Take the Fifth

Designated for publication

• United States v. Chaney, 23-30454, appeal from E.D. La.
  • Smith, J. (Smith, Clement, Higginson) (no oral argument), criminal, guilty plea, sentencing
  • On remand from U.S. Supreme Court, dismissing appeal under appeal-waiver of plea agreement.
  • Devin Chaney pleaded guilty to Hobbs Act Robbery (18 U.S.C. § 1951(a)) and Armed Bank Robbery (18 U.S.C. § 2113(a) and (d)), and in his plea agreement he waived his right to appeal, except for a sentence above the statutory maximum or a claim of ineffective assistance of counsel. The government dropped nine of eleven counts in exchange. Despite the waiver, Chaney appealed his sentence, arguing the district court improperly designated him a career offender under U.S.S.G. § 4B1.1. The Fifth Circuit initially dismissed the appeal, enforcing the waiver. The Supreme Court then granted certiorari, vacated, and remanded in light of Hunter v. United States (Hunter I), 146 S. Ct. 1702 (2026), which announced a “miscarriage of justice” exception to appeal waivers.
  • At issue on appeal was whether Chaney’s career-offender designation constitutes the kind of “egregious error that would bring the judicial system into disrepute” under Hunter I‘s newly announced miscarriage-of-justice exception to appeal waivers.
  • The court emphasized that Hunter I sets a “high bar” reserved for “extreme cases” functioning only as a “safety valve” — “[t]he error must be obvious—not one a judge could reasonably make.” Chaney relied on two unpublished Fifth Circuit decisions (Kimmons and Hill) recognizing clear error in applying the career-offender enhancement to the same Louisiana offense, but the court found these inapposite: neither was on the books when Chaney was sentenced, neither is binding precedent, and the plain-error standard those cases applied is distinct from — and less demanding than — Hunter I‘s miscarriage-of-justice standard. As the court put it, quoting Hunter II: “The paucity of authorities on the challenge [Chaney] makes in this case is a substantial strike against his assertion that the district court committed ‘blatant’ error.”
  • The court further noted a live 7–3 circuit split on whether state “controlled substance” offenses under § 4B1.2(b) should be defined by reference to federal law, making the district court’s classification far from obviously wrong. The Supreme Court itself anticipated this kind of claim, characterizing mistakes in “the detailed calculation of a Sentencing Guidelines range” as “unfortunate but inevitable” and insufficient to meet the high bar.
  • Chaney’s procedural argument — that the district court summarily overruled his objection — also failed. Hunter I reserves the procedural prong for cases where a “sentence was imposed without some minimum of civilized procedure,” and Chaney was given the opportunity to object and present his justification; the court’s swift disagreement did not come close to clearing that bar. The court concluded: “Run-of-the-mill or ‘standard-fare’ errors in sentencing don’t make the cut. … [T]his case isn’t even close.”

• Crawford v. West Texas A&M University, 25-10887, appeal from N.D. Tex.
  • Graves, J. (Stewart, Graves, Wilson) (no oral argument), Wilson, J., concurring; employment discrimination, Title VII
  • Reversing summary judgment dismissal of employment discrimination claim, and remanding for further proceedings.
  • Nathan Crawford, a West Texas A&M University (“WTAMU”) police officer, participated in a Title IX sexual misconduct investigation against a fellow officer, corroborating another officer’s complaints. Police chief Shawn Burns resented the investigation and was recorded telling officers he “was ready to start stacking bodies,” meaning “firing people that need to be fired.” Crawford was later disciplined for failure to report, placed on paid administrative leave, subjected to an investigation for recording Burns’s speakerphone conversation with assistant chief Robert Byrd, and ultimately given a dishonorable discharge (though he resigned before being fired). Crawford sued WTAMU for retaliation under Title VII; the district court granted WTAMU summary judgment, finding Crawford could not establish a prima facie case.
  • At issue on appeal was (1) whether Crawford suffered an adverse employment action under the Burlington Northern standard; (2) whether he established a causal link between his protected activity and the adverse actions; and (3) whether WTAMU’s non-retaliatory justification was pretextual.
  • The court held that the district court applied an overruled “ultimate decision” test for adverse employment actions and that Crawford raised genuine disputes of material fact sufficient to survive summary judgment on his Title VII retaliation claim as to the suspension and phone recording investigation.
  • The court found the district court erred by applying outdated Fifth Circuit precedent (e.g., Breaux v. City of Garland) instead of the Burlington Northern “reasonable worker” standard. Under the correct standard, Crawford’s placement on paid administrative leave for disciplinary reasons, combined with the investigation, constituted a sufficiently adverse employment action because it “effect[ed] a ‘diminution in prestige or change in standing among … co-workers.'”
  • On causation, the court found ample evidence as to the suspension and investigation: Burns knew of Crawford’s protected activity and resented it, and a jury could conclude Burns admitted he would try to get rid of those involved in the Title IX investigation. However, Crawford could not show causation for the dishonorable discharge because the independent investigative panel that recommended it stated under oath that they did not know of Crawford’s Title IX involvement, and Crawford offered no evidence to rebut this.
  • On pretext, the court found Burns’s recorded statements — including that he “was ready to start stacking bodies” in the wake of the Title IX investigations — created a genuine dispute of material fact. The court noted: “[T]here are audio recordings of Burns admitting to making statements that a jury could conclude indicated retaliatory motive.” Crawford’s generally positive performance reviews before the investigations further supported the pretext finding.
  • Judge Wilson concurred in the judgment on narrower grounds, writing separately because Crawford’s dishonorable discharge “was not properly preserved as a basis for his retaliation claim” — Crawford did not raise the discharge in either his EEOC charge or his complaint but only in opposition to summary judgment. Judge Wilson agreed that the investigation and paid suspension, considered in tandem, presented at least a material fact dispute as to adverse employment action, and that Burns’s statements about “stacking bodies” and leaving “bodies … in the wake” created a fact dispute over causation. He stated: “I respectfully concur in the judgment, albeit on narrower grounds.”

• Elite Precision Customs L.L.C. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 25-11206, appeal from N.D. Tex.
  • Smith, J. (Smith, Haynes, Engelhardt) (oral argument), Haynes, J., dissenting; Second Amendment
  • Reversing judgment in favor of government on Second Amendment challenge to interstate firearms sale ban, and rendering judgment for plaintiff challengers.
  • Plaintiffs — a federally licensed Texas firearms dealer (Elite Precision Customs), two out-of-state individual purchasers (Tim Herron of New Mexico and Freddie Blish of Arizona), and the Firearms Policy Coalition — challenged three provisions of 18 U.S.C. § 922 that collectively prohibit buying and selling handguns across state lines (the “Nonresident Handgun Purchase Ban” or “the Ban”). While a licensee-to-licensee transfer workaround exists, it requires a willing intermediary dealer, additional fees, and a significant waiting period. The district court granted the government’s motion to dismiss, finding the Ban constitutional.
  • At issue on appeal was whether 18 U.S.C. § 922(a)(3), (a)(5), and (b)(3) — collectively banning direct interstate handgun purchases — violate the Second Amendment under the framework of New York State Pistol & Rifle Ass’n v. Bruen, 597 U.S. 1 (2022).
  • The court held the Ban is presumptively unconstitutional under Bruen Step 1 because it implicates the plain text of the Second Amendment, and the government failed to carry its burden at Bruen Step 2 to show the Ban is consistent with the nation’s historical tradition of firearms regulation.
  • Reasoning — Bruen Step 1: The court held that the right to keep arms logically entails the right to purchase them, citing Reese v. ATF, 127 F.4th 583 (5th Cir. 2025), and Wolford v. Lopez, 146 S. Ct. 2032 (2026). The Ban “categorically bars an entire class of otherwise lawful firearms purchases” and “there is no such thing as ‘a purchase ban unknown at the time of the founding that can evade Bruen analysis.'” The court distinguished McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024), which upheld expanded background checks for 18-to-20-year-olds, because that regulation imposed only a modest, time-limited waiting period — “[n]ot so with the Ban,” where interstate handgun purchases “are flatly illegal” with no amount of waiting to cure the prohibition.
  • Reasoning — Bruen Step 2: The government proffered 18 historical laws, but the court categorized them into three groups — (1) wartime and common-defense provisions, (2) regulation of commerce with foreign sovereigns (including Indian tribes and other colonies), and (3) early consumer-protection measures — none of which meaningfully aligns with a peacetime prohibition on interstate handgun sales among citizens of a single sovereign nation. The court explicitly rejected the Second Circuit’s contrary approach in United States v. Vereen, 152 F.4th 89 (2d Cir. 2025), calling its analysis one that “stretches the historical record far beyond what it can actually bear.” Citing United States v. Hemani, 146 S. Ct. 1677 (2026), the court emphasized that broad similarities between founding-era laws and modern regulations are insufficient: “the finer points of the historical record cannot be glossed over.” The court concluded: “The Ban sullies the plain text of the Second Amendment and is inconsistent with the nation’s tradition of firearms regulation.”
  • Judge Haynes dissented, stating: “I agree with the district court’s decision that the several provisions of 18 U.S.C. § 922 discussed in this case are not unconstitutional under the Second Amendment. That is all that is in play in this case, thus, I would affirm.”

Unpublished decisions

• United States v. Guerrero-Olvera, 25-11375, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.
  • Cesar Guerrero-Olvera pleaded guilty to illegal reentry by an unlawful alien with a prior felony conviction under 8 U.S.C. § 1326(a) and (b)(1) and was sentenced above the guidelines range to 24 months of imprisonment. He challenged the procedural and substantive reasonableness of his sentence, arguing the district court (1) failed to explain its reasons for the upward variance and (2) misbalanced the 18 U.S.C. § 3553(a) sentencing factors and failed to consider mitigating factors.
  • The court found no plain error on procedural grounds because the district court cited appropriate § 3553(a) factors and gave reasons tied to those factors. On substantive reasonableness, the court concluded the district court relied on appropriate § 3553(a) factors to support the upward variance, and Guerrero-Olvera did not demonstrate that the sentence accounted for an improper factor or represented a clear error of judgment.

• United States v. Dorsett, 25-40442, appeal from E.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Hall, 25-40609, 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. Murguia, 25-50941, appeal from W.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 420-month sentence following a guilty plea to conspiracy to possess with intent to distribute methamphetamine and cocaine.
  • Defendant argued the district court erred in applying a two-level sentencing enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises to manufacture or distribute drugs. Because Murguia did not object below, the court reviewed for plain error only.
  • The PSR, adopted by the district court without objection, identified a stash house that Murguia operated with a co-conspirator. The court held that the lack of a confirmed residential address, failure to describe the stash house, and the absence of seized controlled substances did not constitute plain error.

• United States v. Gomez-Torres, 26-10039, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming 24-month, within-guidelines sentence following a guilty plea for illegal reentry.
  • Defendant argued for the first time on appeal that the district court’s explanation was inadequate because it did not specifically respond to his nonfrivolous arguments for a lesser sentence.
  • The record as a whole reflected that the district court provided sufficient reasons for its within-guidelines sentence, and Gomez-Torres failed to show plain error. The court also denied the government’s motions for summary affirmance and for an extension of time, finding summary affirmance was not appropriate.

• United States v. Guerrero, 26-10072, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Valles, 26-10157, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Hernandez-Mendoza, 26-20040, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Flanagan, 26-20080, appeal from S.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Hall v. Ellison, et al., 26-20165, appeal from S.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), abandonment, § 1983
  • Affirming dismissal for failure to oppose motion to dismiss.
  • John Hall, a retired Houston police officer, filed another in a series of lawsuits against the City of Houston and various individuals alleging a “secret investigation” against him. This time he also sued U.S. District Judge Keith P. Ellison. Defendants moved to dismiss and Hall never responded; the district court granted the motions and dismissed all claims with prejudice more than six months after the motions were filed.
  • The court found no reversible error in the district court’s dismissal.

• Lafourche Parish v. Indian Harbor Insurance Co., et al., 26-30189, appeal from E.D. La.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), insurance, arbitration
  • Affirming vacatur of arbitration order as to domestic insurers.
  • This insurance dispute arose from Hurricane Ida. Lafourche Parish sued its foreign and domestic insurers, who removed the cases to federal court. The district court consolidated the actions, compelled arbitration, and stayed the litigation. After the Louisiana Supreme Court decided Police Jury of Calcasieu Parish v. Indian Harbor Insurance Co. and the Fifth Circuit decided Town of Vinton v. Indian Harbor Insurance Co., the Parish moved to vacate the arbitration order as to the domestic insurers. The district court granted the motion for the domestic insurers while maintaining its prior order as to the foreign insurers. The insurers appealed to preserve their argument that Town of Vinton was wrongly decided, while acknowledging the panel could not grant relief under the rule of orderliness.
  • The court held that the insurers’ arguments were foreclosed by Town of Vinton and the panel was bound to reject them.

• United States v. Babin, 26-30206, appeal from M.D. La.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Silva-Salazar, 26-40023, appeal from E.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.
  • Jorge Albeiro Silva-Salazar, a federal prisoner, appealed the denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) pursuant to Subpart 1 of Part B of Amendment 821 to the Sentencing Guidelines. He argued the district court abused its discretion by not addressing his eligibility or the § 3553(a) factors, and also raised challenges to the reasonableness of his original 200-month sentence.
  • The record showed the district court was aware of Silva-Salazar’s eligibility but denied a reduction after weighing the § 3553(a) factors, including the nature of the offense and the defendant’s history and characteristics. The court held that Silva-Salazar’s rehabilitation argument amounted to a mere disagreement with the court’s analysis, which is insufficient to show abuse of discretion. The court also declined to consider his challenges to the reasonableness of his original sentence, noting they were raised for the first time on appeal and are not cognizable in a § 3582(c)(2) motion.

• United States v. Tarnawa, 26-40075, appeal from E.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Donald Tarnawa, a federal prisoner, appealed the denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compassionate release. On appeal, he abandoned his extraordinary-and-compelling-circumstances arguments and focused exclusively on his claim that prison rehabilitation entitled him to release. He also argued the district court did not consider his rehabilitation arguments.
  • The court found Tarnawa failed to demonstrate an abuse of discretion. It held that the district court reviewed the motion and could be assumed to have considered his rehabilitation arguments even without explicitly addressing them. Tarnawa’s rehabilitation-based challenge to the court’s balancing of § 3553(a) factors amounted to a mere disagreement, which is insufficient to show abuse of discretion.

• United States v. Gamez, 26-40122, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Pineda-Urquia, 26-50068, appeal from W.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.
  • Luis Alonso Pineda-Urquia appealed his sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(2), arguing that § 1326(b) is unconstitutional because it allows a sentence above the statutory maximum based on facts neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He acknowledged the argument was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and raised it solely to preserve the issue for further review.
  • The court confirmed the argument was foreclosed by existing precedent, including Almendarez-Torres and Erlinger v. United States, and affirmed the district court’s judgment.

• Molina Canales v. Blanche, 26-60069, petition for review of BIA order
  • per curiam (Stewart, Richman, Higginson) (no oral argument), immigration
  • Denying Honduran citizens’ petition for review of BIA decision dismissing their appeal from an immigration judge’s denial of protection under the Convention Against Torture (CAT).
  • Molina Canales did not appeal the denial of asylum, and his wife and daughter did not qualify as derivative beneficiaries of his CAT claim. The court reviewed whether the agency properly analyzed Molina Canales’s claims of past and future death threats and government acquiescence in his mistreatment.
  • The court found substantial evidence supported the agency’s determination that Molina Canales was not likely to be tortured if returned to Honduras. The IJ and BIA meaningfully analyzed the CAT claim; Molina Canales presented no evidence anyone in Honduras was looking for him; the harm he experienced (nonimmediate death threats without physical harm) did not rise to the level of torture; and he offered no evidence compelling the conclusion he would face torture upon return. The court declined to address governmental acquiescence given the lack of a threshold showing of likely torture.

• United States v. Lee, 26-60096, appeal from S.D. Miss.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of felon-in-possession.
  • Alforn Napoleon Lee was convicted of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1) and sentenced to 29 months of imprisonment, three years of supervised release, and a $1,500 fine. He argued that § 922(g)(1) is unconstitutional on its face and as applied to him under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and that the statute requires more than a firearm’s past movement in interstate commerce to satisfy the commerce element or otherwise exceeds Congress’s Commerce Clause authority. Lee conceded each argument was foreclosed.
  • Summary affirmance granted. The court confirmed the facial challenge was foreclosed by United States v. Diaz, the as-applied challenge by United States v. Kimble and related cases, and the Commerce Clause arguments by United States v. Alcantar and United States v. Rawls.