UNITED STATES of America, Plaintiff-Appellee v. Oscar Danilo GARCIA-RODRIGUEZ, also known as Oscar Danilo Garcia, Defendant-Appellant.
No. 10-40635
United States Court of Appeals, Fifth Circuit.
Sept. 9, 2011.
443 Fed. Appx. 26
Oscar Danilo Garcia-Rodriguez, Yazoo City, MS,
Before SMITH, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
On May 2, 2011, this court issued an opinion holding that Oscar Danilo Garcia-Rodriguez was “released from imprisonment” for purposes of
The district court found that “Garcia was transferred from BOP custody to ICE custody on October 28, 2005.” We review the district court’s factual finding for clear error. See, e.g., United States v. Moore, 635 F.3d 774, 776 (5th Cir.2011). We do not find, and the parties do not argue, that the district court’s determination of Garcia’s transfer date of October 28, 2005, was clearly erroneous. Therefore, because the revocation warrant was issued on October 24, 2008, less than three years after Garcia’s transfer, we hold that the district court had jurisdiction to revoke Garcia’s supervised release. See United States v. Jackson, 426 F.3d 301, 304 (5th Cir.2005).
AFFIRMED.
Joslyn M. JOHNSON, Plaintiff-Appellant v. CITY OF HOUSTON; Houston Police Department, Defendants-Appellees.
No. 10-20743.
United States Court of Appeals, Fifth Circuit.
Sept. 9, 2011.
443 Fed. Appx. 27
Andrea Chan, Senior Assistant City Attorney, City of Houston Legal Department, Houston, TX, for Defendant-Appellee.
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
Joslyn Johnson sued the City of Houston (“City”), alleging that the City’s policy preventing police officers from contacting
FACTS
On September 21, 2006, Houston Police Officer Rodney Johnson (“Rodney”) stopped Juan Leonardo Quintero-Perez for speeding. Rodney searched Quintero-Perez for weapons, found and confiscated a weapon, handcuffed Quintero-Perez, and placed him in the back of his patrol car. Sometime later, while Quintero-Perez was still in custody, Quintero-Perez fatally shot Rodney in the back of the head. Quintero-Perez was convicted of capital murder of a police officer and is now serving a life sentence.
Quintero-Perez was an illegal alien. He was convicted of a felony in 1999 and deported, but reentered the United States that year.1 Between 1999 and 2006, Houston Police Department (“HPD”) officers arrested or detained Quintero-Perez at least three times. On none of these incidents did the HPD officers check to see if federal immigration authorities had an outstanding arrest warrant for Quintero-Perez. At the time of Rodney’s death, the HPD maintained a policy prohibiting HPD officers “from communicating with the federal Department of Homeland Security and pertinent federal databases to determine the criminal status of detained persons and whether a federal arrest warrant is pending for such person.” Johnson refers to this policy as the “Sanctuary Policy.”
Sometime after Rodney’s death in 2006, the HPD changed its policy to allow officers to check the “wanted” status of anyone legally detained and to require officers to check the “wanted” status of anyone ticketed, arrested, or jailed (“Current HPD Policy”). HPD officers perform these checks by running the person’s name through several databases, including the National Crime Information Center (“NCIC”) database, which may indicate whether the person is the subject of an outstanding warrant or wanted for another reason. The Current HPD Policy prohibits its officers from contacting federal immigration officials unless the officer receives an “NCIC immigration hit.” An “NCIC immigration hit” indicates that the person is the subject of an outstanding criminal warrant issued by federal immigration authorities, an administrative warrant of removal, or a notice of detainer for a previously deported felon convicted of drug trafficking, firearms trafficking, or other serious crimes. The NCIC database lists only aliens convicted and deported for “drug trafficking, firearms trafficking, or serious violent crimes.” In addition to the NCIC database, the federal government maintains other databases containing information on a person’s immigration status. The Current HPD Policy does not allow HPD police officers to obtain immigration information from any database other than the NCIC database. Furthermore, under the Current HPD Policy, HPD officers are forbidden from notifying federal authorities that they have encountered a known illegal alien unless they arrest that person on a “separate criminal charge (other than a class C misdemean
On September 22, 2008, Johnson, in both her individual capacity and as the executrix for the estate of Rodney, filed suit against the City of Houston in Texas state court (“Johnson I”). In her original complaint, Johnson alleged negligence and gross negligence claims against the City. Johnson later amended her complaint to add a
The City filed a motion to dismiss Johnson I on several grounds, including Johnson’s lack of standing to bring the
On September 21, 2009, Johnson filed this lawsuit against the City, the HPD, and former Chief of Police Harold Hurtt, in his official capacity. Relevant to this appeal, Johnson raised a
On September 30, 2010, the district court issued an order granting the City’s motion. Relevant to this appeal,4 the court
STANDARD OF REVIEW
We review a district court’s order granting a Rule 12(b)(6) motion to dismiss de novo. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). We accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Id.
DISCUSSION
“Federal law determines the res judicata effect of a prior federal court judgment.” Meza v. Gen. Battery Corp., 908 F.2d 1262, 1265 (5th Cir.1990). This court has held that:
Claim preclusion bars the litigation of claims that either have been litigated or should have been raised in an earlier suit. The test for claim preclusion has four elements: (1) the parties in the subsequent action are identical to, or in privity with, the parties in the prior action; (2) the judgment in the prior case was rendered by a court of competent jurisdiction; (3) there has been a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. If a party can only win the suit by convincing the court that the prior judgment was in error, the second suit is barred. When all four elements are present, claim preclusion prohibits a litigant from asserting any claim or defense in the later action that was or could have been raised in support of or in opposition to the cause of action asserted in the prior action.
Duffie v. United States, 600 F.3d 362, 372 (5th Cir.2010) (internal quotation marks and citations omitted). Johnson argues that the district court erred in concluding that res judicata bars the current lawsuit. For the reasons described below, we hold that the district court erred in holding that the first and fourth elements of the claim preclusion test were satisfied.5
A. Identity of the parties
Johnson very briefly argues that the district court erred in applying claim preclusion because “the parties are not technically identical.”
As the district court correctly noted, “[t]o satisfy the identity element, strict identity of parties is not necessary. A non-party defendant can assert res judicata so long as it is in ‘privity’ with the named defendant.” Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1173 (5th Cir.1992). We have also previously held that, for the purposes of claim preclusion, privity exists “where the non-party controlled the prior litigation.” Meza, 908 F.2d at 1266. The district court concluded Johnson controlled Johnson I and was in privity with a party in it—namely, Johnson
However, “the control principle cannot apply to a person who, as a party, controls litigation in one capacity, and then is involved in subsequent litigation in another capacity.” CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, 18A FEDERAL PRACTICE & PROCEDURE § 4451, at 384-85 (2d ed.2002). This is because, as a general rule, the identity requirement for claim preclusion is not fulfilled when a person participates in two different suits in different capacities. See Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990); Clark v. Amoco Prod. Co., 794 F.2d 967, 973 (5th Cir.1986) (“Res judicata does not apply to a situation . . . in which a party appears in one action in an individual capacity and in a subsequent action in a representative capacity.”);6 RESTATEMENT (SECOND) OF JUDGMENTS § 36(2) (1982) (“A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.”).
Johnson did not bring her
B. Identity of the causes of action
Johnson also asserts that Johnson I and this suit do not involve the same cause of action because the facts of this case are unrelated to Johnson I, the two cases do not form a convenient trial unit, and trying the cases together would not have met the expectations of the parties. The City argues that this case raises the same cause of action as Johnson I because both actions “revolve around the circumstances surrounding [Rodney’s] death and the HPD policies which . . . Johnson claims prohibit officers from determining a person’s immigration status.”
To determine whether two lawsuits involve the same claim or cause of action, we have adopted the transactional test of the Restatement (Second) of Judgments. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir.2004) (citing In re Southmark Corp., 163 F.3d 925, 934 (5th Cir.1999)). Under the Restatement’s test:
What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motiva
tion, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.
RESTATEMENT (SECOND) OF JUDGMENTS, § 24(2). The critical issue is whether “the two actions under consideration are based on the same nucleus of operative facts.” In re Southmark, 163 F.3d at 934 (emphasis in original) (internal quotation marks omitted). “In this inquiry, we look to the factual predicate of the claims asserted, not the legal theories upon which the plaintiff relies.” Eubanks v. FDIC, 977 F.2d 166, 171 (5th Cir.1992).
Applying the transactional test, the district court concluded that Johnson I and the current suit raised the same cause of action. It stated that “the factual predicate in both suits relates to [Johnson’s] complaints of what she deems to be flawed policies and/or practices of HPD that preclude her and other officers from inquiring into a detained person’s immigration status.” The court noted that in both suits, Johnson (1) described the circumstances of Rodney’s death; (2) alleged that the HPD maintained a policy preventing officers from inquiring into a detained person’s immigration status; and (3) alleged that HPD policy led to Rodney’s death. It also held that Johnson’s two claims made a “convenient trial unit” and that she “could have easily brought her claims alleged in the current action in that suit as well.”
We disagree. Johnson I and this lawsuit do not arise from the same transaction and are not based on the same nucleus of operative facts. Although Johnson alleges in her complaint for this case that the policies in the Current HPD Policy led to Rodney’s death, Rodney’s death is not a factual predicate of Johnson’s current claim. Johnson’s First Amendment claim,
Further, although both lawsuits challenge the propriety of HPD policies, each challenges a different policy. Johnson’s claim in Johnson I alleged that the HPD maintained its Sanctuary Policy with indifference to officer safety and that Rodney lost his life because of the Sanctuary Policy. Her current claim, however, alleges that the Current HPD Policy, enacted after Rodney’s death, violates her free speech rights and various federal statutes. The Current HPD Policy differs from the Sanctuary Policy in that it allows HPD officers to check the “wanted” status of detained individuals and to contact federal immigration authorities if there is an “NCIC immigration hit.” The facts underlying the current claim are not “related in time, space, [or] origin” to the facts of Johnson I because the City indisputably did not adopt the Current HPD Policy until after Rodney’s death.
Finally, although the two actions make a convenient trial unit because it would have been feasible for Johnson to have brought the current claim along with Johnson I, the City would not have had a reasonable expectation that a plaintiff bringing a
After our de novo review, we conclude that the current case and Johnson I do not meet the first and fourth elements of this circuit’s test for claim preclusion. It was
CONCLUSION
For the foregoing reasons, the district court’s order of dismissal is REVERSE-D and the case is REMANDED for further proceedings.
UNITED STATES of America, Plaintiff-Appellee v. Edith MOSQUERA DE FLORES, also known as Edith Mosquera-Valencia, Defendant-Appellant.
No. 10-51134
United States Court of Appeals, Fifth Circuit.
Sept. 9, 2011.
443 Fed. Appx. 33
Judy Fulmer Madewell, Assistant Federal Public Defender, Henry Joseph Bemporad, Federal Public Defender, Federal Public Defender’s Office, San Antonio, TX, for Defendant-Appellant.
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Edith Mosquera De Flores (Mosquera) appeals her sentences following her convictions on one count of illegal reentry into the United States, a violation of
The substantive reasonableness of a sentence is reviewed under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Mosquera contends that her punishment was too severe because U.S.S.G. § 2L1.2 effectively double counts the defendant’s criminal record in establishing the guidelines range. She further contends that her sentences overstated the seriousness of her illegal reentry offense and failed to properly reflect her personal history and characteristics. “[T]he sentencing judge is in a superior position to find facts and judge their import under [18 U.S.C.] § 3553(a) with respect to a particular defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.2008). Mosquera’s sentences are presumed reasonable because they fell within her guidelines range, see United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
Notes
Section 1644 contains a similar provision protecting local government entities’ rights to send and receive information to federal immigration authorities.Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.