December 12-14, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Jackson, 22-10803, appeal from N.D. Tex.
    • Duncan, J. (Higginbotham, Higginson, Duncan), criminal, guilt plea
    • Affirming conviction of attempted interference with commerce by robbery, finding sufficient evidence in the record to support the defendant’s guilty plea.
  • Markham v. Variable Annuity Life Insurance Co., 22-20540, appeal from S.D. Tex.
    • Haynes, J. (Clement, Haynes, Oldham), ERISA
    • Affirming dismissal of ERISA claim against insurance company hired by plan’s sponsor, administrator, and fiduciary to maintain the plan on its platform.
  • Wilson v. Midland County, 22-50998, appeal from W.D. Tex.
    • Willett, J. (King, Willett, Douglas), § 1983
    • Affirming dismissal of plaintiff’s claim for deprivation of due process when she discovered, after serving her complete sentence such that habeas relief was not available, that a prosecutor who worked on her case was also a law clerk for the judge who ruled over her case; dismissal was based on the bar in Heck v. Humphrey that a party bringing a § 1983 claim for unconstitutional conviction must first show that the conviction or sentence was reversed on appeal or otherwise declared invalid by writ of habeas.
    • While the Court acknowledged that the “ancient symbols of fairness and clear-sightedness—the very moral force underlying a just legal system—are mocked if one side can rig the game by calling its own balls and strikes,” and that the prosecutor/law clerk’s “conflict of interest was undeniable, and it flattened Wilson’s constitutional guarantee of a fair trial,” the Court held that it was constrained by the rule of orderliness to follow Circuit precedent that the Heck bar is applicable even to noncustodial plaintiffs “even if it’s practically impossible for them to do so.”
    • The Court concluded, “This result is unseemly. Absent § 1983, noncustodial individuals on the receiving end of violative conduct, however egregious, will have no federal forum to vindicate their federal constitutional rights. But as a three-judge panel bound by controlling circuit precedent, our hands are tied. Only the en banc court, or the United States Supreme Court, can deliver a different result that better aligns with Congress’ broad textual command in § 1983. Until then, this panel must AFFIRM.” By footnote, the Court also noted, “Or, and hear me out, Congress can always legislate, reclaiming its lawmaking prerogative against court-invented, counter-textual limitations on the broad statutory remedy that Congress crafted.”
  • Smith v. U.S., 23-30063, appeal from W.D. La.
    • Willett, J. (Wiener, Willett, Douglas), Rule 60(b), schools desegregation
    • Affirming district court’s denial under Rule 60(b)(5) of modification of consent order in schools desegregation case that required charter school operator to implement a race-conscious enrollment process, on the basis that the charter operator had forfeited any argument that the district court had abused its discretion.
    • “Delta referenced Rule 60(b)(5) only once, made zero mention of the applicable abuse-of-discretion standard of review, and summarized the district court’s analysis in two short paragraphs—only to never discuss it again. Delta merely repeated the same argument it raised below: that the 2018 Consent Order’s Enrollment Process has always been unconstitutional under Parents Involved. Nowhere did Delta explain how the district court erred in denying modification—that is, Delta failed to identify any facts or law raised to the district court that have changed significantly since 2018 and would thus justify relief.”
  • Lutostanski v. Brown, 23-50257, appeal from W.D. Tex.
    • Oldham, J. (Clement, Engelhardt, Oldham), standing, election law
    • Agreeing with district court’s holding that plaintiff’s lacked standing to bring claims arising from county’s use of certain electronic voting equipment in the 2020 elections. However, because case had been removed from state court, the Court held that the remedy upon a finding of lack of Article III jurisdiction was not dismissal, but remand to the state court. Accordingly, Court vacated the dismissal order and remanded with instructions to remand to state court.

Unpublished

  • Utah Retirement Systems v. McCollum, 21-20312, appeal from S.D. Tex.
    • per curiam (Dennis, Southwick, Wilson), securities fraud
    • Affirming dismissal of securities fraud class action lawsuit on a finding that plaintiff inadequately pled the element of scienter.
  • U.S. v. Pichon, 22-10860, appeal from N.D. Tex.
    • per curiam (Clement, Southwick, Ho), criminal, sentencing
    • Affirming 120-month sentence on conviction of possession of a firearm by a felon.
  • U.S. ex rel. Vaughn v. Harris County Hospital District, 22-20659, appeal from S.D. Tex.
    • Graves, J. (Graves, Higginson, Ho), False Claims Act
    • Affirming dismissal of False Claims Act action on basis that complaint was “substantially the same as publicly disclosed allegations.”
  • U.S. v. Pena, 22-40808, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Edwards, 22-40828, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, search and seizure
    • Affirming conviction of possession with the intent to distribute 50 grams or more of methamphetamine, upholding denial of motion to suppress.
  • U.S. v. Sansom, 22-51085, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Carroll, 23-10090, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Wilson), criminal, sentencing
    • Affirming 150-month sentence on conviction of possession with intent to distribute.
  • U.S. v. Avila-Gonzalez, 23-10161, appeal from N.D. Tex.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
    • Affirming sentence on conviction of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine.
  • U.S. v. Hutchinson, 23-10219, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing, restitution, forfeiture, supervised release
    • Dismissing in part appeal of 219-month sentence, restitution award, and forfeiture order on conviction of conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and using, carrying, and brandishing a firearm during and in relation to a crime of violence; affirming in part; and remanding to conform supervised release terms to orally pronounced judgment.
  • U.S. v. Mitchell, 23-10371, appeal from N.D. Tex.
    • per curiam (Jones, Smith, Dennis), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Whitfield, 23-10389, appeal from N.D. Tex.
    • per curiam (Jones, Smith, Dennis), criminal, sentencing
    • Affirming conviction and 100-month sentence for possession of a firearm by a felon.
  • U.S. v. Sotelo, 23-10405, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Brown, 23-10464, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal, Sixth Amendment
    • Affirming conviction of possession of a machine gun.
  • Lucero v. Wheels India, Ltd., 23-10494, appeal from N.D. Tex.
    • Jolly, J. (Jolly, Engelhardt, Oldham), service of process, personal tort
    • Vacating dismissal of plaintiff’s complaint for failure to serve the defendant, reversing the denial of plaintiff’s motion to serve the defendant through electronic means, and remanding for further proceedings.
  • U.S. v. Ivory, 23-10545, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Affirming revocation of supervised release.
  • U.S. v. Granados, 23-10631, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming 64-month sentence on conviction of illegal reentry.
  • McDonald v. Garrido, 23-10658, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), habeas corpus
    • Affirming dismissal of § 2241 petition.
  • U.S. v. Marshall, 23-10677, appeal from N.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal
    • Affirming revocation of supervised release.
  • Eads v. Spheric Assurance Co., 23-20066, appeal from S.D. Tex.
    • per curiam (Smith, Graves, Wilson), insurance
    • Affirming dismissal without prejudice of claims in insurance coverage dispute on grounds of forum-selection clause.
  • Llagas v. Sealift Holdings, Inc., 23-30047, appeal from W.D. La.
    • per curiam (Richman, Haynes, Duncan), arbitration
    • Affirming orders compelling arbitration and enforcing arbitration award.
  • U.S. v. Suber, 23-30088, appeal from W.D. La.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
    • Affirming 51-month sentence on conviction of causing bodily injury by assaulting, resisting, or impeding certain officers or employees.
  • Stewart v. Gruber, 23-30129, appeal from W.D. La.
    • per curiam (Clement, Haynes, Oldham), breach of contract, expert witness
    • Affirming exclusion of plaintiffs’ expert witness report and grant of defendants’ summary judgment motion in dispute arising from construction contract.
  • Epley v. Luong, 23-40038, appeal from S.D. Tex.
    • per curiam (Richman, Haynes, Duncan), Haynes, J., dissenting; service of process, § 1983
    • Affirming dismissal of § 1983 claims for failure to serve defendants.
    • Judge Haynes dissented, finding the district court abused its discretion in attributing to the pro se plaintiff all two years of delay in service.
  • U.S. v. Flores-Romero, 23-40061, appeal from E.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Morales, 23-40184, appeal from S.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming 135-month sentence on conviction of conspiracy to possess with intent to distribute methamphetamine and heroin and possession with intent to distribute methamphetamine.
  • U.S. v. Lee, 23-40380, appeal from E.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garcia-Elias, 23-40406, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lopez, 23-40447, appeal from E.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Villanueva, 23-50092, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
    • Affirming 36-month sentence on revocation of supervised release.
  • U.S. v. Fragoso, 23-50161, appeal from W.D. Tex.
    • per curiam (Jolly, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez, 23-50210, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming 188-month sentence on conviction of possession with intent to distribute 40 grams or more of fentanyl.
  • U.S. v. Ortega, 23-50217, appeal from W.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • Affirming 120-month sentence on conviction of conspiracy to possess with intent to distribute five or more kilograms of cocaine.
  • U.S. v. Rolando-Padilla, 23-50306, appeal from W.D. Tex.
    • per curiam (Davis, Haynes, Ho), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • U.S. v. Avalos-Sanchez, 23-50342, c/w 23-50356, appeal from W.D. Tex.
    • per curiam (Dennis, Elrod, Wilson), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry and revocation of supervised release.
  • U.S. v. Damaso-Sixtos, 23-50344, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Crittendon v. State of Texas, 23-50411, appeal from W.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), § 1983
    • Affirming dismissal of § 1983 claims against state department of health and human services arising from finding of violation of regulations by plaintiff’s early childhood program.
  • Turnage v. Mississippi Power Co., 23-60154, appeal from S.D. Miss.
    • per curiam (Jones, Smith, Dennis), § 1983
    • Affirming dismissal of § 1983 claim arising from ratepayers’ claims of insufficient refund of overcharged rates, holding that plaintiffs had not sufficiently pled that MPC was a state actor or that they had a protectable property interest in a specific utility rate.
  • Moran v. Garland, 23-60190, petition for review of BIA order
    • per curiam (Elrod, Oldham, Wilson), immigration
    • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal from a decision of an Immigration Judge (IJ) denying his request for relief under former 8 U.S.C. § 1182(c) and ordering him removed.
  • Singh v. Garland, 23-60217, petition for review of BIA order
    • per curiam (Jones, Southwick, Ho), immigration
    • Denying Indian citizen’s petition for review of BIA order denying his motion to reopen.
  • Hernandez-Perez v. Garland, 23-60312, petition for review of BIA order
    • per curiam (Barksdale, Graves, Oldham), immigration
    • Denying Guatemalan citizens’ petition for review of BIA order affirming the denial of: asylum; withholding of removal; and protection under the Convention Against Torture.