ho, Oldham), Oldham, J., dissenting; Class Action Fairness Act
    • Affirming remand of CAFA-removed action brought by sheriffs and law enforcement districts against software purveyor. The Court held that the law enforcement districts were distinct plaintiffs from the sheriffs, putting the number of plaintiffs over the 100-plaintiff threshold for a CAFA mass action, but that the claims satisfied the local-controversy mandatory abstention provision of CAFA.
    • Judge Oldham dissented. He would hold that the local controversy exception does not apply based on one Louisiana defendant. “Here, the purportedly local defendant is “South Pointe,” a defunct shell LLC in Louisiana with no assets, facilities, business, or employees. In my view, South Pointe does not satisfy either (I) the ‘seeks significant relief’ requirement of Subparagraph aa or (II) the ‘significant conduct’ requirement of Subparagraph bb.”
  • Apter v. Department of Health and Human Services, 22-40802, appeal from S.D. Tex.
    • Willett, J. (Clement, Elrod, Willett), administrative law, sovereign immunity
    • Reversing district court’s sovereign immunity-based dismissal of doctors’ claims against FDA arising from FDA’s posts informing the public that they “are not a horse” and should not take ivermectin to treat COVID-19.
    • The Court held that the doctors’ ultra vires claims removed the claims from the sphere of sovereign immunity, as they were claims that the FDA, by dispensing medical advice that only a doctor should provide, had acted beyond its authority in making the posts. “First, the Doctors can use the APA to bypass sovereign immunity and assert their ultra vires claims against the Agencies and the Officials. FDA is not a physician. Thus, assuming FDA is correct that we must consider the merits to some degree even at the pleading stage, the Posts that issue medical advice to consumers are plausibly ultra vires. The Posts are plausibly agency action, too, because they publicly announce the general principle that consumers should not use ivermectin to treat the coronavirus, and because the Doctors fall within the Act’s zone of interests. Second, because the Doctors can use the APA for their ultra vires claims, we need not consider the common-law version of that doctrine. Third, however, the Doctors’ pure APA claim cannot go forward. That is because the Posts do not determine legal rights and thus lack the finality. Even though this last theory fails, the Doctors’ first theory is enough to allow this suit to proceed.”

Unpublished

  • U.S. v. Moreira, 21-40811, appeal from E.D. Tex.
    • per curiam (Willett, Duncan, Douglas), criminal, sentencing
    • Affirming 168-month sentence on conviction of conspiracy to commit wire fraud and wire fraud.
  • U.S. v. Medina-Gomez, 22-11150, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Medina, 22-11189, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garcia-Sanchez, 22-11225, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, sentencing
    • Affirming 60-month sentence on conviction of illegal reentry.
  • Adams v. Lumpkin, 22-20595, appeal from S.D. Tex.
    • per curiam (Stewart, Graves, Oldham), prisoner suit, appellate jurisdiction
    • Dismissing appeal of dismissal of some of Texas state prisoner’s sec. 1983 claims for lack of appellate jurisdiction over the judgment.
  • U.S. v. Flores, 22-30540, appeal from E.D. La.
    • per curiam (Jones, Stewart, Duncan), criminal, evidence
    • Affirming conviction of interstate domestic violence and interstate domestic violence by strangulation or suffocation, upholding district court’s admission of testimony regarding similar abuse against a previous girlfriend.
  • U.S. v. Acosta-Erazo, 22-40022, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ramirez, 22-40726, appeal from E.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Affirming conviction of obstruction of justice.
  • U.S. v. Lerma, 22-40774, appeal from S.D. Tex.
    • per curiam (Dennis, Engelhardt, Oldham), criminal, sufficiency of evidence
    • Affirming conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, possession of 50 grams or more of methamphetamine with intent to distribute, conspiracy to import 50 grams or more of methamphetamine, and importation of 50 grams or more of methamphetamine.
  • U.S. v. Banno, 23-10058, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Zarate, 23-10164, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mack, 23-30077, appeal from W.D. La.
    • per curiam (Barksdale, Graves, Oldham), criminal, new trial
    • Affirming district court’s denial of motion for new trial based on newly discovered evidence.
  • U.S. v. Stewart, 23-30101, appeal from E.D. La.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
    • Affirming 97-month sentence on conviction of conspiracy to distribute and possess with intent to distribute cocaine, possession with intent to distribute cocaine, cocaine base, and methamphetamine, felon in possession of firearm and ammunition, and possession of a firearm in furtherance of a drug trafficking crime.
  • U.S. v. Lopez-Munoz, 23-40154, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sistos, 23-50116, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Cerezo v. Garland, 23-60088, petition for review of BIA order
    • per curiam (Wiener, Stewart, Douglas), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal and affirming the immigration judge’s (IJ) denial of withholding of removal.