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

US v. Sealed Appellant 1, No. 08-30284

In two juvenile defendants' appeal from the district court's order transferring them to adult status for trial, the order is affirmed in part where, given the risk factors involved, transferring one defendant to adult status was not an abuse of discretion.  However, the order is reversed in part where one defendant could not be prosecuted as an adult for any charges arising from the carjackings that transpired before his fifteenth birthday.

Read US v. Sealed Appellant 1, No. 08-30284

Appellate Information

Filed December 28, 2009

Judges

Opinion by Judge Dennis

Hernandez v. Holder, No. 09-60261

In a petition for review of the BIA's denial of petitioner's application for cancellation of removal, the petition is denied where state felon in-possession offenses, such as Texas Penal Code section 46.04(a), need not have an interstate commerce element in order for the offense to be an offense "described in" 18 U.S.C. section 922(g)(1).

Read Hernandez v. Holder, No. 09-60261

Appellate Information

Filed December 30, 2009

Judges

Opinion by Judge Haynes

US v. Sandlin, No. 08-41277

Defendant's conviction for making false statements on two loan applications is affirmed where, if a person makes a false statement that has the capacity to influence a bank, then the specific intent necessary to violate 18 U.S.C. section 1014 may be inferred and the offense is complete.  However, his sentence is vacated where there was insufficient evidence that the omissions on his applications caused the loans to be made.

Read US v. Sandlin, No. 08-41277

Appellate Information

Filed December 1, 2009

Revised December 22, 2009

Judges

Opinion by Judge Southwick

US v. Anderson, No. 08-41314

Defendant's drug conspiracy sentence is affirmed where the district court did not abuse its discretion in denying defendant's motion for resentencing, because he was not sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission.

Read US v. Anderson, No. 08-41314

Appellate Information

Filed December 21, 2009

Judges

Per Curiam

US v. Rios-Espinoza, No. 08-41201

Defendant's drug conspiracy sentence is affirmed where the applicable local rules did not require the district court to strike a non-conforming document filed by the government seeking an enhanced sentence.

Read US v. Rios-Espinoza, No. 08-41201

Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Garza

US v. Watkins, No. 08-11165

Defendant's cocaine distribution conspiracy conviction is affirmed where: 1) because of the many similarities between the crime of conviction and the two previous drug runs by defendant, there was no error in the district court's determination that the evidence of the previous runs was relevant to establish how the conspiracy was structured and operated, and thus intrinsic; 2) certain testimony by an officer was offered to rehabilitate his assertion that defendant appeared deceptive during interrogation rather than for the truth of the assertion, and thus was not hearsay; and 3) given the amount of inculpatory evidence in the record, the jury was not irrational in finding defendant guilty of knowing, voluntary participation in the narcotics conspiracy.

Read US v. Watkins, No. 08-11165

Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Garza

Alaniz v. Zamora-Quezada, No. 07-40325

In an action alleging sex discrimination against the director of certain medical clinics, judgment for plaintiffs is affirmed in part where: 1) the evidence of defendant's harassment of other parties was highly probative to demonstrating a systemic pattern of discrimination at the clinics and relevant to all plaintiffs; and 2) the court of appeals could not conclude that the hearsay testimony admitted by the district court had more than a slight effect on the jury's verdict.  However, the judgment is reversed in part where one plaintiff's placement on a two-week probationary period did not rise to the level of a tangible employment action.

Read Alaniz v. Zamora-Quezada, No. 07-40325

Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge Owen

Moore v. Hosemann, No. 09-60424

In a 42 U.S.C. section 1983 action claiming that the Mississippi Secretary of State wrongfully failed to place plaintiff on the presidential ballot, dismissal of the action is vacated and the case is remanded with instructions to consider whether to abstain from deciding the case based on the uncertain questions of Mississippi law it involved.

Read Moore v. Hosemann, No. 09-60424

Appellate Information

Filed December 18, 2009

Judges

Opinion by Judge Smith

World Wide Street Preachers Fellowship v. Columbia, No. 08-31196

In a 42 U.S.C. section 1983 action claiming that defendant city and officers wrongfully interfered with anti-abortion protests, judgment for defendant-city is affirmed where the district court did not clearly err in finding that there was no persistent, widespread practice of applying inappropriate statutes to demonstrators to restrict their First Amendment rights because of the content of their signs.

Read World Wide Street Preachers Fellowship v. Columbia, No. 08-31196

Appellate Information

Filed December 21, 2009

Judges

Opinion by Judge DeMoss

QBE Ins. Corp. v. Brown & Mitchell LLC, No. 08-61043

In an action by an insurer seeking a declaration that defendant's excess commercial general liability policy did not require plaintiff to provide coverage for or defend defendant in a wrongful death suit, summary judgment for plaintiff is affirmed where the policy's professional services exclusion precluded coverage.

Read QBE Ins. Corp. v. Brown & Mitchell LLC, No. 08-61043

Appellate Information

Filed December 17, 2009

Judges

Opinion by Judge Jolly

In re: Superior Offshore Int'l., Inc., No. 09-20213

In creditors' appeal from the bankruptcy court's confirmation of the debtor's Chapter 11 liquidation plan, the order is affirmed where: 1) 11 U.S.C. section 1123(a)(4) only required equal treatment of members within the same class; 2) the plan made all the disclosures regarding the Equity Subcommittee required by 11 U.S.C. section 1129(a)(5)(A)(i); and 3) because a class of creditors voted in favor of the plan, the absolute priority rule unambiguously did not apply to those claims.

Read In re: Superior Offshore Int'l., Inc., No. 09-20213

Appellate Information

Filed December 14, 2009

Judges

Opinion by Judge Jones

NLRB v. Seaport Printing & Ad Specialties Inc., No. 09-60088

In the NLRB's petition for enforcement of its order requiring respondent to bargain with a union over the effects of its layoff of bargaining unit workers following Hurricane Rita and its hiring of non-unit personnel to fill jobs formerly held by unit workers, the petition is granted where: 1) respondent's failure to provide the union adequate notice of its actions requiring bargaining made it impossible for the union to have waived bargaining; and 2) the company's constant maintenance of its position that it had lawfully withdrawn its recognition of the union as the unit employees' bargaining agent freed the union from any responsibility to request bargaining.

Read NLRB v. Seaport Printing & Ad Specialties Inc., No. 09-60088

Appellate Information

Filed December 8, 2009

Judges

Opinion by Judge Dennis

Grand Isle Shipyard Inc. v. Seacor Marine, LLC, No. 07-31019

In an action seeking a declaration that defendant was not obligated to defend plaintiff in a personal injury suit involving an accident at sea, summary judgment for plaintiff is affirmed where: 1) Louisiana law applied because the parties' contract contemplated that a majority of the contractor's work would be performed on stationary platforms on the Outer Continental Shelf (OCS), and thus the OCS was the relevant "situs" for the purposes of the Outer Continental Shelf Lands Act; and 2) the Louisiana Oilfield Indemnity Act rendered the indemnity agreement at issue unenforceable.

Read Grand Isle Shipyard Inc. v. Seacor Marine, LLC, No. 07-31019

Appellate Information

Filed December 8, 2009

Judges

Opinion by Judge Davis

Mims v. Stewart Title Guar. Co., No. 09-10127

In defendant's appeal from the district court's order certifying a class in an action alleging violations of the Real Estate Settlement Procedure Act (RESPA), the order is reversed where the applicable Department of Housing and Urban Development liability standard required an inquiry into the reasonableness of the payments for goods and services at issue, and because that inquiry must be performed on a transaction-by-transaction basis, the plaintiffs did not meet the predominance requirement for class certification.

Read Mims v. Stewart Title Guar. Co., No. 09-10127

Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Davis

US v. Garcia, No. 08-51224

Defendant's sentence for making a false statement in violation of 18 U.S.C. section 1001(a)(2) is affirmed where: 1) a district court may only apply a cross-reference provision under U.S.S.G. section 2B1.1(c)(3) if the facts alleged in the count of conviction support the application of that provision; and 2) the district court did not err when it referred to U.S.S.G. section 2L1.1 to determine defendant's base offense level.

Read US v. Garcia, No. 08-51224

Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Wiener

Westchester Surplus Lines Ins. Co. v. Maverick Tube Co., No. 09-20071

In an action by an insurer seeking a declaration that it was not required to indemnify defendant for the settlement of an underlying property damage lawsuit, a declaratory judgment ruling for plaintiff is reversed where the complaint in the underlying action alleged an "occurrence" under the policy because it did not simply allege non-performance, such as failure to deliver the casing at issue; rather, it involved an unforeseen and unexpected event -- the defective casing production which resulted in a gas well failure.

Read Westchester Surplus Lines Ins. Co. v. Maverick Tube Co., No. 09-20071

Appellate Information

Filed December 10, 2009

Judges

Opinion by Judge Benavides

US v. Cooley, No. 08-30604

Defendant's crack cocaine distribution sentence is affirmed where 1) even though the U.S.S.G. section 1B1.10 policy statement provided that the district court may grant a comparable sentence reduction, it was not compelled to do so; and 2) the fact that the district court did not mention the 18 U.S.C. section 3553(a) factors when it summarily reduced defendant's sentence did not mean that it did not consider them.

Read US v. Cooley, No. 08-30604

Appellate Information

Filed December 9, 2009

Judges

Per Curiam

In re: Marinez, No. 09-50364

In a creditor's appeal from the district court's order affirming an order of the bankruptcy court that set aside an order directing the Texas Real Estate Commission (TREC) to pay the creditor $100,000 from the Texas Real Estate Recovery Trust Account, the order is affirmed where the bankruptcy court did not abuse its discretion by setting aside the default order directing payment because the TREC could reasonably have expected a hearing setting on the motion, as there was no "negative notice".

Read In re: Marinez, No. 09-50364

Appellate Information

Opinion by December 8, 2009

Judges

Opinion by Judge Jolly