Take the Fifth

Unpublished decisions

• United States v. Hollis, 25-11215, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Rodriguez, 25-20287, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming imposition of mental health treatment condition in supervised release term as part of sentence, when there was no professional diagnosis—only the defendant’s self-reported anxiety and depression at sentencing

• MacTruong v. Abbott, 25-50364, appeal from W.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), civil, sanctions
  • Dismissing as frivolous appeal from dismissal of civil action as duplicative of claims previously raised against the same and other defendants.
  • The court denied MacTruong’s motion to proceed IFP and dismissed the appeal as frivolous, finding that MacTruong failed to challenge the actual basis for dismissal and thus abandoned the issue. The court also imposed a $250 sanction for abusive, disparaging language in filings and barred MacTruong from filing any pro se civil appeal or initial civil pleading in courts subject to Fifth Circuit jurisdiction until the sanction is paid.

• United States v. Talavera, 24-10688, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• In re Okorie, 26-60035, appeal from S.D. Miss.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), bankruptcy
  • Affirming dismissal of debtor’s adversary complaint.

• Starr v. City of Palestine, Texas, 25-40486, appeal from E.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), § 1983
  • Dismissing as frivolous appeal from dismissal of § 1983 claims.

• Gallo-Talavera v. Bondi, 25-60478, petition for review of BIA order
  • per curiam (Stewart, Graves, Oldham) (no oral argument), immigration
  • Denying Nicaraguan citizen’s petition for review of BIA order dismissing his appeal from an order of an Immigration Judge (IJ) denying his application for asylum and withholding of removal and ordering him removed.
  • The issues on appeal are (1) whether the BIA erred by ignoring the petitioner’s age at the time of persecution; (2) whether the BIA erred on corroboration; and (3) whether the IJ violated due process by failing to develop the record.
  • The court found the BIA acknowledged and considered the petitioner’s age; that the corroboration issue was not before the court because the BIA declined to adopt the IJ’s conclusion on it; and that the IJ fulfilled her duty to develop the record, and the petitioner failed to explain how the outcome would have differed.

• United States v. Lively, 25-30431, appeal from W.D. La.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming application of a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for manufacturing or distributing drugs.

• White v. North Louisiana Criminalistics Laboratory, 25-30293, appeal from W.D. La.
  • per curiam (Jones, Clement, Richman) (oral argument withdrawn), employment discrimination, Title VII
  • Affirming summary judgment dismissal of sex discrimination claim.
  • At issue on appeal was (1) whether White established a prima facie case of sex discrimination under Title VII and the Louisiana Employment Discrimination Act by showing she was replaced by someone outside her protected class or that similarly situated males were treated more favorably; and (2) whether White produced sufficient evidence of pretext to survive summary judgment on her retaliation claim.
  • On sex discrimination, the court found White was replaced by a female, forfeited her comparator arguments regarding a male employee by failing to raise them below, and failed to show that other proposed comparators were similarly situated. On retaliation, the court assumed a prima facie case but held White could not demonstrate pretext because the natural chronology showed her insubordination, dishonesty, and negative impact on morale were the but-for causes of termination.

• United States v. Green, 25-60474, appeal from N.D. Miss.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming 95-month sentence for federal carjacking.

• United States v. Almazan-Mata, 25-40504, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Harrington v. Lancaster, 25-20360, appeal from S.D. Tex.
  • per curiam (Jones, Stewart, Willett) (oral argument), qualified immunity, § 1983, Fourth Amendment
  • Affirming dismissal of excessive-force claim, but reversing summary judgment dismissal of unlawful-entry, search, and seizure claim, and remanding for further proceedings.
  • Quick factual background from court’s introduction: “This Fourth Amendment case began with a neighbor’s mistake. The neighbor called 911 to report a possible home invasion but gave officers the wrong address. Acting on that information, officers entered the wrong home to conduct a protective sweep, expecting to find either a vacant house or an intruder. Instead, they found Tyler Harrington and his wife asleep in bed. The officers then wondered aloud whether they had the right address. But instead of confirming where they were, they stepped back to the front door, knocked, and re-entered moments later. During that second entry, they awoke the underwear-clad couple, ordered them at gunpoint to put their hands up and ‘stay right there,’ and questioned them.”
  • At issue on appeal was (1) whether officers’ second warrantless entry into a home was justified by apparent consent after they realized they may have the wrong address; (2) whether qualified immunity shielded the officers from unlawful-entry, search, and seizure claims; (3) whether pointing firearms and shouting orders constituted excessive force under the Fourth Amendment.
  • The court reversed the dismissal of the unlawful-entry, search, and seizure claims arising from the officers’ second entry—finding that once officers discovered the home was occupied and questioned whether they had the right address, apparent consent no longer justified re-entry, and qualified immunity did not apply because officers must immediately terminate a search upon learning they entered the wrong residence. The court affirmed the dismissal of the excessive-force claim, concluding that pointing a gun and shouting during a late-night home-invasion response did not violate clearly established law. The court also affirmed dismissal of claims arising from the initial entry and remanded for further proceedings.

• United States v. Barreto-Cruz, 25-40657, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Mercadel, 25-11029, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.