Take the Fifth

Designated for publication

• U.S. v. Mancilla, 23-10952, appeal from N.D. Tex.
  • per curiam (Elrod, King, Graves), Elrod, C.J., concurring; Graves, J., dissenting; criminal, Second Amendment
  • Affirming conviction of possession of a firearm by a felon.
  • Alvaro Alejandro Mancilla pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) after he and his cousin were arrested at a Fort Worth gun show with five firearms and $27,072; his predicate was a 2010 felony for possession with intent to distribute cocaine. On appeal, he raised a preserved, as-applied Second Amendment challenge under Bruen and Rahimi. Reviewing de novo, the court held that although § 922(g)(1) regulates conduct covered by the Second Amendment, the government satisfied its burden to show consistency with the Nation’s historical tradition because, under binding Fifth Circuit precedent—particularly United States v. Kimble—drug-trafficking felonies mark individuals as dangerous, a class that legislatures have long been permitted to disarm without individualized assessments. Accordingly, § 922(g)(1) is constitutional as applied to Mancilla, and the conviction is affirmed.
  • Chief Judge Elrod concurs in the judgment because the majority correctly applies binding Fifth Circuit precedent, but notes that, absent those constraints, as-applied challenges to 18 U.S.C. § 922(g)(1) should permit individualized assessments of dangerousness. Using Mancilla’s case—an over-a-decade-old, nonviolent drug-trafficking conviction at age 19 with no other felonies—as an example, the author argues current precedent effectively imposes a lifetime ban without allowing proof of non-dangerousness, whereas many historical disarmament laws allowed individuals to show they were not dangerous, making disarmament temporary rather than permanent. While acknowledging that categorical, offense-based rules promote notice and administrability, and that recent caselaw has evolved quickly in broad strokes, the author maintains that a truer as-applied approach would parse a defendant’s circumstances more finely, as courts do in other constitutional contexts—yet ultimately concurs because the majority faithfully follows existing law.
  • Judge Graves dissented, contending that individualized dangerousness assessments remain required and are not foreclosed by precedent. Citing United States v. Reyes, which upheld § 922(g)(1) based on a defendant’s full criminal history, Judge Graves contends Reyes controls and could not be overruled by the later panel in United States v. Kimble; the partial concurrence in Kimble rested on an individualized analysis, and the disputed portion there is the issue now. Judge Graves further notes that subsequent Fifth Circuit decisions, including Alaniz and Morgan, continue to examine the defendant’s entire record—extending to misdemeanors and unadjudicated conduct—when evaluating constitutionality under § 922(g)(1). Because there is no principled basis to limit individualized assessments only to cases that sustain the statute’s application, Judge Graves agrees with the concurrence that such an assessment is appropriate here and therefore respectfully dissents.

• U.S. v. Simpson, 24-50284, appeal from W.D. Tex.
  • Elrod, C.J. (Elrod, Duncan, Engelhardt), criminal, Second Amendment
  • Affirming denial of motion to dismiss indictment for possession of a firearm by a felon.
  • The Fifth Circuit affirmed the denial of Deimon Nolan Simpson’s motion to dismiss his felon-in-possession indictment under 18 U.S.C. § 922(g)(1). Simpson, who pleaded guilty, argued the statute was unconstitutional as applied, but the court held § 922(g)(1) permissibly disarms people whose predicate felonies involve violence and that his other challenges are foreclosed by circuit precedent. Applying Bruen and Rahimi’s historical-analogue framework, the court relied on Founding-era “going-armed” laws and its own cases (including Diaz, Connelly, Reyes, Betancourt, Kimble, Schnur, and Morgan) to conclude that disarming dangerous individuals is consistent with tradition. It deemed Simpson’s prior Texas felony for evading arrest with a vehicle—during which he accelerated, crashed into a brick wall, and possessed cocaine and a loaded revolver—“violent conduct” sufficient to support permanent disarmament, rejecting his claim that the predicate must involve misuse of a firearm.

• Gulf Coast Pharmaceuticals Plus, L.L.C. v. RFT Consulting, Inc., 24-60480, appeal from S.D. Miss.
  • Ho, J. (Haynes, Ho, Oldham), Haynes, J., concurring in judgment only (w/o opinion); removal, jurisdiction
  • Reversing remand of suit alleging claims of breach of employment agreements, misappropriation and embezzlement of funds, and fraud on basis of contractual provision that district court held waived removal, on holding that “provisions are not a clear and unequivocal waiver of the Defendants’ removal rights.”
  • Plaintiffs sued eleven defendants in Mississippi state court over an alleged scheme involving contract breaches, misappropriation, embezzlement, and fraud; defendants removed to federal court, but the district court remanded, reading a contract clause in three defendants’ agreements as waiving removal. Applying Mississippi law and reviewing de novo, the Fifth Circuit reversed, holding the clause—providing that Mississippi law governs and that “venue shall only be proper in Harrison County, Mississippi,” with consent to personal jurisdiction and venue in those forums—does not clearly and unequivocally waive removal, especially since litigation was expressly contemplated in either state or the appropriate federal court in Mississippi. The court distinguished Waters v. Browning-Ferris, where no federal court sat in the chosen county and the agreement contained multiple irrevocable waivers giving the plaintiff first-mover control; here, both sides simply consented to venue and jurisdiction in either state or federal court within Harrison County, which is ambiguous as to removal. Because a remand based on waiver is nonjurisdictional, and ambiguity cannot forfeit the statutory right to remove, the panel reversed the remand order.

Unpublished decisions

• Taylor v. Brook Valley Management, Inc., 25-10327, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson), removal, jurisdiction
  • Affirming denial of motion to remand case on federal question jurisdiction grounds.

• Lara v. Penhall Co., 25-10403, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson), employment discrimination
  • Affirming denial of employment discrimination claims.

• U.S. v. Hargrove, 25-10423, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Molina-Guzman, 24-11008, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• Hebrew v, Texas Department of Justice, 25-20007, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Ho), appellate jurisdiction
  • Dismissing appeal of orders denying motions for costs, on basis they were not final, appealable judgments.

• Cantu v. Guerra & Moore, L.L.P., 24-40760, appeal from S.D. Tex.
  • per curiam (Dennis, Ho, Oldham), removal, jurisdiction
  • Appealing denial of motion to remand and grant of motion to dismiss.