Take the Fifth

Designated for publication

• U.S. v. Villarreal, 19-40811, appeal from S.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Elrod), Smith, J., dissenting; criminal, sentencing, Armed Career Criminal Act, habeas corpus
  • On defendant’s § 2255 motion, vacating sentence on conviction of possession of a firearm by a felon, and remanding for resentencing without the ACCA enhancement.
  • On a 2011 charge for possession of a firearm by a felon, the district court had sentenced the defendant to 188 months based on an ACCA enhancement, based on a prior conviction for burglary of a habitation and two prior convictions for aggravated assault. After the Supreme Court held in Johnson v. U.S. in 2015 that the ACCA’s residual clause was unconstitutionally vague, the defendant filed a § 2255 motion to vacate his sentence. While briefing was ongoing at the district court regarding his § 2255 motion, the Supreme Court also decided Mathis v. U.S., which was explicated by the Fifth Circuit in U.S. v. Herrold to hold that the Texas burglary of a habitation offense is not a ACCA predicate offense. The district court held that the defendant’s § 2255 petition was untimely, and the Fifth Circuit denied a COA; the U.S. Supreme Court granted defendant’s petition for certiorari, vacated, and remanded in light of Borden v. U.S. After more procedural contortions, the issue of whether the defendant’s sentence was improperly enhanced under the ACCA’s elements or force clauses was presented.
  • The Court held that the defendant properly asserted a Borden claim and that his § 2255 motion was therefore timely. The Court held that, as a pro se litigant, “Villarreal is not prescient—he could not have known that the technical ‘label’ courts would use to describe the kind of claim he advanced in his supplemental memorandum would be called a ‘Borden‘ claim. While labels are useful analytical tools in distinguishing between different types of claims, they are not dispositive. Rather, although there is limited case law in the Fifth Circuit discussing the standard to assess whether something is a new claim or an argument in furtherance of an existing claim, at minimum this Court looks to the substance of the claim. And in this case, as spelled out in the supplemental memorandum, the substance of Villarreal’s claim is that his predicate aggravated assault convictions did not meet the elements or force clause requirement of the ACCA as they allowed for convictions for reckless conduct without the requisite mens rea. That is a Borden claim.” (Footnote omitted).
  • Reaching the merits of the claim, the Court held that the two predicate aggravated assault convictions did not qualify as violent felonies under the ACCA.
  • Judge Smith dissented. He would hold that the COA issued in the case did not encompass review of the merits of whether the aggravated felony predicate offenses fell within the ACCA enhancement. “[T]he majority turns a blind eye to its jurisdictional limits and functionally answers a similar but distinctly broader question: ‘Does Movant’s petition assert a claim that Movant’s sentence was improperly enhanced under the ‘elements’ or ‘force’ clause of the [ACCA], . . . ?’ That, however, is not the question before us. Exeunt stage left.” (Footnote omitted). Judge Smith then argues that the question actually answered by the majority was not this question, but that it “shoehorn[ed]” the issue of Texas’s aggravated assault mens rea requirement into the defendant’s argument.

• Argueta-Hernandez v. Garland, 22-60307, petition for review of BIA order
  • Douglas, J. (Higginbotham, Graves, Douglas), immigration
  • Granting petition for panel rehearing, withdrawing July 10 panel per curiam that had dismissed petition for review, and substituting new opinion granting Salvadoran citizen’s petition for review of BIA order denying application for withholding of removal and protection under the Convention Against Torture, vacating immigration court decisions, and remanding to the BIA for further proceedings.
  • As the Court summarized, “While living in El Salvador, a leader of the infamous gang, MS-13, and other gang members targeted and threatened Argueta-Hernandez and his family. Despite finding him credible, and despite police reports and evidence corroborating the gang’s threats and attempt to kill Argueta-Hernandez’s son, the Immigration Judge denied his claims and ordered him removed from the United States. Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”
  • As to the withholding of removal claim, the Court held that the BIA and IJ erred in requiring physical injury to establish past persecution. “Threats of death and other serious harms constitute persecution when they are objectively credible.” The Court also held that the BIA erred in holding that the requirement for a nexus between the persecution and only one of the characteristics in § 1231(b)(3)(A), that, “[b]ecause ‘the nexus requirement is not an ‘either-or’ proposition,’ a court must consider the existence of multiple motives for the persecutor’s actions when such evidence exists.” (Internal citation omitted).
  • As to his CAT claim, the Court held that the BIA’s finding was factually and legally unsupportable that there had been no showing that a Salvadoran public official would turn a blind eye to the petitioner’s future torture by MS-13 members. “After Argueta-Hernandez reported MS-13’s attempt to kill his son, four governmental agencies in El Salvador told him that they cannot protect him or his family. … In ruling that Argueta-Hernandez had not established government acquiescence, the BIA and IJ failed to take the facts into consideration.”

Unpublished

• Nicholson v. Bank of America, 22-11064, appeal from N.D. Tex.
  • per curiam (Davis, Southwick, Ho), foreclosure, Rooker-Feldman doctrine
  • Affirming dismissal of plaintiff’s claims arising from foreclosure, pursuant to the Rooker-Feldman doctrine.

• Doe v. Harris County, 22-20652, appeal from S.D. Tex.
  • per curiam (Jones, Barksdale, Elrod), employment discrimination
  • Affirming dismissal of employees’ claims against employer County and County officials.

• U.S. v. Cisneros, 22-40102, appeal from S.D. Tex.
  • per curiam (Davis, Southwick, Ho), habeas corpus, ineffective assistance of counsel
  • Affirming denial of § 2255 petitioner’s IAC claims.

• U.S. v. Zelaya-Guerra, 22-40787, appeal from S.D. Tex.
  • per curiam (Clement, Engelhardt, Oldham), criminal, sufficiency of evidence
  • Affirming denial of motion for acquittal on insufficiency grounds, on charges of unlawful possession of a firearm and ammunition by an undocumented alien.

• U.S. v. Kilpatrick, 23-10129, appeal from N.D. Tex.
  • per curiam (Clement, Southwick, Ho), criminal, supervised release
  • Affirming conditions of supervised release after sentencing for violating those conditions, rejecting defendant’s argument that the order of supervised release was ambiguous and impermissibly delegated sentencing authority to the probation officer.

• U.S. v. McDonald, 23-10153, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Casas v. Lickity Split Expediting, L.L.C., 23-10311, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), remand, attorneys’ fees
  • Affirming award of $35,980 in attorneys’ fees for wrongful removal in remand of case from second removal.

• U.S. v. Ping Express US, L.L.C., 23-10360, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal, guilty plea
  • Affirming guilty-plea conviction of failure to maintain an effective anti-money laundering program and operating an unlicensed money transmitting business, holding that there was no violation of the plea agreement by the government’s recommendation of a lesser sentence than that agreed to in the plea agreement, and that there was a sufficient factual basis for the plea.

• Cyrilien v. Texas Department of Justice, 23-20145, appeal from S.D. Tex.
  • per curiam (Dennis, Engelhardt, Wilson), Americans with Disabilities Act
  • Affirming summary judgment in favor of employer on employee’s failure-to-accommodate claims under the ADA.

• Moore v. Tangipahoa Parish School Board, 23-30328, appeal from E.D. La.
  • per curiam (Jones, Southwick, Ho), schools desegregation, mootness
  • Affirming dismissal of plaintiff’s request for further injunctive relief on his claims arising from high school athletic association’s determination of ineligibility after his transfer from a majority Black high school to a majority white high school in school system subject to desegregation order. “The newly modified desegregation order ensures that Jackson, and all other African American students subject to the desegregation orders, will have immediate athletic eligibility in their new schools after utilizing any transfer option available under the desegregation orders. The district court considered plaintiffs’ issues and ruled in their favor. As a result, no additional injunctive relief is necessary and the plaintiffs’ request for additional injunctive relief is moot.”

• Galan v. Deepwater Horizon Medical Benefits Settlement Claims Administrator, 23-30459, appeal from E.D. La.
  • per curiam (Dennis, Engelhardt, Wilson), personal tort, subject-matter jurisdiction
  • Vacating district court’s 12(b)(6) dismissal of plaintiff’s negligence claims against claims administrator, and remanding to district court to instead dismiss for lack of subject-matter jurisdiction on the basis that the plaintiff’s complaint fails to establish the amount-in-controversy for purposes of diversity jurisdiction.

• U.S. v. Fields, 23-50070, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, supervised release
  • Affirming revocation of supervised release.