December 3, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Rubalcava, 24-40463, appeal from S.D. Tex.
    • Stewart, J. (Smith, Stewart, Haynes) (no oral argument), criminal, sentencing
    • Affirming 240-month and 360-month concurrent sentences on conviction of possession of child pornography and sexual exploitation of children, and financial penalties and restitution of $55,300.
    • In June 2021, police discovered that the defendant, Ulysses Rubalcava, had sexually abused two of his minor stepchildren over an extended period and had photographed and videotaped the abuse, beginning when one child was as young as five. Rubalcava pled guilty to one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and two counts of sexual exploitation of children under 18 U.S.C. § 2251(a). The district court sentenced him to concurrent terms of 240 months (on the pornography count) and 360 months (on the exploitation counts), plus an eight-year supervised-release term.
    • At sentencing the court also imposed criminal monetary penalties, including restitution and assessments, totaling $55,300. That includes a restitution award of $5,000 per victim (total $10,000) for future therapy costs, a special assessment under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act (AVAA) of $10,000 per count (total $30,000), plus other statutory assessments. On appeal, Rubalcava challenged the restitution and AVAA assessment, arguing insufficient proof of victim losses and that his special-needs trust account should not have been counted as a financial resource.
    • On restitution under 18 U.S.C. § 2259(a), the appeals court reviewed the district court’s legal determination de novo and its award for abuse of discretion. The court upheld the $5,000 per victim figure. Although no therapy bills or receipts had yet been incurred (because the children were understandably reluctant to begin therapy), the government provided a detailed memorandum from a local licensed counselor projecting future counseling costs — roughly $9,360 per child over time. Given the serious abuse, the victims’ trauma, and the need for long-term treatment, the court found the $5,000 per victim award “reasonable” rather than arbitrary, satisfying the statutory requirement that restitution cover reasonably projected future losses.
      Likewise, the court upheld the district court’s AVAA assessment. The court rejected Rubalcava’s argument that his special-needs trust should be excluded from consideration of his financial resources merely because he lacked day-to-day control. The court analogized to prior rulings holding that even non-liquid or co-owned assets may be considered when imposing criminal monetary penalties under statutes like 18 U.S.C. § 3572, and concluded that considering the trust and his other assets was not “clearly erroneous.”
    • Rubalcava also challenged several sentencing enhancements, including the four-point enhancement under U.S.S.G. § 2G2.1(b)(4)(A) (for sexual acts likely to cause pain or involving very young children), another four-point enhancement under U.S.S.G. § 2G2.1(b)(2)(B), and a cross-reference under U.S.S.G. § 2G2.2(c)(1). Because Rubalcava did not object in district court, the appeals court applied plain-error review. The court concluded the enhancements and cross-reference were properly applied based on the undisputed record. Given those facts, there was no plain error in the sentencing calculations, and the resulting concurrent 240- and 360-month terms stand.

Unpublished decisions

  • U.S. v. Oyewale, 25-20028, appeal from S.D. Tex.
    • per curiam (Clement, Graves, Ho) (no oral argument), criminal, sentence reduction
    • Affirming denial of motion for sentence reduction.
  • Zeng v. Mattress Firm, Inc., 25-40438, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Engelhardt) (no oral argument), products liability, service of process
    • Affirming dismissal of plaintiff’s products liability claims for failure to timely serve defendant.
  • U.S. v. Rodriguez-Jimenez, 25-50090, appeal from W.D. Tex.
    • per curiam (Jones, Engelhardt, Summerhaye, by designation) (no oral argument), criminal, sentencing
    • Affirming 24-month sentence on conviction of illegal reentry.
  • U.S. v. Davis, 25-50915, appeal from W.D. Tex.
    • per curiam (Southwick, Duncan, Engelhardt) (no oral argument), criminal, pretrial detention, mootness
    • Dismissing as moot appeal from order revoking bond where district court subsequently granted motion for release.
  • U.S. v. Doster, 25-60258, appeal from S.D. Miss.
    • per curiam (Clement, Graves, Ho) (no oral argument), criminal
    • Affirming conviction of possession of a firearm by a felon.