February 19-21, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. King, 22-20620, appeal from S.D. Tex.
    • Jones, J. (Jones, Haynes, Douglas), criminal, sentencing, restitution
    • Affirming convictions for healthcare fraud and receiving Medicare kickbacks, upholding the admission of recordings of the co-conspirators, the calculation of the amount of improper benefit for sentencing purposes, and the calculation of the restitution award.
  • McNeal v. LeBlanc, 22-30180, appeal from M.D. La.
    • per curiam (voting against en banc rehearing: Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Douglas, Ramirez, JJ.; voting for en banc rehearing: Richman, Jones, Smith, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); Duncan, J., dissenting from denial of rehearing (joined by Richman, Jones, Smith, Engelhardt, Oldham, Wilson, JJ.); Oldham, J., dissenting from denial of rehearing (joined by Jones, Smith, Ho, Duncan, Engelhardt, and Wilson, JJ.); qualified immunity
    • Denying en banc rehearing of panel decision affirming denial of motion to dismiss on qualified immunity, regarding plaintiff’s claims against Department of Public Safety and Corrections official for over-detention.
    • Judge Duncan dissented, as he would hold that the Fifth Circuit has “underruled” Connick v. Thompson, 563 U.S. 51 (2011), reading out the requirement of a pattern of similar violations before grounding a claim against state officials under § 1983.
    • Judge Oldham dissented, summarizing, “McNeal alleged the Secretary wrongfully detained him for 41 days. All agree McNeal could have sought habeas relief during those 41 days. But he chose not to do that. He instead slept on his habeas rights, got out of jail, and then sought declaratory relief, compensatory and punitive damages, and attorneys’ fees under 42 U.S.C. § 1983. A panel of our court blessed that approach, effectively holding that the federal habeas statute and § 1983 offer prisoners like McNeal an election of remedies: The former allows prisoners to get out of jail, while the latter allows prisoners to stay in jail and then sue for compensation later. That conflicts with multiple Supreme Court cases[.]”
  • Brown v. Pouncy, 22-30691, appeal from W.D. La.
    • Higginson, J. (Graves, Higginson, Ho), § 1983, timeliness
    • Affirming that, under Fifth Circuit precedent, Louisiana’s one-year prescriptive period for tort claims applies to a § 1983 claim arising from alleged police brutality, and that the plaintiff’s claim was therefore untimely.
  • U.S. v. Abundiz, 22-50697, appeal from W.D. Tex.
    • Higginbotham, J. (Higginbotham, Higginson, Duncan), criminal
    • Affirming conviction and life sentence for sexual abuse of defendant’s six-year-old niece; rejecting arguments that district court denied defendant’s confrontation right and violated the requirements of 18 U.S.C. § 3509 by allowing the victim to testify by CCTV, admitting evidence of a previous sexual assault, admitting evidence of possession of child pornography, and instructing the jury regarding evidence admitted under F.R.E. 413 and 414.
  • U.S. v. Gentile, 22-50837, appeal from W.D. Tex.
    • Higginbotham, J. (Higginbotham, Smith, Higginson), criminal, sentencing
    • Affirming sentence on guilty plea conviction of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine, rejecting argument that the district court judge improperly coerced the defendant into withdrawing objections to the PSR by threatening withdrawal of credit for acceptance of responsibility.
  • Swiss Re Corporate Solutions America Insurance Co. v. Fieldwood Energy III, L.L.C., 23-20104, appeal from S.D. Tex.
    • Southwick, J. (Southwick, Engelhardt, Wilson, JJ.), bankruptcy, mootness
    • Affirming district court’s holding that insurers’ challenge to confirmation order stripping them of subrogation rights was statutorily and equitably moot under § 363(m) of the Bankruptcy Code and the Circuit’s caselaw; rejecting insurers’ argument that the statutory mootness regime was altered by MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 299 (2023).
  • Cameron Parish Recreation #6 v. Indian Harbor Insurance Co., 23-30181, c/w Police Jury of Cameron Parish v. Indian Harbor Insurance Co., 23-30182, c/w School Board of Cameron Parish v. Indian Harbor Insurance Co., 23-30183, appeal from W.D. La.
    • per curiam (Jones, Haynes, Douglas), arbitration
    • Vacating discovery orders and remanding to district court to determine if it should immediately grant a stay pending arbitration without need for discovery into the question of arbitrability, on observing that the arbitration question could be determined without discovery.
  • U.S. v. Anderson, 23-60040, appeal from S.D. Miss.
    • Higginson, J. (Higginbotham, Higginson, Duncan), criminal, sufficiency of evidence, recusal
    • Affirming conviction and sentence for assault with a dangerous weapon and assault resulting in serious bodily injury, and using a gun during and in relation to a crime of violence, finding that there was sufficient evidence to support the conviction, and rejecting defendant’s argument that the district court erred in denying his motion to recuse the prosecutor due to his representation of the defendant on prior occasions when the defendant was a public defender.

Unpublished

  • Alliance for Fair Board Recruitment v. Securities and Exchange Commission, 21-60626, petition for review of SEC Order
    • en banc per curiam, administrative law
    • Granting en banc review of panel opinion 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.
  • U.S. v. Shinall, 23-10109, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal
    • Affirming conviction of possession of a firearm by a felon.
  • U.S. v. Mora, 23-10504, appeal from N.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming sentence on conviction of conspiracy to possess with the intent to distribute 500 grams or more of methamphetamine and possession with the intent to distribute 50 grams or more of methamphetamine; upholding application of two-level sentencing enhancement for maintaining a premises for the purpose of drug manufacturing or distribution.
  • Xia v. Lina T. Ramey, and Associates, 23-10508, appeal from N.D. Tex.
    • per curiam (Jolly, Higginson, Duncan), employment discrimination
    • Affirming dismissal of claims for employment discrimination and harassment, fraud, promissory estoppel, and violations of the H-1B visa statute.
  • Harris v. Amazon.com, Inc., 23-10556, appeal from N.D. Tex.
    • per curiam (Davis, Willett, Oldham), employment discrimination
    • Vacating 12(b)(6) dismissal of Title VII claims, and remanding for further proceedings.
  • U.S. v. Rios-Hernandez, 23-20320, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Jackson v. Ware Youth Center, 23-30348, appeal from W.D. La.
    • per curiam (Stewart, Clement, Ho), § 1983
    • Affirming dismissal of former youth detainee’s § 1983 claim as untimely.
  • Terrell v. Town of Woodworth, 23-30510, appeal from W.D. La.
    • per curiam (Stewart, Clement, Ho), § 1983
    • Affirming dismissal of Fourth and Fourteenth Amendment claims and Monell claims, and decision to not exercise supplemental jurisdiction over state-law claims.
  • U.S. v. Barba, 23-40312, appeal from S.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
    • Affirming in part and dismissing in part appeal of sentence for conviction of smuggling goods into the United States.
  • Johnston v. Kroeger, 23-50254, appeal from W.D. Tex.
    • per curiam (Jones, Haynes, Douglas), copyright
    • Affirming summary judgment dismissal of copyright-breach claim regarding musical composition against defendant members of Nickelback.
  • U.S. v. Davis, 23-50797, appeal from W.D. Tex.
    • per curiam (Clement, Engelhardt, Ramirez), criminal
    • Dismissing for lack of appellate jurisdiction appeal from interlocutory order denying motion to appoint new stand-by counsel.
  • U.S. v. Rentfrow, 23-60054, appeal from S.D. Miss.
    • per curiam (Jones, Haynes, Douglas), criminal
    • Affirming convictions of members of Aryan Circle related to attempted murder of a fellow inmate.