Take the Fifth

Designated for publication

• U.S. v. Betancourt, 24-20070, appeal from S.D. Tex.
  • Haynes, J. (Stewart, Dennis, Haynes), criminal, Second Amendment
  • Affirming conviction for possession of a firearm by a felon.
  • In 2019, Texas authorities arrested Betancourt after he allegedly brandished a firearm during a domestic dispute and was later found with multiple firearms, ammunition, and body armor in his home. A federal grand jury indicted him under 18 U.S.C. § 922(g)(1) for unlawful firearm possession due to prior felony convictions for aggravated assault stemming from a high-speed car crash that caused serious injuries. Betancourt moved to dismiss the indictment, arguing the statute violated the Second Amendment. The district court denied the motion, and Betancourt pleaded guilty while preserving his right to appeal the constitutional issue.
  • On appeal, the Fifth Circuit rejected Betancourt’s facial and as-applied Second Amendment challenges. Citing New York State Rifle & Pistol Ass’n v. Bruen, United States v. Rahimi, and its own precedent in United States v. Diaz, the court reaffirmed that laws disarming felons are presumptively lawful and consistent with historical tradition. Applying this framework, the court concluded that Betancourt’s prior convictions—though not involving firearms—reflected reckless, dangerous conduct that aligns with Founding-era justifications for disarming certain offenders. As such, the court held that applying § 922(g)(1) to Betancourt did not violate the Second Amendment.

• Palova v. United Airlines, Inc., 24-20136, appeal from S.D. Tex.
  • Graves, J. (Graves, Engelhardt, Oldham), employment discrimination, Age Discrimination in Employment Act, Railway Labor Act
  • Vacating summary judgment in favor of defendant that plaintiff’s age discrimination claims were preempted or precluded by the Railway Labor Act, and remanding for further proceedings.
  • Anna Palova, a longtime flight attendant for United Airlines, was terminated in 2020 after being accused of “parking”—a prohibited scheduling practice involving trading flight assignments for compensation. United relied on an algorithm to identify employees who violated this policy, and Palova was one of 28 flagged. She claimed her firing was discriminatory, noting that the only Houston-based attendants terminated were older women with long tenure. Palova alleged that the investigation process was flawed and biased, especially as she received a critical piece of evidence shortly before her interview. She sued under the Age Discrimination in Employment Act (ADEA) and Texas Commission on Human Rights Act (TCHRA), asserting that her age—not policy violations—was the real reason for her dismissal.
  • The district court granted summary judgment to United, finding that Palova’s claims were precluded or preempted by the Railway Labor Act (RLA), which governs disputes involving collective bargaining agreements (CBAs) in the airline industry. The court held that because United would rely on the CBA to justify termination for parking, the dispute was “minor” and beyond judicial jurisdiction. On appeal, the Fifth Circuit disagreed, drawing from Carmona v. Southwest Airlines, a similar case where the court held that statutory discrimination claims are not preempted by the RLA if they can be resolved without interpreting the CBA’s meaning. The Fifth Circuit emphasized that while the parking policy may be referenced, Palova’s age discrimination claims stand independently and hinge on whether United applied disciplinary actions unevenly across age groups.
  • The Fifth Circuit concluded that Palova’s claims were not preempted by the RLA and reinstated her lawsuit. It found her allegations were rooted in statutory rights, not contractual ones, and thus did not require interpreting the CBA to resolve. The court also noted that United’s reliance on Reece v. Houston Lighting & Power Co. was misplaced, as that case involved direct challenges to CBA provisions. Additionally, the panel remanded unresolved issues, including Palova’s motion to supplement the summary judgment record with a meme allegedly posted by her supervisor mocking older attendants, which the district court never ruled on due to its prior finding of RLA preclusion.

• U.S. v. Riojas, 24-40378, appeal from S.D. Tex.
  • Stewart, J. (Stewart, Dennis, Haynes), criminal, search and seizure, guilty plea
  • Affirming drug-possession conviction, holding that government’s failure to raise appeal-waiver from plea agreement waived the waiver, but that the district court’s denial of a motion to suppress was nevertheless not in error.
  • In the early hours of September 10, 2020, Corpus Christi police officers stopped Isaac Riojas after he failed to fully stop at a stop sign. Officers recognized Riojas from prior investigations and knew of his criminal history, including weapons charges. During the stop, Riojas opened his car door and threw his keys outside, prompting the officers to approach with caution. Officer Perez noticed Riojas reaching toward the console and detected a strong smell of marijuana emanating from the car. Riojas was detained and, upon further inspection, officers discovered a lighter initially mistaken for a pipe, a marijuana “roach,” and several bags containing synthetic cannabinoids, marijuana, and methamphetamine.
  • Riojas was arrested and indicted on federal drug and firearm charges. He filed a motion to suppress the evidence, arguing that the search lacked probable cause. Officer Perez testified about his experience and explained that the odor of marijuana and the visible joint justified the vehicle search under established law. The district court agreed, finding the search valid under the automobile exception to the Fourth Amendment’s warrant requirement. After the court denied the suppression motion, Riojas entered an unconditional guilty plea and was sentenced to over ten years in prison. He appealed, challenging the legality of the search.
  • On appeal, the Fifth Circuit first addressed whether Riojas’s unconditional guilty plea barred appellate review of the suppression ruling. Although such pleas typically waive all non-jurisdictional claims, the government had failed to assert waiver on appeal. The court examined a circuit split on whether it must raise waiver sua sponte and concluded that it did not need to do so. Drawing on precedent and the Supreme Court’s Garza v. Idaho ruling, the court held that appeal waivers are not jurisdictional and can be forfeited by the government. Because the government did not invoke the waiver, Riojas’s suppression challenge was allowed to proceed.
  • Nevertheless, the Fifth Circuit upheld the district court’s denial of the suppression motion. It concluded that the automobile exception applied because the officers had probable cause to search Riojas’s car. That conclusion was supported by the totality of the circumstances: Riojas’s traffic violation, the strong odor of marijuana, visible ashes, and the partially smoked joint all contributed to a reasonable belief that the vehicle contained contraband. The court emphasized that even if the district court had misapplied the plain view doctrine, the presence of probable cause independently justified the search under the automobile exception. Thus, Riojas’s conviction and sentence were affirmed.

• U.S. v. Jubert, 24-60199, appeal from S.D. Miss.
  • Stewart, J. (Stewart, Clement, Willett), criminal, First Amendment
  • Affirming conviction of cyberstalking, rejecting defendant’s First Amendment challenge to the law.
  • Jubert was charged with cyberstalking and transmitting a threatening communication due to a months-long online campaign of harassment against a former employer, M.R., and M.R.’s family. The behavior stemmed from a 2002 incident when M.R., a summer camp director, had fired Jubert. In 2023, Jubert used multiple Facebook accounts to post increasingly hostile content targeting M.R., his wife, and their two daughters, including threats, personal photos, and location information. His actions escalated to the point of suggesting violence and even serial killing. In response, M.R.’s family took significant security precautions and involved law enforcement.
  • Jubert moved to dismiss the charges, arguing that the statute under which he was charged, 18 U.S.C. § 2261A(2)(B), was unconstitutional on its face and as applied, claiming it criminalized protected speech. The district court denied the facial challenge and deferred ruling on the as-applied challenge. Jubert pleaded guilty to the cyberstalking charge while preserving his right to appeal. On appeal, the Fifth Circuit reviewed the constitutionality of the statute de novo, considering whether Jubert’s threatening statements qualified as unprotected “true threats” under First Amendment jurisprudence.
  • The court concluded that Jubert’s posts—explicit threats, including calls for M.R.’s execution and tracking of his children—were indeed true threats, falling outside First Amendment protection. Applying the Supreme Court’s Counterman standard, the Fifth Circuit found both that a reasonable person would perceive the posts as threatening and that Jubert was subjectively aware of their impact. The pattern and intensity of the conduct, alongside the victims’ responses and security measures, confirmed that Jubert’s behavior was more than offensive speech—it was targeted intimidation designed to instill fear.
  • Turning to the facial challenge, the Fifth Circuit rejected Jubert’s claim that § 2261A(2)(B) was overbroad. The court emphasized that the statute regulates repeated, intentional harassment rather than isolated speech, and includes a mens rea requirement. Every other circuit to consider the question had upheld the statute’s constitutionality, and the Fifth Circuit followed suit. It found that terms like “harass” and “intimidate,” though undefined, had accepted meanings that limited the statute to unprotected speech such as true threats or conduct integral to crime. Thus, the statute was neither facially overbroad nor unconstitutional as applied to Jubert’s conduct.

• U.S. v. Branson, 24-60417, appeal from S.D. Miss.
  • Graves, J. (Smith, Graves, Duncan), criminal, Due Process, Commerce Clause
  • Affirming conviction of possession of a firearm by a felon.
  • Marcus Branson was convicted of bank robbery in 2018 and later released under supervised conditions, which included a prohibition on firearm possession. In 2023, during a visit from a probation officer, two firearms were found in his apartment. Branson was indicted under 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms. He challenged the indictment on both facial and as-applied Second Amendment grounds, invoking the Supreme Court’s Bruen decision. The district court denied his motion, and Branson subsequently pleaded guilty. He received a total sentence of sixty-five months, combining both the new sentence and a revocation of supervised release, and appealed the district court’s rulings.
  • On appeal, Branson raised five constitutional arguments, four of which were quickly rejected as foreclosed by Fifth Circuit precedent. These included a facial and as-applied Second Amendment challenge, a Commerce Clause argument, and an equal protection claim. The court noted that his bank robbery conviction fell squarely within the category of felony offenses previously upheld under § 922(g)(1), and that past rulings had already addressed and rejected challenges based on similar facts and arguments. The panel also reiterated that the statute’s constitutional legitimacy under the Commerce Clause and Equal Protection Clause had been settled by controlling case law.
  • Branson’s final argument—that § 922(g)(1) is unconstitutionally vague—was the only one not already foreclosed. However, the Fifth Circuit found this argument meritless as well. The statute plainly prohibits firearm possession by individuals convicted of crimes punishable by more than a year in prison—language that clearly applied to Branson. His argument that constitutional interpretations in cases like Diaz could render the statute retroactively vague misunderstood the doctrine: vagueness must be tied to statutory language, not evolving case law. Because Branson did not raise this claim at the trial level, it was reviewed for plain error—and the court found no such error, affirming the conviction and sentence.

Unpublished decisions

• U.S. v. Asberry, 24-10884, appeal from N.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Beary v. Harris County, 24-20371, appeal from S.D. Tex.
  • per curiam (Stewart, Dennis, Haynes), Federal Tort Claims Act, municipal liability
  • Affirming dismissal of sec. 1983 claims arising from fatal shooting on holding that responding officers were federal officers and that administrative remedies had not been exhausted for FTCA liability, and that county could not be held liable for actions of federal officers.

• M.W. Prince Hall Grand Lodge v. Anderson, 24-30517, appeal from E.D. La.
  • per curiam (Wiener, Douglas, Ramirez), personal jurisdiction
  • Affirming dismissal for lack of personal jurisdiction local Masonic grand lodge’s suit against out-of-state national Masonic officials.

• Fortman v. Gregg County Sheriff’s Office, 24-40840, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas), prisoner suit
  • Dismissing as frivolous Texas state prisoner’s appeal from dismissal of claims as frivolous.

• Assadi v. Osherow, 24-50268, appeal from W.D. Tex.
  • per curiam (Stewart, Dennis, Haynes), bankruptcy, attorneys’ fees
  • Affirming bankruptcy court’s attorneys’ fee awards.

• U.S. v. Carrazco, 24-50669, appeal from W.D. Tex.
  • per curiam (Wiener, Douglas, Ramirez), criminal, sentencing
  • Affirming (as modified) sentence on conviction of drug-trafficking offenses.

• York v. Ezell, 24-50770, appeal from W.D. Tex.
  • per curiam (Wiener, Douglas, Ramirez), Title VII, employment discrimination, Age in Employment Discrimination Act
  • Affirming summary judgment dismissal of age discrimination claims.

• Odom Industries, Inc. v. Sipcam Agro Solutions, L.L.C., 24-60410, appeal from S.D. Miss.
  • per curiam (Stewart, Dennis, Haynes), Federal Arbitration Act
  • Holding that it was error for the district court to rule on a motion to remand to state court before ruling on a motion to compel arbitration, the Court reversed the remand motion and remanded for the district court to rule on the motion to compel arbitration.

• Castellan-Barrera v. Bondi, 24-60432, petition for review of BIA order
  • per curiam (Elrod, King, Graves), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order dismissing his appeal from an Immigration Judge’s denial of his application for asylum, withholding of removal, and protection under the CAT.