Take the Fifth

Designated for publication

• United States v. Koan, 25-10850, appeal from N.D. Tex.
  • Engelhardt, J. (Smith, Haynes, Engelhardt) (oral argument), Haynes, J., dissenting; criminal, sentencing
  • Vacating sentence of two consecutive 30-year terms for production of child pornography, and remanding for resentencing.
  • David Koan pled guilty to two counts of production of child pornography under 18 U.S.C. § 2251(a). He had previously been sentenced in Texas state court to 35 years for aggravated sexual assault of a child—conduct underlying the same federal offense. At the time of federal sentencing, he had served roughly 40 months in state custody. The presentence report recommended that the court adjust the federal sentence under U.S.S.G. § 5G1.3(b) to credit that time, but the district court stated it lacked the authority to do so, deferring the matter to the Bureau of Prisons. Koan was sentenced to a total of 60 years’ imprisonment (two consecutive 30-year terms) to run concurrently with the remaining state sentence.
  • At issue on appeal was (1) whether Koan preserved his objection under U.S.S.G. § 5G1.3(b) despite not citing the provision by name, and (2) whether the district court erred by refusing to consider a sentence adjustment under § 5G1.3(b), apparently conflating that authority with the BOP’s exclusive power to award credit under 18 U.S.C. § 3585(b).
  • The court held that Koan preserved his objection even though he did not cite § 5G1.3(b) by name. His request to “be given credit back” and to “adjust the sentence accordingly” was “specific enough to alert the district court as to the nature of alleged error,” consistent with Peterson and Massey.
  • The district court conflated two distinct authorities: 18 U.S.C. § 3585(b), which governs credit for presentence custody and is administered solely by the BOP, and U.S.S.G. § 5G1.3(b), which allows a sentencing court to adjust a sentence for time served on a related, undischarged state term. The court noted: “the district court erred when it seemingly conflated the two.” Because the court believed it lacked the authority, it “refused to consider reducing Koan’s sentence under § 5G1.3(b).”
  • Rejecting the government’s argument that the court implicitly considered and rejected § 5G1.3(b) by running sentences concurrently, the majority explained: “the district court declined to adjust Koan’s sentence because it thought it could not do so,” distinguishing this from Estrada, where the court thought the sentence was already “sufficient.” “This difference is crucial because the former shows consideration and rejection of the adjustment (albeit implicit), while the latter shows a refusal to consider the adjustment at all.”
  • Judge Haynes dissented, contending that the objection was not properly preserved and that plain error review, which is clearly not satisfied, should apply. She observed: “One thing is obvious: The district judge would have preferred to assign Koan a life sentence. A life sentence, however, is not available here so she gave Koan the highest sentence she could.” She concluded that on remand the district judge “can do the same thing, and I think she will,” making the vacatur an empty exercise.

• Frankfort v. Metropolis Technologies, Inc., 25-11168, appeal from N.D. Tex.
  • King, J. (King, Smith, Ramirez) (oral argument), Fair Debt Collection Practices Act
  • Affirming dismissal of FDCPA claims.
  • Metropolis Technologies operates AI-driven, gateless parking garages. When drivers fail to pay via posted QR codes, Metropolis mails “Notices of Parking Violation” demanding the unpaid fee plus a “Violation Fine” that is a multiple of the parking charge—e.g., a $75.25 fine on a $5 parking charge. Appellants Frankfort and Goodban filed a putative class action alleging Metropolis was a “debt collector” under the Fair Debt Collection Practices Act (FDCPA) and asserted additional Texas state-law claims. The district court dismissed the FDCPA claim with prejudice, holding that Metropolis fell within the FDCPA’s “originator exclusion” (§ 1692a(6)(F)(ii)) because it originated the debts.
  • At issue on appeal was (1) whether the FDCPA’s originator exclusion applies to an entity collecting debts it originated for itself (as opposed to for another), and (2) whether the plaintiffs adequately alleged Metropolis was a “debt collector” under the FDCPA’s principal-purpose or regularly-collects-for-others definitions.
  • The Court affirmed on alternative grounds. The district court misinterpreted the originator exclusion, but the plaintiffs nonetheless failed to plausibly allege Metropolis is a “debt collector.”
  • The court held the district court erred in applying the originator exclusion. Relying on the Supreme Court’s reasoning in Henson v. Santander Consumer USA Inc., the Fifth Circuit held that § 1692a(6)(F)(ii) by its plain text only applies to persons “collecting or attempting to collect any debt owed or due . . . another”—i.e., persons collecting debts for someone else. “For a debt collector to successfully invoke the originator exclusion, it must (1) collect debts for another and (2) have originated the debts.” The district court skipped the first prerequisite.
  • However, the plaintiffs failed on the merits. Their own complaint described Metropolis as “a new player in the parking industry” providing “seamless parking solutions,” establishing that its principal purpose is parking operations, not debt collection. The plaintiffs also failed to plead facts plausibly connecting Metropolis’s partnerships with facility owners to debt collection on their behalf.
  • Dismissal with prejudice was affirmed because the plaintiffs made only “bare bones” requests to amend, never proposing an amended complaint or explaining how they would cure the deficiencies.

• United States v. Serna, 25-40109, appeal from S.D. Tex.
  • per curiam (Smith, Haynes, Engelhardt) (oral argument), criminal, jury instruction
  • Affirming conviction of sexual exploitation of a child
  • Luis Andres Serna, then 26, began a sexual relationship with a 14-year-old girl. While detained pretrial on separate federal charges, Serna initiated sexually explicit video calls with the victim—then 16—directing her to perform sexual acts, which she recorded and replayed during later calls. He was charged with sexual exploitation of a child under 18 U.S.C. § 2251(a). The district court granted the government’s motion in limine barring any mistake-of-age defense and denied Serna’s request for a jury instruction requiring proof that he knew the victim was a minor. Serna pled guilty but reserved his right to appeal the denial of that instruction.
  • At issue on appeal was whether 18 U.S.C. § 2251(a) requires the government to prove the defendant knew the victim was a minor, particularly when the defendant is a non-commercial producer of child pornography.
  • The court gave three reasons. First, the text: “Nowhere does it require that a defendant have knowledge of the victim’s age.” Second, the usual presumption favoring scienter “does not apply to sex crimes against minors,” especially when the defendant “confronts the victim personally.” The court observed that Serna “was able to ‘confront[] the underage victim personally’ via video call and in-person on numerous occasions.” Third, the statute draws no distinction between commercial and non-commercial producers; Congress deliberately deleted the “for pecuniary profit” requirement from the original 1977 statute in 1984.
  • The court added in a footnote: “While there need not be that information, it does seem pretty likely that he knew of MV’s minority given that he was having sex with her for two years, starting when she was fourteen years old.” It also declined to recognize a mistake-of-age defense, noting that “the Ninth Circuit stands alone in its determination that the First Amendment requires a reasonable mistake-of-age defense.”

• Phillips v. Ethicon Endo-Surgery, Inc., 25-50116, c/w 25-50308, appeal from W.D. Tex.
  • Higginson, J. (Smith, Wiener, Higginson) (oral argument), amendment, res judicata, products liability
  • Affirming dismissal of products liability claims and denial of amendment.
  • Fred Steven Phillips died following complications from a 2021 colon surgery in which a surgical stapler allegedly malfunctioned, causing sepsis. His family filed a Texas products-liability suit (“Phillips I“) alleging breach of warranty claims against Johnson & Johnson entities and Ethicon Endo-Surgery (EES). The plaintiffs admittedly failed to provide presuit notice to EES as required by Texas Business and Commerce Code § 2.607(c)(1). After a magistrate judge recommended dismissal, and during the pendency of a motion to dismiss, the plaintiffs filed a new state-court action (“Phillips II“) against additional defendants without disclosing this to the court in Phillips I. The district court dismissed Phillips I with prejudice, and Phillips II was subsequently dismissed on res judicata and collateral estoppel grounds.
  • At issue on appeal was (1) whether the district court erred in dismissing Phillips I for failure to state a claim (lack of presuit notice), (2) whether dismissal with prejudice and denial of leave to amend was proper, and (3) whether the Phillips II dismissal on preclusion grounds was valid.
  • The plaintiffs conceded they did not provide presuit notice to EES, which is an essential element of a Texas breach of implied warranty of merchantability claim. “That concession defeats their first argument.”
  • The district court did not abuse its discretion in dismissing with prejudice. The plaintiffs’ request for leave to amend was a single sentence tacked onto their opposition brief; they never proposed specific amended allegations. The court noted the plaintiffs “chose not to object to the R&R on substantive grounds” and failed to disclose Phillips II to the district court or share new allegations that could avoid dismissal with prejudice.
  • The preclusion ruling in Phillips II stood because the plaintiffs forfeited any substantive challenge to the preclusion analysis by failing to brief it on appeal. The court closed with sympathy: “Our sympathies are with Plaintiffs, who have suffered a horrible loss. Given Plaintiffs’ concessions and forfeiture, we find that they have not shown any reversible error.”

• Pittsburgh Logistics Systems, Inc. v. Glen Rose Transportation Management, 25-50864, appeal from W.D. Tex.
  • per curiam (Stewart, Higginson, Ho) (oral argument), Ho, J., concurring; trade secrets. witness testimony, Rule 59(e), costs
  • Affirming judgment for defendant on trade secrets claims, affirming denial of Rule 59(e) motion, and dismissing cross-appeal on costs.
  • Pittsburgh Logistics Systems (PLS) sued Glen Rose Transportation Management, alleging unjust enrichment and misappropriation of trade secrets (customer lists) under the Texas Uniform Trade Secrets Act and the federal Defend Trade Secrets Act. After a jury trial, the jury returned a verdict in favor of Glen Rose—even though the jury was instructed that PLS’s customer lists were trade secrets. PLS moved to amend the judgment under Rule 59(e), which was denied. Glen Rose cross-appealed the district court’s failure to rule on its pending motion for costs. Separately, the magistrate judge had held an ex parte meeting with Glen Rose’s corporate representative after the representative sent emails referencing connections to politicians and implicitly criticizing the judge’s handling of the case.
  • At issue on appeal was (1) whether the district court abused its discretion in admitting certain testimony, (2) whether denial of PLS’s Rule 59(e) motion was reversible error, and (3) whether the cross-appeal on costs was reviewable.
  • PLS failed to show prejudice from the challenged testimony, “particularly true” given that the jury was expressly instructed that PLS’s customer lists were trade secrets—the opposite of the testimony PLS objected to.
  • PLS’s Rule 59(e) motion amounted to an argument that “the jury just got it wrong,” which is insufficient to establish manifest error of law or fact. PLS also failed to provide record support.
  • Glen Rose’s cross-appeal on costs was dismissed because the district court had not yet ruled on the motion, meaning there was no final, appealable order.
  • Judge Ho concurred, writing separately to address the magistrate judge’s ex parte meeting with Glen Rose’s corporate representative—a meeting prompted by the representative’s emails referencing political connections and questioning judicial delay while the judge was publicly being considered for a district court appointment. Ho acknowledged the meeting was “strongly disfavored” but found no reversible error because the contents were promptly disclosed. He used the occasion to reflect on what a legal scholar has called “the audition trap”—the irrefutable charge that a judge’s rulings are motivated by personal ambition for higher office. Ho quoted Professor Josh Blackman: “Once a person is labeled as an auditioner, everything they do will be seen as an attempt to audition.” He concluded that the only proper response for a judge is to “articulate the governing principles that decide the case, and endeavor to apply those principles consistently in all such cases, without fear or favor or regard to personal consequences. And then just let his record over time speak for itself.”

Unpublished decisions

• Mata v. Guerrero, 25-10526, appeal from N.D. Tex.
  • per curiam (Elrod, Willett, Wilson) (oral argument), habeas corpus, Brady violation
  • Affirming denial of sec. 2254 petition.
  • Texas state prisoner Desirae Mata, convicted of two counts of capital murder, appealed the denial of federal habeas relief under 28 U.S.C. § 2254, raising claims under Napue v. Illinois (use of known false testimony) and Brady v. Maryland (failure to disclose impeachment evidence). The Napue claim centered on whether a jailhouse informant’s testimony about the absence of a deal with the prosecutor’s office was false. The Brady claim concerned five previously undisclosed letters showing the informant’s efforts to obtain a federal sentence reduction in exchange for her cooperation.
  • On the Napue claim, the court held the informant’s testimony was not false because she truthfully denied a deal with the prosecutor’s office specifically, and cross-examination made the distinction clear to the jury. On the Brady claim, the court assumed the letters were favorable and suppressed but held they were not material because the jury already had substantial reason to doubt the informant’s credibility on the very point the letters addressed, and one letter actually cut against Mata’s theory by showing the informant had been rebuffed in her request for a sentence reduction.

• Johnson v. Tarrant County, 25-10923, appeal from N.D. Tex.
  • per curiam (Smith, Haynes, Engelhardt) (oral argument), sec. 1983, municipal liability
  • Affirming dismissal of sec. 1983 and municipal liability claims.
  • The mother and child of Trelynn Wormley, who died of a fentanyl overdose while in Tarrant County jail, brought § 1983 municipal liability claims against Tarrant County and negligent supervision claims against Keefe Commissary Network, the jail’s third-party commissary operator whose employee allegedly supplied the drugs. The issues on appeal were whether plaintiffs adequately alleged a de facto county policy of allowing drugs into the jail and whether plaintiffs stated a claim of negligent supervision against Keefe.
  • Plaintiffs failed to allege a de facto policy under Monell because they did not plead a pattern of acts or omissions sufficiently extended or pervasive to prove an intended condition or practice. As to Keefe, plaintiffs did not identify any facts suggesting Keefe knew or should have known its employee posed a foreseeable risk of bringing drugs into the jail.

• Ocampo Fitz v. Venegas Nuñez, 25-11245, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Willett) (oral argument), civil
  • Rule 47.6 affirmance for defendant.

• Atkinson v. Pustilnik, 25-20513, appeal from S.D. Tex.
  • per curiam (Smith, Haynes, Engelhardt) (oral argument), Haynes, J., dissenting in part; qualified immunity, § 1983
  • Affirming dismissal of First Amendment retaliation, equal protection, and due process claims, including as to individual defendants by qualified immunity.
  • Yvette Atkinson sued the Fort Bend County Medical Examiner and county officials under § 1983, alleging that the Medical Examiner deliberately delayed and then falsified her husband’s death certificate (classifying his death as a homicide despite an earlier finding of no foul play) in retaliation for a phone call from her brother and for filing the lawsuit. Atkinson asserted First Amendment retaliation, equal protection (class-of-one and ethnic-animus theories), and procedural and substantive due process claims.
  • The court affirmed the dismissal with prejudice of Atkinson’s fourth complaint. The First Amendment retaliation claim failed because Atkinson dropped a critical allegation (that her speech had been curtailed) from her third amended complaint and did not incorporate by reference the earlier pleading. The due process claims failed because Atkinson identified no Texas law entitling her to a death certificate containing a specific manner-of-death determination, and she had already received the life insurance proceeds she claimed were withheld. The equal protection claims failed because a medical examiner’s manner-of-death determination involves discretion not amenable to a class-of-one theory, and her ethnic-animus allegations were conclusory. All individual defendants were also entitled to qualified immunity given the absence of clearly established law.
  • Judge Haynes dissented in part, agreeing with all of the majority’s judgment except as to the Medical Examiner, Pustilnik. She wrote: “Despite the fact that an assistant medical examiner found no evidence of foul play, leading to the conclusion that Atkinson’s husband died by suicide, Pustilnik claimed that he was murdered and released an amended death certificate reaching that conclusion. He released the amended death certificate only after Atkinson sued him.” Judge Haynes stated: “To me, that is an unusual situation, so I do not think qualified immunity is appropriate, at least at this early stage, for someone who is alleged to have done something false on purpose because of an interaction with Atkinson’s brother.” Judge Haynes would have remanded to allow amendment and “more fulsome consideration of what Pustilnik did, why he did it, and how it impacted her.”

• McClanahan v. Noel, 25-30614, appeal from M.D. La.
  • per curiam (Smith, Haynes, Engelhardt) (oral argument), Haynes would have reversed and remanded (dissenting in part w/o op.); First Amendment, municipal liability
  • Reversing judgment on bench trial that one of the defendants violated the plaintiff’s First Amendment rights, and rendering judgment in defendant’s favor.
  • Three individuals were removed from a May 2017 Baton Rouge Metropolitan Council meeting after they attempted to voice displeasure about the Council’s inaction following the death of Alton Sterling. After a bench trial, the district court found the Mayor Pro Tempore violated two of the plaintiffs’ First Amendment rights (viewpoint discrimination and right to attend a public meeting) and entered judgment against the Mayor Pro Tempore in his official capacity under Monell. The key issue on appeal was whether the Mayor Pro Tempore was a “final policymaker” (as required for Monell municipal liability) or merely a “final decisionmaker.”
  • First, the court rejected the mootness argument, holding that the with-prejudice dismissal of duplicative claims against the City did not moot the identical claims against the Mayor Pro Tempore. On the merits, the court held that state law (Louisiana’s Open Meetings Law and the City’s Code of Ordinances) delegated to the Mayor Pro Tempore only final decisionmaking authority—the power to enforce existing rules at meetings—not final policymaking authority, which remained with the Metropolitan Council. Because the Mayor Pro Tempore was not a policymaker, his actions could not give rise to Monell municipal liability.

• United States v. Melgar, 25-50292, appeal from W.D. Tex.
  • per curiam (Jones, Graves, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Arredondo v. City of San Marcos, 25-50732, appeal from W.D. Tex.
  • Higginson, J. (King, Higginson, Douglas) (no oral argument), amendment, § 1983
  • Affirming denial of motion to amend.
  • Pro se plaintiff Derek Arredondo appealed the district court’s partial grant of summary judgment to defendants (the City of San Marcos, Hays County, and various officials), denial of default judgment, and denial of leave to amend. The primary issues were whether the district court abused its discretion in denying leave to amend after the scheduling order deadline had long passed, and in setting aside a default entered against two defendants.
  • Arredondo’s motion for leave to amend was untimely—filed nearly two years after removal and eleven months after the amendment deadline—and he failed to demonstrate good cause under Rule 16(b). Setting aside the default was not plain error given the magistrate judge’s finding that the failure to act was not willful, there was no prejudice, and the defendants presented potentially meritorious defenses. Remaining arguments were deemed inadequately briefed and abandoned.

• United States v. Quezada, 26-10132, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ross, 26-10143, 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. Larson, 26-10189, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Love, 26-10235, appeal from N.D. Tex.
  • per curiam (Elrod, Richman, Southwick) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Montelongo, 26-10245, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Jose Montelongo, serving two concurrent life sentences for drug convictions, appealed the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). He argued extraordinary and compelling reasons warranted release, citing drug abuse at the time of his offenses, disparities with co-defendants’ sentences, 13 years of exemplary incarceration, and rehabilitation efforts.
  • Montelongo’s arguments amounted to a disagreement with the district court’s balancing of the § 3553(a) sentencing factors, which is not a sufficient ground for reversal.

• United States v. Davis-Howard, 26-30115, appeal from W.D. La.
  • per curiam (Davis, Richman, Oldham) (no oral argument), criminal, sentencing
  • Affirming 60-month sentence on conviction of possession of a machinegun.
  • Rodriques Davis-Howard was convicted of illegal possession of a machinegun and sentenced to 60 months of imprisonment, above the guidelines range. He challenged the substantive reasonableness of his sentence, arguing the district court gave undue weight to his juvenile convictions and insufficient weight to mitigating factors.
  • The record reflected the district court made an individualized assessment and concluded the guidelines range did not adequately account for the § 3553(a) factors; Davis-Howard did not show the court gave weight to an improper factor or clearly erred in balancing.

• United States v. Jones, 26-30182, appeal from W.D. La.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Roy Lee Jones, Jr., serving a 210-month sentence, appealed the denial of his compassionate release motion under 18 U.S.C. § 3582(c)(1)(A)(i). The district court found extraordinary and compelling circumstances existed but denied relief after weighing the § 3553(a) factors. Jones argued the court failed to consider his rehabilitation and BOP “minimum risk” classification, gave insufficient reasons, erred in finding he had not served 50% of his sentence, and improperly relied on the same § 3553(a) factors it cited when denying a prior compassionate release motion.
  • The court presumed the district court considered Jones’s rehabilitation arguments and BOP classification because they were raised in his pleadings and the court expressly stated it had carefully considered them. Jones’s contentions largely amounted to a disagreement with the district court’s balancing of the § 3553(a) factors. The district court’s finding that granting a sentence of less than half of 210 months would not reflect the seriousness of the offense, promote regard for the law, or provide adequate deterrence was not an abuse of discretion.

• United States v. Gilliam, 26-40184, appeal from E.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Belloc, 26-50103, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Lewis-Watson v. Telle, 26-50116, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Engelhardt) (no oral argument), employment discrimination, appellate jurisdiction
  • Dismissing for untimely notice of appeal, appeal of sanctions order.
  • Lisa Lewis-Watson filed a civil action against government defendants alleging employment discrimination related to her 2013 termination from the Department of the Army and loss of medical benefits, as well as claims related to social security benefits. The district court had dismissed her complaint (affirmed in a prior appeal), after which Lewis-Watson filed numerous repetitive post-judgment motions, leading to monetary sanctions. The issue was whether Lewis-Watson filed a timely notice of appeal.
  • Lewis-Watson’s notice of appeal was filed more than 60 days after the relevant sanction order, and the clerk’s notice she purported to appeal was not an appealable order of the district court. Although she filed additional notices within 60 days of later orders, she did not designate those rulings and thus could not show timely notices of appeal from them.

• Irias-Lopez v. Blanche, 26-60043, petition for review of BIA order
  • per curiam (Davis, Stewart, Duncan) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing appeal from an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ found their proffered particular social groups were not cognizable and that they did not demonstrate they would more likely than not be tortured if returned to Honduras. The BIA concluded the petitioners had waived both issues by failing to adequately challenge the IJ’s determinations on appeal.
  • The court held the BIA did not err in finding waiver of the asylum and withholding-of-removal claims (petitioners failed to challenge the IJ’s determination that the alleged harm was not on account of a cognizable particular social group) or the CAT claim (petitioners failed to challenge the IJ’s reasons for denying CAT relief). The court also rejected petitioners’ argument that the BIA was required to conduct a merits analysis notwithstanding waiver.