Take the Fifth

Designated for publication

• U.S. v. Bonner, 24-60601, appeal from S.D. Miss.
  • per curiam (Barksdale, Willett, Duncan) (oral argument withdrawn), Willett, J., concurring (joined by Duncan, J.); criminal, Second Amendment
  • Affirming conviction of possession of a firearm by a felon, rejecting Second Amendment and Commerce Clause challenges as foreclosed by Circuit precedent. Initially designated as an unpublished opinion, then changed to designate as being for publication, likely for purposes of Judge Willett’s concurrence:
  • Judge Willett concurred, questioning the constitutional basis of 18 U.S.C. § 922(g)(1), which criminalizes firearm possession by felons, suggesting it may exceed Congress’s enumerated powers and infringe individual rights under the Second Amendment. While bound by precedent to uphold Bonner’s conviction, Judge Willett contends that federal courts’ interpretations of § 922(g)(1) have stretched the Commerce Clause far beyond its textual limits. He observes that the statute’s “in or affecting commerce” language, as read in Scarborough v. United States, now requires only a trivial connection—such as a gun’s prior movement across state lines—to justify federal jurisdiction. This, he says, conflicts with Lopez, Morrison, and NFIB v. Sebelius, which insist that Congress may regulate only activities substantially affecting interstate commerce. The opinion laments that this expansive reading erodes state sovereignty and forecloses local experimentation, fulfilling Anti-Federalist fears that federal power would grow by “remote implication.”
  • Turning to the Second Amendment, Judge Willett expresses similar concern that courts have drifted from Bruen’s historical-tradition test. He argues that some appellate panels, in defending § 922(g)(1), have analogized to general criminal punishments or non-firearm laws—contrary to Bruen and Rahimi, which examined only historical firearm-specific regulations. Moreover, he faults decisions that justify § 922(g)(1) by speculating about hypothetical laws Congress might have enacted, such as bans on firearm possession by intoxicated persons, rather than testing the actual statute against the Constitution. Such reasoning, he contends, sidesteps the defendant-specific inquiry that Bruen and Rahimi require and undermines procedural safeguards. Ultimately, while joining the majority out of fidelity to precedent, he urges the full court—or the Supreme Court—to revisit § 922(g)(1)’s foundations under both the Commerce Clause and the Second Amendment. “No doubt, applying the Second Amendment to § 922(g)(1) is a challenging task. I do not pretend to have all the answers. But in these two respects, I harbor serious reservations that our analysis has been consistent with Bruen and Rahimi.”

Unpublished decisions

• Winningham v. Yarbrough, 25-10360, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), sec. 1983
  • Affirming dismissal of plaintiff’s claim consisting of “incoherent allegations against approximately 46 defendants, attacking a judgment against him for unpaid property taxes.”
  • The Court observed that the plaintiff’s “allegations are rambling and often alarming. For example, he writes, ‘[t]hese WRONGDOERS are bringing in business for this District of Columbia so-called court corporation right now, and it will bring in more business when the Demandant arms up and goes out there and defends his right NOT to be their slave, with lethal force if necessary.'” The Court held that the plaintiff failed to engage with the district court’s reasons for dismissal, and that “[h]is brief is in the same style as his Complaint: he refers to lawyers and Judges as the ‘Pope’s clergy,’ repeatedly references Roman law and satanism, and quotes excerpts from out-of-context treatises and dictionaries.”

• U.S. v. Avila-Gonzalez, 25-10525, appeal from N.D. Tex.
  • per curiam (Stewart, Willett, Wilson) (no oral argument), criminal
  • Dismissing as frivolous appeal from denial of Rule 36 motion.

• U.S. v. Turcios-Lopez, 25-10559, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Niter v. Brown, 24-10961, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), § 1983
  • Affirming dismissal of survivors’ claims arising from inmate’s death by suicide.

• U.S. v. Roberts, 25-20227, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Smith v. U. Parcel Serv., Inc., 24-20299, appeal from S.D. Tex.
  • per curiam (Barksdale, Willett, Duncan) (no oral argument), employment discrimination, Rule 56
  • Affirming the district court’s summary judgment dismissal of discrimination and retaliation claims, but vacating summary judgment dismissal of hostile-work-environment claim and remanding for district court to state on the record its reasons.

• Shop Rite, Inc. v. U.S. Small Business Administration, 25-30028, appeal from W.D. La.
  • per curiam (Higginbotham, Ho, Douglas) (no oral argument), Paycheck Protection Program
  • Affirming the SBA’s determination that Shop Rite did not qualify for loan-forgiveness under the Paycheck Protection Program because Shop Rite exceeded the 500-employee limit for participation in the program.

• U.S. v. Rivas, 25-50031, appeal from W.D. Tex.
  • per curiam (King, Jones, Wilson) (oral argument withdrawn), King, J., concurring in judgment; criminal, sentencing
  • Affirming sentence for drug-smuggling conviction using the sentencing enhancement for using or attempting to use a minor to avoid detection of crime, when defendant, who was 19 years old, was arrested for smuggling drugs across the border with her five-year-old son and six-month-old daughter in the car.
  • Judge King concurred. She observed that the defendant’s “mother, with whom one of the children had lived for a period of time, lives in the same city as Rivas,” from which she inferred “that the children’s presence was more than a lack of babysitter—they were decoys used to ensure that her lucrative criminal activities would remain undetected by law enforcement.”

• Yezak v. Lange, 25-50112, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 suit.

• Khan v. Crossover Market, LLC, 25-50650, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), employment discrimination, Title II
  • Affirming dismissal of Title VII suit brought by Indian national living outside the U.S.

• Hernandez v. Bondi, 25-60112, petition for review of BIA order
  • per curiam (Jones, Duncan, Douglas) (no oral argument), immigration
  • Denying Guatemalan citizen’s petition for review of BIA order dismissing his appeal from an immigration judge’s (“IJ”) denial of asylum and protection under the Convention Against Torture.