Take the Fifth

Unpublished decisions

• United States v. Gonzales, 24-50584, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Hendrickson, 25-10167, appeal from N.D. Tex.
  • per curiam (Wiener, Graves, Haynes) (oral argument withdrawn); Haynes, J., dissenting in part; criminal, sentencing
  • Vacating sentence and remanding for resentencing.
  • Hendrickson was convicted of felon-in-possession of a firearm after he was shot five times by an unknown assailant at a gas station and returned fire in apparent self-defense. The corrected Guidelines range was 18–24 months, yet the district court sentenced Hendrickson to 100 months’ imprisonment after granting the government’s motion for an upward variance based on his purportedly “underrepresented” criminal history. The PSR itself noted that a downward variance might be warranted given the mitigating circumstances.
  • At issue on appeal was (1) whether the district court imposed a substantively unreasonable sentence by granting a massive upward variance from the advisory Guidelines range; and (2) whether the district court abused its discretion in imposing a special condition of supervised release requiring mental health treatment absent any record evidence of a mental health diagnosis or treatment history.
  • The court held that the district court abused its discretion by (a) imposing a substantively unreasonable upward variance—more than four times the top of the Guidelines range—while failing to account for significant mitigating factors, including that Hendrickson was the shooting victim and was not engaged in other criminal activity, and by essentially re-punishing him for prior convictions already addressed by the Guidelines; and (b) imposing a mental health treatment condition without any factual findings, record evidence of a diagnosis, or treatment history, in violation of the requirements of 18 U.S.C. § 3583(d).
  • Judge Haynes dissented in part, noting she would affirm, stating that “even if others would do differently, the district judge’s decision is not an abuse of discretion” and “it should not be vacated.”

• United States v. Burns, 25-11372, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Dobbin Plantersville Water Supply Corp. v. Montgomery County Municipal Utility District No. 180, 25-20168, appeal from S.D. Tex.
  • per curiam (Jones, Clement, Richman) (oral argument), standing, utilities
  • Affirming dismissal for lack of standing, though modifying to be without prejudice.
  • At issue on appeal was (1) whether a federally indebted rural water supply corporation had Article III standing—specifically, traceability—to sue a competing municipal utility district under 7 U.S.C. § 1926(b) after the state public utility commission decertified the disputed service area at a landowner’s request; and (2) whether dismissal for lack of standing should have been with or without prejudice.
  • The court affirmed the dismissal for lack of standing but modified the judgment to be without prejudice. It held that Dobbin’s injury—its inability to serve the disputed area—was traceable to the PUC’s decertification order (an independent third-party action), not to MUD 180, because Dobbin lacked a Certificate of Convenience and Necessity for the area regardless of MUD 180’s conduct. The court distinguished Green Valley Special Utility District v. City of Schertz and North Alamo Water Supply Corp. v. City of San Juan, finding neither controlled because those cases involved competing providers that themselves petitioned for or directly caused decertification.

• United States v. Bruno, 25-20531, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Grant, 25-20569, appeal from S.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), habeas corpus, coram nobis, sanctions
  • Affirming dismissal of petition for writ of coram nobis and imposition of sanctions.
  • At issue on appeal was whether the district court abused its discretion in denying Grant’s petition for a writ of coram nobis challenging his convictions for conspiracy to commit healthcare fraud and aiding and abetting healthcare fraud; and whether sanctions were warranted for repeated abusive filings.
  • The court held that Grant’s arguments consisted of claims he could have raised in his initial § 2255 motion and he provided no sound reason for failing to seek relief earlier. Noting that Grant had been sanctioned and warned on multiple prior occasions, the court imposed a $1,000 sanction, barred him from filing further challenges to his convictions or sentences until the sanction was paid in full, and warned that further frivolous filings would result in progressively more severe sanctions.

• Ozoani v. Pate, 25-30546, appeal from W.D. Tex.
  • per curiam (Wiener, Haynes, Graves) (no oral argument), Haynes, J., dissenting; habeas corpus
  • Reversing dismissal of sec. 2241 petition, and remanding.
  • At issue on appeal was whether a federal prisoner serving a sentence as a treaty transfer from Australia was required to exhaust administrative remedies before filing a § 2241 habeas petition seeking First Step Act time credits, where a Bureau of Prisons Program Statement categorically excluded treaty transfer inmates from earning such credits.
  • The court held that requiring Ozoani to appeal through an administrative process in which every official was bound by the Program Statement to deny his request was “textbook futility.” Because Ozoani was seeking to have the categorical exclusion itself ruled unlawful, the futility exception to the jurisprudential exhaustion doctrine applied.
  • Judge Haynes dissented, stating she agreed with the district court and would affirm.

• United States v. Johnson, 25-40258, appeal from E.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Finch, 25-50568, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, search and seizure
  • Affirming conviction, upholding denial of motion to suppress.
  • At issue on appeal was whether the district court erred in denying a motion to suppress evidence obtained following a traffic stop for failure to use a turn signal, where the defendant argued the officer misinterpreted Texas Transportation Code § 545.104(a).
  • The court held that even if the officer had a mistaken understanding of the signal statute, Texas courts had not rejected the officer’s interpretation, and his reliance on it to stop Finch’s vehicle was objectively reasonable under Heien v. North Carolina, 574 U.S. 54 (2014).

• Corr Flight S. (d/b/a Nicholas Air) v. Department of Labor, 25-60286, petition for review of Department of Labor Administrative Review Board order
  • per curiam (King, Smith, Ramirez) (oral argument), Appointments Clause, labor law
  • Denying petition for review of DOL ARB order.
  • At issue on the petition was (1) whether the ALJ’s two-layer removal protections violated the Appointments Clause, and if so, whether vacatur of the ALJ’s order was warranted absent a showing of particularized harm under Collins v. Yellen; (2) whether Corr Flight forfeited its constitutional challenge by not raising it in the administrative proceedings; and (3) whether the ALJ and ARB erred in finding that a pilot-in-training’s reporting of safety violations and refusal to fly with the offending captain were protected activities under AIR 21 (49 U.S.C. § 42121) that contributed to his suspension without pay.
  • On the constitutional claim, the court held that Corr Flight did not forfeit its challenge because 29 C.F.R. § 1979.110(a) does not require issue exhaustion, but the challenge failed on the merits because Corr Flight presented no evidence satisfying the Collins factors for showing particularized harm from the removal protections. On the AIR 21 claim, Corr Flight only challenged one of two independent bases for the ALJ’s order—the refusal-to-fly rationale—while forfeiting any challenge to the ALJ’s finding that DeBuse’s reporting of safety violations was itself a protected activity contributing to the adverse action. Because that unchallenged ground independently supported the order, the petition was denied.

• Diabaye v. Blanche, 25-60657, petition for review of BIA order
  • per curiam (King, Higginson, Douglas) (no oral argument), immigration
  • Denying Senegalese citizen’s petition for review of denial of applications for asylum and withholding of removal.
  • At issue on the petition was whether the BIA erred in its adverse credibility determination when denying a Senegalese citizen’s applications for asylum and withholding of removal.
  • The court held that Diabaye failed to demonstrate the evidence compelled a conclusion contrary to the agency’s adverse credibility finding, which was dispositive of both the asylum and withholding claims.

• United States v. Girtley, 26-10130, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ramirez, 26-10152, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Taylor v. Collin College, 26-40012, appeal from E.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), Title IX
  • Affirming summary judgment dismissal of Title IX sexual-orientation discrimination claims.
  • At issue on appeal was whether a gay college student established claims of sexual-orientation discrimination under Title IX and the Fourteenth Amendment against his college, where he alleged a professor refused to answer his questions, gave him a zero on an assignment, and filed an incident report against him following threatening emails; and whether the college acted with deliberate indifference by failing to independently investigate his complaint.
  • The court held that the district court properly granted summary judgment because Taylor lacked standing (failing to substantiate a redressable injury) and, alternatively, failed to show a genuine dispute of material fact on his Title IX claim—specifically failing to identify an official policy or custom of discrimination, establish deliberate indifference, or identify similarly situated students treated differently. His due process claims likewise failed as a matter of law. The court also noted that Taylor failed to pursue any of the administrative avenues the College had provided.

• Perez-Hernandez v. Blanche, 26-60064, petition for review of BIA order
  • per curiam (Barksdale, Willett, Douglas), Douglas, J., concurring in judgment only (w/o op.); immigration
  • Denying petition for review of BIA order denying deportation relief.
  • At issue on the petition was (1) whether the BIA erred in declining to remand to the IJ for consideration of particular social groups (PSGs) raised for the first time on appeal; (2) whether the BIA was required to analyze the cognizability of Perez’s proposed PSGs before making its nexus determination; and (3) whether substantial evidence supported the denial of Convention Against Torture (CAT) protection.
  • The court held that (a) the BIA did not abuse its discretion in declining to consider or remand for PSGs first raised on appeal; (b) Perez confused PSG cognizability with the nexus analysis, and because she failed to address the BIA’s dispositive no-nexus determination, she forfeited that issue; and (c) substantial evidence supported the denial of CAT relief because Perez lived without harm for nine years after relocating within Guatemala and failed to explain why relocation could not protect her again.
  • Judge Douglas concurred only in the judgment without further elaboration.

• Young v. Cranes Tax, 26-60248, appeal from N.D. Miss.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), religious discrimination, amendment
  • Affirming dismissal of pro se claims, but modifying dismissal to be without prejudice.
  • At issue on appeal was whether the district court erred in dismissing under 28 U.S.C. § 1915(e)(2)(B) a pro se complaint alleging religious discrimination and fraud by a tax preparer, and whether dismissal of state-law claims should have been with or without prejudice.
  • The court held that the district court did not abuse its discretion in declining to allow amendment because Young had pleaded her best case, and her federal claims were properly dismissed as frivolous and for failure to state a claim. However, because the state-law claims were dismissed for lack of subject matter jurisdiction, that dismissal should have been without prejudice. The court modified the judgment accordingly.