Take the Fifth

Designated for publication

• U.S. v. West, 22-11001, appeal from N.D. Tex. (denying panel reh’g but substituting new op.)
• U.S. v. West, 22-11001, appeal from N.D. Tex. (denying reh’g en banc on Court’s own motion) (voting against rehearing: Elrod, Jones, Stewart, Southwick, Haynes, Graves, Higginson, Ho, Douglas, Ramirez, JJ.; voting for rehearing: Smith, Richman, Willett, Duncan, Engelhardt, Oldham, Wilson, JJ.); Elrod, C.J., concurring in denial of rehearing; Higginson, J., concurring in denial of rehearing; Ho, J., concurring in denial of rehearing; Oldham, J., dissenting from denial of rehearing (joined by Smith, Duncan, Engelhardt, Wilson, JJ.)
  • per curiam (Elrod, Willett, Duncan), Willett, J., concurring; Duncan, J., concurring; criminal, sentencing, restitution, appeal waiver
  • Vacating $6,000 restitution order as part of sentence for production of child pornography, and remanding for further proceedings; also, on Court’s own en banc poll, denying en banc rehearing.
  • Though qualified by two concurring opinions, the panel opinion was “per curiam.” West pleaded guilty to two counts of child pornography production in exchange for dismissal of five other counts, reserving in his plea agreement the right to appeal any sentence that exceeded the statutory maximum. The district court sentenced him to 720 months in prison and ordered $6,000 in restitution under the Mandatory Victims Restitution Act and 18 U.S.C. § 2259, but failed to perform the statutorily required proximate-cause analysis to determine if West’s offense directly caused the victim’s losses. West appealed, arguing the restitution order exceeded the statutory maximum and thus fell within the exception to his appeal waiver. The per curiam Court agreed, holding that restitution without a proximate-cause finding violates precedent and exceeds the statutory maximum, making West’s appeal permissible.
  • The Court found that plain error review applied and all four prongs of the test were satisfied: the district court cited inapplicable statutes, failed to conduct the required analysis under § 2259(b)(1), and there was no evidence in the record tying the victim’s losses to West’s conduct. Because restitution orders without a causal link or evidentiary support undermine the fairness and integrity of judicial proceedings, the Court vacated the restitution order. However, it left open whether the government may submit new evidence on remand, directing the district court to determine if any exceptions to the bar on new evidence apply.
  • Judge Willett concurred because he found that U.S. v. Winchel was controlling precedent, but he “agree[d] with much of Judge Oldham’s powerful dissent” from the denial of en banc rehearing and was among the seven judges who voted at the Court’s own polling for en banc rehearing to modify that precedent.
  • Judge Duncan also concurred, “reluctantly,” and likewise was among the seven judges voting for en banc rehearing. He found the Circuit’s precedent to be “perplexing, to put it mildly. As Judge Oldham’s dissent from denial of en banc rehearing explains, Leal and Winchel are in profound tension with our court’s decision in United States v. Bond, 414 F.3d 542 (5th Cir. 2005). The commonsense result here should have been that the restitution award, no matter how erroneous, is not a ‘sentence exceeding the statutory maximum punishment.’ Accordingly, the appeal should have been barred by the waiver.”
  • Chief Judge Elrod concurred in the 10-7 denial of en banc rehearing. She explained her decision not to support en banc rehearing in a case involving appeal waivers and restitution orders, finding no meaningful conflict in existing precedent. Chief Judge Elrod clarified a key distinction in waiver jurisprudence: when a defendant appeals a restitution order after waiving appeal rights, challenges to the outcome of a district court’s proximate-cause analysis are barred, while challenges based on the absence of any such analysis are not. Citing cases like Winchel and Leal for the latter and Alfred and Meredith for the former, she noted that both parties in the present case understood and applied this distinction correctly, and no en banc review was warranted.
  • Judge Higginson likewise concurred in the denial of en banc rehearing. He writes separately to contextualize and critique aspects of the Court’s approach to appeal waivers, particularly in restitution cases involving child pornography offenses. He emphasizes that such restitution orders often arise post-sentencing and involve complex, evolving factual determinations, making them a poor fit for rigidly enforced plea agreement waivers. Judge Higginson disagrees with the dissent’s concern that exceptions like Winchel would “swallow” plea agreements, instead arguing that inflexible waiver enforcement risks undermining judicial review and justice. He stresses that appeal waivers are contractual, not jurisdictional, and cannot strip courts of their authority to correct sentencing errors. Finally, he calls for future en banc review to confirm a miscarriage-of-justice exception—recognized in most circuits—to ensure courts can rectify egregious sentencing errors, even when an appeal waiver exists.
  • Judge Ho also concurred “reluctqntly” in the en banc denial. He agrees in principle with enforcing appeal waivers, noting that ignoring them undermines plea bargains for both sides. However, he sees no practical benefit in pursuing en banc review in this case because there is no realistic chance of overturning the precedents set by Winchel, Leal, and West, given the lack of majority support. Drawing parallels to a prior case, Crane, Judge Ho stresses that pursuing an en banc rehearing without sufficient votes would only produce a fractured decision that confuses rather than clarifies circuit law. Thus, despite sympathizing with dissenters, he concurs in denying rehearing en banc to avoid an unhelpful, splintered outcome.
  • Judge Oldham authored the dissent from the denial of en banc rehearing. He contends that because the district court could impose an even higher restitution award on remand, the original $6,000 cannot possibly be considered to exceed the statutory maximum. He criticizes the panel’s reliance on Winchel and Leal, which held that restitution orders lacking a proximate-cause analysis under Paroline are categorically illegal and therefore exceed the statutory maximum. According to Judge Oldham, this interpretation contradicts earlier precedent in Bond, which narrowly defined “statutory maximum” as the congressionally authorized maximum term of imprisonment for the offense.
  • The dissent further explains that conflicting rulings in Bond, Winchel, Leal, Meredith, Alfred, and now West have created doctrinal chaos, leaving parties and judges uncertain about the enforceability of appeal waivers in restitution cases. The Winchel line of reasoning, Judge Oldham argues, turns appeal waivers into meaningless formalities by allowing appeals of any sentencing error, thus undermining their core purpose of bringing finality and predictability to plea agreements. He accuses West of applying inconsistent logic and drawing distinctions between “no analysis” and “flawed analysis” that make no sense under Paroline, fail to reconcile with Bond, and ignore the actual language and structure of the plea agreement, which separates restitution from “sentence.”
  • Judge Oldham concludes by rejecting counterarguments defending West, emphasizing that Winchel is not a stable precedent and should not override clearer, earlier rulings. He warns that this fractured state of the law in the Fifth Circuit turns judicial outcomes into arbitrary results dependent on panel assignment, which erodes the rule of law. He takes particular issue with the suggestion that courts always retain the power to correct sentencing errors, pointing out that this contradicts Supreme Court precedent on waiver and undermines finality in criminal judgments. In sum, he urges that the court should have taken the opportunity to resolve the conflict en banc and restore coherence and reliability to appeal waiver jurisprudence.

• Deep South Center for Environmental Justice v. U.S. Environmental Protection Agency, 24-60084, petition for review of EPA order
  • Oldham, J. (Graves, Engelhardt, Oldham), Graves, J., concurring in judgment only; standing, Safe Drinking Water Act
  • Dismissing petition for review of EPA order for lack of standing. This case arises under the Safe Drinking Water Act (SDWA), which protects underground sources of drinking water and includes regulations for carbon dioxide (CO₂) sequestration via Class VI underground injection control (UIC) wells. Louisiana sought and received primacy from the EPA to administer its own Class VI UIC program, following a rulemaking and public comment process. The EPA reviewed Louisiana’s application, conducted hearings, and received thousands of public comments before approving the application and incorporating Louisiana’s regulations into federal law. Environmental groups—Deep South Center for Environmental Justice, Healthy Gulf, and Alliance for Affordable Energy (AAE)—then filed this petition for review of the EPA’s decision.
  • The Court, however, dismissed the case for lack of Article III standing. Deep South claimed organizational standing based on its diversion of resources to oppose Louisiana’s application, but the Court found that this kind of voluntary advocacy and education effort does not qualify as an injury-in-fact under Alliance for Hippocratic Medicine. The organization’s claimed harm—shifting resources from other programs to challenge EPA’s approval—was self-inflicted and no different from routine political or advocacy activity. The Court emphasized that under Supreme Court precedent, organizational standing requires direct interference with core operations, not voluntary reallocation of resources.
  • Similarly, the associational standing claims brought by AAE and Healthy Gulf failed. Their members’ alleged injuries—including higher energy costs, personal safety concerns, environmental harms, and aesthetic or recreational impacts—were deemed too speculative and remote. The Court explained that the harm depended on a long chain of uncertain events, such as permit approval, construction, well malfunction, and specific individual impact, none of which was “certainly impending.” Even concerns about Louisiana’s liability transfer statute and lack of enforcement were dismissed as contingent and attenuated, failing both the imminence and traceability requirements for standing.
  • Finally, the Court ruled that even if plaintiffs had shown a concrete injury, they could not demonstrate that the injury was traceable to the EPA’s approval of Louisiana’s primacy application. Because Class VI wells could still be permitted under federal oversight even without state primacy, plaintiffs’ injuries could not be directly linked to the EPA’s action. Ultimately, the Court concluded that all plaintiffs lacked standing under established constitutional standards and dismissed the petition.
  • Judge Graves issued an opinion concurring in judgment only. He agrees with the majority’s decision to dismiss the environmental organizations’ petition for lack of standing, but disagrees with the breadth of the majority’s reasoning. Specifically, he argues that the majority overstates the requirements for organizational standing under Article III by interpreting FDA v. Alliance for Hippocratic Medicine as demanding “direct interference” in all cases. Judge Graves notes that the Supreme Court in Alliance did not use that phrase or establish it as a universal standard, instead referencing the “perceptible impairment” language from Havens Realty Corp. v. Coleman. By equating “directly affected and interfered” with “perceptibly impaired,” the Supreme Court maintained a more flexible standard. The concurrence criticizes the majority for imposing a stricter injury-in-fact requirement than the Supreme Court articulated, cautioning against overreading Alliance and emphasizing fidelity to precedent as understood in Havens and recent circuit decisions.

• U.S. v. Bourrage, 23-60286, appeal from S.D. Miss.
  • Richman, J. (Richman, Willett, Douglas), criminal, search and seizure, sufficiency of evidence, jury instructions, sentencing
  • Affirming conviction and sentence for conspiracy to possess methamphetamine with the intent to distribute it.
  • After holding that the defendants had standing to challenge the admissibility of a wire tap, the Court held there was no error in denial of a motion to suppress the wire tap evidence. The Court reviewed the district court’s denial of a motion to suppress as untimely and found no abuse of discretion because the defense failed to show good cause or prejudice for filing the motion two days after the pretrial deadline. Arguments that the delay was due to new counsel or late government disclosures were unpersuasive, as counsel had been involved for months and allegedly late evidence had been produced well before the deadline. Even under a plain error review, the panel found that no Franks hearing was warranted because the defense failed to make a substantial preliminary showing that the affidavits supporting the wiretap orders contained intentionally false statements necessary to the finding of probable cause. Regardless, the affidavit—excluding the allegedly false statements—still provided ample evidence of Donovan’s involvement in methamphetamine distribution, supporting a finding of probable cause. Finally, the court rejected Donovan’s argument that the wiretap orders were facially deficient because they failed to identify a high-level DOJ official; the orders did name Deputy Assistant Attorneys General authorized under the statute, thus satisfying the legal requirements.
  • One codefendant challenged the district court’s admission of Agent James McCombs’s testimony interpreting drug-related code words, arguing that such interpretations constituted inadmissible expert testimony. The Government offered McCombs’s statements as lay opinion testimony under Federal Rule of Evidence 701, and the court allowed it based on his extensive participation in the investigation. McCombs was the lead agent, listened to hundreds of wiretapped calls, and explained that his interpretations were drawn from his personal involvement in the case and the context of the conversations, not solely from general law enforcement experience. Although McCombs briefly referenced his broader career experience during cross-examination, he clarified that his interpretations were based on insights gained from this specific investigation, and thus the court did not abuse its discretion in admitting his testimony.
  • Donovan and Orlando challenged their convictions for conspiracy to distribute methamphetamine, arguing the government only proved a buyer-seller relationship. However, the Court found sufficient evidence for the jury to reasonably infer a conspiracy. Their recorded conversations showed coordinated efforts to obtain and resell drugs, including discussions about prices, suppliers, pooling money, and concerns about law enforcement. This demonstrated an ongoing, mutually dependent relationship that went beyond isolated transactions. The jury could also infer their intent to distribute based on the quantities involved and their reactions to a disrupted shipment, indicating their participation in a broader, multi-person drug distribution network.
  • In a separate conspiracy count, the Court also upheld Donovan’s conviction based on his repeated efforts to purchase large quantities of methamphetamine from Marice Boler, which suggested an intent to resell rather than personal use. Boler’s testimony and Donovan’s own statements supported the existence of multiple transactions and an ongoing relationship, disqualifying the buyer-seller exception. As for Orlando, the district court did not plainly err in failing to instruct the jury on the buyer-seller exception, as the evidence did not support its application. Therefore, the district court properly denied both defendants’ motions for acquittal.
  • Donovan and Orlando claimed that a jury instruction improperly pressured the jury to reach a unanimous verdict by warning that disclosing their numerical division could lead to a mistrial, causing delay and expense. However, the instruction was part of a procedural explanation on jury notes, given before deliberations began—not a coercive Allen charge. Because the defendants did not object at trial, the Court reviewed for plain error and found none. While the judge incorrectly stated that revealing the jury’s split would mandate a mistrial, the comment was not coercive and did not affect the trial’s fairness. The Court concluded that the instruction was neutral, focused on proper procedure, and did not pressure the jury to convict.
  • Donovan and Orlando argued that their sentences were improperly enhanced under Sentencing Guidelines § 3B1.1(b) for allegedly managing or supervising the drug conspiracies, but the Court found sufficient evidence in the PSR showing both exercised control over drug pricing and distribution, including coordination with multiple conspirators and handling large drug quantities, justifying the enhancement. Orlando also challenged a separate enhancement under § 2D1.1(b)(1) for possessing a firearm during a September 2020 arrest, claiming the incident was unrelated to the charged May 2020 conspiracy. However, the Court deemed the September conduct “relevant” due to its similarity to earlier drug activity, its regularity, and the relatively short four-month gap, concluding that the firearm enhancement was properly applied.

Unpublished decisions

• U.S. v. Olvera-Gamez, 24-11030, appeal from N.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Hawthorne, 24-30569, appeal from W.D. La.
  • per curiam (Wiener, Ho, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Rubio v. Guerrero, 24-70004, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas), habeas corpus
  • Denying capital inmate’s request for certificate of appealability from district court’s denial of habeas relief.