Take the Fifth

Unpublished decisions

• Suria v. Kunkel, 25-10629, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), prisoner suit
  • Reversing in part and affirming in part dismissal of Texas state prisoner’s sec. 1983 claims.
  • At issue on appeal was whether a Texas prisoner stated viable 42 U.S.C. § 1983 claims for (1) failure to protect under the Eighth Amendment against a sergeant and warden, and (2) deliberate indifference to serious medical needs against a nurse and an unidentified prison official, after the district court dismissed the complaint pre-service for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
  • The court held that the prisoner plausibly alleged failure-to-protect claims against Sergeant Stewart (who was aware of a credible threat but took only inadequate steps to abate it) and Warden Wathen (who failed to lock down or adequately staff the unit despite obvious danger). The court also reversed dismissal of the deliberate-indifference claim against Nurse Kunkel, finding that the allegations—use of a makeshift splint, hostile demeanor, and refusal of pain medication—went beyond negligence and plausibly showed wanton disregard for serious medical needs. The court affirmed dismissal of the claim against John/Jane Doe because the complaint contained only a conclusory allegation of deliberate indifference without factual support regarding what the unidentified official knew about Suria’s needs.

• United States v. Harden, 25-11113, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, sentencing
  • Granting government’s motion to modify sentence on resentencing to strike supervised-release conditions and replace with conditions from the original sentence.
  • At issue on appeal was whether certain supervised-release conditions imposed at resentencing should be modified to conform with the original judgment’s conditions regarding change-of-residence notification and regular employment.
  • The court granted the government’s unopposed motion to modify the judgment by striking two supervised-release conditions and replacing them with the conditions from the original judgment; it denied the government’s alternative requests to remand or extend briefing time as unnecessary.

• United States v. McMahon, 25-40111, c/w 25-40548, appeal from E.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming application of sentencing enhancement.
  • At issue on appeal was whether the district court erred in applying a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for manufacturing or distributing a controlled substance, where the defendant argued the evidence did not show drug activity was a primary use of the premises. Reviewed for plain error because the issue was not clearly raised below.
  • The court found no clear or obvious error, noting the “low bar” for establishing primary use and that undisputed evidence in the presentence report supported a reasonable inference that the defendant’s residence was used to store, manufacture, and prepare controlled substances for distribution.

• Magee v. Varsity Brands Holding Co., 25-11092, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), breach of contract, trademark
  • Affirming dismissal of breach of contract and trademark infringement claims.
  • At issue on appeal was whether the district court erred in (1) declining to pierce the corporate veil under Texas Business Organizations Code § 21.223(b), and (2) dismissing the pro se plaintiff’s breach-of-contract and trademark claims. The court also addressed the relevance of the district court judge’s post-judgment recusal.
  • Magee abandoned his veil-piercing challenge by failing to address or identify any error in the district court’s finding that his fraud allegations were conclusory. Because the court did not reverse, vacate, or remand, it declined to consider the recusal issue or Magee’s request that any remand be directed to a different district. Magee’s motions for remand and stay of appeal were denied.

• United States v. Otero-Garay, 26-10044, appeal from N.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry, as defendant’s argument was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but sought to preserve for further review.

• United States v. Carter, 25-30383, appeal from E.D. La.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming felon-in-possession conviction.
  • At issue on appeal was whether 18 U.S.C. § 922(g)(1) (felon-in-possession) violates the Second Amendment (facially and as applied) under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022); whether it violates the Commerce Clause; and whether separate convictions on two counts violated the Double Jeopardy Clause (raised for the first time on appeal).
  • The as-applied challenge failed because the Fifth Circuit has upheld disarming a felon previously convicted of a drug trafficking offense (United States v. Kimble). The facial Second Amendment and Commerce Clause challenges were concededly foreclosed by circuit precedent. The Double Jeopardy argument, raised for the first time on appeal, failed under plain-error review.

• United States v. Arredondo, 26-10027, appeal from N.D. Tex.
  • per curiam (Jones, Graves, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.