October 18, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Foreman, 21-50986, appeal from W.D. Tex.
    • Clement, J. (Clement, Elrod, Willett), criminal, Confrontation Clause, hearsay
    • Affirming conviction for conspiracy to transport illegal aliens, but vacating conviction for transporting illegal aliens, and remanding for resentencing.
    • The Court held that the form admitted into evidence to show the nationality of the people being transported was hearsay and admitted in violation of the Sixth Amendment Confrontation Clause. Accordingly, there was no evidence to prove this element of the conviction for transporting illegal aliens.
    • However, the Court held that the conviction for conspiracy to transport illegal aliens was supported by sufficient admissible evidence. “Here, the crimes are distinguishable. The evidence shows that the two charges stemmed from separate events, with Cannon and Foreman conspiring with each other to transport illegal aliens up to two months before they attempted the crime. And the evidence of alienage contained in the G-166F was not used to demonstrate that Foreman and Cannon agreed to transport aliens. For that, the government relied on Foreman’s own filmed comments admitting to her agreement, and Cannon’s testimony to the same.”
  • Alliance for Fair Board Recruitment v. Securities and Exchange Commission, 21-60626, petition for review of SEC order
    • Higginson, J. (Stewart, Dennis, Higginson), administrative law
    • Denying petition for review of SEC order approving rules proposed by Nasdaq “that would require companies listed on its stock exchange to disclose information about their board members, as well as a rule that would give certain companies access to a board recruiting service,” designed to achieve greater board diversity on companies traded on the exchange. The Court held that the Approval Order complies with the Exchange Act and the APA.
    • The Court first disposed of constitutional arguments raised by the petitioners, on the basis that Nasdaq, though a self-regulated organization (SR), remained a private entity and not a state actor.
    • The Court found that the Nasdaq rule was a disclosure rule, not a mandatory quota, supporting the SEC’s approval of the rule. The Court also rejected application of the major questions doctrine to the case. “Here, the SEC’s asserted authority is an ordinary exercise of its power to approve exchange listing rules; a disclosure rule for board diversity information is not significant enough to trigger major questions concerns; and the Exchange Act authorizes SEC approval of exchange disclosure rules.”

Unpublished

  • Lemonia v. Westlake Management Services, Inc., 22-30630, appeal from W.D. La.
    • per curiam (Duncan, Wilson, Mazzant, by designation), employment discrimination
    • Affirming summary judgment in favor of employer on plaintiff’s race and age discrimination claims.
  • U.S. v. Gomez, 22-30793, appeal from M.D. La.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. McLean, 22-40443, c/w 23-40064, c/w 23-40065, appeal from E.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, compassionate release
    • Affirming dismissal of motion for compassionate release.
  • Hicks v. Texas Board of Pardon and Paroles, 22-40765, appeal from E.D. Tex.
    • per curiam (Jones, Smith, Dennis), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claims arising from denial of parole.
  • U.S. v. Aceves-Ramirez, 22-50954, appeal from W.D. Tex.
    • per curiam (Willett, Duncan, Wilson), criminal, sentencing
    • Affirming 256-month sentence on conviction of conspiracy to possess with intent to distribute more than 50 grams of actual methamphetamine.
  • Recendiz-Fernandez v. Garland, 22-60571, petition for review of BIA order
    • per curiam (Dennis, Elrod, Wilson), immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order dismissing his appeal and affirming the Immigration Judge’s (“IJ”) holding that he was ineligible for cancellation of removal.
  • U.S. v. Bennett, 23-10081, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Gage, 23-10378, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • von Falkenhorst v. Hunter, 23-20154, appeal from S.D. Tex.
    • per curiam (Jones, Smith, Dennis), § 1983
    • Affirming 12(b)(6) dismissal of First and Fourteenth Amendment claims.
  • U.S. v. Jones, 23-20192, appeal from S.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, guilty plea
    • Affirming conviction of conspiracy to commit health care fraud, finding sufficient evidence to support factual basis for guilty plea.
  • U.S. v. Lopez-Hernandez, 23-40102, appeal from S.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming sentence on conviction of importing into the United States approximately 51 kilograms of a mixture or substance containing a detectable amount of methamphetamine.
  • U.S. v. Leal, 23-40120, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, guilty plea
    • Affirming sentence on conviction of wire fraud, holding that defendant had not preserved issue of government’s breach of plea agreement.
  • U.S. v. Booker, 23-60076, appeal from S.D. Miss.
    • per curiam (Wiener, Stewart, Douglas), criminal, sufficiency of evidence
    • Affirming conviction of forcibly assaulting a federal officer engaged in the performance of his official duties, and discharging a firearm during and in relation to a crime of violence.
  • Moody v. Walmart, Inc., 23-60127, appeal from S.D. Miss.
    • per curiam (Clement, Duncan, Douglas), personal tort
    • Affirming judgment on jury verdict in favor of defendant in premises liability case.