August 16-21, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Aben v. Garland, 20-60937, petition for review of BIA order
    • Richman, C.J. (Richman, Ho, Engelhardt), Ho, J., dissenting in part; immigration
    • Granting Cameroonian citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of applications for asylum and withholding of removal (denying petition for review of denial of protection under the Convention Against Torture), vacating BIA’s opinion, and remanding for further proceedings.
    • The Court found, “Aben was arrested and detained three times; held in unlawful captivity for a total of six days; slapped, kicked, and knocked in the head; beaten with a belt and a stick; suffered several lacerations, blisters, sores, and bruises; threatened with death while held at gunpoint; and told he would be killed if he did not run fast enough to escape. The BIA’s determination must be vacated because it fails to account for the credible death threats that Aben received. Soldiers told Aben that they would kill him and all the other ‘Anglo fools … one by one.’ Soldiers in his last detainment said they would not ‘bother’ to take his ID because he would be killed shortly. These were credible threats.” Accordingly, the Court vacated the BIA’s determination that the petitioner had not suffered past persecution.
    • The Court also held that “[t]he BIA’s determination that Aben did not prove a nexus between his harms and a protected ground is also not supported by substantial evidence.”
    • Judge Ho dissented “in part,” though he would have fully denied the petition for review on the basis that he would find that the record supported the BIA’s determination regarding improved country conditions in Cameroon.
  • Kansas City Southern Railway CO. v. Sasol Chemicals (USA), L.L.C., 23-10048, appeal from N.D. Tex.
    • Southwick, J. (Southwick, Engelhardt, Wilson), breach of contract
    • Reversing the district court’s judgment that a contract payment provision was ambiguous regarding whether the linear feet of track comprising switches within a railyard were to be included in the calculation of payment under the contract, holding instead that the contract was unambiguous and did include the switch track in the linear feet calculation, and remanding.
  • Arms of Hope v. City of Mansfield, 23-10656, appeal from N.D. Tex.
    • Smith, J. (Smith, Engelhardt, Ramirez), mootness, First Amendment
    • Dismissing as moot cross-appeals from preliminary injunction enjoining enforcement of a 2023 ordinance regarding unattended donation boxes on First Amendment grounds, after passage of new 2024 ordinance that addressed the narrow-tailoring concerns in the preliminary injunction, though holding that the underlying suit itself had not been mooted by the new ordinance.
  • U.S. v. Smith, 23-20354, appeal from S.D. Tex.
    • Smith, J. (Jones, Smith, Ho), criminal, sentencing
    • Affirming sentence for conviction of enticing a minor to engage in prostitution, holding that the district court did not err in applying sentencing enhancements for the defendant’s undue influence over the 13-year-old victim and for the victim’s status as a “vulnerable victim.”
  • Porretto v. City of Galveston Park Board of Trustees, 23-40035, appeal from S.D. Tex.
    • King, J. (King, Jones, Oldham), standing, jurisdiction, takings
    • Affirming dismissal for lack of standing the plaintiff property owner’s takings claims against the Texas General Land Office and its Commissioner, but without prejudice to an opportunity to redress deficiencies in allegations through amendment; vacating dismissal of takings claims against Park Board and City, agreeing that the district court did not have bankruptcy jurisdiction but holding that the district court did have federal question jurisdiction over the plaintiff’s constitutional claims; and remanding for further proceedings.
  • Diamond Services Corp. v. RLB Contracting, Inc., 23-40137, appeal from S.D. Tex.
    • Higginson, J. (Graves, Higginson, Ho), breach of contract, Miller Act, maritime law
    • Affirming summary judgment dismissal of plaintiff sub-sub-contractor’s Miller Act and quantum meruit claims against contractor and subcontractor and payment-bond surety, and dismissing as untimely the plaintiff’s tug-expenses contract claim.
  • Reule v. Jackson, 23-40478, appeal from E.D. Tex.
    • Ramirez, J. (Smith, Engelhardt, Ramirez), standing, jurisdiction, First Amendment
    • Affirming dismissal for lack of an Article III controversy or standing plaintiffs’ claims against state district court judges and court personnel challenging Texas’s vexatious litigant statute as an unconstitutional prior restraint on free speech.

Unpublished

  • Carrillo v. Union Pacific Railroad Co., 22-50782, appeal from W.D. Tex.
    • per curiam (Dennis, Engelhardt, Oldham), Dennis, J., dissenting; Americans with Disabilities Act
    • Affirming summary judgment dismissal of plaintiff employee’s ADA claims.
    • Judge Dennis dissented. “There is sufficient evidence in the record to suggest that Union Pacific neither considered the ‘best available objective evidence’ nor made an ‘individualized assessment’ of Mr. Carrillo when it found that his single incident of unconsciousness was enough to determine that he had a seizure, and thus his continued employment would pose a direct threat to the safety of others.”
  • U.S. v. Perez, 23-11040, appeal from N.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal, sentencing
    • Affirming 262-month sentence on conviction of distribution and possession with intent to distribute fentanyl resulting in death.
  • U.S. v. Espinoza-Camacho, 23-11178, appeal from N.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal, sentencing
    • Affirming 24-month sentence on conviction of illegal reentry.
  • U.S. v. Gomez, 23-20068, appeal from S.D. Tex.
    • Graves, J. (Clement, Graves, Ramirez), criminal, sentencing, search and seizure
    • Affirming conviction and 120-month sentence for possession of a firearm by a felon, upholding denial of motion to suppress.
  • U.S. v. Milanes, 23-20347, appeal from S.D. Tex.
    • per curiam (Haynes, Higginson, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Azad, 23-20388, appeal from S.D. Tex.
    • per curiam (Barksdale, Stewart, Ramirez), criminal, sentencing
    • Affirming 188-month sentence on conviction of conspiracy to commit mail fraud and mail fraud.
  • Van Deelen v. Dickson, 23-20436, appeal from S.D. Tex.
    • per curiam (Higginson, Willett, Oldham), bankruptcy, fraud, breach of fiduciary duty
    • Vacating district court’s judgment affirming bankruptcy court’s dismissal of plaintiff’s fraud, breach of fiduciary duty, and related claims against current and former employees of company that had filed for Chapter 11 bankruptcy, and remanding to district court to remand to bankruptcy court for supplemental fact-findings and conclusions of law.
  • Williams v. Nettles, 23-30347, appeal from M.D. La.
    • per curiam (Barksdale, Southwick, Graves), prisoner suit
    • Affirming dismissal of Louisiana state prisoner’s § 1983 claims.
  • Smith v. BP Exploration & Production, Inc., 23-30619, appeal from E.D. La.
    • per curiam (Davis, Southwick, Duncan), toxic tort
    • Affirming summary judgment dismissal of personal injury claims arising from cleanup of Deepwater Horizon spill.
  • U.S. v. Goins, 23-30726, appeal from W.D. La.
    • per curiam (Southwick, Haynes, Douglas), criminal, sentencing
    • Affirming 60-month sentence on conviction of wire and bankruptcy fraud.
  • U.S. v. Vazquez-Padilla, 23-40641, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Wilson), criminal, sentencing
    • Dismissing under appeal-waiver in plea agreement appeal of 210-month sentence on conviction of conspiracy to import and conspiracy to possess with intent to distribute 50 grams of methamphetamine and 500 grams or more of a substance containing a detectable amount of methamphetamine.
  • U.S. v. Rodriguez-Gutierrez, 23-50486, appeal from W.D. Tex.
    • per curiam (Barksdale, Stewart, Ramirez), criminal, sentencing
    • Affirming 210-month sentence on conviction of conspiracy to import more than five kilograms of cocaine.
  • Coleman v. Lauderdale County, 23-60603, appeal from S.D. Miss.
    • per curiam (Stewart, Haynes, Higginson), prisoner suit
    • Dismissing for lack of appellate jurisdiction appeal from certain orders in Mississippi pretrial detainee’s §1983 action.
  • U.S. v. Murphy, 23-60611, appeal from S.D. Miss.
    • per curiam (King, Southwick, Engelhardt), criminal, compassionate release
    • Affirming denial of motion for sentence reduction.
  • Montes v. Tibbs, 24-20135, appeal from S.D. Tex.
    • per curiam (Willett, Duncan, Ramirez), breach of contract, jurisdiction
    • Affirming as modified dismissal of breach-of-contract claims for lack of subject-matter jurisdiction and designation as vexatious litigant.
  • U.S. v. Egans, 24-30072, appeal from W.D. La.
    • per curiam (Graves, Willett, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cawthorne, 24-30090, c/w 24-30129, appeal from W.D. La.
    • per curiam (Graves, Willett, Wilson), criminal, compassionate release
    • Dismissing as moot appeal from denial of motion for sentence reduction.
  • Charles v. LeBlanc, 24-30484, appeal from W.D. La.
    • per curiam (Jones, Duncan, Douglas), Douglas, J., dissenting; prisoner suit
    • Holding appeal in abeyance until district court rules on motion for reconsideration.
    • Judge Douglas dissented, and would dismiss appeal for lack of appellate jurisdiction.
  • U.S. v. Rubio-Sorto, 24-40233, appeal from S.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Tooker, 24-60004, appeal from S.D. Miss.
    • per curiam (Smith, Stewart, Duncan), criminal, sentencing
    • Affirming 24-month sentence on conviction of escaping the custody of a federal institution.