Take the Fifth

Designated for publication

• Johnson v. Guerrero, 23-70002, appeal from S.D. Tex.
  • per curiam (en banc) (oral argument at panel stage) (voting for en banc rehearing: Jones, Smith, Willett, Ho, Duncan, Engelhardt, Wilson, JJ.; voting against en banc rehearing: Elrod, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Douglas, Ramirez, JJ.), Ho, J., dissenting from denial of en banc rehearing (joined by Jones, Smith, Engelhardt, JJ.); en banc, habeas corpus
  • Denying en banc rehearing of July 23, 2025, unpublished per curiam (Southwick, Graves, Higginson) affirming denial of State’s motion to dismiss petition for habeas corpus.
  • Judge Ho dissented from the denial of en banc rehearing, contending that the court should correct what he saw as a mistake in applying AEDPA’s strict limits on successive habeas petitions—emphasizing that the Constitution’s protections “must be asserted … in timely fashion” and that the criminal justice system already gives defendants “multiple bites at the apple” after conviction. Judge Ho stressed that petitioner Johnson, convicted of a brutal murder and pursued through decades of proceedings, fell far short of meeting the statute’s demands because his Atkins claim relied on new scientific evidence, not a truly “new rule of constitutional law,” and that equating new evidence with new law would “distort our constitutional system of government.” Judge Ho warned that the panel’s reliance on Cathey conflates AEDPA’s distinct statutory prongs and entrenches “circuit precedent … wrong,” and he would have granted rehearing en banc to fix that error and bring “the family and friends of victims … one step closer to justice.”

• U.S. v. Wilson, 24-10633, appeal from N.D. Tex.
  • Willett, J. (Wiener, Willett, Ho) (oral argument), Willett, J., concurring; Ho, J., dubitante; criminal, Second Amendment, sentencing
  • Affirming conviction of possession of a machinegun, and sentencing based on cross-reference to second-degree murder.
  • Jamaion Wilson and two companions met a seller to buy a firearm that turned out to be fake. Frustrated, Wilson retrieved a handgun equipped with a “Glock switch” to make it fully automatic, confronted the seller (D.J.) in a gas station parking lot, and fired multiple rounds until D.J. fell and later died. Wilson was later charged with unlawful possession of a machinegun under 18 U.S.C. § 922(o); he moved to dismiss on Second Amendment grounds and ultimately pleaded guilty without a written plea agreement. At sentencing, the presentence report applied the Sentencing Guidelines’ homicide cross-reference (to second-degree murder), which yielded a higher recommended range than the statutory maximum for § 922(o). The district court overruled Wilson’s objections, adopted the PSR, and imposed the statutory maximum 120-month sentence.
  • On appeal, Judge Willett rejected Wilson’s Second Amendment challenge to § 922(o). Applying the Fifth Circuit’s rule of orderliness, the majority held Hollis v. Lynch remains binding precedent that machineguns are “dangerous and unusual” weapons not in “common use” and thus unprotected by the Second Amendment. Willett explained that Wilson’s attempt to revisit machinegun ownership statistics did not justify disregarding Hollis and that Supreme Court precedent reaffirmed the principle that dangerous and unusual weapons fall outside the Amendment’s protection. The opinion also concluded that Bruen did not unequivocally overrule Hollis, because Hollis’s analysis rested entirely on the Second Amendment’s text and history—the very framework Bruen endorsed.
  • Judge Willett next addressed Wilson’s challenge to the Guidelines calculation, which he reviewed for plain error because it was unpreserved. The majority summarized the applicable Guidelines cross-reference for unlawful machinegun possession resulting in death and the definitions distinguishing second-degree murder from voluntary manslaughter under federal law. Judge Willett concluded that the district court did not plainly err in determining that the defendant’s conduct was most analogous to second-degree murder—despite some PSR language suggesting “crime of passion”—because the full factual record (multiple shots fired using a modified weapon) supported a finding of malice.
  • Judge Willett entered a separate concurrence to his own majority opinion, writing separately to express his broader constitutional concerns about 18 U.S.C. § 922(o). Judge Willett emphasized the structural limits the Constitution places on federal criminal law, arguing that federal statutes must rest on specific enumerated powers and not exceed Congress’s authority simply because a prohibited act is condemnable. Drawing on separation-of-powers and federalism principles, he questioned whether banning mere possession of machineguns—without a clear nexus to interstate commerce—falls within Congress’s constitutional commerce power, describing the controlling precedent (United States v. Knutson) as lacking limiting principles and potentially subject to reconsideration en banc. Although he acknowledged Hollis v. Lynch binds the court on the Second Amendment issue, he stated he would be open to revisiting the enumerated-powers question in an appropriate case, even though Wilson did not raise it here.
  • Judge Ho issued a dubitante opinion, explaining that the Second Amendment question before the panel had already been presented to an earlier Fifth Circuit panel in a different case (Sealed Appellee v. Sealed Juvenile), which then put that earlier case in abeyance pending this decision, contrary to typical practice of deferring to the first-presented panel on identical legal issues. He stated he does not criticize the abeyance decision, but finds it “unexpected” and is unwilling to delay resolution further; with Sealed Appellee now stayed, this appeal has become the oldest pending criminal appeal. He expressed that, rather than prolonging this case, he would await a petition for rehearing en banc, noting that Judge Willett acknowledged that an en banc court could revisit Hollis v. Lynch and that there are legitimate concerns about whether the “dangerous and unusual” test has been properly applied under Bruen and about federalism, echoing his earlier objections to precedent.

• Woods v. STS Services, L.L.C., 25-10673, appeal from N.D. Tex.
  • Smith, J. (Elrod, Smith, Wilson) (no oral argument), Title VII, employment discrimination
  • Affirming dismissal of third amended complaint in pro se employment discrimination suit.
  • The Fifth Circuit affirmed the district court’s dismissal of Margaret Woods’s employment-discrimination lawsuit against her former employer. Woods, proceeding pro se, sued STS claiming she was fired because she is a Black woman and replaced by white men, but her successive complaints—including the Third Amended Complaint pleaded under Title VII—failed to allege sufficient factual detail, particularly about her qualifications for the job, which is an essential element of a prima facie discrimination claim. After repeatedly dismissing her defective pleadings and giving her opportunities to amend, the district court dismissed her case with prejudice when she did not file a Fourth Amended Complaint. The Fifth Circuit held that Woods did not state a plausible Title VII claim and that the district court did not abuse its discretion in dismissing the case with prejudice.

• Awe v. Harris Health System, 25-20144, appeal from S.D. Tex.
  • per curiam (Elrod, Smith, Wilson) (no oral argument), Elrod, C.J., concurring; employment discrimination, Title VII, Age Discrimination in Employment Act
  • Affirming summary judgment for employer on employment discrimination claim.
  • In affirming the district court’s grant of summary judgment for defendant Harris Health System (“HHS”), the Fifth Circuit held that plaintiff Ayodeji Awe failed to establish legally sufficient discrimination and retaliation claims under the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act. The court explained that Awe did not make out a prima facie case of age discrimination because the mix of ages among hired candidates did not support an inference of disparate treatment, and he likewise failed to show that any adverse hiring decision was causally connected to age-related protected activity for his ADEA retaliation claim; although the majority found that Awe had stated a prima facie case for Title VII retaliation, HHS articulated a legitimate, non-retaliatory reason for its hiring decisions and Awe did not produce evidence that this reason was pretextual or that he was clearly better qualified than those hired, and thus the undisputed record showed no genuine issue of material fact requiring a jury trial.
  • Chief Judge Elrod concurred, writing separately to emphasize her view that the long-standing McDonnell Douglas burden-shifting framework, particularly as applied at summary judgment in Title VII and similar cases, should be reconsidered; she agreed with a growing number of judges that McDonnell Douglas lacks textual support in Federal Rule of Civil Procedure 56 and can obscure whether a plaintiff has raised a genuine issue of unlawful discrimination or retaliation, because it compartmentalizes evidence into prima facie and pretext categories instead of allowing all reasonable inferences to be considered together, and she noted that in this case the current framework allowed summary judgment despite genuine factual disputes about retaliation that, under Rule 56’s plain terms, should have gone to a jury.

• Vetter v. Resnik, 25-30108, appeal from M.D. La.
  • Stewart, J. (Smith, Stewart, Ramirez) (oral argument), copyright
  • Affirming summary judgment for plaintiff songwriter in suit to declare ownership of copyright to the song “Double Shot (Of My Baby’s Love).”
  • Plaintiffs–Appellees Cyril Vetter and Vetter Communications Corporation (“Vetter Plaintiffs”) sought a declaratory judgment that they are the sole owners of all copyright interests in Double Shot worldwide. The underlying facts show that Vetter and co-writer Donald Smith originally assigned their interests to Windsong Music Publishers in 1963. After Smith’s death and subsequent transfers, Vetter issued a statutory termination notice under 17 U.S.C. § 304(c) in 2019 to recapture his rights. When defendant Appellants (Resnik and Resnik Music Group) continued to claim an ownership interest, the Vetter Plaintiffs sued for a declaration of exclusive ownership. The district court granted summary judgment and declared the Vetter Plaintiffs the sole owners of the copyright everywhere.
  • The core legal issue on appeal was whether Vetter’s termination of the original copyright grant under § 304(c) affected only U.S. rights or also foreign rights, effectively determining whether the Vetter Plaintiffs’ worldwide ownership declaration was lawful. Section 304(c)(6)(E) provides that termination “affects only those rights … that arise under this title … and in no way affects rights arising under … foreign laws,” but the statute does not explicitly limit termination to domestic rights. Resnik argued that this language restricted the effect of termination to U.S. copyright rights, while the Vetter Plaintiffs urged that the rights terminated “under this title” include all rights that were granted according to the U.S. Copyright Act, irrespective of geography.
  • The Fifth Circuit held that the plain language of § 304(c)(6)(E) does not contain a geographical limitation on rights that “arise under” the Copyright Act and that Vetter’s terminated rights did indeed arise under the U.S. statute, which governs the original grant. Therefore, termination under § 304(c) effectively recaptured those rights wherever they are recognized, including internationally. The court applied principles from Kirtsaeng v. John Wiley & Sons to support a non-geographical interpretation of similar statutory language and concluded that there is no basis to read a geographical constraint into § 304(c)(6)(E).
  • In addition to statutory text, the Fifth Circuit emphasized that its interpretation aligns with the statutory purpose of § 304(c) — to enable authors to recapture rights they may have granted under inequitable circumstances and to restore the full bundle of rights conferred. The court also rejected arguments that existing case law or international treaty obligations (e.g., under the Berne Convention or Universal Copyright Convention) constrained the effect of termination to the United States.

• U.S. v. Lowe, 24-51000, appeal from W.D. Tex.
  • Smith, J. (Smith, Stewart, Ramirez) (oral argument), criminal, sentencing
  • Affirming life sentence on conviction of coercing and enticing a minor to engage in sexual activity, which included a two-level enhancement for distribution of material involving sexual exploitation of a minor.

Unpublished decisions

• U.S. v. Ramos, 25-10851, 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. Smith, 25-20058, appeal from S.D. Tex.
  • per curiam (Jones, Engelhardt, Summerhays) (oral argument withdrawn), criminal, sentencing
  • Affirming sentence on revocation of supervised release.

• U.S. v. Thornton, 25-20100, appeal from S.D. Tex.
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), criminal, sentencing
  • Affirming 41-month sentence on conviction of wire fraud and aiding and abetting.

• U.S. v. Johnson, 25-30050, appeal from E.D. La.
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), criminal, sentencing
  • Affirming 227-month sentence on conviction of carjacking and brandishing a firearm during a crime of violence.

• Tijerino v. Miller, 25-30306, appeal from E.D. La.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), attorney malpractice
  • Affirming summary judgment dismissal of malpractice suit.

• U.S. v. Alonzo, 25-40036, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Riley, 24-40826, appeal from E.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Collins v. Westlake Financial Services, 25-50340, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), civil
  • Affirming dismissal of pro se suit.

• U.S. v. Andrade-Navarro, 25-50370, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.