Take the Fifth

Designated for publication

• United States v. Duran-Gonzalez, 22-51055, appeal from W.D. Tex.
  • Elrod, C.J. (Elrod, Willett, Wilson) (oral argument), criminal, sentencing, Sixth Amendment
  • Affirming application of career-criminal sentencing enhancement even though he had no trained interpreter available during the prior criminal proceedings on which the enhancement was based.
  • Heraclio Duran-Gonzalez had two prior federal convictions for conspiring to possess marijuana with intent to distribute (2014 and 2015 in New Mexico). While on supervised release, he was arrested in Texas for possession with intent to distribute 50+ kilograms of marijuana and pleaded guilty. The district court applied the career-criminal enhancement under U.S.S.G. § 4B1.1(b) based on the two prior convictions, sentencing him to 151 months. Duran-Gonzalez argued his prior convictions were invalid because his primary language is Tarahumara—an unwritten Uto-Aztecan language—and no trained interpreter was present at those proceedings.
  • At issue on appeal was whether the absence of an interpreter at prior proceedings amounts to a complete denial of counsel, thereby permitting a collateral attack on those convictions under Custis v. United States, 511 U.S. 485 (1994).
  • Under Custis, a defendant may collaterally attack prior convictions used to enhance a sentence only if those convictions resulted from a “failure to appoint counsel at all.” Even assuming lack of an interpreter could amount to ineffective assistance of counsel in some circumstances, “it is not a complete denial of counsel.”
  • Multiple sister circuits (Third, Seventh, Eighth, Ninth, and Tenth) have likewise applied the Custis rule to bar collateral challenges based on interpreter absence, and the court was “unaware of any holding to the contrary.”
  • The court also noted that the within-Guidelines sentence was presumptively reasonable and Duran-Gonzalez did not meet his burden to show it was unreasonable.

• United States v. James, 25-50144, appeal from W.D. Tex.
  • Willett, J. (Willett, Wilson, Douglas) (oral argument), criminal, sufficiency of evidence, jury instructions, sentencing, Ex Post Facto Clause
  • Affirming conviction for attempted murder; but vacating 200-month sentence and remanding for resentencing.
  • In June 2000, an unknown man entered M.M.’s barracks room at Fort Hood, sexually assaulted her, and stabbed her repeatedly—including twice in the neck, missing major blood vessels by “mere millimeters.” The case went cold for nearly two decades until forensic genealogy matched DNA from semen found on M.M.’s mattress cover to a close genetic relative of Allen James, leading to his identification. A jury convicted James of attempted murder under 18 U.S.C. § 1113, and the district court sentenced him to 200 months after varying upward from a Guidelines range of 108–135 months calculated under the 2023 Guidelines Manual.
  • At issue on appeal were (1) whether sufficient evidence supported a finding of specific intent to kill; (2) whether the jury instructions permitted conviction without a specific-intent finding; and (3) whether use of the 2023 Guidelines Manual rather than the 1998 Manual (in effect when the offense occurred) violated the Ex Post Facto Clause.
  • On sufficiency, the court found, “Repeated stabbings, wounds to the neck, threats to life, and continued violence after resistance ceased permitted a rational finding that James intended to kill.” The court rejected James’s argument that the evidence showed only intent to rape: “the two intents are not mutually exclusive.”
  • On the jury instructions issue, the court held that James’ proposed instruction was materially the same instruction he now challenges. Under the invited-error doctrine, “a defendant who asks for an instruction will not be heard to complain about the instruction on appeal.” The court also found no manifest injustice because identity—not intent—was the genuinely contested issue at trial.
  • On the Ex Post Facto sentencing issue, the court held, under Peugh v. United States, 569 U.S. 530 (2013), the Ex Post Facto Clause is violated “when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range.” The Government conceded plain error. The proper 1998 Manual would have produced a range of 63–78 months rather than 108–135 months.

• United States v. Squire, 25-30324, appeal from E.D. La.
  • Clement, J. (Clement, Southwick, Engelhardt) (oral argument withdrawn), criminal, Second Amendment
  • Affirming conviction of possession of a firearm by a felon, rejecting as-applied Second Amendment challenge.
  • Curtis Squire was found in possession of a handgun inside his home after police searched it pursuant to a warrant related to a New Orleans shooting. He was charged under 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). His predicate felonies included conspiracy and possession with intent to distribute heroin, along with other offenses. He pleaded guilty without a plea agreement after his motion to dismiss was denied and was sentenced to 52 months.
  • At issue on appeal was whether § 922(g)(1) is unconstitutional as applied to a convicted drug trafficker who possesses a firearm inside his home, given the Second Amendment’s heightened protection of self-defense in the home under Heller, Bruen, and Rahimi.
  • At Bruen Step One, the plain text of the Second Amendment covers Squire’s conduct, so § 922(g)(1) as applied to him is “presumptively” protected. At Step Two, the government carried its burden with historical analogues—English “going armed” laws, loyalty-oath-based disarmament during the Revolution, and laws disarming religious minorities—demonstrating “Founding-era governments took guns away from those perceived to be dangerous.”
  • Although the court acknowledged that some historical laws carved out home possession, “our historical tradition was not limited to public carry regulations but allowed broad disarmament of classes of people deemed dangerous.” Squire’s drug-trafficking convictions place him in “a class of dangerous felons that our regulatory tradition permits legislatures to disarm.”
  • The court emphasized that its holding is “narrow”: “We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order.”

• Von Derhaar v. Watson, 25-30399, appeal from E.D. La.
  • Smith, J. (Smith, Willett, Ramirez) (no oral argument), § 1983, Fourth Amendment, qualified immunity
  • Affirming denial of qualified immunity to police officer defendant arising from order to crime-lab employee to take a drug test.
  • Karl Von Derhaar, a civilian NOPD crime-lab employee, was visited at home by officers conducting a wellness check. When Von Derhaar asked to stay at his house rather than go take a drug test, officers called Lt. Darryl Watson, who ordered them to “tell him he’s being put back on the clock, he’s being ordered to come into work to take this test.” Von Derhaar went to the Public Integrity Bureau and ultimately resigned rather than submit to the drug test. He sued Watson under 42 U.S.C. § 1983 for violating his Fourth Amendment rights.
  • At issue on appeal was whether Watson is entitled to qualified immunity for ordering the warrantless seizure of a civilian employee from his home to take a drug test.
  • Watson was personally involved in the constitutional deprivation because he gave “a command, signal, or any other form of direction to the officers that prompted the detention.” The court had already held in Von Derhaar v. Watson, 109 F.4th 817, 829–30 (5th Cir. 2024), that the actions ordered by Watson constituted an unlawful seizure.
  • “It is clearly established that a seizure occurs where ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'” Watson knew Von Derhaar wished to remain home, yet ordered officers—without a warrant or exigent circumstances—to compel him to the PIB for a drug test. These facts make Watson’s conduct “objectively unreasonable in light of clearly established Fourth Amendment law.”

• Herbert v. St. James Parish School Board, 25-30449, appeal from E.D. La.
  • Stewart, J. (Stewart, Engelhardt, Douglas) (oral argument), Individuals with Disabilities Education Act, disability discrimination
  • Affirming dismissal of plaintiff’s discrimination and IDEA Act claims on behalf of her disabled child.
  • Shirah Herbert enrolled her disabled child, D.H., in Cypress Grove Montessori Academy, a school operated by the St. James Parish School Board, by signing an affidavit that she and D.H. resided in St. James Parish. Herbert actually resided in St. John the Baptist Parish. After D.H. was found eligible for special education services, the School Board discovered the residency issue and disenrolled D.H. Herbert sought administrative relief, but an ALJ determined D.H. was not a resident and dismissed her due process complaint for lack of subject-matter jurisdiction. Herbert then sued in federal court under the IDEA, the Rehabilitation Act, and the ADA.
  • At issue on appeal were (1) whether the district court erred in dismissing Herbert’s disability-discrimination and retaliation claims at the pleading stage; (2) whether the district court properly reviewed the ALJ’s decision de novo; (3) whether residency bars relief under the IDEA; and (4) whether the district court abused its discretion in denying stay-put relief and compensatory education.
  • Herbert’s ADA/Rehabilitation Act claim failed because she did not plead facts showing D.H. met “essential eligibility requirements” for School Board services—namely, residency. Under Louisiana law, a student’s residence for IDEA purposes is determined by the parent’s legal residence, and Herbert conceded she resided in St. John the Baptist Parish.
  • The IDEA obligates the school district in which a child resides to provide a FAPE. “Herbert readily admits that she resides in St. John [the Baptist Parish], and that she has not relinquished custody of D.H. It follows, then, that D.H. is a resident of St. John [the Baptist Parish] under Louisiana law, and that St. John [the Baptist Parish] is the local education authority responsible for providing him with a FAPE.”
  • The district court did not abuse its discretion in denying the stay-put order because, once the ALJ determined she lacked jurisdiction and terminated the adjudication, the stay-put order was voided. Compensatory education was properly denied because Herbert failed to establish any IDEA violation—she enrolled D.H. in a district where he did not reside despite being informed of the residency requirement.

Unpublished decisions

• United States v. Williams, 24-50745, c/w 24-50769, appeal from W.D. Tex.
  • per curiam (Wiener, Haynes, Graves) (oral argument withdrawn), criminal, jury instructions, sufficiency of evidence
  • Affirming conviction of RICO and firearms charges.
  • At issue on appeal were (1) whether the district court’s jury instructions on 18 U.S.C. § 924(c) firearms charges were plainly erroneous where they referenced “use” or “carrying” rather than “brandishing” or “discharging” as charged in the indictment; and (2) whether the evidence was legally sufficient to establish a “pattern of racketeering activity” for Alexander’s RICO conspiracy conviction under 18 U.S.C. § 1962(d).
  • The court applied plain-error review to the jury-instruction challenge because defendants failed to object before deliberations, and found no plain error because the charge as a whole properly informed the jury of the indictment’s brandishing/discharging allegations. On sufficiency, the court held that criminal episodes spanning from September 2017 to June 2019—more than a year—satisfied RICO’s continuity requirement, noting that “nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.”

• Jackson v. City of Jackson, Mississippi, 25-60216, appeal from S.D. Miss.
  • Higginson, J. (Richman, Higginson, Oldham) (oral argument), § 1983, standing, amendment
  • Vacating dismissal of § 1983 claim for lack of standing, but affirming 12(b)(6) dismissal and denial of leave to amend.
  • At issue on appeal were (1) whether residents of Jackson, Mississippi, had Article III standing to sue the City over water-system failures; (2) whether the complaint stated a procedural due process claim under 42 U.S.C. § 1983 based on charges for contaminated water with inadequate administrative remedies; and (3) whether denial of leave to amend was proper.
  • The court vacated the dismissal for lack of standing, finding that Appellants alleged concrete economic injuries (purchasing bottled water) fairly traceable to the City’s mismanagement and redressable by a damages award. However, the court affirmed the Rule 12(b)(6) dismissal because Appellants failed to allege constitutionally inadequate process—they actually participated in the City’s administrative process and obtained billing relief, and their amended complaint did not identify a process deprivation distinct from the billing dispute. Also affirmed denial of leave to amend as futile and the decision to decline supplemental jurisdiction over state-law claims.

• United States v. Haynes, 25-11089, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Sullivan v. Feldman, 25-20408, appeal from S.D. Tex.
  • per curiam (King, Higginson, Duncan) (oral argument withdrawn), arbitration, res judicata
  • Affirming judgment confirming arbitration awards.
  • At issue on appeal was whether the district court violated the Fifth Circuit’s mandate in Sullivan I, 132 F.4th 315 (5th Cir. 2025), by entering an amended judgment confirming four conflicting arbitration awards (the largest totaling more than $88 million) before a post-remand arbitration resolved the awards’ res judicata effects on one another.
  • The court held that Sullivan I‘s mandate did not require the post-remand arbitration to precede entry of judgment; the prior opinion contained no discussion indicating that the arbitration must predate the judgment confirming the Jones award. The district court’s amended judgment—which removed a non-party defendant and stayed the case pending the new arbitration—followed both the letter and spirit of the mandate.

• United States v. Melara-Murillo, 25-50644, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.

• KC v. Blanche, 25-60406, petition for review of BIA order
  • per curiam (Jones, Duncan, Douglas) (no oral argument), immigration
  • Denying petition to review BIA order upholding IJ’s denial of claims for asylum, withholding of removal, and CAT protection.
  • At issue on appeal were (1) whether the BIA’s adverse credibility determination was supported by specific, cogent reasons; and (2) whether the petitioner’s due process rights were violated by the denial of counsel and denial of consolidation.
  • The agency’s adverse credibility finding was supported by the record, and because the petitioner filed no nontestimonial evidence, the credibility determination was dispositive of all claims for asylum, withholding of removal, and CAT protection. The petitioner’s due process claims failed for lack of a showing of substantial prejudice.

• Haddix v. Commissioner of Internal Revenue, 25-60540, appeal from U.S. Tax Court
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), tax law
  • Affirming tax court’s dismissal of the petition for failure to prosecute after petitioners failed to appear for trial and raised only misconduct allegations rather than contesting the Commissioner’s deficiency determination.

• United States v. Cervantes, 25-11154, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming constitutionality of conviction of possession of a firearm by a felon.
  • The facial Second Amendment challenge fails under United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), and the as-applied challenge fails because Cervantes’s prior felony convictions (evading arrest in a vehicle and burglary of a vehicle) are valid § 922(g)(1) predicates. The Commerce Clause challenge is foreclosed by United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013).

• ChampionX Corp. v. AIG Insurance Co. of Canada, No. 25-20030, appeal from S.D. Tex.
  • per curiam (Elrod, Clement, Haynes) (oral argument), insurance, standing, amendment
  • Affirming in part, but vacating and remanding in part summary judgment dismissal of claims under insurance policy.
  • At issue on appeal were (1) whether the district court correctly granted summary judgment finding ChampionX lacked contractual standing to sue under insurance policies issued to its predecessor entity, Ecolab; (2) whether ChampionX could pursue standalone declaratory relief as an “interested party”; and (3) whether the district court erred in denying leave to amend to add subsidiary plaintiffs who were parties to the policies.
  • The court affirmed summary judgment against ChampionX because a parent company’s related financial losses do not create standing for declaratory relief absent rights under the contract itself. However, the court vacated the denial of leave to amend because the defendants failed to justify the district court’s bare futility finding—the proposed additional plaintiffs (subsidiaries that were parties to the insurance policies and named defendants in the underlying lawsuit) could plausibly have contractual standing.

• United States v. Hernandez-Limon, 25-50844, appeal from W.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, due process
  • Affirming conviction of illegal reentry.
  • At issue on appeal was whether the government’s conduct in executing an arrest warrant—including deployment of an armored vehicle, a camera-equipped robot, flash-bang grenades, and plastic rounds during a six-hour standoff at the defendant’s home—was so outrageous as to violate due process and require dismissal of the indictment for illegal reentry.
  • The court held the defendant failed to meet the “extremely demanding” standard for outrageous governmental conduct. The agents faced a noncompliant individual with a prior firearms conviction who attempted to flee and refused to surrender; they escalated gradually and took steps to avoid injury. Distinguishing Rochin v. California, 342 U.S. 165 (1952), the court concluded: “That case shocks the conscience. This case does not.”

• Copeland v. Thornton, 25-40513, appeal from E.D. Tex.
  • per curiam (King, Higginson, Duncan) (no oral argument), qualified immunity
  • Affirming qualified immunity dismissal of § 1983 claims.
  • At issue on appeal were (1) whether three Texas state officials (a child-support division director, an assistant attorney general, and a probation officer) were entitled to qualified immunity from a pro se plaintiff’s § 1983 claims alleging violations of substantive due process, procedural due process, equal protection, and the Full Faith and Credit Clause; and (2) whether the district court erred in impliedly denying declaratory relief.
  • The plaintiff failed to allege specific facts showing any defendant violated a constitutional or statutory right—his allegations were conclusory and did not demonstrate a deprivation of a protected interest, lack of rational basis, constitutionally insufficient procedures, or purposeful discrimination. The court also held that the Full Faith and Credit Clause does not give rise to a right vindicable under § 1983. Because the plaintiff failed to establish a constitutional violation, there was no case or controversy to support declaratory relief.

• Lopez-Pineda v. Blanche, 25-60581, petition for review of BIA order
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), immigration
  • Denying in part and dismissing in part petition for review of BIA order denying motion to reopen.
  • At issue on appeal were (1) whether the BIA abused its discretion in declining to equitably toll the motion-to-reopen deadline despite the intervening decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021); (2) whether a deficient notice to appear (NTA) divested the immigration court of jurisdiction; and (3) whether the BIA erred in declining to reopen proceedings sua sponte.
  • Equitable tolling failed because the petitioner did not explain what steps she took in the three years between Niz-Chavez (2021) and her untimely motion (2024), failing the due-diligence prong. The NTA-jurisdiction argument is foreclosed by circuit precedent holding that regulations, not § 1229(a), govern what an NTA must contain. The court dismissed the sua sponte reopening challenge for lack of jurisdiction because there is no legal standard by which to review that discretionary ruling.