September 14, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Mora-Carrillo, 21-51125, c/w 21-51126, appeal from W.D. Tex.
    • Jones, J. (Jones, Stewart, Duncan), criminal, jury instructions, sentencing
    • Affirming conviction of illegal reentry and 105-month sentence, finding no error in jury instruction or impropriety in enhancement of sentence for obstruction of justice.
    • After the defendant had presented evidence that he had been acting under duress due to threats by the drug-smuggling cartel La Linea, he requested a jury instruction on coercion and duress. The Court held that the district court did not abuse its discretion in denying that instruction because there was a four-day gap between the threat and his commission of the offense: “Even taking the evidence in the light most favorable to Mora, he has not presented proof that he was in danger at the moment of his offense. He testified that he was abducted on February 24 or 25 and told to smuggle people across the border if he ‘wanted everything to be all right.’ He crossed the border on March 1, at least four days later. During his jury trial, Mora never presented evidence—even in his own testimony—of what happened in the meantime.”
  • Louisiana Fair Housing Action Center, Inc. v. Azalea Garden Properties, L.L.C., 22-30609, appeal from E.D. La.
    • Wilson, J. (Elrod, Ho, Wilson), Ho, J., concurring; Elrod, J., dissenting; housing law, Fair Housing Act, standing
    • Remanding to district court with instructions to dismiss action on the basis that plaintiff fair housing advocacy organization did not have standing to bring Fair Housing Act disparate-impact race discrimination claim, pretermitting ruling on appeal of issue whether the “predictably will cause” standard for FHA disparate-impact claims remains viable after Inclusive Communities Project Inc. v. Lincoln Property Co., 920 F.3d 890 (5th Cir. 2019).
    • The Court held that the Housing Action Center did not have a cognizable injury for standing purposes in any diversion of resources from its routine activities by the alleged discriminatory policies of the apartment management. “Any diversion of resources caused by LaFHAC’s use of testers to investigate Azalea Garden cannot be a cognizable injury. The investigation does not ‘differ from its routine [] activities’ in the slightest—using testers to investigate is its routine activity.” The Court also held that the Housing Action Center did not sufficiently allege that its educational/outreach activities were impaired by diversion of resources caused by the alleged actions of the apartment management. “LaFHAC explain how any curtailment of these projects perceptibly impaired its ability to achieve its mission. On their face, the efforts taken to counteract alleged discrimination at Azalea Garden would appear to advance, rather than impair, LaFHAC’s mission of eradicating housing discrimination. And as we have explained, those efforts likely fall within the ambit of LaFHAC’s routine activities. Nothing in the complaint permits an inference that the diversion impaired LaFHAC’s ability to achieve its mission.”
    • Judge Ho concurred in the holding that the Housing Action Center lacked standing. He wrote separately to emphasize that the Center could replead its claims anew to substantiate any perceptible impairment of its mission and establish standing. He then discussed further the problem with standing that the Court had in this instance: “I would conceptualize the analysis this way: Rather than focus on what a plaintiff has done in response to a defendant’s conduct, we instead ask: Will the plaintiff will be injured if it does nothing? If the answer is yes, then the plaintiff has standing—and if the answer is no, then it doesn’t. If someone punches you in the nose, you have standing against your assailant, whether you end up going to the hospital or not. And if someone else is punched in the nose, you don’t have standing just because you chose to go to the hospital to show support for the victim.” He also suggested that the Housing Action Center could join its claims to other plaintiffs actually injured by the complained-of practices.
    • Judge Elrod dissented. “In my view, this appeal is controlled by the Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). In that case the Court held that there could be ‘no question’ that a housing nonprofit ‘suffered injury in fact’ if, ‘as broadly alleged, petitioners’ steering practices have perceptibly impaired [the organization’s] ability to provide counseling and referral services for low-and moderate-income homeseekers ….’ Id. at 379. … Compared to the general allegations in Havens Realty, which vaguely referenced ‘counseling and other referral services,’ Fair Housing’s complaint is robust with detail.”
  • Landor v. Louisiana Department of Corrections and Public Safety, 22-30686, appeal from M.D. La.
    • Clement, J. (Clement, Graves, Higginson), religion
    • Affirming dismissal of former Louisiana state prisoner’s claims for money damages against prison officials in their individual capacities under the Religious Land Use and Institutionalized Persons Act, arising from their forced shaving of his dreadlocks even though he was a devout Rastafarian who had taken the Nazarite Vow.
    • The Court held that its RLUIPA precedent disallowing suits for monetary damages against prison officials in their individual capacities was not abrogated by a subsequent Supreme Court decision under the Religious Freedom Restoration Act, as they involved different statutes.
    • The Court concluded, “We emphatically condemn the treatment that Landor endured. Still, we remain bound by our prior decision in Sossamon I that, under RLUIPA, he cannot seek money damages from officials in their individual capacities.”
  • Robinson v. Midland County, 22-50673, appeal from W.D. Tex.
    • Smith, J. (King, Smith, Elrod), § 1983
    • Affirming dismissal of relatives’ § 1983 claims against prison officials after the death of inmate due to failure to provide him with responsive and adequate access to medical care when he was experiencing breathing difficulties, as a result of which he died. “We conclude that Stickel’s actions were not so deliberately indifferent to Hall’s need for emergency assistance that it amounts to a constitutional violation.”

Unpublished

  • U.S. v. Racliff, 22-10409, appeal from N.D. Tex.
    • per curiam (Jones, Stewart, Duncan), criminal, sentencing
    • Affirming conviction and 51-month sentence for possession of a firearm by a felon.
  • Thomas v. Cook Children’s Health Care System, 22-10535, appeal from N.D. Tex.
    • per curiam (Davis, Southwick, Oldham), Title VII, employment discrimination
    • Affirming dismissal of Title VII hostile-work-environment claim and summary-judgment dismissal of racial discrimination and retaliation claims.
  • U.S. v. Franco-Pacheco, 22-11198, appeal from N.D. Tex.
    • per curiam (Jones, Elrod, Wilson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Escobar, 22-20507, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mosquera-Castro, 22-30568, appeal from M.D. La.
    • per curiam (Jones, Southwick, Ho), criminal, Confrontation Clause, search and seizure
    • Affirming conviction of conspiracy to distribute and to possess with the intent to distribute at least one kilogram of heroin, unlawful travel in aid of a racketeering enterprise, and unlawful use of a communications facility; rejecting Confrontation Clause challenges and upholding denial of motion suppress wiretap evidence.
  • U.S. v. Gutierrez-Garcia, 22-50742, appeal from W.D. Tex.
    • per curiam (Willett, Engelhardt, Oldham), criminal
    • Affirming conviction and 2-year sentence on possession with intent to distribute marijuana.
  • Alvarez v. Garland, 22-60651, petition for review of BIA order
    • per curiam (Jones, Southwick, Ho), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal and affirming the immigration judge’s (IJ’s) denial of his request for deferral of removal under the Convention Against Torture.
  • U.S. v. Swatzell, 23-10215, appeal from N.D. Tex.
    • per curiam (Jones, Smith, Dennis), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Thompson v. Lumpkin, 23-20182, appeal from S.D. Tex.
    • per curiam (Stewart, Clement, Engelhardt), habeas corpus
    • Affirming denial of Rule 11 motion, dismissing for lack of appellate jurisdiction appeal from denial of § 2254 petition, and denying motion for COA as unnecessary.
  • U.S. v. Torres-Delgado, 23-50121, appeal from W.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hidalgo, 23-60123, appeal from S.D. Miss.
    • per curiam (Wiener, Stewart, Douglas), criminal, supervised release
    • Affirming imposition of terms of supervised release prohibiting defendant from possessing or using a computer or other internet device except for employment-related purposes with approval of probation officer and from possessing or perusing sexually explicit material, on revocation of supervised release term as part of sentence for failure to register as a sex offender.
  • Villanueva v. Garland, 23-60223, petition for review of BIA order
    • per curiam (Jones, Southwick, Ho), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order upholding the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture.