Take the Fifth

Designated for publication

• Casa Tradición S.A. de C.V. v. Casa Azul Spirits, L.L.C., 24-20255, appeal from S.D. Tex.
  • Elrod, C.J. (Elrod, Engelhardt, Guidry, by designation) (oral argument), Engelhardt, J., dissenting in part; trademark infringement, Lanham Act
  • Vacating judgment for defendant on Lanham Act and trademark claims, affirming on evidentiary and discovery rulings, and remanding for further proceedings on likelihood of confusion finding.
  • Casa Tradición sells luxury tequila under its registered “Clase Azul” mark, known for hand-painted ceramic decanters priced from $130 to $30,000 per bottle. Casa Azul Spirits, founded by entrepreneur Lance Collins, sells canned tequila soda cocktails and a lower-priced bottled organic tequila under its “Casa Azul” mark, which Collins first registered for wine in 2008 and later expanded to all alcoholic beverages other than beer. Clase Azul sued for trademark infringement under the Lanham Act and Texas law. After a five-day bench trial, the district court entered judgment for Casa Azul, finding no likelihood of consumer confusion.
  • At issue on appeal was whether the district court clearly erred or committed legal error in its analysis of the eight “digits of confusion” used to assess likelihood of consumer confusion under the Lanham Act, and whether the district court abused its discretion in pre-trial evidentiary rulings limiting Clase Azul’s actual-confusion witnesses and denying a discovery extension.
  • The court found clear error in several of the district court’s factual findings. It held the “Clase Azul” mark is suggestive, not descriptive, applying the circuit’s four-part test (dictionary, imagination, competitors’-need, and competitors’-use) and analogizing to Future Proof Brands (Brizzy) and Perry v. H.J. Heinz (Metchup). It also found clear error in the district court’s determination that the mark lacked marketplace recognition, citing over $200 million in annual U.S. sales, extensive media coverage, and references in songs by artists like Kanye West and J. Cole. On third-party use, the court identified legal error: the district court wrongly looked at use of “casa” and “azul” rather than “clase” and “azul,” since the inquiry must focus on the senior user’s mark.
  • On product similarity, the court held the district court clearly erred in finding the products dissimilar. Both parties sell 40% ABV bottled tequila, and the price gap—while real—was not so large that a consumer would find a common source implausible, particularly at bars where a two-ounce shot of each might differ by only $18. On actual confusion, the court found the district court failed to account for substantial record evidence—including distributor inquiries, mislabeled retail listings, and confused acquaintances of Casa Azul’s own founder—holding this digit must weigh in favor of confusion.
  • The court affirmed the district court’s findings that the marks were not so aurally or visually similar as to constitute clear error, and affirmed the advertising-dissimilarity and degree-of-care findings. It also upheld the pre-trial rulings limiting Clase Azul’s late-disclosed witnesses and denying a discovery extension for a new survey, finding no abuse of discretion.
  • Judge Engelhardt dissented in part, and would have affirmed the district court in full, contending the majority misapplied the clear-error standard of review. He emphasized that “the descriptive category almost imperceptibly shades over at one edge into the suggestive domain,” making clear error hard to find on the descriptive-vs.-suggestive line. He argued the majority conflated recognition of Clase Azul’s distinctive ceramic bottle with recognition of the word mark itself, noting the brand’s own co-founder conceded “some consumers might recognize or know the product when they see the bottle, but they don’t necessarily know that the name is Clase Azul.” On actual confusion, he contended that mix-ups between “Casa Azul” and “Clase Azul” occurred for at least ten years before Casa Azul entered the tequila market, suggesting they were careless name errors, not confusion caused by the defendant’s mark. He also faulted the majority for a “rigid application of the digits of confusion,” noting Clase Azul failed to police its mark for over 15 years and calling it “freakish” to conclude confusion where the brand owner “remained idle for such an extended period of time.”

• United States v. Herndon, 25-40388, appeal from E.D. Tex.
  • Ho, J. (Smith, Graves, Ho) (oral argument withdrawn), criminal
  • Affirming conviction of sex trafficking and conspiracy.
  • Desnique Deshawn Herndon organized and led a prostitution ring involving girls as young as 13 years old. He was convicted on six counts of sex trafficking of children under 18 U.S.C. § 1591(a) and one count of conspiracy under § 1594(c), and sentenced to life imprisonment. His indictment charged him with “knowing and in reckless disregard of” the victims’ ages but did not include the alternative strict-liability theory under § 1591(c) (that the defendant had a “reasonable opportunity to observe” the minors). The jury instructions, however, included both theories—a constructive amendment both parties acknowledged on appeal.
  • At issue on appeal was whether the constructive amendment of the indictment via the jury instructions warranted reversal on plain error review—specifically, whether it affected Herndon’s substantial rights and whether discretionary reversal was warranted.
  • The court found Herndon’s substantial rights were not affected for two independent reasons. First, he had ample notice—over 18 months—that the government intended to pursue the § 1591(c) “reasonable opportunity to observe” theory, spanning from his initial detention hearing through opening statements, pre-trial filings, jury instruction conferences, and closing argument. He had at least twelve opportunities to object but never did. The district court aptly noted that had counsel objected, the government could have easily obtained a superseding indictment.
  • Second, the evidence overwhelmingly supported that Herndon knew or recklessly disregarded the victims’ ages. During his post-arrest interview, he admitted: “I don’t know . . . who’s a minor, man, like . . . she [] might not be a minor, but she might be a minor, you know what I’m saying?” Victim-specific evidence was equally damning: others who saw one 13-year-old victim for even shorter periods suspected she was a minor; Herndon told another victim to lie about her age; and he admitted in a jail call that he knew yet another victim was a minor because she had been reported as a runaway.
  • The court also declined to exercise its discretion to reverse, noting Herndon himself conceded there was “overwhelming” evidence he was involved in promoting prostitution.

• Thomas v. Leyline Publishing, L.L.C., 26-10136, appeal from N.D. Tex.
  • Stewart, J. (Elrod, King, Stewart) (no oral argument), trademark infringement, copyright, Lanham Act
  • Affirming summary judgment dismissal of trademark, copyright, Lanham Act, and other related claims.
  • Shawn Thomas created a therapeutic tabletop role-playing game called “Realms of Kymoria” (RoK) and entered into a Second Licensing Agreement (SLA) with Leyline Publishing (d/b/a Geek Therapeutics) to jointly develop, market, and sell the game. Thomas drafted the SLA, which authorized Leyline to sell, lease, or use the RoK content, with payment terms that contemplated staggered post-revenue payments (e.g., after a Kickstarter campaign). After a dispute arose over changes to the Open Game License by Wizards of the Coast, Thomas ceased communicating with Leyline and sent a cease-and-desist letter. He then sued for copyright infringement, trademark infringement, derivative-works claims, defamation, misappropriation, false endorsement, and unjust enrichment. The district court granted summary judgment for Leyline on all counts.
  • At issue on appeal was (1) whether the SLA was a valid contract authorizing Leyline to use the RoK content, including content for which TableTop had not yet submitted an invoice; (2) whether Leyline’s use of derivative works exceeded the SLA’s scope; (3) whether the SLA conferred a trademark license; (4) whether Leyline’s post-withdrawal use of Thomas’s name and image gave rise to claims for defamation, misappropriation, or Lanham Act violations; and (5) whether unjust enrichment was available where a valid contract governed.
  • The court held the SLA was a valid, enforceable contract under Texas law—Thomas drafted it, Dr. Bean signed it, and both parties performed under it for a year. It rejected TableTop’s argument that Leyline’s license was conditioned on prepayment, noting the SLA’s own Kickstarter provisions expressly contemplated that Leyline would use content first and pay later on a staggered schedule. As the court noted, “under the plain terms of the SLA, Leyline’s agreement to pay for TableTop’s content—not its ultimate payment—triggers its license to use and sell the content.”
  • On derivative works, the court affirmed because TableTop never identified the specific content Leyline allegedly used without authorization—neither before the district court nor on appeal. On the trademark claim, the court agreed with the district court that the SLA’s branding language merely permitted Leyline to sell RoK content under its own Geek Therapeutics brand name; it did not prohibit use of the RoK name.
  • On name-and-image claims, the court found Leyline’s descriptions of Thomas as a “creator” and “co-creator” of RoK were true—indeed, TableTop made the same representations in its own complaint—and were authorized by the SLA, which could not be unilaterally revoked by a cease-and-desist letter. As the court put it, “TableTop cannot re-write history simply because its relationship with Leyline has soured.” The unjust enrichment claim was barred because a valid contract governed the same subject matter.

• Temple Gun Club, Inc. v. Blanche, 26-10696, appeal from N.D. Tex.
  • per curiam (en banc) (no oral argument), Second Amendment, Commerce Clause
  • Denying petition for initial en banc hearing in challenge to ban on possession of machine guns. Voting for initial en banc hearing were Chief Judge Elrod and Judges Smith, Higginson, Willett, Ho, Duncan, Oldham, and Douglas; voting against initial en banc hearing were Judges Jones, Stewart, Richman, Southwick, Haynes, Graves, Engelhardt, Wilson, and Ramirez.
  • Temple Gun Club and individual plaintiffs challenged the constitutionality of 18 U.S.C. § 922(o), the federal prohibition on possession of machine guns, seeking to modify their firearms in ways the statute prohibits through purely intrastate activity. The case came before the court on a petition for initial hearing en banc.
  • At issue in the appeal is whether to grant initial hearing en banc to address the constitutionality of 18 U.S.C. § 922(o) under the Commerce Clause (and potentially the Second Amendment).
  • Judge Oldham, joined by Judge Ho, issued an opinion dissenting from the denial of initial en banc hearing. Judge Oldham noted the court had already agreed to reconsider the Commerce Clause in relation to a different gun statute, § 922(g) (felon-in-possession), in United States v. Squire. He observed that § 922(o) lacks the jurisdictional hook (“interstate and foreign commerce”) that § 922(g) contains, making it potentially more constitutionally vulnerable under United States v. Lopez and United States v. Morrison. Second, he contended this case should be prioritized because it involves “law-abiding citizens and not criminals,” quipping that “it is a bit ‘freakish’ to start—and Heaven forbid end—our constitutional exegesis with a heroin dealer” (referring to the defendant in Squire), when the plaintiffs here are “liberty-loving enthusiasts who would like to modify their firearms.”

Unpublished decisions

• Davis v. Forshey, 25-10905, c/w 25-11071, appeal from N.D. Tex.
  • per curiam (Duncan, Engelhardt, Ramirez) (no oral argument), receivership
  • Dismissing as moot appeal from receiver’s property sale.
  • Appellants challenged district court orders authorizing a receiver to sell property belonging to a company in which they held an ownership interest to satisfy a judgment against other owners. The appellants failed to obtain a stay of the sale pending appeal, and the property was sold to good-faith purchasers before the appeal was resolved. The court held that under receivership mootness principles—analogous to those in bankruptcy—an appeal of a property sale becomes moot when the appellant fails to obtain a stay and the property is sold. Because the court was powerless to grant any effectual relief, the appeal was dismissed as moot.

• Norman v. United States, 25-11237, appeal from N.D. Tex.
  • per curiam (Duncan, Engelhardt, Ramirez) (no oral argument), prisoner suit
  • Affirming dismissal of federal inmate’s FTCA and Eighth Amendment challenges to conditions of confinement.
  • Federal inmate Alexis Norman brought another in a series of challenges to conditions of confinement at FMC Carswell under the FTCA and the Eighth Amendment, alleging the facility negligently failed to enforce health and safety regulations. The court held all of Norman’s FTCA claims were barred by res judicata because a prior action involving the same parties, the same nucleus of operative facts, and a final judgment on the merits had been adjudicated. Her Eighth Amendment claim failed because the United States has not waived sovereign immunity for constitutional claims under the FTCA.

• McGee v. PlainsCapital Bank, 25-11383, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Duncan) (no oral argument), prisoner suit
  • Affirming dismissal of claims as frivolous.
  • Joanthony McGee appealed the dismissal of his complaint as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B). His ECOA claim was supported only by conclusory allegations; his 8 U.S.C. § 1503(a) claim failed because no agency denial of a citizenship privilege was alleged; and his Treaty of Peace and Friendship claim rested on an indisputably meritless legal theory.

• United States v. Bell, 25-20208, appeal from S.D. Tex.
  • per curiam (Jones, Clement, Richman) (no oral argument), criminal, sentencing
  • Affirming sentence’s supervised release conditions.
  • Marquavia Bell challenged supervised release conditions included in the written judgment following her second revocation, arguing the district court failed to orally pronounce the discretionary conditions because it did not confirm she had reviewed the sentencing options worksheet with counsel. The court declined to resolve whether Diggles imposes an additional verification duty, holding that even if the district court failed to satisfy the oral pronouncement requirement, it did not abuse its discretion in imposing the conditions because the record demonstrated Bell understood and could anticipate the conditions given they were virtually identical to those in prior judgments.

• Canales v. Walmart Texas, L.L.C., 25-20550, appeal from S.D. Tex.
  • per curiam (Elrod, Richman, Ramirez) (no oral argument), personal tort
  • Affirming summary judgment dismissal of slip-and-fall case.
  • Silvia Canales appealed summary judgment dismissing her premises liability claim for a slip-and-fall at a Walmart. Under Texas law, Canales could not show Walmart had actual or constructive knowledge of the water hazard; security footage showed employees near the area but no evidence of how long the water had been present. The court applied the Texas “time-notice rule” and held that proximity of employees to a hazard, without temporal evidence, is insufficient to establish constructive knowledge.

• United States v. Wall, 25-30060, appeal from M.D. La.
  • per curiam (Duncan, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming supervised release special conditions from sentence.
  • Bobby Wall pled guilty to receipt of child pornography and challenged a supervised release condition requiring prior written approval of the probation officer to access any computer or the internet. Both parties agreed the condition was overly restrictive as worded. The court affirmed the condition but clarified, consistent with Naidoo and Sealed Juvenile, that “prior approval” does not require individual approval for each specific instance of computer use or internet access.

• Payton v. LeBlanc, 25-30498, appeal from W.D. La.
  • per curiam (Jones, Ho, Wilson) (no oral argument), prisoner suit
  • Affirming summary judgment of Louisiana state prisoner’s sec. 1983 claims.
  • Louisiana prisoner Nathaniel Payton appealed summary judgment dismissing his § 1983 Eighth Amendment claims alleging delayed or denied medical treatment for hyperthyroidism. The court modified the judgment to reflect that official-capacity claims barred by sovereign immunity were dismissed without prejudice for lack of jurisdiction, and affirmed on the merits, finding no genuine issue of material fact that substantial harm resulted from any treatment delays.

• United States v. Dew, 25-30623, appeal from W.D. La.
  • per curiam (Richman, Haynes, Douglas) (no oral argument), criminal, sentencing, guilty plea
  • Affirming sentence on drug conviction.
  • Thomas Dew was convicted of conspiracy to possess with intent to distribute methamphetamine and sentenced to life in prison. He argued the government breached the plea agreement by presenting evidence of drug quantities beyond 440 grams, that the drug-quantity calculation was erroneous, and that his life sentence was substantively unreasonable. The court found no clear or obvious error regarding the plea agreement, which contained no cap on drug quantity. The drug-quantity finding of 10.88 kilograms was supported by consistent co-conspirator testimony and was not clearly erroneous. The within-guidelines life sentence was presumptively reasonable and not an abuse of discretion.

• Lott v. Guerrero, 25-40212, appeal from E.D. Tex.
  • per curiam (Elrod, King, Stewart) (no oral argument), habeas corpus
  • Affirming denial of habeas relief.
  • David Lott, convicted of sexual assault in Texas and sentenced to life under a habitual-offender enhancement, sought federal habeas relief on two ineffective-assistance-of-counsel claims. The court held he was not prejudiced by counsel’s failure to challenge the sentencing enhancement as an ex post facto violation because the enhancement was properly based on a Colorado misdemeanor conviction, not the deferred sentence. Counsel’s disclosure of Lott’s DWI convictions during voir dire was a reasonable strategic decision to identify biased jurors. The district court’s denial of an evidentiary hearing was not an abuse of discretion.

• Hartt v. Evadale Independent School District, 25-40832, appeal from E.D. Tex.
  • Higginson, J. (King, Higginson, Douglas) (no oral argument), Americans with Disabilities Act
  • Affirming dismissal of ADA claims.
  • Parents of a disabled student appealed dismissal of an associational disability discrimination claim under the Rehabilitation Act and the ADA, as well as the denial of leave to amend. The court agreed with the district court that the complaint failed to allege that the employer’s adverse actions were based on the daughter’s disability rather than the mother’s filing of a complaint with the Texas Education Agency. The denial of leave to amend was not an abuse of discretion, given that the plaintiff had already amended once and the facts were known at the outset.

• United States v. Conde-Castillo, 25-50923, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing
  • Affirming 30-month above-guidelines sentence for illegal reentry, finding no plain error because the district court articulated specific, individualized reasons tied to § 3553(a) factors. The substantive reasonableness challenge also failed.

• Eleazer v. Oracle America, Inc., 25-50975, appeal from W.D. Tex.
  • per curiam (Willett, Oldham, Wilson) (no oral argument), employment discrimination
  • Affirming dismissal of employment discrimination claims.
  • Jameka Eleazer brought Title VII claims of racial discrimination and retaliation after being terminated from Oracle. The court held she failed to establish a prima facie case of racial discrimination because she could not identify a similarly situated non-Black comparator treated more favorably; her performance metrics were the worst on her team across multiple categories. Her retaliation claim failed for lack of administrative exhaustion because her EEOC charge did not mention retaliation and her unsigned, unverified intake form could not be deemed a charge.

• Qashou v. City of San Antonio, 25-51051, appeal from W.D. Tex.
  • per curiam (Richman, Haynes, Douglas) (no oral argument), sec. 1983
  • Affirming dismissal of sec. 1983 claims.
  • Qashou sued officers and the City of San Antonio under § 1983 after he was arrested for DWI despite claiming his field-sobriety test failure was due to a back disability. The court held that the officers had probable cause to arrest because Qashou admitted he failed the field sobriety test, and a negative blood test obtained later did not retroactively negate probable cause at the time of arrest. With no underlying constitutional violation, Monell and Canton claims against the City also failed.

• United States v. Blake, 25-51063, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Robert Blake, a federal prisoner convicted of child pornography offenses, appealed the denial of compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). The court held the district court’s conclusion that Blake was addicted to child pornography was a reasonable inference from the evidence and adequately justified denial. His challenge to facts from the original sentencing hearing was not properly raised in a § 3582(c)(1)(A) proceeding.

• Alanis v. U.S. Bank National Association, 25-51076, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), foreclosure, vexatious litigant
  • Affirming dismissal of repeated litigation arising from foreclosure.
  • Nancy Alanis appealed dismissal of claims stemming from the foreclosure of two properties, all of which were barred by res judicata from seven prior lawsuits. She forfeited her challenge by failing to brief any argument that the district court erred in applying preclusion. Her Rule 60(b)(4) motions seeking relief from state court orders were properly denied. Alanis, a declared vexatious litigant, was warned that further frivolous filings may result in sanctions.

• Guerdan v. State Automobile Mutual Insurance Co., 25-60491, appeal from S.D. Miss.
  • per curiam (Richman, Haynes, Douglas) (no oral argument), insurance, removal
  • Reversing denial of remand motion, and remanding with instructions to remand to state court.
  • After a tree fell on their house and their insurer denied coverage, the Guerdan sisters sued eleven defendants, including nondiverse Mississippi citizens. In Guerdan I, the court found that removal was procedurally defective because two properly joined and served diverse defendants (Caliber and Pennymac) did not consent to removal, and the plaintiffs timely objected. In Guerdan II, the court found the Guerdans’ negligence per se claims against nondiverse defendants survived a Rule 12(b)(6) analysis, and the district court abused its discretion by piercing the pleadings to find the claims time-barred because the question was disputed, not specific to joinder, and required extensive discovery. Reversed and remanded with instructions to remand both cases to state court.

• J.R. v. Blanche, 25-60582, petition for review of BIA order
  • per curiam (Elrod, Wilson, Douglas) (no oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA denial of asylum, withholding of removal and CAT protection.
  • J.R., a citizen of El Salvador, petitioned for review of the BIA’s denial of asylum, withholding of removal, and CAT protection. The court found that J.R. failed to show the proposed particular social groups were cognizable or that the agency erred in its CAT analysis. The BIA’s failure to explicitly address J.R.’s motion to remand constituted an implicit denial.

• Doe v. Roe, 25-60589, appeal from S.D. Miss.
  • per curiam (Elrod, King, Stewart) (no oral argument), pseudonymity
  • Vacating denial of pseudonymity, and remanding for reconsideration.
  • Jane Roe appealed the denial of her motion to proceed pseudonymously in a defamation/extortion lawsuit filed by John Doe. The court held the district court erred in several respects: (1) a defendant’s status should carry no weight against pseudonymity, (2) allegations of sexual assault involve matters of the utmost intimacy under Stegall’s second factor, and Roe’s privacy interest should not be weakened because her identity was briefly disclosed through the opposing party’s actions or inadvertent filings, and (3) Roe did not waive pseudonymity.

• McDonald v. Warden Heckard, 26-10056, appeal from N.D. Tex.
  • per curiam (Smith, Graves, Ho) (no oral argument), Graves, J., dissenting in part; habeas corpus
  • Affirming denial of sec. 2241 petition.
  • Todd McDonald appealed the denial of his § 2241 habeas petition challenging BOP decisions regarding First Step Act time credits and home confinement. The court held: (1) McDonald failed to show he participated in EBRR programming during the relevant pre-facility period; (2) reinstatement of time credits lost due to IFRP non-participation is within BOP’s discretion; and (3) a request for home confinement is a change in conditions, not cognizable under § 2241.
  • Judge Graves dissented in part, disagreeing with the majority’s conclusion regarding McDonald’s failure to substantiate participation in programs the BOP failed to show it offered, reaffirming his prior dissent in Hogan v. Rodriguez.

• United States v. Castaneda, 26-10145, appeal from N.D. Tex.
  • per curiam (Richman, Haynes, Graves) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Saucedo, 26-10225, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Chintagunta v. John Peter Smith Hospital, 26-10271, appeal from N.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), sec. 1983
  • Affirming dismissal of sec. 1983 claims.
  • Pro se plaintiff Anila Chintagunta appealed the Rule 12(b)(6) dismissal of her § 1983 suit challenging her involuntary dismissal from medical school. As to most defendants, she forfeited her arguments by failing to challenge the district court’s grounds. As to John Peter Smith Hospital, she failed to articulate a policymaker, official policy, or custom required for a Monell claim, and her conclusory allegation of “immense discrimination” did not cross the plausibility threshold.

• Woods v. Louisiana Special School District, 26-30020, appeal from M.D. La.
  • per curiam (Elrod, King, Stewart) (no oral argument), employment discrimination
  • Vacating dismissal of discrimination claim, affirming dismissal of retaliation claim, affirming dismissal of hostile work environment claim, and remanding.
  • Pro se plaintiff Toshei Woods appealed summary judgment on her Title VII discrimination, retaliation, and hostile work environment claims. The court vacated the district court’s summary judgment on the discrimination claim because the employer’s sole evidence of a legitimate non-discriminatory reason was an unsworn, unverified affidavit that was incompetent to raise a fact issue, and remanded for further proceedings. The court affirmed on the retaliation claim because Woods’s complaint about “discriminating against the hearing” did not constitute protected activity under Title VII. The court also affirmed on the hostile work environment claim, finding that offensive remarks by the superintendent were not sufficiently severe or pervasive to alter a term of employment. No due process violation occurred from the R&R deadline.

• United States v. Marshall, 26-30158, appeal from W.D. La.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Affirming revocation of supervised release.
  • Raymond Marshall appealed the revocation of his supervised release, arguing the district court relied improperly on hearsay for a battery finding and erroneously classified a stolen-truck violation. The court found no clear or obvious plain error in the hearsay ruling, and any error regarding the stolen truck was harmless given other violations.

• Williams v. Sanders, 26-30170, appeal from M.D. La.
  • per curiam (Richman, Haynes, Douglas) (no oral argument), qualified immunity
  • Affirming qualified immunity dismissal of sec. 1983 claims.
  • Damone Williams, who was shot and paralyzed by an arson investigator after an altercation involving the investigator’s vehicle and an AR-15, brought a § 1983 excessive force claim and state law claims. The court held Sanders was entitled to qualified immunity because his use of deadly force was reasonable: he knew a loaded AR-15 was within Williams’s reach and Williams was actively attempting to seize it. State law claims likewise failed.

• Tiller v. Capital One, 26-30227, appeal from E.D. La.
  • per curiam (Jones, Ho, Wilson) (no oral argument), Americans with Disabilities Act
  • Dismissing appeal of dismissal of ADA claims for failure to cite record or cite legal authorities.
  • Pro se plaintiff Sean Tiller appealed dismissal of his ADA claims against Capital One. The court dismissed the appeal because Tiller’s opening brief violated Federal Rule of Appellate Procedure 28 by failing to cite the record even once and failing to cite legal authorities supporting his contentions.

• Gibson v. American Travel Associates, 26-30293, appeal from E.D. La.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), employment discrimination
  • Affirming dismissal of discrimination claims and denial of leave to amend.
  • Pro se plaintiff David Gibson appealed the denial of leave to amend in his ADA and LEDL employment discrimination case. His charge with the EEOC was filed outside the 300-day window, and his lawsuit exceeded the LEDL’s one-year statute of limitations. His equitable tolling argument—asserting only that he was managing cancer—was insufficient to show he pursued his rights diligently. No abuse of discretion in denying leave to amend.

• United States v. Augustine, 26-30433, appeal from E.D. La.
  • per curiam (Jones, Graves, Higginson) (no oral argument), criminal, pretrial detention
  • Affirming pretrial detention order.
  • Lucien Augustine appealed a pretrial detention order in a methamphetamine conspiracy case. The court held the detention order was supported by evidence of extensive drug trafficking involvement, frequent cross-country travel, and an 18-month absence from Louisiana following indictment. Any error in accepting a pretrial services officer’s statement without live testimony was harmless.

• United States v. Cruz-Amaya, 26-40115, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming 24-month sentence for smuggling goods from the United States, rejecting challenge to 14-level sentencing enhancement. The court found the relevant conduct determination was plausible in light of the record, supporting a common plan or same course of conduct.

• United States v. Deboard, 26-40202, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Olivas v. City of Midland, 26-50016, appeal from W.D. Tex.
  • per curiam (Willett, Oldham, Wilson) (no oral argument), employment discrimination
  • Affirming dismissal of ADA retaliation claim.
  • Angelica Olivas sued the City of Midland for ADA retaliation, alleging she was fired for requesting reasonable accommodations. Because she failed to object to the magistrate judge’s recommendation, the court reviewed for plain error. The court found no plain error in holding that Olivas failed to exhaust her ADA retaliation claim because her EEOC charge lacked factual allegations about accommodations and did not specify the basis for the alleged retaliatory discharge.

• United States v. Romero-Romero, 26-50145, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 54-month upward-variance sentence for illegal reentry, holding the sentence was not substantively unreasonable because it was supported by the need to promote respect for the law, deter criminal conduct, and protect the public.

• De Los Santos v. Mattress By Appointment, L.L.C., 26-50156, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), breach of contract, res judicata
  • Affirming dismissal of a second lawsuit against the same defendant over the same mattress-sales contract with a mandatory arbitration provision. The court held the district court properly dismissed under the claim-splitting doctrine because the parties were identical and the claims arose from the same nucleus of operative facts.

• United States v. Hernandez-Vargas, 26-50198, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence for illegal reentry above guidelines to 21 months. The court held the upward variance was substantively reasonable based on his immigration history, quick return, pending criminal charges, and likelihood of recidivism.

• Yalda v. El Paso Community College District, 26-50227, appeal from W.D. Tex.
  • per curiam (Elrod, King, Stewart) (no oral argument), employment dicrimination
  • Affirming dismissal of employment discrimination claims.
  • Jacqueline Yalda sued her employer for Title VII sex discrimination and retaliation after being barred from off-duty work. Despite the defendant’s default, the district court denied default judgment because the complaint failed to meet Rule 8 pleading standards. The court held the sex discrimination claim was not plausible because Yalda’s female co-workers were allowed to do off-duty work, undermining any inference that the adverse action was motivated by sex. The retaliation claim failed because the 2019 report lacked any factual basis to establish protected activity, and the 2023 report involved a single, non-harassing inquiry.

• Mathai v. United States, 26-50253, appeal from W.D. Tex.
  • per curiam (Duncan, Engelhardt, Ramirez) (no oral argument), Federal Tort Claims Act
  • Affirming dismissal of FTCA claims.
  • Koshy Mathai brought an FTCA claim for intentional infliction of emotional distress after a VA official’s failure to respond to an email confirming terms of a job offer. The court held the claim arose out of a misrepresentation within the meaning of 28 U.S.C. § 2680(h) because the chain of causation depended on the official’s allegedly inaccurate statements about a retention incentive. The FTCA’s broad misrepresentation exception barred the claim, and sovereign immunity was not waived.

• United States v. Tepaz-Perez, 26-50330, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Thompson v. City of Austin, 26-50539, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), civil
  • Affirming dismissal of pro se claims as frivolous.
  • Pro se plaintiff Mark Thompson sued the City of Austin and HEB after an altercation led to his being banned from a store, but his complaint alleged no federal or state claims for relief. The district court properly dismissed the complaint as frivolous, and Thompson’s post-judgment motions improperly introduced new facts.

• PPF 5, L.L.C. v. Delta Workover, L.L.C., 26-60060, appeal from S.D. Miss.
  • per curiam (Jones, Ho, Wilson) (no oral argument), Rule 60, civil
  • Affirming denial of Rule 60(b) motion to reopen case.
  • PPF 5 argued its attorney filed a voluntary dismissal without authorization and sought Rule 60(b) relief to reopen the case. The district court denied the motion because the dismissal was without prejudice, meaning PPF 5 could refile its claims at any time. The court found no abuse of discretion and rejected PPF 5’s arguments regarding professional conduct rules (raised for the first time on appeal) and inherent equity powers (inadequately briefed).

• NLRB v. Hotel Equities Group, L.L.C., 26-60104, petition for review of NLRB order
  • per curiam (Duncan, Engelhardt, Ramirez) (no oral argument), labor law
  • Granting petition to enforce NLRB order, affirming that order.
  • Hotel Equities Group (operator of a Hyatt hotel) refused to bargain with UNITE HERE Local 23 after an NLRB-supervised election in which the union won 24-8. HEG argued the union interfered with the election by threatening employees that HEG would fire union supporters if the union lost. The court upheld the NLRB’s factual findings as supported by substantial evidence: the Hearing Officer’s credibility determinations were not inherently unreasonable; the union agents could not carry out the alleged threats; the threats were not widely disseminated; and the election was won by a wide margin.

• Ananga v. Blanche, 26-60140, petition for review of BIA order
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), immigration
  • Dismissing in part and denying in part Cameroonian citizen’s petition for review of the BIA’s denial of his motion to reopen immigration proceedings based on changed country conditions. The court lacked jurisdiction to review the BIA’s refusal to sua sponte reopen and dismissed that portion. On the merits, the number bar under 8 U.S.C. § 1229a(c)(7)(A) applied per the court’s holding in Djie v. Garland, and Ananga’s equitable tolling argument was meritless.

• Young v. Mississippi Department of Human Services, 26-60714, appeal from N.D. Miss.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), sec. 1983
  • Affirming dismissal of pro se plaintiff Katie Young’s suit against MDHS over alleged conflicting information she received while applying for SNAP benefits, despite ultimately receiving the benefits. The court held the complaint was properly dismissed as frivolous because receiving conflicting paperwork guidance—when the benefits were ultimately provided—does not constitute a basis for judicial relief. Because this was Young’s fifth frivolous complaint in two years and she had been previously warned, the district court did not abuse its discretion in barring further pro se IFP filings without the chief judge’s permission.