Take the Fifth

Designated for publication

• U.S. v. Swick, 24-10172, appeal from N.D. Tex.
  • Southwick, J. (Wiener, Stewart, Southwick), supervised release, criminal
  • Affirming revocation of supervised release based on failure to report to federal parole officer and on state crimes while on release, even though arrest for revocation of supervised release did not occur until after term of supervised release was over, upholding invocation of jurisdiction on the application of doctrine of “fugitive tolling.”
  • The Court observed that there is a 4–2 circuit split on whether fugitive tolling applies to supervised release. Swick argues Congress intentionally omitted fugitive tolling from the supervised release statutes in 1984, unlike earlier parole laws. However, the Court found that the omission does not clearly indicate repudiation, as prior parole tolling provisions (e.g., § 4210(c)) covered more than just fugitive tolling and differ in scope.
  • The Court emphasized a long-standing common-law tradition of tolling when a defendant evades serving a sentence, which predates 1984. Courts had already extended this principle to probation contexts without explicit statutory language. Thus, the Cout held that omission in supervised release statutes is not enough to reject fugitive tolling, and Congress is presumed not to have silently overturned this tradition.
  • Determining fugitive status is a factual question. While both parties agree intent to evade supervision is necessary, the Court held that Swick’s failure to report to federal probation—despite reporting to state authorities—supports a finding of intentional avoidance. The Court affirmed the district court’s conclusion that Swick’s inaction plausibly constituted fugitive behavior, triggering tolling.

• U.S. v. Valencia, 22-50283, appeal from W.D. Tex.
  • Higginson, J. (King, Higginson, Willett), criminal, sentencing, Armed Career Criminal Act
  • On remand from the U.S. Supreme Court, affirming ACCA-enhanced 235-month sentence for possession of a firearm by a felon, holding that error by the district court was harmless error.
  • The Presentence Report (PSR) recommended an ACCA sentencing enhancement for Valencia based on four prior burglary convictions in Texas. Valencia objected, arguing that two of the burglaries occurred on the same day and thus should not count as separate offenses under the ACCA. He also contended that the sentencing court violated his constitutional rights by relying on facts not charged in the indictment or proven to a jury beyond a reasonable doubt. Despite his objections, the district court applied the ACCA enhancement, finding that the burglaries occurred on three distinct occasions, and sentenced Valencia to 235 months in prison. On appeal, the Fifth Circuit initially affirmed the sentence, relying on established precedent.
  • However, the U.S. Supreme Court vacated that judgment in light of Erlinger v. United States, which mandates that a jury—not a judge—must determine whether predicate offenses occurred on different occasions. On remand, the Fifth Circuit acknowledged the district court’s constitutional error but held it was harmless beyond a reasonable doubt. The Court reasoned that the Shepard-approved documents clearly established that Valencia’s burglaries occurred over a span of years and involved different victims, which would have led any rational jury to conclude they were separate incidents. Valencia’s arguments about the lack of detailed information in the documents were dismissed as insufficient to undermine the substantial time gaps and distinct victims involved in the offenses.

Unpublished decisions

• U.S. v. Luna, 24-10505, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
  • Vacating sentence and remanding for resentencing to allow the district court to consider the impact of United States v. Rose, 127 F.4th 619 (5th Cir. 2025), in the first instance.

• Welsh v. Hester, 24-10540, c/w Welsh v. Lamb County, 24-10546, appeal from N.D. Tex.
  • Higginson, J. (Higginson, Ho, Wilson), sec. 1983, res judicata, qualified immunity
  • Affirming in part and vacating in part dismissal of plaintiff’s various sec. 1983 claims arising from arrest.
  • In the first round of litigation, Welsh filed suit under 42 U.S.C. § 1983 alleging he was arrested without probable cause in violation of the Fourth Amendment. Initial claims were dismissed due to Heck v. Humphrey, which bars civil claims that would imply the invalidity of a conviction. After Welsh’s conviction was later overturned, the Fifth Circuit vacated those dismissals. On remand, however, the district court granted summary judgment in favor of the officer based on qualified immunity. Welsh subsequently filed a second suit alleging due process violations at his trial. While some claims were dismissed again, the Fifth Circuit remanded for the district court to determine whether the second suit was precluded by the first. The district court later dismissed much of the second suit based on res judicata and claim splitting, which Welsh appealed.
  • Welsh’s central claims focus on his allegation of false arrest and a conspiracy involving officer Hester, based on insufficient probable cause. He argues that his arrest and detention violated the Fourth Amendment and that the arrest warrant was supported by misleading or incomplete evidence. While Welsh maintains that the supporting affidavit was deficient, the Court found he had not shown a genuine dispute of fact sufficient to overcome qualified immunity. Additionally, the Court held that the evidence Welsh provided—including video and testimony—did not materially undermine the probable cause determination or establish that Hester’s reliance on the magistrate’s findings was unreasonable.
  • In the second suit, Welsh attempted to assert claims based on alleged trial misconduct, including perjury and evidence suppression, which he claimed violated due process. The district court dismissed many of these claims under res judicata and claim splitting, asserting that they arose from the same factual nucleus as the first suit. However, the Fifth Circuit recognized that some of Welsh’s due process claims may not have accrued until after his conviction and could not have been brought earlier due to the Heck bar. It concluded that the district court erred in barring these claims without fully considering whether Welsh had a fair opportunity to raise them previously. Despite affirming dismissals in part, the appellate court disagreed with the wholesale application of res judicata to all due process claims stemming from trial misconduct.

• U.S. v. Beaird, 24-10764, appeal from N.D. Tex.
  • per curiam (Richman, Graves, Douglas), criminal, sentencing
  • Affirming 72-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Barrios, 24-20262, appeal from S.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
  • Affirming conviction and sentence for distribution, receipt, and possession of child pornography

• Sexton v. Rollins, 24-20296, appeal from S.D. Tex.
  • per curiam (Clement, Engelhardt, Douglas), Title VII, employment discrimination
  • Affirming dismissal of Title VII claims.

• The General Land Office of the State of Texas v. Trump, 24-40447, appeal from S.D. Tex.
  • per curiam (King, Ho, Ramirez), intervention
  • Reversing denial of intervention by various building contractors and environmental groups after court entered preliminary injunction requiring Department of Homeland Security to only expend certain funds on construction of a border wall, which DHS said prevented it from fulfilling certain contracts with the putative intervenors.

• U.S. v. Allen, 24-40507, appeal from S.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal, search and seizure
  • Affirming conviction of possessing 50 grams or more of a mixture or substance containing methamphetamine, and upholding denial of a motion to suppress.

• U.S. v. Perkins, 24-40596, appeal from E.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
  • Affirming concurrent 135-month sentences on conviction of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine (actual) and possession of a firearm after a felony conviction.

• U.S. v. Caston, 24-60512, appeal from S.D. Miss.
  • per curiam (Graves, Willett, Wilson), criminal, sentencing
  • Affirming imposition of consecutive sentences on conviction of possession of a firearm by a felon and revocation of supervised release.