Take the Fifth

Designated for publication

• U.S. v. Ball, No. 25-60396, appeal from S.D. Miss.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), Oldham, J., concurring; criminal, sentencing, party-presentation principle, Anders motion
  • Presumably denying Anders motion, vacating 46-month sentence, and remanding for resentencing.
  • This is too interesting to summarize, so here is Judge Oldham’s full concurrence:
    • “I do not object to the majority’s approach to this case. But I write separately to emphasize its implications for the so-called party-presentation principle.
    • “When the district court revoked D’Laun Ball’s probation, the court sentenced him to 46 months of imprisonment. No one said anything about an applicable policy statement that recommended a three-to-nine-month range for an offender like Ball. See U.S.S.G. § 7B1.4(a). Defense counsel missed it. The Government missed it. And the district court apparently missed it. The case came up on appeal, and defense counsel missed it again. He filed an Anders brief, informing this court that Ball’s appeal ‘present[ed] no legally nonfrivolous basis for reversal.’ ECF 24, at ii.
    • “The first mention of this apparently outcome-determinative policy statement came from this court. Pursuant to this court’s obligation to litigate this case on Ball’s behalf under Anders v. California, we identified the policy statement. Then and only then did defense counsel pick up on the problem, and only then did defense counsel argue that it was somehow “plain error” for everyone, including defense counsel, to miss the policy statement both in the district court and on appeal in the Anders brief.
    • “Courts are supposedly ‘passive instruments of government. They do not . . . sally forth each day looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts normally decide only questions presented by the parties.’ United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020) (citation modified). In our adversarial system, the judge does act as inquisitor, conducting the ‘legal investigation himself.’ McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).
    • “Yet today, we invoke the judicial power to remand a case based solely on an (apparently plain) error that our court found under Anders. So why, exactly, do we in other contexts invoke the party-presentation doctrine to ignore legal problems that parties fail to identify? What gives courts power to ignore a winning legal argument in some contexts, but not in others? Perhaps the best answer is to recognize a basic truth: Courts have the power and duty to find and apply the correct legal principles regardless of what the parties say.”

• United States v. Conchas-Mancilla, 25-40424, appeal from S.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (no oral argument), criminal, search and seizure
  • Publishing previous 3/31 unpublished opinion affirming denial of motion to suppress.
  • In April 2023, Jesus Arturo Conchas-Mancilla arrived at a routine Border Patrol immigration checkpoint in Sarita, Texas. A certified drug-detection dog named Badi repeatedly strained toward the rear bumper of Conchas-Mancilla’s car during a free-air sniff, behavior his handler, Agent Whetten, recognized as an “alert” to a drug odor. After the car was directed to secondary inspection, Badi again alerted to the rear bumper. Agents searched the vehicle and discovered 17.4 kilograms of cocaine concealed in the hollow tubing of the bumper. Conchas-Mancilla confessed after waiving his Miranda rights and was charged with drug conspiracy and possession with intent to distribute. He pleaded guilty but preserved his right to appeal the denial of his motion to suppress the cocaine evidence.
  • At issue on appeal was whether a drug-detection dog’s “alert” (an instinctive change in body posture upon encountering a trained odor), as distinguished from a formal “indication” (a specific trained behavior such as sitting or scratching), can by itself establish probable cause to search a vehicle under the Fourth Amendment.
  • The court applied the Supreme Court’s totality-of-the-circumstances test from Florida v. Harris, 568 U.S. 237 (2013), which asks “whether all the facts surrounding [the] dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” The panel emphasized that Fifth Circuit Fourth Amendment jurisprudence “does not require drug dogs to abide by a specific and consistent code in signaling their sniffing of drugs to their handlers.” The court noted that while a prior decision in United States v. Keller suggested an indication may be near-dispositive, it “did not hold that alerts cannot provide probable cause.”
  • The panel found no clear error in the district court’s factual findings on Badi’s reliability and the strength of his alert. Badi was certified by U.S. Customs and Border Protection, had never required remedial training since 2018, was “one of the top [drug] seizing canines at [their] station,” and had recently won a drug-search competition against top canine teams in Texas and Mexico. The district court found “there is absolutely no evidence to question the reliability” of Badi’s alerts.
  • On Conchas-Mancilla’s argument that the absence of a full indication was dispositive, the court quipped that he was “barking up the wrong tree,” citing Shen, 749 F. App’x at 262. The court applied the Harris presumption that a dog’s alert provides probable cause when a “bona fide organization” has certified the dog, and concluded that Badi—”a certified and uniquely reliable drug-detection dog”—”twice provided strong alerts that correctly identified where Conchas-Mancilla’s cocaine was hidden.”

Unpublished decisions

• United States v. Torres-Tamayo, 25-20443, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, Anders motion
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ramirez, 25-20344, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, Anders motion
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Manguera, No. 25-40491, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, Anders motion
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Lemons, 25-50201, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, Anders motion
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Chavez-Fernandez, 25-11036, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming 27-month sentence on conviction of illegal reentry.
  • At issue on appeal was (1) whether the district court committed plain error by failing to address the defendant’s nonfrivolous arguments for a downward variance under Rita v. United States, 551 U.S. 338 (2007); and (2) whether the 27-month sentence for illegal reentry exceeded the two-year statutory maximum in 8 U.S.C. § 1326(a).
  • On the first issue, the court reviewed for plain error (the argument having been forfeited) and found no error, plain or otherwise. On the second issue, the court held that the challenge was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which permits judges to find the fact of a prior conviction.

• Monahan v. Southwest Airlines Co., 25-50559, appeal from W.D. Tex.
  • per curiam (Elrod, Willett, Wilson) (oral argument withdrawn), standing, fraud, breach of contract, amendment
  • Affirming dismissal for lack of standing, and declining to instruct district court to allow amendment.
  • At issue on appeal was whether plaintiffs who purchased Southwest Airlines tickets—but never flew on a Boeing 737 MAX aircraft—plausibly alleged an Article III injury in fact by claiming they were “overcharged” for tickets because Southwest allegedly breached safety assurances in its Contract of Carriage. The central question was whether the Fifth Circuit’s prior decision in Earl v. Boeing Co., 53 F.4th 897 (5th Cir. 2022), foreclosed the plaintiffs’ theory of economic injury.
  • The court affirmed dismissal for lack of Article III standing, disagreeing with the district court’s reasoning that Earl was distinguishable. The court held that Earl is “on all fours” with this case: both arise from the same underlying facts and the same theory that Southwest overcharged passengers for tickets on flights involving MAX safety risks. Because Earl established that plaintiffs were “not plausibly … any worse off financially”—and were “likely better off financially”—there was no cognizable injury in fact.
  • The court rejected plaintiffs’ argument that recasting the claim as breach of contract (rather than fraud) created a different injury, noting that “Article III standing requires an injury in fact, not an injury in (legal) theory.” The court also distinguished Denning v. Bond Pharmacy, 50 F.4th 445 (5th Cir. 2022), because in Denning the alleged injury was the breach itself, whereas here plaintiffs explicitly pleaded overcharge as their injury.
  • The court declined to instruct the district court to allow amendment of the complaint to name a class of passengers who actually flew on MAX aircraft, holding that Earl‘s injury-in-fact analysis applied regardless of the aircraft assigned to plaintiffs’ flights.

• United States v. Letkeman-Hernandez, 25-11012, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, Anders motion
  • Granting Anders motion to withdraw, and dismissing appeal.

• Sheets v. Scott & White Hospital of Marble Falls, 25-50671, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), § 1981, employment discrimination, Title VII
  • Affirming summary judgment dismissal of § 1981 claims.
  • On appeal was (1) whether a white registered nurse established a prima facie retaliation claim under Title VII and 42 U.S.C. § 1981 after reporting a coworker’s use of a racial slur; specifically, whether she proved a causal link between her protected activity and subsequent adverse employment actions (demotion and constructive termination); and (2) whether the district court abused its discretion in striking two declarations.
  • While acknowledging a genuine dispute as to whether Sheets engaged in a protected activity—reporting a coworker’s use of the N-word could lead a reasonable jury to conclude she believed she was reporting a Title VII violation—the court found she failed to establish a causal link. The eight-month gap between her first complaint (February 2022) and termination (October 2022) was not “very close” temporal proximity, and the court found her additional evidence (allegations of a flawed investigation, policy violations, and credibility issues) insufficient to establish causation.
  • The court also held that the district court did not abuse its discretion in striking two declarations, finding them “factually duplicative” of evidence already in the record.