Take the Fifth: Dec. 26-31, 2020 opinions

Designated for publication

• Daves v. Dallas County, 18-11368, appeal from N.D. Tex.
  • Southwick, J. (Southwick, Graves, Engelhardt), cash bail, § 1983, Equal Protection, Due Process, sovereign immunity, Ex Parte Young
  • Affirming preliminary injunction against imposition of cash bail on indigent arrestees as unconstitutional, with modifications to injunction to not apply to criminal district court judges and to exclude injunction of sheriff from enforcing bail requirements. Remanding for further proceedings.
  • This suit was brought against three classes of judges: criminal district court magistrate judges, criminal district court district judges, and county criminal court judges. The district court judges and county court judges establish bail schedules issued to the magistrate judges containing guideline amounts for bail for various offenses; and after this suit was filed, the district court judges directed the magistrate judges to take an arrestee’s ability to pay into account. The district court in this suit, however, found that the magistrate judges treat the schedule as mandatory and not as a guideline that may be deviated from. The district court found “a clear showing of routine wealth based detention,” holding this created a violation of equal protection and procedural due process rights. The district court issued an injunction providing, in part, “Dallas County is enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties.” The plaintiffs appealed this purely procedural injunction, seeking a substantive injunction allowing imposition of cash bail only on a finding that such bail is necessary despite an indigent arrestee’s inability to pay.
  • The Court first summarized a series of decisions it has previously issued with regard to similar litigation arising from Harris County, Texas. “Our initial decisions were to reverse the district court’s preliminary injunction because in practice it would require the release of all indigent misdemeanor arrestees who claimed an inability to pay money bail, resulting in the ‘outright elimination of secured money bail for indigent misdemeanor arrestees.’ ODonnell v. Harris Cnty., 882 F.3d 528, 546 (5th Cir. 2018), withdrawn and replaced by ODonnell v. Harris Cnty., 892 F.3d 147, 163 (5th Cir. 2018) (ODonnell I). This court held that while it violated Equal Protection Clause and Due Process Clause principles to make ‘mechanical’ use of a secured-money-bail schedule for indigent arrestees, the exclusive remedy was a robust bail hearing, not release. ODonnell I, 892 F.3d at 163.” After the district court in the Harris County litigation issued a new injunction on remand, “[i]n a published opinion issued prior to any ruling on the merits of the appeal, a Fifth Circuit motions panel granted a stay of four provisions of the district court’s amended preliminary injunction. ODonnell v. Goodhart, 900 F.3d 220, 225–26, 228 (5th Cir. 2018) (ODonnell II). In this court’s view, the district court again required the automatic release of indigent misdemeanor arrestees who could not afford the secured-money-bail-schedule amount. Id. We confirmed that a thorough hearing cured any Fourteenth Amendment deficiencies and that no substantive-due-process rights applied. Id. at 227–28. Finally, when newly elected judges in Harris County moved to vacate the opinion on the stay, we denied the motion and stated that ‘the published opinion granting the stay is this court’s last statement on the matter.’ ODonnell v. Salgado, 913 F.3d 479, 482 (5th Cir. 2019) (ODonnell III).”
  • The Court first held that the plaintiffs had standing to bring the suit, as at the time the initial complaint was filed, all six named plaintiffs were still being held for failure to pay the imposed bail; and held that the release from custody for various reasons of each of the plaintiffs before the amended complaint and the certification of the class did not affect their standing. “The possible mootness of the named Plaintiffs’ claims at the time the amended complaint was filed or before the class was certified is of no consequence to this court’s jurisdiction over this class action. Because the Plaintiffs had standing when they filed their original complaint, the capable-of-repetition-yet-evading-review doctrine precludes mootness.”
  • The Court then rejected the district court judges’ argument on cross-appeal that the plaintiffs must first have exhausted the remedy of state-court habeas proceedings because what they really sought was release from state custody. “The relief of a more robust hearing would not necessarily lead to immediate release from that confinement or the shortening of its duration. Requiring that a judicial officer consider whether the detainee can afford money bail and, if not, whether there is some option for release short of money bail that would protect the County’s legitimate interests does not short circuit state habeas procedures.”
  • The Court next held that the district court judges did not have sufficient connection to the redress sought by the plaintiffs on which to base an Ex parte Young exception to sovereign immunity. “We have held that a governor’s promulgation of an executive order was not sufficient for Ex parte Young because the authority ‘to issue, amend, or rescind an Executive Order “is not the power to enforce it.”‘ Mi Familia Vota v. Abbott, 977 F.3d 461, 467 (5th Cir. 2020). Similarly, the District Court Judges’ promulgation of the bail schedule does not equate to enforcement of it. Instead, enforcement of the bail schedules falls on the Magistrate Judges.” The Court held that the County Judges, however, were county officials for purposes of the actions at issue, and not state officials, and therefore not subject to sovereign immunity in the first place, particularly in light of ODonnell I.
  • The Court then held that the claims against the county sheriff did fall within the Ex parte Young exception to sovereign immunity, but that the language of the injunction was too broad to fit within the scope of the Ex parte Young authority of the court: “The permissible limit of any injunction under Ex parte Young is set by a legal fiction: ‘when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign immunity purposes.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011) (emphasis added). Any injunction here against the Sheriff must be constrained in that manner. We conclude that the present language of the injunction is too imprecise, leaving the Sheriff in the equivalent position of an appellate court reviewing the validity of bail orders. We invalidate the language of the injunction as it applies to the Sheriff. Should a revised injunction impose any duties upon that officer, the duties must be made as objective and narrowly defined as possible.”
  • On the merits of the injunction, the Court upheld the district court’s finding that the plaintiffs had not demonstrated a reasonable likelihood of success on their substantive due process claim. The Court noted that “substantive due process is not the clearest of Supreme Court doctrines, a difficulty perhaps suggested by the oxymoronic nature of its name. Some even see it as an awkward effort to bypass early Supreme Court rejection of the Fourteenth Amendment’s Privileges and Immunities Clause as protecting many substantive rights but, regardless, the caselaw in this area is ‘contradictory, imprecise,’ and, well, ‘messy.'” The Court held that the district court properly found that the plaintiffs were using the substantive due process argument as an improper “end-around” flaws in an Eighth Amendment argument. In ODonnell I, the Court had already rejected that the Constitution required anything more than procedural protections for indigent arrestees: “What was needed was ‘notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.’ As a result, the broader relief in the district court’s injunction, which we characterized as ‘the outright elimination of secured bail for indigent misdemeanor arrestees’ was too broad.” The Court then concluded that “no fundamental right to be categorically free from wealth-based detention existed.”
  • Finally, the Court briefly noted that the defendants’ other arguments, such as Younger abstention, were disposed of in the ODonnell opinions.

• U.S. v. Bonilla-Romero, 19-20643, appeal from S.D. Tex.
  • Haynes, J. (Owen, Dennis, Haynes), criminal, sentencing
  • Affirming 460-month sentence on guilty plea to first-degree murder for gang-related murder committed when defendant was seventeen.
  • Under the federal murder statute, the maximum penalty for first-degree murder is death and the minimum penalty is mandatory life imprisonment, neither of which may constitutionally be imposed on a minor. Accordingly, the district court had expressly noted this contradiction, then essentially severed the sentencing provisions from the federal statute and held that the sentence range should be any term of years up to (but not mandatorily) life, before imposing. the 460-month sentence.
  • The Court concluded that the district court’s remedy of severing the portion of the murder statute that would have been unconstitutional as applied was the correct remedy. “[E]xcising the mandatory minimum nature of the life sentence is all that is needed to satisfy the constitutional issue for juveniles under § 1111.”

• Mendoza-Flores v. Rosen, 19-60225, petition for review of BIA order
  • Higginson, J. (Haynes, Higginson, Oldham), immigration, mootness
  • Dismissing as moot petitioner’s petition for review of BIA order denying motion for continuance pending resolution of T visa application. After the BIA order, the petitioner’s T visa application was denied. “Because this court can no longer grant Mendoza-Flores any effectual relief, we dismiss his petition as moot.”

• U.S. v. Galicia, 20-40200, appeal from S.D. Tex.
  • Haynes, J. (Haynes, Higginson, Oldham), criminal, sentencing
  • Affirming application of sentencing enhancement for maintaining a premises to distribute drugs.
  • The Court held that a premises can have more than one primary “use” under the sentencing guidelines, and that defendant’s house had at least two primary uses, both as his residence and as a place to store drugs in their chain of distribution, even if he had used his garage to store marijuana in its distribution chain only three times in two and a half years.

Unpublished

• U.S. v. Perez, 18-40707, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Oldham), criminal
  • Affirming conviction and sentence on charges of intentionally defacing or attempting to destroy a religious real property through the use of fire, for knowingly attempting to burn down a mosque.

• U.S. v. Adams, 19-11393, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing, appeal waiver
  • Granting government’s motion to dismiss appeal based on appeal waiver in guilty plea.

• Smith v. Lumpkin, 19-20716, appeal from S.D. Tex.
  • per curiam (Willett, Ho, Duncan), habeas corpus
  • Denying certificate of appealability from district court’s denial of § 2254 petition for failure to meet standard of substantial showing of denial of constitutional right.

• Cook v. Marshall, 19-30200, appeal from E.D. La.
  • Owen, C.J. (Owen, Barksdale, Duncan), trust law, fiduciary duty
  • Affirming district court’s summary judgment rulings that defendant trustee has breached fiduciary duties and ordering distributions from trust to plaintiff trustee.

• U.S. v. Hedrick, 19-40531, appeal from S.D. Tex.
  • per curiam (Jones, Costa, Wilson), habeas corpus
  • Granting certificate of appealability from denial of § 2255 petition, granting IFP status, vacating district court’s denial of petition for failure to consider § 2255 petition, and remanding for further proceedings, all with a warning to petitioner against frivolous arguments.

• U.S. v. Aragonnes, 19-51134, appeal from W.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Affirming sentence of mandatory minimum of 180 months in prison for guilty plea to possession with intent to distribute 50 grams or more of methamphetamine.

• Ponce-Alvarado v. Barr, 19-60484, petition for review of BIA order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying in part and dismissing in part petition to review BIA order denying motion to reopen removal proceedings.

• Garcia v. Barr, 19-60737, petition for review of BIA order
  • per curiam (Haynes, Willett, Ho), immigration
  • Denying petition to review BIA order dismissing appeal of IJ order denying motion to reopen.

• Baird v. Crosthwait, 19-60762, appeal from N.D. Miss.
  • per curiam (Davis, Stewart, Dennis), bankruptcy
  • Affirming district court’s order affirming: (1) the bankruptcy court’s judgment refusing to award plaintiff certain enhanced statutory damages for defendant’s acts of timber trespass, and (2) the bankruptcy court’s order denying plaintiff’s request to lift the bankruptcy stay.

• U.S. v. Duarte, 20-10623, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Garza v. Arlington Indep. Sch. Dist., 20-10673, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), employment discrimination
  • Affirming dismissal of plaintiff’s employment discrimination claims brought after she voluntarily ceased working for defendant.

• U.S. v. Samak, 20-30483, appeal from E.D. La.
  • per curiam (Haynes, Willett, Ho), criminal, compassionate release
  • Affirming district court’s denial of motion for compassionate release.

• In re Franklin, 20-30569, motion for order authorizing E.D. La. to hear successive § 2255 petition
  • per curiam (Willett, Ho, Duncan), habeas corpus
  • Vacating district court’s order transferring Rule 60(b) motion for reconsideration from denial of § 2255 motion to Court of Appeals, transferring back to district court for consideration, denying motion to file successive § 2255 petition as moot, and denying certificate of appealability as unnecessary.

• U.S. v. Mayo-Garcia, 20-40033, appeal from S.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Affirming in part and dismissing in part within-Guidelines sentence imposed pursuant to defendant’s conviction for illegal reentry.

• U.S. v. Espree, 20-40170, appeal from S.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal
  • Affirming denial of motion for acquittal.

• U.S. v. Pipkins, 20-40319, appeal from E.D. Tex.
  • per curiam (Dennis, Southwick, Engelhardt), criminal, First Step Act
  • Dismissing as moot defendant’s appeal from denial of motion for sentence reduction under the First Step Act.

• U.S. v. Charpia, 20-50170, appeal from W.D. Tex.
  • per curiam (King, Smith, Wilson), criminal, jurisdiction
  • Dismissing for lack of jurisdiction defendant’s appeal from denial of motion to quash a writ of garnishment issued to enforce supervised release condition.

• U.S. v. Redezno-Guevara, 20-50591, appeal from W.D. Tex.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Granting motion for summary affirmance of sentence based on recidivism enhancement.

• Abels v. Braithwaite, 20-60118, appeal from S.D. Miss.
  • per curiam (Clement, Higginson, Engelhardt), Title VII, timeliness
  • Affirming dismissal of plaintiff’s Title VII claim as time-barred.

• Bank of Louisiana v. Federal Deposit Insurance Corp., 20-60380, petition for review of order of the FDIC
  • per curiam (Haynes, Willett, Ho), banking law
  • Denying petition for review of FDIC order, and denying motion to transfer to the Eastern District of Louisiana.

• U.S. v. Ward, 20-60665, appeal from S.D. Miss.
  • per curiam (Haynes, Higginson, Oldham), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Gowdy, 20-60800, appeal from S.D. Miss.
  • per curiam (Haynes, Willett, Ho), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Barnes, 20-60846, appeal from S.D. Miss.
  • per curiam (King, Smith, Wilson), criminal, compassionate release
  • Affirming denial of motion for compassionate release.