Unpublished decisions
- United States v. Sifuentes, 25-51057, appeal from W.D. Tex.
- per curiam (Clement, Engelhardt, Wilson) (no oral argument), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- Lau v. Thrifty Discount Liquor and Wines, et al., 26-30014, appeal from W.D. La.
- per curiam (Jones, Ho, Wilson) (no oral argument), employment discrimination, appellate jurisdiction
- Dismissing for lack of timely notice of appeal, appeal from dismissal of employment discrimination claims and denial of motions for reconsideration.
- Pro se plaintiff Gilbert Lau brought ADA, Louisiana Employment Discrimination Law, respondeat superior, prima facie tort, and oral breach of contract claims against his former employer and two individuals. After the district court granted summary judgment for defendants on December 5, 2025, the threshold question on appeal was whether Lau’s notice of appeal was timely under Federal Rule of Appellate Procedure 4(a)(1)(A)’s 30-day deadline.
- Lau’s first notice of appeal, filed January 8, 2026, fell 34 days after final judgment. The court examined whether any of Lau’s three motions for reconsideration tolled the deadline. The first motion challenged a non-final discovery order and was not properly a Rule 59(e) motion. The amended motion similarly failed to challenge a final judgment. The second motion for reconsideration, while substantively a proper Rule 59(e) motion, was filed 32 days after summary judgment—beyond Rule 59(e)’s strict 28-day limit. Although Lau argued the motion was postmarked within 28 days, the Western District of Louisiana’s local rules deem a paper filing by a pro se filer as filed when received by the Clerk’s office, not when postmarked.
- Because the notice of appeal was untimely and no motion tolled the deadline, the court lacked jurisdiction and dismissed the appeal.
- United States v. Harris, 26-30089, appeal from W.D. La.
- per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing, search and seizure
- Affirming conviction and sentence on drug charges, upholding denial of motion to suppress.
- Norvell Harris appealed his conviction and sentence for two counts of possession of a controlled substance with intent to distribute. He challenged (1) the denial of a motion to suppress evidence, (2) the denial of a Franks v. Delaware hearing, and (3) the district court’s guidelines-range calculation at sentencing.
- On the suppression motion, the court found Harris’s briefing inadequate—he merely intimated possible grounds for relief and largely ignored the district court’s reasoning—and deemed the issue abandoned. On the Franks hearing, the court found no clear error in the district court’s conclusion that an acknowledged error was not deliberate or made with reckless disregard for the truth. On sentencing, the court rejected Harris’s argument that an older version of the Guidelines should have applied, citing United States v. Vargas (en banc), and also rejected his challenge to the application of U.S.S.G. § 2D1.1(b)(1) as not clearly erroneous.
- United States v. Crosby, 26-30100, appeal from W.D. La.
- per curiam (King, Higginson, Douglas) (no oral argument), criminal, sentencing
- Affirming 60-month sentence on felon-in-possession conviction.
- JaClemmie Crosby pleaded guilty to possession of a firearm by a felon (18 U.S.C. § 922(g)(1)) and was sentenced above the guidelines range to 60 months of imprisonment. He challenged both the procedural and substantive reasonableness of his sentence, arguing that the district court (1) failed to explain its reasons for the upward variance and (2) misbalanced the § 3553(a) sentencing factors and failed to consider mitigating factors.
- On procedural reasonableness, the court found no plain error because the district court cited appropriate § 3553(a) factors and gave reasons tied to those factors, making its reasoning clear and reviewable. On substantive reasonableness, the court concluded under the totality of the circumstances that the district court did not abuse its discretion, as it relied on appropriate § 3553(a) factors to support the upward variance.
- United States v. Armijo-Mercado, 26-40149, appeal from S.D. Tex.
- per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentencing
- Affirming 18-month sentence on conviction of illegal reentry.
- Cesar Armijo-Mercado appealed his 18-month, within-guidelines sentence following a guilty plea for being found in the United States after a previous deportation. He argued the sentence was substantively unreasonable because (1) his criminal history category overstated the seriousness of his criminal history, and (2) the district court did not credit time he spent in state custody toward his federal sentence.
- The court applied a rebuttable presumption of reasonableness to the within-guidelines sentence. It rejected Armijo-Mercado’s challenge to the criminal history provisions as too punitive, citing precedent. On the state-custody credit, the court noted the district court could not award credit but could consider such time in fashioning the sentence—and ultimately chose not to vary downward.
- Ortega v. Stern Rock Capital, L.L.C., et al., 26-50171, appeal from W.D. Tex.
- per curiam (Willett, Duncan, Engelhardt) (no oral argument), personal jurisdiction, Telephone Consumer Protection Act
- Vacating dismissal of TCPA claim on personal jurisdiction grounds.
- Pro se plaintiff Mark Anthony Ortega, a Texas resident, appealed the dismissal of his complaint for lack of specific personal jurisdiction over New York–based defendants Zachary Neman and Stern Rock Capital, L.L.C. Ortega alleged the defendants violated the Telephone Consumer Protection Act and Texas law by repeatedly calling his cell phone to offer business financing services. The district court, without an evidentiary hearing, relied on Neman’s declaration to conclude that Ortega’s jurisdictional allegations need not be taken as true and that Ortega failed to make a prima facie showing of jurisdiction.
- Applying de novo review, the Fifth Circuit found that Neman’s declaration did not controvert Ortega’s allegations regarding his Texas residence, the phone calls received in Texas, or his cell phone number. Accordingly, the district court erred by failing to accept those uncontroverted allegations as true when assessing the prima facie showing of specific personal jurisdiction. The court expressly declined to reach the merits of the jurisdictional question.
