Take the Fifth

Designated for publication

• United States v. Palencia-Berrum, 25-50383, appeal from W.D. Tex.
  • Higginson, J. (King, Higginson, Duncan) (oral argument), Duncan, J., dissenting; criminal, sentencing
  • Vacating 46-month sentence on conviction of illegal reentry, and remanding for resentencing.
  • Alexander Palencia-Berrum pled guilty to illegal reentry under 8 U.S.C. § 1326. His criminal history included three DWI convictions, an obstruction/minor-in-possession conviction, a domestic battery guilty plea, a 30-year sentence for drug trafficking in Georgia, and a prior illegal reentry guilty plea. After returning to the U.S. in 2024, he was arrested for assault (involving throwing water bottles at his wife), but charges were dismissed. At a six-minute sentencing hearing, the district court imposed the top of the Guidelines range (46 months), citing as aggravating factors that the alleged assault included “biting” his wife—a fact nowhere in the PSR or record—and misstating the date of a prior conviction.
  • At issue on appeal was whether the district court committed reversible procedural error under plain-error review by relying on clearly erroneous facts at sentencing.
  • The court found all four prongs of plain error satisfied. The district court relied on facts unsupported by any record evidence—most importantly, the assertion that the defendant bit his wife—which constituted clear procedural error under Gall v. United States. The error affected the defendant’s substantial rights because the mistaken assault narrative was discussed three times in a six-minute hearing and was “a central role in the district court’s considerations”; the only substantive question the court asked was about the alleged assault. Finally, the court exercised its discretion to remedy the error because “[d]efendants have ‘the right not to be sentenced on the basis of invalid premises,'” and “[s]entences based upon erroneous and material information or assumptions violate due process.”
  • The majority emphasized: “What clearly cannot occur is identification and reliance at sentencing on facts with no record basis whatsoever.”
  • Judge Duncan dissented; he would have affirmed, reading the transcript’s reference to “biting” as ambiguous regarding whether the district court considered it the key aggravator or merely part of the broader criminal history. He argued the PSR itself described a violent attack—throwing a TV, shattering a window with bare hands, hurling water bottles leaving a “dark bruise”—and that, on plain error review, the defendant had not shown the biting detail “played a central role” in the sentence. Judge Duncan noted: “[T]he court had ample additional material to justify giving Palencia-Berrum a sentence at the top of the Guidelines.”

• National Infusion Center Association v. Kennedy, 25-50661, appeal from W.D. Tex.
  • Southwick, J. (Southwick, Higginson, Wilson) (oral argument), Inflation Reduction Act, Medicare, nondelegation doctrine, Excessive Fines Clause, due process
  • Affirming summary judgment in favor of government on plaintiffs’ constitutional challenge to the Drug Proce Negotiation Program under the Inflation Reduction Act.
  • The National Infusion Center Association, Global Colon Cancer Association, and PhRMA brought a facial constitutional challenge to the Drug Price Negotiation Program created by the Inflation Reduction Act of 2022, which instructs HHS to negotiate maximum fair prices for selected high-cost Medicare drugs. Manufacturers that refuse to negotiate face an excise tax starting at 65% (rising to 95%) of the drug’s sale price on Medicare-reimbursed sales. The district court granted summary judgment to the Government.
  • At issue on appeal was (1) whether the IRA’s Drug Pricing Program violates the nondelegation doctrine; (2) whether the excise tax violates the Eighth Amendment’s Excessive Fines Clause; (3) whether the Program violates the Fifth Amendment’s Due Process Clause.
  • Nondelegation: The court held the IRA provides an intelligible principle because Congress defined key terms, established a framework for timing and agreements, provided ceiling-price formulae (40%–75% of baseline), and required HHS to “consider” nine statutory factors. Following FCC v. Consumers’ Research, the directive to achieve a “fair” price sets both a ceiling and a floor, analogous to the “sufficient” standard upheld there. The court also rejected the “combination theory” that preclusion of judicial review and exemption from notice-and-comment rulemaking, combined with broad agency discretion, push the statute over a constitutional line, finding these features do not “transform the constitutionally valid discretion that the IRA provides to HHS into an unconstitutional delegation.”
  • Excessive Fines: The court first held the Anti-Injunction Act does not bar the claim because the Regan exception applies—no postpayment refund suit is a viable alternative given that the CBO predicted no manufacturer could afford to pay the tax. On the merits, however, the excise tax is not a “fine” within the meaning of the Eighth Amendment because it lacks any connection to criminal conduct; manufacturers incur it through lawful choices about Medicare sales.
  • Due Process: Manufacturers have no protected property interest in selling to Medicare beneficiaries at a price higher than what the government is willing to pay, and participation in Medicare is voluntary. Providers similarly lack a protected interest in reimbursement beyond what the law provides. The court found no basis for patients’ claimed liberty interest in perpetual access to current Medicare drugs.
  • The court construed the excise tax as applying only to Medicare-reimbursed sales, noting that “[s]tatutes . . . should be read, if possible, to comport with the Constitution, not to contradict it.”

• Rummans v. HSBC Bank USA, N.A., 25-10897, appeal from N.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Oldham) (oral argument), foreclosure
  • Affirming dismissal of plaintiff’s claim that defendants did not contact him prior to foreclosure.
  • Lester Rummans, an Army Reserve soldier, and his late wife financed their home with a VA loan in 2003; the loan was later assigned to HSBC and serviced by Specialized Loan Servicing (SLS). Rummans made no payments for at least a decade, and HSBC foreclosed in 2022. Rummans sued, alleging HSBC and SLS violated the VA Servicing Guidelines by failing to contact him before foreclosure. At a bench trial, SLS’s corporate representative testified that barcoded letters in Rummans’s file were mailed based on customary business practices; Rummans offered only his own denial of receipt.
  • At issue on appeal was whether the district court properly applied the “mailbox rule” to presume Rummans received the required pre-foreclosure notices.
  • The court held that SLS’s corporate representative had sufficient personal knowledge of customary mailing practices—namely, that barcoded letters would not be archived unless actually mailed—to trigger the mailbox rule’s presumption of receipt. Rummans failed to rebut the presumption because “[a] ‘bare assertion of non-receipt’ is insufficient to rebut the presumption.” The court further noted that Rummans’s own testimony that he “tried to reach out and get help” from SLS affirmatively suggested he knew of the looming issue—corroborating rather than rebutting receipt.

• United States v. Mitchell, 25-30438, appeal from W.D. La.
  • Duncan, J. (Duncan, Oldham, Wilson) (oral argument), criminal, Second Amendment, sufficiency of evidence, jury instructions
  • Affirming conviction of felon-in-possession.
  • Maurice Mitchell was found near a storage facility with a loaded revolver in a bag attached to his bicycle; he fled from officers and was caught on foot. Mitchell’s criminal history included drug convictions and a 2017 Louisiana conviction for attempting to disarm a peace officer (trying to grab pepper spray from an officer during a trespass arrest). He was indicted and convicted under 18 U.S.C. § 922(g)(1) (felon in possession of a firearm).
  • At issue on appeal was (1) whether § 922(g)(1) is unconstitutional as applied to Mitchell under the Second Amendment, given his predicate felony for attempting to disarm an officer; (2) whether the district court abused its discretion by giving a flight instruction; (3) whether the evidence was sufficient to convict.
  • Second Amendment: Applying Bruen and Hemani, the court held that Mitchell’s predicate conviction for attempting to disarm a peace officer is “functionally identical to robbery”—both involve taking property from another’s person by force—and Fifth Circuit precedent permits disarmament under § 922(g)(1) for robbery, theft, and burglary. The court noted: “[B]ecause Mitchell was convicted of trying to disarm a police officer, we can constitutionally disarm Mitchell.” As for Mitchell’s argument that he was convicted only of attempted disarmament, the court was unpersuaded: “Evidently, the Second Amendment does not allow us to disarm failed robbers, only successful ones. Mitchell cites no precedent for that weird notion.”
  • Flight Instruction & Sufficiency: The flight instruction was proper because the evidence reasonably supported the four required inferences of flight, consciousness of guilt, connection to the charged crime, and actual guilt. On sufficiency, under the “manifest miscarriage of justice” standard (due to Mitchell’s failure to renew his motion for acquittal), the bag’s conspicuous placement on his own bicycle, his flight, and his abandonment of the bag gave the jury ample reason to convict.

Unpublished decisions

• United States v. Hernandez, 25-40155, appeal from S.D. Tex.
  • per curiam (Richman, Higginson, Douglas) (no oral argument), criminal, guilty plea
  • Affirming guilty-plea conviction on firearm charge.
  • At issue on appeal was whether the factual basis for the defendant’s guilty plea to conspiracy to receive a firearm (18 U.S.C. § 933(a)(2) and (a)(3)) was insufficient because (1) the record allegedly failed to establish a bona fide co-conspirator (as opposed to a government informant), and (2) it failed to establish that receipt of the firearm “would constitute a felony.”
  • Reviewing for plain error, the court affirmed the conviction. Even assuming deficiencies, neither asserted error was “clear or obvious” because reasonable inferences from the record supported the plea, no binding authority had construed § 933(a)(2), and Hernandez could not show a reasonable probability he would not have entered his plea. The court remanded solely to correct a clerical error in the written judgment describing the offense of conviction.

• United States v. Jackson, 26-10135, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, supervised release
  • Affirming revocation of supervised release.
  • At issue on appeal was whether 18 U.S.C. § 3583(g), which mandates revocation of supervised release for possession of a controlled substance or refusal to comply with drug testing, is unconstitutional under United States v. Haymond, 588 U.S. 634 (2019), for denying a jury trial and proof beyond a reasonable doubt.
  • The court granted the government’s motion for summary affirmance. Jackson’s sole argument was foreclosed by United States v. Garner, 969 F.3d 550 (5th Cir. 2020), which rejected the same constitutional challenge.

• Grice v. Metropolitan Life Insurance Company, 25-50566, appeal from W.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (oral argument), ERISA, insurance, choice of law
  • Affirming judgment for disability insurer.
  • At issue on appeal was (1) whether the ERISA plan contained a valid delegation clause warranting deferential review, given that both Texas and California (the state chosen by the plan’s choice-of-law provision) ban delegation clauses; and (2) whether Grice was “Totally Disabled” and thus entitled to long-term disability benefits.
  • The court declined to resolve the “thorny choice-of-law issues” surrounding the delegation clause because even under the more stringent de novo standard, Grice could not show he was totally disabled. His sedentary desk job at Google did not require activities his medical records showed he could not perform after his foot surgery recovery, and multiple independent physicians concluded he could sustain full-time sedentary work. Affirmed.

• Biggerstaff v. Griffis, 26-50157, appeal from W.D. Tex.
  • per curiam (Graves, Wilson, Ramirez) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 claim.
  • At issue on appeal was whether a Texas prisoner’s appeal from dismissal of his § 1983 suit (alleging denial of a medically necessary bottom bunk) for failure to exhaust administrative remedies raised a nonfrivolous issue warranting IFP status on appeal.
  • The court denied the IFP motion and dismissed the appeal as frivolous because Biggerstaff made no substantive attempt to address the district court’s reasons for dismissal. The dismissal counted as a strike under 28 U.S.C. § 1915(g). Combined with his prior strikes, the court imposed a § 1915(g) pleading bar and warned against future frivolous filings.

• Biggerstaff v. Brown, 26-50108, appeal from W.D. Tex.
  • per curiam (Graves, Wilson, Ramirez) (no oral argument), prisoner suit
  • Dismissing as frivolous another appeal from the same Texas state prisoner from the dismissal of another § 1983 claim.
  • At issue on appeal was whether a Texas prisoner’s appeal from dismissal of his § 1983 suit (alleging civil rights violations arising from his arrest and criminal prosecution) raised a nonfrivolous issue for appeal; the district court had dismissed on immunity grounds and under Heck v. Humphrey.
  • The court denied the IFP motion and dismissed the appeal as frivolous. Both the district court’s dismissal and the appellate dismissal counted as strikes. With three total strikes, Biggerstaff was barred from proceeding IFP unless under imminent danger of serious physical injury, and warned against future frivolous filings.

• United States v. Rice, 25-60498, appeal from S.D. Miss.
  • per curiam (Graves, Wilson, Ramirez) (no oral argument), criminal, guilty plea, sentencing
  • Affirming guilty plea conviction and sentence.
  • At issue on appeal was whether the appeal waiver in the defendant’s plea agreement was enforceable, and whether a sentencing disparity between the defendant and an equally culpable co-defendant constituted a “miscarriage of justice” sufficient to override the waiver under Hunter v. United States, 146 S. Ct. 1702 (2026).
  • The appeal waiver was knowing, voluntary, and applicable. The court held that Rice’s sentencing-disparity argument did not meet the high bar set by Hunter, which made clear that “standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver.”

• United States v. Moses, 25-11030, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (oral argument), criminal, supervised release
  • Affirming revocation of supervised release.
  • At issue on appeal was (1) whether the district court erred in revoking supervised release where the defendant admitted to possessing controlled substances and failing drug tests (mandatory revocation triggers); and (2) whether the district court improperly imposed a duty to retreat under Texas law when finding the defendant committed a new crime (assault of a pregnant person) and sentencing him to a 20-month upward variant revocation sentence.
  • Reviewing for plain error, the court affirmed. Revocation was independently required by the defendant’s admissions to mandatory-revocation violations (drug possession and failed drug tests). As to the assault, the district court’s remark about stepping back was likely directed at the disproportionality of force, not the imposition of a duty to retreat, particularly given the court’s explicit finding that Moses used “disproportion[ate] and unreasonable” force against his pregnant sister.

• In re Goodhart, 26-20337, appeal from S.D. Tex.
  • per curiam (Elrod, Jones, Higginson) (no oral argument), Higginson, J., dissenting; mandamus, Younger abstention
  • Granting mandamus to compel district court to expedite consideration of Younger abstention.
  • At issue was whether mandamus should issue to compel the district court to expedite consideration of a Younger abstention argument raised by four Harris County state judges seeking to vacate a federal consent decree monitoring pretrial bail practices, in light of the Fifth Circuit’s en banc holding in Daves v. Dallas County (Daves II), 64 F.4th 616 (5th Cir. 2023), which overruled the earlier ODonnell I decision rejecting abstention and declared that the underlying case should not have been adjudicated in federal court.
  • The court granted the writ of mandamus. It found all three mandamus prerequisites satisfied: (1) no adequate alternative remedy existed because an appeal cannot undo delay; (2) the judges had a clear and indisputable right to expedited consideration given Daves II‘s express holding and the imminent November 2026 Texas judicial election; and (3) mandamus was appropriate under the circumstances. The court directed the district court to consider the Younger abstention argument on an expedited basis, well in advance of the election, and to follow Daves II. The court also rejected claims that the four judges waived Younger through their predecessors’ consent to the decree.
  • Judge Higginson dissented, contending that the majority improperly used “drastic mandamus power” to seize control of Judge Rosenthal’s docket when she had merely declined to rush a ruling on a complex matter already set for hearing in under three months.
  • He noted the majority “neglects” the high bar for mandamus relief: “Mandamus ‘is a drastic and extraordinary remedy reserved for really extraordinary causes.'” He emphasized that petitioners had waited over two years after Daves II to seek vacatur and never even mentioned the election in their motion to expedite or motion to vacate: “Let me say that again, there is no mention of the election in Petitioners’ motion to expedite, or in the motion to vacate.”
  • Judge Higginson contended that controlling Fifth Circuit precedent (LULAC I and LULAC II) requires an evidentiary hearing and factual development for vacating a consent decree under Rule 60(b), and that the district court was following that precedent. He concluded: “Facts matter to district courts. Attorney opportunity to brief and fully argue an issue matters to district courts. These are the everyday building blocks district courts responsibly insist on. . . . We should commend Judge Rosenthal, not seize and force her calendar. It is impatience to treat party presentation, fact development, and a reasoned district court opinion as superfluous.”

• United States v. Porter, 25-10782, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Affirming as modified sentence and the supervised release conditions.
  • At issue on appeal was (1) whether there was a conflict between the oral pronouncement and written judgment due to an allegedly unpronounced standard condition of supervision; and (2) whether a special condition prohibiting the use and possession of any gaming console was overly restrictive under 18 U.S.C. § 3583(d), given the defendant’s conviction for receipt of child pornography.
  • The court found no conflict between the oral and written pronouncement because the district court clearly reimposed conditions from prior revocation judgments. However, the blanket gaming-console prohibition was unnecessarily restrictive and was narrowed to prohibit only gaming consoles that allow internet access without prior authorization. Affirmed as modified.

• Riley v. Nike Retail Services, Inc., 26-20095, appeal from S.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), personal tort
  • Affirming summary judgment dismissal of plaintiff’s premises liability claim.

• United States v. Narvaez, 25-20039, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • At issue on appeal was whether the district court abused its discretion in denying a federal prisoner’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) by (1) allegedly failing to read the motion given misstatements in the order, and (2) failing to conduct a contemporaneous review of the § 3553(a) factors or consider favorable post-sentencing conduct.
  • The district court’s ruling reflected that it properly considered Narvaez’s most recent motion and conducted a contemporaneous assessment of the § 3553(a) factors. It was not required to analyze every factor, and Narvaez’s disagreement with the court’s weighing did not show an abuse of discretion.