March 25, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • SEC v. Barton, 24-10788, appeal from N.D. Tex.
    • Stewart, J. (Davis, Jones, Stewart) (no oral argument), appellate jurisdiction, receivership, mootness
    • Affirming district court’s judgment approving sale of one property in receiver-managed sale, while dismissing appeal as to another sale order and as to settlement-ratification orders.
    • The SEC sued Timothy Barton for alleged violations of the Exchange Act and the Securities Act, and the district court appointed a receiver to manage properties connected to Barton’s alleged fraud. Barton challenged four district court orders: (1) approval of the sale of Amerigold Suites, owned by Goldmark Hospitality; (2) approval of a settlement between JMJ Development, Tamamoi, LLC, and 3820 East Illinois Avenue concerning a defaulted $500,000 loan; (3) ratification of a settlement between BM318, the Dixon Water Foundation, and Lumar Land & Cattle over bankruptcy claims; and (4) the sale of the Hall Street property for $6 million. Notably, the Amerigold Suites purchaser backed out after Barton personally contacted the buyer, advising that he would “soon resume possession and control over the property.”
    • At issue in the appeal is whether the court had appellate jurisdiction over each of the four challenged orders under 28 U.S.C. § 1292(a)(2) and the collateral-order doctrine; (2) whether a receiver may permanently sell estate property before entry of a final judgment of liability; and (3) whether the district court abused its discretion in finding the Hall Street property sale was in the best interest of the estate.
    • On jurisdiction, the court found the Amerigold Suites appeal moot because the buyer withdrew and no sale would close; Barton’s request to vacate the order to prevent “collateral consequences” failed because he identified no such consequence. As to the two settlement orders, the court held that Barton II (135 F.4th 206) already established that settlement-ratification orders are non-sale administrative orders over which the court lacks interlocutory appellate jurisdiction, and Barton pointed to no meaningful factual distinctions. The court confirmed it did have jurisdiction over the Hall Street sale under the collateral-order doctrine, consistent with Barton II.
    • On the merits of the Hall Street sale, the court rejected Barton’s argument that a new “exigent circumstances” rule should prevent pre-judgment property sales, noting that his reliance on Netsphere‘s “less drastic measures” language was taken out of context—that language addressed whether to impose a receivership at all, not the scope of a receiver’s authority once in place. Reviewing for abuse of discretion, the court found the sale was in the best interest of the estate: the sale price met the statutory two-thirds-of-appraised-value threshold under 28 U.S.C. § 2001, the property was accruing approximately $1,023 in interest per day, the offer exceeded what Barton himself had previously been offered, and Barton “confirmed that he had not received any higher offer.”
    • The court closed with a pointed warning: having noted that Barton has filed approximately thirteen appeals in three years, and that those appeals have “prevented the Receiver from securing title policies,” increased interest accrual, and lowered sale prices due to changing market conditions, the panel cautioned that “[f]urther appeals from sale orders or non-sale administrative orders will be viewed with skepticism and will incur sanctions if deemed frivolous.”

Unpublished decisions

  • United States v. Jose Calderon, 25-30294, appeal from W.D. La.
    • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, search and seizure
    • Affirming conviction for possession with intent to distribute cocaine, and upholding denial of motion to suppress.
    • The Fifth Circuit held that Calderon forfeited his prolonged-stop argument because he challenged only the district court’s alternative reasonable-suspicion basis while ignoring the independent basis that the stop was not prolonged beyond the time needed to complete the original traffic tasks. The court further found no clear error in the district court’s determination that Calderon’s consent to search was voluntary under the applicable six-factor totality-of-the-circumstances test.
  • KC v. Bondi, 25-60279, petition for review of BIA order
    • per curiam (Davis, Jones, Ho) (no oral argument), immigration
    • Denying Nepalese citizen’s petition for review of BIA order upholding the immigration judge’s in absentia removal order and alternative merits decision denying asylum, withholding of removal, and protection under the Convention Against Torture.
    • On the in absentia order, the court held that KC’s failure to appear was not due to “exceptional circumstances beyond his control,” as his non-appearance was based on his own erroneous assumptions about conflicting hearing notices and a pending venue-change motion. On the merits, the court rejected KC’s due-process claim regarding the adverse credibility finding, noting he had been given the opportunity to address discrepancies during his hearing. The court found the evidence did not compel a finding of past persecution or a well-founded fear of future persecution because KC failed to show the Nepalese government was unable or unwilling to control his alleged persecutors. KC’s CAT claim relied on a country conditions report not in the record and was otherwise conclusory.
  • Crocker v. CenterPoint Energy, 25-20323, appeal from S.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), employment, Americans with Disabilities Act
    • Affirming summary judgment for employer on claims for retaliation under the ADA, retaliation under Texas Labor Code, and defamation.
    • The district court granted summary judgment for CenterPoint, finding that Crocker abandoned his ADA retaliation claim, presented no evidence of causation for his state-law retaliation claim, and presented no evidence of a defamatory statement. The Fifth Circuit found no reversible error and held that Crocker forfeited his challenges to the denial of various motions by failing to adequately brief them on appeal. The court also denied Crocker’s motions for judicial notice.
  • United States v. Oscar Adrian Gonzalez, 25-11059, appeal from N.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Merida v. Board of Commissioners of the Southeast Louisiana Flood Protection Authority – East, 25-30434, appeal from E.D. La.
    • per curiam (Haynes, Higginson, Ho) (no oral argument), employment discrimination
    • Affirming dismissal of claims against his former employer and coworkers arising from his termination, including equal-protection violations under the Louisiana Constitution, employment discrimination under state and federal law, tort claims (negligent supervision and defamation), and conspiracy.
    • The Fifth Circuit held that Merida forfeited all his appellate arguments by failing to address the district court’s analysis and explain how it erred. The court noted that his sole developed argument—regarding the “continuing tort” doctrine—was itself forfeited because it was not properly raised before the district court.
  • United States v. Zipora Hudson, 25-60247, appeal from N.D. Miss.
    • per curiam (Haynes, Higginson, Ho) (oral argument withdrawn), criminal, sufficiency of evidence
    • Affirming conviction of conspiracy to commit wire fraud and conspiracy to commit money laundering.
    • The charges arose from a scheme in which Hudson, who owned Zippy Bee tax service, steered clients she knew were ineligible toward fraudulent PPP loan applications prepared by her son, Montreal Hudson. Clients paid approximately $2,000 kickbacks per fraudulent loan. The court held that the government presented sufficient evidence—including client testimony, evidence of Hudson’s direction of loan kickbacks, and her lavish personal purchases during the fraud—for a reasonable jury to find Hudson guilty on both counts.
  • United States v. Gilbert Gomez, Jr., 25-50303 (c/w 25-50306, 25-50357), appeal from W.D. Tex.
    • per curiam (Davis, Jones, Ho) (no oral argument), criminal, sentencing
    • Affirming sentence for conviction for conspiracy to possess with intent to distribute methamphetamine and cocaine, the revocation sentence for a 2011 drug-conspiracy conviction, and the revocation sentence for a 2021 bribery-conspiracy conviction.
    • On the drug-quantity finding, the court held it was not clearly erroneous; the codefendant’s statements were corroborated by other evidence and were not properly characterized as “self-serving” since the codefendant admitted to distributing far more drugs than were attributed to Gomez. The two-level importation adjustment under U.S.S.G. § 2D1.1(b)(5) and the two-level aggravating role adjustment under § 3B1.1(c) were likewise supported by corroborated evidence of Gomez’s ties to a Mexican cartel and his organizational role.
    • The consecutive revocation sentence for the 2011 conviction was not plainly unreasonable, consistent with the Sentencing Commission’s policy statements recommending consecutive revocation sentences.
    • Gomez’s argument under Esteras v. United States, 606 U.S. 185 (2025)—that the district court improperly relied on retributive factors when imposing revocation sentences—failed because the district court never invoked or mentioned any § 3553(a)(2)(A) factor, and the court’s silence did not imply reliance on retribution. His constitutional due-process and cruel-and-unusual-punishment claims were raised for the first time on appeal and were too vague and conclusory to establish plain error.
  • Moten v. Union Pacific Railroad Co., 25-20242, appeal from S.D. Tex.
    • per curiam (Haynes, Higginson, Ho) (no oral argument), personal torts
    • Affirming summary judgment dismissal of negligence, gross negligence, and premises liability claims against railroad company arising from an accident in which Moten’s 14-year-old son, T.T., attempted to cross between two stopped train cars and lost his leg when the train lurched forward due to “slack action.”
    • The Fifth Circuit agreed with the district court that Moten’s negligence claim sounded in premises liability under the factual circumstances. Applying Texas law, the court held that railroad tracks and trains are open and obvious dangers, and UPRC therefore owed no duty to warn or make safe its tracks. The court rejected Moten’s argument that the focus should be on the hidden danger of “slack action” rather than the train itself, noting that T.T. had prior experience with stopped trains beginning to move and had testified he understood the danger of climbing through trains. Because no duty existed, the gross negligence claim also failed.
  • United States v. Lacandreal Shokitra Jackson, 24-40825, appeal from E.D. Tex.
    • per curiam (Haynes, Higginson, Ho) (oral argument withdrawn), criminal, sentencing, restitution
    • Affirming conviction of conspiracy to commit wire fraud arising from a scheme to obtain Paycheck Protection Program (PPP) funds through false representations, 70-month sentence, and $2,083,200 restitution award.
    • Because Jackson raised the loss-calculation challenge for the first time on appeal, the court reviewed for plain error and found none; the PSR used conservative figures and Jackson presented no rebutting evidence. On restitution, the court held the district court permissibly made reasonable estimates of actual loss under the Mandatory Victim Restitution Act. On the mass-marketing enhancement, the district court found that Jackson admitted to sharing a Facebook advertisement that furthered the fraudulent scheme, and Jackson failed to show clear error.