June 2, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • Guevara v. Castro, 24-10520, appeal from N.D. Tex.
    • Willett, J. (Richman, Willett, Douglas), Douglas, J., dissenting; international child custody
    • Reversing denial of petition to return child under the Hague Convention to father in Venezuela, and remanding with instructions to enter order to return child to Venezuela.
    • After their separation in 2019, Jose Brito retained custody rights over his daughter A.F., who was born in Venezuela in 2018 to Brito and Samantha Castro. Although Brito moved to Spain in 2021 for work, he remained involved in A.F.’s life and provided financial and emotional support. That same year, Castro removed A.F. from Venezuela without Brito’s consent and entered the U.S. unlawfully, later settling in Texas. Despite Brito’s efforts to maintain contact and even visit, Castro did not inform him of her whereabouts or respond to early efforts to resolve custody issues amicably.
    • Brito pursued relief under the Hague Convention, which seeks to deter international parental abductions and restore custody decisions to the child’s country of habitual residence. Although he filed within the required timeframe, administrative delays led to a late hearing. When the matter was finally heard in the Northern District of Texas, the court found that although Brito had made a prima facie case for return, the “well-settled” exception applied—meaning A.F. had allegedly become so established in the U.S. that returning her was not in her best interest.
    • On appeal, the Fifth Circuit held that the district court misapplied the well-settled defense. The appellate court explained that the determination is a mixed question of law and fact, with legal conclusions reviewed de novo. Unlike factual assessments such as those in Bufkin v. Collins, determining whether a child is “well-settled” involves weighing legal factors, not performing mathematical tallies or evidence balancing. The seven relevant factors—age, residence stability, school attendance, social connections, community involvement, financial/employment status, and immigration status—must be evaluated holistically, not mechanistically.
    • The appellate court found that the district court undervalued A.F.’s young age and unstable immigration and housing situation. Although she was doing well in school and had some community ties, the short duration of her stay, her mother’s transient employment, dependence on a boyfriend for housing, and lack of legal immigration status all undermined the conclusion that she was “so settled” in the U.S. that returning to Venezuela would harm her. Thus, the Fifth Circuit reversed the district court’s denial of Brito’s petition and concluded that the Hague Convention required A.F.’s return.
    • Judge Douglas dissented. She argues that the majority improperly reweighed the district court’s factual findings and denied it the deference required under clear-error review. The dissent emphasizes that A.F. has become well-settled in Texas due to her stable living conditions, consistent schooling, community ties, and her mother’s steady employment. It criticizes the majority for speculating about the possible failure of Castro’s asylum claim and for blending distinct legal factors—such as immigration status and housing stability—in a way that distorts the multi-factor analysis required under the Hague Convention.
    • The dissent also underscores the importance of the trial court’s role in credibility assessments and fact development, citing the Supreme Court’s Bufkin decision, which mandates deference to trial courts when they are immersed in factual determinations. According to the dissent, the “well-settled” determination is fundamentally factual, and appellate courts should not override the district court’s reasoned weighing of the evidence. It accuses the majority of applying a legal framework in a fact-intensive inquiry, thus undermining the traditional appellate role.
    • In analyzing the seven Hernandez factors individually, the dissent finds that the district court’s conclusions—that A.F. was thriving academically, socially, and emotionally in Texas—were amply supported. The dissent rebukes the majority for substituting its judgment in areas such as residential stability, school attendance, community involvement, and financial security, even though there was no clear error in the lower court’s findings. It also argues that the majority gave undue weight to immigration status, improperly allowing it to undermine the other six factors despite precedent to the contrary.
    • Finally, the dissent addresses Brito’s argument that procedural delays contributed to the perception that A.F. had become well-settled. While acknowledging that the Hague Convention encourages expediency, the dissent notes there is no legal mandate to decide cases within a specific timeframe, nor was the delay improper given the circumstances. It contends that the majority’s approach risks turning the well-settled defense into a punitive mechanism rather than a child-centered safeguard. Ultimately, the dissent maintains that A.F. should remain in Texas, where she has built a stable and meaningful life.
  • Keister v. Dolgencorp, L.L.C., 24-60356, appeal from N.D. Miss.
    • Engelhardt, J. (Elrod, Engelhardt, Guidry, by designation), personal tort, spoliation
    • Affirming summary judgment in favor of defendant in premises liability action, and affirming denial of motion for sanctions that was based on accusation of defendant for spoliation.
    • In this premises liability case, Sandie Keister sued Dolgencorp on behalf of her late mother, Karen Orr, who allegedly tripped on an empty stackbase in a Dollar General aisle and later died. Keister claimed negligence, negligent infliction of emotional distress, and breach of contract, also requesting sanctions for Dolgencorp’s failure to preserve security footage, safety records, and planning documents. The district court found that Dolgencorp either lost or couldn’t access these materials, granted summary judgment for Dolgencorp on all claims, and denied Keister’s motion for sanctions. On appeal, Keister challenged both the grant of summary judgment and the denial of sanctions.
    • The Fifth Circuit affirmed the district court’s rulings. Under Mississippi law, a premises liability plaintiff must show that the defendant created or knew of a dangerous condition, or that the condition existed long enough to impute knowledge. Keister’s argument that the display’s location and depletion pattern created a foreseeable danger failed because Mississippi courts reject the mode-of-operation theory she relied on. Her alternative theory—that the display was left empty for a significant time—was speculative and unsupported by evidence. The court also upheld the denial of sanctions under Rule 37(e), finding Keister had not proven Dolgencorp intentionally destroyed evidence and noting that her requested jury instruction became moot after summary judgment was granted.

Unpublished decisions

  • U.S. v. Yarbrough, 24-10970, appeal from N.D. Tex.
    • per curiam (Wiener, Ho, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Evans, 24-11045, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gonzalez, 24-20450, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Caballero v. Walgreens Co., 24-20512, appeal from S.D. Tex.
    • per curiam (Higginbotham, Jones, Southwick), personal tort
    • Affirming summary judgment in favor of defendant on premises liability claim.
  • U.S. v. Garcia-Aparicio, 24-20536, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Beloney, 24-30333, appeal from W.D. La.
    • per curiam (Wiener, Ho, Ramirez), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Torres, 24-40409, appeal from E.D. Tex.
    • per curiam (Davis, Smith, Higginson), criminal
    • Affirming conviction of conspiracy to possesses with intent to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin.
  • U.S. v. Carbajal, 24-50107, appeal from W.D. Tex.
    • per curiam (Wiener, Ho, Ramirez), criminal, sentencing
    • Affirming conviction and sentence for possession of a firearm by a felon.
  • U.S. v. Cotton, 24-50512, appeal from W.D. Tex.
    • per curiam (Haynes, Higginson, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Deleon, 23-50829, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Southwick), criminal, sentencing
    • Affirming conviction but vacating sentence on conviction of possession with intent to distribute actual methamphetamine, on basis that district court had used outdated version of the Sentencing Guidelines, and remanding for resentencing.
  • U.S. v. Joseph, 24-50865, appeal from W.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. McAbee, 24-60520, appeal from S.D. Miss.
    • per curiam (Dennis, Engelhardt, Oldham), criminal, sentencing, Armed Career Criminal Act
    • Affirming ACCA-enhanced sentence on conviction of possession of a firearm by a felon.
  • Mazariegos-Rosales v. Bondi, 24-60565, petition for review of BIA order
    • per curiam (Wiener, Ho, Ramirez), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order dismissing her appeal and affirming an order of the immigration judge denying her application for asylum, withholding of removal, and protection under the Convention Against Torture.