Take the Fifth

Designated for publication

• U.S. v. Humbles, 24-30364, appeal from E.D. La.
  • Clement, J. (Stewart, Clement, Wilson), criminal, sentencing
  • Affirming 92-month sentence on conviction of possession of a firearm by a felon.
  • Reginald Humbles, a U.S. Army veteran with a history of psychiatric issues, was arrested after stealing a waste disposal truck in New Orleans and leading police on a high-speed chase across the Lake Pontchartrain Causeway and I-12. He brandished a firearm during the incident and was eventually apprehended when spike strips disabled the truck. A .22 caliber revolver with one live round was recovered from him. Humbles was indicted on one count of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Although his mental health evaluation found that he suffered from bipolar disorder with psychotic and hyperreligious delusions, he pleaded guilty to the firearm offense.
  • At sentencing, the probation officer applied a cross-reference to the robbery Sentencing Guideline, enhancements for brandishing a firearm and reckless endangerment, and included one criminal history point for Humbles’s prior uncounseled DUI conviction. This resulted in an offense level of 24 and a criminal history category of V, producing a Guidelines range of 92 to 115 months. The district court adopted these calculations, rejected Humbles’s objections, and sentenced him to 92 months. The court also denied his requests for a downward departure and variance based on diminished capacity, military service, and mental illness, reasoning that his conduct—including brandishing a firearm—posed a serious threat to the public.
  • On appeal, Humbles raised five issues: (1) that the district court erred in cross-referencing to the robbery Guideline; (2) that the court wrongly denied his requests for a downward departure and variance; (3) that the reckless endangerment enhancement was improperly applied; (4) that his uncounseled DUI conviction was incorrectly used to calculate his criminal history; and (5) that his case should be reassigned to a different judge on remand. The Fifth Circuit rejected each of these claims. It held that the robbery cross-reference was proper because Humbles used a firearm in connection with taking the truck, and the evidence indicated he appreciated the wrongfulness of his actions despite his delusions. The court also concluded that the district court acted within its discretion in denying a downward variance, emphasizing the seriousness of the crime and the need to protect the public.
  • The Fifth Circuit further found no clear error in applying the reckless endangerment enhancement, citing Humbles’s prolonged police chase, the dragging hose, sparks, and disabled headlights as creating a substantial risk to others. Regarding the DUI conviction, the court held that Humbles failed to prove he had not knowingly waived his right to counsel, so the conviction was properly counted. Finally, because the panel affirmed the district court’s judgment and found no reversible error, it denied Humbles’s request to reassign the case.

• Williams v. Wingrove, 24-40531, appeal from E.D. Tex.
  • Dennis, J. (Stewart, Dennis, Haynes), Haynes, J., dissenting; COVID-19, employment, preemption
  • Affirming in part and reversing in part dismissal of plaintiffs’ claim that their husband and father contracted COVID-19, and later died, due to unsafe working conditions at the meat-packing plant where he was employed; and remanding for further proceedings.
  • David Williams, Sr. died after contracting COVID-19 while working at a Tyson Foods meatpacking plant in Carthage, Texas. His widow and two sons sued the plant manager, safety manager, and a coworker in Texas state court, alleging negligence and gross negligence based on unsafe working conditions that exposed him to the virus. The defendants removed the case to federal court, arguing improper joinder of the Texas defendants. The district court agreed, finding that Texas law places the duty to provide a safe workplace on the corporate employer, not individual managers, and dismissed the claims against the managers. This preserved diversity jurisdiction, and the court then allowed plaintiffs to add Tyson as a defendant. Ultimately, the district court dismissed all claims—against Tyson on preemption grounds under the Poultry Products Inspection Act (PPIA) and against the coworker for lack of duty.
  • On appeal, the Fifth Circuit first affirmed the district court’s conclusion that the managers were improperly joined, emphasizing Texas law’s clear rule that only employers, not individual managers, owe the duty to maintain a safe workplace unless an independent duty of care exists. The plaintiffs’ reliance on century-old precedent involving negligent medical quarantine was rejected as inapplicable, as the managers here never undertook such duties. The court also rejected plaintiffs’ “common defense” argument under Smallwood, finding the claims against the managers and the coworker were distinct, not identical, and thus dismissal rather than remand was proper. As a result, diversity jurisdiction was validly established.
  • Turning to the merits, the Fifth Circuit disagreed with the district court on preemption, holding that plaintiffs’ state negligence claims against Tyson were not preempted by the PPIA. The court reasoned that the PPIA’s domain is consumer food safety, not workplace safety, and Tyson had not shown that preventing the spread of COVID-19 implicated product adulteration. Thus, dismissal on preemption grounds was erroneous. However, the court affirmed dismissal of the claims against the coworker, finding no individual duty under Texas law to prevent disease transmission. Finally, it vacated the denial of leave to amend, since that ruling was tied to the erroneous preemption finding.
  • Judge Haynes dissented. She opines that the case should have been remanded to state court because diversity jurisdiction was lacking, given the presence of Texas citizens on both sides of the litigation. The district court allowed removal by finding the Texas defendants improperly joined, but the dissent contends this misconstrued the claims, which alleged that those defendants had independent duties of care relevant to the death at issue. Citing Smallwood and Bosky, the dissent emphasizes that removal statutes must be strictly construed against removal and that the burden of proving improper joinder is heavy. Further, under Missouri, K. & T. Railway Co. v. Wood, Texas law recognizes liability for failing to prevent the spread of contagious disease, which applies here. At the very least, the dissent suggests certifying the issue to the Texas Supreme Court for clarification. Accordingly, the dissent concludes that the case belongs in state court.

Unpublished decisions

• Braidwood Management, Inc. v. Becerra, 23-10326, appeal from N.D. Tex.
  • per curiam (Willett, Wilson, Ramirez), Affordable Care Act, Appointments Clause
  • On remand from the U.S. Supreme Court, which had reversed the panel’s original holding that members of the U.S. Preventive Services Task Force were not constitutionally appointed pursuant to the Appointments Clause but had not ruled on the panel’s holding that rejected plaintiffs’ Appointments Clause challenge to the Advisory Committee on Immunization Practices and the Health Resources and Services Administration, remanding to the district court to reconsider its rulings in light of the U.S. Supreme Court’s holdings.

• U.S. v. Wyatt, 24-11092, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Comeaux, 24-20574, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Oldham), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Palmer, 25-30030, appeal from W.D. La.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Wall, 25-30051, appeal from M.D. La.
  • per curiam (Jones, Richman, Duncan), criminal, sentencing
  • Affirming 192-month sentence on conviction of distribution of child pornography.

• U.S. v. Chavez, 24-30611, appeal from W.D. La.
  • per curiam (Barksdale, Oldham, Douglas), criminal, sentencing
  • Affirming 327-month sentence on conviction of production of child exploitative material.

• U.S. v. Skyler, 24-40067, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas), criminal, sentencing, guilty plea
  • Affirming guilty plea conviction and consecutive 108- and 84-month sentences for conspiracy to interfere with interstate commerce by robbery and using, carrying, and brandishing a firearm during and in relation to, and possessing and brandishing a firearm in furtherance of, a crime of violence.

• U.S. v. Huerta-Hernandez, 24-40572, appeal from E.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Moreno-Salazar, 24-40601, appeal from S.D. Tex.
  • per curiam (Barksdale, Haynes, Oldham), criminal
  • Affirming conviction of possession of a firearm by a felon.

• Wood v. City of San Antonio, 23-50037, appeal from W.D. Tex.
  • Richman, J. (Richman, Haynes, Duncan), qualified immunity, municipal liability
  • Affirming qualified immunity dismissal of claims against officers and dismissal of municipal liability claims.

• U.S. v. Tijerina-Avila, 25-50057, c/w 25-50060, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Barrios-Alvarado, 24-50845, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Jones v. Brush Country Nursing and Rehabilitation, 24-50923, appeal from W.D. Tex.
  • per curiam (Clement, Southwick, Oldham), sec. 1983
  • Affirming dismissal of claims that plaintiff’s relative’s death was caused by violations of the Federal Nursing Home Reform Act.