Take the Fifth

Unpublished decisions

• U.S. v. Macias-Fuentes, 25-10223, c/w 25-10226, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 60-month sentence on conviction of illegal reentry.

• U.S. v. Aguirre, 25-10395, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Foster, 25-10496, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Batiste, 24-11064, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Affirming conviction of receipt of a firearm by a felon.

• U.S. v. Palmer-Gilliams, 25-20011, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Reddin v. Phelan, 25-30033, appeal from W.D. La.
  • per curiam (Dennis, Graves, Duncan) (no oral argument), administrative law
  • Affirming summary judgment in favor of defendant Secretary of the Navy, finding that the Board for Correction of Naval Records’ denial of plaintiff’s petition to upgrade his military discharge to Honorable was not arbitrary, capricious, or unsupported by substantial evidence.

• U.S. v. Sosa, 24-40790, appeal from E.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Sanchez-Rivera, 25-50294, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Haynes, 22-50805, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sufficiency of evidence
  • Affirming conviction of receipt of a firearm while under felony indictment, possession of a firearm in furtherance of a drug trafficking crime, and possession of marijuana with intent to distribute.

• U.S. v. Casiano, 24-50921, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Kim v. Bondi, 25-60211, petition for review of BIA order
  • per curiam (Richman, Southwick, Willett) (no oral argument), immigration
  • Denying Kazakhstani citizen’s petition for review of BIA order dismissing an appeal from an order of the immigration judge (IJ) denying asylum, withholding of removal, and protection under the Convention Against Torture. In addition, the panel added the following admonishment of counsel: “Counsel is reminded of her duty to adhere to this court’s briefing standards and to accurately state the law and the facts,” on noting that the petitioner’s “brief is deficient in several respects, including failing to support factual statements with citations to the record, failing to support legal propositions with pertinent legal authority, citing to incorrect pages of the record, and misstating the record.”

• Harrison County v. U.S. Army Corps of Engineers, 24-60553, appeal from S.D. Miss.
  • per curiam (Jones, Stewart, Ramirez) (oral argument), Marine Mammal Protection Act, standing
  • Affirming dismissal on standing grounds of plaintiffs’ challenge to the Corps of Engineers’ operation of the Bonnet Carré Spillway as resulting in unauthorized takes of bottlenose dolphins in violation of the Marine Mammal Protection Act.
  • Harrison County and several Mississippi municipalities and industry groups sued the U.S. Army Corps of Engineers, alleging that repeated openings of the Bonnet Carré Spillway—particularly in 2011 and 2019—introduced massive amounts of freshwater into the Mississippi Sound, decreasing salinity and killing dolphins, which in turn harmed local tourism, fisheries, and the regional economy. The plaintiffs sought declaratory and injunctive relief requiring the Corps to obtain incidental take authorization before future openings. The district court dismissed the suit for lack of subject matter jurisdiction, finding no standing because the plaintiffs could not show an imminent injury, causation, or redressability. The Fifth Circuit affirmed.
  • The court began by explaining the MMPA’s structure: while it broadly prohibits taking marine mammals, it allows incidental takes if a U.S. citizen obtains authorization from the National Marine Fisheries Service (NMFS) for activities that will have a negligible impact. The Corps, however, argued that the MMPA authorizes but does not compel agencies to seek such permits. Turning to Article III standing, the court reaffirmed that plaintiffs must show a concrete, particularized, and imminent injury fairly traceable to the defendant’s conduct and likely redressable by a favorable ruling. Because Harrison County sought prospective relief, it had to demonstrate a “real and immediate threat” of future harm, not just past injury or speculative predictions.
  • Applying that framework, the Fifth Circuit held that Harrison County’s alleged future injuries were too conjectural. The operation of the Spillway depends on unpredictable flood conditions, and no future opening had been scheduled or forecasted. Past harm in 2011 and 2019 did not establish that another opening—much less one causing similar ecological effects—was imminent. The court analogized the case to City of Los Angeles v. Lyons (1983), where a past chokehold incident did not create standing for injunctive relief. Unlike Crawford v. Hinds County Board of Supervisors (2021), where future injury was nearly certain given recurring jury summonses, future harm here depended on multiple uncertain variables: weather, river conditions, and operational decisions. Because Harrison County could not show a “certainly impending” injury or that a future opening would necessarily harm dolphins, the court concluded it lacked standing and affirmed dismissal.