Take the Fifth

Designated for publication

• Computer & Communications Industry Ass’n v. Paxton, 24-50721, c/w 25-50096, appeal from W.D. Tex.
  • en banc (oral argument at panel stage); en banc, standing, preemption, First Amendment
  • Granting en banc rehearing of July 24, 2026, panel opinion (Higginbotham, Ho, Douglas; Ho, J., dissenting in part) that had affirmed preliminary injunction of Texas social media regulation statute as to monitoring and filtering requirements as preempted by federal law, vacated injunction as sought by certain plaintiffs for lack of standing, pretermitted First Amendment issues, and remanded for further proceedings.
  • Texas House Bill 18 (the “SCOPE Act”) regulates social media “digital service providers” (DSPs) by, among other things, requiring them to monitor and filter content deemed harmful to known minors, restricting targeted advertising to minors, barring ads promoting unlawful activities to minors, and imposing age-verification obligations for sites with predominantly obscene content. Two groups of plaintiffs challenged the law: (1) trade associations CCIA and NetChoice, whose members include Google, Meta, X, Snapchat, and Pinterest, and (2) the SEAT coalition of Texas students, individual Texans, and an advertising firm. The district court preliminarily enjoined several provisions, and Texas Attorney General Paxton appealed.
  • At issue on appeal was (1) whether the unregulated SEAT plaintiffs had Article III standing to bring a pre-enforcement challenge to a law that directly regulates third-party DSPs, not the plaintiffs themselves; (2) whether H.B. 18’s monitoring and filtering requirement is preempted by Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1); and (3) whether the age-verification requirement survived scrutiny after the Supreme Court’s decision in Free Speech Coalition v. Paxton, 606 U.S. 461 (2025).

Unpublished decisions

• United States v. Martinez-Ornelas, 25-20488, appeal from S.D. Tex.
  • per curiam (Jones, Southwick, Duncan) (no oral argument), criminal, appellate jurisdiction, sentencing
  • Vacating sentence as to conflict between written judgment and orally pronounced conditions for supervised release.
  • At issue on appeal was (1) whether the court had appellate jurisdiction when one count of a multi-count indictment remained unadjudicated at the time the notice of appeal was filed; and (2) whether the written special conditions of supervised release conflicted with the district court’s oral pronouncement at sentencing.
  • Martinez-Ornelas pleaded guilty to two counts of methamphetamine distribution offenses and was sentenced to 180 months’ imprisonment plus five years of supervised release. A third count was not resolved at the time of sentencing or appeal but was later dismissed without prejudice. The written judgment imposed special conditions requiring him to report to ICE, remain outside the United States unless “legally authorized to reenter,” and report to the nearest probation office within 72 hours if he reentered. At the oral sentencing, however, the district court stated only that Martinez-Ornelas “shall not reenter the United States illegally.”
  • The Fifth Circuit concluded it had jurisdiction because, even though Count Three was unadjudicated when the appeal was filed, it was later dismissed, and the notice of appeal related forward to that event. On the merits, relying on United States v. Lezama-Ramirez, 173 F.4th 191 (5th Cir. 2026), the court held that the written special condition imposing a 72-hour reporting requirement was more burdensome than the oral pronouncement and therefore must be conformed to the oral pronouncement.

• United States v. Patton, 25-20494, appeal from S.D. Tex.
  • per curiam (Richman, Haynes, Douglas) (no oral argument), criminal, sufficiency of evidence, sentencing
  • Affirming conviction and sentence for Hobbs Act robbery and firearms violations.
  • Patton was convicted after a bench trial of Hobbs Act robbery and brandishing a firearm during a crime of violence after he robbed a Denny’s restaurant manager of $1,550 in cash in a Houston parking lot. Patton argued that the victim was the individual manager—not the business—and that the government had to show a substantial (not merely de minimis) impact on interstate commerce. He also contended that because he stipulated to the robbery facts before trial, he should have received the § 3E1.1 reduction even though he proceeded to trial on the commerce element.
  • At issue on appeal was (1) whether sufficient evidence supported the finding that the robbery affected interstate commerce under the Hobbs Act, 18 U.S.C. § 1951; and (2) whether the district court erred by denying a U.S.S.G. § 3E1.1 acceptance-of-responsibility reduction.
  • First, the court held that only a de minimis impact on interstate commerce is required and that the robbery depleted the assets of a business that purchases out-of-state goods, which is sufficient. The court also held that the robber’s subjective intent regarding the victim’s identity is irrelevant to the Hobbs Act’s commerce element. Second, the court found the district court’s denial of the § 3E1.1 reduction was not “without foundation,” noting that Patton initially denied involvement, did not plead guilty, and challenged the sufficiency of the evidence—factors that undermine acceptance of responsibility.

• United States v. Stevens, 25-51048, appeal from W.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal, guilty plea
  • Dismissing appeal, enforcing appeal waiver in plea agreement.
  • Stevens pleaded guilty to being a felon in possession of a firearm after an armed robbery on a crowded Austin street. His plea agreement included an appellate waiver permitting challenges only for prosecutorial misconduct or ineffective assistance of counsel. The district court imposed an above-guidelines sentence of 168 months. On appeal, Stevens argued for the first time that his criminal history score was incorrectly calculated and that this amounted to a miscarriage of justice.
  • At issue on appeal was whether an appellate waiver in a plea agreement barred Stevens from challenging the calculation of his criminal history score, and whether the “miscarriage of justice” exception recognized in Hunter v. United States, 608 U.S. 713 (2026), applied to rescue the claim.
  • The Fifth Circuit enforced the appellate waiver and dismissed the appeal, holding that a routine challenge to the application of the Sentencing Guidelines is a “run-of-the-mill” claim that does not qualify as a miscarriage of justice under Hunter.

• United States v. Cook, 26-10168, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction and sentence on firearms charges.
  • Cook pleaded guilty to possession of a firearm by a convicted felon and raised, for the first time on appeal, facial constitutional challenges to § 922(g)(1). He conceded that both arguments are foreclosed by existing circuit precedent but asked the panel to hold the appeal pending the en banc decision in Squire, 182 F.4th 481 (5th Cir. 2026).
  • At issue on appeal was whether 18 U.S.C. § 922(g)(1) (felon-in-possession) facially violates the Second Amendment and exceeds Congress’s Commerce Clause authority, and whether the case should be held in abeyance pending the en banc rehearing of United States v. Squire.
  • The Fifth Circuit declined to hold the case in abeyance, noting that panels are bound by existing precedent absent an intervening Supreme Court decision or a subsequent en banc decision—not a mere grant of rehearing en banc.

• United States v. Hernandez Rangel, 26-40006, appeal from S.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of transporting immigrants in a life-threatening manner.
  • Hernandez Rangel pleaded guilty to conspiracy to transport aliens within the United States in a manner that placed a person’s life in jeopardy and was sentenced to 87 months’ imprisonment. The firearm-brandishing enhancement was preserved; the unaccompanied-minor enhancement was reviewed only for plain error because it was not raised below.
  • At issue on appeal was whether the district court erroneously applied (1) a four-level sentencing enhancement under U.S.S.G. § 2L1.1(b)(5)(B) for brandishing a handgun during the offense and (2) a four-level enhancement under U.S.S.G. § 2L1.1(b)(4) for transporting an unaccompanied minor.
  • The Fifth Circuit affirmed, concluding that the presentence report’s unrebutted facts bore sufficient indicia of reliability, and Hernandez Rangel failed to show clear error in the application of either enhancement.

• United States v. De Nova Cantu, 26-40179, appeal from S.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.
  • At issue on appeal was whether the above-guidelines sentence imposed after a guilty plea for illegal reentry was substantively unreasonable, particularly in light of the district court’s comments regarding De Nova Cantu’s prior murder conviction and a variance imposed on a different defendant.
  • The Fifth Circuit found no abuse of discretion under the deferential standard of review for substantive reasonableness challenges.

• In re Okorie (Okorie v. Keystone Healthcare Partners), 26-60151, appeal from S.D. Miss.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), bankruptcy
  • Affirming denial of motion for sanctions for violation of the automatic stay.
  • Okorie, a Chapter 11 debtor, entered a Physician Agreement with Keystone to provide emergency medical services. Keystone discovered it had erroneously overpaid Okorie $151,567.31 for duplicate shifts. The parties negotiated a recoupment schedule of 2.5 years. Near the end of that period, Okorie filed a motion in bankruptcy court claiming the recoupment violated the automatic stay. The bankruptcy court denied the motion, and the district court affirmed.
  • At issue on appeal was (1) whether the bankruptcy court had jurisdiction over a motion alleging violation of the automatic stay; and (2) whether Keystone Healthcare Partners’ recoupment of overpayments to debtor Okorie violated the automatic bankruptcy stay under 11 U.S.C. § 362.
  • On jurisdiction, the court held that automatic-stay motions are “core proceedings” under 28 U.S.C. § 157(b)(2)(G), and Okorie also consented to jurisdiction by filing the motion. On the merits, the court held that Keystone’s actions constituted valid recoupment—not subject to the automatic stay—because the overpayments and Okorie’s compensation claim both arose from the single Physician Agreement. The court rejected Okorie’s arguments that the nine separate overpayments and the routing of payments through his company, Inland Family Practice, defeated the “single contract or transaction” requirement.