Take the Fifth

Designated for publication

• United States v. London, 25-20102, appeal from S.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), criminal, sentencing, guilty plea
  • On remand from U.S. Supreme Court, dismissing appeal of conviction and sentence in light of appeal waiver in plea agreement.
  • Davantae London robbed multiple Wal-Mart stores at gunpoint in the Houston area. As part of his plea agreement, he waived his right to appeal his conviction and sentence. He tried to appeal anyway, and the Fifth Circuit initially dismissed. The Supreme Court then granted certiorari, vacated the judgment, and remanded in light of Hunter v. United States, 146 S. Ct. 1702 (2026).
  • At issue on remand was whether enforcement of London’s appeal waiver would “result in a miscarriage of justice” under the newly announced Hunter standard, which provides that a waiver is unenforceable if it would produce “the kind of egregious error that would bring the judicial system into disrepute.”
  • The Hunter Court’s examples of “miscarriage of justice” included sentences exceeding statutory limits, sentences infected with blatant constitutional error, or sentences imposed without a minimum of civilized procedure—errors that jeopardize “the justice system’s basic integrity.”
  • London merely challenged the district court’s application of the Sentencing Guidelines (running his federal sentence consecutive to his state sentence under U.S.S.G. § 5G1.3). The court held: “Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver”—even assuming such an error occurred.

• Hughey v. Tippah County, Mississippi, 25-60232, appeal from N.D. Miss.
  • Ramirez, J. (King, Smith, Ramirez) (oral argument), King, J., dissenting; qualified immunity, amendment
  • Affirming qualified immunity dismissal of claims against officer defendant, and dismissing remainder of appeal as abandoned.
  • James Hughey, suffering from medical conditions that caused confusion, entered his ex-girlfriend’s sister’s home in a confused state consistent with ammonia poisoning. Deputy Tommy Mason, the sister’s ex-husband and an on-duty Tippah County deputy, responded and allegedly “kicked and beat” Hughey, fracturing several ribs and rupturing his spleen. Karen Hughey, as Executrix of James Hughey’s estate, sued under 42 U.S.C. § 1983 for excessive force.
  • At issue on appeal was (1) whether the complaint pleaded sufficient facts to state an excessive-force claim under the Fourth Amendment; (2) whether the right was clearly established; and (3) whether the district court abused its discretion in denying the Rule 54(b) motion and leave to amend.
  • The complaint did not allege facts regarding the severity of the crime at issue, whether Hughey posed a threat, or whether he was resisting arrest. The court stated it “cannot assume facts not alleged” and that “injury alone is insufficient to state an excessive-force claim” without contextual factual allegations.
  • Hughey failed to satisfy the clearly-established prong because he cited no controlling authority, no robust consensus of persuasive authority, and did not demonstrate the “rare obvious case.”
  • Amendment would have been futile, and the deputy’s own deposition testimony offered by Hughey suggested he posed a threat and was resisting.
  • Judge King dissented, contending the majority “fails to credit the plaintiff’s allegations or view them in the light most favorable to him,” as required at the pleadings stage. She characterized the allegations as establishing that Hughey “simply walked into someone else’s house and was beaten for it”—at best a misdemeanor trespass—and criticized the majority for entertaining hypothetical “what ifs.”
  • Judge King wrote: “We cannot ask, for example, ‘what if Hughey was resisting arrest?’ or ‘what if Hughey had a weapon?’ any more than we can ask ‘what if Hughey was a convicted serial killer on the loose?’ or ‘what if Hughey was the devil himself?'”
  • On the clearly-established-law prong, Judge King cited Bush v. Strain and Darden v. City of Ft. Worth for the proposition that “it was clearly established that violently slamming or striking a suspect who is not actively resisting arrest constitutes excessive use of force.”

• NicQuid, L.L.C. v. FDA, 24-60272, c/w Breeze Smoke, L.L.C. v. FDA, 24-60304, c/w Vertigo Vapor, L.L.C. v. FDA, 24-60332, c/w Lead by Sales, L.L.C. v. FDA, 24-60424, c/w Vapermate, L.L.C. v. FDA, 24-60628, c/w Elite Brothers, L.L.C. v. FDA, 25-60098, c/w American Vapor Co., L.L.C. v. FDA, 25-60369, petition for review of FDA orders
  • Smith, J. (Higginbotham, Smith, Oldham) (oral argument), administrative law
  • Granting petitions for review, vacating marketing denial orders, and remanding.
  • Multiple ENDS (electronic nicotine delivery systems) manufacturers petitioned for review of FDA marketing denial orders (“MDOs”) for flavored e-cigarette products. NicQuid submitted premarket tobacco product applications (“PMTAs”) for menthol-blend, fruit-flavored, spearmint, and zero-nicotine e-liquids. FDA denied the applications under its “comparative-efficacy standard,” finding that they lacked sufficient evidence that the flavored products would benefit adult users enough to outweigh youth initiation risks. Petitioners argued the FDA’s use of this standard, developed internally and applied across over one million MDOs, constituted an unlawful substantive rule adopted without APA notice-and-comment rulemaking.
  • At issue on petition was whether the FDA’s comparative efficacy standard is a substantive rule requiring notice-and-comment rulemaking under the APA, and whether it could be lawfully promulgated through informal adjudication.
  • The court held the comparative efficacy standard is a substantive rule because it “affects the rights of broad classes of unspecified individuals,” binds FDA staff to one course of action, and has been applied rigidly across more than one million MDOs for over six million products. The court stated: “Can we credibly say that FDA and its staff are free to exercise discretion in adjudicating applications and issuing orders outside, around, or despite the comparative efficacy standard? No.”
  • The court applied SEC v. Chenery Corp. and found that none of Chenery II‘s three rationales for permitting adjudicatory lawmaking applied: the risk of flavored ENDS to youth was not unforeseeable, the FDA could not claim inexperience after six million applications, and the problem was not “so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule.” The court wrote: “A rigid rule that FDA applies with the consistency and predictability of a metronome is the antithesis of an evolving, case-by-case standard.”
  • The court further held that even if adjudication were permissible, a substantive rule cannot be promulgated through informal adjudication (which lacks the procedural protections analogous to notice-and-comment rulemaking). Manufacturers received no input into the closed-door development of the rule and no opportunity to cure deficiencies.
  • On venue, the court held that co-petitioner Wood Creek Vapory’s Texas principal place of business established proper venue for all petitioners under National Association of Private Fund Managers v. SEC, and that Trump v. CASA did not disturb that conclusion because petitioner NicQuid was an “actually present party” seeking APA vacatur, not a universal injunction.
  • The court quoted: “This is not a close call.” (R.J. Reynolds Vapor Co. v. FDA, 65 F.4th at 194.)

• Hamm v. Ochsner-Acadia, L.L.C., 25-30603, appeal from E.D. La.
  • Graves, J. (Stewart, Graves, Wilson) (oral argument), Fair Labor Standards Act, appellate jurisdiction, class action
  • Dismissing for lack of appellate jurisdiction FLSA collective certification, affirming Rule 23 class certification, and remanding.
  • Plaintiffs are current and former support staff at River Place Behavioral Health, a psychiatric hospital in LaPlace, Louisiana, operated by Acadia-affiliated entities. They allege that although they received nominal meal breaks, Acadia’s policies and their professional ethical duties effectively required them to be on call without pay during those periods. They sued under the FLSA and Louisiana state law for unjust enrichment and conversion. The district court certified both an FLSA collective action and a Rule 23(b)(3) class action for the state-law torts.
  • At issue on appeal was (1) whether the court had pendent appellate jurisdiction over the FLSA collective certification via a Rule 23(f) appeal; and (2) whether the district court abused its discretion in certifying the Rule 23 class (predominance, superiority, typicality, and adequacy).
  • The court declined pendent appellate jurisdiction because the FLSA predominant-benefit test does not govern the state-law torts (unjust enrichment and conversion), which present different legal inquiries, different predominant questions, and different manageability concerns.
  • On class certification, common questions predominated because all class members were subject to the same policies and similar professional obligations making them effectively on call. The court noted plaintiffs’ burden is only to show common questions predominate, “not that those questions will be answered, on the merits, in” the class’s favor.
  • The class was manageable because if meal periods were effectively on call, “all meal periods are entirely compensable,” making damages calculable from time-punch and payroll data.

• Kipp Flores Architects, L.L.C. v. AMH Creekside Development, L.L.C., 23-50750, appeal from W.D. Tex.
  • Willett, J. (Haynes, Willett, Oldham), Oldham, J., dissenting, (oral argument), appellate jurisdiction, Rule 41, copyright, Digital Millenium Copyright Act
  • Affirming dismissal of DMCA claims, vacating dismissal of copyright infringement claims, and remanding.
  • KFA, an architecture firm, licensed its copyrighted building plans and technical drawings to AHV for use within 50 miles of Austin. The agreements required inclusion of KFA’s copyright management information (CMI) on all copies. Third-party graphics companies created floorplan drawings and renderings based on KFA’s works without including KFA’s CMI. These materials were subsequently used in marketing for a new development (Creekside Ranch) after a partial assignment of the license. KFA sued for DMCA violations and copyright infringement; the district court dismissed both.
  • At issue on appeal was (1) whether the court had appellate jurisdiction despite the district court’s improper use of Rule 41(a)(2) to dismiss only remaining claims; (2) whether § 120(a) of the AWCPA applies to PGS works (technical drawings) or only to architectural works; (3) whether floorplans and digital renderings are “pictorial representations” under § 120(a); (4) whether § 120(a) is an affirmative defense; and (5) whether the DMCA’s prohibition on “removal” of CMI creates an obligation to add CMI where it was never present.
  • Jurisdiction: An erroneous Rule 41(a)(2) dismissal, unlike an invalid Rule 41(a)(1) dismissal, does not strip appellate jurisdiction. A Rule 41(a)(1) dismissal is “self-effectuating” and occurs only if preconditions are met; a Rule 41(a)(2) dismissal is by court order and, like any other erroneous order, occurs even if erroneous.
  • Copyright—PGS works: Section 120(a) limits only “[t]he copyright in an architectural work”—it says nothing about pictorial, graphic, and sculptural (PGS) works. “The silence [is] both deafening and dispositive.” The district court erred in applying § 120(a) to KFA’s PGS works.
  • Copyright—Architectural works: Floorplans and digital renderings are “pictorial representations” under § 120(a)’s broad plain meaning. The court rejected the Eighth Circuit’s Designworks narrowing of the term to artistic-only images, finding no textual basis for limiting “pictorial representations” to non-functional purposes. However, § 120(a) is an affirmative defense, and since the complaint was silent on when the allegedly infringing acts occurred relative to construction, dismissal on that basis was premature.
  • DMCA: Both “remove” and “alter” presuppose that CMI was present before the challenged act. KFA’s CMI was never on the separately created floorplans and renderings, so it could not have been “removed” or “altered.” The court also rejected the argument that parties can contractually stipulate to a federal statutory interpretation: “litigants cannot bind us to an erroneous interpretation of federal legislation.”
  • The court noted regarding the AWCPA’s history: “Historically, copyright law provided limited protection to works of architecture.” The AWCPA gave architectural works their own category of copyright protection but imposed § 120(a) as a limitation.
  • Judge Oldham dissented on jurisdiction, arguing that Rule 41 only permits dismissal of “an action”—not individual claims—and that under Exxon Corp., Williams, and National Horsemen’s, “an invalid Rule 41(a) dismissal is a nullity” leaving claims “pending in district court.”
  • He contended: “No amount of interpretive sophistry can change this fact: ‘We give the Federal Rules of Civil Procedure their plain meaning.'”
  • Judge Oldham criticized the majority for conflating an erroneous Rule 12 or 56 order (which the court has jurisdiction to review) with an order that never validly terminated the action (which precludes finality).

• Norcave Properties, L.L.C. v. IRS, 25-30542, appeal from W.D. La.
  • Smith, J. (Smith, Willett, Ramirez) (oral argument), jurisdiction, Anti-Injunction Act, Declaratory Judgment Act
  • Affirming dismissal of suit against IRS to context penalties, for lack of subject matter jurisdiction.
  • Norcave, a partnership, claimed a tax deduction after donating a conservation servitude on 321 acres of property in 2018. The IRS audited the filing and issued a Notice of Final Partnership Adjustment disallowing the deduction and imposing civil fraud and accuracy-related penalties (negligence, substantial understatement, and gross-valuation misstatement under 26 U.S.C. § 6662). Norcave sued in federal district court demanding a pre-payment jury trial to contest the penalties. The IRS later dropped the civil fraud penalty.
  • At issue on appeal was whether federal courts have subject matter jurisdiction over Norcave’s pre-payment challenge to accuracy-related penalties under 26 U.S.C. § 6662, or whether the Anti-Injunction Act (26 U.S.C. § 7421) and the Declaratory Judgment Act (28 U.S.C. § 2201) strip jurisdiction.
  • Under 26 U.S.C. § 6665(a)(2), “any reference in this title to ‘tax’ imposed by this title shall be deemed also to refer to the additions to the tax, additional amounts, and penalties provided” in Chapter 68. Accuracy-related penalties under § 6662 thus merge into “tax” for purposes of the AIA.
  • Applying CIC Services, LLC v. IRS, the court identified the “objective aim” of Norcave’s suit as restraining an assessment of tax liability already in motion—squarely within the AIA’s prohibition. Unlike CIC Services, where the challenged reporting requirement was “several steps removed” from a tax, here the penalties are part of the assessed tax itself.
  • The court distinguished CIC Services on additional grounds: there is no criminal overlay here, alternative forums exist (Tax Court, which has already entertained an equivalent case in Silver Moss), and Norcave’s requested injunction could potentially eliminate the entire tax assessment—”frustrat[ing] the revenue-collection process.”

• In re Media Matters for America, 25-10630, appeal from N.D. Tex.
  • Graves, J. (Clement, Graves, Willett) (no oral argument), mandamus, venue
  • Granting mandamus in part, vacating denial of transfer and ordering reconsideration of venue analysis, and holding interlocutory appeal in abeyance.
  • In November 2023, Media Matters published articles claiming that advertisements from popular brands were placed next to extremist user content on the X platform (formerly Twitter). X Corp. sued Media Matters in the Northern District of Texas for interference with contract, business disparagement, and interference with prospective economic advantage. After discovery revealed that no affected advertisers were based in Texas, Media Matters moved to transfer venue to the Northern District of California. The district court denied the motion solely on timeliness grounds, calling it “gamesmanship,” and ordered briefing on sanctions.
  • At issue on appeal and mandamus was whether the district court clearly abused its discretion by denying venue transfer under 28 U.S.C. §§ 1404(a) and 1406 based exclusively on a “reasonable promptness” analysis without ever considering the mandatory eight public- and private-interest factors from In re Volkswagen.
  • The court held that Media Matters had a “clear and indisputable right” to a venue analysis that “at least contemplates the eight factors,” citing multiple precedents describing the eight-factor inquiry in mandatory terms.
  • Timeliness, while a relevant consideration, is properly analyzed as part of the fourth private-interest factor (“all other practical problems that make trial of a case easy, expeditious, and inexpensive”), not as a standalone dispositive threshold. The court quoted Volkswagen: no factor “can be said to be of dispositive weight.”
  • The court noted prudent reasons why timeliness should not be standalone: “Over the course of litigation, innocuous circumstances may explain why a transfer motion is filed later than appreciated—for example, facts uncovered through discovery, or the impact of an appellate decision and rem

Unpublished decisions

• United States v. Sanchez, 25-20465, appeal from S.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Sandoval, 25-40714, appeal from S.D. Tex.
  • per curiam (Elrod, Clement, Oldham) (no oral argument), criminal, sentencing, supervised release
  • Affirming supervised release conditions as part of sentence.
  • At issue on appeal was whether the district court plainly erred by imposing a special condition of supervised release requiring participation in a mental-health treatment program and compliance with prescribed medication.
  • Reviewing for plain error because Sandoval did not object at sentencing, the court found no clear or obvious error. The PSR documented Sandoval’s ADHD diagnosis, anger issues, counseling, prescribed medication, and self-medication with alcohol and marijuana stemming from military service, providing a sufficient basis for the condition.

• United States v. Cope, 25-50658, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing, mootness
  • Dismissing appeal of conditions of supervised release.
  • At issue on appeal was Whether the appeal challenging discretionary conditions of supervised release was moot after those conditions were not included in a subsequent revocation judgment.
  • Because Cope was no longer subject to the challenged discretionary conditions and failed to identify any ongoing collateral consequence, the appeal was dismissed as moot.

• Teeuwissen v. Hinds County, Mississippi, 25-60605, appeal from S.D. Miss.
  • per curiam (Elrod, Clement, Oldham) (oral argument), amendment, breach of contract
  • Affirming summary judgment for plaintiff and denial of leave to amend defendant’s answer.
  • At issue on appeal was whether the district court properly denied the County leave to amend its answer to add a new illegality defense under Rule 16(b)(4), and whether summary judgment for Teeuwissen was appropriate.
  • In a prior appeal, the Fifth Circuit had held that Mississippi law expressly authorized Teeuwissen’s contract. On remand, the County sought to raise a new illegality defense but failed to include it in its original answer. The court declined to decide whether amendment was appropriate because the County’s proposed defense had no merit—there was no reasonable argument that the contract was illegal under Mississippi law.

• Hernandez v. Paxton, 26-50109, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), Rule 60, Younger abstention
  • Affirming denial of Rule 60 motion on Younger abstention.
  • At issue on appeal was whether the district court abused its discretion in denying relief under Federal Rule of Civil Procedure 60(b)(1), (5), and (6) from a judgment based on Younger abstention, where Hernandez—a state-classified vexatious litigant—challenged requirements imposed on his ability to file suit.
  • The court held that: (1) Rule 60(b)(5) was inapplicable because a dismissal order does not apply prospectively; (2) Rule 60(b)(6) provided no relief because Hernandez’s procedural limitations resulted from generally applicable rules, not extraordinary circumstances; and (3) Rule 60(b)(1) failed because Hernandez’s constitutional challenges to the vexatious-litigant statute were frivolous.

• Yan v. State of Texas, et al., 25-10752, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), sec. 1983, sovereign immunity, amendment
  • Affirming dismissal of pro se plaintiff’s § 1983, RICO, and state-law claims—arising from his divorce proceedings—on grounds of lack of standing, duplicative litigation, failure to state a claim, sovereign immunity, and futility of amendment.
  • The court held: (1) Yan lacked standing to sue the family-court judge who acted in an adjudicatory capacity; (2) claims against his ex-wife’s attorney and his own former attorney were duplicative of an earlier suit; (3) RICO claims against his ex-wife’s business associates failed to plead a plausible violation (lacking specificity on wire fraud and money laundering predicates, and failing to show continuity); (4) claims against Texas were barred by Eleventh Amendment sovereign immunity; (5) the district court properly declined supplemental jurisdiction over remaining state-law claims; and (6) further amendment would be futile.

• United States v. Baltazar, 25-11313, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Risby, 25-10953, appeal from N.D. Tex.
  • per curiam (Elrod, Richman, Duncan) (no oral argument), criminal
  • Dismissing as frivolous appeal from dismissal of motion to dismiss and denial of IFP.
  • At issue on appeal was whether a federal prisoner’s appeal of the denial of his motion to dismiss for lack of jurisdiction had arguable merit, and whether his IFP motion should be granted.
  • Risby failed to meaningfully challenge any factual or legal aspect of the district court’s denial, thereby abandoning the critical issue on appeal. Motions to disqualify the judges and for bond pending appeal were also denied.

• Point Bridge Capital, L.L.C. v. Johnson, 25-10919, appeal from N.D. Tex.
  • per curiam (Elrod, Clement, Oldham) (no oral argument), damages, civil
  • Affirming jury’s damages verdict.
  • At issue on appeal was whether the jury’s damages verdict, entered after a default judgment on liability, contained reversible error.
  • After reviewing the briefing and record, the court found no reversible error.

• Musa v. Blanche, 26-60014, petition for review of BIA order
  • per curiam (Davis, Richman, Oldham) (no oral argument), immigration
  • Denying petition for review of BIA order upholding IJ’s adverse credibility determination and denial of withholding of removal and CAT protection.
  • The court found that the IJ was not required to accept Musa’s explanations for discrepancies regarding passport stamps and visa procurement; that some credibility challenges were unexhausted; that the adverse credibility finding was fatal to withholding of removal; and that the IJ did not err in denying CAT relief, properly considering the credibility determination and the weight of supporting statements and country-conditions evidence. A due process argument raised for the first time in the reply brief was declined for consideration.

• In re Mahadevan, 25-20546, appeal from S.D. Tex.
  • per curiam (Elrod, Clement, Oldham), Oldham, J., concurring in judgment (no oral argument), bankruptcy, hearsay
  • Affirming bankruptcy court’s finding of nondischargeability.
  • At issue on appeal was (1) whether a debt arising from a California state-court defamation and emotional-distress judgment was nondischargeable under 11 U.S.C. § 523(a)(6) based on an “objective substantial certainty of harm” standard, even absent subjective intent to injure; (2) whether certain exhibits were inadmissible hearsay; and (3) whether the bankruptcy court erred in denying a motion for judgment on the pleadings.
  • The bankruptcy court did not clearly err in finding that Mahadevan knew his allegations of plagiarism and data falsification were false and that spreading them was objectively substantially certain to harm Bikkina’s career and reputation. The challenged exhibits were admissible as non-hearsay (offered for effect on the listener, or as opposing-party statements). Mahadevan’s challenge to the factual sufficiency of the complaint was moot because Bikkina prevailed at trial.
  • Judge Oldham concurred in the judgment, writing separately to note that the Fifth Circuit’s “objective substantial certainty” standard from In re Miller, 156 F.3d 598 (5th Cir. 1998), “appears to be an outlier” among the circuits.
  • He observed that most courts require a “purely subjective approach” to willful and malicious injury under § 523(a)(6), and that at least two circuits have expressly criticized Miller as inconsistent with Kawaauhau v. Geiger. “In an appropriate case, our en banc court should reconsider this question.”

• Montero v. Commissioner of Internal Revenue, 26-60162, appeal from U.S. Tax Court
  • per curiam (Stewart, Graves, Oldham) (no oral argument), tax
  • Affirming upholding of frivolous-filing penalty.
  • At issue on appeal was whether the Tax Court properly upheld a $5,000 frivolous-filing penalty under 26 U.S.C. § 6702(a) for reporting zero taxable wages, and whether the $25,000 sanction under § 6673(a)(1) was an abuse of discretion.
  • Montero repeated the long-rejected argument that wages from a private employer are not subject to income tax. The court declined to overrule longstanding precedent and found no abuse of discretion in the $25,000 sanction given Montero’s extensive history of pressing identical frivolous arguments. The court warned Montero that additional appellate sanctions may follow if he continues these filings.

• Johnson v. Tarrant County, Texas, et al., 25-10540, appeal from N.D. Tex.
  • per curiam (Elrod, Clement, Oldham) (no oral argument), sec. 1983
  • Affirming with no analysis, under 5th Cir. R. 47.6.

• Landmark American Insurance Co. v. Insurance Unlimited of Louisiana, 25-30396, appeal from W.D. La.
  • per curiam (Elrod, Ho, Ramirez) (no oral argument), insurance, mootness
  • Dismissing as moot appeal from abstention order.
  • At issue on appeal was whether an appeal from a Colorado River abstention stay order became moot after the parallel state-court proceeding concluded with a final judgment.
  • Because the state proceeding reached a final judgment and that judgment was no longer on appeal, the district court’s stay had expired by its own terms, rendering the appeal of the stay order moot. The court declined to address res judicata arguments raised for the first time in post-argument letter briefs.

• United States v. Gardner, 25-50730, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, search and seizure, sentencing
  • Affirming conviction and sentence, upholding denial of motion to suppress.
  • At issue on appeal was (1) whether the district court erred in denying a motion to suppress based on the search warrant affidavit; (2) whether the criminal history score was miscalculated; and (3) ineffective assistance of counsel.
  • The search warrant affidavit was not “bare bones,” so the good-faith exception applied. The criminal-history-score challenge was waived at sentencing. The ineffective-assistance claim was declined for lack of a sufficiently developed record, without prejudice to collateral review.

• United States v. Gonzalez-Acuna, 25-50926, appeal from W.D. Tex.
  • per curiam (Barksdale, Graves, Higginson) (no oral argument), criminal, sentencing
  • Affirming 24-month sentence for illegal reentry.
  • Gonzalez-Acuna failed to show the alleged procedural error affected the outcome; failed to demonstrate clear-or-obvious error in the substantive reasonableness of the sentence; and failed to show that imposition of supervised release affected his substantial rights, given that his criminal history (including five prior removals) supported the term as “an added measure of deterrence.”

• United States v. Castaneda-Castillo, 25-51005, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming sentence on firearms conviction.
  • At issue on appeal was whether the district court erred in treating a prior uncharged firearms-smuggling incident as relevant conduct under U.S.S.G. § 1B1.3 when calculating the base offense level.
  • The court held that: (1) a defendant need not have been charged with or convicted of other offenses for them to be relevant conduct; (2) the PSR’s unrebutted factual allegations sufficed as a preponderance of the evidence; and (3) the distinctive similarity between the two incidents—both involving the same truck, the same cargo trailer, concealed firearms and ammunition, and an attempted border-checkpoint crossing—supported the conclusion that they were part of the same course of conduct rather than isolated events.

• Soward v. Foulds, 26-20037, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), sec. 1983, municipal liability, Rule 59(e)
  • Affirming dismissal of sec. 1983 and municipal liability claims, and denial of Rule 59(e) motion.
  • At issue on appeal was (1) whether a pro se plaintiff stated a claim under 42 U.S.C. § 1983 alleging Fourth and Fourteenth Amendment violations arising from a traffic stop in which the officer allegedly coerced her signature on a citation; (2) whether the district court abused its discretion in denying a Rule 59(e) motion where the plaintiff claimed her opposition brief was lost by the clerk’s office; and (3) whether municipal liability under Monell was properly dismissed.
  • The court found that the district court did not dismiss the case merely for failure to respond; it assessed the merits and properly concluded that the complaint failed to state a claim. On de novo review, the court agreed: an officer informing a driver of her options under Texas law—arrest or signing a written notice to appear—did not violate the Fourth or Fourteenth Amendments, because Texas law authorizes warrantless arrests for traffic offenses and requires a signature on a citation as a condition of release. The Monell claim failed for lack of an underlying constitutional violation. Claims regarding municipal court proceedings failed to plead a due process deprivation, and a challenge to an in-person appearance requirement was raised for the first time on appeal and was forfeited.