Take the Fifth

Designated for publication

• Rodriguez v. Ortega, 26-50183, c/w Angel v. Mullin, 26-50219, appeal from W.D. Tex.
  • per curiam (en banc), immigration, die process, en banc
  • In relation to the en banc rehearing of the July 2 opinion affirming that immigrants’ due process rights were violated by detention more than 90 days without bond hearings, which rehearing was ordered quickly on the heels of the panel opinion, on July 10, the en banc Court denied as unnecessary a motion to refer the motion to the en banc court, granted a motion to expedite ruling on a motion to stay pending en banc rehearing, and granted a stay pending en banc rehearing.

• United States v. Palomares, 25-40026, appeal from S.D. Tex.
  • Smith, J. (Higginbotham, Smith, Oldham) (oral argument), criminal, Second Amendment
  • Reversing dismissal of count of possession of a firearm by a felon, and remanding.
  • Concepcion Palomares was charged with unlawful possession of a firearm as a felon under 18 U.S.C. § 922(g)(1), predicated on his prior conviction for transporting illegal aliens under 8 U.S.C. § 1324(a)(1)(A)(ii). The district court dismissed the count, holding that § 922(g)(1) was unconstitutional as applied to Palomares under the Second Amendment because alien-smuggling laws were not sufficiently analogous to Founding-era slave-smuggling statutes.
  • At issue on appeal was whether the government may constitutionally disarm a felon convicted of transporting illegal aliens consistent with the Second Amendment under the historical-tradition framework of New York State Rifle & Pistol Ass’n, Inc. v. Bruen.
  • The court held that, because alien smuggling is an inherently dangerous felony, lifetime disarmament predicated on a § 1324(a)(1)(A)(ii) conviction is consistent with the Second Amendment.
  • The court applied the framework from United States v. Kimble, which held that “the Second Amendment allows Congress to disarm classes of people it reasonably deems dangerous,” supported by an “undeniable throughline” that “Founding-era governments took guns away from those perceived to be dangerous.”
  • Like drug trafficking in Kimble, alien smuggling under § 1324(a)(1)(A)(ii) is “inherently dangerous and often results in death and injury to both aliens and government agents.” The court noted that much of the human-smuggling business is controlled by drug-trafficking cartels and that smuggled aliens routinely face “theft, assault, threats, kidnapping (to extort more money), or ransom.”
  • Quoting Kimble: “In short, the Legislative, Executive, and Judicial Branches agree that [alien] trafficking is an inherently dangerous activity, and Congress has responded to that threat by disarming convicted [alien] traffickers via § 922(g)(1). That decision does not violate the Second Amendment.” Because the inherently-dangerous-felony rationale sufficed, the court declined to decide whether alien smuggling is sufficiently analogous to Founding-era slave-smuggling laws.

• Exxon Mobil Corp. v. Occupational Safety & Health Review Commission, 25-60108, petition for review of order of Occupational Safety & Health Review Commission
  • Wilson, J. (Elrod, Smith, Wilson) (oral argument), occupational safety
  • Granting petition for review of OSHA citation for failure to record a PTSD diagnosis.
  • In December 2021, a catastrophic explosion and fire occurred at ExxonMobil’s Baytown, Texas refinery. An employee (“Employee 2”) who heroically volunteered to enter the burning unit twice alongside firefighters was subsequently diagnosed with PTSD by multiple healthcare providers. Exxon ultimately refused to record the PTSD diagnosis on OSHA Forms 300/301, arguing the providers lacked “appropriate training and experience” and relying on a contrary opinion from its own designated evaluator. OSHA issued a citation and $691 penalty for failure to record the mental illness. The ALJ affirmed, and the decision became the final order of the OSHRC.
  • At issue on petition was whether OSHA’s rulemaking authority under 29 U.S.C. § 657(c)(2) — which authorizes regulations requiring employers to record “work-related deaths, injuries and illnesses” — encompasses the power to mandate recording of work-related mental illnesses via 29 C.F.R. § 1904.5(b)(2)(ix).
  • The court granted the petition and the citation and penalty were vacated; and OSHA’s mental-illness recording rule (29 C.F.R. § 1904.5(b)(2)(ix)) set aside. The best reading of § 657(c)(2) is that “illnesses” refers to physical, not mental, work-related ailments.
  • Applying Loper Bright‘s independent-judgment standard, the court found that statutory context compels a narrower reading of “illnesses.” The statute conjoins “injuries and illnesses” and then excludes “minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job” — all categories “most naturally refer[ring] to physical, not mental, harms.” The court observed: “OSHA fails to explain how § 657(c)(2)’s carveout of ‘minor injuries requiring only first aid’ squares with its assertion that ‘injuries and illnesses’ encompass both physical and mental conditions.”
  • Contemporaneous dictionary definitions from circa 1970 — Black’s, Ballentine’s, Random House, and Webster’s Second — define “illness” without expressly contemplating non-physical conditions. The court noted that Ballentine’s contains a separate entry for “mental illness” that merely redirects to “insanity,” a concept far afield from the statute’s purposes. OSHA’s sole supporting definition came from Webster’s Third, a source the court dismissed, quoting Justice Scalia’s observation that the dictionary “was widely criticized for its portrayal of common error as proper usage.”
  • The court rejected OSHA’s extratextual arguments, including legislative history (“not law”) and the Act’s general purpose of ensuring “safe and healthful working conditions,” noting “the specific governs the general.” Ultimately: “However commendable OSHA’s desire to improve mental health in the workplace, like all agencies, OSHA’s authority to regulate toward that end is constrained by the limits of power Congress delegated to the agency.”

• United States v. Fullerton, 24-50800, c/w 24-50829, appeal from W.D. Tex.
  • Duncan, J. (King, Higginson, Duncan) (oral argument), criminal, sentencing, new trial, perjury
  • Affirming convictions and sentences for fraudulent loans and money laundering related to the Paycheck Protection Program.
  • Michael and Tiffany Fullerton, with two others, fraudulently obtained more than $3 million from the COVID-era Paycheck Protection Program by submitting six fraudulent loan applications using shell companies, stolen identities, and fabricated records. They laundered the proceeds through layered transactions, out-of-state business ventures (including a marijuana dispensary and a bar), cashier’s checks, casino trips, and lavish purchases including a boat named “Breakfast at Tiffany’s,” Rolex watches, a Corvette, and a Bentley. Michael pled guilty to eleven counts and was sentenced to 286 months’ imprisonment. Tiffany was convicted at trial of conspiracy to commit bank fraud and conspiracy to commit money laundering and was sentenced to 108 months.
  • At issue on appeal was (1) whether Michael’s sentencing enhancements for sophisticated means, sophisticated laundering, leadership of five or more participants, and obstruction of justice (perjury) were proper; (2) whether the district court erred in denying Tiffany’s motion for a new trial based on newly discovered evidence; (3) whether Tiffany’s obstruction-of-justice enhancement for suborning Michael’s perjury was supported; and (4) whether the court correctly included the first Starx loan in Tiffany’s intended-loss calculation as relevant conduct.
  • On Michael’s enhancements, the court found the sophisticated-means enhancement appropriate because Michael used defunct shell companies, forged documents, stole identities, invented a fictional lawyer, and used fake email addresses — each act “obscur[ing] the link between the money” and making fraud “more difficult … to detect.” The sophisticated-laundering enhancement was supported by separate conduct — specifically, layered transactions involving cashier’s checks, casino activities, and multi-account transfers that “clearly subject[]” Michael to the enhancement. The leadership enhancement stood because Gaines, who spent “weeks” falsifying business records in a “massive task,” plausibly “knew the information was false but entered it anyway,” making her the fifth participant. The obstruction enhancement was upheld because the district court found Michael gave “demonstrably false” testimony for “hour after hour” as “part of a plan that he had early on in th[e] scheme to take responsibility.”
  • On Tiffany’s new-trial motion, the court held the newly discovered evidence — that Michael had similarly duped his ex-wife in a 1990s fraud — “says nothing about Tiffany’s state of mind decades later” and merely “bolsters a theory advanced at trial” without providing “a new theory of the case.” The court catalogued nine categories of trial evidence establishing Tiffany’s knowledge and active participation, concluding: “The jury rejected [Tiffany’s] version of the events, and … it is unlikely that [Tiffany’s] ‘new’ evidence would disturb that conclusion.”
  • On Tiffany’s suborning-perjury enhancement, the court held that while “mere knowledge that a witness will falsely testify” is not enough, Tiffany procured Michael’s perjury by having “many conversations” about “what questions to ask” that would “elicit a lie repeatedly.” The district court’s finding that the “circumstantial [evidence] [wa]s overwhelming” was not clearly erroneous. On the intended-loss amount, Tiffany failed to rebut the PSR’s finding that she joined the conspiracy in April 2020, and plain-error review applied because she never raised the relevant-conduct argument below.

Unpublished decisions

• United States v. Oduu, 24-20289, c/w 24-20561, appeal from S.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, guilty plea, search and seizure, prosecutorial misconduct, sentencing
  • Affirming 45-month sentence on guilty-plea conviction of theft of government property.
  • At issue on appeal was the defendant’s challenges on the bases of (i) insufficient factual basis for the guilty plea, (ii) denial of a motion to suppress, (iii) prosecutorial misconduct in obtaining a superseding indictment, (iv) loss-amount calculation under U.S.S.G. § 2B1.1(b)(1)(G), (v) constructive amendment of the indictment at sentencing, and (vi) denial of access to grand jury transcripts.
  • The court found no plain error in accepting the guilty plea, held that the unconditional plea waived the suppression challenge, found no tangible evidence of prosecutorial vindictiveness, and rejected the sentencing claims because the loss amount was supported by the presentence report and government exhibits. The court also affirmed the denial of the motion for grand jury transcripts, finding no abuse of discretion.

• Toliver v. Navy Federal Credit Union, 25-30678, appeal from E.D. La.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), Fair Debt Collection Practices Act, fraud, amendment
  • Affirming dismissal of FDCPA and fraud claims, and denial of leave to amend.
  • Tonyell Toliver appealed the dismissal with prejudice of her Fair Debt Collection Practices Act (FDCPA) and Louisiana state-law fraud claims against A Professional Law Corporation (APLC), arguing the district court violated due process by dismissing without notice or opportunity to respond. She also challenged the denial of leave to amend her complaint.
  • The Fifth Circuit affirmed on alternative grounds, finding both claims time-barred. The FDCPA’s one-year statute of limitations began running when APLC served its state-court petition on May 22, 2024, and Toliver did not file suit until July 10, 2025. Likewise, her Louisiana fraud claim prescribed one year from the same date under Louisiana Civil Code article 3492. Because amendment would have been futile given the prescription bars, the denial of leave to amend was not an abuse of discretion.

• Hernandez Cerrato v. Sanchez, 26-40091, appeal from E.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), habeas corpus, mootness
  • Dismissing as moot appeal from denial of § 2241 petition.
  • Jorge Amado Hernandez Cerrato, a Honduran national, appealed the denial of his 28 U.S.C. § 2241 habeas petition seeking release from immigration detention and related injunctive and declaratory relief.
  • The court dismissed the appeal as moot because Hernandez Cerrato had been removed from the United States, making the requested relief impossible to grant.

• Tarver v. Bisignano, 26-20048, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), social security
  • Affirming denial of disability benefits.
  • Pro se plaintiff Andrew Tarver, who suffers from Crohn’s disease, colitis, and anemia, challenged the Commissioner of Social Security’s determination that he is not disabled. He argued the Commissioner’s decision failed to reflect the real-world impact of his conditions, did not consider his treating physician’s opinion, and overlooked key symptoms such as fatigue and frequent bowel movements.
  • The court held that Tarver’s generalized assertions—spanning only nine sentences with no legal or record citations—failed to overcome the substantial-evidence standard of review. The ALJ’s residual functional capacity finding (sedentary work with restroom access for not more than 10% of the workday) was consistent with Tarver’s own testimony about bathroom breaks, and three state-agency or consultative physicians unanimously opined he was not disabled. The treating physician’s opinion of temporary disability related to a single month outside the relevant coverage period and did not meet the statutory 12-month duration requirement.

• United States v. Blanchard, 25-30697, appeal from W.D. La.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ledezma, 25-11301, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Young, 25-10234, appeal from N.D. Tex.
  • Jones, J. (Davis, Jones, Stewart) (oral argument), criminal, sufficiency of evidence, venue, witness testimony, jury instructions, sentencing
  • Affirming conspiracy and false statements convictions and sentence.
  • Dr. David Young, an emergency-room physician, was convicted of conspiracy to commit health care fraud (18 U.S.C. § 1349) and three counts of making false statements relating to health care matters (18 U.S.C. § 1035(a)) after signing tens of thousands of prescriptions for medically unnecessary durable medical equipment (DME) and genetic tests through purported telehealth companies. He raised challenges on appeal to: (1) the sufficiency of the evidence for both the conspiracy and false-statement counts, (2) venue in the Northern District of Texas, (3) admission of testimony from two doctors about red flags they observed at one of the telehealth companies, (4) the district court’s refusal to give a multiple-conspiracies jury instruction, and (5) the loss-amount calculation used at sentencing.
  • Sufficiency of the Evidence (Conspiracy): Affirmed. The court held a rational jury could find Dr. Young entered into an agreement to defraud Medicare based on: (a) the extraordinary volume of prescriptions he signed (two to three per minute at Momentum; fifth-highest DME prescriber and seventh-highest genetic-test prescriber nationwide); (b) his sharing of login credentials with non-medical co-conspirators who pre-filled prescriptions; (c) prescriptions that contravened standard medical practice, including physically incompatible braces; (d) his encouragement of Sunrise to expand into genetic testing after a law-enforcement raid; (e) over $480,000 in compensation for minimal medical work; and (f) his continued signing of prescriptions after receiving red flags, including a fraud complaint from a patient’s relative and a warning email from another doctor.
  • Sufficiency of the Evidence (False Statements): Affirmed. The letters of medical necessity signed by Dr. Young attested that he had talked with and evaluated patients, yet the patients denied any such contact and Dr. Young admitted he had not spoken with them. The jury was entitled to reject his claim that auto-generated software language was responsible.
  • Venue: Waived. Dr. Young failed to raise a venue objection before trial, at the close of the government’s evidence, or at the close of all evidence. He knew the relevant facts before trial, including that he worked in the Western District of Texas while facing charges in the Northern District. Merely proposing a jury instruction on venue did not preserve the claim.
  • Evidentiary Objections: Even assuming error, admission of testimony from Drs. Craig and Haas about red flags at Sunrise was harmless given the substantial independent evidence of Dr. Young’s guilt.
  • Multiple Conspiracies Instruction: No reversible error. The jury could reasonably find a single conspiracy given a common goal (defrauding Medicare), a common scheme (submitting claims without examining patients), and Dr. Young’s essential role as the “hub” connecting all three companies. Moreover, Dr. Young conceded in his reply brief that this alleged error alone would not warrant reversal, and the multiple-conspiracies instruction is primarily aimed at multi-defendant cases to prevent spillover prejudice.
  • Sentencing (Loss Amount): Affirmed. The court held that even when a defendant is unaware of the exact billed amounts and does not personally submit bills, the amount fraudulently billed to Medicare ($26.6 million in restitution) is prima facie evidence of intended loss. Dr. Young’s ignorance of the billing totals did not constitute evidence of a different subjective intent, and it was reasonably foreseeable that his co-conspirators would submit the bills. His argument that losses before February 2019 should be excluded was unsupported by law or evidence.