Take the Fifth

Unpublished decisions

• United States v. Evans, 25-11361, 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. Miguel-Pedro, 25-50738, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming 21-month sentence on conviction of illegal reentry.

• United States v. Gilliam, 25-11019, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Doe v. Midland County, et al., 25-50793, appeal from W.D. Tex.
  • per curiam (Smith, Haynes, Engelhardt) (oral argument), prisoner suit
  • Affirming dismissal of deliberate-indifference, bystander-liability, and Monell liability claims arising from prisoner’s sexual assault.
  • Juanita Doe, a prisoner who was sexually assaulted, sued the assailant, Sheriff Criner, jail employee Martinez, and Midland County under 42 U.S.C. § 1983. After obtaining a judgment against the assailant, Doe appealed the dismissal of her claims against the remaining defendants. Because Doe failed to object to the magistrate judge’s report and recommendation and the district court did not independently review the record, the court applied plain-error review. The key issues were: (1) whether Sheriff Criner was deliberately indifferent, (2) whether Martinez could be held liable under a bystander-liability theory, and (3) whether Midland County was liable under Monell for failing to adopt policies preventing sexual abuse.
  • The court found no plain error as to Sheriff Criner because Doe failed to plead facts showing he had prior personal knowledge of the assailant’s misconduct. Martinez was entitled to qualified immunity because Doe did not allege Martinez was present at the scene, a prerequisite for bystander liability. The Monell claim against Midland County failed because Doe listed desired policies the County should have adopted but did not plead facts suggesting the County maintained an official policy permissive of sexual abuse.

• Marroquin Calderon v. Blanche, 26-60002, petition for review of BIA order
  • per curiam (Davis, Stewart, Duncan) (no oral argument), immigration
  • Denying in part and dismissing in part Salvadoran citizen’s petition for review of BIA order denying motion to reopen removal proceedings.
  • Veralicia Marroquin Calderon, a native and citizen of El Salvador, petitioned for review of the BIA’s denial of her motion to reopen removal proceedings. She argued the BIA abused its discretion in not applying equitable tolling to the filing deadline and alternatively argued ineffective assistance of counsel and eligibility for temporary protected status. She also argued the BIA should have exercised sua sponte authority to reopen.
  • The court held that Marroquin Calderon produced no evidence of due diligence during the 17-year gap between her removal proceedings and her motion to reopen, so equitable tolling was unavailable. Because that threshold argument failed, the court declined to reach her alternative arguments. The court further held it lacked jurisdiction over the sua sponte reopening argument.

• United States v. Olivarez-Hernandez, 26-50147, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Tamayo-Amaya, 25-40550, appeal from S.D. Tex.
  • per curiam (Stewart, Higginson, Ho) (no oral argument), criminal, supervised release
  • Dismissing as moot appeal from revocation of supervised release.
  • Jose Tamayo-Amaya appealed the revocation of his supervised release and imposition of four months’ imprisonment followed by eight months of supervised release, stemming from his conviction for illegal reentry in violation of 8 U.S.C. § 1326(a). He had failed to report to both the U.S. Probation Office and ICE upon release from custody. The Government argued the appeal was moot because Tamayo-Amaya had fully served his imprisonment and his supervised release had expired on July 29, 2026.
  • Because Tamayo-Amaya had served his full custodial sentence, his supervised release had expired, and he identified no ongoing collateral consequence that a favorable decision would redress, there was no live case or controversy.

• United States v. Johnson, 25-11342, appeal from N.D. Tex.
  • per curiam (Davis, Richman, Oldham) (no oral argument), criminal, sentencing
  • Affirming 200-month sentence on conviction of bank robbery.

• United States v. Senegal, 19-40930, appeal from S.D. Tex.
  • Higginson, J. (King, Higginson, Willett) (oral argument), Willett, J., dissenting; criminal, sentencing, Armed Career Criminal Act
  • Vacating ACC-enhanced sentence and remanding for resentencing on the affected counts.
  • Keelon Jmar Senegal challenged his ACCA-enhanced sentences on two counts of felon-in-possession (Counts 4SS and 8SS) as part of an eight-count conviction that also carried two consecutive life sentences. The central question was whether Senegal’s two Texas robbery convictions validly qualified as ACCA predicates after the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015), which invalidated ACCA’s residual clause as unconstitutionally vague. In an earlier iteration, the court had found harmless error based on United States v. Garrett, which held Texas robbery-by-threat qualified under ACCA’s elements clause. But the Texas Court of Criminal Appeals’ decision in Floyd v. State subsequently undermined Garrett by holding that Texas robbery-by-threat and robbery-by-injury are merely alternative means of committing a single, indivisible offense. After Floyd, the Fifth Circuit in United States v. Rose recognized that Garrett had been “unequivocally abrogated.” The court also addressed whether to apply the concurrent-sentence doctrine, procedural default, or the sentencing-package doctrine.
  • The court declined to apply the concurrent-sentence doctrine, noting Senegal’s unchallenged life sentences were consecutive, not concurrent. The court again declined to impose procedural default, noting that the Government had not raised the defense below, had apparently followed a policy of waiving procedural objections in Johnson cases, and that enforcing the bar would create an asymmetry—forgiving the Government’s failure to raise procedural default while faulting Senegal for not anticipating Johnson on direct appeal. On the merits, the court reaffirmed that the sentencing court more likely than not relied on the now-unconstitutional residual clause, and with Garrett abrogated, nothing rendered the error harmless. The court declined to apply the sentencing-package doctrine because Senegal did not convincingly show how the ACCA-enhanced counts interrelated with his other sentences, including two consecutive life terms. Sentences on Counts 4SS and 8SS vacated and remanded for resentencing on those counts only.
  • Judge Willett dissented, agreeing with the majority on most points—that the ACCA enhancement violated due process, that the concurrent-sentence doctrine did not bar Senegal’s claim, and that the sentencing-package doctrine did not require full resentencing–but disagreeing solely on the procedural-default question. Applying the Smith v. Johnson framework, he concluded both factors favored reaching the defense: the Government merely forfeited (rather than intentionally waived) the defense, and Senegal had ample notice and opportunity to respond over more than four years of briefing. Notable quotes: “An appeal to our discretion is not an appeal to our ‘inclination, but to [our] judgment; and [our] judgment is to be guided by sound legal principles.'” He criticized the majority’s reasoning on novelty, stating: “We should not recreate a more forgiving novelty inquiry one step earlier under the label of discretion.” On the asymmetry concern, he wrote: “Asymmetry may be a reason to question our precedent, but it is not grounds to distinguish it.” Because Senegal’s Johnson claim was procedurally defaulted and he demonstrated neither cause and prejudice nor actual innocence, Judge Willett would have affirmed the denial of § 2255 relief.

• Pappion v. Phillips 66 Company, 26-30010, appeal from W.D. La.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), Title VII, employment discrimination
  • Affirming summary judgment dismissal of employment discrimination claims.
  • Clifton J. Pappion, a Black man employed by Phillips 66 since 1994, brought Title VII claims alleging racial discrimination based on a 2018 failure to promote and a 2021 disciplinary demotion, as well as retaliation for filing prior EEO charges. He also challenged various discovery rulings and sanctions by the magistrate judge.
  • On the failure-to-promote claim, the court found Pappion could not show pretext; Phillips presented interview notes and affidavits demonstrating the selected candidate was better qualified, and Pappion’s reliance on his ostensibly “higher” numerical score was refuted by sworn statements that lower scores indicated more favorable performance. On the demotion claim, Pappion failed to identify a similarly situated comparator outside his protected group who committed a comparable safety violation. The retaliation claims failed because years-long gaps between Pappion’s EEO charges and the adverse actions were too lengthy to support a causal inference. The court also found no abuse of discretion in the challenged discovery rulings.

• United States v. Betancourt-Sepulveda, 25-50837, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming 36-month sentence on conviction of illegal reentry.