U.S. Fifth Circuit: November 2009 Archives
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November 2009 Archives

US v. Carey, No. 08-60961

Defendant's aggravated sexual abuse of a minor conviction and sentence are affirmed where: 1) the admissibility of testimony accompanied by a Fed. R. Evid. 612 refreshment did not depend upon the source of the writing, the identity of the writing's author, or the truth of the writing's contents; 2) a victim-witness's youth and nervousness could satisfy Rule 611's necessity requirement; and 3) defendant's sentence was not procedurally unreasonable because the district court examined the 18 U.S.C. section 3553 factors.

Read US v. Carey, No. 08-60961

Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge Elrod

Ackerson v. Bean Dredging LLC, No. 07-30272

In an action claiming that defendant-contractors' dredging activities caused environmental damage to protective wetlands in the Mississippi River Gulf Outlet, dismissal of the complaint is affirmed where the dredging was authorized by statute and plaintiffs did not allege that defendants exceeded their Congressional authority or in any way deviated from Congress's direction or expectations.

Read Ackerson v. Bean Dredging LLC, No. 07-30272

Appellate Information

Filed November 25, 2009

Judges

Opinion by Judge Owen

US v. Daniels, No. 08-30558

Denial of defendant's petition under 28 U.S.C. section 2255 for relief from his marijuana possession sentence is affirmed where, notwithstanding its procedural dismissal based on deferred adjudication, defendant's Texas guilty plea for aggravated assault could count toward defendant's status as a career offender under the Sentencing Guidelines.

Read US v. Daniels, No. 08-30558

Appellate Information

Filed November 16, 2009

Judges

Per Curiam

Artisan/Am. Corp. v. City of Alvin, No. 09-20174

In an action alleging that defendant-city's denial of a permit for plaintiff to construct a low-income housing project was motivated by racial animus and that it had a discriminatory impact on racial minorities, summary judgment for defendant is affirmed where: 1) there was no evidence that the resolutions passed by the city council constituted departures from the city's normal policy and procedure; 2) the city's interpretation of its own ordinance was not unreasonable; and 3) plaintiffs failed to raise a fact question as to whether the city's actions caused a significant discriminatory effect.

Read Artisan/Am. Corp. v. City of Alvin, No. 09-20174

Appellate Information

Filed November 13, 2009

Judges

Opinion by Judge Higginbotham

Depree v. Saunders, No. 08-60978

In a First Amendment action by a state university professor alleging that defendants deprived plaintiff of his ability to teach because he criticized the university, summary judgment for defendants is affirmed in part where: 1) no clearly established law dictated that a university official sued in her individual capacity could not impose discipline on plaintiff; and 2) plaintiff failed to identify a cognizable property right for due process purposes.  However, the order is reversed in part where plaintiff's claim against university administrators in their official capacities could yield prospective injunctive relief.

Read Depree v. Saunders, No. 08-60978

Appellate Information

Filed November 12, 2009

Judges

Opinion by Judge Jones

McFadin v. Gerber, No. 09-50083

In an action for breach of a sales representative agreement, dismissal of the action for lack of personal jurisdiction is affirmed in part where one defendant's mere act of contracting with a resident of the forum state did not establish minimum contacts.  However, the order is reversed in part where other defendants sufficiently directed the sale of the merchandise at issue into Texas such that they could reasonably anticipate being haled into court there.

Read McFadin v. Gerber, No. 09-50083

Appellate Information

Filed November 9, 2009

Judges

Opinion by Judge Higginbotham

US v. Jasso, No. 08-10453

Defendant's illegal reentry sentence is affirmed where: 1) the district court erred in assigning defendant two additional criminal history points, pursuant to U.S.S.G. sections 4A1.2(e) and (k), based on his prior assault conviction in state court, because it was error to count defendant's entire sentence issued upon his violation of probation, rather than considering only the portion of the sentence he actually served; but 2) the error did not affect defendant's substantial rights and thus was not plain error.

Read US v. Jasso, No. 08-10453

Appellate Information

Filed November 9, 2009

Judges

Opinion by Judge Benavides

Safety Nat'l. Cas. Corp. v. Certain Underwriters at Lloyd's, No. 06-30262

In an appeal from the denial of a motion to compel arbitration of a contractual dispute among insurers, the order is reversed where the McCarran-Ferguson Act does not authorize state law to reverse-preempt the Convention on the Recognition and Enforcement of Foreign Arbitral Awards or its implementing legislation.

Read Safety Nat'l. Cas. Corp. v. Certain Underwriters at Lloyd's, No. 06-30262

Appellate Information

Filed November 9, 2009

Judges

Opinion by Judge Owen

US v. Cockrell, No. 08-41008

Defendant's conviction for conspiracy to possess with intent to distribute heroin resulting in serious bodily injury is affirmed over a claim that certain evidence was improperly admitted where: 1) defendant's prior conviction was relevant to show intent because both the extrinsic offense and the charged offense involved an intent to distribute; and 2) a prior arrest for heroin possession was relevant to show that defendant had the requisite intent for the crime charged.

Read US v. Cockrell, No. 08-41008

Appellate Information

Filed November 6, 2009

Judges

Opinion by Judge Garza

US v. Rose, No. 08-10813

Defendant's drug and firearm possession convictions and sentence are affirmed where: 1) the district court erred by admitting a drug lab report that was a testimonial statement and thus hearsay, but this did not rise to the level of plain error; 2) a rational trier of fact was entitled to conclude that defendant possessed the handgun at issue "in furtherance" of a drug trafficking offense; 3) "aggravated robbery," as defined by section 29.03 of the Texas Penal Code, is a "serious violent felony" for purposes of the Sentencing Guidelines.

Read US v. Rose, No. 08-10813

Appellate Information

Filed November 6, 2009

Judges

Per Curiam

Solana v. GSF Dev. Driller I, No. 06-30930

In an admiralty action for a percentage of the salvage value of a drilling unit, summary judgment for defendant is reversed where the record did not support the district court's conclusion that, as a matter of law, the parties agreed that the plaintiffs would be compensated in the same manner that they had previously been compensated by defendant.

Read Solana v. GSF Dev. Driller I, No. 06-30930

Appellate Information

Filed October 29, 2009

Judges

Opinion by Judge Owen

US v. Garza, No. 08-41197

Defendant's conviction and sentence for transporting illegal aliens are affirmed where: 1) the district court did not abuse its discretion in applying a reckless endangerment enhancement; 2) defendant presented no evidence to suggest that the "financial gain" aspect of 18 U.S.C. section 1324(a)(1)(B)(ii) erroneously informed the district court's decision; and 3) defendant's sentence would not have been affected by a reduction based on smuggling aliens other than for profit.

Read US v. Garza, No. 08-41197

Appellate Information

Filed October 30, 2009

Judges

Per Curiam

Groover v. Scottsdale Ins. Co., No. 08-31051

In a wrongful death action based on a construction accident, summary judgment for defendants is affirmed where plaintiff's remedy was limited to workers' compensation under Louisiana law.

Read Groover v. Scottsdale Ins. Co., No. 08-31051

Appellate Information

Filed October 30, 2009

Judges

Opinion by Judge Engelhardt

Jebaco Inc. v. Harrah's Operating Co., No. 08-30289

In an action alleging that certain casino companies violated the Sherman Act by dividing the Louisiana casino market and by monopolizing, attempting to monopolize, and conspiring to monopolize that market, judgment on the pleadings for defendants is affirmed where plaintiff allegedly suffered injury only as a would-be competitor, and thus failed to allege antitrust injury.

Read Jebaco Inc. v. Harrah's Operating Co., No. 08-30289

Appellate Information

Filed October 30, 2009

Judges

Opinion by Judge Jones