Take the Fifth

Unpublished decisions

• United States v. Tovar-Martinez, 25-40569, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, guilty plea
  • Affirming conviction for illegal entry.
  • Victor Alfredo Tovar-Martinez appealed his conviction for illegal reentry, contending his guilty plea was not knowing and voluntary because the district court failed to inform him during the Rule 11 colloquy that the statute applies only to individuals “free from official restraint” at the time of apprehension. He further argued the factual basis was inadequate because it did not address whether he was under governmental surveillance at the time he was discovered near the Mexican border.
  • Reviewing for plain error because the issue was not raised below, the Fifth Circuit held that Tovar-Martinez cited no binding authority requiring district courts to inform defendants of the concept of official restraint when advising them of the nature of an illegal reentry offense, and his failure to show a clear or obvious error under existing law was dispositive.

• United States v. Lopez, 25-50395, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sufficiency of evidence, First Amendment
  • Affirming conviction of conspiracy to transport undocumented immigrants and transportation of undocumented immigrants.
  • Rosezzettea Lee Lopez challenged the sufficiency of the evidence supporting her convictions for conspiracy to transport undocumented individuals and transportation of undocumented individuals for commercial advantage or private financial gain. She also raised, for the first time on appeal, claims that her prosecution violated her right to interstate travel, that her consent to a cellphone search was involuntary under the Fourth Amendment, and that the Government’s theory chilled First Amendment associational rights.
  • As to sufficiency of evidence, on the conspiracy count, the court found Lopez’s cellphone messages showed she understood from the outset the nature of the smuggling enterprise—including that the job was “under the table” involving people who had “just crossed the border”—and she repeatedly coordinated transports over approximately one month. Her inconsistent statements to agents further supported the jury’s verdict. On the financial-gain element of the transportation count, the court held that ample circumstantial evidence—including Lopez’s admission she had earned three to four thousand dollars, messages discussing specific payments, and the pattern of prior paid transports—permitted a rational jury to find she expected payment for the January 12 trip.
  • Reviewing for plain error, the court rejected all three constitutional arguments. Lopez cited no precedent that a § 1324 prosecution violates the right to interstate travel; she signed a written consent form for the cellphone search and conceded that her Fourth Amendment argument was “likely foreclosed in the Fifth Circuit”; and her First Amendment associational-rights claim was speculative and unsupported by authority.

• Cheatam v. Family Dollar Store, 25-40638, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), jurisdiction, personal tort
  • Affirming dismissal for lack of subject matter jurisdiction under 28 USC §§ 1331 and 1332.

• Venkatraman v. Bank of America, N.A., 25-10969, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), breach of contract, breach of fiduciary duty
  • Affirming dismissal of claims for negligence, negligent enablement of fraud, breach of contract, breach of fiduciary duty, and violations of federal and state banking laws and the Texas DTPA arising from plaintiff being scammed out of almost $100,000.
  • Venky Venkatraman, proceeding pro se, appealed the dismissal with prejudice of his claims against Bank of America arising from a scam in which he deposited $94,345 in money orders and cashier’s checks into scammers’ BOA accounts. He alleged negligence, negligent enablement of fraud, breach of contract, breach of fiduciary duty, and violations of federal and state banking laws and the Texas DTPA.
  • The court held that BOA owed no duty of care to Venkatraman to prevent third parties from using their own accounts for fraud, and that his status as a longtime customer did not alter the foreseeability analysis. The breach of contract claim failed because Venkatraman did not identify a specific contract or breached provision, and the ordinary bank-customer relationship did not give rise to fiduciary duties under Texas law. His DTPA claim failed because he was not a “consumer” as defined by the statute and, in any event, the claim lacked specificity under Rule 9(b). Finally, the court found no abuse of discretion in dismissing with prejudice after Venkatraman had already been given leave to amend and added only a single, non-specific allegation.

• Thomas v. Steiner, 25-20297, appeal from S.D. Tex.
  • per curiam (Jones, Richman, Southwick) (no oral argument), employment discrimination
  • Affirming summary judgment in favor of defendant on employment discrimination claim.
  • Babu K. Thomas, a former USPS employee, appealed summary judgment in favor of his employer on claims of disability, race, and age discrimination, retaliation, and hostile work environment, as well as the denial of his motion for reconsideration and the award of costs.
  • The Fifth Circuit affirmed on all issues.
    • Discovery: The district court did not abuse its discretion in denying Thomas’s motion to compel, which was filed months after the supplemental discovery deadline and without conferring with the defendant as required by local rules.
    • Disability discrimination: Thomas’s evidence of his diabetes and depression diagnoses was insufficient to create a genuine issue as to whether his impairments “substantially limit” a major life activity, especially given he continued working for years after his diagnoses.
    • Race discrimination: Thomas failed to point to competent evidence that his proffered comparators were similarly situated—he offered nothing regarding shared supervisors or comparable violation histories.
    • Age discrimination: Thomas did not identify competent summary judgment evidence showing he was replaced by younger employees.
    • Retaliation: Even assuming Thomas established a prima facie case, USPS articulated a legitimate non-retaliatory reason (Thomas was absent for three years and refused to provide medical documentation), and Thomas did not rebut it.
    • Hostile work environment: All incidents of harassment in the record occurred on or before August 13, 2014, but the EEOC only accepted the claim as to conduct beginning December 2017, and Thomas pointed to no evidence of harassment from 2017 onward.
    • Costs: The district court did not abuse its discretion in awarding deposition-related costs even though the deposition was not cited in summary judgment briefing.

• Whitman v. Lambright, 25-30688, appeal from W.D. La.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), § 1983, Rooker-Feldman doctrine
  • Affirming denial of injunctive relief sought arising from Parish officials’ registration of a child-support order.
  • Bubba Jonathan Whitman sued various Vernon Parish officials under 42 U.S.C. § 1983 and the Declaratory Judgment Act, alleging constitutional violations arising from the mishandling of the registration of a child-support order. He appealed the denial of his second motion for a temporary restraining order and preliminary injunction. The central question was whether the Rooker-Feldman doctrine divested the federal court of jurisdiction.
  • The Fifth Circuit agreed with the district court that all of the plaintiff’s claims stemmed from his belief that the state court erred in registering the child-support order—a matter for state court review—and that his attempts to reframe the claims as challenges to “ongoing constitutional violations” did not avoid the Rooker-Feldman doctrine’s bar on federal court review of state-court judgments.

• Keeter v. Sadlar, 25-10539, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), prisoner suit
  • Affirming summary judgment dismissal of Texas state prisoner’s § 1983 claim.
  • Jackie Russell Keeter brought a 42 U.S.C. § 1983 claim alleging that Major Karla Sadler was deliberately indifferent to Keeter’s safety by housing Keeter with a fellow inmate, Victor Robinson, who subsequently sexually assaulted Keeter. Sadler did not dispute that the assault occurred but moved for summary judgment on the grounds that she was not personally involved in the housing decision and was not deliberately indifferent. Because Keeter did not object to the magistrate judge’s report, review was for plain error.
  • The Fifth Circuit held that Keeter failed to present specific facts creating a genuine issue for trial as to whether a substantial risk of serious harm arose from the housing assignment or that Sadler was aware of such a risk. The court also noted that Keeter’s contention that a transfer slip was used to “hoodwink” the court was meritless because the district court had expressly recognized the document was merely an example. Finally, the court declined to consider an equal protection argument raised for the first time on appeal.