Take the Fifth

Designated for publication

• Romero-Lozano v. Bondi, 23-60638, petition for review of BIA order
  • Willett, J. (single-judge order), immigration, mandate
  • Denying motion to reopen case.
  • Jose Ernesto Romero-Lozano, removed from the U.S. in 2014 and illegally reentering eight years later, was placed in withholding-only proceedings after DHS reinstated his removal order in 2022. An Immigration Judge denied his application, and the BIA affirmed in November 2023. He petitioned for review within 30 days of the BIA decision, but the case was remanded to the BIA before briefing concluded. While the matter was pending, Romero-Lozano sought to recall the mandate and reinstate his petition based on the Supreme Court’s 2025 decision in Riley v. Bondi, which held that a BIA order in a withholding-only proceeding is not a “final order of removal” for purposes of the 30-day filing deadline. Judge Willett denied the motion, finding no extraordinary circumstances, noting that his petition would still be untimely under Riley, and explaining that any timeliness issues could be addressed if he files a new petition after the BIA’s remand decision.

• U.S. v. Brown, 24-20095, appeal from S.D. Tex.
  • Douglas, J. (Wiener, Douglas, Ramirez), criminal, attorney-client privilege, sentencing, double jeopardy
  • Affirming ruling denying motion to suppress testimony the defendant argued violated the attorney-client privilege, vacating ruling to dismiss two counts of indictment on double-jeopardy grounds, and remanding for resentencing.
  • Ronald Donell Brown, leader of a large-scale drug trafficking organization, was convicted on multiple counts stemming from his cocaine and marijuana distribution network and two violent retaliations. After one associate stole 56 kilograms of cocaine, Brown kidnapped and shot at Eric Williams, injuring him and an unrelated bystander. He also orchestrated the murder of Marcus Celestine, arranging for an associate to shoot Celestine outside a parole office and paying $20,000 for the killing. A 2018 superseding indictment charged Brown with conspiracy to commit murder for hire (Count One), intentional killing while engaged in drug trafficking (Count Two), and related firearm-murder offenses under § 924(j) (Counts Three and Four), among others.
  • Before trial, Brown moved to suppress evidence, claiming the Government violated attorney-client privilege and his Sixth Amendment rights by using a confidential informant (CI) to record two meetings with his lawyers. At the first meeting, the CI—invited under the pretense of discussing a school investment—heard discussions about reclaiming $718,407 seized from a driver. Brown proposed the CI falsely claim ownership to recover the money. The second meeting further discussed fabricating a claim. The district court found no privilege because the CI was a third party without a common legal interest and no Sixth Amendment violation because the meetings occurred years before indictment. The Fifth Circuit affirmed this ruling, finding no clear error and rejecting Brown’s reliance on Upjohn and In re Auclair.
  • At trial in 2023, Brown was convicted on seven counts after the Government dismissed five others. He moved to vacate either Count One or Two on double jeopardy grounds, arguing they were multiplicitous. On the day of sentencing, the Government moved under Rule 48(a) to dismiss Counts Three and Four—the § 924(j) counts—citing Lora v. United States and double jeopardy concerns over cumulative punishment. Defense counsel sought a continuance to respond and to amend the earlier motion to vacate, but the court denied these requests and dismissed Counts Three and Four, sentencing Brown to mandatory life on Counts One, Two, Five, and Seven, plus a consecutive ten years on Count Six.
  • On appeal, Brown argued the court erred in dismissing Counts Three and Four instead of Counts One and Two. The Fifth Circuit found the issue preserved despite the lack of a formal objection because the Government filed its motion on sentencing day, limiting Brown’s ability to respond. Counsel had flagged double jeopardy concerns, sought to amend the earlier motion, and implied disagreement with which counts should be dismissed. The appellate court held this was enough to alert the district court to the argument now raised.
  • Reviewing for abuse of discretion, the court noted that while Rule 48(a) generally respects prosecutorial discretion, here the Government was not deciding whether to prosecute but influencing sentencing outcomes. Counts Three and Four, the greater-included offenses, allowed sentencing flexibility (“any term of years or life”), while Counts One and Two mandated life or lengthy minimum terms. Dismissing the greater offenses effectively stripped the court of discretion and ensured a life sentence. Under Ball v. United States, the choice of which duplicative convictions to vacate rests with the court, not the prosecution. The district court erred by adopting the Government’s choice without analysis.
  • The Fifth Circuit vacated the dismissal of Counts Three and Four, vacated Brown’s sentences on Counts One and Two, and remanded. On remand, the district court must independently decide whether to dismiss the lesser-included (Counts One and Two) or greater-included (Counts Three and Four) offenses, considering the unusual penalty structure, and then resentence Brown accordingly. The appellate court did not dictate which counts should be dismissed, leaving that determination to the district court’s sound discretion.

• DM Arbor Court, Ltd. v. City of Houston, 23-20385, appeal from S.D. Tex.
  • Duncan, J. (Dennis, Willett, Duncan), Dennis, J., dissenting; taking
  • Reversing judgment that City did not effect an unconstitutional taking of apartment owner’s apartment complex by denying permit for repairs pursuant to city flood control ordinance, and remanding for further proceedings.
  • After Hurricane Harvey caused severe flooding at the Arbor Court apartment complex in 2017, the City of Houston denied the owners, DM Arbor Court, Limited (DMAC), a permit to repair the damage. The City invoked a rarely used flood ordinance provision (§ 19-19) that allowed denial if proposed development could pose a danger due to flooding. Although DMAC had previously obtained repair permits after an earlier flood in 2016, this time the City deemed most of the buildings “substantially damaged” and required costly elevation before repair. Negotiations to sell the property to the City failed, HUD transferred DMAC’s housing assistance contract elsewhere, and Arbor Court became vacant and economically idle. DMAC sued, claiming the permit denial was an unconstitutional taking under the Fifth Amendment, but the district court rejected the claim after trial, finding that the property retained potential economic uses.
  • On appeal, the Fifth Circuit concluded that the district court erred and that the City’s actions constituted a categorical taking under Lucas v. South Carolina Coastal Council. Both DMAC’s and the City’s experts testified that redeveloping Arbor Court in compliance with the elevation requirements would be economically infeasible—costing $40–$46 million—leaving no viable present use for the property. The court rejected the district court’s reasoning that “holding the property for investment” or selling it could count as economically beneficial uses, noting that speculative future value does not defeat a Lucas claim. Citing precedent, the panel emphasized that when regulation leaves a property economically idle, a per se taking occurs regardless of the public interest advanced.
  • The Fifth Circuit also rejected the City’s reliance on Adolph v. FEMA, which upheld flood regulations against a facial takings challenge, explaining that it did not bar as-applied claims like DMAC’s. Because the evidence showed that the permit denial eliminated all current economically viable uses of Arbor Court, and the City failed to identify any alternative feasible uses, the appellate court held that DMAC met its burden under Lucas. The panel reversed the district court’s judgment and remanded for further proceedings, instructing that the City’s denial of a repair permit under Chapter 19 effected a categorical taking requiring just compensation.
  • Judge Dennis dissented, expressly for reasons he broadly quoted frmo the district court judgment. Thos reasons held that, under Lucas, a categorical taking occurs only in the rare case where regulation deprives a property of all economically beneficial use, typically when the land must be left in its natural state or its deprivation is equivalent to a physical appropriation. Courts often assess property value to determine this, and a complete elimination of value is generally required, though some nominal value from noneconomic uses may still trigger Lucas. Precedent shows that even significant value reductions—75%, 83%, 92%, or more—do not meet the standard if any economic use remains. The key inquiry is whether any owner could use or sell the property for an economically beneficial use, even if unprofitable or speculative, such as holding for investment. Debt burdens, the owner’s inability to profit, or a reduction in prior uses do not alone create a total taking.
  • Applying these principles, Judge Dennis agrees with the district court that no categorical taking occurred. The City’s permit denial was narrowly tailored to DMAC’s specific application to restore the property to its prior HUD-subsidized apartment use; other uses consistent with health and safety ordinances remained available. City officials testified that owners could repurpose the property for compliant uses, and DMAC offered no evidence of exploring such options. The existence of potential buyers for allowable uses—even at reduced value—precludes a finding that all economically beneficial use was lost.

• Port Arthur Community Action Network v. Texas Commission on Environmental Quality, 22-60556, appeal from Texas Commission on Environmental Quality
  • Graves, J. (Wiener, Graves, Douglas), Clean Air Act
  • Denying petition for review of TCEQ decision not imposing certain emissions limitations on a new LNG facility that had been imposed on another such facility, upholding Texas Supreme Court decision (after certification of question to that Court) that “best available control technology” under Texas law cannot refer to methods that are not yet operational.
  • PACAN challenged the Texas Commission on Environmental Quality’s (TCEQ) decision to grant Port Arthur LNG a Prevention of Significant Deterioration permit with higher nitrogen oxide (NOx) and carbon monoxide (CO) limits than those approved for a different, not-yet-operational LNG facility, Rio Grande LNG. PACAN argued that Rio Grande’s lower limits represented the “best available control technology” (BACT) and should apply to Port Arthur LNG. After administrative law judges recommended adopting Rio Grande’s stricter limits, TCEQ rejected the recommendation, reasoning that the limits had not been proven achievable through operational data. On review, the Fifth Circuit certified to the Texas Supreme Court the question of whether Texas’s BACT definition includes technology approved in permits but not yet operational. The Texas Supreme Court held that BACT under Texas law refers only to control methods already proven operational through real-world experience and research—not merely permitted or theoretically achievable—thus excluding Rio Grande’s untested limits as a benchmark.
  • Applying that interpretation, the Fifth Circuit found that PACAN’s reliance on Rio Grande’s emissions limits failed because the facility was not yet operational and lacked real-world performance data. The court rejected PACAN’s arguments that vendor guarantees and prior permit approvals sufficed as proof, emphasizing that Texas BACT requires demonstrated operational success. It also dismissed claims that Texas’s BACT definition conflicted with the federal standard, noting that the federal and state definitions operate concurrently and that no difference in stringency had been shown to create preemption. Because Port Arthur LNG’s permit met Texas’s BACT requirement as clarified by the state supreme court, the Fifth Circuit held the Commission’s decision was neither arbitrary nor unsupported by substantial evidence, and it denied PACAN’s petition.

Unpublished decisions

• U.S. v. Gomez-Carrillio, 25-10302, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Guerra, 24-10906, appeal from N.D. Tex.
  • per curiam (Jones, Smith, Higginson), criminal, sentence reduction
  • Dismissing as frivolous appeal from denial of motion for sentence reduction.

• U.S. v. Lopez, 24-10969, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Canchola, 24-10994, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• B.B. v. Harrington, 24-30244, appeal from M.D. La.
  • per curiam (Ho, Engelhardt, Douglas), Douglas, J., dissenting; Medicaid, class action
  • Vacating district court’s certification of class of children who require “intensive behavioral services” in claims that Louisiana is failing to provide statutorily required mental health services, on basis that class definition is too vague to support an ascertainable class, and remanding for narrowing of class definition.
  • Judge Douglas dissented. The dissent opines that the district court properly defined and certified a class of Medicaid-eligible Louisiana children with mental health conditions who were recommended intensive home- and community-based services (IHCBS) under the Medicaid Act’s EPSDT mandate. Plaintiffs alleged that Louisiana’s Department of Health failed to provide such services through a coordinated statewide system, forcing children into emergency or institutional care. On remand from a prior appellate ruling, the district court adopted the plaintiffs’ detailed ten-component definition of “intensive behavioral services,” alongside agreed definitions for “intensive care coordination” and “crisis services.” The dissent contends this definition was a single, comprehensive standard—not the two-pronged test the majority inferred—and that it was clearly limited to the enumerated components, preventing the overbreadth the majority feared.
  • The dissent further rejects the majority’s claim that certain components are unascertainable, noting that the district court could objectively identify class members by reviewing medical records for provider-recommended interventions matching the defined components. Both plaintiffs’ and the Department’s experts agreed on the substance of these services, demonstrating professional clarity in the field. Because the district court’s approach allowed mechanical, objective determinations of class membership and was supported by expert evidence, the dissent finds no abuse of discretion and would uphold the class certification.

• Baton Rouge Ventures, L.L.C. v. Cedar Grove Capital, L.L.C., 23-30741, appeal from M.D. La.
  • per curiam (Elrod, Wiener, Wilson), jurisdiction
  • Dismissing for lack of jurisdiction appeal in matter where both plaintiff LLC and defendant LLC had at least one member that was a New York citizen, destroying complete diversity of citizenship.

• U.S. v. McPherson, 23-40258, appeal from E.D. Tex.
  • per curiam (Barksdale, Graves, Duncan), criminal
  • Vacating dismissal of defendant’s indictment, which charged him with possession of a firearm by a person subject to a protective order, and remanding for consideration of defendant’s as-applied challenge.

• U.S. v. Salone, 23-40577, appeal from S.D. Tex.
  • per curiam (Jones, Graves, Rodriguez, by designation), criminal
  • Affirming conviction of possession of a firearm by a felon, though remanding for limited purpose of correcting clerical error in written judgment.

• U.S. v. Ramirez, 24-50763, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez, by designation), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Medlock-Gilder, 24-50928, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Leyva, 24-50947, appeal from W.D. Tex.
  • per curiam (Barksdale, Graves, Duncan), criminal, sentencing
  • Affirming 175-month sentence on conviction of conspiracy to possess with intent to distribute methamphetamine.

• Mashali v. Bondi, 24-60579, petition for review of BIA order
  • per curiam (Higginbotham, Engelhardt, Ramirez), immigration
  • Denying Egyptian citizen’s petition for review of BIA order upholding the denial of his application for deferral of removal under the Convention Against Torture.