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), appeal waiver, criminal, sentencing
  • On remand from Supreme Court, withdrawing September 18 panel opinion (also post-remand) and substituting with new opinion, dismissing appeal of sentence on enforcement of appeal-waiver in guilty plea.
  • Devin Chaney pleaded guilty to Hobbs Act Robbery and Armed Bank Robbery, waiving his right to appeal except for a sentence above the statutory maximum or a claim of ineffective assistance of counsel. In exchange, the government dropped nine of the eleven counts. Despite the waiver, Chaney appealed, arguing the district court improperly classified him as a career offender under U.S.S.G. § 4B1.1, contending that his 2019 Louisiana conviction for distribution of a controlled dangerous substance did not qualify as a federal predicate offense because the state marijuana offense covered hemp while the federal offense did not. 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 recognized a “miscarriage of justice” exception to appeal waivers.
  • At issue on appeal after remans was whether Chaney’s career-offender designation constituted the kind of “egregious error” that qualifies as a “miscarriage of justice” under the Supreme Court’s newly announced exception in Hunter I, thereby rendering his appeal waiver unenforceable. A secondary issue was whether the district court’s allegedly cursory overruling of Chaney’s sentencing objection amounted to a denial of a “minimum of civilized procedure.”
  • The court enforced Chaney’s appeal waiver, holding that neither the substantive Guidelines error nor the alleged procedural shortcoming met the demanding “miscarriage of justice” standard set by Hunter I.
  • The court acknowledged that Chaney identified a “clear or obvious error” in his career-offender designation—the Louisiana controlled-substance conviction did not qualify as a federal predicate under Minor, 121 F.4th 1085 (5th Cir. 2024). However, the panel held this was the type of “unfortunate but inevitable” Guidelines-calculation mistake that the Supreme Court in Hunter I said cannot overcome an appeal waiver. As the court put it: “Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver.”
  • The court stressed that the Hunter I “miscarriage of justice” standard is higher than the familiar plain-error test, noting that prior unpublished Fifth Circuit decisions finding “clear error” on the same Louisiana offense “do not define Hunter I‘s distinct waiver standard.” The exception is “a high bar” reserved as “a safety valve for extreme cases”—errors that are “not one[s] a judge could reasonably make,” such as a sentence exceeding the statutory maximum, a sentence infected with blatant constitutional error, or one imposed without a “minimum of civilized procedure.”
  • On Chaney’s procedural argument—that the district court summarily overruled his objection based solely on the Probation Officer’s recommendation—the panel found this did not come close to clearing Hunter I‘s bar. Chaney was given the opportunity to object and provide justification; the fact that the court quickly disagreed “does not mean that the sentencing process was done ‘without some minimum of civilized procedure.'” The court concluded: “Under Hunter I and this court’s decisions that have followed, this case isn’t even close.”

• Zahid v. Blanche, 25-60296, c/w 25-60524, petition for review of BIA order
  • Willett, J. (Jones, Southwick, Willett) (no oral argument), Southwick, J., dissenting; immigration
  • Denying Afghan citizen’s petition for review of BIA order affirming IJ’s denial of relief under the Convention Against Torture.
  • Hayatullah Zahid, a native and citizen of Afghanistan, worked for the Afghan Ministry of Education supervising education in Paktia Province before the Taliban’s 2021 return to power. After the takeover, the Taliban directed him to provide information about female students and their families; in 2022, he attended a protest against the Taliban’s closure of girls’ schools and shared photos and video with contacts outside Afghanistan. The Taliban arrested him, detained him for seven days, beat and interrogated him, and accused him of acting on behalf of the United States. He was released after family and community intervention, remained in Afghanistan for over a year, and entered the U.S. in February 2024. The IJ found his mistreatment constituted past persecution but concluded he had not met the higher showing for Convention Against Torture (CAT) relief. The BIA affirmed, denied remand for consideration of new evidence (including Taliban summonses and family declarations), and later denied reconsideration.
  • At issue on the petition was (1) whether the record compels the conclusion that Zahid would more likely than not be tortured if removed to Afghanistan, warranting CAT relief; (2) whether the BIA abused its discretion in denying remand for the IJ to consider new evidence, including Taliban summonses; and (3) whether the BIA abused its discretion in denying reconsideration.
  • The court found substantial evidence supported the BIA’s denial of CAT relief and found no abuse of discretion in the BIA’s denial of remand or reconsideration.
  • (CAT Relief): Applying the substantial-evidence standard—which the court confirmed governs the agency’s CAT-eligibility determination, including mixed questions of law and fact, citing Urias-Orellana v. Bondi, 607 U.S. 537 (2026)—the panel held the evidence did not compel a finding that Zahid would more likely than not be tortured. Country-conditions reports described Taliban abuses against former officials and activists but did not identify any specific threat to Zahid. The court noted: “Generalized country evidence tells us little about the likelihood state actors will torture any particular person.” The 2022 arrest was an “isolated episode” amounting to persecution—not the higher showing of torture—and Zahid remained in Afghanistan for over a year afterward, traveling in and out, undercutting his claim that future torture was more likely than not. The court also rejected the theory that Zahid would be tortured as a suspected American spy, noting Taliban officials inspected and cleared his passport multiple times after his detention without incident.
  • (Denial of Remand): The BIA did not engage in impermissible factfinding by screening new evidence for materiality—the governing regulation requires such threshold screening. The BIA gave specific, record-based reasons for discounting the new evidence: one summons was dated two weeks before the IJ’s decision yet Zahid claimed not to have learned of it until months later; both summonses described Zahid as the “leader of the protest,” inconsistent with his testimony that he merely photographed the demonstration; family statements came from interested declarants not subject to cross-examination; and the news reports were unauthenticated and from an unfamiliar source. The court emphasized the distinction between evidentiary screening and factfinding: “the BIA did not decide whether Zahid led the protest … or merely photographed it. Rather, it treated that inconsistency as weakening the summonses’ reliability.”
  • (Denial of Reconsideration): The motion for reconsideration largely repeated Zahid’s earlier arguments about CAT relief and remand, and because he identified no new error of law or fact in the BIA’s prior decision, the BIA did not abuse its discretion.
  • Judge Southwick dissented, contending the BIA should have remanded to the IJ for further factfinding rather than screening out the new evidence itself. He emphasized that the Taliban summonses—which demanded Zahid appear and “face serious reaction” for his role in the girls’ school protest—were “both too significant and too summarily rejected” for the BIA to deny remand. In his view, the BIA’s reliance on the inconsistency between the summonses’ characterization of Zahid as “leader of the protest” and his own testimony constituted impermissible “choosing between disputed facts,” a role reserved for the IJ. As he wrote: “[I]t is equally reasonable that the inconsistency shows that the Taliban misunderstood Zahid’s role in the protest, leaving their search for him even stronger evidence that he would face torture.” Judge Southwick concluded the new evidence “directly addresses the BIA’s primary justification for denying CAT relief” and met the threshold requirement of materiality, warranting remand to the IJ for proper evaluation.

Unpublished decisions

• Reyna v. Thompson, 25-11343, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), § 1983, timeliness
  • Affirming dismissal of § 1983 claims.
  • Effrin Reyna filed a 42 U.S.C. § 1983 action alleging excessive force during a 2021 arrest by Brown County, Texas officers, claiming officers pinned him down and one crushed his throat while another shot him. Defendants moved to dismiss on statute-of-limitations grounds, invoking Texas’s two-year limitations period for personal-injury claims. On appeal, Reyna raised new claims, including under the Emoluments Clause.
  • The court agreed the § 1983 claims were time-barred under Texas’s two-year statute of limitations. Reyna’s new arguments on appeal were not considered because they were not presented to the district court.

• Fraser v. University of Texas Medical Branch, 25-20377, appeal from S.D. Tex.
  • per curiam (Elrod, Richman, Ramirez) (oral argument), employment discrimination, Title VII, timeliness
  • Affirming dismissal of Title VII claims.
  • Rebecca Fraser appealed the dismissal of her Title VII sex-discrimination and retaliation claims for failure to file suit within 90 days of receiving her EEOC right-to-sue notice. Fraser argued she did not receive the notice until December 9, 2022, making her March 8, 2023 filing timely. She also raised equitable tolling for the first time on appeal and challenged the denial of leave to amend her complaint.
  • Applying the three-day presumption of receipt for mail, the court determined Fraser’s attorney received the notice on December 4, 2022, making the March 8 filing four days late (94 days). The equitable-tolling argument was forfeited because Fraser did not raise it before the district court. The district court did not abuse its discretion in denying further amendment because Fraser had already been given leave to cure timing deficiencies and failed to do so.

• Causey v. Pate, 25-30550, appeal from W.D. La.
  • per curiam (Haynes, Higginson, Ho) (no oral argument), Higginson, J., dissenting; habeas corpus, First Step Act
  • Affirming denial of earned-time credits under First Step Act on petition for habeas relief.
  • Federal inmate Ashton Causey sought earned-time credits under the First Step Act (FSA). The BOP denied his request, aggregating his sentences—including one for a disqualifying 18 U.S.C. § 924(c) firearms conviction—and treating him as ineligible for FSA credits for his entire term. Causey argued he should become eligible for credits after completing the § 924(c) portion of his sentence. He also invoked Loper Bright Enterprises v. Raimondo and the rule of lenity.
  • Under 18 U.S.C. § 3584(c), the BOP properly aggregated Causey’s consecutive sentences into a single term for administrative purposes, including FSA credit eligibility. The court noted every circuit to consider this issue has reached the same conclusion. Neither Loper Bright nor the rule of lenity compelled a different result because the statutes are unambiguous. The motion to consolidate was denied.
  • Judge Higginson dissented, stating he was “persuaded by Judge Wynn’s thoughtful analysis of recidivism reduction programs and time credits pursuant to the First Step Act, set forth in Judge Wynn’s dissent in Bonnie v. Dunbar, 157 F.4th 610 (4th Cir. 2025).” He would have reversed the district court’s denial of the habeas petition.

• United States v. Brown & Nero, 25-40300, c/w 25-40402, appeal from E.D. Tex.
  • per curiam (Duncan, Oldham, Wilson) (oral argument), criminal, sufficiency of evidence, expert witness, Sixth Amendment, Confrontation Clause, sentencing
  • Affirming convictions and sentences on drug conspiracy charges.
  • A jury convicted Brown and Nero of conspiracy to possess with intent to distribute heroin and fentanyl. On appeal, both challenged sufficiency of the evidence and admission of expert testimony on fentanyl-distribution practices. Nero raised Sixth Amendment claims under the Impartial Jury Clause (striking of a juror for cause) and the Confrontation Clause (admission of Brown’s roadside statements). Brown challenged the district court’s failure to apply a minor-role sentencing adjustment under U.S.S.G. § 3B1.2(b).
  • The evidence—including travel records, text messages referring to Brown and Nero’s enterprise as a “company,” bulk quantities of drugs, and Brown’s lies to officers—amply supported the conspiracy convictions. Expert testimony on fentanyl distribution was properly disclosed and relevant. The district court did not abuse its discretion in striking a juror who self-declared bias toward the defense. Brown’s roadside statements were co-conspirator statements made in furtherance of the conspiracy and thus non-testimonial, so they did not violate Nero’s Confrontation Clause rights. Brown was not entitled to a minor-role adjustment given her substantial, extended involvement in the drug-trafficking enterprise.

• United States v. Quezada-Castillo, 25-50863, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• NFI Apartment Management, L.L.C. v. Third Coast Insurance Co., 25-50953, appeal from W.D. Tex.
  • per curiam (Elrod, Richman, Ramirez) (oral argument withdrawn), insurance, timeliness
  • Affirming summary judgment for insurer on coverage claim.
  • NFI sued its insurer, Third Coast, for breach of contract and violations of the Texas Insurance Code and DTPA after Third Coast denied a hailstorm property-damage claim. The central issue was when NFI’s claims accrued for statute-of-limitations purposes—specifically, whether Third Coast’s July 2020 letter denying payment because the loss fell below the deductible constituted an unequivocal denial of coverage. NFI also argued Third Coast’s post-denial reinvestigation and ongoing communications withdrew or changed the denial. NFI further challenged the denial of its Rule 56(d) discovery motion.
  • Under Texas law, Third Coast’s July 21, 2020 letter unambiguously denied coverage—it stated it was “unable to issue any payment” and provided a reason, and the invitation to submit additional information did not create ambiguity. Even if that letter were ambiguous, NFI’s claims accrued no later than July 28, 2021, when Third Coast closed the claim file. Post-denial reinvestigations and communications did not restart the limitations clock, as Third Coast never retreated from its denial and explicitly reserved all rights. NFI’s waiver and equitable-estoppel arguments failed for the same reasons. The Rule 56(d) discovery motion was not improperly denied because NFI did not demonstrate the sought-after privileged information was susceptible of collection.

• Adorare v. Spillman Ranch Homes, L.P., 25-50555, c/w 25-50992, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), Fair Housing Act
  • Affirming summary judgment dismissal of Fair Housing Act claims.
  • Mischa Adorare sued her landlord, Spillman Ranch Homes, under the Fair Housing Act alleging failure to accommodate, discrimination based on race, gender, and disability, and retaliation. The district court granted summary judgment for Spillman, denied Adorare’s Rule 60 motion (construed as a Rule 59 motion), imposed a leave-to-file requirement, and denied a recusal motion.
  • The district court correctly found no genuine dispute of material fact warranting denial of summary judgment. The denial of the motion to set aside the judgment was not an abuse of discretion. The leave-to-file order was within the court’s inherent docket-management authority, and constitutional arguments against it were forfeited for not being raised below. The denial of recusal was not an abuse of discretion.

• United States v. Robbins, 25-51049, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), criminal, sentencing
  • Affirming 51-month sentence on conviction of conspiracy to transport illegal aliens and illegal alien transportation.
  • Defendant challenged the district court’s application of a sentencing enhancement under U.S.S.G. § 2L1.1(b)(6) for creating a substantial risk of death or serious bodily injury. The district court’s finding that the aliens’ ability to exit the vehicle was hindered and that there was substantial danger in the event of an accident was plausible on the record and thus not clearly erroneous.

• Martinez Rodas v. Blanche, 25-60631, petition for review of BIA order
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), immigration
  • Denying Mexican citizen’s petition for review of BIA’s decision affirming the IJ’s denial of cancellation of removal.
  • Petitioner argued his removal would cause exceptional and extremely unusual hardship to his U.S. citizen children.
  • The court lacked jurisdiction to review the underlying factual findings on hardship under 8 U.S.C. § 1252(a)(2)(B)(i). Reviewing the mixed question of law and fact under the substantial-evidence standard, the court found Martinez Rodas had not shown the IJ erred in concluding the difficulties his children might experience did not rise to the level of exceptional and extremely unusual hardship.

• Do v. Comcast Cable Communications Management, L.L.C., 26-20097, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), employment discrimination, § 1981, Family and Medical Leave Act, forfeiting argument
  • Affirming summary judgment dismissal of employment discrimination claims.
  • Duy Dihn Do was terminated from Comcast and sued alleging Title VII sex discrimination and retaliation, Section 1981 race/ethnicity discrimination and retaliation, and FMLA interference and retaliation. The district court dismissed the Title VII claim (to which Do had no objection) and later granted summary judgment for Comcast on the remaining Section 1981 and FMLA claims. On appeal, Do argued only his Title VII retaliation claim under the participation clause.
  • The court declined to address the voluntarily dismissed Title VII claim on appeal. Do’s failure to address his Section 1981 and FMLA claims on appeal resulted in forfeiture of those claims.

• United States v. Noil, 26-20125, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Brown, 26-30155, c/w 26-30168, appeal from W.D. La.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming concurrent 21-month sentences on revocation of supervised release and convictions of illegal receipt of firearm and wire fraud.
  • Quinterrius Brown appealed concurrent 21-month revocation sentences imposed after revocation of supervised release following convictions for illegal receipt of a firearm by a person under indictment and conspiracy to commit wire fraud. He argued the district court improperly considered 18 U.S.C. § 3553(a)(2)(A) factors and imposed a substantively excessive sentence, but he had not raised these arguments below.
  • The district court’s statements did not reflect express or unmistakable reliance on the impermissible § 3553(a)(2)(A) factors under Esteras v. United States. The sentence was based on Brown’s repeated violations and the need for deterrence—permissible considerations. The variance sentence within the statutory maximum was substantively reasonable.

• United States v. Sanchez-Moreno, 26-50057, c/w 26-50064, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentencing
  • Affirming consecutive 14-month and 10-month sentences on revocation of supervised release and conviction of illegal reentry.
  • Esteban Sanchez-Moreno pleaded guilty to illegal reentry and received a 14-month within-guidelines sentence, plus a consecutive 10-month within-guidelines revocation sentence for a prior illegal-reentry offense. He challenged the procedural and substantive reasonableness of his prison sentences and argued the district court erred by imposing a three-year term of supervised release because he is a deportable alien.
  • The district court cited appropriate § 3553(a) factors and gave adequate reasons. The within-guidelines sentences were presumptively reasonable, and Sanchez-Moreno failed to rebut that presumption. On the supervised-release term, he did not show a reasonable probability of a different outcome but for the alleged error.

• United States v. Soto Duarte, 26-50338, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), criminal, sentence
  • Affirming conviction and sentence on illegal reentry, on concession by defendant that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which the Supreme Court reaffirmed as a narrow exception in Erlinger v. United States, 602 U.S. 821 (2024).

• Webb v. Johnston, 26-50352, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), § 1983
  • Affirming dismissal of § 1983 claims as Heck-barred.
  • Keaire Webb filed a § 1983 suit against a Round Rock, Texas police officer and the city, alleging constitutional violations arising from a traffic stop, arrest, vehicle search, and impoundment after he refused to sign a citation. The magistrate judge screened the complaint under 28 U.S.C. § 1915(e) and recommended dismissal under Heck v. Humphrey because Webb had not shown his underlying traffic convictions were invalidated. Webb also appealed the denial of his Rule 59(e) motion to alter or amend the judgment.
  • Webb’s factual arguments about the existence of a conviction were reviewed for plain error because they were raised for the first time on appeal, and his own pleadings essentially admitted he was found guilty of the traffic violations. The court further noted the officer had reasonable grounds for the stop and the arrest for refusing to cooperate, so no constitutional violation arose irrespective of Heck. The denial of the Rule 59(e) motion was not an abuse of discretion because it raised arguments that should have been made before judgment was entered.