Take the Fifth

Designated for publication

• Guevara v. Castro, 24-10520, appeal from N.D. Tex.
  • Willett, J. (Richman, Willett, Douglas), Douglas, J., dissenting; international custody, Hague Convention
  • Granting panel rehearing, and entering new panel opinion reversing and remanding to district court with instructions to order the return of child to father in Venezuela.
  • A Venezuelan father, Jose Leonardo Brito Guevara, sought the return of his daughter, A.F., after her mother, Samantha Estefania Francisco Castro, took the five-year-old from Venezuela to the United States without his consent. Although the district court agreed Brito proved a prima facie wrongful removal under the Hague Convention, it denied relief on the ground that A.F. had become well-settled in Texas. The court of appeals reverses, holding the well-settled defense was misapplied and does not overcome the Convention’s default remedy of return. The case is remanded with instructions to order A.F.’s return to Venezuela.
  • The record shows Brito maintained custody rights and active involvement—even after relocating to Spain for work in 2021—by providing financial support and maintaining frequent contact. Castro and A.F. entered the U.S. in November 2021, lived first in Lewisville and then in Dallas, and relied in part on Castro’s boyfriend for housing; both mother and child lack permanent legal status and have pending asylum applications. Brito initiated Hague proceedings within two months, but administrative inertia and litigation delays pushed the federal bench trial to March 2024, after transfer to the Northern District of Texas. The district court then denied return based on a well-settled finding; Brito timely appealed.
  • Explaining the legal framework, the appellate court reiterates that the Convention—implemented by ICARA—aims to restore the pre-abduction status quo and deter forum-shopping, with return mandatory unless narrow defenses apply. Article 12’s “well-settled” exception turns on seven non-dispositive factors (age, residential stability, school/daycare, friends/relatives, community activities, respondent’s employment/finances, immigration status). The panel treats the underlying fact findings as reviewed for clear error but the ultimate well-settled determination as a primarily legal judgment reviewed de novo, distinguishing Supreme Court cases like Bufkin and Monasky as addressing different mixed-question contexts.
  • Applying the factors, the court finds the district court overweighted evidence of day-to-day normalcy in Texas and undervalued countervailing instability. A.F.’s young age (seven) favors adaptability and undermines claims of entrenched attachment; residential stability is weakened by multiple moves and reliance on a boyfriend’s home; school attendance, friendships, and activities, while positive, are not dispositive and could be replicated in Venezuela. Castro’s employment history shows gaps and frequent changes, and the uncertain immigration status of both mother and child permeates housing, schooling, and family relationships (including that A.F. cannot see her father in the U.S.). On holistic balance, A.F. is not “so settled” that return would be contrary to her best interests; the district court’s denial is vacated, judgment is rendered for Brito, and the district court is directed to order A.F.’s return to Venezuela.
  • Judge Douglas dissented, contending that the majority improperly reverses the district court’s denial of Brito’s Hague Convention petition by re-weighing facts, collapsing distinct “well-settled” factors, and speculating that Castro’s pending asylum claim will likely fail. After recounting that Brito moved from Venezuela to Spain in August 2021 and that Castro left Venezuela with A.F. roughly three months later, the dissent emphasizes that A.F. has since built a life in Texas: she lives with Castro and now-husband Rodriguez (who has Temporary Protected Status), attends kindergarten, has medical care, and is financially supported by Castro’s steady employment. The district court, after a two-day bench trial, credited this evidence and found A.F. well-settled; the dissent would not disturb those findings.
  • On standard of review, the dissent contends that clear-error review should govern the entire well-settled inquiry, not just subsidiary facts. Citing Monasky v. Taglieri and the Supreme Court’s recent guidance in Bufkin, the dissent characterizes the well-settled determination as a fact-intensive mixed question that requires the trial court to marshal and weigh evidence and make credibility judgments—work that appellate courts should review deferentially. In the dissent’s view, the majority’s de novo approach, and its practice of letting ultimate conclusions “bleed” back into the analysis of individual factors, misapplies that framework.
  • Applying the seven Hernandez factors, the dissent accepts that A.F.’s young age modestly tempers the analysis but finds the remaining factors favor well-settled status. It stresses that A.F. has moved only once in nearly three years and that hypothesized future disruptions (e.g., a breakup or housing changes) are speculative and legally irrelevant. Schooling, friendships, church attendance, community activities, and medical care are supported by the record. Castro’s employment history shows continuity and increasing stability, not fragility. Most sharply, the dissent rejects the majority’s treatment of immigration status: Hernandez makes it one factor among many, not a dispositive condition that “permeates” every other factor. Nor can the court assume asylum failure from a separate “grave risk” finding; the standards, records, and decisionmakers differ. Even if the district court under-analyzed immigration nuances, the appropriate remedy would be remand, not rendering judgment for Brito.
  • Finally, the dissent addresses litigation delay. While the Convention aspires to expedition, Lozano rejects equitable tolling and instead instructs courts to consider concealment or delay within the existing well-settled factors. Here, delays neither reflected concealment nor prevented A.F. from forming stable attachments; and Article 11 provides only a right to a statement of reasons after six weeks, not automatic exclusion of later-accrued evidence. Parties also had tools like mandamus if scheduling became untenable. In sum, the dissent would defer to the district court’s fact-finding, resist turning immigration status into a trump card, and avoid punishing a well-integrated child for her mother’s choices—concluding that the majority’s approach distorts both precedent and the Convention’s aims.

• U.S. v. Sereal, 23-30198, appeal from W.D. La.
  • Douglas, J. (King, Smith, Douglas), criminal, sentencing
  • Affirming conviction of possession of a firearm by a felon and application of crime-of-violence sentencing enhancement.
  • Busch Sereal pleaded guilty to possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1). The PSR set a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) based on two prior felonies—1998 Louisiana aggravated battery and a 2000 cocaine distribution conviction—and, with criminal history category V, calculated a range of 120–150 months, capped at the 120-month statutory maximum. The district court overruled Sereal’s objections (including to stolen-firearm and “in connection with another felony” enhancements and criminal history points for the 1998 conviction), adopted the PSR, and imposed 120 months and three years of supervised release, noting it would impose the same sentence even if its Guideline determinations were later found incorrect.
  • On appeal—reviewed only for plain error because the issues weren’t raised below—Sereal first argued § 922(g)(1) is unconstitutional after Bruen. The Fifth Circuit rejected that claim, citing its post-Bruen precedent that a § 922(g)(1) conviction does not constitute plain error and noting no intervening development made such convictions reversible under plain-error review. Accordingly, the court declined to vacate his conviction.
  • Sereal next contested the Guidelines treatment of his prior Louisiana aggravated battery as a “crime of violence.” Applying the categorical approach and the post-Borden/Garner framework, the court focused on whether any error in classifying that offense was clear or obvious. Although Louisiana labels aggravated battery a general-intent crime, the panel emphasized the “realistic probability” requirement: a defendant must point to Louisiana cases upholding convictions for that offense based on merely reckless or negligent conduct. The decisions Sereal cited involved intentional uses of force, not reckless or negligent conduct, and recent circuit authority cautions against extending Garner beyond its specific statute on plain-error review. Because Sereal failed to show clear or obvious error, the panel affirmed both his conviction and sentence.

• Offshore Oil Services, Inc. v. Island Operating Co., 24-30674, appeal from E.D. La.
  • Rodriguez, J. (Jones, Graves, Rodriguez, by designation), maritime law
  • Affirming summary judgment in favor of third-defendant on basis that services contract for offshore oil platform was not a maritime contract and that Louisiana law therefore applied to invalidate an indemnity provision in the contract.
  • The case turns on whether a Master Services Contract (MSC) between Fieldwood Energy and Island Operating Company (IOC) governing production services on offshore platforms is a “maritime contract.” If it is not, Louisiana law—including the Louisiana Oilfield Anti-Indemnity Act (LOAIA)—applies and nullifies an indemnity provision that Offshore Oil Services, Inc. (OOSI), a third-party marine transporter hired by Fieldwood, seeks to enforce. The court holds the MSC is not maritime in nature and therefore affirms summary judgment for IOC.
  • Under the MSC, IOC agreed to supply “Lease Operators” (later specified as “A Operators”) to perform classic platform production tasks—compliance and well testing, checking chemical rates, starting and loading compressors, and bringing wells online. Although the MSC required Fieldwood to arrange marine transportation to move workers and equipment to and from platforms—and labeled that transportation “a maritime activity”—the parties did not check any box indicating vessel operations as part of the contracted “Work,” and both companies’ representatives testified they did not expect vessels to be used as work platforms. After IOC sent worker Tyrone Felix offshore via OOSI’s M/V Anna M, Felix was injured during a personnel-basket transfer on January 30, 2021, prompting OOSI to seek indemnity, insurance coverage, and defense costs from IOC under the MSC.
  • Applying the Outer Continental Shelf Lands Act (OCSLA) choice-of-law framework and the Fifth Circuit’s two-step test from In re Doiron, the court agrees the first prong is satisfied (the contract facilitates offshore production), but finds the second prong unmet: the MSC did not provide for, nor did the parties expect, a vessel to play a substantial role in completing the contract. The court emphasizes a conceptual—not spatial—approach and distinguishes Earnest v. Palfinger, where the contract itself was for inspection and repair of lifeboats (vessels), “inevitably” giving vessels a substantial role. Here, vessel use was limited to transportation, which Doiron generally excludes from the substantial-role inquiry, and any incidental loading/offloading or potable-water transfers Felix sometimes performed did not convert the MSC into a maritime contract.

• U.S. v. Lezama-Ramirez, 23-30721, appeal from E.D. La.
  • per curiam (Southwick, Oldham, Ramirez), Southwick, J., dissenting; criminal, sentencing
  • Affirming in part and vacating in part special conditions of supervised release term as part of sentencing for illegal reentry.
  • The Fifth Circuit affirmed in part and vacated in part Luis Alfredo Lezama-Ramirez’s sentence for unlawful reentry under 8 U.S.C. § 1326(a). Although the district court did not read the supervised-release conditions aloud, the court held there was no plain error because the identical thirteen standard and two special conditions appeared in the PSR (which counsel acknowledged and the court adopted) and in the written judgment, and the record showed Lezama-Ramirez understood them. Reviewing discrepancies between the oral pronouncement and written judgment for abuse of discretion, the panel vacated Special Condition 2 to the extent the written judgment added a 72-hour reporting requirement upon reentry that went beyond the oral pronouncement (which only barred reentry without DHS permission). By contrast, the difference in Standard Condition 10 (“possess” vs. “own, possess, or have access to”) was an ambiguity that the written judgment permissibly clarified. The case is remanded to conform Special Condition 2; otherwise, the judgment is affirmed.
  • Judge Southwick dissented, contending the majority improperly imports Rule 32 inference standards to conclude the defendant had notice of PSR-recommended supervised-release conditions, noting our oral-pronouncement line has not embraced such inferences—aside from an unpublished case, Martinez-Rivera, where the panel declined to accept the Government’s concession. Another panel, Duruisseau, suggests the two lines of cases demand different showings. Reading our oral-pronouncement precedents (Diggles, Baez-Adriano, Quezada-Atayde) to require directly confirming the defendant reviewed the PSR with counsel—which did not occur here—the dissent would strike standard conditions 2–9 and 11–13 and special condition 1, and thus respectfully dissents.

Unpublished decisions

• Phillips v. Estate of Meankins, 25-10258, appeal from N.D. Tex.
  • per curiam (Southwick, Duncan, Engelhardt), dismissal
  • Dismissing as frivolous pro se appeal from administrative closure of case.

• I&I Hair Corp. v. Beauty Plus Trading Co., 24-10374, appeal from N.D. Tex.
  • per curiam (Haynes, Ho, Oldham), trademark infringement
  • Holding that there was sufficient evidence to support jury’s damages award, and reversing district court’s grant of defendant’s motion for judgment as a matter of law.

• U.S. v. Black, 25-10458, appeal from N.D. Tex.
  • per curiam (Elrod, Smith, Stewart), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Rupe v. City of Jacksboro, 24-10758, appeal from N.D. Tex.
  • per curiam (Jones, Stewart, Ramirez), sec. 1983
  • Affirming dismissal of claims that unconstitutionally vague ordinance delayed restoration of power to plaintiffs’ home and that city manager acted with deliberate indifference to their health and safety.

• U.S. v. Rayos, 24-10993, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal, search and seizure
  • Affirming conviction of possessing a controlled substance with the intent to distribute it, and upholding denial of motion to suppress.

• R.R. v. Mineral Wells Independent School District, 24-11074, appeal from N.D. Tex.
  • per curiam (Haynes, Ho, Oldham), Individuals with Disabilities Education Act
  • Affirming judgment in favor of school district on expelled student’s IDEA claim.

• U.S. v. Hill, 23-20244, appeal from S.D. Tex.
  • per curiam (Jones, Stewart, Ramirez), criminal
  • Affirming conviction of being a felon in possession of a firearm.

• U.S. v. Mojano-Rodriguez, 24-20487, appeal from S.D. Tex.
  • per curiam (Haynes, Ho, Oldham), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Carter, 24-30415, appeal from E.D. La.
  • per curiam (Higginson, Willett, Engelhardt), criminal
  • Dismissing without prejudice defendant’s appeal that she received ineffective assistance of counsel at the sentencing stage.

• U.S. v. Stanfield, 24-40173, appeal from S.D. Tex.
  • per curiam (Higginson, Willett, Engelhardt), criminal
  • Affirming conviction of possession of a firearm by a felon.

• Caruso v. Texas Medical Board, 25-50014, appeal from W.D. Tex.
  • per curiam (Higginson, Willett, Engelhardt), sec. 1983
  • Affirming dismissal of suit challenging denial of a full medical license.

• U.S. v. Tsatenawa, 24-50034, appeal from W.D. Tex.
  • per curiam (Jones, Stewart, Ramirez), criminal, search and seizure
  • Affirming denial of motion to suppress.

• U.S. v. Powell, 24-50476, appeal from W.D. Tex.
  • per curiam (Jones, Stewart, Ramirez), criminal, forfeiture
  • Affirming district court’s denial of defendant’s motion to reconsider an order lifting an agreed stay of forfeiture proceedings.

• U.S. v. Mueting, 24-50902, appeal from W.D. Tex.
  • per curiam (Barksdale, Graves, Duncan), criminal
  • Affirming conviction of conspiracy to commit mail fraud, sentence, and restitution award.

• Anderson v. Hinds County, 25-60083, appeal from S.D. Miss.
  • per curiam (Jones, Stewart, Ramirez), sec. 1983
  • Affirming dismissal of claims after County did not notify family of family member’s death for approximately six months, during which time his body decayed.

• Cruz v. Bondi, 25-60104, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan), immigration
  • Denying Guatemalan citizen’s petition for review of BIA order affirming an Immigration Judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Romanenko v. Bondi, 25-60110, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan), immigration
  • Denying Russian citizen’s petition for review of BIA order affirming the Immigration Judge’s (IJ) denial of his motion to reopen.

• Lowe v. Mills, 24-60112, appeal from S.D. Miss.
  • per curiam (Smith, Dennis, Richman), habeas corpus
  • Affirming denial of sec. 2254 petition challenging Mississippi conviction of receipt of child pornography.

• Carcamo-Viema v. Bondi, 24-60390, petition for review of BIA order
  • per curiam (Higginson, Willett, Engelhardt), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order affirming the Immigration Judge’s (IJ) denial of his motion to reopen and rescind an in absentia order of removal.

• Lazo-Lopez v. Bondi, 24-60483, petition for review of BIA order
  • per curiam (Jones, Stewart, Ramirez), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from an Immigration Judge’s denying her application for asylum and withholding of removal.