Take the Fifth

Designated for publication

• In re Google, L.L.C., 25-40788, petition for mandamus to E.D. Tex.
  • Ho, J. (Haynes, Higginson, Ho) (no oral argument), Higginson, J., dissenting; mandamus, venue, antitrust
  • Granting mandamus to compel the district court to transfer venue to the Northern District of California.
  • Branch Metrics, Inc. sued Google, LLC in the Eastern District of Texas, alleging Sherman Act violations based on documents uncovered during the federal government’s monopolization case against Google in the D.C. district court (United States v. Google LLC, 747 F. Supp. 3d 1 (D.D.C. 2024)). Branch Metrics develops a search engine for mobile applications using “deep linking” technology. Google moved to transfer the case to the Northern District of California under 28 U.S.C. § 1404(a), arguing that most witnesses and sources of proof were located in or near that district. The district court denied the motion, and Google sought mandamus relief.
  • At issue in Google’s mandamus petition was whether the district court clearly abused its discretion in denying Google’s § 1404(a) motion to transfer venue, specifically (1) whether the court misapplied the “court congestion” factor by relying on median time-to-disposition statistics in a complex case, and (2) whether that single factor could override all other factors favoring transfer. A secondary issue was whether the Clayton Act’s liberal venue provisions “amplify” the ordinary deference to a plaintiff’s chosen forum so as to alter the § 1404(a) analysis.
  • The court held that the district court committed two errors in its transfer analysis. First, it incorrectly analyzed the fifth Volkswagen factor—court congestion—by relying on median time-to-disposition and time-to-trial statistics. The court emphasized that this factor is “the most ‘speculative’ of the Volkswagen factors, because ‘measuring congestion is easier said than done,'” and that median timelines are “particularly unreliable” in complex cases, which inherently exceed average timelines due to greater discovery and briefing demands.
  • Second, even if the congestion factor deserved any weight, the district court impermissibly used it as a dispositive factor to override all others. The district court had found three private interest factors weighing slightly in favor of transfer and no other factor weighing against it—meaning the congestion finding “singlehandedly defeated transfer, in violation of our precedent” that “‘no factor’ in the test is accorded ‘dispositive weight.'”
  • As to Branch Metrics’ argument that the Clayton Act’s broad venue provisions should amplify deference to the plaintiff’s forum choice, the court noted that the Supreme Court clarified in United States v. National City Lines, 337 U.S. 78 (1949), that § 1404(a) applies to antitrust suits, and that Branch’s reading has been “consistently rejected by virtually every court to have considered the issue since the 1980s.”
  • Judge Higginson dissented on three grounds. First, he invoked Volkswagen‘s admonition that the appellate court would not “intrusively re-examine facts” and would review “only for clear abuses of discretion that produce patently erroneous results.” Second, he argued that the majority correctly identified ambiguity in the fifth Volkswagen factor but that “that lack of clarity is ours, so a difficult basis on which to assign patent error. We should clarify the law before we fault a district court for being indisputably wrong about it.”
  • Most significantly, Judge Higginson emphasized the high burden on the movant under In re Chamber of Commerce, 105 F.4th 297 (5th Cir. 2024), quoting at length: “to establish ‘good cause,’ a movant must show (1) that the marginal gain in convenience will be significant, and (2) that its evidence makes it plainly obvious—i.e., clearly demonstrated—that those marginal gains will actually materialize in the transferee venue.” He concluded: “I see no factual error in the district court’s focus and determination that Google did not meet its burden.”

Unpublished decisions

• United States v. Christopher Andrade, 24-40399, appeal from S.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sufficiency of evidence, jury instructions
  • Affirming conviction by a jury of conspiracy to commit murder-for-hire.
  • Andrade raised three challenges on appeal: (1) sufficiency of the evidence regarding his knowledge of the intended victim’s identity, (2) an alleged jury-instruction error for omitting the victim’s identity as an element of the offense, and (3) the admissibility of redirect testimony by two law enforcement witnesses concerning coconspirator statements.
  • The court found that under plain-error review, the record supported an inference that Andrade knew the identity of the intended target. The jury instruction was a correct statement of the law and did not misguide the jury or affect the verdict. Finally, the district court did not abuse its discretion in allowing the redirect testimony, which was elicited to respond to defense cross-examination; to the extent any of it was inadmissible hearsay, the admission was harmless.

• Santos Arnulfo Turcios-Berrios v. Blanche, 25-60375, petition for review of BIA order
  • per curiam (Wiener, Willett, Wilson) (no oral argument), immigration
  • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order denying motion to reopen and dismissing appeal of IJ’s denial of motion to reconsider and prior motion to reopen.
  • Turcios-Berrios argued that his motions were timely or should be equitably tolled, that changed country conditions warranted reopening, and that due process was violated.
  • The court found that Turcios-Berrios abandoned his challenge to the denial of the motion to reconsider, failed to show the BIA abused its discretion in finding his motions untimely, and abandoned his equitable-tolling argument regarding the August 2021 motion. His due process claims failed because he had no liberty interests in reopening proceedings, and the court lacked jurisdiction over his challenge to the BIA’s refusal to sua sponte reopen.

• United States v. Kelley Lynn Lamberson, 25-10739, appeal from N.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, sentencing
  • Affirming revocation of supervised release and imposition of new sentence.
  • Lamberson pleaded true to violating the terms of her supervised release, including seven positive amphetamine tests in two months, triggering mandatory revocation under 18 U.S.C. § 3583(g). She was sentenced to twelve months of imprisonment followed by forty-eight months of supervised release. On appeal, she argued (1) that § 3583(g) is unconstitutional under United States v. Haymond because it mandates imprisonment based on judge-found facts, and (2) that her supervised-release sentence was substantively unreasonable because the district court improperly considered retributive factors under § 3553(a)(2)(A).
  • The constitutional challenge was foreclosed by United States v. Garner. On the reasonableness challenge, the court found no plain error because the district court invoked only permissible sentencing factors—the nature and circumstances of the offense, Lamberson’s history, and the need to protect the public—rather than impermissible retributive considerations. The court further noted that even if the district court had relied on § 3553(a)(2)(A), it would not be clear error under mandatory revocation because Illies holds that § 3553(a) factors need not be considered at all in that context, and Esteras did not change that rule.

• Houhe Zeng v. Owner of 8020 Quartz Lane; FirstKey Homes, L.L.C., 25-40449, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), Fair Housing Act, recusal
  • Affirming dismissal of Far Housing Act claim.
  • Zeng, proceeding pro se, sued her landlord and property management company under the Fair Housing Act and the Texas Property Code, alleging that her olfactory impairment constituted a disability and that defendants discriminated against her by refusing repairs, including replacing moldy carpet and air conditioning filters. After being granted leave to amend, her suit was dismissed under Rule 12(b)(6). She also challenged the denial of her motion to recuse or disqualify the district judge.
  • The court found the amended complaint failed to establish a causal link between her disability and the alleged adverse treatment. The recusal motion was properly denied because adverse rulings alone do not establish judicial bias, and Zeng identified no other evidence of partiality. Her motions for summary disposition, to expedite, and to reassign the case were denied.

• United States v. Francisco Rios-Munoz, 25-60516, appeal from S.D. Miss.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing, guilty plea
  • Dismissing appeal of 24-month sentence and conviction for illegal reentry.
  • Rios-Munoz pleaded guilty, pursuant to a written plea agreement, to illegal reentry by a previously removed alien and was sentenced to 24 months of imprisonment and one year of supervised release. For the first time on appeal, he argued the Government breached the plea agreement by failing to specify at sentencing that it recommended a sentence in the lower 50% of the advisory guidelines range. The Government moved to dismiss based on the appeal waiver in the plea agreement.
  • The court found the appeal waiver was knowing and voluntary. Because Rios-Munoz did not raise the breach argument below, review was for plain error only. The court held that the Government’s obligation to recommend a particular sentence was satisfied because the presentence report included the recommendation, so there was no clear or obvious error.

• Eric McCutchan; Center for Inquiry, Inc. v. Nicholson et al., 25-10890, appeal from N.D. Tex.
  • per curiam (Elrod, Higginbotham, Graves) (oral argument), First Amendment, standing
  • Affirming dismissal for lack of standing the claims by McCutchan, a secular celebrant certified by the Center for Inquiry, and the Center, which challenged Texas Family Code § 2.202(a), which limits who may conduct a marriage ceremony to religious officials and judges, as violating the Establishment Clause, Equal Protection Clause, Free Speech Clause, the Religious Tests Clause of Article VI, and the unconstitutional-conditions doctrine.
  • The court held that McCutchan failed to establish pre-enforcement standing because he alleged only a generic desire to conduct marriage ceremonies as a secular celebrant without identifying concrete plans to solemnize a wedding in Tarrant County. His “‘some day’ intentions” were insufficient, and the risk of violating the statute was speculative because it depended on unidentified third parties’ desires. Because the Center’s standing depended entirely on McCutchan’s, its claims failed as well.

• Shawn Olali v. Paul Johnson, 26-40101, appeal from E.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), § 1983, Younger abstention
  • Affirming dismissal on Younger abstention grounds.
  • Olali, proceeding pro se, brought a § 1983 action challenging the constitutionality of Article 39.14(d) of the Texas Code of Criminal Procedure, which limits discovery for pro se criminal defendants to in-person inspection without electronic duplication. He asserted that the statute infringes his Sixth Amendment right to self-representation and violates the Fourteenth Amendment’s due process and equal protection guarantees. The district court dismissed on Younger abstention grounds.
  • The court found all three Younger criteria satisfied: the federal proceeding would interfere with Olali’s ongoing state criminal prosecution, Texas has an important interest in regulating pretrial criminal procedures, and Olali has an adequate opportunity to raise his constitutional challenges in state court. The court rejected Olali’s reliance on Powell v. Hocker to argue that Texas courts are “procedurally incapacitated” from hearing his claims, distinguishing that case because it did not involve a constitutional challenge. The court also found Olali’s bad-faith-prosecution argument unsupported.

• United States v. Nooruddin Bhai Nasruddin, 25-60133, appeal from N.D. Miss.
  • per curiam (Elrod, Higginbotham, Graves) (no oral argument), criminal, sentencing
  • Affirming 60-month sentence on conviction of conspiracy to commit wire fraud in a scheme targeting elderly victims; he posed as a federal agent and collected $103,743.56 from a 77-year-old victim.
  • On appeal, he argued (1) the district court plainly erred in applying the two-level “substantial financial hardship” enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(iii), and (2) the sentence was substantively unreasonable because the court gave excessive weight to the victims’ ages, a factor already accounted for by the vulnerable-victim enhancement.
  • On the enhancement, the court found no plain error because the victim lost all of her funds from at least one bank account, supporting a reasonable inference of substantial financial hardship. On substantive reasonableness, the court held the district court was free to rely on factors already incorporated by the Guidelines to support a non-Guidelines sentence, and the 60-month sentence was not unreasonable under the totality of the circumstances.

• Roosevelt L. Linicomn v. Harris County Sheriff’s Office et al., 25-20511, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), § 1983, service of process, amendment, timeliness
  • Affirming dismissal of § 1983 claims.
  • Linicomn, appearing pro se and in forma pauperis, filed a § 1983 suit alleging that a police officer’s accident report was biased against him based on the race of the other driver. The district court dismissed the claim against Officer Bernico under Rule 12(b)(5) for failure to serve within 90 days and declined a discretionary extension because the statute of limitations had run. It dismissed the Harris County Sheriff’s Office under Rule 12(b)(6) as a non-jural entity. Linicomn sought to amend to substitute the Houston Police Department, but the court denied the amendment as untimely.
  • The court agreed that the district court erred in denying leave to amend—because Linicomn filed within 21 days of the Rule 12(b) motion, amendment was available as of right under Rule 15(a)(1)(B)—but affirmed on harmless-error grounds. The amended complaint failed to state a claim for multiple reasons: it did not mention the Houston Police Department, it did not allege a Monell policy, the HPD’s capacity to be sued was not established, and the claim was time-barred on its face (the accident was in April 2023 and suit was filed in May 2025, beyond Texas’s two-year personal-injury limitations period).

• United States v. Acacedric Rashod Ware, 24-10436, appeal from N.D. Tex.
  • per curiam (Jones, Stewart, Willett) (oral argument), habeas corpus, ineffective assistance of counsel
  • Affirming denial of § 2255 petition seeking relief from 235-month sentence for drug offenses.
  • Ware, sentenced to 235 months for drug offenses, sought § 2255 habeas relief arguing that his retained attorney, Reed Prospere, provided ineffective assistance due to an actual conflict of interest arising from dual representation of Ware and co-defendant Charles Van Zandt. Prospere withdrew from Ware’s case after learning the two matters were connected, but Ware contended the conflict still adversely affected his sentence. Ware also argued his sentencing lawyers were ineffective for failing to object to testimony about admissions made during the period of dual representation. He additionally challenged the denial of an evidentiary hearing.
  • Assuming without deciding that an actual conflict existed, the court held that Ware failed to identify any “plausible alternative defense strategy or tactic” that Prospere could have pursued but did not because of the conflict. Prospere withdrew promptly upon discovering the conflict and took no substantive action on Ware’s behalf thereafter. The court also rejected the claim that sentencing counsel was ineffective, noting that sentencing judges may consider inadmissible evidence so long as it is relevant and reliable. The denial of an evidentiary hearing was not an abuse of discretion because Ware offered no independent indicia supporting the likely merit of his allegations and the record conclusively showed he was entitled to no relief.