April 9, 2026, opinions

Posted on by tadbartlett

Unpublished decisions

  • Moselhy v. Blanche, 25-60546, petition for review of BIA order
    • per curiam (King, Haynes, Ho) (oral argument), immigration
    • Denying Egyptian citizen’s petition for review of BIA order affirming the immigration judge’s denial of motion to reconsider the denial of his motion to reopen removal proceedings.
    • Moselhy, a native and citizen of Egypt, raised due process claims and argued the agency violated regulations governing relief applications. The court held that Moselhy’s due process claims were not cognizable under Santos-Zacaria v. Garland, 598 U.S. 411 (2023), and his regulatory-violation arguments were unexhausted before the BIA and therefore could not be considered.
  • Novartis Pharmaceuticals Corp. v. Fitch, 24-60342, appeal from S.D. Miss.
    • per curiam (King, Ho, Ramirez) (no oral argument), preemption
    • Affirming denial of preliminary injunction of enforcement of state statute.
    • The issue on appeal was whether Mississippi’s H.B. 728—which prohibits drug manufacturers from restricting contract pharmacies’ access to drugs discounted under Section 340B of the Public Health Service Act—is preempted by federal law. Novartis sought a preliminary injunction arguing the statute is field preempted and conflict preempted under the Supremacy Clause.
    • The court applied the presumption against preemption, finding that H.B. 728 regulates drug distribution and pharmacy operations—areas of public health and consumer protection traditionally governed by states. Relying on its prior decision in AbbVie, Inc. v. Fitch, 152 F.4th 635 (5th Cir. 2025), the court held that Section 340B is a pricing program that does not govern drug distribution to patients or the role of pharmacies, so H.B. 728 is neither field preempted nor conflict preempted. The court further held that H.B. 728 does not compel manufacturers to “offer” discounted drugs to contract pharmacies but merely requires them to allow covered entities to receive 340B drugs through their contracted pharmacies. Novartis failed to show a likelihood of success on the merits.
  • Browne v. PHH Mortgage Corp., 25-30564, appeal from E.D. La.
    • per curiam (King, Haynes, Ho) (no oral argument), foreclosure
    • Affirming summary judgment for defendant arising from foreclosure.
    • The issue on appeal was whether the district court erred in granting summary judgment to Summit Funding, which called a mortgage loan due and payable after discovering the Brownes failed to disclose a separate RV loan and failed to occupy the property as their primary residence. On appeal, the Brownes also raised new claims of breach of underwriting standards, Truth in Lending Act violations, Regulation Z violations, and breach of the loan agreement.
    • The court found the Brownes pointed to no evidence in the record showing Summit was not entitled to summary judgment; deposition testimony showed their mother told Summit she did not know whether the RV loan existed. The Brownes also never contested that they failed to live on the property as agreed. The new legal theories (TILA, Regulation Z, breach of underwriting standards) were forfeited because they were not raised below.
  • United States v. Glass, 25-30280, appeal from W.D. La.
    • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
    • Affirming 135-month sentence on fraud conviction.
    • The issue on appeal was whether the district court erred in imposing sentencing enhancements for (1) vulnerable victims under U.S.S.G. § 3A1.1(b)(1) and (b)(2), (2) intended loss of over $2.1 million under U.S.S.G. § 2B1.1(b), and (3) a four-level organizer/leader role enhancement under U.S.S.G. § 3B1.1(a), in connection with Glass’s guilty plea to conspiracy to commit bank fraud.
    • The court found it plausible that the fraud targets—older bank customers with large balances who infrequently monitored their accounts—were unusually vulnerable. The intended loss of $2,149,621 was reasonably foreseeable to Glass given her direct cooperation with co-conspirators and general control of the scheme. The record also supported the leadership enhancement: Glass recruited participants, directed targeting, created counterfeit checks, distributed proceeds, and instructed co-conspirators on how to execute the scheme.
  • PhRMA v. Fitch, 24-60340, appeal from S.D. Miss.
    • per curiam (King, Ho, Ramirez) (no oral argument), preemption, Commerce Clause, vagueness
    • Affirming denial of preliminary injunction of enforcement of state statute.
    • PhRMA challenged Mississippi’s H.B. 728 on three grounds: (1) federal preemption (field and conflict) under the Supremacy Clause, (2) violation of the dormant Commerce Clause by regulating out-of-state conduct, and (3) unconstitutional vagueness under the Due Process Clause. The district court had denied PhRMA’s motion for preliminary injunction.
    • On preemption, finding that it was bound by AbbVie, Inc. v. Fitch, the court held that H.B. 728 regulates drug distribution and pharmacy operations—areas of traditional state police power—not the pricing matters addressed by Section 340B. The presumption against preemption applied, and H.B. 728 is neither field nor conflict preempted.
    • On the Commerce Clause, the court held that, under Mississippi’s presumption that statutes operate only within the state’s territorial jurisdiction, and absent any textual indication that H.B. 728 was meant to apply extraterritorially, there was no Commerce Clause violation.
    • On vagueness, Relying on AbbVie, Inc. v. Murrill, the court held that the term “interfere,” read alongside “deny, restrict, [and] prohibit,” targets only conduct that obstructs or impedes the acquisition or delivery of 340B drugs—not routine communications or lawful auditing.
  • United States v. Washington, 24-30586, appeal from E.D. La.
    • per curiam (King, Haynes, Ho) (no oral argument), criminal, search and seizure
    • Affirming conviction of conspiracy to distribute and possess with intent to distribute cocaine, upholding denial of motion to suppress.
    • At issue was whether the district court erred in denying Washington’s motion to suppress evidence obtained via warrants that Washington challenged as overly broad, lacking temporal nexus and probable cause, therefore supporting suppression under Franks v. Delaware.
    • The court found that Washington failed to demonstrate the warrants were overly broad, lacked a proper temporal nexus, or otherwise lacked probable cause. Even if the affiants provided some false information in reckless disregard for its veracity, the affidavits otherwise contained sufficient independent probable cause, so Franks suppression was not warranted.
  • Cano-Lopez v. Mullin, 25-40230, appeal from S.D. Tex.
    • per curiam (Richman, Duncan, Oldham) (no oral argument), immigration
    • At issue was whether the district court erred in denying Cano-Lopez’s declaratory judgment action under 8 U.S.C. § 1503(a) to establish U.S. citizenship, and whether the district court erred in denying his Rule 59 motion for a new trial or to alter the judgment. Cano-Lopez, a native of Mexico, claimed citizenship through his father’s alleged physical presence in the United States.
    • The court found no error in the district court’s conclusion that Cano-Lopez did not meet his burden of showing his father was present in the United States for the requisite period. The district court also correctly determined that the evidence offered in support of the Rule 59 motion was not newly discovered or impossible to unearth before judgment.
  • United States v. Oltmann, 25-60578, appeal from S.D. Miss.
    • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
    • Affirming 12-month sentence on revocation of supervised release.
    • At issue was whether a twelve-month above-guidelines revocation sentence imposed after Oltmann violated the conditions of her probation—by submitting a false insurance claim and falsely reporting a crime just two months into her probation term for unauthorized opening of mail by a postal employee—was substantively unreasonable.
    • Applying the “plainly unreasonable” standard for probation-revocation sentences, the court found no procedural error and concluded the sentence was not substantively unreasonable. All mitigating factors Oltmann raised on appeal had been considered by the district court, and the sentence, while above the advisory policy range, remained within the statutory maximum.
  • Momin v. Blanche, 25-60471, petition for review of BIA order
    • per curiam (Davis, Wilson, Douglas) (no oral argument), immigration
    • Denying Indian citizen’s petition for review of BIA order denying motion to reopen removal proceedings.
    • At issue was whether the BIA abused its discretion in denying Momin’s motion to reopen his removal proceedings based on changed country conditions. Momin argued that increased violence and discrimination against Muslims in India constituted a material change in country conditions warranting reopening of his asylum and withholding-of-removal case.
    • The motion was untimely because it missed the 90-day deadline, and Momin failed to establish the changed-country-conditions exception. His new evidence showed at most incremental changes compared to the evidence presented in his original proceedings, and he cited no legal authority in support of his argument. Because the untimeliness finding was dispositive, the court did not reach the question of whether Momin established prima facie eligibility for relief.
  • McDuff v. Robinson, 24-40720, appeal from E.D. Tex.
    • per curiam (Richman, Southwick, Willett) (no oral argument), habeas corpus, First Step Act, mootness
    • Affirming dismissal of § 2241 petition.
    • At issue were (1) whether earned time credits (ETCs) under the First Step Act must be awarded for productive activities completed before the Act’s enactment; (2) whether ETCs must be applied to reduce a prisoner’s term of supervised release; and (3) whether the district court properly dismissed McDuff’s 28 U.S.C. § 2241 habeas petition as moot after he was transferred to home confinement.
    • The court held that the petition became moot when McDuff received the precise relief he sought—transfer to home confinement. His argument that ETCs should reduce his supervised-release term was a new theory not raised in the district court and could not be considered for the first time on appeal. The court modified the judgment to reflect dismissal without prejudice because the dismissal was jurisdictional in nature. The motion to supplement the record with post-notice-of-appeal documents was denied because Rule 10(e) does not permit the introduction of new evidence on appeal.