Take the Fifth

Designated for publication

• United States v. Baldemoro, 24-20451, c/w 25-20094, appeal from S.D. Tex.
  • Wilson, J. (Elrod, Smith, Wilson) (oral argument), criminal, sentencing
  • Affirming sentences on revocation of supervised release.
  • James Baldemoro pleaded guilty to possession of child pornography under 18 U.S.C. § 2252A(b)(2) and was sentenced to the statutory maximum of ten years’ imprisonment followed by ten years’ supervised release. After completing his prison term, the district court twice revoked his supervised release—each time reimposing six months’ imprisonment—for violating conditions of supervision, including failure to comply with sex-offender treatment. Baldemoro argued both times that he could not be reimprisoned because he had already served the statutory maximum for his underlying offense, and that further imprisonment violated his Fifth and Sixth Amendment rights.
  • At issue on appeal were (1) whether Baldemoro’s challenge to his first revocation sentence was mooted by the second revocation; (2) whether post-revocation imprisonment under 18 U.S.C. § 3583(e)(3) is capped by the statutory maximum for the offense of conviction; and (3) whether § 3583(e)(3) violates the Fifth and Sixth Amendments as applied to a defendant whose total incarceration exceeds that statutory maximum.
  • Mootness. The court held the first revocation appeal was not moot, even though the second revocation superseded it, because a favorable ruling would allow Baldemoro to seek modification or early termination of his ongoing supervised-release term on the ground that he served excess prison time. The court relied on Johnson v. Pettiford, 442 F.3d 917 (5th Cir. 2006), and Herndon v. Upton, 985 F.3d 443 (5th Cir. 2021), extending those principles to the situation where the defendant challenges one revocation judgment while serving a supervised-release term imposed in a subsequent revocation.
  • Statutory argument. The court rejected Baldemoro’s claim that Johnson v. United States, 529 U.S. 694 (2000), caps post-revocation imprisonment at the statutory maximum for the offense of conviction. The court explained that § 3583(e)(3) is a distinct statutory mechanism whose “only textual limitation on revocation imprisonment is the class of felony committed in the underlying offense—not the statutory maximum for the offense of conviction.” The court noted that “[e]very circuit to consider the argument Baldemoro advances has rejected it,” citing decisions from the Second through Eleventh Circuits.
  • Constitutional argument. The court held that revocation proceedings are not part of a criminal prosecution, and therefore “the full panoply of rights due a defendant in such a proceeding . . . do[es] not apply.” The court found Baldemoro’s reliance on the plurality opinion in United States v. Haymond, 588 U.S. 634 (2019), unavailing because Justice Breyer’s controlling concurrence stated he “would not transplant the Apprendi line of cases to the supervised-release context” and struck down only § 3583(k)—which, unlike § 3583(e)(3), imposed a mandatory minimum and removed judicial discretion. The court emphasized that “[e]very sister Circuit that has considered the issue thus far has reached the same conclusion” that Haymond “did not undermine, let alone overrule, . . . precedent on the validity of § 3583(e).”

• Pace v. Cirrus Design Corp., 25-40635, appeal from E.D. Tex.
  • Graves, J. (Wiener, Haynes, Graves) (oral argument withdrawn), personal tort, timeliness
  • Vacating dismissal of suit arising from plane crash, which had been dismissed as untimely, and remanding for further proceedings.
  • Glen Pace was injured when his aircraft crashed en route from the Dallas area to Hattiesburg, Mississippi, allegedly due to the failure of parachute and safety systems. He first sued multiple defendants in Mississippi state court (Pace I), which was removed to federal court and dismissed for lack of personal jurisdiction; this court affirmed that dismissal. While Pace I was on appeal, Pace filed a second suit in a different Mississippi state court (Pace II), adding new defendants; it was also removed and dismissed for lack of personal jurisdiction, and again affirmed on appeal. Pace then filed a third suit (Pace III) in the Eastern District of Texas, which the district court dismissed as time-barred, concluding that the Texas Savings Statute (TSS) tolled the limitations period only during Pace I, not Pace II.
  • At issue on appeal was whether the TSS, Tex. Civ. Prac. & Remedies Code § 16.064(a), applies to toll the statute of limitations during more than one suit dismissed for lack of personal jurisdiction; and, if so, whether Pace filed with “intentional disregard of proper jurisdiction” under § 16.064(b).
  • The court held that the TSS applies to more than one successive suit dismissed for lack of personal jurisdiction, relying on Sanders v. Boeing Co., 680 S.W.3d 340 (Tex. 2023), in which the Texas Supreme Court held § 16.064 applies to a “trilogy of suits.” The court reasoned that because “§ 16.064(a)(1) applies whenever the previous court dismisses an action for lack of jurisdiction,” it tolled the limitations period during both Pace I and Pace II. The district court therefore erred in refusing to apply tolling to Pace II.
  • On the defendants’ alternative argument that Pace acted with “intentional disregard of proper jurisdiction” by refiling in Mississippi while Pace I was still on appeal, the court declined to resolve this fact-intensive question. The court noted that various factors could excuse a plaintiff’s choice of forum, including that “there was no conclusive ruling for [plaintiff] to disregard when he filed his [second] suit.” Because the district court made no findings of fact on this issue, the court remanded, stating: “Without these findings ‘[w]e would simply be guessing as to the factual basis for the district court’s conclusion.'”

Unpublished decisions

• In the Matter of Sourcewater, Inc., 25-20479, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), bankruptcy, sanctions
  • Affirming $25,000 sanction for bad faith against debtor’s CEO.
  • At issue on appeal was whether the bankruptcy court properly sanctioned Joshua Adler, CEO of Chapter 11 debtor Sourcewater, Inc., for filing an adversary proceeding that challenged the priority of creditor Energy Debt Holdings’ claim outside the challenge period established by the court’s Cash Collateral Order and Confirmation Order. The appeal also raised whether the $25,000 monetary sanction was a proper exercise of the bankruptcy court’s inherent civil contempt power and its authority under 11 U.S.C. § 105(a).
  • The court found substantial evidence that Adler acted in bad faith by filing an adversary proceeding one day before the sale hearing, seeking to subordinate EDH’s note in direct violation of the timeline and procedures specified in the bankruptcy court’s orders. The Cash Collateral Order barred any challenge to EDH’s claim outside the defined challenge period, and Adler’s adversary proceeding was precisely the type of priority challenge those orders prohibited.

• United States v. Delgado, 25-11359, appeal from N.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• Portillo-Ordonez v. Blanche, 25-60693, petition for review of BIA order
  • per curiam (Smith, Higginson, Wilson) (no oral argument), immigration
  • Denying petition for review of BIA order dismissing appeal of in absentia removal order.
  • At issue on appeal was whether the BIA abused its discretion by summarily dismissing petitioner Stephany Portillo-Ordonez’s appeal of an in absentia removal order as untimely, without providing a detailed explanation for declining equitable tolling of the 30-day filing deadline under 8 C.F.R. § 1003.38(b). Petitioner argued she was one day late because her pro bono counsel discovered the notice of appeal had to be paper-filed rather than electronically filed, and traffic and weather prevented her from reaching the BIA office before it closed.
  • Applying abuse-of-discretion review, the court held that the BIA was not required to provide a lengthy exegesis of its reasoning. Relying on Prado-Majano v. Blanche, 176 F.4th 335 (5th Cir. 2026), the court found that Portillo-Ordonez failed to submit any evidence in support of equitable tolling, did not expressly invoke the equitable-tolling standard in her motion, and provided only scant legal analysis—therefore the BIA did not abuse its discretion in summarily dismissing.