August 25, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • United States v. Luna, 25-40272, appeal from S.D. Tex.
    • Engelhardt, J. (Willett, Engelhardt, Douglas) (oral argument), Willett, J., concurring; criminal, Second Amendment, forfeiting argument
    • Originally released a day before as an unpublished per curiam (though still with Judge Willett’s separate concurrence, re-released as a published disposition with the majority opinion attributed to Judge Engelhardt.
    • Affirming dismissal of indictment of felon-in-possession on an as-applied Second Amendment challenge.
    • Raymond Luna was indicted under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. His sole predicate felony was for simple possession of a controlled substance. The district court dismissed the indictment, holding that § 922(g)(1) was unconstitutional as applied to Luna. The Government then moved for reconsideration, attaching for the first time police records suggesting Luna was actually trafficking drugs, but the district court rejected the late-filed evidence and denied the motion.
    • At issue on appeal was (1) whether the Government forfeited its argument that the district court abused its discretion in refusing to consider the belatedly-submitted evidence of drug trafficking; (2) whether the court could take judicial notice of documents not previously tendered below; and (3) whether a predicate conviction for simple drug possession can sustain a § 922(g)(1) conviction under the Second Amendment after United States v. Hembree.
    • The Government forfeited its argument that the district court abused its discretion by failing to brief it in its opening appellate brief: “A party forfeits an argument by failing to adequately brief the argument in its opening brief on appeal. To be adequate, a brief must address the district court’s analysis and explain how it erred.”
    • The court refused to take judicial notice of the documents, citing the principle that it “ordinarily should not take judicial notice of documents on an appeal which were available before the district court decided the case but nevertheless were not tendered to that court.”
    • With only a simple-possession conviction remaining in the record, the case was squarely controlled by Hembree, which held that simple possession cannot support a § 922(g)(1) conviction. The Government’s new historical analogue—Founding-era tobacco laws—had already been rejected in United States v. Banuelos. The Government’s argument that Luna could be disarmed because he was under indictment for firearm possession at the time of the offense was likewise foreclosed, as only qualifying predicate felonies are considered.
    • Judge Willett concurred in the judgment but wrote separately at length to address mounting doctrinal confusion in the circuit’s § 922(g)(1) case law, while noting he continues to “harbor serious doubts about our precedent upholding § 922(g)(1) as a valid exercise of Congress’s commerce power.”
    • He observed that the “felony” label now reaches far beyond its common-law origins—from “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny” to conduct like “opening a bottle of ketchup at the supermarket and putting it back on the shelf”—and that “[a]lmost twenty million Americans have felony convictions,” making § 922(g)(1) “among the most frequently prosecuted crimes in the federal code.”
    • The heart of the concurrence proposes a reconciliation of two seemingly conflicting lines of cases: Diaz/Kimble (which limit the inquiry to qualifying predicate convictions) and Contreras/Morgan (which allow examination of conduct underlying those convictions). Judge Willett argues these answer different questions: “Diaz and Kimble tell us what gets through the door: convictions punishable by more than a year in prison. Contreras, Betancourt, Morgan, and Simpson tell us what we may examine once a conviction gets through—including how the defendant committed it.” He urged district courts to follow this two-step framework pending the en banc court’s decision in United States v. Squire.
  • SEC v. Hill (UniBank), 25-50986, appeal from W.D. Tex.
    • Smith, J. (King, Smith, Ramirez) (oral argument), securities fraud, due process, abstention, personal jurisdiction, Full Faith and Credit, receivership
    • Vacating on due process grounds order to adopt receiver’s report and recommendation as to payment of losses in SEC enforcement action arising from Ponzi Scheme, and remanding for further proceedings.
    • The SEC brought an enforcement action alleging that Clean Energy Technology Association, Inc. (“CETA”) and its founder Roy Hill operated a Ponzi scheme that raised at least $155 million from over 500 investors nationwide through fictitious “Carbon Capture Units.” A receiver was appointed and proposed a pro rata distribution based on net cash losses. UniBank, a Washington state commercial bank, had provided SBA-backed secured loans to certain investors to purchase interests in CETA and held perfected security interests in the investors’ distributions. UniBank objected, asserting its secured claims should receive priority over unsecured victim claims. The district court overruled UniBank’s objection in a one-paragraph order adopting the Receiver’s report and recommendation.
    • At issue on appeal was (1) whether the district court had personal jurisdiction over UniBank; (2) whether abstention was required in favor of parallel Washington state court proceedings; (3) whether the Full Faith and Credit Clause barred the district court’s order; and (4) whether the district court’s summary proceedings afforded UniBank due process before impairing its perfected security interests.
    • Jurisdiction & Threshold Issues: The court held that personal jurisdiction was proper because the receivership exercised in rem jurisdiction over the CETA estate, and UniBank implicitly consented to jurisdiction by demanding affirmative relief—asking the court to transfer funds to the Washington court. As the court noted, quoting Trans World Airlines: “The fact that they sought affirmative relief controls, not the form of their appearance.” Colorado River abstention was unwarranted because the receivership court had assumed jurisdiction over the res first, federal equity receivership law supplied the rule of decision, and the pro rata plan avoided piecemeal litigation. The Full Faith and Credit argument also failed because the Washington court’s summary judgment on whether UniBank owed a duty to investors was “orthogonal” to the question of whether UniBank was a victim of the Ponzi scheme for purposes of equitable distribution.
    • Due Process: Drawing on the Eleventh Circuit’s decisions in SEC v. Elliott and SEC v. Torchia, the court distilled minimum due process requirements for receivership proceedings: “(1) permitting the objector to present evidence when the facts are in dispute and to make arguments on those facts, (2) expressly adjudicating the objector’s claims and defenses or adopting the receiver’s determination thereof, and (3) minimally tracing conclusions of fact to evidence or requiring the receiver to do so.” Here, the district court failed because it rested entirely on the Receiver’s “cursory analysis” without conducting an evidentiary hearing, even after UniBank submitted 9,100 pages of evidence and the Receiver himself suggested that a hearing might be appropriate.
    • The court declined to reach whether the district court could ultimately impair UniBank’s state-law security interests, noting that if the Receiver was correct that UniBank’s employees actively facilitated fraudulent SBA loans into the Ponzi scheme, “the district court would plainly be within its equitable powers to recognize those basic facts of life.” The court closed by emphasizing it placed “no limitation on what proceedings the district court may employ on remand or on what

Unpublished decisions

  • United States v. Luargas De La Fuente, 25-40507, appeal from E.D. Tex.
    • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • United States v. Taylor, 24-30668, c/w 25-30422, appeal from E.D. La.
    • per curiam (Elrod, Clement, Oldham) (oral argument), criminal, Double Jeopardy, due process
    • Affirming conviction of firearm violation.
    • Blair Taylor was charged in Louisiana state court with two counts of second-degree murder and five counts of attempted second-degree murder arising from a New Orleans shooting. His 2017 state conviction was vacated after Ramos v. Louisiana, and he was acquitted on retrial in 2022. The federal government then prosecuted him on two counts of causing a death through use of a firearm, with a former state prosecutor—now an AUSA—on the federal prosecution team. Taylor raised three claims for the first time on appeal: (1) that his federal prosecution violated the Double Jeopardy Clause because the same prosecutor participated in both the state and federal proceedings; (2) that the prosecution was vindictive in violation of due process; and (3) ineffective assistance of counsel.
    • Reviewing for plain error because the claims were unpreserved, the court found that Taylor failed to show a clear or obvious error under existing law on his double-jeopardy claim, citing no supporting precedent. His due-process/vindictiveness claim likewise failed because successive prosecutions by different sovereigns generally negate a finding of prosecutorial vindictiveness. The court pretermitted the ineffective-assistance claim because the record was not sufficiently developed for appellate review.
  • United States v. Hernandez, 25-40698, c/w 25-40704, appeal from S.D. Tex.
    • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentencing
    • Affirming conviction and sentence on illegal reentry and assaulting a corrections officer.
    • Oscar Ambrocio Hernandez was convicted of illegal reentry and assaulting a corrections officer and challenged the district court’s denial of a mitigating-role adjustment under U.S.S.G. § 3B1.2. The Fifth Circuit found the district court’s determination that Hernandez was an average participant plausible on the record: he pushed and attempted to tackle a correctional officer and held an officer down by the neck—conduct that was neither peripheral to the offense nor indicative of lesser culpability.
  • United States v. Sims, 24-50598, appeal from W.D. Tex.
    • per curiam (Davis, Richman, Oldham) (no oral argument), criminal, Second Amendment
    • Reversing conviction of felon-in-possession.
    • Wesley Dylan Talmage Sims was convicted of possession of a firearm by a felon under 18 U.S.C. § 922(g)(1), predicated on a Texas felony conviction for simple drug possession. Sims argued that § 922(g)(1) violated the Second Amendment as applied to him. The Government conceded the issue. Relying on United States v. Hembree, 165 F.4th 909 (5th Cir. 2026), which held that § 922(g)(1) is unconstitutional as applied to a defendant whose predicate felony was simple drug possession, the court reversed Sims’s conviction.
  • Rodriguez v. Meta Platforms, Inc., et al., 26-30228, appeal from E.D. La.
    • per curiam (Davis, Richman, Oldham) (no oral argument), Rule 60(b), sec. 1983
    • Affirming denial of Rule 60(b) motion based on alleged violation of constitutional rights by district court’s restrictions on pleadings in underlying tort claims.
    • Pro se plaintiff Hiran Rodriguez sued 27 defendants—including Meta, Apple, T-Mobile, AT&T, X Corp., journalists, and local government entities—broadly alleging surveillance of his electronic communications and defamation, but provided no factual basis for his claims. The district court dismissed the suit after Rodriguez failed to file an amended complaint within the 14-day window provided, instead submitting over 20 other filings. A prior Fifth Circuit panel affirmed that dismissal. Rodriguez then filed a Rule 60(b) motion arguing the district court violated his constitutional rights by temporarily restricting his filings and by not addressing a second recusal motion before dismissal.
    • Reviewing for abuse of discretion, the court held that the temporary filing restriction was a reasonable exercise of the district court’s inherent power to manage its proceedings given Rodriguez’s abusive filing history. The second recusal motion was duplicative and baseless, as adverse rulings are not evidence of bias.