September 20-21, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Irias-Romero, 21-40565, appeal from S.D. Tex.
    • Higginson, J. (Jolly, Dennis, Higginson), criminal, sufficiency of evidence
    • Affirming conviction of transporting within the United States an alien who “has come to, entered, or remains in the United States in violation of law.”
    • The Court held there was sufficient evidence to support the jury’s finding that the person the defendant was transporting has intended to be in and stay in the United States, despite the defendant’s evidence that she had been brought to the United States by kidnappers and he was just trying to rescue her away from them after she escaped. The Court noted, “A true Good Samaritan may be able to argue that scienter is lacking if that person acts out of necessity to save an alien from death or serious bodily injury rather than to further the alien’s unlawful presence in the United States”; but that there was sufficient evidence to support the jury’s rejection of this defense in this case.
  • Harrison v. Brookhaven School District, 21-60771, appeal from S.D. Miss.
    • per curiam (Willett, Engelhardt, Wilson), Title VII, employment discrimination
    • Reversing district court’s dismissal of Title VII claims as not involving an “ultimate employment decision,” in light of recent en banc rejection of that standard in Hamilton v. Dallas Cnty., No. 21-10133, —F.4th—, 2023 WL 5316716 at *1 (5th Cir. Aug. 18, 2023). The Court held that the plaintiff’s claim, based on the school district’s failure to pay for a training seminar, plausibly alleged facts that satisfied the adverse employment action prongs.
  • U.S. v. Mississippi, 21-60772, appeal from S.D. Miss.
    • Jones, J. (Jones, Southwick, Ho), Ho, J., concurring; Americans with Disabilities Act
    • Reversing district court’s judgment in favor of federal government on ADA claims that the State of Mississippi’s mental health care system violated the ADA regulatory “integration mandate” in 28 C.F.R. § 35.130(d) by implementing excessive unnecessary institutionalizations rather than relying on more widespread community-based treatment, and that ordered modifications to the state’s mental health care system and federal and court oversight of that system.
    • The Court held that the federal government failed to prove a cause of action for ADA discrimination. Because the federal government had relied on statistical sampling and expert extrapolation to show a “risk of institutionalization,” rather than through proving individual cases of actual unnecessary institutionalization, it had failed to trigger Title II of the ADA. “[T]he ADA does not define discrimination in terms of a prospective risk to qualified disabled individuals. In stating that no individual shall be ‘excluded,’ ‘denied,’ or ‘subjected to discrimination,’ the statute refers to the actual, not hypothetical administration of public programs.”
    • The Court also held that, even if there were a proper Title II claim, the district court’s injunctive remedy was overly broad. “Sweeping institution-wide directives like those at issue here are never ‘narrowly tailored’ to remedy individual instances of discrimination.”
    • Juge Ho concurred, noting his understanding of the Justice Department’s approach and concern with unnecessary involuntary institutionalizations, but to emphasize that ADA is “premised on actual violations, not statistical risks.”
  • I F G Port Holdings, L.L.C. v. Lake Charles Harbor & Terminal District, 22-30398, appeal from W.D. La.
    • Higginson, J. (Graves, Higginson, Douglas), magistrate judges, diversity jurisdiction, sealed records
    • Vacating $124.5 million verdict in favor of plaintiff in complex commercial dispute tried in a bench trial on consent to the magistrate judge, and remanding for an evidentiary inquiry by the district court into whether the defendant’s consent to magistrate jurisdiction was validly given in light of the subsequent revelation of the personal relationship between the magistrate and the lead plaintiff’s lawyer.
    • The Court held that the plaintiff’s post-trial amendment cured deficiencies in its allegations of LLC membership for purposes of establishing diversity jurisdiction.
    • The Court held that the magistrate erred in sealing all but one of the records submitted to show diversity. “These orders fail to acknowledge the public interest in access to judicial records and fail to articulate any reasons that would support sealing.”
    • The Court then turned to the magistrate-referral issue, and the district court’s denial of discovery on the issue. The Court held that consent to magistrate jurisdiction is “no formality; it is constitutionally essential.” The Court noted that consent cannot be voluntary “if it is not given knowingly and intelligently. … Neither party directs us to case law addressing whether a magistrate judge’s nondisclosure of their longstanding friendship with lead, opposing counsel may undermine a party’s consent to have that judge try its case. But we have no difficulty concluding that it may.” The Court then seemed to hold that the bar to vacate a magistrate referral as unknowing was lower than the bar for recusal: “[E]ven if a given friendship would not warrant recusal under § 455, it does not follow that nondisclosure of that friendship is constitutionally permissible under § 636(c).”
    • The Court noted the undeveloped factual record on the issue. “[T]his is a highly fact-intensive inquiry. Because the district court conducted no evidentiary inquiry into the Port’s assertions and denied the Port discovery on the issue, our appellate record on the friendship consists only of the Mize affidavit. And the affidavit contains only those facts that we have now recounted many times: Monk’s daughter was a law clerk for Magistrate Judge Kay around the time of consent (disclosed to the Port); Monk was a groomsman in Magistrate Judge Kay’s wedding (not disclosed); and Magistrate Judge Kay officiated Monk’s other daughter’s wedding three months before this case was filed (not disclosed).”

Unpublished

  • U.S. v. Rivera-Lopez, 20-10200, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming in part and vacating in part sentence for conspiracy to possess with intent to distribute a controlled substance, and remanding.
  • Lopez-Aguilar v. Garland, 20-60974, petition for review of BIA order
    • per curiam (Richman, Elrod, Oldham), immigration
    • Denying Honduran citizen’s petition for review of BIA order upholding an immigration judge’s (IJ) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Cortez, 21-50904, c/w 21-50908, appeal from W.D. Tex.
    • Higginson, J. (Stewart, Dennis, Higginson), criminal, search and seizure
    • Affirming conviction of being a felon in possession of ammunition, upholding denial of motion to suppress.
  • Dillard v. Davis, 22-10791, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), prisoner suit
    • Remanding to district court to rule on Rule 59(e) motion from partial dismissal of Texas state prisoner’s claims.
  • U.S. v. Perales, 22-11015, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Espino-Rosales, 22-20617, appeal from S.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming 36-month sentence on conviction of illegal reentry.
  • U.S. v. Cox, 22-20636, c/w U.S. v. Adams, 22-20658, appeal from S.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Vacating sentences on conviction of aiding and abetting the interference with commerce by robbery, aiding and abetting the discharge of a firearm during and in relation to a crime of violence, and aiding and abetting the brandishing of a firearm during and in relation to a crime of violence, and remanding for resentencing.
  • U.S. v. Gaharan, 22-30364, appeal from W.D. La.
    • per curiam (Elrod, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Vavra, 22-50276, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Affirming convictions of transportation of a minor with intent to engage in criminal sexual activity, and possession of child pornography involving a prepubescent minor.
  • U.S. v. Uribes, 22-50835, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming conviction and sentence for assaulting a federal officer.
  • U.S. v. Salazar-Ramirez, 23-10140, c/w 23-10146, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • U.S. v. White, 23-10429, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Pearson, 23-30057, appeal from W.D. La.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hongo, 23-30148, appeal from W.D. La.
    • per curiam (Willett, Duncan, Wilson), criminal, search and seizure
    • Affirming conviction of possessing methamphetamine with the intent to distribute and using and carrying a firearm in connection with a drug-trafficking offense, upholding denial of motion to suppress.
  • Thomas v. Moore, 23-30279, appeal from W.D. La.
    • per curiam (Elrod, Oldham, Wilson), prisoner suit
    • Affirming dismissal of § 1983 claims.
  • U.S. v. Perez-Lainez, 23-40180, appeal from S.D. Tex.
    • per curiam (Willett, Duncan, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez, 23-50028, appeal from W.D. Tex.
    • per curiam (Jolly, Engelhardt, Douglas), criminal, supervised release
    • Affirming revocation of supervised release.
  • U.S. v. Trudeaux, 23-50132, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), habeas corpus
    • Affirming denial of defendant’s petition for a writ of error coram nobis.
  • U.S. v. Calzada, 23-50367, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), habeas corpus, Rule 60(b)
    • Affirming denial of petitioner’s motion under Rule 60(b)(4) of the Federal Rules of Civil Procedure to vacate the district court’s denial of his writ of coram nobis petition.
  • Singh v. Garland, 23-60117, petition for review of BIA order
    • per curiam (Barksdale, Engelhardt, Wilson), immigration
    • Denying Indian citizen’s petition for review of BIA order denying motion to reopen.
  • Betancourt-Cadalzo v. Garland, 23-60200, petition for review of BIA order
    • per curiam (Barksdale, Engelhardt, Wilson), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of applications for asylum, withholding of removal, and protection under the CAT.