Take the Fifth

Designated for publication

• United States v. Vacchino, 25-50194, appeal from W.D. La.
  • Higginbotham, J. (Higginbotham, Smith, Oldham) (no oral argument), Oldham, J., concurring; criminal, sentencing, supervised release
  • Vacating mandatory supervised release requirement for financial-change notification, and remanding for correction of judgment.
  • In October 2023, Jayden Douglas Richard Vacchino lured a sixteen-year-old girl from Floresville, Texas, to Shreveport, Louisiana, for sex after meeting her online. He pleaded guilty to transporting a minor interstate with intent to engage in criminal sexual conduct and was sentenced to 260 months’ incarceration plus 15 years of supervised release. The written judgment included supervised release conditions not explicitly pronounced at the sentencing hearing, and it omitted the court’s oral recommendation for sex counseling treatment.
  • At issue on appeal were (1) whether supervised release conditions in the written judgment that were not specifically orally pronounced must be vacated under the court’s Diggles pronouncement framework; and (2) whether the omission of the sex counseling treatment recommendation was a correctable clerical error under Rule 36.
  • The court applied its two-step inquiry: First, whether a condition must be orally pronounced (statutory conditions need not be); second, if pronouncement was required, whether the sentencing remarks met that standard or merely created an ambiguity that the judgment could clarify. Mandatory conditions 8 (special assessment) and 9 (fine payment schedule) did not conflict with the oral sentence and thus survived plain-error review. Mandatory condition 10, however, imposed an additional notification burden never mentioned at sentencing, conflicting with the oral pronouncement: “its additional obligation to notify the court of changes in . . . economic circumstances is more burdensome, and thus conflicts with the district court’s oral pronouncement of the sentence.”
  • For the eight special conditions drawn from the presentence report, the court found ambiguity rather than conflict. The probation officer asked whether the court would “impose the recommended special conditions for sex offenders,” and the court answered “Yes.” The court reasoned that “the sex offender conditions” was “simply a shorthand reference to the recommended special conditions in general” and that those conditions “weave together to detect and prevent future sexual misconduct.”
  • The omission of the sex counseling treatment recommendation from the written judgment was a clerical error: “The district court explicitly recommended that Vacchino receive counseling but neglected to include it in the written judgment. We see no reason besides oversight.”
  • Judge Oldham concurred, reiterated his long-standing objection to the Diggles framework, writing: “As I have said many times, our Diggles ‘precedents are deeply flawed.'” He criticized the Diggles remedy—directing a victory for the defendant whenever the oral pronouncement omits something later in the written judgment—as one that “makes no sense and cannot be reconciled with federal law or the history and tradition of criminal sentencing,” and called on the court to reconsider the matter en banc.

• Bonin v. Sabine River Authority of Texas, 25-40410, appeal from E.D. Tex.
  • Southwick, J. (King, Southwick, Haynes) (no oral argument), expert witness, taking
  • Affirming striking of plaintiffs’ experts’ affidavits and summary judgment dismissal of plaintiffs’ claims arising from flooding of their lands by operation of a dam and adjacent spillways.
  • In March 2016, a record-breaking storm dumped 20–25 inches of rain in 31 hours on the Toledo Bend Reservoir area, producing inflows exceeding a 500-year flood. The Sabine River Authority of Texas and the Sabine River Authority of Louisiana opened nine spillways to prevent dam overtopping. Over 700 downstream landowners suffered flood damage and brought a § 1983 takings claim. The plaintiffs’ key expert evidence relied on discharge figures from a graduate student’s master’s thesis, and untimely expert affidavits were struck twice by the district court.
  • At issue on appeal were (1) whether the district court abused its discretion in striking and refusing to reconsider untimely expert affidavits; and (2) whether the plaintiffs created a genuine dispute of material fact on causation—specifically, whether the dam subjected their lands to flooding above what would have occurred without the dam—a necessary element of a Fifth Amendment temporary-flooding takings claim under Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012).
  • On the expert affidavits, the court held that the plaintiffs violated two court orders by resubmitting previously struck material without seeking permission, and that allowing the affidavits “at the final hour” would cause “severe prejudice” because the defendants “would then be required to re-do expert designations and briefings . . . thereby prolonging the nearly six-year-old case.”
  • On causation, the court held that Arkansas Game is “best read to stand for the proposition that causation is a necessary prerequisite for a Takings Clause claim” and that its absence is “‘more than sufficient to dispose’ of a takings claim.” The plaintiffs’ only surviving expert evidence used a 75,000 cfs no-dam discharge figure drawn entirely from the excluded master’s thesis; without it, “the conclusion is unsubstantiated.” Alternative historical data offered “numerous other equally plausible logical inferences” insufficient to create a genuine factual dispute.
  • The court concluded: “[T]here is a level of conclusoriness below which an affidavit must not sink if it is to provide the basis for a genuine issue of material fact. We conclude the Rimkus Report sits below that level.”

• Prado-Majano v. Blanche, 25-60040, on petition for review of BIA order
  • Engelhardt, J. (Richman, Engelhardt, Wilson) (oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order denying motion to reopen.
  • Moises Alexander Prado-Majano, a native of El Salvador and former MS-13 member (forcibly tattooed upon leaving), entered the U.S. without admission in May 2022. After removal proceedings and multiple motions, his father-in-law, Elmer Canales Rivera (“El Crook de Hollywood”), a high-ranking MS-13 official, was arrested and extradited to the United States. Prado-Majano filed an untimely motion to reopen, arguing his father-in-law’s arrest constituted changed country conditions and requesting equitable tolling based on ineffective assistance of counsel. The Board denied the motion.
  • At issue on appeal were (1) whether the arrest and extradition of petitioner’s father-in-law constituted “changed country conditions” in El Salvador excepting the 90-day time bar for motions to reopen under 8 U.S.C. § 1229a(c)(7)(C)(ii); and (2) whether the Board abused its discretion in declining to equitably toll the filing deadline.
  • The court held that the father-in-law’s arrest represented a change in Prado-Majano’s personal circumstances, not a nationwide change in El Salvador’s conditions. Evidence submitted depicted conditions in El Salvador substantially similar to those described at the original removal hearing—”incremental changes which are insufficient to show changed country conditions.”
  • On equitable tolling, Prado-Majano “failed to explain how counsel’s alleged ineffective assistance prevented him from timely seeking reopening with the Board, when counsel stopped representing him almost a year prior to him filing the motion.” As for other asserted grounds (pro se status, language barrier, limited access to his file), Prado-Majano “submitted no relevant evidence” supporting them, so the Board did not abuse its discretion in not considering bare assertions.

• United States ex rel. Conyers v. Kellogg Brown & Root, Inc., 25-20194, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), False Claims Act, attorneys’ fees
  • Affirming denial of attorneys’ fees in False Claims Act qui tam claim.
  • Bud Conyers, a veteran who drove supply convoys for KBR in Iraq in 2003, was dismissed after reporting a kickback scheme. He filed a qui tam suit under the False Claims Act in 2006, alleging KBR employees used mortuary trailers for supply delivery, received kickbacks, and billed the government for prostitutes. The Government intervened in 2013 but ultimately dropped Conyers’ original claims. In 2022, KBR settled the Government’s separate claims for over $13 million; Conyers received no relator’s share. After the Fifth Circuit’s prior decision in Conyers I, 108 F.4th 351 (5th Cir. 2024), held he was not entitled to a share of proceeds, Conyers renewed his motion for attorney fees alone.
  • At issue on appeal was whether a qui tam relator who did not receive a relator’s share of proceeds is nonetheless entitled to attorney fees under 31 U.S.C. § 3730(d)(1).
  • The court applied the “rule of the last antecedent” to the phrase “such person” in § 3730(d)(1), concluding it refers to a person who both brought an action in which the government intervened and received payment from its proceeds. “Consequently, a relator may only recover attorney fees and costs if he received a relator’s share of the proceeds of the action or settlement.”
    • The court noted alignment with the Sixth Circuit (Bryant) and the First Circuit (Lovell), both of which held that “the plain meaning of the statute thus provides that only persons who receive a relator’s share may recover attorney fees.” The Sixth Circuit further observed that “the word ‘also’ presuppose[d] the receipt of something in addition to the attorney fees.”
    • Conyers’ cited cases were distinguishable because in each, the relator had received a share before seeking fees. Because the statute’s text was unambiguous, the court declined to consider legislative history.

Unpublished decisions

• United States v. Glover, 25-11124, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Herrera-Gardea, 25-11208, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Martinez-Loyola, 25-50640, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming enhancement of sentence for illegal reentry based on prior convictions, as foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and its progeny, including United States v. Pervis, 937 F.3d 546 (5th Cir. 2019).

• Nairne v. Landry, 24-30115, appeal from M.D. La.
  • per curiam (Haynes, Ramirez; on quorum because Judge Dennis now inactive senior status) (oral argument), Voting Rights Act
  • On rehearing of August 14, 2025, decision, after placing the case in abeyance pending the Supreme Court’s decision in Louisiana v. Callais, vacating prior opinion and the district court’s decision, and remanded for the district court to reconsider the case in light of the Supreme Court’s ruling.

• United States v. Parker, 25-11161, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Ramirez) (no oral argument), criminal
  • Affirming revocation of supervised release.
  • At issue was whether 18 U.S.C. § 3583(g)—which mandates revocation of supervised release and imprisonment for violations including refusal to comply with drug testing or possession of a controlled substance—is unconstitutional under United States v. Haymond, 588 U.S. 634 (2019), for denying a jury trial and proof beyond a reasonable doubt.
  • The court held the argument is foreclosed by United States v. Garner, 969 F.3d 550 (5th Cir. 2020), which rejected the claim that § 3583(g) is unconstitutional under Haymond.

• United States v. Flores, 25-10662, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Flores argued the court made erroneous factual findings regarding extraordinary and compelling circumstances (including allegations of sexual abuse and retaliation), improperly weighed her delay in reporting abuse, and gave undue weight to an alleged cartel tie and drug quantity when considering the § 3553(a) factors
  • The court found that the district court conducted an independent review of the § 3553(a) factors, relied on the record, and determined that a sentence reduction would not reflect the seriousness of Flores’s conduct, promote respect for the law, provide just punishment, deter criminal conduct, or protect the public. Flores’s disagreement with the balancing of factors was insufficient to show an abuse of discretion under Chambliss, 948 F.3d at 694. Because the § 3553(a) analysis provided a sufficient basis for affirmance, the court declined to reach the extraordinary-and-compelling-reasons issue under United States v. Rollins, 53 F.4th 353 (5th Cir. 2022)

• United States v. Jimenez, 25-40530, appeal from E.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Jimenez, 25-40530, appeal from E.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.