Take the Fifth

Designated for publication

• United States v. Comeaux, 24-30307, appeal from W.D. La.
  • Smith, J. (Smith, Clement, Duncan) (oral argument), Clement, J., concurring (joined by Duncan, J.); criminal, Second Amendment
  • Affirming conviction of possession of an unregistered firearm for defendant’s possession of homemade silencers, rejecting Second Amendment challenge.
  • After sheriff’s deputies arrested Comeaux for unlawfully discharging a firearm, a search of his residence turned up multiple homemade silencers. The ATF confirmed the devices were silencers, and a federal grand jury charged Comeaux with possessing an unregistered firearm (silencer) under 26 U.S.C. § 5861(d). Comeaux entered a conditional guilty plea preserving his Second Amendment challenge and was sentenced to 24 months in prison.
  • At issue on appeal was whether 26 U.S.C. § 5861(d), which criminalizes possession of an unregistered silencer, violates the Second Amendment under the framework of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
  • The court held that silencers qualify as Second Amendment “Arms” because they serve “critical functions that make firearms both safer and more effective for their core lawful purpose of self-defense.” The court rejected the government’s argument that silencers must be necessary for a firearm to function or tied to militia service, explaining that Bruen requires only that the item “facilitate armed self-defense.”
  • However, under the rule of orderliness, the court was bound by United States v. Peterson, 161 F.4th 331 (5th Cir. 2025), which held that the NFA’s shall-issue silencer-registration regime is “presumptively lawful” and does not implicate the Second Amendment unless a claimant shows the system “has been ‘put toward abusive ends’ through ‘exorbitant fees’ or ‘lengthy wait times in processing license applications.'” Like Peterson, Comeaux never alleged he applied for registration, paid the tax, or was deterred by fees or wait times—he simply manufactured and possessed silencers without registering them.
  • Judge Clement concurred (joined by Judge Duncan), but wrote separately to urge that Peterson be revisited en banc. She argued that Peterson over-extended Bruen‘s footnote nine—which merely “clarified that shall-issue licensing regimes are not necessarily unconstitutional just because may-issue regimes are”—and transformed it into a “presumption of constitutionality” that “erected a new ‘half-step’ between Step One and Step Two.” Judge Clement warned: “By transforming footnote nine’s dictum into doctrine, Peterson … resurrects a repudiated form of interest-balancing” and “provides cover for judicial policymaking.” She urged the en banc court to “recalibrate our Second Amendment jurisprudence to reflect text, history, and tradition—not interest-balancing.”

• Larkins v. S.D.P. Manufacturing, Inc., 24-20413, appeal from S.D. Tex.
  • Ho, J. (Southwick, Willett, Ho) (oral argument withdrawn), product liability, service of process
  • Reversing dismissal for lack of diligence in effecting service of process, and remanding for further proceedings.
  • Glenn Larkins was injured when a small derrick tipped over during transformer maintenance. He and his wife filed a products-liability suit on the last day of the Texas two-year statute of limitations. A paralegal forwarded citations to a process server three days later, but service on multiple similarly named corporate defendants was not completed for approximately 50 days total. Delays were attributed to a courthouse fire in an unrelated Louisiana proceeding that disrupted the firm’s workflow, and confusion over defendants’ corporate identities. The district court granted dismissal and summary judgment, finding Plaintiffs lacked diligence in effecting service.
  • At issue on appeal was whether, under Texas law, Plaintiffs were sufficiently diligent in effecting service of process after the limitations period expired, such that service relates back to the timely filing date.
  • The court held that the district court was “more demanding than Texas law requires.” A genuine fact question exists as to Plaintiffs’ diligence that precludes judgment as a matter of law. Texas law requires only “ordinary diligence—not the highest degree of diligence.” The court observed that “[m]inimal delays may be supported by minimal explanations,” and a three-day delay in forwarding citations to a process server, combined with the paralegal’s explanation of ongoing disruptions from an unrelated courthouse fire, was “not patently unreasonable as a matter of law.”
  • The court noted that “an ordinarily prudent person may permit third parties time to do their job,” and that the 18-business-day gap before following up with the process server—particularly given the complexity of serving several similarly named corporate entities—did not conclusively establish abandonment. Citing extensive Texas authority, the court emphasized that “[o]nly in rare instances have the Texas courts concluded that an excuse offered by the plaintiffs for failure to procure service negated the exercise of due diligence as a matter of law.”
  • The court distinguished defendants’ authorities, noting each involved a “complete lack of explanation or unjustified inaction by the plaintiff,” unlike the record here. As Judge Ho wrote: “Plaintiffs may or may not ultimately prove diligence. We hold only that this record precludes judgment against them as a matter of law.”

• Marfil v. City of New Braunfels, 25-50025, appeal from W.D. Tex.
  • Higginson, J. (Higginson, Willett, Engelhardt) (oral argument), equal protection, due process
  • Affirming summary judgment for city on property-owners’ challenge to short-term-rental ban.
  • Property owners in New Braunfels, Texas, purchased homes in residentially zoned districts where short-term rentals were already prohibited under a 2006 zoning ordinance (amended in 2011). Several Appellants applied for and were denied zoning changes. They sued, claiming the Ordinance violated the Due Process and Equal Protection Clauses of the U.S. and Texas Constitutions. The district court granted summary judgment for the City.
  • At issue on appeal were (1) whether Texas law recognizes a protected property interest in “the right to lease one’s home on a short-term basis” sufficient to sustain a due process claim; and (2) whether the City’s zoning ordinance survives rational-basis review under the Equal Protection Clause.
  • Due Process: The court conducted an Erie analysis and found that the two Texas appellate courts to squarely address the issue—Modern Builders, LLC v. City of Fort Worth, 2026 WL 1501055, and City of Dickinson v. Crystal Cruise Investments, 2026 WL 530391—both held that no vested property right to lease on a short-term basis exists. The court distinguished cases involving retroactive ordinances where owners were already engaged in short-term rentals prior to enactment, emphasizing that every Appellant here purchased after the prohibition was in place. As the Modern Builders court clarified: “we thus distinguish between a right to lease and a right to lease for less than 30 days; the former is a core incident of property ownership, the latter a specific use carrying no common-law categorical vested-right protection.”
  • Equal Protection: The court held the City’s stated purpose of “preserving residential character” easily satisfies rational-basis review. Quoting FCC v. Beach Communications, the court reiterated that “a statutory classification … must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” The 29-day/30-day line and the geographic boundaries of residential districts represented permissible legislative line-drawing.
  • The court quoted Village of Euclid v. Ambler Realty Co.: “We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot—not the courts.” It further noted the City’s Ordinance resulted from a deliberative process spanning five years, including public hearings and citizen complaints about short-term rentals in residential neighborhoods.

Unpublished decisions

• Williams v. Rent 2 Own Trailers, L.L.C., 25-20352, appeal from S.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), mediation, venue
  • Dismissing appeal in part, as to transfer order from Eastern District of Pennsylvania, and vacating district court’s dismissal of suit to enforce contractual mediation clause, and remanding for further proceedings.
  • At issue on appeal were (1) whether a contractual pre-litigation mediation clause was enforceable after the defendants failed to pursue mediation within the contractually specified 30-day window; and (2) whether the Fifth Circuit has jurisdiction to review a transfer order entered by an out-of-circuit district court.
  • The court partially dismissed the appeal for lack of jurisdiction over the Pennsylvania transfer order, which is reviewable only in the Third Circuit. On the merits, the court held that the defendants waived their right to enforce the mediation clause by failing to seek mediation within 30 days of receiving notice of the dispute, instead repossessing the plaintiff’s property and later invoking mediation only as a litigation tactic.

• Diaz-Guevara v. Blanche, 25-60451, petition for review of BIA order
  • per curiam (Richman, Southwick, Willett) (no oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order denying asylum, withholding of removal, and Convention Against Torture (CAT) protection.
  • The court declined to consider the petitioner’s claims regarding a presidential executive order and humanitarian asylum because she failed to exhaust them before the BIA. On the asylum and withholding claims, the court found that the petitioner cited nothing that “compels” a conclusion contrary to the BIA’s findings on past persecution or a well-founded fear of future persecution. Her CAT claim likewise failed because she did not demonstrate she would more likely than not be tortured with official acquiescence if returned to El Salvador.

• United States v. Cuellar-Lopez, 26-50062, appeal from W.D. Tex.
  • per curiam (King, Stewart, Ho) (no oral argument), criminal, sentencing
  • Affirming recidivism-enhanced sentence for illegal reentry.

• United States v. Frazier, 26-10095, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Matherne, 25-30225, appeal from W.D. La.
  • per curiam (Elrod, Ho, Ramirez) (oral argument), criminal, restitution
  • Affirming restitution award as part of child pornography production conviction.
  • At issue was whether the district court abused its discretion in awarding $139,628 in restitution for the victim’s projected treatment costs following a child-pornography production conviction under 18 U.S.C. § 2251(a); specifically, (1) whether the evidence supporting the award—a counselor’s cost-estimate chart containing arithmetic errors—bore sufficient indicia of reliability, and (2) whether the government adequately established that the defendant’s offense proximately caused the victim’s claimed losses.
  • The court found that the district court relied on sufficiently reliable evidence including victim-impact statements, a counselor’s letter, a cost-estimate chart, and the counselor’s CV. The mathematical errors in the chart (a $520,000 figure that should have been $52,000, and a $300 figure that should have been $3,000) did not undermine the overall reliability of the award because the district court did not adopt the incorrect $520,000 figure, and the $300 error actually resulted in a lower award than the victim was entitled to. On causation, the court held that the counselor’s letter tied the treatment specifically to the defendant’s offense, and that prior trauma does not negate the harm of a subsequent offense. However, the court vacated and remanded to correct the restitution total upward to $157,955.48 to account for the undercounted “Family Consultation” subtotal.