The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on August 26, 2008:

• Jenkens & Gilchrist APC v. Groia & Co. (Jones, C.J., Davis, Garza, JJ.; opinion by Garza, J.) (appeal from S.D. Tex.). Affirming in part and vacating in part district court’s denial of Rule 60(b) motion to vacate default judgment. Defendant was served with the complaint in an interpleader action, but never filed an answer. Plaintiff law firm then successfully moved for default judgment. Claiming that she was never served with the summons in the lawsuit, the defendant moved under Fed. R. Civ. P. 60(b)(4) to have the default judgment vacated; without making factual findings regarding service of summons or announcing any findings under Rule 60(b)(1), the district court summarily denied the Rule 60(b) motion. The Fifth Circuit held that the record did not support the defendant’s averments that she was not served with summons, and affirmed the denial of Rule 60(b)(4) relief; but found that the record did not support denial of Rule 60(b)(1) relief and vacated that portion of the district court’s judgment and remanded with instructions to enter findings regarding the Rule 60(b)(1) denial or proceed with trial.
•  Campbell v. Countrywide Home Loans, Inc. (Higginbotham, Stewart, Southwick, JJ.; opinion by Southwick, J.) (appeal from S.D. Tex.). Reversing partial summary judgment rendered by district court in favor of plaintiffs. Plaintiffs brought claim against their home mortgage lender, claiming that certain unpaid amounts due under their security agreement violated the automatic stay in the Chapter 13 bankruptcy proceedings. The district court granted partial summary judgment on the basis that the amounts due did violate the automatic stay. The Fifth Circuit held that, while the amounts due were claims under the Bankruptcy Code, they did not violate the automatic stay.
• U.S. v. King (Davis, Smith, DeMoss, JJ.; opinion by DeMoss, J.) (appeal from W.D. La.). Affirming conviction and sentence for one count of conspiracy to possess cocaine with the intent to distribute and one count of conspiracy to launder money. At trial, the defendant objected to admission into evidence of recordings amongst the alleged co-conspirators on grounds of the Confrontation Clause, and of recordings of conversations with his wife on the grounds of marital privilege. The recordings were admitted and the jury convicted him. The Fifth Circuit found no plain error in the district court’s sentencing of the defendant to concurrent terms of 400 months and 240 months where the Sentencing Guidelines range was 360 months to life, rejecting the defendant’s argument that the district court had impermissibly presumed that a sentence within the Guidelines range was reasonable; and held that there was no error in admitting recordings of co-conspirators’ statements where they were in furtherance of the conspiracy; and that the recordings of conversations between the defendant and his wife were in the course of their joint participation in the crime and therefore excepted from the marital privilege.
• Ramirez v. Knoulton (Smith, Prado, Ludlum, JJ.; opinion by Prado, J.) (appeal from W.D. Tex.). Reversing denial of summary judgment on qualified immunity defense and rendering judgment in favor of defendant. Plaintiff brought a claim of excessive force against defendant police officer. The district court denied the summary judgment motion brought by defendant on qualified immunity grounds. The Fifth Circuit held that the plaintiff had failed to allege facts supporting a constitutional violation, because there was no showing of constitutionally excessive force where the plaintiff had shown that he had a handgun and had failed to comply with officers’ repeated orders to drop the gun prior to being shot by the defendant, and reversed and rendered in favor of the defendant.