Take the Fifth

Designated for publication

• U.S. v. Wilson, 24-10633, appeal from N.D. Tex.
• per curiam (Jones, Smith, Graves, Ho, Duncan, Engelhardt, Oldham, voting for en banc rehearing; Elrod, Stewart, Richman, Southwick, Haynes, Higginson, Willett, Wilson, Douglas, Ramirez, voting against en banc rehearing) (oral argument at panel stage); Willett, J., issuing opinion “respecting the denial” (joined by Elrod, Duncan, JJ.); Ho, J., dissenting from denial; Oldham, J., dissenting from denial (joined by Ho, J.); en banc, criminal, Second Amendment, sentencing
• Denying en banc rehearing of January 12 panel opinion (Wiener, Willett, Ho; per curiam, but Willett, J., concurring in panel opinion and Ho, J., dubitante) affirming conviction of possession of a machinegun, and sentencing based on cross-reference to second-degree murder.
• The case implicated two Fifth Circuit precedents: United States v. Knutson, which upheld § 922(o) under the Commerce Clause, and Hollis v. Lynch, which held that machine guns are “dangerous and unusual” weapons unprotected by the Second Amendment. Judge Willett agreed that Knutson and Hollis are “dubious” precedents, describing the Constitution’s structure of enumerated powers and enumerated rights as “a belt-and-suspenders Constitution”—and concluding that here, “two of our precedents leave little work for either safeguard to do”. He noted that “mere possession of a firearm fits uneasily” within the Supreme Court’s recognized categories of commerce regulation, and questioned how approximately 2.38 million registered machine guns can be considered “unusual” in any ordinary sense. 
• Nevertheless, Judge Willett identified two vehicle problems that counseled against en banc review in this case. First, Wilson never argued that § 922(o) exceeds Congress’s enumerated powers—and the court “cannot make that argument for him,” because doing so “would take us beyond adjudicating (‘call[ing] balls and strikes’) and into advocating (taking our own ‘turn at bat’).” Second, although Wilson styled his claim as “as-applied,” he challenged § 922(o) only “as applied to the possession of machineguns”—which is all the statute regulates—making the claim facial in substance, subject to the demanding standard that “no set of circumstances exists under which [§ 922(o)] would be valid.” Because the statutory definition of “machinegun” covers everything from handheld firearms to “massive guns mounted on military aircraft and anti-aircraft batteries,” Wilson’s facial challenge was “likely … fatal.”
• Willett concluded: “The en banc court should, in an appropriate case, consider whether § 922(o) comports with Congress’s enumerated powers and the individual right secured by the Second Amendment. But Wilson’s appeal is not the right vehicle.”
• Judge Ho dissented, contending that the court should have granted rehearing to bring its precedent into line with the Constitution and Bruen. He wrote: “Our analysis of the Second Amendment must be guided by history—not hoplophobia,” and emphasized that the Founders “were not afraid of firearms” and indeed “required all able-bodied men between the ages of 18 and 45 to obtain a firearm.”
• Responding to the Willett concurrence’s vehicle concerns, Judge Ho contended the case was just as “cleanly presented” as Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, where the en banc court overruled circuit precedent even though additional issues remained, returning the case to the panel to “resolve the remaining issues.” He observed pointedly: “I don’t see how we can claim that we’re ‘bound’ by a particular precedent at the panel stage—but then claim that we can’t go en banc to revisit that precedent in that very same case.”
• Judge Ho concluded by noting that “nine members of the court appear to acknowledge difficulties with our circuit precedent” and that “[b]y denying rather than granting en banc review, despite our manifest agreement that our precedent contains fatal defects on matters of fundamental import, we are only delaying our court from getting the Constitution right. That’s regrettable.”
• Judge Oldham dissented separately, writing bluntly: “Our Court’s approach to the Second Amendment is historically bankrupt.” He contended there is “no historical justification for banning machine guns,” noting that repeating arms have existed since the fifteenth century, were prevalent at the Founding, and were never banned in any English colony that became an American state. 
• He contended that the court’s categorical approach in Hollis—holding that entire classes of weapons fall outside the Second Amendment—”cannot be reconciled with Supreme Court precedent,” quoting Bruen‘s observation that Founding-era laws did not ban “the carrying of any class of firearms” but “merely codified the existing common-law offense of bearing arms to terrorize the people.” He concluded that unless the Supreme Court changes the governing standard, “our precedent cannot justify a ban on entire classes of weapons.” 

Unpublished decisions

• United States v. Crawford, 25-11028, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Sumner v. State Farm Lloyds, 25-20166, appeal from S.D. Tex.
  • per curiam (Higginbotham, Smith, Oldham) (no oral argument), insurance
  • Affirming summary judgment for insurer on hurricane coverage claim.
  • Glen Sumner sued State Farm Lloyds over claims arising from insurance payments for damage to his residence following Hurricane Nicholas. The district court granted summary judgment to State Farm, and Sumner appealed that decision along with various procedural challenges. The Fifth Circuit found no error in the summary judgment order or the district court’s handling of the lawsuit.

• United States v. Martin, 25-30712, appeal from E.D. La.
  • per curiam (Stewart, Engelhardt, Douglas) (oral argument withdrawn), criminal, Second Amendment
  • Reversing conviction of possession of a firearm by a felon.
  • Elijah Martin pleaded guilty to two counts of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1) and appealed, arguing the statute was unconstitutional as applied to him. Martin’s predicate felony convictions were for simple drug possession and for a felon-in-possession charge that itself rested on the simple drug-possession conviction. Relying on United States v. Hembree, 165 F.4th 909 (5th Cir. 2026), which held that the government cannot demonstrate a sufficient historical analogue to support disarming persons convicted only of simple drug possession under the Bruen framework, the court found the government conceded error. The court held Martin’s convictions violated the Second Amendment as applied to him and reversed.

• GIS Holdings, L.L.C. v. Director, OWCP (Crews), 25-60500, petition for review of order of the Benefits Review Board
  • per curiam (Southwick, Graves, Wilson) (no oral argument), administrative law
  • Denying employer’s petition for review of Benefits Review Board finding of employee’s entitlement to total disability benefits.
  • Walter Crews, Jr. suffered a severe back injury in a 1995 workplace incident that left him unable to work and required a surgically implanted morphine pump. The ALJ and BRB awarded permanent total disability benefits beginning October 4, 2007. GIS Holdings petitioned for review, arguing (1) insufficient evidence that Crews reached maximum medical improvement in October 2007, (2) evidence that Crews could return to the workforce, and (3) Crews’s refusal to engage in job retraining. The court found substantial evidence supported the ALJ’s MMI finding, noting both doctors—including GIS’s own—testified that no further treatment was recommended and Crews’s condition was “stable.” GIS failed to rebut Crews’s prima facie showing of total disability by identifying suitable alternative employment. The job-retraining argument was forfeited for not having been raised before the BRB.

• Hilts v. City of Port Arthur, 25-40395, appeal from E.D. Tex.
  • per curiam (Jones, Clement, Richman) (oral argument withdrawn), employment, due process, amendment
  • Affirming dismissal of former employee’s due process claims arising from termination, and affirming denial of motion to amend.
  • Joyce Hilts, a former City of Port Arthur employee, appealed the dismissal with prejudice of her 42 U.S.C. § 1983 municipal liability claims alleging substantive and procedural due process violations arising from her termination.
  • Regarding the substantive due process claim, the court held that Hilts’s claim was time-barred. Her termination became final on April 1, 2022, when she received the Termination Notice—which had already been approved by the Department Head and City Manager—and she did not file suit until June 18, 2024, more than two years later. The pendency of the internal appeal process did not toll the limitations period under Delaware State College v. Ricks.
  • Regarding the procedural due process claim, the court found Hilts lacked a protected property interest in her continued employment. The City’s Personnel Policy contained no for-cause restrictions, and Texas’s at-will employment presumption applied. The Last Chance Agreement she signed did not restrict the grounds for termination, and therefore did not overcome the at-will presumption.
  • The court also held the district court did not abuse its discretion in denying leave to amend, as any amendment would be futile.

• Quansah v. MSC Mediterranean Shipping Company SA, 25-40619, appeal from S.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), maritime law
  • Affirming summary judgment dismissal of longshoreman’s claims from injury.
  • Peter Quansah, a longshoreman employed by a stevedoring company, was injured when he tripped over a lashing rod and fell over a loose rope railing while loading cargo aboard a container ship owned by MSC. He sued MSC under § 905(b) of the Longshore and Harbor Workers’ Compensation Act. The court analyzed the three narrow duties a vessel owner owes longshoremen—the turnover duty, the active control duty, and the duty to intervene—and found Quansah failed to create a genuine issue of material fact as to any of them.
  • On the turnover duty, Quansah offered no evidence the railing was defective before turnover or that MSC knew of the defect. On the active control duty, the evidence showed the work area had been turned over to the stevedores and only they were handling lashing rods; crew monitoring and cargo-plan instructions did not constitute active control. On the duty to intervene, Quansah did not demonstrate MSC had actual knowledge of the hazard and that the stevedore exercised “obviously improvident” judgment.

• United States v. Rodriguez, Jr., 25-40428, appeal from S.D. Tex.
  • Engelhardt, J. (Stewart, Engelhardt, Douglas) (oral argument withdrawn), criminal, sentencing
  • Affirming 240-month sentence on conviction of possessing child pornography involving a prepubescent minor, after having a prior conviction for attempted aggravated sexual assault of a minor.
  • Rodriguez challenged the sentence as procedurally unreasonable for inadequate explanation, but the court found the district court sufficiently considered the parties’ arguments and the § 3553(a) factors.
  • Rodriguez also argued the court gave excessive weight to his prior sexual assault conviction and punished him for maintaining his innocence. On the prior-conviction argument, the court held it was proper to consider the defendant’s history and characteristics. On the lack-of-remorse issue, the court found the record ambiguous as to whether the district court’s comment was directed at the current offense or the prior conviction, and on plain-error review, this ambiguity cut against Rodriguez. Even assuming error, Rodriguez could not show a reasonable probability of a shorter sentence given the Government’s extensive, undisputed argument about his prior conduct.

• United States v. Archangel, 25-30594, appeal from W.D. La.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Gonzalez-Agundis, 25-40057, appeal from S.D. Tex.
  • per curiam (Stewart, Engelhardt, Douglas) (oral argument withdrawn), criminal, sentencing
  • Affirming 42-month sentence and conviction for illegal reentry.
  • Adrian Gonzalez-Agundis pleaded guilty to illegal reentry and assaulting a law enforcement officer with a deadly weapon after brandishing a knife at a CBP agent during a pursuit near the southern border. The district court applied the aggravated assault sentencing guideline (U.S.S.G. § 2A2.2) via cross-reference from § 2A2.4, finding that Gonzalez-Agundis intended to cause bodily harm, and sentenced him to 42 months (a downward variance from the 57-to-71-month guidelines range).
  • On appeal, Gonzalez-Agundis argued the record did not support a finding of intent to harm. The court found the district court’s inference plausible: Gonzalez-Agundis stopped mid-flight, turned toward the agent, brandished the knife threateningly, refused multiple commands to drop it, and physically resisted arrest after being tased.

• Pacheco-Morales v. Young, et al., 25-40686, appeal from E.D. Tex.
  • per curiam (Graves, Ho, Douglas) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of former Texas state prisoner’s sec. 1983 claims.
  • Hector Pacheco-Morales, a former Texas prisoner, sought leave to proceed in forma pauperis on appeal from the district court’s dismissal of his civil rights action under 28 U.S.C. § 1915A(b) as untimely or for failure to state a claim. He challenged his 2019 Texas conviction, alleging defendants conspired to conceal that the conviction was improperly enhanced, constituting a continuing violation. The court found this was a single violation with continuing consequences, not a continuing violation, and that his conclusory conspiracy allegations were insufficient. His arguments regarding qualified immunity, discrimination claims, and impeded access to legal materials likewise failed. The appeal was deemed frivolous; the IFP motion was denied and the appeal dismissed.

• Norman v. Beaumont Independent School District, et al., 25-40215, appeal from E.D. Tex.
  • Engelhardt, J. (Stewart, Engelhardt, Douglas) (no oral argument), employment, First Amendment, amendment
  • Affirming dismissal of former police officer’s First and Fourteenth Amendment claims arising from termination following his Facebook post, and affirming denial of motion to amend.
  • Shanter Norman, a former BISD police officer, brought § 1983 claims under the First and Fourteenth Amendments and state-law claims under the Texas Commission on Human Rights Act (TCHRA) for retaliation and disparate treatment based on religion after he was terminated following an internal investigation into a Facebook post he characterized as a prayer for integrity and accountability in leadership.
  • On the First Amendment claim, the court balanced the content, form, and context of Norman’s Facebook post and concluded it did not address a matter of public concern. While its form as a public social media post weighed in favor of public concern, its content disclosed only general dissatisfaction with workplace leadership—no corruption, misconduct, or public debate—weighing decisively against it.
  • On the Fourteenth Amendment claim, Norman’s passing reference to due process was generously construed as a stigma-plus claim, but he concededly failed to plead that he requested a name-clearing hearing. A new property-interest-based procedural due process theory raised for the first time on appeal was rejected.
  • On the TCHRA claim, Norman’s retaliation claim failed because his Facebook post did not constitute protected activity under the statute, and his EEOC charge was filed after his termination, breaking the causal link. His disparate treatment claim failed for lack of any direct or circumstantial evidence of religious discrimination.
  • The district court did not abuse its discretion in dismissing with prejudice and denying leave to amend after Norman had already amended once, consistently maintained his pleadings were adequate, and provided no reason why further amendment would cure the deficiencies.

• Otis v. Miller, et al., 25-50098, appeal from W.D. Tex.
  • per curiam (Stewart, Engelhardt, Douglas) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state inmate’s claims.
  • Kerron Lavern Otis, a TDCJ inmate, sued Warden Gene Miller, Executive Director Bryan Collier, and the TDCJ health liaison, alleging that other inmates in his unit daily sprayed fecal matter and set fires, creating unconstitutional conditions of confinement, and that the named officials failed to transfer him or intervene.
  • The district court dismissed under § 1915(e) for failure to state a claim. The Fifth Circuit affirmed, holding: (1) official-capacity claims for damages were barred by Eleventh Amendment immunity; and (2) Otis failed to plead facts showing the named TDCJ officials had personal involvement or knowledge of the conditions. The grievance forms he attached were signed by other staff members, not the named defendants, and his assertions that he sent requests to the warden and executive director were unsupported by the record. His supervisory liability theory also failed because he showed no policy or personal involvement by the named officials that could be said to have caused his injuries.