Unpublished decisions
- United States v. Lott, 26-20068, appeal from S.D. Tex.
- per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
- Affirming 18-month sentence on revocation of supervised release.
- Defendant Rollie Andre Lott appealed his 18-month supervised-release revocation sentence, arguing that the district court improperly relied on a retributive factor—his “lack of respect for the law”—which is excluded from the permissible sentencing considerations under 18 U.S.C. § 3583(e) as interpreted by the Supreme Court in Esteras v. United States, 606 U.S. 185 (2025). The court noted that Esteras held district courts may not consider the retributive factors listed in § 3553(a)(2)(A)—reflecting the seriousness of the offense, promoting respect for the law, and providing just punishment—when revoking supervised release, because Congress deliberately excluded them. The panel observed that the Fifth Circuit has not yet addressed what effect, if any, Esteras has on its prior “intermediate” approach, under which a forbidden factor must be a “dominant” consideration to constitute reversible error.
- Because Lott did not preserve the issue below, the court reviewed for plain error only. The panel held that the district court’s reference to Lott’s “egregious disregard for the law” did not reveal reliance on a prohibited retributive factor; rather, in context, the remark was directed at Lott’s failure to comply with the terms and conditions of his supervised release. Lott therefore failed to establish a clear or obvious error.
- Bourrage v. Sollie, 26-60275, appeal from S.D. Miss.
- per curiam (Willett, Duncan, Engelhardt) (no oral argument), § 1983, timeliness, AI-generated filings
- Affirming dismissal of § 1983 claims as time-barred.
- Pro se plaintiff Joseph Bourrage sued Deputy Everette “Trey” Fox III under 42 U.S.C. § 1983, alleging Fourth, Eighth, and Fourteenth Amendment violations arising from a July 2019 arrest, and sued then-Sheriff Billy Sollie for failure to train and supervise. The district court granted summary judgment for the defendants on the ground that Bourrage’s claims—filed in September 2024, five years after the arrest—were untimely, and declined to toll the statute of limitations.
- On appeal, Bourrage argued that his claims should be treated as a malicious-prosecution action that does not accrue until criminal proceedings terminate in the plaintiff’s favor; however, the panel found that argument forfeited because Bourrage never raised a malicious-prosecution claim below. Bourrage’s spoliation and discovery arguments were also rejected as irrelevant to the timeliness basis for dismissal.
- Notable Admonition Regarding AI-Generated Filings: The panel devoted a significant portion of the opinion to admonishing Bourrage for repeatedly filing briefs containing fabricated or inaccurate legal citations. In at least three filings before the district court and the Fifth Circuit, Bourrage cited nonexistent cases and purported to quote language from Walker v. Epps, 550 F.3d 407 (5th Cir. 2008), that does not appear in that opinion. The court acknowledged that “[g]enerative AI is a powerful tool and can improve legal work in meaningful ways,” including sharpening prose, clarifying thinking, and helping pro se litigants navigate the legal system, but stressed that “AI does not displace the duty of every filer, whether a lawyer or a pro se litigant, to ensure that factual assertions, quotations, and legal authorities are real and accurate.” Citing Garces v. Hernandez, No. 25-50342 (5th Cir. 2025), and Fletcher v. Experian Information Solutions, Inc., 168 F.4th 231 (5th Cir. 2026), the panel characterized the false citations as “hallucinations” strongly suggesting AI use. Bourrage was warned that future filings citing nonexistent authorities “can and will result in sanctions by this Court, which may include dismissal, monetary sanctions, and restrictions on his ability to file pleadings here and in any court subject to this Court’s jurisdiction.”
