Take the Fifth

Designated for publication

• United States v. Hunter, 24-20211, appeal from S.D. Tex.
  • Davis, J. (Davis, Smith, Higginson) (no oral argument), criminal, sentencing
  • On remand from U.S. Supreme Court, dismissing appeal of 51-month sentence on basis of appeal-waiver in plea agreement.
  • Munson Hunter pleaded guilty to one count of aiding and abetting wire fraud arising from a scheme that caused approximately half a million dollars in losses to financial institutions. His plea agreement contained a broad appellate waiver. At sentencing, the district court imposed 51 months’ imprisonment and three years of supervised release with a special condition requiring Hunter to “take all mental health medications that are prescribed by [his] treating physician” (the “Medication Condition”). The Presentence Report documented severe childhood trauma—including witnessing his father murder his mother and grandmother, physical abuse, and sexual assault—resulting in diagnosed anxiety and depression. Hunter objected to being forced to take medication, though he expressed willingness to participate in mental health programming.
  • At issue on appeal was whether enforcing the plea agreement’s appellate waiver would result in a “miscarriage of justice” under the new standard announced by the Supreme Court in Hunter v. United States, 146 S. Ct. 1702 (2026); specifically, whether the Medication Condition constituted (1) “blatant constitutional error” or (2) “obvious” statutory error under 18 U.S.C. § 3583(d).
  • On the constitutional question, the court found no “blatant” error because neither the Supreme Court nor the Fifth Circuit has established a constitutional standard for medication as a supervised release condition—a context distinct from both the prison-safety setting of Washington v. Harper and the pretrial-competence setting of Sell v. United States. The court emphasized that releasees “do not enjoy the full panoply of rights guaranteed by our Constitution” and that the condition was supported by a clear nexus to Hunter’s mental health history and the government’s interests in reducing recidivism and promoting his health. The court further noted the district court provided a mechanism to litigate disputes over future prescriptions, observing that “a defendant faces an uphill battle when he seeks to convince us that a modifiable condition seriously affects the fairness, integrity or public reputation of judicial proceedings.”
  • On the statutory question, the court found the Medication Condition was not an “obvious” error under § 3583(d) because the record provided far more support than cases where plain error had been found—Hunter presently struggled with mental health, had been diagnosed, affirmatively requested treatment, and implicated his mental health as a cause of his criminal conduct. The court contrasted this case with United States v. Gordon and United States v. Bree, where there was “practically no record support” for mental health conditions.
  • On the broader miscarriage-of-justice standard, the court highlighted that this exact Medication Condition has been “broadly imposed” by federal district courts “as a ‘stock’ special condition” and appears in the federal courts’ publicly available template for supervised release conditions—strong evidence this is not the kind of “extreme case” the Supreme Court contemplated would vitiate an appeal waiver.

• In re Aldama Aleman, 26-50451, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Engelhardt) (no oral argument), habeas corpus
  • Vacating order transferring sec. 2241 petition to the Fifth Circuit as a successive petition, and transferring back to district court with instruction that obtaining authorization to file a successive petition was not necessary.
  • Amet de La Caridad Aldama Aleman, a Cuban citizen and immigration detainee, filed a 28 U.S.C. § 2241 habeas corpus petition challenging his detention. The district court treated the filing as a successive § 2241 petition and, concluding that Aldama Aleman had not obtained circuit-court authorization under 28 U.S.C. § 2244(b)(3)(A), transferred the case to the Fifth Circuit.
  • At issue was whether the gatekeeping provisions of 28 U.S.C. § 2244(b)—which require circuit-court authorization before filing a successive habeas petition—apply to petitions brought under § 2241.
  • The court held that while § 2241 habeas petitions “are amenable to dismissal under the abuse of the writ doctrine, they are not subject to the gatekeeping provisions of § 2244(b),” because § 2244(b) by its terms limits the gatekeeping procedure to petitions brought under 28 U.S.C. § 2254. Because § 2244(b) does not apply, the district court’s transfer to the circuit was improper.
  • The court noted that on remand, the district court may sua sponte raise the abuse-of-the-writ doctrine, dismissing any claims raised in the second petition that were or could have been raised in the first, “regardless of whether the failure to raise it earlier stemmed from a deliberate choice,” unless the petitioner “can show that a fundamental miscarriage of justice….”

Unpublished decisions

• Bello v. Ciolli, 25-11381, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Douglas) (no oral argument), habeas corpus
  • Dismissing as frivolous appeal of transfer of sec. 2241 petition.
  • At issue on appeal was whether a federal prisoner’s 28 U.S.C. § 2241 petition—raising jurisdictional challenges to his wire-fraud and money-laundering convictions and claims of interpreter deprivation and sentencing-transcript errors—should have been transferred rather than dismissed, and whether Bello could proceed in forma pauperis on appeal.
  • The court denied IFP status and dismissed the appeal as frivolous. Because Bello’s § 2241 petition challenged trial and sentencing errors, it was properly construed as a § 2255 motion over which only the sentencing court in the Eastern District of Texas had jurisdiction. Bello failed to satisfy the § 2255(e) saving clause under Jones v. Hendrix, 599 U.S. 465 (2023), and failed to show the interest of justice favored transfer under § 1631 given the dismissal was without prejudice. The court also warned Bello that future repetitive or frivolous filings could result in sanctions.

• United States v. Carrillo-Ojeda, 25-50979, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming upward-variance sentence on conviction of illegal reentry.
  • At issue on appeal was whether the district court adequately explained an upward-variance sentence of 48 months for illegal reentry, and whether that sentence was substantively unreasonable.
  • Reviewing the explanation challenge for plain error (the issue was forfeited below), the court found no error given the lengthy sentencing colloquy and the fact-specific reasons provided for the variance. On substantive reasonableness, the court held the district court did not abuse its discretion in varying upward based on the defendant’s criminal history and sentencing factors under 18 U.S.C. § 3553(a), noting the sentence was well below the statutory maximum and proportionally smaller than variances previously upheld.

• Hurt v. Garcia et al., 25-40484, appeal from E.D. Tex.
  • per curiam (Higginson, Engelhardt, Ramirez) (no oral argument), employment discrimination
  • Affirming dismissal of pro se plaintiff’s employment discrimination claims.
  • At issue on appeal was (1) whether a pro se plaintiff’s second amended complaint—filed under a repleading order but exceeding its scope and not complying with Rule 15(a)—became the operative pleading; (2) whether the district court erred in dismissing employment-discrimination claims (ADEA, ADA, Title VII, and Texas Labor Code) against individual non-employer defendants for failure to state a claim; (3) whether denial of leave to amend was proper on futility grounds; and (4) whether exhaustion of administrative remedies was required before filing federal employment claims.
  • The court held the second amended complaint had “no legal effect” because it did not comply with Rule 15(a) and exceeded the repleading order’s limited scope. The district court properly dismissed the federal and state employment-discrimination claims because individual defendants who are not the plaintiff’s employer cannot be held liable under the ADEA, ADA, Title VII, or the Texas Labor Code. Common-law claims likewise failed: constructive discharge is not a standalone Texas cause of action, the IIED claim was preempted by statutory claims, and civil conspiracy failed as a derivative tort. Denial of leave to amend was not error because Hurt forfeited any challenge to the futility determination by failing to brief it on appeal.

• Bennett v. Siffin, 25-50217, appeal from W.D. Tex.
  • per curiam (King, Southwick, Haynes) (oral argument withdrawn), fraud
  • Affirming $40 million jury verdict for fraud claim.
  • At issue on appeal was whether the economic-loss rule barred a fraud claim brought by a litigation trust (on behalf of lenders/creditors) against the CEO of debtor oil companies who entered into a loan-agreement amendment and authorized loan draws while knowing the companies were in default; and whether the district court erred in denying summary judgment, judgment as a matter of law, evidentiary rulings, and post-judgment motions.
  • The court concluded the economic-loss rule does not prevent the fraud claim in this case, and the remaining appellate arguments failed to warrant reversal.

• United States v. Harlston, 26-40037, appeal from E.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Finley v. AmeriCredit Financial Services, Inc., 26-60010, appeal from S.D. Miss.
  • per curiam (King, Higginson, Douglas) (no oral argument), arbitration
  • Affirming grant of motion to compel arbitration.
  • At issue on appeal was whether the district court erred in granting motions to compel arbitration and dismiss a lawsuit challenging vehicle repossession, where the appellant contested formation of one contract (the retail installment sale contract) but failed to challenge the district court’s finding that a separate purchase agreement—bearing her handwritten signature—contained a valid arbitration clause.
  • Because Harris Finley did not dispute on appeal that the purchase agreement contained a valid arbitration clause, she waived that challenge, and the court affirmed on that basis alone.

• United States v. Sanford, 25-40627, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Naylor v. Town of Rayville et al., 25-30737, appeal from W.D. La.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), personal torts, recusal, sanctions
  • Affirming summary judgment dismissal of various negligence-based claims.
  • At issue on appeal was (1) whether summary judgment was proper for franchisor Popeyes Louisiana Kitchen, Inc. (PLKI) on negligent-hiring, negligent-supervision, and negligent-security claims; (2) whether dismissal with prejudice under Rules 37 and 41(b) was appropriate given the pro se plaintiff’s repeated refusal to comply with discovery and court orders; and (3) whether recusal of the judges was warranted.
  • PLKI, as a franchisor that never owned or operated the store, was not liable under Louisiana law for acts of its franchisee’s employees or for securing the franchisee’s premises. Dismissal with prejudice was warranted as a sanction because Naylor repeatedly refused to comply with discovery orders, failed to sit for her deposition, and failed to attend a dispositive-motions hearing—conduct the district court found contumacious and unlikely to be cured by lesser sanctions. The recusal arguments failed because adverse rulings alone do not establish judicial bias.

• In re Lockwood Holdings, Inc.—Lockwood v. B. Riley Financial, Inc., 25-20434, appeal from S.D. Tex.
  • Higginson, J. (Smith, Higginson, Wilson) (no oral argument), bankruptcy
  • Affirming sanctions for violation of reorganization plan’s release and injunction provisions.
  • At issue on appeal was (1) whether the bankruptcy court abused its discretion in holding the debtor’s sole shareholder in civil contempt for refusing to dismiss a state-court suit that violated the confirmed plan’s release and injunction provisions; (2) whether the shareholder had a “fair ground of doubt” defense under Taggart v. Lorenzen, 587 U.S. 554 (2019); and (3) whether the bankruptcy court erred in awarding attorney fees.
  • Lockwood’s Taggart “good faith” argument was waived because it was never raised before the bankruptcy court. Lockwood openly stated he would not comply with the enforcement order, justifying the contempt sanction of incarceration—and he was released as soon as he dismissed the state-court suit. The argument that the bankruptcy court’s primary purpose was punishment was also waived for failure to raise it below. The attorney-fees challenge was waived for failure to brief it on appeal.

• Hopper v. Guerrero, 25-50169, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), habeas corpus
  • Affirming dismissal of sec. 2254 petition as time-barred.
  • At issue on appeal was whether the district court erred in determining, for purposes of statutory tolling under 28 U.S.C. § 2244(d)(2), the date on which a Texas state prisoner filed his application for state collateral review, resulting in dismissal of his § 2254 habeas petition as time-barred.
  • Hopper failed to address the time-bar issue in his initial or supplemental brief, thereby waiving the issue on appeal. A conclusory tolling argument raised only in the reply brief was not considered. All pending motions were denied.

• United States v. Minger, 25-11212, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, supervised release
  • Dismissing appeal from imposition of treatment requirement after revocation of supervised release.
  • At issue on appeal was whether a supervised-release condition requiring participation in sex-offender treatment (potentially including plethysmograph testing) imposed after revocation of supervised release was lawful; defendant acknowledged the challenge is foreclosed by circuit precedent and raised it solely to preserve for further review.
  • The court held the challenge to the supervised-release condition was not ripe for review under United States v. Ellis, 720 F.3d 220, 227 (5th Cir. 2013).

• United States v. Ayala-Ochoa, 25-11347, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.