Take the Fifth

Designated for publication

• Smith v. School Board of Concordia Parish, 25-30698, c/w In re School Board of Concordia Parish, 26-30074, appeal from W.D. La.
  • Willett, J. (Stewart, Willett, Wilson) (no oral argument), Stewart, J., dissenting in part; mandamus, appellate jurisdiction, voluntary dismissal, school desegregation
  • Dismissing appeal for lack of jurisdiction over judgment that was entered after voluntary dismissal of school desegregation case, and granting mandamus vacating post-dismissal judgment.
  • This school-desegregation case had been pending for more than sixty years. After the district court dismissed the long-absent private plaintiffs, the three remaining parties—the United States, Delta Charter Group, and the School Board of Concordia Parish—jointly stipulated to dismiss the action with prejudice under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The district court refused to honor the stipulation, reasoning that it was “not required that a court accept and enter a proposed stipulation of dismissal particularly when the protection of others and/or judicial or public policies are at issue,” and ordered evidentiary hearings on whether the school system had achieved unitary status under the Green factors. The School Board appealed and filed a protective petition for a writ of mandamus.
  • At issue on appeal was (1) whether the court had appellate jurisdiction over the School Board’s direct appeal; (2) whether a district court may continue adjudicating a case after all remaining parties filed a Rule 41(a)(1)(A)(ii) stipulation of dismissal; and (3) whether mandamus relief was warranted to compel the district court to honor the stipulation.
  • The court lacked appellate jurisdiction because the challenged orders were neither final decisions under 28 U.S.C. § 1291 (they prolonged rather than ended the litigation) nor orders refusing to dissolve an injunction under § 1292(a)(1) (the district court merely scheduled hearings on whether to dissolve, rather than refusing to do so). The collateral-order doctrine also did not apply because the School Board claimed no immunity from suit.
  • On mandamus, the court held that all three requirements were met. The School Board had no adequate alternative remedy because a Rule 41(a)(1)(A)(ii) stipulation “is effective immediately” and “any action by the district court after the filing of such a stipulation can have no force or effect because the matter has already been dismissed by the parties themselves without any court action.” The right to relief was “clear and indisputable” because none of Rule 41’s four enumerated exceptions (Rules 23(e), 23.1(c), 23.2, and 66) applied, and no federal statute required court approval before these parties could dismiss. The court wrote: “Article III courts are not ‘roving commissions’ charged with pronouncing constitutional questions after the case before them has been dismissed. Federal courts resolve disputes. They do not require parties to continue having them.”
  • Mandamus was also “particularly appropriate” given inconsistent district-court treatment of stipulated dismissals in desegregation cases. The court closed: “federal jurisdiction is not preserved by institutional memory, remedial caution, or the understandable desire for one more hearing”.
  • Judge Stewart concurred in dismissing the appeal but dissented from the grant of mandamus relief. He contended that the error, if any, was remediable on direct appeal in due course—after the evidentiary hearing—making mandamus an improper substitute for appeal. He emphasized that “mandamus cannot be used as a substitute for appeal even when hardship may result from delay,” and found that the School Board had shown “no more than mere inconvenience.” He further contended that the right to the writ was not “clear and indisputable,” noting that Brown, Green, and their progeny direct the district court—not the parties—to determine whether unitary status has been achieved. He closed: “it is a square misstep for this court to clip the wings of a seasoned district court judge, with his arms firmly around this decades-old institutional case.”

• Brown v. Burmaster, 25-30541, appeal from E.D. La.
  • Willett, J. (Smith, Willett, Ramirez) (oral argument), qualified immunity, municipal liability
  • Affirming qualified immunity dismissal of claim against police officer, reversing judgment against City on municipal liability claim, and remanding for new trial on claim against City.
  • New Orleans Police Officer Derrick Burmaster responded to a domestic disturbance and shot and killed a 16-week-old rescue puppy named Apollo, who “did not bark, growl, jump, bare his teeth, or lunge.” The puppy’s owners, Derek Brown and Julia Barecki-Brown, sued Burmaster and the City of New Orleans under the Fourth Amendment. At trial, the jury returned a special verdict finding that Burmaster “acted in an objectively unreasonable manner” but was entitled to qualified immunity. As to the City, the jury found the City’s policies did not cause Apollo’s death—yet also found the City “liable” for violating the Browns’ Fourth Amendment rights.
  • At issue on appeal was (1) whether the district court properly submitted the fact-bound qualified-immunity question to the jury; and (2) whether the jury’s municipal-liability answers were irreconcilably inconsistent.
  • On qualified immunity, the court held that the district court correctly followed the framework of Melear v. Spears: the judge identifies the clearly established legal rule, and the jury applies that rule to the facts. The court declined to read Ramirez v. Killian as silently overruling Melear, explaining that Ramirez‘s reference to a “purely legal question” means the court must identify the clearly established law—not make the disputed factual findings needed to apply it. Additionally, even if the proposed pretrial order withdrew the issue from the jury, Rule 39(b) gave the district court discretion to submit it, and the Browns—who elected not to include the trial transcript—failed to show an abuse of that discretion.
  • On municipal liability, the court found the jury’s answers irreconcilably inconsistent: one question asked whether the City “is liable” for a Fourth Amendment violation through inadequate training, supervision, or discipline, and the jury answered “Yes”; but the jury also answered “No” to whether those same policies caused Apollo’s death. The court noted: “Municipal liability requires ‘both municipal culpability and causation.’ The jury found causation absent and liability present—a verdict at war with itself.”
  • The opinion also clarified in a detailed footnote that the so-called “third component” of qualified immunity—”objective reasonableness”—”is a vestige of older case law” and “does not impose an extra hurdle beyond the Supreme Court’s two-pronged framework.”

• United States v. Allred, 25-50204, appeal from W.D. Tex.
  • Southwick, J. (Southwick, Graves, Wilson) (oral argument withdrawn), Graves, J., concurring; criminal, Commerce Clause, Second Amendment
  • Affirming conviction of possessing a firearm after a prior misdemeanor domestic-violence conviction.
  • Jeremy Scott Allred was convicted under 18 U.S.C. § 922(g)(9) for possessing a firearm after a prior misdemeanor domestic-violence conviction. His predicate offense was a 2004 Texas conviction for “Assault Causing Bodily Injury to a Family Member,” arising from an incident in which he pushed his wife during an argument and struck her in the face while trying to knock a phone from her hand as she called 911. He pled guilty pursuant to a conditional plea agreement reserving his right to appeal the denial of his motion to dismiss the indictment. He was sentenced to 16 months’ imprisonment and three years’ supervised release.
  • At issue on appeal was (1) whether § 922(g)(9) exceeds Congress’s Commerce Clause authority (facial challenge); and (2) whether § 922(g)(9) violates the Second Amendment as applied to Allred under the Bruen/Rahimi framework, particularly given that his predicate offense could have been committed recklessly.
  • The Commerce Clause challenge was foreclosed by United States v. Alcantar, whose reasoning the court held applies equally to subsection (g)(9) as to (g)(1). On the Second Amendment challenge, this appears to be a matter of first impression in the Fifth Circuit under Bruen for § 922(g)(9). Applying the Bruen/Rahimi two-step framework, the court found that § 922(g)(9)’s “why”—its rationale—is consistent with the historical tradition of disarming people found to threaten the physical safety of others, as reflected in Founding-era surety and “going armed” laws. As the Supreme Court put it in Castleman: “Domestic violence often escalates in severity over time, and the presence of a firearm increases the likelihood that it will escalate to homicide.”
  • On the “how” prong, the court acknowledged that § 922(g)(9) does not require a specific predictive finding of dangerousness like § 922(g)(8), but noted that Allred’s conviction itself was a “judicial determination” regarding the physical threat he posed, analogous to the surety-law determinations upheld in Rahimi. The court also rejected Allred’s argument, drawn from Justice Thomas’s Voisine dissent, that disarmament based on reckless conduct is unconstitutional, finding that Allred’s conduct—intentionally swinging at his wife’s phone but recklessly striking her face—involved the intentional creation of force, which even the Voisine dissent agreed could validly trigger § 922(g)(9).
  • The court adopted a categorical, “felony-by-felony” approach (applied here offense-by-offense) rather than considering the specific circumstances underlying Allred’s conviction, concluding that Congress has, “consistently with historical tradition, deemed [domestic-violence misdemeanants] to indicate [they are] too dangerous to trust with firearms.”
  • Judge Graves agreed with the result but wrote separately to criticize the majority’s categorical approach to as-applied challenges, arguing the court should instead conduct an “individualized assessment” of a defendant’s history and conduct. He noted a “robust circuit split” and intra-circuit tension, observing that earlier Fifth Circuit panels (Reyes, Betancourt, Giglio) considered individual circumstances, while later panels following Kimble rejected that approach—violating the rule of orderliness. He warned: “When panels of our court so cavalierly disregard other panels’ decisions, we severely impair the ability of district courts, attorneys, and defendants—with their liberty on the line—to understand and apply precedent.” He concluded: “The rule the majority adopts today analyzes a defendant’s dangerousness not by their conduct but by the terms of the statute they were convicted under. This reasoning ultimately finds no basis in law and fails constitutional muster.”

Unpublished decisions

• Jenkins v. Burks, 24-40828, appeal from E.D. Tex.
  • per curiam (Smith, Southwick, Douglas) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claim.
  • Texas prisoner Antwune Jenkins sought to proceed in forma pauperis on appeal from the dismissal of his 42 U.S.C. § 1983 complaint alleging excessive force and retaliation by prison employees, and denial of his Rule 59(e) motion. The district court granted summary judgment for the defendants on exhaustion grounds.
  • The court denied IFP status and dismissed the appeal as frivolous, finding that Jenkins failed to exhaust administrative remedies under the PLRA—his timely grievance concerning a disciplinary proceeding was untimely as to the use-of-force claims—and that his Rule 59(e) arguments were an impermissible rehashing of prior contentions. The dismissal counts as a strike under 28 U.S.C. § 1915(g).

• United States v. Taylor, 25-11368, appeal from N.D. Tex.
  • per curiam (King, Smith, Higginson) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of possession of a firearm by a felon, rejecting challenge to conviction as unconstitutional, holding that all of Taylor’s arguments are foreclosed by binding circuit precedent, including United States v. Diaz, United States v. Schnur, United States v. Bullock, and United States v. Alcantar.

• United States v. Ard, 25-30634, appeal from W.D. La.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming 63-month sentence for conspiracy to commit Hobbs Act robbery and firearm possession during a crime of violence, rejecting challenge for the first time on appeal of the two-level bodily-injury sentencing enhancement under U.S.S.G. § 2B1.3(b)(3)(A).
  • Although the district court’s application of the bodily-injury adjustment was clear or obvious error under the court’s prior ruling in United States v. Brumfield, the error did not affect Ard’s substantial rights because the district court indicated it would have imposed the same 63-month sentence regardless of the guidelines calculation.

• Guenther v. BP Retirement Accumulation Plan, 24-20551, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Ho) (oral argument), Higginson, J., concurring; ERISA, standing
  • Vacating judgment that former employees had standing to challenge retirement plan conversion, and remanding for re-evaluation of the Article III standing issues.
  • Former BP employees sued under ERISA § 502(a)(3) alleging that BP breached its fiduciary duties through misleading 1989 communications about a retirement plan conversion (from the ARP to the RAP), causing them to receive lower benefits. BP challenged Article III standing. The central questions were: (1) what constitutes the relevant “injury in fact,” and (2) whether that injury is traceable to BP’s alleged misconduct.
  • The court held that the only credible injury is the diminution of retirement benefits under the new plan—not a mere “mistaken understanding”—and that the district court failed to make the necessary findings on traceability between the alleged breach and the decreased benefits. The judgment was vacated and remanded for the district court to evaluate Article III standing consistent with this framework.
  • Judge Higginson concurred in the remand but wrote separately to emphasize that plaintiffs did allege concrete downstream consequences—including forgoing alternative employment, failing to adjust retirement savings, and losing the opportunity to bargain for better benefits—that would satisfy the Article III injury requirement. He noted the district court found that employees “were harmed by working under a mistaken understanding,” meaning they acted in reliance on BP’s misrepresentations, which is different from alleging a “mistaken understanding” alone. He wrote: “BP’s failure to execute its fiduciary duties left its employees disempowered to plan for their long-term financial health, often as concrete and devastating an injury as workers can suffer.” He endorsed the remand for the district court to assess traceability and, if necessary, reopen jurisdictional discovery.

• Jennings v. Naman Howell Smith & Lee, P.L.L.C., 25-11284, appeal from N.D. Tex.
  • per curiam (Elrod, Richman, Duncan) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal of dismissal of complaint against plaintiff’s former attorneys.
  • Christian Jennings sought IFP status on appeal from the dismissal of her complaint under 28 U.S.C. § 1915(e)(2)(B). She argued the district court misapplied attorney immunity to her state-law claims alleging knowingly false certifications and negligent supervision, and that her § 1983 claim adequately alleged state action by the defendant law firm.
  • The court found that the attorneys’ conduct fell within the scope of their duties and was protected by attorney immunity under Texas law, that Jennings’s conclusory allegations were insufficient to establish the law firm as a state actor under § 1983, and that denial of leave to amend was not improper given the futility of further amendment.

• Walters v. Blanche, 23-60269, petition from BIA order
  • per curiam (Davis, Richman, Oldham) (no oral argument), immigration
  • Denying Jamaican citizen’s petition for review of BIA decision upholding his removal as an aggravated felon based on four mail fraud convictions. He argued his convictions did not meet the $10,000 loss threshold under 8 U.S.C. § 1101(a)(43)(M)(i) because the checks in his four counts totaled only $3,145.
  • The court held that the correct loss amount was the total loss from the entire fraudulent scheme ($5,263,934, as reflected in the restitution order), not merely the amounts from the individual counts of conviction.

• United States v. Torres Esquivel, 25-10987, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, compassionate release
  • Affirming denial of compassionate release, rejecting argument that nonretroactive changes in the law and lack of evidence supporting defendant’s sentencing constituted extraordinary and compelling reasons for release.
  • The court found no arguable abuse of discretion. Torres Esquivel failed to show that the district court erred in concluding that nonretroactive sentencing law changes did not constitute extraordinary and compelling reasons, and his disagreement with the district court’s balancing of the § 3553(a) factors did not warrant Rule 60(b) relief.

• Loayza v. Whole Foods Market Rocky Mountain/Southwest, L.P., 25-20295, appeal from S.D. Tex.
  • per curiam (King, Southwick, Haynes) (oral argument), employment discrimination, Title VII, Pregnancy Discrimination Act
  • Affirming summary judgment dismissal of pregnancy discrimination claims.
  • Diana Loayza, a former Whole Foods bakery team leader, brought a Title VII pregnancy discrimination claim under the Pregnancy Discrimination Act after she was terminated during her pregnancy. The key question was whether she could show pretext—i.e., that Whole Foods’s stated reason for terminating her (violation of pricing and discount policies in connection with a discounted bakery purchase) was pretextual.
  • Assuming arguendo that Loayza established a prima facie case, the court held that Whole Foods articulated legitimate, nondiscriminatory reasons for her termination and that Loayza failed to raise a genuine issue of material fact on pretext. It was undisputed that Loayza paid well below cost price by directing the application of a special decoration fee and her employee discount, exceeding any authorization she may have received. Whole Foods conducted a complete investigation before terminating her. The court also declined to address a mixed-motive theory because Loayza had not adequately raised it below.

• United States v. In, 25-11211, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of possession of a firearm by a felon, rejecting Second Amendment and Commerce Clause challenges as foreclosed by United States v. Diaz and United States v. Perryman.

• Spectrum Laboratories, L.L.C. v. URZ Trendz, L.L.C., 25-20572, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), Lanham Act, trademark infringement, appellate jurisdiction
  • Dismissing appeal of default judgment where district courthad not yet quantified damages.
  • The default judgment was not a final order under 28 U.S.C. § 1291 because the computation of damages (including profits and losses) was more than ministerial or mechanical. The court also rejected URZ’s argument that § 1292 provided jurisdiction based on the injunctive nature of the default judgment.

• Dennis v. State of Texas, 25-20409, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), foreclosure, amendment
  • Affirming dismissal of plaintiff’s complaint arising from a foreclosure dispute, rejecting argument that the district court should have permitted an accounting before dismissal and should have granted leave to amend.
  • The district court correctly determined that Dennis’s claims all depended on a legally incorrect theory about the effect of his UCC filings under Texas law, and did not abuse its discretion in denying leave to amend.

• United States v. Lee, 25-30753, appeal from W.D. La.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Perdomo-Limus, 25-20342, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, supervised release
  • Affirming imposition of special supervised-release conditions following defendant’s guilty plea conviction for illegal reentry, rejecting argument that the conditions were not adequately pronounced at sentencing.
  • The court found no error, plain or otherwise, in the district court’s oral pronouncement of his sentence, citing United States v. Villafana-Mondragon.

• United States v. Hall, 25-30662, appeal from W.D. La.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Mora-Hernandez, 25-40480, appeal from E.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Esposito v. Pate, 25-30761, appeal from W.D. La.
  • per curiam (Jones, Ho, Wilson) (no oral argument), habeas corpus
  • Dismissing as moot appeal from dismissal of § 2241 petition.
  • Federal prisoner Michael Esposito appealed the dismissal of his 28 U.S.C. § 2241 habeas petition challenging changes by the Bureau of Prisons to halfway-house eligibility requirements. The district court denied the petition for failure to exhaust and, alternatively, on the merits.
  • Esposito was scheduled for release on July 10, 2026, rendering the petition moot because there was no longer a live case or controversy.

• Lambert v. City of Onalaska, 25-40508, appeal from E.D. Tex.
  • per curiam (Jones, Clement, Richman) (oral argument), § 1983
  • Affirming dismissal of plaintiff’s Fourth Amendment and First Amendment claims against school resource officer.
  • Amberley Lambert sued a school resource officer and the City of Onalaska under § 1983 after she was arrested during a school drop-off dispute. She alleged Fourth Amendment violations (unreasonable stop and arrest) and First Amendment retaliation (arrest motivated by her prior complaint about the officer). The officer asserted qualified immunity.
  • On the Fourth Amendment claim, the court found the officer had probable cause to stop and arrest Lambert for refusing to comply with a lawful traffic direction under Tex. Transp. Code § 542.501 and, separately, for resisting arrest. Unlike Sauceda, the officer lawfully initiated the arrest before Lambert began resisting. On the First Amendment claim, because probable cause existed, Lambert was required to satisfy the narrow Nieves exception by producing objective evidence that similarly situated individuals who had not complained were not arrested; she failed to do so. The court noted that Lambert’s conduct—driving toward a police officer after being ordered to stop—was neither endemic nor benign, distinguishing it from the jaywalking scenario contemplated in Nieves.

• Gore v. City of DeSoto, 25-11251, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Haynes) (no oral argument), appellate jurisdiction, IFP status
  • Dismissing appeal of denial of TRO for lack of appellate jurisdiction; but vacating district court’s denial of IFP status and dismissal of complaint and remanding for further proceedings.
  • Pro se plaintiff Terrence Gore appealed (1) the denial of his motion for a temporary restraining order and (2) the dismissal of his complaint without prejudice for failure to pay the filing fee after the district court found him ineligible for IFP status.
  • The appeal of the TRO denial was dismissed because the denial of a TRO is not an appealable “injunction” under 28 U.S.C. § 1292(a)(1). However, the court found a nonfrivolous issue as to whether the district court’s denial of IFP status was erroneous, granted IFP on appeal, vacated the district court’s IFP denial and dismissal order, and remanded for further proceedings.

• Wells v. Johnson, 25-30685, c/w 25-30711, appeal from M.D. La.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), § 1983, judicial immunity
  • Affirming dismissal of § 1983 claim against judges.
  • Pro se plaintiff Kelvin Wells sued Louisiana state judges under 42 U.S.C. § 1983, alleging due process and equal protection violations based on their handling of his state-court proceedings. The defendants removed the case and moved to dismiss.
  • The court held that the defendant judges are not “persons” subject to official-capacity claims under § 1983 (as state agents, they are not “persons” under Will v. Michigan Department of State Police) and are shielded from individual-capacity claims by absolute judicial immunity because all challenged actions were judicial in nature and performed within their jurisdiction.

• United States v. Balderrama, 24-50343, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentence reduction, compassionate release
  • Affirming denial of motion for sentence reduction or compassionate release.
  • Francisco Balderrama appealed the denial of an omnibus motion seeking (1) a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Guidelines Amendments 782 and 788, (2) a sentence reduction under § 404 of the First Step Act, and (3) compassionate release under 18 U.S.C. § 3582(c)(1)(A).
  • On (1), the amendments did not lower Balderrama’s statutorily mandated life sentence for his continuing criminal enterprise offense. On (2), Balderrama was ineligible for First Step Act relief because he was not convicted of crack-cocaine offenses. On (3), the district court did not abuse its discretion in finding that he failed to demonstrate extraordinary and compelling circumstances warranting compassionate release.

• Alberto-Cardoza v. Blanche, 25-60655, petition for review of BIA order
  • per curiam (King, Higginson, Douglas) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA order denying asylum, withholding of removal, and Convention Against Torture (CAT) protection by finding the petitioner failed to establish a cognizable particular social group (PSG); whether gang extortion was on account of political opinion; whether alleged torture involved requisite state action for CAT relief.
  • The court held that the proposed PSG of “women fleeing domestic violence seen as property of men in Honduras” did not meet cognizability requirements; the argument regarding “Honduran women” was waived for failure to brief; and the argument regarding “persons perceived by a gang as contravening its rules” was unexhausted. Substantial evidence supported the BIA’s finding that gang threats were criminally motivated, and a reasonable factfinder could conclude that any torture would lack the requisite state action.

• United States v. Washington, 26-10009, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Brantley v. The University of Texas at Austin, 25-50584, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), disability discrimination, due process, amendment
  • Affirming dismissal of § 1983 and Rehabilitation Act claims and denial of motion for leave to amend.
  • At issue on appeal was (1) whether the district court properly dismissed a pro se student’s 42 U.S.C. § 1983 due process claim and Rehabilitation Act discrimination and retaliation claims on sovereign immunity grounds; (2) whether the denial of leave to amend was an abuse of discretion; and (3) whether the Rehabilitation Act immunizes a student from discipline for harassing conduct that is attributable to a disability.
  • The § 1983 claim improperly sued the University itself rather than proper officials; the Rehabilitation Act claims failed for lack of a federal-funding allegation necessary to invoke the Act’s immunity waiver. On futility, the court held that the due process claim failed because Brantley received notice, an opportunity to respond, and an appeal; the discrimination claim failed because disability law does not prohibit discipline for inappropriate behavior even if caused by a disability; and the retaliation claim failed because the alleged adverse action was clearly caused by Brantley’s harassment of a faculty member, not by any protected activity.

• United States v. Vindas Abarca, 25-40758, appeal from E.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Perkins, 25-40753, appeal from S.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Riddle v. X Corp., 25-50951, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), copyright infringement, sanctions
  • Affirming dismissal of claims, including dismissing claim of contributory copyright infringement as sanction for contumacious conduct.
  • The pro se appellant abandoned all challenges by failing to meaningfully brief them. In any event, the Rule 41(b) dismissal was not an abuse of discretion because the district court identified repeated instances of misconduct after an express warning, found lesser sanctions would not suffice, and found all three aggravating factors (delay caused by plaintiff, actual prejudice to defendant, and intentional conduct) present.

• United States v. Soria-Beltran, 25-50872, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), criminal, sentencing
  • Affirming 30-month sentence on conviction of illegal reentry.
  • The defendant failed to demonstrate that the sentence did not account for a relevant factor, gave significant weight to an improper factor, or represented a clear error of judgment.

• United States v. Garza, 25-50785, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), mootness, criminal
  • Dismissing as moot appeal from sentence on revocation of supervised release.
  • Because Garza completed his revocation sentence and no further supervision was imposed, there was no live case or controversy.

• Gomez-Lopez v. Blanche, 25-60643, petition for review of BIA order
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), immigration
  • Denying petition for review of BIA order denying application for asylum, withholding of removal and CAT protection.
  • At issue on the petition was (1) whether the BIA erred in finding no nexus between the harm petitioner suffered and his political opinion and anti-corruption activity; and (2) whether the BIA erred in denying CAT protection.
  • The record did not compel a contrary conclusion on the nexus determination (dispositive of asylum and withholding claims), and substantial evidence supported the denial of CAT protection.

• United States v. Charleston, 25-60639, appeal from N.D. Miss.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, jury selection, sufficiency of evidence, prosecutorial misconduct, sentencing
  • Affirming conviction of kidnapping and international domestic violence, and 121-month sentence.
  • At issue on appeal was (1) whether the jury pool lacked representation of defendant’s peers; (2) sufficiency of the evidence for kidnapping and interstate domestic violence convictions; (3) prosecutorial misconduct; and (4) substantive reasonableness of a within-guidelines 121-month sentence.
  • The jury-pool challenge was time-barred; evidence was sufficient for kidnapping and interstate domestic violence convictions; the prosecutorial-misconduct claim was not plain error; additional misconduct arguments were abandoned for inadequate briefing; and the sentence was not substantively unreasonable.

• United States v. Rodriguez-Padilla, 25-50828, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.

• Reyes-Medina v. Blanche, 25-60542, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
  • Denying petition for review of BIA order denying application for asylum, withholding of removal, and CAT protection.
  • Substantial evidence supported the BIA’s nexus and CAT determinations; the due process claim failed because petitioner did not show substantial prejudice.

• Brady v. Director, Office of Workers’ Compensation Programs, 25-60003, petition for review of decision of the Benefits Review Board
  • per curiam (Southwick, Higginson, Wilson) (no oral argument), administrative law, Longshoremen and Harbor Workers’ Compensation Act
  • Denying petition for review of BRB’s determination that claimant’s average weekly wage (AWW) was lower than his wage-earning capacity in suitable alternative employment—thus precluding permanent partial disability benefits under the Longshoremen and Harbor Workers’ Compensation Act.
  • The BRB’s calculation of Brady’s AWW at $402.19, using blended earnings from multiple employers under § 910(c), was supported by substantial evidence given Brady’s inconsistent employment history, periods of unemployment, and credibility findings.

• Doe v. Gipson, 25-50615, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), jury selection, civil
  • Affirming denial of defendant’s motion for mistrial during voir dire after a venireperson’s statements about having read an article about prior criminal proceedings.
  • The district court reasonably found the venireperson’s statement was “quite non-specific,” unrelated to the present case, and “so remote in time” as to create no prejudice. The defendant failed to show the extrinsic influence likely caused prejudice.

• United States v. McNeal, 25-60680, appeal from S.D. Miss.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Precision Refractory Services, LLC v. Sonderling, 25-60377, petition for review of decision of Occupational Safety and Health Review Commission
  • per curiam (Duncan, Oldham, Wilson) (no oral argument), labor law
  • Denying company’s petition for review of occupational safety violation order.
  • At issue on the petition were (1) whether a refractory company could be held liable under 29 C.F.R. § 1926.451(h)(2) for a scaffold-safety violation where a metal pipe fell and hospitalized an employee; and (2) whether substantial evidence supported the Commission’s finding that the employer knew or should have known of the violative condition.
  • The regulation provides five alternative compliance methods, and PRS failed to implement any of them; it was irrelevant that PRS could not install toeboards specifically. Substantial evidence showed supervisory personnel had actual or constructive knowledge of the falling-object danger.

• Baraona-Lira v. Blanche, 25-60422, petition for review of BIA order
  • per curiam (Duncan, Oldham, Wilson) (no oral argument), immigration
  • Denying petition for review of BIA order denying a motion to reopen removal proceedings based on changed country conditions under 8 U.S.C. § 1229a(c)(7)(C)(ii).
  • The BIA properly dismissed much of the evidence as previously available, and did not abuse its discretion in concluding the remaining evidence (family affidavits and country-conditions reports) was not material because it failed to connect any threat of persecution to petitioner’s family-based particular social group.

• Dees v. State of Texas, et al., 25-50925, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), sovereign immunity, amendment
  • Affirming dismissal of claims by former Texas State Guard member alleging retaliation for reporting fraud and denial of leave to amend.
  • Official-capacity claims were barred by sovereign immunity (though the State waived immunity by removing to federal court, the claims still failed on the merits). The complaint relied almost exclusively on conclusory allegations without factual detail and failed to state a claim. Denial of leave to amend was not an abuse of discretion because the proposed amended complaint suffered from the same defects.

• Keller v. Cain, 25-70002, appeal from S.D. Tex.
  • per curiam (Stewart, Haynes, Higginson) (oral argument), Higginson, J., concurring; habeas corpus, Miranda
  • Affirming dismissal of habeas petition.
  • At issue on appeal was whether the Mississippi Supreme Court unreasonably applied Supreme Court precedent or made unreasonable factual determinations in affirming admission of a death-row petitioner’s ICU confession, specifically: (A) the fruit-of-the-poisonous-tree doctrine, (B) Missouri v. Seibert‘s prohibition on deliberate two-step Miranda exploitation, (C) voluntariness of the confession, and (D) validity of the Miranda waiver.
  • On the fruit-of-the-poisonous-tree issue, the court found no police coercion during the ER statements (a necessary predicate under Colorado v. Connelly), so the doctrine was inapplicable. On Seibert, the court held this was not a deliberate two-step interrogation: 11 hours elapsed between statements, the setting changed from ER to ICU, and police “approached the interview anew.” On voluntariness, the state court reasonably found no coercive police activity—a “necessary predicate” under Connelly. On the Miranda waiver, the state court’s finding of an implied waiver (Keller said “I understand” and then provided detailed narrative responses) was consistent with Berghuis v. Thompkins.
  • Judge Higginson concurred in the outcome “for the reasons stated by the district court in its comprehensive order,” citing Keller v. Cain, No. 1:21-CV-134-KHJ, 2024 WL 4268134, at *54–74 (S.D. Miss. Sept. 23, 2024), and noting that the Mississippi Supreme Court did not unreasonably apply clearly established law or base its decision on unreasonable determinations of the facts.

• United States v. Mendoza-Garcia, 25-51008, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction under 18 U.S.C. § 922(g)(5) (possession of a firearm by an illegal alien), rejecting argument that the statute violates the Second Amendment as applied or exceeds Congress’s Commerce Clause power.
  • The claims are foreclosed by United States v. Medina-Cantu, 113 F.4th 537 (5th Cir. 2024), cert. denied, 145 S. Ct. 1318 (2025), which upheld § 922(g)(5) on both grounds.

• United States v. Rubell, 26-10013, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, Second Amendment, Commerce Clause, sentencing
  • Affirming conviction and sentence for possession of a firearm by a felon.
  • Defendant appealed his conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), raising three arguments: (1) § 922(g)(1) facially violates the Second Amendment; (2) the statute’s commerce-element requirement exceeds Congress’s Commerce Clause authority; and (3) the district court erred in relying on Guidelines commentary defining “large capacity magazine” for purposes of an enhanced base offense level under U.S.S.G. § 2K2.1(a)(4). Defendant conceded all issues were foreclosed by circuit precedent and raised them solely for preservation.
  • The court granted the Government’s unopposed motion for summary affirmance, finding each argument foreclosed by United States v. Diaz, United States v. Rawls, United States v. Alcantar, and United States v. Martin.

• United States v. Simmons, 26-10036, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Wije v. University of Texas at Austin, 26-50284, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), employment discrimination
  • Affirming dismissal of employment discrimination claims.
  • Plaintiff, a former IT systems analyst who resigned from the University of Texas in 2005 after receiving notice of intended termination, alleged ongoing race and national-origin discrimination and retaliation for filing an EEOC complaint, claiming the University refused to rehire him over a period of more than two decades. The district court found earlier claims barred by prior suits dismissed with prejudice and analyzed only the remaining failure-to-rehire discrimination and retaliation claims, concluding they were inadequately pleaded and frivolous.
  • The Fifth Circuit affirmed, finding the district court thoroughly considered the action, fairly addressed objections to the magistrate judge’s report and recommendation, and committed no reversible error.

• Parsons v. Valdez, 26-20026, appeal from S.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), qualified immunity
  • Reversing denial of qualified immunity to officer defendant on false-arrest claims, and rendering judgment dismissing claims.
  • Plaintiff sued a deputy under 42 U.S.C. § 1983 for two alleged false arrests: (1) an on-scene seizure at approximately 2:30 a.m. after a $7,000 ballistic shield went missing from plaintiff’s front yard following an unrelated domestic-violence arrest; and (2) a subsequent warrant-based arrest for felony theft, where plaintiff alleged the affidavit supporting the warrant contained material omissions. The district court denied qualified immunity to Deputy Valdez without analyzing the elements of theft under Texas law or conducting a corrected-affidavit analysis under Franks v. Delaware.
  • As to the on-scene arrest, an objectively reasonable officer could have believed plaintiff appropriated the shield with intent to deprive the owner, based on the totality of the circumstances—plaintiff was the only known witness, was angry, remained in the yard, and the shield had vanished at 2:00 a.m. in a residential cul-de-sac.
  • As to the warrant-based arrest, none of plaintiff’s five alleged omissions were material enough to vitiate probable cause under the corrected-affidavit framework. Critically, the affidavit accurately depicted that plaintiff directed deputies to the precise location of the missing shield, which was sufficiently inculpatory to sustain probable cause.

• United States v. Reyes, 26-40028, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, guilty plea
  • Affirming guilty plea conviction of conspiracy to transport illegal aliens in violation of 8 U.S.C. § 1324, rejecting challenges (1) to the district court’s denial of his postjudgment motion to withdraw his guilty plea; and (2) that his plea was induced by ineffective assistance of counsel. He also raised a forfeiture challenge for the first time in his reply brief.
  • The court declined to consider the ineffective assistance claims on direct appeal, finding the record insufficient, but preserved them for collateral review. The court held that Reyes failed to show error in the denial of his motion to withdraw or to meet the stringent standard for withdrawal at this stage, and that the record confirmed his plea was knowing and voluntary. The forfeiture argument was waived as raised for the first time in the reply brief.

• United States v. Vazquez-Mosqueda, 26-10096, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.