Take the Fifth

Designated for publication

• United States v. Murphy, 24-30347, appeal from E.D. La.
  • Ramirez, J. (Jones, Stewart, Ramirez), Jones, J., dissenting in part (oral argument); criminal, sentencing
  • Affirming in part and reversing in part sentence on conspiracy charges, and remanding for resentencing.
  • Trayvon Murphy was a member of a New Orleans street gang led by co-defendant Julius Alexander. Murphy pleaded guilty—without a plea agreement—to conspiracy to possess and brandish firearms in furtherance of crimes of violence and drug trafficking, conspiracy to distribute cocaine and heroin, and Hobbs Act robbery charges. According to the presentence report and Alexander’s testimony, Murphy provided Alexander with a .223 caliber rifle and drove him to the location where Alexander shot and killed rival drug dealer Jermaine Gooden. The PSR applied a cross-reference under U.S.S.G. § 2K2.1(c)(1)(B) to the first-degree murder guideline, producing a base offense level of 43 and a Guidelines range of 324–405 months. The district court sentenced Murphy to 360 months.
  • At issue on appeal was (1) whether the district court clearly erred in crediting Alexander’s testimony and adopting the PSR’s factual findings about Murphy’s role in the murder; (2) whether the district court clearly erred in its drug quantity calculation of 100 grams of heroin; (3) whether Murphy was entitled to a mitigating role adjustment under U.S.S.G. § 3B1.2; (4) whether the § 2K2.1(c)(1)(B) cross-reference to first-degree murder was properly applied when the .223 rifle was not identified in the indictment; and (5) whether a heightened burden of proof was required at sentencing given the dramatic increase in the Guidelines range.
  • The court upheld the district court’s credibility findings, drug quantity calculation, denial of a mitigating role adjustment, and use of the preponderance standard, but reversed the application of the first-degree murder cross-reference and vacated the sentence.
  • Cross-Reference (Key Issue): The court held that § 2K2.1(c)(1)(B) requires the firearm involved in the other offense to be “cited in the offense of conviction,” and that phrase means cited in the indictment or information. The court relied on the Guidelines’ own definition of “offense of conviction” as “the offense conduct charged in the count of the indictment or information,” which is narrower than “offense” (which includes relevant conduct). Because neither the superseding indictment nor the factual resume identified the .223 rifle used in Gooden’s murder, the cross-reference was inapplicable: “We decline to expand the application of a Guideline when doing so would be plainly inconsistent with the Guideline’s language.”
  • Factual Findings and Drug Quantity: The court found no clear error in the district court’s credibility determinations regarding Alexander’s testimony, noting that even “uncorroborated hearsay evidence may be sufficiently reliable for use at sentencing” and that Murphy failed to present rebuttal evidence. On drug quantity, the text messages discussing specific amounts and Murphy’s own admission that he and associates “frequently sold both quantities of heroin and cocaine on a regular basis” supported the 100-gram finding.
  • Mitigating Role and Burden of Proof: Murphy failed to address the relevant factors or show he was “substantially less culpable than the average participant,” and his argument that Alexander was the “mastermind” was insufficient because there is no “affirmative right to a § 3B1.2 reduction to every actor but the criminal mastermind.” On the heightened burden of proof, the court noted it has never imposed one and found the increase in Murphy’s exposure was not so exceptional as to warrant departing from the preponderance standard.
  • Judge Jones dissented from the reversal of the cross-reference, contending the majority’s interpretation “leads to the perverse consequence that the more violent criminal activity a defendant is charged with in addition to illegal gun possession, the less onerous his sentence—unless a particular firearm was ‘cited’ in the offense of conviction.” She contended that because Count 1 charged Murphy with conspiring to possess firearms in furtherance of “crimes of violence,” and Gooden’s murder was a crime of violence, the .223 rifle fell within the scope of that charge: “It makes common sense for the Guideline to mean that a firearm ‘cited in the offense of conviction’ means any firearm involved in the offense conduct charged in the indictment when death resulted.” She also criticized the majority for dismissing holdings from sister circuits in Aberant and Edger and the unpublished Fifth Circuit opinion in White, all of which endorsed a broader reading permitting courts to look at the entire record.

• United States v. Debrow, 25-30380, appeal from W.D. La.
  • Higginson, J. (Haynes, Higginson, Ho), Haynes, J., dissenting (oral argument); criminal, Second Amendment
  • Vacating order denying dismissal of indictment for possession of a firearm by a felon, and remanding for further proceedings as to whether the charge was an as-applied violation of the Second Amendment.
  • In 2019, Talanzo Debrow attempted to flee a traffic stop in a stolen vehicle and rammed two state trooper patrol cars. He pleaded guilty to aggravated criminal damage to property under Louisiana Revised Statutes § 14:55(A)—a property crime requiring that “it is foreseeable that human life might be endangered”—and was sentenced to three years of hard labor. After serving his sentence, in January 2023, a firearm was found in a car attributed to Debrow, and he was charged with possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). Debrow conditionally pleaded guilty, reserving his right to appeal the denial of his motion to dismiss the indictment on Second Amendment grounds, and was sentenced to 56 months’ imprisonment.
  • At issue on appeal was whether § 922(g)(1) is unconstitutional as applied to Debrow—an individual whose sole disqualifying conviction was for aggravated criminal damage to property—under the historical-tradition framework of New York State Rifle & Pistol Ass’n v. Bruen. This predicate presented a matter of first impression for the Fifth Circuit.
  • The court found the government had not met its burden to demonstrate a historical tradition supporting permanent disarmament of persons with analogous criminal histories.
  • Rejecting the Government’s “Dangerousness” Approach: The court declined the government’s primary argument that the court should look beyond the predicate conviction to the underlying facts (that Debrow was actually trying to flee police) to assess dangerousness, calling this approach “untenable in light of circuit precedent” under Kimble. Judge Higginson warned that such a “judicially imagined, retrospective test—which often could relitigate uncharged and unproven conduct from the past—proves obscure at best and impossible at worst,” and raises serious notice concerns for Americans who have completed their sentences and seek to exercise Second Amendment rights.
  • Going-Armed Laws Insufficient Here: The court found two deficiencies in the government’s fallback argument that historical going-armed laws justified disarming Debrow based on the statute of conviction alone. First, unlike predicates previously upheld (e.g., aggravated battery), Debrow’s offense is a property crime that requires only foreseeability of endangerment, not a purposeful or knowing act of violence against a person, meaning it cannot clearly qualify as a “crime of violence”. Second, the government devoted only minimal briefing to this heavy burden—one the Supreme Court reaffirmed in United States v. Hemani (2026)—and failed to identify any historical analogue supporting lifetime disarmament for such a predicate. The court cautioned that “[s]uch laws cannot, and should not, continue to bear the weight being stacked atop.”
  • Judge Haynes dissented, reasoning that the face of Debrow’s predicate felony—which required proof that “it is foreseeable that human life might be endangered”—demonstrates that its commission involved “a clear threat of violence to others” under Simpson and the going-armed law framework. In her view, because the predicate offense itself carries an element pertaining to the endangerment of human life, there is no need to look beyond the conviction, and disarming Debrow is “consistent with this Nation’s historical tradition of firearm regulation.”

Unpublished decisions

• United States v. Oliver, 24-40726, appeal from E.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, guilty plea
  • Affirming order of judgment of violation of plea agreement.
  • At issue was whether the seizure of funds from a defendant’s inmate trust account to satisfy a forfeiture obligation constituted a breach of the plea agreement; and whether the district court erred by denying the motion without a hearing.
  • The court held that Oliver’s purported understanding of the plea agreement—that his forfeiture obligation would be satisfied by cash seized during his arrest in a related state case—was inconsistent with a reasonable reading of the agreement. The amount seized at arrest and the amount he agreed to forfeit as “substitute property” representing proceeds he “would have obtained” from his federal offense were different sums. Oliver failed to show by a preponderance of the evidence that the plea agreement was breached, and the denial of a hearing was not an abuse of discretion.

• Crocker v. Guerrero, 25-40747, appeal from E.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), habeas corpus
  • Dismissing appeal of dismissal of sec. 2254 petition, for failure to timely file notice of appeal.
  • At issue was whether the court had jurisdiction to review the dismissal of a § 2254 habeas application as untimely; whether the certificate of appealability (COA) issued by the district court on the denial of a Rule 60(b) motion was valid.
  • The court lacked jurisdiction to review the underlying § 2254 dismissal because Crocker failed to file a timely notice of appeal from that judgment. Although Crocker timely appealed from the denial of his Rule 60(b) motion, the COA issued by the district court was a defective “procedural-only” COA, and the court declined to issue a valid one in its place because Crocker could not satisfy the statutory requirements. The COA was vacated, the appeal was dismissed, and the motion for appointment of counsel was denied.

• In re Van Dyke, 25-20351, appeal from S.D. Tex.
  • per curiam (Haynes, Higginson, Ho) (oral argument), bankruptcy
  • Affirming without opinion the district court’s affirmance of bankruptcy court’s denial of award of civil contempt for violation of discharge order.

• United States v. Sanchez, 25-50439, appeal from W.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Rodriguez De La Cruz, 25-50245, appeal from W.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Candel & Partners SAS v. ExxonMobil Corp., 25-20366, appeal from S.D. Tex.
  • per curiam (Elrod, Ho, Ramirez) (oral argument), international discovery
  • Affirming order quashing subpoena for documents for use in a French proceeding.
  • At issue on appeal was (1) whether the district court provided sufficient reasoning when it quashed a 28 U.S.C. § 1782 subpoena issued to ExxonMobil for use in a French judicial proceeding; (2) whether the district court abused its discretion in weighing the Intel Corp. v. Advanced Micro Devices factors against permitting the discovery; and (3) whether the court should have narrowed the subpoena rather than quashing it entirely.
  • Candel, a French investment company and minority shareholder of Esso SAF (a former ExxonMobil subsidiary), suspected that Esso entered into agreements benefiting ExxonMobil at the expense of minority shareholders. After unsuccessful attempts to obtain documents through French proceedings, Candel obtained an ex parte § 1782 subpoena in the Southern District of Texas. ExxonMobil moved to quash, and the district court granted the motion after oral argument, finding all four Intel factors cut against discovery.
  • The court held that the district court provided adequate reasoning—its explanations during and after oral argument constituted “some explanation” sufficient for meaningful appellate review, consistent with Banco Mercantil de Norte, S.A. v. Paramo. On the merits, the district court did not abuse its discretion: (1) ExxonMobil was not a participant in the French proceeding but the French tribunal could order production within its own jurisdiction; (2) there was no basis for U.S. court assistance; (3) there was evidence Candel was attempting to circumvent foreign proof-gathering restrictions; and (4) the request was overly broad and burdensome. The court also rejected Candel’s argument that the second Intel factor requires “authoritative proof” that the foreign tribunal would reject the discovery, noting that no such requirement has been adopted.

• Young v. Parchment, L.L.C., 25-60685, appeal from N.D. Miss,
  • Elrod, J. (Elrod, Jones, Higginson) (no oral argument), IFP status
  • Reversing denial of motion to proceed in forma pauperis.
  • At issue on appeal was whether a district court may deny a motion to proceed in forma pauperis (IFP) based on the frivolity of the plaintiff’s claims rather than solely on financial eligibility under 28 U.S.C. § 1915(a).
  • Pro se plaintiff Katie Young alleged that Parchment, L.L.C., released her academic transcript without consent in violation of FERPA and constitutional rights. A magistrate judge recommended denial of IFP status because there is no private cause of action under FERPA, and the district court adopted that recommendation.
  • The court held that the two-step IFP framework requires the district court to first determine financial eligibility under § 1915(a) based solely on economic criteria; if the plaintiff is eligible, the motion must be granted. Frivolity is a proper basis for dismissal under § 1915(e)(2)(B), not for denial of IFP status. Because Young demonstrated financial eligibility, her IFP motion should have been granted. The court granted IFP status on appeal and reversed the district court’s order, but noted it lacked jurisdiction to address whether the action should be dismissed under § 1915(e)(2) because no final judgment had been entered below.

• United States v. Amaya, 25-40796, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Aguilar, 26-10076, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of session of receipt of a firearm by a person under felony indictment.
  • The Second Amendment challenge was foreclosed by United States v. Quiroz. The Commerce Clause argument was unavailing under plain error review. The sentencing enhancement issue was foreclosed by *United States v. Martin.