Take the Fifth

Designated for publication

• U.S. v. Wickware, 24-10519, appeal from N.D. Tex.
  • per curiam (Stewart, Clement, Willett), criminal, sentencing
  • Withdrawing prior opinion after petition for rehearing, and substituting new opinion affirming sentence of defendant on issue of intervening amendment to Sentencing Guidelines.
  • Darrell Wickware, previously convicted of robbery under Texas law, was charged in 2021 with unlawful possession of a firearm as a convicted felon and pleaded guilty under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At his 2024 sentencing, Wickware argued that his prior robbery conviction should not be classified as a “crime of violence” due to recent Sentencing Guidelines amendments, which now define “robbery” more specifically. The district court, relying on existing Fifth Circuit precedent, rejected his argument and sentenced him to 24 months’ imprisonment. On appeal, Wickware challenges the district court’s conclusion that his argument was foreclosed by precedent, asserting that the 2023 amendments to the Guidelines require a new analysis of whether Texas robbery qualifies as a crime of violence.
  • The Fifth Circuit agreed that the 2023 amendments to U.S.S.G. § 4B1.2 warrant re-examining the issue rather than simply relying on prior precedent such as Santiesteban-Hernandez and Adair. However, upon comparing the elements of Texas robbery under § 29.02 with the Guidelines’ revised definition, the court found that the Texas statute’s elements are the same or narrower than those of the generic offense of robbery. Although Wickware argued that the Texas statute’s phrase “in the course of committing theft” differs from the Guidelines’ “by means of actual or threatened force,” the court deemed this a minor terminological variation that does not alter the substantive similarity of the offenses. Moreover, the Guidelines’ definition is broader, as it includes threats to property and future harm, which Texas law does not. Consequently, the court held that Texas robbery remains a crime of violence under the Guidelines and upheld Wickware’s sentence.

• Doe v. City View Independent School District, 24-10592, appeal from N.D. Tex.
  • per curiam (Elrod, Higginbotham, Ramirez), timeliness, Title IX, sec. 1983
  • Affirming dismissal as untimely a former high school student’s claims against school district arising from extensive sexual abuse by a teacher.
  • The Fifth Circuit reviewed the district court’s dismissal of Doe’s case de novo, emphasizing that a complaint must state enough facts to establish a plausible claim. Title IX prohibits sex discrimination, including sexual harassment by teachers and retaliation against those who report it. However, Title IX claims borrow state personal injury statutes of limitations, which in Texas is two years. Doe’s sexual harassment and retaliation claims accrued no later than May 2020 when the abuse ended, and the statute of limitations expired by May 2022. Since Doe filed suit in April 2023, her claims were untimely. The court also rejected Doe’s attempt to reframe a 2022 letter from Bushong—threatening litigation if she spoke publicly—as a Title IX retaliation claim, as this theory was neither pleaded in her complaint nor supported by specific facts.
  • The court further held that Doe’s arguments for equitable tolling and the continuing violation doctrine failed. Texas tolling principles applied, but Doe offered no viable state-law tolling theory. The continuing violation doctrine was inapplicable because the alleged harassment ended before her graduation in 2020, and Bushong’s 2022 letter was a discrete act occurring well after the statutory period. Finally, the district court did not abuse its discretion in denying Doe leave to amend her complaint. Though Doe suggested she could add more details about the 2022 letter and the officials’ conduct, these facts would not overcome the limitations bar. Consequently, the Fifth Circuit affirmed the dismissal of Doe’s Title IX claims.

• Vinales v. AETC II Privatized Housing, L.L.C., 24-50113, appeal from W.D. Tex.
  • per curiam (Elrod, King, Graves), property damage, federal enclave doctrine, fraud, evidence, attorneys’ fees
  • Affirming dismissal of claims under the federal enclave doctrine, dismissal of fraud claim, exclusion of evidence at trial, denial of attorneys’ fees, and judgment on jury verdict for remaining claims.
  • In 1951, Texas ceded exclusive jurisdiction over the land that would become Randolph Air Force Base to the United States. In 2007, the Air Force leased the housing at Randolph to AETC II Privatized Housing, LLC (AETC Housing), which, along with AETC II Property Managers, LLC (AETC Managers) and Hunt ELP, Limited (collectively, Appellees), operated and maintained the properties. Lt. Col. Shane Vinales and his family (Appellants) leased a home at Randolph in 2017, raising concerns about a musty smell prior to moving in, which the property representative dismissed as “normal.” Appellants alleged that the property had mold, asbestos issues, and poor maintenance, leading to health problems and property contamination. In 2019, Appellants and other military families sued Appellees, asserting eleven claims, including breach of the Texas Deceptive Trade Practices Act (DTPA), breach of contract, and fraud. The magistrate judge dismissed most claims under the federal enclave doctrine, leaving only the breach of contract claim for trial. A jury awarded Appellants $31,654 for lease diminution and $60,000 for personal property damages.
  • On appeal, the Fifth Circuit reviewed the application of the federal enclave doctrine. Because Randolph is a federal enclave, only federal law and non-conflicting Texas law from 1951 remain applicable. Appellants argued for the application of modern Texas laws, citing Howard v. Louisville, but the court rejected this, reaffirming that congressional action is needed to update enclave laws. The court also rejected the argument that 28 U.S.C. § 5001(b) or lease references to Texas law provided exceptions. Consequently, the magistrate judge’s dismissal of the DTPA and other post-cession state law claims was affirmed.
  • Regarding fraud, the magistrate judge found that Appellants failed to identify actionable misrepresentations. Allegations about the home’s condition, website claims of quality housing, and statements made during the pre-lease walkthrough were deemed either non-actionable puffery or opinion. The claim that Appellees had misled tenants through deceptive repair practices also failed, as Appellants could not show reliance on any specific false statements. Thus, the summary judgment on the fraud claim was upheld. The court also upheld the denial of attorneys’ fees, finding that Appellants’ fee request lacked legal basis under pre-cession law, which did not allow fee recovery against limited liability companies.
  • On cross-appeal, AETC Housing challenged the damages award, claiming insufficient evidence and arguing that lease terms barred such recovery. The court found sufficient evidence for both personal property and lease diminution damages, noting that Appellants presented lease payment records, testimony, and property condition evidence. The court also rejected claims that Appellants waived rights by continuing month-to-month leasing or that exclusive remedies applied. Additionally, the Fifth Circuit upheld the magistrate judge’s evidentiary rulings, the jury’s findings, and the instructions given, concluding there was no abuse of discretion or legal error. The judgment awarding damages to Appellants was therefore affirmed.

Unpublished decisions

• U.S. v. Haywood, 24-20264, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Duplessis, 24-50791, appeal from W.D. Tex.
  • per curiam (Barksdale, Stewart, Ramirez), criminal, sentencing
  • Affirming 36-month sentence on conviction of transporting illegal aliens within the United States and conspiracy to do the same.

• Wells v. Guerrero, 24-70002, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham), habeas corpus
  • Denying certificate of appealability from district court’s denial of habeas relief.