Take the Fifth

Designated for publication

• U.S. v. Ahmadou, 24-20045, appeal from S.D. Tex.
  • Smith, J. (Smith, Dennis, Richman) (oral argument), Dennis, J., dissenting in part; criminal, sentencing
  • Affirming conviction and sentence for possession of a firearm as an alien admitted under a nonimmigrant visa.
  • The Fifth Circuit affirmed Moctar Ahmadou’s conviction and 78-month sentence for possessing a firearm as a nonimmigrant under 18 U.S.C. § 922(g)(5)(B). Ahmadou, a Nigerien citizen on an F-1 student visa, was investigated after a known ISIS supporter attacked Naval Air Station Corpus Christi and was found to have communicated with him. During surveillance, Ahmadou repeatedly rented firearms at a Texas gun range while consuming large quantities of ISIS propaganda online. After his arrest, he admitted that he trained with firearms in preparation for potential jihad overseas. He was charged with multiple counts and, after unsuccessful pretrial motions, proceeded to trial and was convicted.
  • On appeal, Ahmadou’s principal argument was that he relied on an entrapment-by-estoppel defense because the Texas Gun Club’s liability waiver omitted the subsection of § 922(g) prohibiting firearm possession by nonimmigrant visa holders. The Fifth Circuit held that this defense failed at both required steps: the gun range did not affirmatively misrepresent the law, and federally licensed firearms dealers are not government officials for estoppel purposes. The court adopted the overwhelming majority rule from the Seventh, Eighth, Tenth, and Eleventh Circuits, rejecting the Ninth Circuit’s broader view in Tallmadge. It also rejected Ahmadou’s argument that undercover federal agents’ “business as usual” comment transformed the range into a government actor.
  • The court also upheld the district court’s refusal to grant a Guidelines reduction for acceptance of responsibility. Although Ahmadou later wrote a letter expressing remorse, the district court found this insufficient because he forced the government to prove its case at trial and pursued an estoppel defense that effectively denied blameworthiness. The Fifth Circuit emphasized the considerable deference owed to sentencing courts on this issue and agreed that asserting a defense premised on government fault is inconsistent with a “clear” acceptance of responsibility.
  • Turning to the sentence, the Fifth Circuit rejected Ahmadou’s claim that the district court procedurally erred by imposing an upward “departure” based on terrorism-related evidence. It concluded that despite occasional use of the word “departure,” the sentencing court in substance applied a variance under 18 U.S.C. § 3553(a), not a Guidelines departure under U.S.S.G. § 3A1.4. The district court expressly declined to apply the terrorism enhancement, found the evidence insufficient to show the firearm offense promoted terrorism, and instead relied on sentencing-factor considerations such as Ahmadou’s repeated viewing of ISIS beheading videos, his association with a terrorist, violation of visa restrictions, and the broader risk profile these facts revealed.
  • Finally, the court held that the sentence was substantively reasonable and did not violate the First Amendment. The district court did not punish Ahmadou for his religion or protected beliefs but permissibly considered his obsessive engagement with violent extremist material and his connections to an attacker as relevant context bearing on danger, motive, and trustworthiness. Citing Dawson, the Fifth Circuit reaffirmed that protected speech and associations may be considered at sentencing when they are relevant to legitimate sentencing factors.
  • Judge Dennis dissented in part, agreeing with the majority on the rejection of Ahmadou’s entrapment-by-estoppel defense and denial of an acceptance-of-responsibility reduction but contending that his above-Guidelines sentence is procedurally unsound because the district court created an unresolved—and consequential—ambiguity between an “upward departure” under U.S.S.G. § 3A1.4 Application Note 4 and an upward “variance” under § 3553(a). Examining the full record, Judge Dennis maintains that the court clearly imposed a departure based on terrorism-related facts repeatedly invoked at sentencing, not a § 3553(a) variance belatedly referenced only in the written Statement of Reasons, and that under either characterization the sentencing procedure was flawed: the court either failed to make the findings required for a departure under Application Note 4 or failed to provide an adequate § 3553(a) explanation for a variance tied to Ahmadou’s viewing of ISIS propaganda and association with an ISIS terrorist. Because this confusion frustrates meaningful appellate review and the Government cannot show beyond a reasonable doubt that the error did not affect the sentence, Judge Dennis would vacate and remand for resentencing.

• U.S. v. Castro, 24-40621, appeal from E.D. Tex.
  • Richman, J. (Smith, Dennis, Richman) (oral argument), Dennis, J., dissenting in part; criminal, sentencing
  • Affirming sentence on conviction of conspiracy to possess with intent to distribute and distribution of a controlled substance, applying sentencing enhancements for possession of a firearm and for “maintain[ing] a premises for the purpose of manufacturing or distributing a controlled substance.”
  • The Fifth Circuit affirmed Rodney Ignacio Castro’s 210-month sentence for his role in a cocaine-trafficking conspiracy, rejecting his objections to two Guidelines enhancements imposed by the district court. Castro had admitted that he used a downtown Houston apartment to further his trafficking operations and that over $1 million in cash, approximately $250,000 in jewelry, and a gold-plated handgun found in the apartment were proceeds of his drug business. Based on these facts, the district court applied a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for firearm possession and another two-level enhancement under § 2D1.1(b)(12) for maintaining a drug premises. Castro argued on appeal that neither enhancement applied because no drugs or drug paraphernalia were recovered from the apartment, but the Fifth Circuit concluded that the district court correctly applied both enhancements.
  • Regarding the firearm enhancement, the Fifth Circuit held that the government established the required temporal and spatial nexus between the handgun, the drug-trafficking activity, and Castro. Although no drugs were found in the apartment, the firearm was stored in a closet directly alongside large quantities of drug proceeds, and Castro admitted both to possessing the gun and using the apartment for trafficking purposes. Under circuit precedent, proximity to drug proceeds is sufficient to establish that a weapon was connected to drug activity unless it is “clearly improbable” that the firearm related to the offense—a showing Castro failed to make. The court also rejected Castro’s argument for de novo review, explaining that the district court had made explicit factual findings unlike in the case he relied upon, so clear-error review properly applied.
  • The Fifth Circuit likewise upheld the premises enhancement, finding no clear error in the district court’s determination that one of the primary uses of the apartment was to store drug proceeds and thereby further the distribution conspiracy. The court emphasized that Castro’s living arrangements showed the apartment was not a residence—he lived elsewhere, the unit was rented in someone else’s name, and it was sparsely furnished—while it contained over $1 million in drug proceeds. The panel further held that storing proceeds can qualify as a primary purpose related to “distribution” within the meaning of § 2D1.1(b)(12), rejecting both Castro’s claim that his admissions were too conclusory and Judge Dennis’s dissenting argument that “storage of proceeds” falls outside the guideline’s scope. Given the low evidentiary bar for establishing a primary drug-related use of a premises, the court affirmed the sentence.
  • Judge Dennis dissented in part, agreeing that the firearm enhancement was properly applied to Castro but contending that the district court and majority erred in applying the premises enhancement under § 2D1.1(b)(12), which requires proof that the defendant maintained a premises primarily for manufacturing, distributing, or storing a controlled substance—not merely for keeping proceeds or a gun. Judge Dennis emphasizes that neither drugs nor paraphernalia were found in Castro’s downtown Houston apartment and that precedent has never upheld this enhancement without direct evidence of drug storage or activity at the site. The majority’s reliance on Castro’s vague admission that he used the apartment “in furtherance” of drug trafficking, combined with the presence of cash and a firearm, is—under the Judge Dennis’s view—insufficient and inconsistent with Fifth Circuit cases requiring concrete evidence linking the premises to drug manufacturing or distribution. Drawing parallels to the recent Le decision, Judge Dennis stresses that a conclusory statement cannot substitute for proof of maintenance for drug-related purposes, especially given evidence suggesting Castro conducted drug transactions and maintained stash locations elsewhere.

Unpublished decisions

• U.S. v. Lucio, 25-10580, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.

• Hicks v. Ashworth, 24-20331, appeal from S.D. Tex.
  • per curiam (King, Jones, Wilson) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s failure-to-protect claim.

• U.S. v. Cockerm, 25-30054, appeal from W.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.

• U.S. v. Phillips, 25-30067, appeal from W.D. La.
  • per curiam (King, Higginson, Wilson) (oral argument), Higginson, J., dissenting; criminal, sentencing
  • Remanding appeal of 60-month sentence on conviction of conspiracy to distribute and possess with intent to distribute marijuana, for the limited purpose of the district court articulating its reasons for rejecting the safety-valve reduction in the sentencing guidelines.
  • Judge Higginson dissented, “because [defendant’s]135 miles per hour highspeed flight, during which he struck another vehicle and escaped law enforcement, forecloses applicability of 18 U.S.C. § 3553(f)’s safety valve provision.

• Parr v. Yachtinsure Ltd., 25-30134, appeal from E.D. La.
  • per curiam (Dennis, Graves, Duncan) (oral argument), insurance
  • Affirming dismissal of claim for failure to pay insurance proceeds for a damaged vessel.

• U.S. v. Bustos-Vergara, 25-40140, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Reese, 25-50102, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming 180-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Sanches-Raudales, 25-50212, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Esquivel, 25-50220, appeal from W.D. Tex.
  • per curiam (Dennis, Haynes, Engelhardt) (no oral argument), criminal, sentencing
  • Dismissing as moot appeal from sentence on revocation of supervised release.

• Jones v. Martinez, 25-50309, appeal from W.D. Tex.
  • per curiam (Smith, Dennis, Haynes) (no oral argument), sec. 1983, appellate jurisdiction
  • Dismissing appeal from dismissal of sec. 1983 claims, for failure to timely file notice of appeal.

• U.S. v. Fernandez-Fuentes, 25-50352, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Vences-Vasquez, 25-50373, appeal from W.D. Tex.
  • per curiam (Smith, Dennis, Haynes) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• Garces v. U.S. Department of Justice, 25-50517, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), disability discrimination
  • Affirming dismissal of claims for alleged failure to investigate claims of disability discrimination.

• Berrios v. Cox, 24-51027, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), employment
  • Affirming dismissal of claim that defendant sent defamatory message to plaintiff’s employer that forced plaintiff to resign.

• U.S. v. Harrison, 25-60165, appeal from S.D. Miss.
  • per curiam (Smith, Dennis, Haynes) (no oral argument), criminal, sentencing
  • Affirming sentence of lifetime supervised release on conviction of receipt of child pornographic material.

• Luna-Hernandez v. Bondi, 24-60652, petition for review of BIA order
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), immigration
  • Denying Mexican citizen’s petition for review of BIA order affirming an Immigration Judge’s (IJ) denying his application for withholding of removal and protection under the Convention Against Torture.