Take the Fifth

Designated for publication

• United States v. Mendoza, 25-50072, appeal from W.D. Tex.
  • Wilson, J. (Southwick, Graves, Wilson) (no oral argument), Graves, J., dissenting in part; criminal, sentencing, restitution
  • Affirming enhanced sentence for receipt of child pornography; and affirming in part and vacating in part restitution awards.
  • Mendoza pleaded guilty to receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) after DHS discovered he had accessed a dark-web site offering child sexual abuse material and a forensic review of his devices revealed thousands of exploitative image and video files. He had a prior 2004 Texas state conviction for possession of child pornography under Texas Penal Code § 43.26. The district court applied an enhanced statutory minimum of 15 years under § 2252A(b)(1) and ordered $94,000 in restitution to fourteen victims.
  • At issue on appeal was (1) whether Mendoza’s prior Texas conviction “relat[ed] to” federal possession of child pornography for purposes of § 2252A(b)(1)’s sentencing enhancement, given that the Texas definition of child pornography is broader than the federal definition; and (2) whether the district court plainly erred in ordering restitution under the wrong statute (§ 3663A instead of § 2259) and in failing to conduct the proximate-cause analysis required by Paroline v. United States.
  • Sentencing Enhancement: The court held that “relating to” in § 2252A(b)(1) retains its ordinary, broad meaning—requiring only “a connection to the specified conduct, not an element-by-element match.” The court joined the majority of circuits (1st, 3d, 7th, 8th, and 10th) in so holding. It found that statutory context confirmed the broad reading: Congress used narrower connective language (e.g., “involves”) in other enhancement provisions and expressly required a strict match in a nearby provision (§ 2241(c)), yet chose “the broadest of connecting language” in § 2252A. The court distinguished Mellouli v. Lynch, 575 U.S. 798 (2015), noting that decision turned on unique “statutory and historical features” of the immigration statute that have “limited relevance” to § 2252A. As the court put it: “We must assume that Congress chose the words ‘relating to’ for a purpose.”
  • Restitution: While the district court erred in ordering restitution under the inapplicable § 3663A rather than § 2259, Mendoza could not show the error affected his substantial rights because there was no indication the award would differ under the correct statute. For eleven victims, detailed victim-impact statements and attorneys’ letters—which analyzed Paroline factors, catalogued victims’ estimated losses, and tied restitution requests to those losses—satisfied the proximate-cause requirement, even though those materials were not filed on the district court’s docket. The court distinguished United States v. West, 137 F.4th 395 (5th Cir. 2025), where the restitution order was “a free-floating restitution order of $6,000, untethered to any determination of loss.” For the remaining three victims, however, the record lacked sufficient documentation tying the restitution amounts to a proximate-cause analysis, requiring vacatur and remand.
  • Judge Graves dissented in part, and would have vacated the entire restitution award. He contended that the majority impermissibly reconstructed the district court’s Paroline analysis on a “materially different record” than in Teijeiro, because the restitution documents were never filed in the district court and only appeared in the appellate record through the Government’s motion to supplement. Judge Graves invoked the principle that “as an appellate court, we cannot take evidence or hear matters initially. We are dependent entirely on the record made in a trial court,” quoting In re Montes, 677 F.3d 415, 416 (5th Cir. 1982). He characterized the district court’s only reference to the restitution materials—”I think I’ve seen all that—or somewhere”—as plainly insufficient to substitute for Paroline‘s rigorous analysis.

• United States v. Williams, 25-10322, appeal from N.D. Tex.
  • Higginson, J. (King, Higginson, Duncan) (oral argument), criminal, Armed Career Criminal Act, sentencing
  • Affirming enhanced sentence for felon-in-possession.
  • Williams pleaded guilty to possessing a firearm as a felon (18 U.S.C. § 922(g)(1)). The district court sentenced him as a career offender under U.S.S.G. § 2K2.1(a)(2), finding he had two prior felony convictions qualifying as “crimes of violence” or controlled substance offenses—including a 2006 California robbery conviction under Cal. Penal Code § 211. The PSR also added two criminal history points for a California drug conviction for which attorney representation was listed as “unknown.” The resulting Guidelines range was 77 to 96 months; the court sentenced Williams to 77 months.
  • At issue on appeal was (1) whether California robbery under Cal. Penal Code § 211 qualifies as a “crime of violence” under the Sentencing Guidelines’ enumerated offense clause as amended in 2023 (U.S.S.G. § 4B1.2(e)(3)), particularly given that California robbery may be committed by the accidental use of force; and (2) whether the district court plainly erred in adding criminal history points based on an allegedly uncounseled California drug conviction.
  • California Robbery as Crime of Violence: The court acknowledged that its pre-2023 holding in Tellez-Martinez (2008) that California robbery was a crime of violence had been “disrupted” by the Sentencing Commission’s 2023 amendment defining robbery in § 4B1.2(e)(3) using Hobbs Act language. Williams argued that because California robbery can be accomplished by the “accidental use of force” (per People v. Anderson, 252 P.3d 968 (Cal. 2011)), it is broader than Guidelines robbery, which he contended requires intentional force. The court rejected this, holding that the Guidelines definition of robbery contains no explicit mens rea requirement, and Fifth Circuit precedent establishes that when “the plain language of the guideline contains no express mens rea requirement . . . no scienter is required.” Critically, the court distinguished between the force clause (which uses “against the person of another” and thus requires purposeful force under Borden v. United States) and the enumerated offense clause’s robbery definition (which uses only “by means of actual or threatened force” and lacks that augmenting modifier). As the court noted: “an oddity of this type does not rise to the level of absurdity required to preclude a plain reading of the Guidelines.”
  • Uncounseled Prior Conviction: The court granted Williams’s motion to supplement the record with a certified docket from his California drug case. That document showed Williams was arraigned, assigned a public defender, and advised of his rights, but that at a later sentencing hearing after probation revocation he was “not present in court, and not represented by counsel.” The court applied the presumption of regularity afforded to state convictions under Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009), noting the absence of transcripts, the original plea agreement, or any indication of what rights Williams may have waived. Because the supplemented record did not clearly resolve that the revocation hearing was unconstitutional, Williams could not satisfy plain error’s requirement of a “clear and obvious” legal error. Williams’s additional challenges to § 922(g)(1) under the Second Amendment and the Commerce Clause were concededly foreclosed by circuit precedent.

Unpublished decisions

• U.S. Bank Trust National Association v. Walden, 25-50983, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), foreclosure, party-presentation principle, forfeiting argument
  • Affirming judgment for bank and against defendants arising from foreclosure.
  • At issue on appeal was whether the appellants forfeited their arguments by failing to cite relevant legal authority under Federal Rule of Appellate Procedure 28(a)(8)(A), and whether the district court violated the party-presentation principle by recognizing that a September 2023 foreclosure sale was proper.
  • The court held that the Waldens forfeited most of their arguments by citing only inapposite authority. On the sole adequately briefed issue—the party-presentation principle—the court found no violation because U.S. Bank had expressly requested, in a supplemental brief, the relief the district court granted (authorization to foreclose), consistent with the Fifth Circuit’s prior remand instructions in U.S. Bank Trust National Ass’n v. Walden, 124 F.4th 314 (5th Cir. 2024).

• Gore v. Higher Education Loan Authority of the State of Missouri (MOHELA) et al., 25-10657, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (no oral argument), Fair Credit Reporting Act, attorneys’ fees, res judicata, Rule 59(e)
  • Affirming dismissal of FCRA claims and award to defendant of attorneys’ fees.
  • At issue on appeal was (1) whether the district court erred in granting Trans Union judgment on the pleadings on res judicata grounds after pro se plaintiff Terrence Gore filed a third lawsuit alleging false credit reporting; (2) whether the FCRA preempts the mandatory prevailing-party attorneys’ fee provision of Texas Business and Commerce Code § 28.08(c); (3) whether the district court abused its discretion in awarding $32,006.30 in attorneys’ fees (exceeding the $28,911.40 requested); (4) whether Trans Union was required to segregate fees among Gore’s three separate actions; and (5) various due process challenges.
  • The court held that Gore’s Rule 59(e) motion could not revive arguments that should have been raised before the judgment issued. On attorneys’ fees, the court found the TBCC allows fee recovery to a prevailing party unconditionally, without a frivolousness or bad-faith finding, distinguishing the FCRA’s more limited fee-shifting standard. Gore’s preemption argument failed for lack of supporting authority. The fee-segregation and excess-award arguments were forfeited because Gore did not raise them before the magistrate judge or in his Rule 59(e) motion, respectively. The due process claim was rejected for lack of record evidence.

• United States v. Starr, 25-20439, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Lightfoot v. Oak Bend Medical Center et al., 26-20056, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), civil
  • Affirming dismissal of pro se complaint.
  • Pro se plaintiff Jan Elizabeth Lightfoot raised nine claims on appeal from a Rule 12(b)(6) dismissal, including alleged structural error in denying a motion to amend the case caption, failure to apply federal-question jurisdiction, denial of access to courts via summons issues, premature sua sponte dismissal with prejudice, judicial bias, a conflict of interest related to a bankruptcy check, obstruction of rights, and violations of federal privacy laws.
  • The court, reviewing de novo, rejected each of Lightfoot’s nine arguments. The denial of the motion to amend the case caption was not structural error. The district court dismissed under Rule 12(b)(6), not for lack of jurisdiction. The dismissal before service was completed was permissible because Lightfoot had notice and an opportunity to respond, and she failed to show that denial of leave to further amend was an abuse of discretion. The judicial-bias, conflict-of-interest, obstruction-of-rights, and privacy-rights claims were all found to be either unpersuasive or inadequately briefed.