Take the Fifth

Unpublished decisions

• James v. Alorica, Inc., 25-11149, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), Title VII, Age Discrimination in Employment Act, employment discrimination
  • Affirming dismissal of employment discrimination claims.
  • At issue on appeal was whether a pro se plaintiff’s Title VII and ADEA claims against True Coverage were properly dismissed for failure to exhaust administrative remedies (no EEOC charge was ever filed), and whether her 42 U.S.C. § 1981 race-discrimination claim against Alorica was properly dismissed for failure to plead discriminatory intent and but-for causation. The court also reviewed the denial of a motion to seal portions of an IFP application.
  • Equitable tolling cannot substitute for never having filed an EEOC charge, so the Title VII/ADEA claims failed for non-exhaustion. The § 1981 claim failed because the complaint alleged adverse employment actions but offered only conclusory assertions connecting them to race. The district court did not abuse its discretion in denying the sealing motion.

• United States v. Hernandez-Mora, 25-40477, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Lozano-Cardenas, 25-40800, appeal from S.D. Tex.
  • per curiam (Southwick, Duncan, Engelhardt) (no oral argument), criminal, appellate jurisdiction, sentence reduction
  • Dismissing for lack of appellate jurisdiction appeal from denial of motion for sentence reduction.
  • At issue on appeal was whether the court had appellate jurisdiction where the notice of appeal specified a denial of a § 3582(c) sentence-reduction motion that was never entered, and the only operative ruling was a magistrate judge’s denial of letter-motions without the parties’ consent to proceed before the magistrate.
  • Under 28 U.S.C. § 1291, appellate courts lack jurisdiction to hear appeals directly from a magistrate judge absent consent, and no such consent was shown. The motion for appointment of counsel was denied as moot.

• United States v. Amaya, 25-20552, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Vitatoe v. KIPP, Inc., 25-20255, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), employment discrimination, Title VII, Americans with Disabilities Act, amendment
  • Affirming dismissal of employment discrimination claims, and denial of motion to amend.
  • At issue on appeal were whether a pro se plaintiff’s Title VII race-discrimination, ADA disability-discrimination, Fourteenth Amendment equal-protection, and federal criminal-statute claims were properly dismissed for failure to state a claim; and whether the district court abused its discretion in denying leave to amend (including proposed joinder of 124 parties) and in denying a motion for sanctions.
  • The complaint consisted of general, conclusory allegations that failed to identify specific acts or omissions attributable to each defendant and did not meet Iqbal/Twombly plausibility standards. Amendment would have been futile, joinder of 124 parties was unnecessary for complete relief, and the sanctions motion was frivolous.

• United States v. Villarreal, 25-11350, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, supervised release
  • Affirming revocation of supervised release, holding that the defendant’s constitutional challenge is foreclosed by United States v. Garner, 969 F.3d 550 (5th Cir. 2020).

• United States v. Kelly, 25-10901, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing, Commerce Clause, Second Amendment
  • Affirming sentence and conviction of possession of a firearm by a felon.
  • At issue on appeal were whether the district court erred in applying an enhanced base offense level under U.S.S.G. § 2K2.1(a)(4)(A) for a felon-in-possession conviction; and whether § 922(g)(1) violates the Commerce Clause or the Second Amendment.
  • Even assuming the guidelines-calculation error, the government showed it was harmless on the record. The Commerce Clause and Second Amendment challenges are foreclosed by binding precedent (Rawls, Alcantar, Diaz).

• Dawes v. City of Dallas, 25-10979, appeal from N.D. Tex.
  • per curiam (King, Higginson, Duncan) (oral argument), municipal liability
  • Affirming summary judgment dismissal of Monell failure-to-train claims arising from fatal shooting.
  • At issue on appeal was whether a Monell failure-to-train claim under 42 U.S.C. § 1983 can survive summary judgment when the underlying constitutional violation—excessive force by officers who fatally shot a sleeping van occupant—was not clearly established at the time of the incident.
  • Under Bustillos v. El Paso County Hospital District, 891 F.3d 214 (5th Cir. 2018), plaintiffs cannot establish deliberate indifference for a failure-to-train claim absent clearly established law. The court was bound by this precedent under the rule of orderliness.

• Vasquez-Barrera v. Blanche, 25-60335, petition for review of BIA order
  • per curiam (Stewart, Engelhardt, Douglas) (oral argument), immigration
  • Denying in part and granting in part Salvadoran citizen’s petition for review of BIA order upholding denial of asylum and withholding of removal and denying deferral of CAT relief.
  • At issue on the petition for review were (1) whether the BIA correctly applied the serious nonpolitical crime bar to deny asylum and withholding of removal to a bisexual Salvadoran man convicted of “Terrorist Organizations to the detriment of the Salvadoran State”; (2) whether the BIA erred in denying deferral of removal under the Convention Against Torture (CAT) by finding that the petitioner failed to demonstrate governmental acquiescence to torture by a Salvadoran police officer who repeatedly beat and extorted him; and (3) whether the IJ violated due process by declining to certify an expert witness and by exhibiting alleged bias.
  • The petition was denied in part and granted in part and remanded. The BIA did not err in applying the serious nonpolitical crime bar because the petitioner failed to corroborate his claim of innocence or coerced plea and the conviction itself provided “serious reasons to believe” he committed the crime. However, the BIA erred in its CAT analysis by requiring proof that the Salvadoran government “as a whole” would condone torture; under Garcia v. Holder, a public official acting under color of law (here, Officer Gutierrez in uniform with fellow officers) need not separately show state acquiescence. The BIA also failed to meaningfully consider corroborating affidavits from the petitioner’s mother, partner, and business associate. No due process violation occurred from the IJ’s refusal to certify an expert or from allegedly hostile treatment of counsel. The matter was remanded to the BIA for further proceedings on CAT eligibility under the proper legal standard.

• United States v. Garcia, 25-40505, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Mata, 25-50726, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (now § 2K2.1(b)(7)(B)) for using or possessing a firearm in connection with a drug-trafficking felony, where the defendant argued the predicate offense was simple possession rather than trafficking.
  • Three facts supported the enhancement: (1) a pending state charge for manufacture or delivery of a controlled substance, which alone suffices under Bass; (2) Mata’s admission that he had been selling methamphetamine since his release from prison and carried the gun for protection during sales; and (3) a meeting arranged with an undercover detective that, given the course of dealing, could reasonably be inferred as another sale.

• Montero v. Commissioner of Internal Revenue, 26-60167, appeal from U.S. Tax Court
  • per curiam (King, Haynes, Ho) (no oral argument), tax, sanctions
  • Affirming Tax Court’s upholding of the IRS’s imposition of a frivolous-filing penalty for tax year 2020, and imposition of a $25,000 sanction for advancing a frivolous position (petitioner’s repeated assertion that his salary from Dell is not taxable income).
  • The court noted Montero is a serial frivolous filer whose arguments have been repeatedly rejected. The maximum $25,000 sanction was not an abuse of discretion given his “extensive history advancing groundless arguments.”

• United States v. Antunez-Perez, 25-50825, c/w 25-50830, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming sentencing on illegal reentry and revocation of supervised release.
  • At issue on appeal was whether the district court plainly erred by (1) insufficiently explaining its decision to run consecutive sentences for illegal reentry and a supervised-release revocation, (2) imposing a term of supervised release on a deportable alien, and (3) considering prohibited retributive sentencing factors in setting the supervised-release term.
  • The record showed the district court considered the § 3553(a) factors and its explanation applied to the consecutive-sentence decision. A reference to “a just sentence” was not the same as the prohibited factor of “just punishment,” and the court’s stated rationale—deterring future criminal conduct given three illegal-reentry convictions—provided a sufficient particularized justification for supervised release.

• United States v. Nourian & Rydberg, 25-10365, appeal from N.D. Tex.
  • per curiam (Haynes, Higginson, Ho) (oral argument), criminal, sufficiency of evidence, sentencing, Seventh Amendment
  • Affirming conviction and sentence for conspiracy to commit healthcare fraud, substantive healthcare fraud, money laundering, and conspiracy to defraud the United States.
  • At issue on appeal were (1) sufficiency of the evidence for convictions arising from a compound-drug prescription scheme targeting federal workers’ compensation patients; (2) whether FECA qualifies as a “healthcare benefit program” under 18 U.S.C. §§ 24(b)/1347/1349; (3) propriety of the government’s closing argument; (4) a two-level sentencing enhancement for 10-or-more victims under U.S.S.G. § 2B1.1(b)(2)(A)(i); (5) consideration of lack of remorse at sentencing; (6) forfeiture of an entire commingled brokerage account; and (7) constitutionality of judicial (rather than jury) determination of restitution.
  • The evidence was sufficient: Nourian managed multiple fraudulent pharmacies and received at least $20 million in profits; both defendants provided pre-filled prescription pads to participating doctors. FECA qualifies as a healthcare benefit program, and the defendants also defrauded BCBS. Any impropriety in closing argument was cured by instructions. The 10-or-more-victims enhancement was correctly applied per Application Note 4(E). Nourian’s below-guidelines sentence was presumptively reasonable, the brokerage account was properly forfeited because tainted funds were commingled to disguise their source, and the restitution challenge was foreclosed by Luna Caudillo.