Take the Fifth

Designated for publication

• Polk v. Crawford, 25-20524, appeal from S.D. Tex.
  • Willett, J. (Willett, Engelhardt, Douglas) (oral argument withdrawn), Privileges and Immunities Clause, Equal Protection, preliminary injunction
  • Reversing denial of preliminary injunction to plaintiff challenging Texas residency provisions for escrow-officer license, and remanding with instructions to enter preliminary injunction.
  • Geoffrey Polk, a resident of Illinois licensed to practice law in approximately forty jurisdictions (including Texas) and holding title-producer licenses in twenty-four states, applied for a Texas escrow-officer license. Texas denied his application solely because he did not reside in Texas or an adjacent state (Oklahoma, Arkansas, Louisiana, or New Mexico), as required by Texas Insurance Code §§ 2652.051(c)(1) and 2652.056(1). The State conceded Polk met every other qualification. Polk sued under the Privileges and Immunities Clause (Article IV) and the Equal Protection Clause, then sought a preliminary injunction. The district court denied relief, reasoning it would be “precipitous to overturn a 60-year-old statute on a preliminary basis.”
  • At issue on appeal was (1) whether Polk had standing despite a Texas statute allowing attorneys to perform limited escrow functions without a license; (2) whether escrow work is a “common calling” protected by Article IV’s Privileges and Immunities Clause; (3) whether Texas’s adjacent-state residency requirement is “closely related to the advancement of a substantial state interest”; and (4) whether the remaining preliminary-injunction factors (irreparable harm, balance of equities, public interest) favored relief.
  • Escrow work is a protected common calling. The court held that escrow work is “sufficiently basic to the national economy” to warrant Article IV protection, analogizing to Supreme Court and circuit precedent protecting lawyers, construction workers, oil-and-gas workers, and insurance professionals. It rejected the State’s argument that escrow work involves “purely intrastate transactions,” writing: “The question is not whether the deed or dollars cross a border. It is whether the State erects one.” The court further observed: “A profession integral to transferring and financing real property is not at Article IV’s periphery. It is a common calling at the core.”
  • Texas failed to justify its discrimination. Once facial discrimination was established, the burden shifted to Texas to prove a “substantial reason” for the disparate treatment and a “close fit” between that reason and the challenged line. The State conceded it “did not offer evidence supporting the State’s interest” below. The court dismantled the State’s three post-hoc rationales—protecting escrowed funds, facilitating enforcement, and statutory longevity—noting, for example, that the rule “licenses Tulsa and refuses Wichita. It licenses Las Cruces and refuses Memphis. … Its sole criterion is a shared border.” On longevity, it wrote: “Longevity is not legitimacy,” and observed the adjacent-state exception itself dated only to 2009.
  • Remaining injunction factors were satisfied. Irreparable harm was established because sovereign immunity foreclosed any damages remedy, meaning “every engagement Polk loses … represents a loss no later judgment can restore.” On the equities and public interest, the court noted the injunction was narrow (limited to Polk), left Texas’s broader regulatory regime intact, and served constitutional interests: “Injunctions vindicating constitutional rights are ‘always in the public interest.'”

Unpublished decisions

• United States v. Perez-Gomez, 25-10268, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming sentence, including supervised release special conditions.
  • At issue on appeal was whether the written judgment’s inclusion of special-condition language not orally pronounced at sentencing constituted plain error, and whether the written judgment created a discrepancy with the oral sentence regarding when supervised-release conditions would apply.
  • The special condition’s full text appeared in the PSR that the defendant reviewed before sentencing, providing notice and opportunity to object; thus, it was not plain error to include it in the written judgment. The alleged discrepancy between the oral and written sentence was a reconcilable ambiguity consistent with the district court’s intent that the defendant would be removed following his prison term.

• Sixela Investment Group v. Hope Federal Credit Union, 25-30345, c/w 25-30418, c/w 25-30659, appeal from W.D. La.
  • per curiam (Wiener, Haynes, Graves) (oral argument), summary judgment, sanctions, attorneys’ fees
  • Affirming summary judgment dismissal of plaintiff’s claims, and award of sanctions and attorneys’ fees.
  • At issue on appeal was (1) whether the district court abused its discretion by granting summary judgment motions without allowing additional time for discovery under Rule 56(d); (2) whether it abused its discretion in denying counsel’s first three motions to withdraw; (3) whether it abused its discretion in sanctioning Sixela by striking untimely pretrial filings and entering a default judgment on the counterclaim; and (4) whether the attorney’s fees award should be set aside.
  • Sixela never moved under Rule 56(d) or showed what discovery would create a genuine issue of material fact. The denials of withdrawal were proper given imminent deadlines and the disruption withdrawal would cause. The default judgment was warranted by Sixela’s clear record of delay and contumacious conduct, including its members’ failure to cooperate with counsel. The fees award stood because the underlying decisions were not erroneous.

• United States v. Thomas, 25-30585, appeal from M.D. La.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), criminal, evidence, jury intructions
  • Affirming conviction.
  • At issue on appeal was whether the district court erred in admitting evidence about the defendant’s lifestyle and a letter, whether cumulative error warranted reversal, and whether the denial of a requested jury instruction was error.
  • All issues were reviewed for plain error because they were raised for the first time on appeal. Even assuming the disputed evidence should not have been admitted, it did not affect the outcome given substantial evidence of guilt. The denial of the requested jury instruction likewise made no difference between acquittal and conviction.

• United States v. Greer, 25-11319, appeal from N.D. Tex.
  • per curiam (Davis, Richman, Oldham) (no oral argument), criminal, sentencing, Second Amendment, Commerce Clause
  • Affirming conviction of felon-in-possession.
  • At issue on appeal was (1) whether 18 U.S.C. § 922(g)(1) is unconstitutional on its face and as applied; and (2) whether the district court erred in applying a sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession of firearms in connection with drug trafficking.
  • The facial and Commerce Clause challenges to § 922(g)(1) are foreclosed by circuit precedent, and the as-applied challenge likewise fails under existing law. The district court’s factual finding that the firearms were connected to drug trafficking was plausible in light of the record and not clearly erroneous.

• Pete v. United States, 26-40110, appeal from E.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), standing, amendment
  • Affirming dismissal of pro se complaint.
  • At issue on appeal was whether the district court erred in dismissing a pro se complaint for lack of Article III standing and whether the court should have granted leave to amend.
  • The three-page complaint made only conclusory and general allegations and failed to allege a concrete, particularized, actual, or imminent injury sufficient to establish standing. The plaintiff never sought leave to amend and gave no indication in any filing that he could establish standing in an amended complaint, so the district court did not err in dismissing without offering leave to amend.

• In re Prime Holdings Insurance Services, Inc., 26-30410, appeal from W.D. La.
  • per curiam (Elrod, Richman, Duncan) (no oral argument), mandamus, attorney-client privilege
  • Granting mandamus to vacate production orders.
  • At issue on appeal was whether mandamus should issue to vacate orders compelling production of materials claimed to be protected by attorney–client privilege and work-product doctrine, where the district court relied on a relevance-based standard for anticipatory waiver.
  • Under both Louisiana law and Fifth Circuit precedent, relevance alone does not waive attorney–client privilege. Waiver occurs only when the privilege holder affirmatively relies on privileged communications in its pleadings. Prime’s good-faith and reasonableness defenses did not mention attorneys or advice of counsel. The district court applied an incorrect legal standard by treating relevance as sufficient, and post-judgment review could not adequately remedy the erroneous disclosure.

• United States v. Valentine, 25-11183, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, sentencing, Armed Career Criminal Act
  • Affirming ACCA-enhanced sentence.
  • At issue on appeal was (1) whether prior Texas convictions for possession of cocaine with intent to deliver qualify as ACCA predicates; and (2) whether the ACCA sentence violated Erlinger v. United States.
  • The challenge to the classification of the prior convictions fails under existing precedent. The Erlinger challenge fails because the defendant admitted during his plea that his three qualifying offenses occurred on separate occasions, rendering any error harmless.

• United States v. Garza, 25-50819, c/w 25-50824, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming 24-month revocation sentence.
  • At issue on appeal was whether the 24-month revocation sentence was substantively unreasonable because the district court ordered it to run consecutively to the sentence for his § 922(g)(1) conviction.
  • The defendant did not show that the district court failed to account for a relevant factor, gave significant weight to an improper factor, or committed a clear error of judgment. The court relied on permissible factors and exercised its discretion in ordering consecutive sentences.

• Frontier Custom Builders, Inc. v. Kinsale Insurance Co., 25-20428, appeal from S.D. Tex.
  • per curiam (King, Smith, Ramirez) (oral argument withdrawn), insurance
  • Remanding summary judgment for insurer to district court for further clarification of basis for judgment.
  • At issue on appeal was whether the district court’s grant of summary judgment in favor of the insurer—holding that policy exclusions precluded defense and indemnity coverage for a construction-defect arbitration—was adequately explained for appellate review.
  • The district court’s brief order cited no authority and provided no meaningful analysis—particularly on the novel question of whether an ownership exclusion applies when the insured holds only “legal title” under Texas law, and on the insured’s argument under the eight-corners rule. Because the court could not adequately review the basis for the decision, it retained jurisdiction and remanded for a statement of reasons.

• United States v. Buggs, 26-60081, appeal from N.D. Miss.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, sentencing
  • Affirming 24-month revocation sentence.
  • At issue on appeal was whether the district court improperly considered the need to promote respect for the law at a revocation hearing, and whether the 24-month revocation sentence was substantively unreasonable.
  • The district court did not mention promoting respect for the law at the hearing, and the record did not show any impermissible factor was a dominant consideration. The court considered the defendant’s mitigation arguments but permissibly weighed his history and characteristics and did not impose a plainly unreasonable sentence.

• United States v. Barberena-Bustos, 25-50827, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Frazier, 26-10094, appeal from N.D. Tex.
  • per curiam (Davis, Richman, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Tippitt v. Iversen, 25-40397, appeal from E.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (oral argument withdrawn), qualified immunity
  • Dismissing for lack of appellate jurisdiction appeal from denial of qualified immunity to a police officer who shot and killed an individual during a traffic stop, rejecting challenge to the materiality of disputed facts.
  • Viewing the facts in the plaintiff’s favor, a jury could find that the officer deployed deadly force against a visibly empty-handed suspect who was fleeing, whose resistance was non-violent, and whom no reasonable officer would infer was armed based on the pat-down. Under the plaintiff’s version of events, the officer violated clearly established law—i.e., an officer violates the Fourth Amendment by shooting a visibly unarmed suspect moving away from everyone at the scene. Because a genuine dispute of material fact exists regarding whether a reasonable officer would have mistaken the meth pipe for a gun, the court lacked jurisdiction to resolve that factual question on interlocutory appeal.

• Sanchez Lozano v. Herrera Perez, 25-10184, appeal from N.D. Tex.
  • per curiam (Elrod, Clement, Haynes) (oral argument), international child custody
  • Affirming (on substituted opinion following denial of rehearing) denial of petition to return child to Mexico-resident parent.
  • At issue on appeal was whether the district court erred in denying a petition for the return of a child to Mexico under the Hague Convention on International Child Abduction, specifically whether the grave-risk exception of Article 13(b) was properly applied.
  • The district court did not clearly err in finding that the father had ties to a Mexican drug cartel and was a cocaine addict and alcoholic, creating a grave risk that returning the child would expose him to physical or psychological harm or place him in an intolerable situation. The factual findings were based on testimony at a two-day hearing, including the father’s own admissions. The court did not need to reach the separate well-settled defense.

• Garrett v. Director Lorie Davis, 25-40327, appeal from S.D. Tex.
  • per curiam (Willett, Engelhardt, Douglas) (oral argument withdrawn), prisoner suit
  • Vacating dismissal of Texas state prisoner’s § 1983 claim, and remanding for further proceedings.
  • At issue on appeal was whether the district court applied the correct legal standard for an Eighth Amendment sleep-deprivation claim brought by a Texas prisoner who alleges he has received only three to four hours of fragmented nighttime sleep for many years. This is the prisoner’s fourth appeal and the court’s third remand on the merits.
  • The district court committed three errors on the objective prong: (1) it demanded proof of a cause-and-effect relationship between sleep deprivation and illness rather than a substantial risk of serious harm; (2) it required identification of a precise numerical threshold of required sleep that precedent does not demand; and (3) it failed to account for the duration of the deprivation. These errors necessarily infected the subjective (deliberate indifference) analysis. The court declined to render judgment for the prisoner because unresolved factual questions remain, including whether daytime sleep opportunities meaningfully mitigate the nighttime restrictions.

• United States v. Stanley, 25-10687, appeal from N.D. Tex.
  • per curiam (Wiener, Haynes, Graves) (oral argument), tax law
  • Affirming judgment against taxpayer plaintiff on denial of ownership interest in property proceeds.
  • At issue on appeal was whether the duty of consistency barred a taxpayer from claiming a 50% ownership interest in property proceeds after she failed to disclose that interest on IRS Form 8857 when she obtained innocent spouse relief.
  • All three elements of the duty of consistency were met: (1) Stanley represented she had no assets by leaving Form 8857 blank; (2) the IRS relied on that representation in granting innocent spouse relief, because the taxpayer’s assets are material to the economic-hardship factor; and (3) Stanley now attempts to claim an interest in the property in a way that harms the Government’s ability to enforce its liens.

• Torosyan v. Blanche, 25-60450, petition for review of BIA order
  • per curiam (King, Smith, Ramirez) (no oral argument), immigration
  • Denying petition for review of BIA affirmance of denial of asylum, withholding of removal, and protection under the CAT.
  • At issue on appeal was (1) whether the BIA erred in affirming the immigration judge’s adverse-credibility determination that defeated asylum and withholding-of-removal claims; and (2) whether the denial of Convention Against Torture protection was supported by substantial evidence.
  • The adverse-credibility determination was supported by specific, record-based inconsistencies (which pinky finger was broken, conflicting honeymoon timeline, omission of the church leader’s role), the petitioner’s defensive demeanor, and the implausibility of cutting a honeymoon short to join dangerous protests given no prior political activity. The IJ was not required to accept the petitioner’s explanations. On the CAT claim, the country-conditions evidence described general unrest but did not establish a particularized likelihood that Torosyan himself would be tortured.