Circuit Watcher

07-10139 U.S. v. Quintana-Gomez
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge: The question presented is whether the district court plainly erred by ordering that its sentence run consecutively to a not-yet-imposed sentence pending in another federal court. We hold that the district court erred but that this error was not plain. AFFIRMED. … Because the Northern District Court was without authority to order that its sentence run consecutively, its order, in this limited respect, is without effect and may be disregarded by the Federal Bureau of Prisons in the light of this holding. U.S. v. Quintana-Gomez.

07-30015 Trans-Serve, Inc. v. U.S.
Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
WIENER, Circuit Judge: Plaintiff-Appellant Trans-Serve, Inc. (“Trans-Serve”) disputes the amount of federal employment taxes that it owes for tax years 1987 through 1996. Trans-Serve contends that it owes only the ordinary federal employment taxes required by the Federal Insurance Contributions Act (“FICA”)¹ and Federal Unemployment Tax Act (“FUTA”).² The government counters that, as the district court held, Trans-Serve owes such taxes at the higher rates required by the Railroad Retirement Tax Act (“RRTA”)³ and Railroad Unemployment Repayment Tax Act (“RURTA”)⁴ (the “Railroad Acts”). We affirm the district court’s decision that Trans-Serve is responsible for Railroad Acts taxes and owes penalties and interest for its failure timely to pay the correct amount of such taxes. … Trans-Serve, Inc. v. U.S.

1. 26 U.S.C. § 3101 et seq. [↩]
2. Id. § 3301 et seq. [↩]
3. Id. § 3201 et seq. [↩]
4. Id. § 3321 et seq. [↩]

06-50748 Amigo Broad., LP v. Spanish Broad. Sys., Inc.
Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge: This case stems from the termination of an employment relationship between Appellant Amigo Broadcasting, LP (“Amigo”) and Appellees Joaquin Garza (“Garza”) and Raul Bernal (“Bernal”), and Garza and Bernal’s decision to enter into a new employment relationship with Appellee Spanish Broadcasting System, Inc. (“SBS”). Amigo seeks a reversal of the district court’s grant of judgment as a matter of law in favor of Appellees. Amigo contends that the district court erred in its ruling by finding that: (1) Amigo failed to produce legally sufficient evidence that Garza and Bernal breached their employment agreements with Amigo; (2) Amigo failed to produce legally sufficient evidence that SBS tortiously interfered with Amigo’s employment agreements with Garza and Bernal; and (3) Amigo withdrew its Lanham Act and misappropriation/unfair competition claims during the hearing on Appellees’ motions for judgment as a matter of law. For the following reasons, we AFFIRM in part and REVERSE and REMAND in part. … Amigo Broad., LP v. Spanish Broad. Sys., Inc.

06-11078 U.S. v. Miller
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge: A jury found Stephen Miller guilty of tax evasion in violation of 26 U.S.C. § 7201. Miller challenges the sufficiency of the evidence, as well as a number of the district court’s evidentiary rulings. He also contends that the indictment was duplicitous. Finally, Miller raises a claim of Brady error. We affirm. … U.S. v. Miller.

05-41347 Rogers v. Penland
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge: The former directors of Mauriceville National Bank (Directors) sued Robert McDorman, Meshell McDorman, Deon Thornton, and various McDorman-related business entities (Defendants), alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and state-law claims. Joe Penland was also a defendant. A jury found Defendants liable under RICO and some state-law theories, but only assessed damages for the RICO violations; however, the jury also found that Directors were in pari delicto with Defendants. The district court entered a take nothing judgment against
Defendants.
.
Directors appealed, principally challenging the in pari delicto defense and the finding that Penland was not liable. Penland cross-appealed. Prior to oral argument, Penland and Directors settled, dismissing their appeals against each other.¹ Directors maintained their appeal as to Defendants. For the reasons that follow, we affirm. … Rogers v. Penland.

1. We, therefore, do not consider the issues raised by Directors that concern only Penland, nor do we consider any of the issues raised in Penland’s cross-appeal. [↩]

06-20321, 06-20593, 06-20691, U.S. v. Yeager
Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge: This is a consolidated interlocutory appeal of an order denying a motion to dismiss a government indictment under the doctrine of collateral estoppel.¹ In 2005, Defendants F. Scott Yeager, Joseph Hirko, and Rex Shelby (“Defendants”) were tried on various counts for their actions while employed at Enron Broadband Services (“EBS”). The jury acquitted Defendants on some of these counts but hung on others, after which the United States (“Government”) again indicted Defendants on some of the mistried counts. Contending that the acquitted counts collaterally estopped the Government from pursuing the mistried counts, Defendants moved to dismiss the indictment. The district court denied the motion. For the reasons below, we AFFIRM. … U.S. v. Yeager.

1. We have jurisdiction over this case under 28 U.S.C. § 1291. Abney v. United States, 431 U.S. 651, 659 (1977) (“Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the small class of cases that Cohen [sic] placed beyond the confines of the final-judgment rule.”) (internal quotation marks omitted). [↩]

06-51697 Logix Commc’ns, L.P. v. Public Util. Comm’n of Texas
Before REAVLEY, SMITH, and GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge: On June 30, 2005, AT&T Texas (“AT&T”) initiated an arbitration proceeding before the Public Utility Commission of Texas (“PUC”) regarding its interconnection agreement with Logix Communications, L.P. (“Logix”), seeking postinterconnection agreement dispute resolution regarding unbundled network element (“UNE”) declassification by wire center.¹ AT&T sought to establish that its method of determining the volume of business, and thus the necessity for UNE access, in the Texas market was correct. The PUC upheld AT&T’s method of counting business lines in a wire center, and Logix challenged that determination. The district court, having jurisdiction over Logix’s challenge pursuant to 47 U.S.C. § 252(e)(6) and 28 U.S.C. § 1331, granted summary judgment for AT&T. We affirm. …Logix Commc’ns, L.P. v. Public Util. Comm’n of Texas.

1. A “wire center” is the central office of an incumbent local exchange carrier (“ILEC”) such as AT&T; “loops” connect the “wire center” to the customer’s premises. DS1’s and DS3’s are high-capacity facilities, each of which has the capacity to carry the equivalent of many individual voice-grade lines–in engineering terms, “64 kbps-equivalents.” [↩]

06-20865, 07-40574 E. I. du Pont de Nemours & Co. v. Sawyer
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
KING, Circuit Judge: These appeals arise out of a dispute between E. I. du Pont de Nemours and Company (“DuPont”) and former DuPont employees who allege that DuPont fraudulently induced them to terminate their employment and accept employment with a subsidiary that was later sold. In anticipation of a lawsuit from one of the employees, DuPont sought a declaratory judgment under the Employee Retirement Income Security Act (“ERISA”). The district court dismissed for lack of subject matter jurisdiction, concluding that the employee’s potential claims could not be read as stating a claim under ERISA. DuPont filed notice of appeal.
.
A group of the former employees then sued DuPont, asserting state-law fraud and fraudulent inducement claims. DuPont filed two motions to dismiss, arguing that the employees’ claims were preempted by the National Labor Relations Act (“NLRA”) under the Garmon doctrine or, in the alternative, by ERISA. The district court denied both motions but certified an interlocutory appeal, which we accepted and consolidated with DuPont’s appeal from the dismissal of its declaratory judgment action. For the reasons that follow, we conclude that the employees’ state-law claims are not preempted by the NLRA or ERISA, and that DuPont’s declaratory judgment action was properly dismissed for lack of subject matter jurisdiction. AFFIRMED. … E. I. du Pont de Nemours & Co. v. Sawyer.

05-70038 Moore v. Quarterman
BEFORE: JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD and SOUTHWICK, Circuit Judges.
BY THE COURT: A member of the Court in active service having requested a poll on the petition for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc, IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of en banc briefs. Moore v. Quarterman.

05-30963 Cain v. Transocean Offshore USA, Inc.
Before KING, GARZA, and OWEN, Circuit Judges.
KING, Circuit Judge: This case requires us to consider the continued viability of our longstanding precedent holding that a watercraft under construction is not a “vessel in navigation” for purposes of the Jones Act. We hold that the Supreme Court’s decision in Stewart v. Dutra Construction Co., 543 U.S. 481 (2005), has not effectively overruled that precedent because the decision did not concern or address the point at which a vessel-to-be actually becomes a vessel. We therefore REVERSE the district court’s denial of summary judgment and REMAND for further proceedings. … Cain v. Transocean Offshore USA, Inc.

05-11450 TIG Insurance Co. v. Aon Re Inc.
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge: TIG Insurance Company has sued its broker, Aon Re, Inc., for failing to provide complete information to a reinsurer with whom TIG negotiated a reinsurance treaty. The treaty was rescinded as a result of the incomplete information, and TIG asserts causes of action against Aon Re for negligence, negligent misrepresentation, breach of fiduciary duty, and common-law indemnity. TIG appeals the district court’s summary judgment that TIG take nothing. We affirm. … TIG Insurance Co. v. Aon Re Inc..

99-40370 U.S. v. Alvarado-Valdez
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge: In 1998, Vicente Alvarado-Valdez , Ricardo Flores, Pablo Santos Chapa, and Julian Medrano were indicted for conspiracy to possess with intent to distribute more than five kilograms of cocaine. Alvarado-Valdez and Chapa were charged in a second count with aiding and abetting possession with intent to distribute more than five kilograms of cocaine. Chapa pleaded guilty. Alvarado-Valdez, Flores, and Medrano were convicted by a jury as charged. We affirmed the convictions of Medrano and Flores. United States v. Flores, No. 99-40367, 281 F.3d 1279 (table), 2001 WL 1692443 (5th Cir. Nov. 26, 2001) (per curiam). We erroneously dismissed Alvarado-Valdez’s appeal for want of prosecution and have reinstated it. In light of Crawford v. Washington, 541 U.S. 36 (2004), we vacate and remand for a new trial. … U.S. v. Alvarado-Valdez.

07-40265, 07-40266 Drive Financial Svc. v. Jordan
Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge: Appellant Drive Financial Services, L.P. (“Drive Financial”) directly appeals the bankruptcy court’s October 18 and October 23, 2006 orders amending and confirming the Chapter 13 bankruptcy plan submitted by debtors-appellees Bobby and Freda Jordan (the “Jordans”), which provided for interest on Drive Financial’s secured claim on the Jordans’ pickup truck at a “prime-plus” interest rate. For the following reasons, we affirm. … Drive Financial Svc. v. Jordan.

05-60901 Toledo-Hernandez v. Mukasey
Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge: Petitioner Marco Antonio Toledo-Hernandez (“Toledo”) filed a 28 U.S.C. § 2241 petition in federal district court challenging a 2003 decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) order of removal. Toledo’s § 2241 petition was converted into a petition for review and transferred to this Court in accordance with the REAL ID Act, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005). See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied, 546 U.S. 1106 (2006). For the following reasons, this petition for review is DISMISSED. … Toledo-Hernandez v. Mukasey.

07-30414 Benefit Recovery Inc. v. Wooley
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge: Benefit Recovery, Inc. (“Benefit”), sued the Louisiana Commissioner of Insurance in his official capacity;1 the district court granted summary judgment for the Commissioner, holding that the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., does not preempt Directive 175, which the Commissioner had issued. We affirm. … Benefit Recovery Inc. v. Wooley.

06-60063 Martinez v. Mukasey
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge: After Jose Martinez was convicted of bank fraud, in violation of 18 U.S.C. § 1344, the United States sought to remove him, pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 8 U.S.C. § 1227(a)(2)(A)(iii). Ruling the bank-fraud conviction constitutes an aggravated felony, the immigration judge (IJ) sustained the removability charge and denied Martinez statutory eligibility for a waiver of inadmissibility. Both on direct appeal and in denying a joint motion to reconsider, the Board of Immigration Appeals (BIA) agreed with the IJ. Martinez maintains: his bank-fraud conviction is not an aggravated felony; and, in the alternative, he is eligible to seek a discretionary waiver of inadmissibility. DENIED IN PART; GRANTED IN PART; REMANDED. … Martinez v. Mukasey.

07-40327 U.S. v. Herrera-Garduno
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge: Rene Herrera-Garduno (Herrera) argues his non-Guidelines sentence is an unreasonable upward departure from the advisory Guidelines range. We conclude that the sentence is not unreasonable and AFFIRM. … U.S. v. Herrera-Garduno.

07-30067 Cain v. Menifee
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge: Hansel E. Cain, federal prisoner #11654-045, is currently serving a 120-month sentence for unlawful receipt of an unregistered firearm at the United States Penitentiary, Pollock. On September 22, 2006, Cain filed a 28 U.S.C. § 2241 petition, asserting that the Bureau of Prisons (“BOP”) miscalculated the commencement date of his sentence and failed to give him proper credit for time served. Cain now appeals the district court’s denial and dismissal with prejudice of his petition. For the following reasons, we AFFIRM in part and REVERSE in part. … Cain v. Menifee.

06-51067 Reliable Consultants v. Abbott
Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges.
REAVLEY, Circuit Judge: This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute’s constitutionality and granted the State’s motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution. … Reliable Consultants v. Abbott.

06-11007 Dearmore v. City of Garland
Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge: Defendant-Appellant City of Garland (“the City”) appeals from the district court’s order awarding attorney’s fees to Plaintiffs-Appellees Roy Dearmore, A.C. Blair, and Marie Combs (collectively “Dearmore”), under 42 U.S.C. § 1988(b). This statute authorizes an award of attorney’s fees to a “prevailing party” in an action to enforce the provisions of certain federal statutes, including 42 U.S.C. § 1983. The City also appeals from the district court’s order denying its motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). Because we conclude that Dearmore is a prevailing party and the district court committed no reversible error in its Rule 59(e) order, we affirm. … Dearmore v. City of Garland.

05-41417 McClain v. Lufkin Indust. Inc.
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
EDITH H. JONES, Chief Judge: In this complex Title VII class action against Lufkin Industries, Inc. (“Lufkin”), African-American plaintiffs allege that Lufkin’s practice of delegating subjective decision-making authority to its managers with respect to initial assignments and promotions disparately affected them. After a bench trial, the district court issued a judgment in favor of the employees. After sifting through numerous issues, we reach results that are unfortunately inconclusive of the litigation. We affirm in part, reverse in part, and vacate and remand in part. … McClain v. Lufkin Indust. Inc.

06-10940 U.S. v. Cano
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge: A jury convicted Benjamin Cano of conspiracy to possess with intent to distribute and possession with intent to distribute five kilograms or more of cocaine. Cano appeals the denial of his pre-trial motion to suppress evidence and his post-trial motion to proceed pro se at sentencing. We affirm the conviction, vacate the sentence, and remand for re-sentencing. … U.S. v. Cano.

06-41387 SMI Owen Steel Co. v. Marsh USA Inc.
06-61159 Chambers v. Mukasey
07-10464 USA v. Najera-Najera
07-30179 USA v. Williams
07-50170 USA v. McKinney

06-31060 Norwegian Bulk Trans vs. Intl Mrne Prtnshp

06-31238 Marcy v. Rowan Companies Inc.
06-50720 Schlotzsky’s Ltd. v. Sterling Purchasing

07-30089 Anthony vs. USA