Take the Fifth

Designated for publication

• United States v. Barrett, 25-30155, appeal from E.D. La.
  • per curiam (Graves, Ho, Douglas) (no oral argument), Ho, J., dissenting; criminal, appeal waiver
  • Granting motion for reconsideration of dismissal of appeal under appeal-waiver, and instead carrying the motion with the case.
  • Defendant Jerad Barrett entered a plea agreement on drug charges in which the government agreed to supersede the original indictment and remove references to methamphetamine that carried severe maximum statutory sentences, including up to life imprisonment. In exchange, Barrett pled guilty to four drug offenses carrying statutory maximums of 20 years and agreed not to appeal unless sentenced in excess of the statutory maximum or to raise ineffective-assistance-of-counsel claims. At sentencing, the district court relied on a presentence report that considered the methamphetamine in calculating the offense level and applied a leadership enhancement, increasing Barrett’s guidelines range from 46–57 months to 135–168 months. The court sentenced Barrett to 135 months (about 11 years).
  • At issue on the motion for reconsideration was whether Barrett’s appeal should be dismissed based on his plea agreement’s appellate waiver, or whether the panel should carry the government’s motion to dismiss with the case for merits consideration in light of the Supreme Court’s recent decision in Hunter v. United States, 608 U.S. 713 (2026), which recognized a “miscarriage of justice” exception to appeal waivers.
  • The majority did not offer a written explanation for its decision. The order simply granted reconsideration of the panel’s earlier dismissal and carried the government’s motion to dismiss for merits-panel review.
  • Judge Ho dissented, contending that the motion to dismiss should be granted now because Barrett cannot satisfy the high bar for a miscarriage of justice under Hunter. Judge Ho reasoned that Barrett’s alleged sentencing errors—the district court’s consideration of dropped methamphetamine charges in calculating the offense level, the leadership enhancement, and the denial of a downward variance—”are not the sort of ‘obvious’ and ‘egregious’ errors Hunter articulates.” He noted that Hunter envisions errors that “‘would bring the judicial system into disrepute’ and ‘undermine public confidence in the judiciary,'” such as sentences exceeding the statutory maximum, sentences based on constitutionally impermissible factors like race, or “a sentence imposed without affording the defendant any hearing at all.”
  • Judge Ho emphasized that Barrett “was sentenced well under the statutory maximum of 20 years,” “received a hearing and had the opportunity to object,” and that his claims were “at most the sort of ‘unfortunate but inevitable mistakes’ bound to occur during the ‘complex affair’ of sentencing.” He quoted the Second Circuit’s recent decision in United States v. Mateos, 187 F.4th 36, 39 (2d Cir. 2026): “‘[W]hatever else the miscarriage-of-justice exception . . . may cover, it does not extend to run-of-the-mill challenges to a district court’s allegedly erroneous calculation of a Guidelines range.'”
  • Judge Ho also warned that delaying decision on the motion “deprives the government of the benefit of the bargain that it made by plea agreement” and “obligates the government (and this court) to continue with an appeal that Barrett expressly agreed to waive.”

Unpublished decisions

• Forrest v. Guerrero, 25-11310, appeal from N.D. Tex.
  • per curiam (Higginson, Willett, Oldham) (no oral argument), prisoner suit
  • Dismissing for lack of jurisdiction Texas state prisoner’s appeal from denial of motion to strike answer.
  • Texas state prisoner Jeffrey Winston Forrest sought leave to proceed in forma pauperis on appeal from the district court’s order denying his motion to strike the respondent’s answer in his 28 U.S.C. § 2254 habeas proceeding and granting the respondent’s motion to exceed a page limit set by local rules. The court examined whether the order was a final or otherwise appealable order under 28 U.S.C. §§ 1291, 1292, Rule 54(b), or the collateral order doctrine.
  • The district court’s interlocutory order did not fall within any recognized category of appealable orders. Forrest’s IFP motion was denied as moot.

• United States v. Jones, 26-10113, appeal from N.D. Tex.
  • Clerk order (no oral argument), criminal
  • Granting in part CJA-appointed attorney’s motion for leave to submit an interim voucher for attorney fees and expenses in the criminal representation of appellant Kurtney Bernard Jones. Counsel was permitted to submit an interim voucher for attorney fees and expenses after the brief is filed; the final voucher was to be submitted at the conclusion of the representation.

• United States v. Macias, 26-10210, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ayon Ontiveros, 26-10327, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Manley v. White County Sheriff Office, et al., 26-20105, appeal from S.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), § 1983, personal jurisdiction
  • Affirming dismissal of § 1983 claims on independent intermediary doctrine and lack of personal jurisdiction.
  • Stephen Manley, a Texas resident extradited to Indiana in connection with a fatal car accident, sued Indiana county officials, prosecutors, and media entities alleging defamation, false imprisonment, fabrication and suppression of evidence, and Fourth, Fifth, and Fourteenth Amendment violations arising from an allegedly false probable cause affidavit. The district court dismissed for lack of personal jurisdiction over certain Indiana defendants who had no Texas contacts, dismissed remaining claims on the merits under Rule 12(b)(6), and dismissed media defendants for insufficient service of process. Manley challenged the personal-jurisdiction dismissal and the application of the independent intermediary doctrine to the Fourth Amendment claims against officers who traveled to Texas to arrest him.
  • The court found no personal jurisdiction over the Indiana-based defendants who never entered Texas, and held that a facially valid warrant issued by an Indiana judge broke the chain of causation, insulating the arresting officers under the independent intermediary doctrine.

• United States v. Ramirez-Noria, 26-20117, appeal from S.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Carroll v. Turner Industries Group, L.L.C., 26-30230, appeal from W.D. La.
  • per curiam (King, Higginson, Douglas) (no oral argument), employment discrimination, arbitration
  • Affirming denial of motion to vacate arbitration award in favor of employer in employment discrimination arbitration.
  • Shawn Allen Carroll brought ADA and state-law claims against his former employer in arbitration, alleging wrongful discharge, refusal to reinstate, and refusal to rehire. The arbitrator dismissed the disability claims, finding Carroll failed to first file with the EEOC or TWC as required and that applicable statutes of limitations had run. Carroll moved to vacate the arbitration ruling in district court, arguing the arbitrator exceeded her powers under 9 U.S.C. § 10(a)(4).
  • The court applied the “extraordinarily narrow” standard of judicial review of arbitration awards and concluded the arbitrator’s ruling drew its essence from the Dispute Resolution Agreement. The arbitrator acted within her contractually delegated authority in identifying governing law and applying the relevant statutes of limitations.

• Alcala v. Unity One Credit Union, 26-40030, appeal from E.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), Truth in Lending Act, Fair Debt Collection Practices Act
  • Affirming dismissal of carious claims arising from vehicle purchase.
  • Pro se plaintiff Virginia Alcala sued Unity One Credit Union over a vehicle purchase, raising claims under the Truth in Lending Act (TILA), the Fair Debt Collection Practices Act (FDCPA), the Federal Trade Commission Act, the Gramm-Leach-Bliley Act, and the Texas Deceptive Trade Practices Act, among others. The district court dismissed all claims with prejudice under Rule 12(b)(6). Alcala also alleged judicial bias and sought sanctions against opposing counsel.
  • The court found: TILA’s rescission right did not apply to this circumstance; Alcala failed to plead facts showing Unity was a “debt collector” under the FDCPA; the FTC Act and Gramm-Leach-Bliley Act claims were adequately considered and properly dismissed; and state-law claims were insufficiently pleaded. The consolidation of cases, dismissal with prejudice, and rejection of bias and sanctions arguments were all upheld.

• United States v. Portillo, 26-40204, 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. Marquez-Cisneros, 26-50037, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentencing
  • Affirming 36-month above-guidelines sentence imposed after guilty plea to illegal reentry after removal, rejecting argument the district court gave insufficient weight to the guidelines range.
  • The court held the district court did not abuse its discretion; it was free to conclude the guidelines range underweighted the defendant’s criminal history, considered her mitigating circumstances, and the extent of the upward variance was within the range of variances previously affirmed.

• Bowen v. Bowen, 26-50249, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), removal
  • Affirming remand of state court divorce proceeding.
  • Mary Ellen Bowen removed a state divorce action to federal court, citing 28 U.S.C. §§ 1441 and 1443 as grounds. She appealed the district court’s remand order and argued the State of Texas lacked standing to move for remand.
  • The court held the State had standing to seek remand and that Bowen failed to meet the requirements for removal under either § 1441 or § 1443.

• Montanez Berrios v. Samaniego, et al., 26-50320, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), election law, Rule 60
  • Affirming denial of Rule 60 motion from dismissal of election law claims, and denying motion for injunction pending appeal.
  • Pro se plaintiff Deliris Montanez Berrios, following an unsuccessful write-in congressional campaign, sued election officials alleging election-related violations. After her claims were dismissed, she filed two untimely Rule 60(b) motions to reopen the case. She also moved for an injunction pending appeal to preserve election-related records. The court considered whether Rule 60(b) could serve as a substitute for a timely appeal and whether the injunction factors were met.
  • The court found Plaintiff’s briefing failed to identify any Rule 60(b) subsection warranting relief and instead impermissibly challenged the underlying dismissal. The injunction was denied because Plaintiff failed to demonstrate likelihood of success on the merits, irreparable injury, or any of the other required factors.

• In re Okorie, 26-60037, appeal from S.D. Miss.
  • per curiam (Duncan, Engelhardt, Ramirez) (no oral argument), bankruptcy, res judicata
  • Affirming denial of debtor’s claims for breach of the automatic stay, and other claims.
  • Dr. Ikechukwu Okorie, a serial pro se litigant in his 2019 bankruptcy case, appealed the district court’s affirmance of the bankruptcy court’s dismissal of an adversary proceeding against PriorityOne Bank, its attorney, and the bankruptcy trustee. Okorie raised claims for automatic-stay violations, breach of fiduciary duty, and emotional distress, all of which had been addressed in prior proceedings. He raised eight arguments on appeal, including challenges to res judicata, subject-matter jurisdiction, fraud on the court, and due process.
  • All four elements of res judicata were satisfied: the bankruptcy court had jurisdiction under 28 U.S.C. § 1334(b); the prior adjudications were final judgments on the merits; the claims related to the same causes of action previously litigated; and the parties were the same. The court also rejected Okorie’s arguments regarding fraud on the court, due process violations, and manifest injustice.

• Reyes Hernandez v. Blanche, 26-60103, petition for review of BIA order
  • per curiam (Jones, Ho, Wilson) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing appeal of IJ decision as untimely.
  • Maritza Reyes Hernandez, a native and citizen of Honduras, petitioned for review of a BIA order summarily dismissing her appeal as untimely. The question was whether exceptional circumstances warranted equitable tolling of the filing deadline.
  • The court found no record evidence of exceptional circumstances warranting equitable tolling and no abuse of discretion in the BIA’s summary dismissal.

• Ibrahim v. Blanche, 26-60122, petition for review of BIA order
  • per curiam (Jones, Ho, Wilson) (no oral argument), immigration
  • Denying Syrian citizen’s petition for review of BIA order dismissing his appeal from an IJ’s denial of asylum, withholding of removal, and CAT protection. Ibrahim forfeited challenges related to statutory ineligibility under the Circumvention of Lawful Pathways (CLP) rule by not raising them before the court. He challenged the agency’s adverse credibility determination and argued the BIA failed to independently consider non-testimonial country-conditions evidence for CAT relief.
  • Ibrahim failed to show that no reasonable factfinder could have made the adverse credibility determination; the BIA did consider country-conditions evidence; and general country-conditions evidence alone does not establish eligibility for CAT relief.

• United States v. Walker, 26-60207, appeal from S.D. Miss.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, appeal waiver
  • Dismissing appeal from conviction and 188-month sentence on drug charges.
  • Roman Raycharles Walker pleaded guilty to possession with intent to distribute fentanyl and was sentenced to 188 months’ imprisonment and five years’ supervised release. His plea agreement contained an appeal waiver reserving only the right to pursue an ineffective-assistance-of-counsel claim. Walker challenged several sentencing enhancements and alleged unwarranted disparity, arguing he did not knowingly and voluntarily waive his right to appeal.
  • The court found the waiver was knowing and voluntary and that its plain language applied to the circumstances at hand.