Take the Fifth

Designated for publication

• U.S. v. Hamilton, 25-10434, appeal from N.D. Tex.
  • Smith, J. (Smith, Wiener, Higginson) (oral argument), criminal, sentencing, equal protection clause
  • Affirming conviction and 30-year sentence for production and attempted production of child pornography.
  • Nautica Hamilton, a day care worker at the Lubbock YWCA, pleaded guilty to production and attempted production of child pornography after photographing the genitalia of an 18-month-old infant in her care and distributing the image on social media. Her plea agreement contained an appeal waiver. At sentencing, the prosecutor referenced Hamilton’s sex, stating that “as a young female, one can already assume that women probably should have a more nurturing, more protective feeling towards children than maybe men do” and suggested a 30-year sentence might prevent Hamilton from having her own children. Hamilton did not object to these statements. The district court sentenced Hamilton to 360 months (the statutory maximum), citing the nature of the offense and impact on victims, but did not reference her sex in its reasoning. On appeal, the main issue was whether the government’s gender-based statements at sentencing violated the Fifth Amendment’s equal protection guarantee, and whether this constituted plain or structural error.
  •  Plain Error Analysis: To succeed under plain-error review, Hamilton needed to demonstrate “a reasonable probability that, but for the district court’s error, she would have received a lesser sentence.” Although the government made statements referencing Hamilton’s sex, the district court did not explicitly rely on her sex when imposing the statutory maximum—it instead emphasized the seriousness of the offense, her motivation, and the significant abuse of trust given the victims’ vulnerability. Because the record did not indicate the district court would have imposed a lesser sentence absent the government’s comments, Hamilton could not show the sentence affected her substantial rights. 
  • Structural Error Analysis: Hamilton asked the court to recognize prosecutorial bias as grounds for structural error, analogizing to the Supreme Court’s recognition of structural error for biased judges and juries. The Fifth Circuit declined, holding that “a prosecutor’s allegedly improper statements at sentencing do not ‘affect[] the framework’ in which the sentencing proceeds to the point that they ‘necessarily render [the sentencing] fundamentally unfair.'” This was especially true where the district court did not reference the government’s statements when announcing the sentence. 

• U.S. v. Porter, 25-60163, appeal from S.D. Miss.
  • Smith, J. (Smith, Wiener, Higginson) (oral argument), criminal, search and seizure, Second Amendment
  • Affirming conviction of possession of a machine gun.
  •  In January 2024, Officer Hoggard received an alert that a license plate reader (LPR) had captured a vehicle associated with Elijah Porter, who had an outstanding warrant for aggravated assault. Hoggard located and stopped the vehicle, detained Porter, and observed a firearm protruding from under the driver’s seat with “a little silver switch on the back of it,” which he believed to be a machinegun conversion switch. Porter was charged with possession of a machinegun under 18 U.S.C. § 922(o). He moved to suppress the vehicle-location data from the LPR and the firearm, and challenged the constitutionality of § 922(o) under the Second Amendment. The main issues on appeal were (1) Whether the use of LPR technology constituted a search requiring a warrant under the Fourth Amendment; (2) whether the traffic stop was supported by reasonable suspicion; (3) whether the firearm was found in plain view; and (4) whether 18 U.S.C. § 922(o) violates the Second Amendment.
  • LPR and Fourth Amendment: The court held that “a person travel[ing] in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” The LPR system is “more analogous to the beeper signals in Knotts” than to the cell-site location information in Carpenter because it provides only “periodic information about a vehicle’s location” when passing one of approximately ten camera locations, and “[a] motorist has no privacy interest in their license plate number.” The court distinguished Carpenter, noting the LPR technology is “much more limited than CSLI and geofence data, which is capable of capturing a greater volume of comprehensive information with a higher degree of quality and precision.” 
  • Traffic Stop and Plain View: The stop was lawful because the LPR alert “revealed an outstanding arrest warrant for Mr. Porter” and, under the collective knowledge doctrine, provided Hoggard with reasonable suspicion. The court noted that “[t]o be reasonable is not to be perfect” and that Hoggard “had sufficiently specific information to stop the car—he knew the make and model, its license plate number, its approximate location, and that Porter was wanted for arrest.” Regarding the firearm, the court credited Hoggard’s testimony that “the barrel was sticking out from under the seat” in plain view, and the district court “found Officer Hoggard’s testimony to be credible.” The court rejected the argument that body camera footage contradicted this testimony, explaining that “the camera was in a static position near his torso” and “may not have fully captured everything that he saw at eye-level.” 
  • Second Amendment Challenge: The court held that “machineguns ‘do not receive Second Amendment protection,'” citing Hollis v. Lynch and the recent decision in United States v. Wilson (2026), which held that “Bruen reinforces the portion of Heller on which Hollis relied.” Under the Fifth Circuit’s Rule of Orderliness, “only an intervening change in the law … permits a subsequent panel to decline to follow a prior Fifth Circuit precedent,” and Bruen does not “unequivocally overrule Hollis” because it addressed laws limiting law-abiding citizens’ ability to carry handguns outside the home, not machinegun bans. 

Unpublished decisions

• United States v. Sanchez, 25-10868, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, and Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Phillips v. Texas Workforce Commission, 25-50635, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), employment discrimination
  • Legal Issues: Pro se plaintiff Robert Phillips appealed the dismissal of claims arising from his termination, including civil rights/due process claims under 42 U.S.C. § 1981, whistleblower retaliation, alleged violations of the Texas Penal Code, and workplace violence retaliation claims against the Texas Workforce Commission and related defendants. The magistrate judge found that the Eleventh Amendment barred suits against the TWC, that the Texas Penal Code provided no private cause of action, and that Phillips failed to plead sufficient facts.
  • Holding: Reviewing de novo under the frivolousness and failure-to-state-a-claim standards, the Fifth Circuit agreed that Phillips failed to assert any plausible, non-frivolous claims and affirmed the district court’s dismissal.

• Bello v. Fannin County Detention Center, 25-40682, appeal from E.D. Tex.
  • per curiam (Graves, Ho, Douglas) (no oral argument), prisoner suit, mootness
  • Legal Issues: Olamide Olatayo Bello, a federal prisoner, appealed the district court’s dismissal of his mandamus petition under 28 U.S.C. § 1361, which sought to compel the Fannin County Detention Center to provide him with legal aid.
  • Holding: The Fifth Circuit found the appeal moot because Bello was no longer confined at the Fannin County Detention Center, having been transferred to the Federal Correctional Institution in Seagoville, Texas. The court held it lacked jurisdiction and dismissed the appeal as moot; Bello’s motion to proceed in forma pauperis was also denied as moot. 

• United States v. Barlow, 25-20148, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, compassionate release
  • Legal Issues: Douglas Lee Barlow appealed the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). He argued the district court failed to give sufficient weight to his rehabilitation, nearly four decades of incarceration, advanced age, lack of danger to society, and that it violated § 3553(a)(6) by granting compassionate release to a similarly situated codefendant. Barlow also contended the court erred by not appointing counsel.
  • Holding: The Fifth Circuit held Barlow’s disagreement with the district court’s weighing of § 3553(a) sentencing factors was not sufficient grounds for reversal. The court further found that defendants seeking sentence reductions have no constitutional or statutory right to appointed counsel and that the record did not reflect that appointment would have been in the interest of justice. The judgment was affirmed. 

• United States v. Chapa-Castaneda, 25-50659, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Legal Issues: Efrain Chapa-Castaneda appealed his conviction and sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b), arguing for the first time that the recidivism enhancement in § 1326(b) is unconstitutional.
  • Holding: The Fifth Circuit granted the government’s motion for summary affirmance, finding Chapa-Castaneda’s constitutional challenge foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which “persists as a narrow exception permitting judges to find only the fact of a prior conviction.” The judgment of the district court was affirmed. 

• Flores Sanchez v. Bondi, 25-60469, petition for review of BIA order
  • per curiam (King, Haynes, Ho) (no oral argument), immigration
  • Legal Issues: Elvis Saul Flores Sanchez, a native and citizen of El Salvador, petitioned for review of the BIA’s dismissal of his appeal from an Immigration Judge’s denial of asylum, withholding of removal, and CAT protection. He argued: (1) the BIA erred in finding he did not suffer past persecution and had no well-founded fear of future persecution based on membership in the particular social group of Salvadoran ex-gang members; (2) the BIA erred in denying CAT protection based on country conditions evidence; and (3) the BIA erred in affirming the IJ’s denial of a motion for continuance and in denying his motion to remand for new expert testimony.
  • Holding: The Fifth Circuit denied the petition. The court found: (1) Flores Sanchez failed to show a nexus between any persecution and his proposed particular social group; (2) he did not demonstrate the record compelled a different conclusion on CAT protection; (3) the court lacked jurisdiction to review the continuance denial, and the BIA did not abuse its discretion in denying remand; and (4) his argument for discretionary asylum was unavailing.    

• Polaris Engineering, Inc. v. Texas International Terminals, Ltd., 25-40024, appeal from S.D. Tex.
  • Smith, J. (Smith, Wiener, Higginson) (oral argument), breach of contract
  • Legal Issues: This breach of contract dispute arose from Polaris Engineering’s construction of a petroleum refining facility for TXIT. The central issues involved: (1) whether TXIT breached by refusing to certify mechanical completion; (2) the proper definition of “stable operations” under the contract (whether it required 50,000 barrels-per-day or simply “steady, consistent operations”); (3) whether TXIT’s refusal to issue a Notice of Stable Operations constituted a material breach; and (4) the jury’s damages award of approximately $23 million to Polaris (offset by $2 million awarded to TXIT for conversion of dock equipment). 
  • Holding: After reviewing briefs, the record, oral argument, and applicable law, the Fifth Circuit affirmed in all respects. The court found the district court made “fair and reasonable rulings on liability and damages” and that Texas law aims to give effect to the intent of the parties, which the judgment achieved. The court affirmed that TXIT failed to issue the Notice of Stable Operations as required by the contract, and none of TXIT’s arguments regarding materiality of breach were availing. The verdict was not against the manifest weight of the evidence. 

• Singletary v. SWBC Mortgage Corp., 25-20441, appeal from S.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), foreclosure
  • Legal Issues: Pro se plaintiff Michael Singletary alleged that SWBC Mortgage Corporation improperly sold his mortgage to Freddie Mac. He brought claims for fraud, breach of contract, and to quiet title. On appeal, he argued that the transfer was void for failure to record in county property records and raised new arguments about inconsistent loan statements and deprivation of his Seventh Amendment right to a jury trial.  
  • Holding: The Fifth Circuit affirmed. The court found Singletary’s reliance on the “split the note” theory—that ownership of promissory notes and deeds of trust cannot be separated—was definitively rejected by Texas courts. The court noted Singletary “relies heavily on AI-hallucinated case law” and warned that “[f]urther failure to check the accuracy of cited authority before filing with the Court may result in sanctions.” Arguments raised for the first time on appeal were not properly preserved. Amendment was found futile because Singletary’s claims relied on non-viable legal theories. 

• United States v. Rubio-Castillo, 25-10935, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Legal Issues: Javier Rubio-Castillo pleaded guilty to possessing a firearm by an alien admitted under a nonimmigrant visa in violation of 18 U.S.C. § 922(g)(5)(B) and was sentenced to 63 months of imprisonment. On appeal, he argued for the first time that his statute of conviction violates the Second Amendment facially and as applied under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and that § 922(g) exceeds Congress’s Commerce Clause power. 
  • Holding: The Fifth Circuit granted the government’s unopposed motion for summary affirmance and affirmed the judgment of the district court. 

• United States v. Hawthorne, 24-30154, appeal from W.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Legal Issues: Gabriel Hawthorne appealed his conviction and 120-month above-guidelines sentence for conspiracy to distribute and possess with intent to distribute controlled substances and possessing fentanyl with intent to distribute. He challenged: (1) the sufficiency of the evidence, arguing he was not the source of supply; (2) the denial of his motion for a new trial based on a co-conspirator’s exculpatory post-verdict affidavit; and (3) the substantive reasonableness of his sentence.  
  • Holding: The Fifth Circuit affirmed. Viewing the evidence in a light most favorable to the verdict, a reasonable juror could find Hawthorne was the source of supply and committed the charged offenses. The district court did not abuse its discretion in denying the new trial motion because the affidavit was not newly discovered evidence and presented a credibility issue rather than a likelihood of acquittal. The sentence was substantively reasonable and supported by the § 3553(a) factors.  

• United States v. Henderson, 25-30440, appeal from W.D. La.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Legal Issues: Eugene Henderson pleaded guilty to conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine and was sentenced to 60 months of imprisonment. He argued: (1) the district court erred in denying him a mitigating role reduction under U.S.S.G. § 3B1.2; and (2) his sentence was substantively unreasonable given his mitigating circumstances, evidence that incarceration does not deter recidivism in drug cases, and historical sentencing disparities. 
  • Holding: The Fifth Circuit affirmed. The record showed Henderson played a significant role in the transactions for which he was held responsible, requested and received methamphetamine for redistribution, and occasionally provided methamphetamine to his co-conspirator—thus the district court did not clearly err in denying the § 3B1.2 reduction. Henderson’s presumptively reasonable within-guidelines sentence failed to meet the standard for substantive unreasonableness. 

• Para v. Progressive Michigan Insurance Co., 25-40374, appeal from S.D. Tex.
  • per curiam (Clement, Douglas, Ramirez) (no oral argument), insurance
  • Legal Issues: Alexander Para, a Texas truck driver beneficiary under a Michigan commercial auto policy, sued Progressive for denied PIP benefits following a May 2020 motor vehicle accident. Progressive denied the claim for non-cooperation. The district court granted summary judgment to Progressive on grounds of res judicata and, alternatively, that the claim was time-barred. Para argued: (1) res judicata did not apply; (2) Texas law, not Michigan law, should govern; and (3) a genuine dispute existed as to whether Progressive formally denied his claim for statute of limitations purposes. 
  • Holding: The Fifth Circuit affirmed summary judgment for Progressive. Although vacatur of the prior case rendered res judicata inapplicable, the court found Michigan law properly applied because Article 21.42 of the Texas Insurance Code did not supply a statutory directive where the policy was not created in the course of Progressive’s Texas business, and the Restatement choice-of-law analysis supported applying the parties’ chosen Michigan law. Under Michigan law, PIP claims must be brought within one year of the accident, with tolling only until the insurer formally denies the claim. Even assuming the denial letters were insufficient formal denials, Progressive’s declaratory judgment action “unequivocally signaled” Para needed to pursue court relief. Because Para did not file until May 2024—well over a year after the declaratory action was dismissed in January 2023—his claim was time-barred.   

• United States v. Robinson, 25-10563, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Legal Issues: Shaun Marqus Robinson was convicted of possession of a firearm after a felony conviction under 18 U.S.C. § 922(g)(1). Proceeding pro se on appeal, he argued that § 922(g)(1) violates the Second Amendment because it impedes a citizen’s right to armed defense and violates various executive orders. 
  • Holding: The Fifth Circuit affirmed the district court’s judgment without requiring further briefing. Robinson’s facial challenge was foreclosed by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), and his as-applied challenge was foreclosed by United States v. Betancourt, 139 F.4th 480 (5th Cir. 2025), based on his previous felony conviction for aggravated assault with a deadly weapon. The government’s motions for summary affirmance and extension of time were denied. 

• In re Highland Capital Management, L.P. (Dugaboy Investment Trust v. Highland Capital Management, L.P.), 25-10999, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), bankruptcy
  • Legal Issues: Dugaboy Investment Trust, controlled by HCM co-founder James Dondero and holding a Class 11 contingent trust interest, appealed the dismissal of its adversary complaint seeking disclosure of Claimant Trust assets and an accounting. Dugaboy argued: (1) Texas law should classify it as a “beneficiary” entitling it to information rights; and (2) its interest should be treated as fully vested because the Claimant Trustee breached the implied duty of good faith by funding indemnification reserves.  
  • Holding: The Fifth Circuit affirmed. The Claimant Trust Agreement (“CTA”) expressly provides it is a Delaware trust governed by the Delaware Statutory Trust Act. Under Delaware law, beneficial ownership is determined by the governing instrument, and the CTA defines Claimant Trust Beneficiaries in a manner that does not include Dugaboy’s unvested, contingent interest. The court found Delaware and Texas law preclude equitable relief where contract terms are clear. As to the good faith argument, the court noted it had already affirmed the trustee’s conduct in a prior appeal, and “[e]xisting contract terms control, . . . such that implied good faith cannot be used to circumvent the parties’ bargain.”