March 15, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Cloud v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan, 22-10710, appeal from N.D. Tex.
    • per curiam (voting against en banc rehearing: Jones, Smith, Stewart, Southwick, Haynes, Higginson, Willett, Duncan, Engelhardt, Oldham, Wilson, JJ.; voting for en banc rehearing: Richman, Elrod, Graves, Ho, Douglas, JJ.; recused: Ramirez, J.); Graves, J., dissenting from denial of en banc rehearing; ERISA
    • Denying en banc rehearing of panel opinion reversing district court’s order of reclassification of former NFL player to the highest level of disability plan benefits under the League’s retirement and disability plan, holding that the former player had not timely appealed the initial classification and had failed to show a change of circumstances between that classification and the request for reclassification.
    • Judge Graves dissented from the denial of rehearing. He would hold that the plaintiff had presented sufficient evidence to the board to show a new or different impairment that would have justified reclassification.
  • Calogero v. Shows, Cali & Walsh, L.L.P., 22-30487, appeal from E.D. La.
    • Oldham, J. (Clement, Haynes, Oldham), Fair Debt Collection Practices Act
    • Reversing summary judgment in favor of defendant collections law firm on plaintiffs’ FDCPA claims, and remanding for further proceedings.
    • The Court held that summary judgment was inappropriate for the defendant where evidence supported a potential reasonable jury verdict that the defendant misrepresented the judicial enforceability of time-barred debts for alleged over-payments of “Road Home” funds following Hurricane Katrina, mischaracterized the plaintiffs’ debt, and misrepresented the availability of attorneys’ fees.
  • U.S. v. Schorovsky, 23-50040, appeal from W.D. Tex.
    • Willett, J. (Elrod, Willett, Duncan), criminal, guilty plea, sentencing, Armed Career Criminal Act
    • Affirming fifteen-year sentence for possession of a firearm by a felon, though application of ACCA enhancement based on predicate convictions of felony robbery, aggravated robbery, and burglary of a habitation.

Unpublished

  • U.S. v. Powdrill, 23-10182, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), criminal
    • Affirming denial of defendant’s motion alleging that 18 U.S.C. § 3583(g) is unconstitutional.
  • U.S. v. Ruiz, 23-10406, appeal from N.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal
    • Affirming conviction of possession of a firearm in furtherance of a drug-trafficking crime.
  • U.S. v. Hernandez, 23-10423, appeal from N.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Eylar, 23-10741, appeal from N.D. Tex.
    • per curiam (Higginbotham, Stewart, Elrod), criminal, guilty plea
    • Affirming conviction and 360-month sentence for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.
  • U.S. v. Roger, 23-10816, appeal from N.D. Tex.
    • per curiam (King, Haynes, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Aguilar, 23-10866, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • U.S. v. Anderson, 23-10907, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming 8-month sentence on revocation of supervised release.
  • U.S. v. Lowe, 23-10947, appeal from N.D. Tex.
    • per curiam (Jones, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Owens, 23-20093, appeal from S.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), criminal, sentencing, restitution
    • Affirming conviction, 147-month sentence, and $627,971 restitution award for aiding and abetting interference with commerce by robbery and aiding and abetting brandishing of a firearm during and in relation to a crime of violence.
  • Davis v. Wise, 23-20331, c/w 23-20339, appeal from S.D. Tex.
    • per curiam (Davis, Willett, Oldham), prisoner suit
    • Affirming dismissal of Texas state prisoner’s § 1983 claims against medical providers.
  • U.S. v. Barron, 23-30163, appeal from W.D. La.
    • per curiam (Elrod, Oldham, Wilson), criminal, search and seizure
    • Affirming convictions for possession of methamphetamine with the intent to distribute and for possession of a firearm by a felon, upholding denial of motion to suppress.
  • U.S. v. Helmstetter, 23-30384, appeal from E.D. La.
    • per curiam (Elrod, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Bell, 23-30430, appeal from M.D. La.
    • per curiam (Barksdale, Graves, Oldham), criminal, sentencing
    • Affirming 24-month sentence on revocation of supervised release.
  • Fitch v. U.S., 23-40131, appeal from E.D. Tex.
    • per curiam (Higginbotham, Stewart, Southwick), prisoner suit
    • Affirming denial of preliminary injunction in federal prisoner’s FTCA claim.
  • U.S. v. Taylor, 23-40273, appeal from S.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, sufficiency of evidence, supervised release
    • Affirming convictions of sexual exploitation of a child and distribution of child pornography, and affirming conditions of supervised release portion of sentence.
  • U.S. v. Rucker, 23-40288, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Lopez v. Ramirez, 23-40461, appeal from S.D. Tex.
    • per curiam (Davis, Willett, Oldham), legislative immunity, qualified immunity, First Amendment
    • Vacating district court’s denial of school board defendants’ motion to dismiss for legislative or qualified immunity from teachers’ claims of First Amendment retaliation, and remanding to district court to evaluate motion on a plaintiff-by-plaintiff, defendant-by-defendant basis and to provide reasons for judgment.
  • U.S. v. Jimenez, 23-50511, appeal from W.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Saquing v. Mallett, 23-60031, appeal from S.D. Miss.
    • per curiam (Higginbotham, Stewart, Southwick), prisoner suit
    • Affirming dismissal of Mississippi state prisoner’s § 1983 suit for failure to exhaust administrative remedies.
  • Quijada-Jimenez v. Garland, 23-60343, petition for review of BIA order
    • per curiam (Elrod, Oldham, Wilson), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order upholding the denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Razo v. Garland, 23-60355, petition for review of BIA order
    • per curiam (Jones, Southwick, Ho), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order dismissing her appeal from an order of an Immigration Judge (IJ) denying her applications for withholding of removal and cancellation of removal and ordering her removed.
  • U.S. v. Puri, 23-60414, appeal from S.D. Miss.
    • per curiam (Elrod, Oldham, Wilson), criminal, sentencing
    • Affirming 87-month sentence on conviction of conspiracy to commit bank fraud, mail fraud, and wire fraud.
  • Al Fayad v. Garland, 23-60440, petition for review of BIA order
    • per curiam (King, Haynes, Graves), immigration
    • Denying Kuwaiti citizen’s petition for review of BIA order dismissing his appeal from an order of an Immigration Judge (IJ) denying his application for, inter alia, asylum and withholding of removal and ordering him removed.