Take the Fifth

Designated for publication

• United States v. Phillips, 25-30067, appeal from W.D. La.
  • Wilson, J. (King, Higginson, Wilson) (oral argument), criminal, sentencing
  • Affirming 60-month sentence on conviction of conspiracy to distribute and possess with intent to distribute marijuana.
  • James Troy Phillips led police on a high-speed car chase reaching over 135 miles per hour to evade a traffic stop because he had a large quantity of marijuana in his car. During the chase, he struck another vehicle. After his arrest, Phillips pleaded guilty to conspiracy to distribute and possess with intent to distribute marijuana. At sentencing, he argued that the court should apply the safety valve under 18 U.S.C. § 3553(f) and disregard the five-year statutory minimum. The district court denied safety valve relief and imposed a 60-month sentence but did not initially explain its reasoning.
  • At issue on appeal was whether Phillips’s high-speed car chase constituted the “use [of] violence” within the meaning of § 3553(f)(2), thereby disqualifying him from sentencing safety valve relief.
  • The court adopted the reasoning of the Seventh Circuit’s decision in United States v. Harden, 866 F.3d 768 (7th Cir. 2017), which held that a defendant’s high-speed vehicular flight from law enforcement “poses a very real threat of physical injury” to persons in the area and to pursuing officers, qualifying as “violence” under a “common understanding of what constitutes violent conduct.”
  • The court found this case even clearer than Harden: Phillips reached speeds “in excess of 135 mph”—far exceeding the 21 mph over the limit in Harden—and also struck another vehicle during his flight. As the court put it, “[i]t was only by sheer luck or divine intervention that Phillips did not end up injuring any other drivers, the pursuing officers, or himself.”
  • Because the safety valve did not apply, Phillips’s 60-month sentence reflected the statutory minimum and could not be deemed excessive. The court also noted that it did not need to reach the district court’s alternative holding that Phillips’s reckless driving amounted to “possess[ing] a . . . dangerous weapon” under the statute.

• Ruffin v. BP Exploration & Production, Inc., 23-30854, appeal from E.D. La.
  • Elrod, C.J. (Elrod, Higginbotham, Southwick) (oral argument), toxic torts, expert witness
  • Denying petition for en banc review of May 12, 2025, panel opinion, but withdrawing that opinion and substituting a new one, affirming exclusion of plaintiff’s expert testimony in Deepwater Horizon-cleanup-related toxic tort action, and affirming summary judgment for defendant.
  • Floyd Ruffin worked as a shoreline clean-up worker for five months following the 2010 Deepwater Horizon oil spill and was diagnosed with prostate cancer five years later. He sued BP under the Deepwater Horizon medical-benefits class action settlement’s “Back-End Litigation Option” (BELO), alleging that exposure to crude oil caused his cancer. Ruffin’s causation expert, Dr. Benjamin Rybicki, a genetic and molecular epidemiologist, testified that Ruffin was exposed to polycyclic aromatic hydrocarbons (PAHs) and that one specific PAH—benzo(a)pyrene—is carcinogenic. However, Rybicki acknowledged he did not identify a specific level of PAH exposure capable of causing prostate cancer and did not specifically claim Ruffin was exposed to benzo(a)pyrene. The district court excluded Rybicki’s testimony under Daubert and granted summary judgment to BP.
  • At issue on appeal were (1) whether the Fifth Circuit should adopt a rule requiring a toxic-tort causation expert to identify a specific quantitative “dose” of chemical exposure necessary to cause the plaintiff’s injury in order to be admissible under Federal Rule of Evidence 702 and Daubert; and (2) whether Rybicki’s testimony was otherwise admissible to prove general causation—i.e., that the chemicals Ruffin was exposed to are capable of causing prostate cancer in the general population.
  • The court rejected BP’s argument that an expert must identify the precise minimum “dose” of a chemical capable of causing injury, noting that Fifth Circuit precedent does not require “a mathematically precise table equating levels of exposure with levels of harm.” Instead, “to support general causation, an expert must proffer a reliable opinion that the chemical at issue can cause the disease at exposure levels that a human could realistically have experienced,” and that “does not necessarily require that an expert generate a numerical output like ‘FORTY-TWO'”—a wry nod to Douglas Adams’s The Hitchhiker’s Guide to the Galaxy.
  • Despite rejecting the dose rule, the court found Rybicki’s testimony fatally flawed for two independent reasons. First, although Rybicki testified broadly about “PAHs,” the only PAH he identified as a human carcinogen was benzo(a)pyrene—and neither he nor Ruffin claimed that Ruffin was actually exposed to benzo(a)pyrene specifically. PAHs comprise more than 200 different chemicals, and benzo(a)pyrene’s presence in any given mixture varies. Second, even assuming benzo(a)pyrene was the chemical at issue, Rybicki failed to establish a link between it and prostate cancer specifically—as opposed to cancer generally—because his association with prostate cancer relied on studies about PAHs broadly, not benzo(a)pyrene in particular.
  • Without admissible general-causation testimony, Ruffin could not establish the causation element of his tort claim, making summary judgment appropriate. The court also noted that Ruffin’s alternate expert, Dr. James Clark, did not evaluate a connection between PAHs in oil and prostate cancer and conceded he offered no specific-causation opinion; Ruffin forfeited that issue by failing to brief it.

Unpublished decisions

• United States v. Hernandez Villa, 25-50725, appeal from W.D. Tex.
  • per curiam (Graves, Ho, Douglas) (no oral argument), criminal, compassionate release
  • Dismissing as frivolous appeal of denial of defendant’s sixth motion for compassionate release.
  • The district court properly determined that Hernandez Villa failed to show he did not pose a danger to others and that the § 3553(a) factors did not support early release. His arguments amounted to mere disagreement with the district court’s balancing of those factors, which is not a sufficient ground for reversal.

• Lopez v. Ramirez, 25-40170, appeal from S.D. Tex.
  • per curiam (Willett, Wilson, Douglas) (oral argument withdrawn), appellate jurisdiction
  • Dismissing for lack of appellate jurisdiction appeal of order denying motion to dismiss and referring case to mediation.
  • At issue was whether the collateral order doctrine supplies appellate jurisdiction over a district court order that denied defendants’ immunity-based motion to dismiss without prejudice as an incident of referring the case to mediation, where the court simultaneously canceled all scheduling deadlines and preserved the defendants’ right to refile the motion after mediation concluded.
  • Unlike a conclusive denial of immunity, the mediation order here did not represent the trial court’s conclusion that immunity does not apply, imposed no litigation burdens, suspended discovery and case-management deadlines, and expressly preserved defendants’ right to refile their immunity-based motion. Because the order neither rejected the immunity defense nor subjected defendants to the very burdens immunity exists to prevent, it was not an appealable “final decision” under 28 U.S.C. § 1291 or the collateral order doctrine.
  • The court distinguished Carswell v. Camp (which permitted discovery against defendants despite an unresolved immunity claim) and Ashley v. Clay County (which involved jurisdictional governmental immunity and compelled arbitration that eliminated the opportunity for a pretrial immunity ruling). In a footnote, the court noted its continued concern that the district court has yet to provide the reasoned, individualized immunity analysis required by its earlier mandates.

• United States v. Walters, 25-60203, appeal from S.D. Miss.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming 216-month sentence for conspiracy to commit healthcare fraud and money laundering, rejecting argument that defendant was eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 821 to the Sentencing Guidelines, including eligibility under U.S.S.G. § 4C1.1 and that the court could reduce below the amended range given a prior substantial-assistance departure.
  • The district court’s 216-month sentence, which resulted from a downward departure, was not “based on” any guidelines range subsequently lowered by Amendment 821. Because those ranges were ultimately “scrapped” and did not play a relevant part in the final sentencing framework, Walters was ineligible for a § 3582(c)(2) reduction.

• Global Advantech Resources Limited v. Brown, 25-20413, appeal from S.D. Tex.
  • per curiam (Stewart, Engelhardt, Douglas) (no oral argument), arbitration
  • Affirming the denial of defendant’s motion to compel arbitration.
  • At issue was whether defendants waived their right to compel arbitration under the London Court of International Arbitration (LCIA) Rules by substantially invoking the judicial process over a two-year litigation period—including filing two Rule 12(b) motions seeking dismissal with prejudice on merits-based grounds, filing an answer with 32 affirmative defenses (none referencing arbitration), conducting merits discovery, and demanding a jury trial—before first asserting a right to arbitrate.
  • Under the totality of the circumstances, the Brown Defendants knowingly relinquished their arbitration rights by acting inconsistently with that right. They twice sought dismissal with prejudice without any mention of arbitration, filed an answer asserting 32 affirmative defenses without reserving arbitration, conducted merits-based discovery (including deposing the opposing party’s corporate representative), and waited over two years before asserting a right to arbitrate.
  • The court also criticized the district court for failing to provide even a summary explanation of the legal and factual bases for its one-paragraph denial order, noting that meaningful appellate review requires some statement of reasoning.

• United States v. Hutchinson, 25-50839, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Bland, 25-50838, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Vacating challenged special condition requiring 120 days’ residence in a residential reentry center and remanding with instructions to conform the written judgment to the oral pronouncement.
  • The discrepancy was a “conflict” (not a mere ambiguity) because the written judgment imposed a more burdensome requirement than the oral sentence, eliminating the defendant’s ability to avoid reentry-center placement by securing housing. Under established precedent, the oral pronouncement controls.

• United States v. Ramos-Bernhard, 25-50643, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry, holding the constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which persists as a narrow exception permitting judges to find the fact of a prior conviction.

• Pamon v. United States Postal Service, 26-10010, appeal from N.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), personal tort, sovereign immunity, claim-splitting
  • Affirming dismissal of pro se wrongful death suit.
  • At issue were (1) whether a pro se wrongful death suit against the USPS and federal supervisors was barred by sovereign immunity where the plaintiff failed to exhaust administrative remedies under the Federal Tort Claims Act; and (2) whether claims against the plaintiff’s union and union steward were barred by the claim-splitting doctrine because they arose from the same operative facts as a pending earlier-filed suit asserting different theories of recovery.
  • The court held that: (1) claims against the United States and USPS were properly dismissed for sovereign immunity, but should be without prejudice (as jurisdictional dismissals cannot be on the merits); and (2) claims against the union and steward were properly dismissed under the claim-splitting doctrine, but without prejudice to the plaintiff’s right to attempt to assert those claims in the earlier-filed suit.

• Isidore v. Westport Linen Services, 25-30745, appeal from E.D. La.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), employment discrimination
  • Affirming dismissal of employment discrimination claim.
  • At issue on appeal was whether an employment discrimination complaint under 42 U.S.C. § 1981 satisfied the Twombly/Iqbal pleading standard where it alleged below-market wages and unsafe working conditions but offered only conclusory assertions of racial motivation without factual support.
  • The complaint’s allegations were “uniformly conclusory” and failed to plead sufficient facts on the ultimate elements of the § 1981 claim—particularly facts suggesting disparate treatment was because of the plaintiff’s race. The court rejected arguments that the district court improperly required a prima facie case, failed to draw favorable inferences, or erred by dismissing without leave to amend (plaintiff never sought amendment below).

• United States v. Dickerson, 25-60552, appeal from S.D. Miss.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming a within-Guidelines sentence of 24 months’ imprisonment, ordered to run consecutively to undischarged state sentences, on conviction of threatening a federal officer.
  • Under U.S.S.G. § 5G1.3(a), a consecutive sentence is required when the offense was committed while serving a term of imprisonment. The sentence was presumptively reasonable as within-Guidelines, and the district court properly balanced mitigating factors against the “very, very serious” offense conduct—which included threats to kill a federal magistrate judge and bomb a courthouse.

• United States v. Carey, 25-30451, appeal from W.D. La.
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), criminal, sentencing
  • Affirming application of a four-level sentencing enhancement under U.S.S.G. § 3B1.1(a) (leader/organizer of criminal activity involving five or more participants) to a defendant who pleaded guilty to conspiracy to possess with intent to distribute 50 grams or more of methamphetamine.
  • The record supported the finding that Carey played a significant role in leading and organizing the drug enterprise and directed coconspirators. As to the five-participant requirement, which was reviewed only for plain error because Carey did not preserve the objection below, the record (including the plea agreement and sentencing hearing) supported the court’s finding and Carey failed to show clear-or-obvious error.

• United States v. Perez-Perez, 26-30035, appeal from W.D. La.
  • per curiam (Smith, Willett, Ramirez) (oral argument withdrawn), criminal, pretrial detention
  • Affirming denial of pretrial release.
  • At issue was whether the district court erred in denying pretrial release where the defendant—an undocumented noncitizen charged with assaulting a federal officer—argued that no evidence supported a finding of flight risk and that the court improperly shifted the burden by requiring him to prove he would not flee.
  • The evidence as a whole supported pretrial detention: Perez-Perez attempted to flee and physically resisted arrest (including biting an officer), had been living in the United States without authorization for three years with no known ties to the community, and could produce no identification. Although the district court noted that Perez-Perez had not contradicted the government’s evidence, the record as a whole independently supported the court’s conclusions regardless of any burden-shifting concern.

• Hilliard v. Security Stiles Unit, 25-40524, appeal from E.D. Tex.
  • per curiam (Jones, Richman, Ramirez) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s claims.
  • At issue on appeal was whether a Texas state prisoner subject to the “three-strikes” bar of 28 U.S.C. § 1915(g) could proceed in forma pauperis on appeal from the dismissal of his civil rights complaint by showing imminent danger of serious physical injury.
  • Hilliard had been transferred away from the unit where the alleged events occurred and thus could not establish that he was under imminent danger of serious physical injury at the time of filing. The court also denied his motion for appointment of counsel and warned that future frivolous filings could result in additional sanctions.