Take the Fifth

Designated for publication

• U.S. v. Squire, 25-30324, appeal from E.D. La.
  • per curiam (en banc), Higginson, J., dissenting from grant of en banc rehearing; criminal, Second Amendment, Commerce Clause, en banc
  • Granting en banc rehearing of June 2 panel decision (Clement, Southwick, Engelhardt) that affirmed a conviction of possession of a firearm by a felon, rejecting an as-applied Second Amendment challenge.
  • In a rare dissent from the grant of an en banc rehearing, Judge Higginson observed that “[t]oday, we grant a petition for rehearing in what was a Second Amendment as-applied challenge to § 922(g)(1), now reframed as a facial Commerce Clause challenge. So, rather than clarifying our § 922(g)(1) as-applied precedent to provide fair notice to people in Louisiana, Mississippi, and Texas about whether they can lawfully own guns, … we imperil much of the United States Code.”
  • Judge Higginson predicts a flood of briefing from amici (“likely including the Solicitor General, state solicitors general, the National Association of Criminal Defense Lawyers, Commerce Clause scholars, and others, maybe counsel from the newly created Supreme Court Advocacy Program”), advocating for and against a Commerce Clause restructuring as to which he notes the “impact is hard to overstate.” He briefly ponders the effect of such a restructuring as to federal criminal statutes, but then asks, “what would come of the countless other federal statutes hinging on Congress’s well-settled commerce authority? Can the federal government no longer criminalize possession of child pornography? Of explosive materials? Of biological weapons? Past the Title 18 level, do we lose regulations on financial transactions? On intellectual property? On endangered species?”

Unpublished decisions

• United States v. Garcia-Ramirez, 25-50905, appeal from W.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry, with defendant’s argument foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).

• United States v. High, 25-11080, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ortega, 25-40448, appeal from S.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting counsel’s Anders motion to withdraw, dismissing the appeal, but remanding to the district court for correction of a clerical error pursuant to Federal Rule of Criminal Procedure 36, finding the district court’s earlier, post-notice-of-appeal, attempt to amend judgment void for lack of jurisdiction.

• Salt and Light Energy Equipment L.L.C. v. Origin Bancorp, Inc., 25-11272, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), contractual indemnity, attorneys’ fees
  • Affirming attorneys’ fee award under contractual indemnification clause.
  • SNLEE, a Texas oilfield company, challenged the district court’s award of $909,334.10 in attorney’s fees to Origin Bank under an indemnification clause (Section 2.12) of a Revolving Credit and Security Agreement. SNLEE argued that (1) recovery was barred by Texas’s fair notice requirements, including the express negligence and conspicuousness rules; (2) Origin forfeited the argument that fair notice did not apply; and (3) the clause was unenforceable as a de facto disclaimer of Origin’s non-waivable statutory duties under the Texas UCC.
  • The court ruled that (1) the fair notice requirements apply only when indemnifying a party for its own negligence, and SNLEE did not bring a negligence claim—its claims under Texas Business & Commerce Code §§ 9.607(c) and 1.304 were not negligence-based; (2) Origin did not forfeit the argument because it raised a substantively equivalent point in its Rule 59(e) response; and (3) Origin was not disclaiming statutory duties but rather seeking fees for successfully defending against SNLEE’s claims, a permissible contractual fee-shifting arrangement.

• United States v. Fishbein, 25-11365, appeal from N.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Fishbein, convicted of enticing a minor to engage in sexual activity (18 U.S.C. § 2422(b)) and sentenced to 151 months, appealed pro se the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). He cited sentencing disparity, personal characteristics, post-sentencing rehabilitation, family needs, and the absence of an actual child victim.
  • The district court adequately explained that Fishbein showed no extraordinary and compelling reason for a reduction and that the § 3553(a) factors did not support relief. The court also noted that any ineffective-assistance-of-counsel claim is not cognizable in a § 3582(c)(1) motion.

• MK Mall Holdings, L.L.C. v. Underwriters at Lloyds of London et al., 25-30704, appeal from W.D. La.
  • per curiam (Willett, Engelhardt, Wilson) (no oral argument), insurance
  • Vacating order entered after notice of appeal had divested district court of jurisdiction.
  • This insurance dispute arose from Hurricane Ida. After the district court compelled arbitration and the insurers appealed certain interim orders, the district court—while the appeal was pending—entered an order applying Crescent City Surgical Operating Co. v. Interstate Fire & Cas. Co. and administratively closing the case. The key question was whether the district court had jurisdiction to enter that order after the notice of appeal transferred jurisdiction to the appellate court.
  • The court held the district court’s April 28, 2026 order was void for lack of jurisdiction, because the filing of the notice of appeal divested the district court of power to alter the status of the case. The court vacated the order and remanded for the limited purpose of allowing the district court to re-enter it, treating the void order as an indicative ruling under Fed. R. Civ. P. 62.1 and Fed. R. App. P. 12.1.

• Wells v. Bisignano, 25-30680, appeal from M.D. La.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), social security
  • Affirming dismissal of suit challenging whether plaintiff was entitled to disability benefits, for failure to exhaust administrative remedies.
  • Wells applied for disability-insurance benefits under Title II of the Social Security Act. After the SSA Appeals Council vacated an ALJ decision and remanded for further factfinding by the Field Office, Wells sought judicial review before completing the administrative process. The district court dismissed for failure to exhaust administrative remedies under Rule 12(b)(1).
  • The court affirmed the dismissal, agreeing that Wells had not exhausted his administrative remedies because his claim was still pending before the Field Office with no “final decision” to review. However, the court noted that dismissal should have been under Rule 12(b)(6), not 12(b)(1), because exhaustion under § 405(g) is nonjurisdictional, and affirmed on that basis.

• United States v. Ramirez-Olvera, 25-50470, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming 54-month sentence on guilty-plea conviction of transporting illegal aliens and received an above-guidelines sentence of 54 months. Defendant challenged (1) the denial of a minor-role adjustment under U.S.S.G. § 3B1.2 and (2) the substantive reasonableness of the upward variance.
  • On the minor-role issue, Ramirez-Olvera presented no evidence of other participants or their roles, so there was no clear error. On substantive reasonableness, the district court permissibly relied on his violent criminal history to impose an above-guidelines sentence, and the extent of the variance fell within the range the court had previously upheld.

• United States v. Thomas, 25-40053, appeal from E.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, compassionate release
  • Affirming denial of defendant’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), rejecting argument that U.S.S.G. § 1B1.13(b)(6) authorized the district court to grant relief based on a non-retroactive change in law, as foreclosed by Rutherford v. United States, 146 S. Ct. 1320 (2026), holding that the non-retroactive change to 18 U.S.C. § 924(c) by the First Step Act cannot serve as an extraordinary and compelling reason for compassionate release, and that § 1B1.13(b)(6) is invalid to the extent it counsels otherwise.

• Gonzalez v. 2009 Houston Scott Street, L.P. et al., 25-20419, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), Fair Housing Act, § 1983
  • Affirming summary judgment dismissal of Section 8 tenant’s claims under the Fair Housing Act (FHA), the Violence Against Women Act (VAWA), 42 U.S.C. § 1983, and Texas state law (intentional infliction of emotional distress and breach of the covenant of quiet enjoyment) against her former landlords after her minor daughter was sexually assaulted near the apartment complex and the landlords denied her request for an emergency transfer.
  • The court affirmed summary judgment on all claims. (1) VAWA does not create a private right of action, and Congress foreclosed enforcement through § 1983 by creating a comprehensive enforcement scheme via HUD. (2) The FHA discrimination claim failed because Gonzalez did not show she was treated differently from similarly situated tenants outside her protected class. (3) The FHA retaliation claim failed because the landlords’ conduct—issuing an eviction notice that was promptly withdrawn—did not rise to the level of coercion, intimidation, or interference with protected rights. (4) The § 1983 First Amendment retaliation claim failed because the defendants did not act under color of state law, and accepting federal housing vouchers did not make them state actors. (5) The Texas IIED claim failed because the conduct was not “outrageous” under Texas law. (6) The breach of quiet enjoyment claim failed because Gonzalez was not actually or constructively evicted.

• United States v. Jefferson, 25-20506, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Hopkins, 25-20473, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Alcantara v. Jasso et al., 26-50035, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), § 1983, Rule 60(b), sanctions
  • Dismissing appeal in part and affirming in part appeal from denial of Rule 60(b) motion, and denying sanctions request but issuing sanctions warning.
  • Alcantara previously sued three police officers over conduct directed at her daughter; the district court and the Fifth Circuit ruled against her. After the prior appeal, she filed another Rule 60(b) motion in the district court, which was denied. The district court also imposed a pre-filing requirement that any future filings in the case be reviewed and certified by an attorney.
  • The court dismissed the portion of the appeal raising the same Rule 60(b) arguments already resolved in the prior appeal, and affirmed the pre-filing certification requirement. The court denied the appellees’ request for sanctions but warned Alcantara she may be sanctioned if she continues filing in this arena.

• Nicholas Services, L.L.C. v. Glassdoor, L.L.C., 25-60327, appeal from N.D. Miss.
  • Oldham, J. (Stewart, Graves, Oldham) (oral argument), defamation, venue, appellate jurisdiction
  • Dismissing plaintiff’s appeal of transfer order as to claims against one defendant for lack of appellate jurisdiction, and affirming 12(c) dismissal of other defendant.
  • Nicholas Air and Corr Flight, operators of a private aviation company, sued Glassdoor over negative employee reviews they claimed were defamatory. The district court severed and transferred Nicholas Air’s claims to the Northern District of California pursuant to a forum selection clause in Glassdoor’s Terms of Use, and dismissed Corr Flight’s defamation claim under Rule 12(c). The principal appellate question was whether a party can lose a transfer motion, wait until the transferred case is litigated to final judgment in a sister circuit, and then use § 1291 jurisdiction to undo the transfer.
  • The court held it lacked jurisdiction over Nicholas Air’s appeal because once its case was transferred out of circuit and litigated to final judgment in the Northern District of California, the Fifth Circuit could no longer exercise control over those claims. Nicholas Air failed to diligently seek a writ of mandamus and instead litigated to judgment in California before attempting appellate review. Nicholas Air’s appeal was dismissed for lack of jurisdiction. As to Corr Flight, the court affirmed the Rule 12(c) dismissal of its defamation claim, finding no reversible error after de novo review.