By Joe Magliolo

Below is a summary of various Fifth Circuit and White Collar-related cases from August 2025. Apologies for the delay—it was a busy month for the Court, and I decided, wisely or otherwise, to add summaries of several regulatory matters as well.

This month, the Court issued opinions on a range of issues, including multiple cases on oral pronouncement of special supervised release conditions and Fourth Amendment issues. It also considered issues about Bruen, attorney-client and common-interest privileges, sentencing, a terrorism trial, and 1006 summary charts. On the regulatory front, it found a district court had no jurisdiction to enjoin an action ongoing in FDIC’s regulatory courts and SEC rulemaking authority.

All opinions cited here are linked in the case title, and the bolded judge is the author of the Court’s opinion.

United States v. Nyandoro, No. 23-10579, 146 F.4th 448 (5th Cir. August 4, 2025)

(Judge Stewart, Judge Clement, Judge Willett) (from N.D. Texas):

Issues: Withdrawal of Guilty Plea, Appellate Waiver.

The Fifth Circuit issued its original opinion in this case on June 19, 2025, and my summary on that case can be found here: Fifth Circuit Criminal Opinions: Insights and Analyses Part V – Jackson Walker.

Nyandoro moved for panel rehearing, and the Court substituted this new opinion in place of the original. The opinion did not change substantively, but the Court added a footnote in which it acknowledged the Supreme Court’s Class v. United States, 138 S. Ct. 798 (2018) decision, where the Supreme Court held that a guilty plea alone does not bar a defendant from raising a constitutional challenge to his conviction on direct appeal, and overruling part of a case on which the panel relies in this opinion, United States v. Johnson, 194 F.3d 657 (5th Cir. 1999), vacated and remanded, 530 U.S. 1201, 120 (2000), prior opinion reinstated with modification, 246 F.3d 749 (5th Cir. 2001).

The Fifth Circuit clarified that it did not rely on Johnson for that portion of the opinion. Instead, it noted that its citation to Johnson was meant “to underscore the difference between contesting a statute’s constitutionality and contesting a conviction for failure to establish its elements.”

Practitioner Tips:

• Draft appeal waivers broadly and confirm on the record that the defendant entered into that agreement knowingly and voluntarily; they will bar later constitutional attacks on Section 922(g)(3) (and similar statutes), including Second Amendment and vagueness claims.
• Don’t rely on the “factual-insufficiency” carveout unless the admitted facts truly fail to satisfy a statutory element; constitutional challenges don’t fit that exception.
• If contemplating plea withdrawal based on intervening precedent, move promptly; delay will be measured from the key decision (here, Bruen), and lengthy gaps weigh heavily against withdrawal under Carr.
• Build a concrete prejudice record (or rebuttal) for Carr; generic claims won’t carry the day, and court inconvenience grows once the PSR is reviewed and sentencing is set.
• Preserve all theories in the opening brief; new arguments raised for the first time in reply are forfeited.
• Don’t expect a “miscarriage of justice” safety valve—the Fifth Circuit hasn’t adopted one—and the statutory-maximum exception applies only when the sentence exceeds Congress’s cap, not to alleged conviction invalidity.
• During Rule 11 colloquy, ensure defendants acknowledge element-by-element understanding; Rule 11 doesn’t require predicting or advising on future constitutional shifts, and pleas are judged by the law at the time.

United States v. Chicol-Najarro, No. 24-20424, 147 F.4th 531 (5th Cir. Aug. 6, 2025)

(Chief Judge Elrod, Judge Duncan, Judge Englehardt) (Per Curiam) (from S.D. Texas):

Issues: Supervised Release, Conditions of Supervised Release, Oral Pronouncement of Special Conditions of Supervised Release.

The Fifth Circuit reviewed the case of Emil Bon Chicol-Najarro, who appealed the inclusion of a “report-upon-reentry” condition among his supervised release conditions following a conviction for illegal reentry after deportation and a prior felony. The presentence investigation report (PSR) recommended that Chicol-Najarro be required to report to the nearest probation office within 72 hours of any reentry into the United States. However, at sentencing, the district court did not mention this condition, nor did it reference the PSR or otherwise provide notice to Chicol-Najarro regarding the imposition of this specific requirement. Despite the lack of oral pronouncement, the report-upon-reentry condition was included in the written judgment.

The Fifth Circuit analyzed the issue under the framework established by United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc), and related precedent, which require that discretionary conditions of supervised release—such as the report-upon-reentry requirement—must be orally pronounced at sentencing.  The Court emphasized that the statutory scheme under 18 U.S.C. § 3583(d) distinguishes between mandatory and discretionary conditions, with only the latter requiring oral pronouncement to ensure the defendant has notice and an opportunity to object. The Court further clarified that the mere existence of a PSR recommending a condition is insufficient; the district court must orally adopt the condition in open court while the defendant is present.

The Fifth Circuit found that the inclusion of the report-upon-reentry condition in the written judgment, without corresponding oral pronouncement, created a direct conflict. Such a conflict arises when the written judgment broadens the restrictions or requirements of supervised release beyond what was stated at sentencing. In these circumstances, the oral pronouncement controls. The Fifth Circuit concluded that the district court abused its discretion by failing to properly pronounce the condition and, accordingly, vacated the report-upon-reentry requirement. The Court remanded the case for the district court to conform the written judgment to the oral pronouncement made at sentencing.

Practitioner Tips: Scrutinize supervised-release conditions for oral pronouncement—discretionary conditions under 18 U.S.C. § 3583(d) must be pronounced or expressly adopted in open court with an opportunity to object; the PSR’s mere existence is not enough. At sentencing, ask the judge to orally adopt any PSR conditions the court intends to impose, or request clarification on the record. If a written judgment includes an unpronounced discretionary condition (like report-upon-reentry), move to correct it; if the opportunity to object was absent, preserve an abuse-of-discretion standard on appeal. Always compare the transcript to the written judgment for conflicts (not just ambiguities), because conflicts are controlled by the oral pronouncement, and seek vacatur and remand to conform the judgment when necessary.

United States v. Quezada-Atayde, No. 24-20570, 148 F.4th 360 (5th Cir. Aug. 6, 2025)

(Chief Judge Elrod, Judge Higginson, Judge Ramirez) (from S.D. Texas):

Issues: Supervised Release, Illegal Reentry after Deportation, Oral Pronouncement of Special Conditions of Supervised Release.

The Fifth Circuit’s decision addresses the challenge to special conditions of supervised release imposed following a guilty plea for illegal reentry under 8 U.S.C. § 1326(a). Quezada-Atayde, a Mexican national, was first removed from the United States in 2015 and later reentered, leading to his arrest and subsequent conviction for state drug offenses. While serving his state sentence, he was indicted for illegal reentry and ultimately pled guilty without a plea agreement. The district court imposed a 24-month sentence and one year of supervised release, adopting two special conditions recommended in the Presentence Investigation Report (PSR): (1) immediate and continuous reporting to Immigration and Customs Enforcement (ICE) and compliance with all instructions until deportation proceedings are complete, and (2) if deported, remaining outside the United States unless legally authorized to reenter, and reporting to the nearest probation office within 72 hours of any return.  Additionally, he was required to seek proper documentation from ICE to work in the United States.

On appeal, Quezada-Atayde argued that the written judgment’s special conditions conflicted with the oral pronouncement at sentencing, asserting that the written conditions were more burdensome. The Fifth Circuit, applying the standards articulated in United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc) and its related precedent, focused on whether the district court satisfied the oral pronouncement requirement for discretionary and special conditions of supervised release. The Court emphasized that a verbatim recitation of conditions is not required; rather, the defendant must receive notice and an opportunity to object. Here, the district court confirmed that Quezada-Atayde and his counsel had reviewed the PSR, orally adopted the PSR’s recommendations, and provided an explicit opportunity for objections. The only objection raised by defense counsel related to the relationship between the federal and state offenses, not to the special conditions themselves.

The Fifth Circuit found that the district court’s process—verifying PSR review, adopting its recommendations, and soliciting objections—satisfied the requirements for oral pronouncement. The Court held that Quezada-Atayde had adequate notice and opportunity to object to the special conditions, and thus, any challenge was subject to plain error review, which was not met. The Court concluded there was no conflict between the oral and written pronouncements, affirming the district court’s judgment.

This decision reinforces the principle that oral adoption of PSR-recommended conditions, coupled with confirmation of review and opportunity to object, is sufficient to meet the pronouncement requirement for supervised release conditions in the Fifth Circuit.

Practitioner Tips: Make a clear record at sentencing about PSR review and object to any discretionary/special supervised-release conditions you contest when the court adopts the PSR or asks for “legal objections,” or you’ll be stuck with plain-error review. If you need tailored findings or narrower conditions, ask the court to orally recite and justify them under Section 3583(d). Don’t assume silence helps you—oral adoption of PSR conditions satisfies the pronouncement requirement. For immigration-related conditions, challenge scope (e.g., continuous reporting, work authorization) as overbroad or unnecessary for the defendant’s circumstances, and propose precise alternatives. If notice was lacking, say so on the record to preserve abuse-of-discretion review.

United States v. Morgan, No. 24-30561, 147 F.4th 522 (5th Cir. Aug. 6, 2025)

(Judge Wiener, Judge Willett, Judge Ho) (from W.D. Louisiana):

Issues: Bruen, Felon in Possession, Second Amendment, Firearms, As Applied Challenge, Facial Challenge.

The Fifth Circuit Court of Appeals addressed yet another constitutional challenge to 18 U.S.C. § 922(g)(1), the federal statute prohibiting felons from possessing firearms. The panel affirmed the statute’s constitutionality both facially and as applied to the defendant, Morgan, who had a prior Louisiana felony conviction for illegal use of a weapon stemming from a drive-by shooting.

Factual and Procedural Background

Morgan’s sole prior felony was for illegal use of a weapon under Louisiana law, specifically a drive-by shooting that struck a home and a car. He was sentenced to two years’ imprisonment and released on parole in March 2023. Within a month, Morgan was found in a vehicle containing four loaded firearms, one of which was stolen. He was indicted for being a felon in possession under 18 U.S.C. § 922(g)(1) and for possessing unregistered firearms under 26 U.S.C. § 5861(d). Morgan moved to dismiss both counts, arguing that the statutes were unconstitutional on their face and as applied to him. The district court denied the motion, holding that felons are not among “the people” protected by the Second Amendment and that the restrictions were consistent with historical firearm regulation. Morgan pled guilty to the felon-in-possession charge, preserving his right to appeal the denial of his motion to dismiss.

Preservation and Standard of Review

On appeal, Morgan renewed his facial and as-applied Second Amendment challenges. The Court quickly disposed of the facial challenge as foreclosed by circuit precedent, specifically United States v. Diaz, 116 F.4th 458 (5th Cir. 2024) and focused on the as-applied challenge. The government argued that Morgan’s district court briefing lacked substantive as-applied analysis, but the Fifth Circuit found that Morgan had sufficiently preserved the as-applied challenge by explicitly raising it in his motion to dismiss and that the district court had recognized it as such. Accordingly, the Court reviewed the as-applied challenge de novo.

Second Amendment Framework and Application

The Court applied the two-step Bruen framework. First, it considered whether Section 922(g)(1) burdens conduct protected by the Second Amendment. Citing Diaz, the Court acknowledged that convicted felons are among “the people” protected by the Second Amendment and that the statute’s plain text covers the conduct at issue. Thus, the burden shifted to the government to demonstrate that the regulation is consistent with the nation’s historical tradition of firearm regulation.

At the second step, the Court examined whether there is a historical analogue for disarming individuals with a criminal history analogous to Morgan’s. The relevant predicate offense was Morgan’s conviction for illegal use of a weapon, which under Louisiana law is punishable by up to two years’ imprisonment and thus qualifies as a predicate felony under Section 922(g)(1). The Court rejected Morgan’s argument that his offense was “barely a felony,” emphasizing the bright-line statutory rule—punishable by more than one year’s imprisonment—rather than the degree of the offense.

The Court also addressed the relevance of the conduct underlying the conviction, noting that the government’s reference to the facts of the drive-by shooting was permissible and illuminating. The Court cited recent Fifth Circuit cases holding that the conduct underlying the predicate felony may be considered in as-applied challenges.

Historical Analogues and Justification

The government relied on founding-era “going armed” laws as historical analogues. These laws prohibited individuals from riding or going armed with dangerous or unusual weapons in a manner that would terrify the public, targeting those who menaced others with firearms or disrupted public order through conduct likely to lead to violence. The Court found these laws to be “relevantly similar” to Section 922(g)(1) as applied to Morgan, both in the burden imposed (permanent arms forfeiture upon conviction) and in their justification (disarming those who threaten the physical safety of others).

The Court emphasized that both the historical “going armed” laws and Section 922(g)(1) restrict gun use to mitigate demonstrated threats of physical violence, rather than broadly restricting arms use by the public. The justification for these laws is to mitigate demonstrated threats, supporting a tradition of disarming individuals whose underlying convictions stem from violent conduct with a firearm.

Morgan argued that the Louisiana statute is overbroad because it criminalizes both intentional and criminally negligent conduct, and that the government had not identified a founding-era law punishing negligent discharge of a firearm. The Court responded that a modern regulation need not be a “dead ringer” for historical precursors to be analogous enough to pass constitutional muster. In Morgan’s case, the conduct—firing sixteen rounds in a drive-by shooting—fit squarely within the tradition of disarming those who menace others with firearms.

Parole Status and Additional Considerations

The Court also addressed Morgan’s argument that his possession of firearms while on parole should not impact his as-applied challenge. The Fifth Circuit has previously held that restricting firearm possession while on parole is consistent with historical tradition, further undermining Morgan’s position.

Morgan requested a remand for the district court to apply the Supreme Court’s decision in United States v. Rahimi, 602 U.S. 680 (2024) and its precedent United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), both decided after the denial of his motion to dismiss.  The Fifth Circuit declined, noting that the district court had already proceeded to the historical analysis required by Bruen, that the government had preserved its arguments regarding historical analogues, and that the Fifth Circuit has repeatedly decided Second Amendment challenges on the merits even when relevant Supreme Court or circuit decisions issued after the district court’s ruling.

The Fifth Circuit ultimately held that Section 922(g)(1), as applied to Morgan, is consistent with the Second Amendment and “relevantly similar” to laws that the historical tradition permits. The decision affirms the district court’s denial of Morgan’s motion to dismiss and upholds the statutory prohibition on felon firearm possession as applied in this context.

Practitioner Tips: To preserve an as-applied Second Amendment challenge, do more than label it—tie the statute’s application to your client’s specific predicate felony and facts. Focus the analysis on a single qualifying offense “punishable by more than one year,” and be ready for courts to consider the conduct underlying that conviction, not other arrests, or misdemeanors. Frame or rebut the historical analogue around “going armed”/dangerousness traditions and Bruen’s comparable burden/comparable justification test, mindful that courts need not find a historical twin or negligence-specific analogue if facts show menacing firearm use. Note that parole status can independently support disarmament conditions. Preserve appellate posture: secure de novo review by clearly pressing the as-applied claim below, consider plea agreements that reserve the constitutional issue, and anticipate that the government may expand its legal history on appeal and that remand is unlikely where Diaz/Rahimi supply the framework.

United States v. Baxter, No. 24-50051, 150 F.4th 386 (5th Cir. Aug. 8, 2025)

(Judge King, Judge Smith, Judge Douglas) (from W.D. Texas):

Issues: Probation, Supervised Release, Oral Pronouncement of Supervised Release Conditions.

The Fifth Circuit addressed the interplay between oral pronouncements and written judgments regarding conditions of supervised release following the revocation of probation. Baxter was initially sentenced to five years of probation for possessing an unregistered destructive device, subject to mandatory, standard, and several additional conditions, including participation in inpatient substance abuse treatment. After violating the inpatient treatment condition, Baxter’s probation was revoked, and he was resentenced to 30 months’ imprisonment followed by three years of supervised release.

At the revocation hearing, the district court orally imposed the standard and mandatory conditions of supervised release, as well as participation in a drug treatment program with associated testing. The written judgment, however, not only included these conditions but also stated that “[a]ll previous conditions of supervision remain the same,” thereby incorporating the original probation conditions, some of which were discretionary and not expressly pronounced at the hearing. Baxter appealed, arguing that the written judgment impermissibly broadened the conditions of his supervised release beyond what was orally imposed, in violation of his right to be present at sentencing and to object to discretionary conditions.

The Court grounded its decision in the principle that, under United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc) and its progeny, any discretionary condition of supervised release must be orally pronounced at sentencing to allow the defendant an opportunity to object.  The Court distinguished between mandatory conditions, which need not be pronounced, and discretionary conditions, which must be. The Court also recognized that a district court may orally adopt a written list of conditions—such as those in a presentence report (PSR) or a standing order—provided the defendant has had an opportunity to review them with counsel and the court expressly adopts them in open court.

Baxter challenged four specific conditions: (1) prohibition on use or possession of controlled substances without a valid prescription, with a requirement to disclose prescription information to the probation officer; (2) prohibition on knowing possession or use of psychoactive substances; (3) participation in an inpatient substance abuse treatment program; and (4) submission to reasonable searches.  The Fifth Circuit addressed each in turn.

First, the Court held that the prohibition on controlled substances, including the requirement to disclose prescription information, was encompassed by the mandatory conditions of 18 U.S.C. § 3583(d) and the standing order orally adopted by the district court. The Court found persuasive unpublished authority holding that such requirements merely reinforce the statutory mandate against unlawful possession of controlled substances and do not broaden the condition.

Second, the prohibition on psychoactive substances was found not to conflict with the oral pronouncement, as it was consistent with the requirement to participate in substance abuse treatment, particularly given Baxter’s history of substance abuse. The Court cited a line of unpublished Fifth Circuit cases upholding similar conditions where the oral pronouncement required drug treatment and the defendant had a relevant history.

Third, regarding the requirement for inpatient substance abuse treatment, the Court found no conflict or ambiguity. Although the oral pronouncement did not specify inpatient or outpatient treatment, the context—namely, that Baxter’s probation was revoked for failing to complete inpatient treatment—supported the written judgment’s inclusion of inpatient treatment as consistent with the oral pronouncement.

Fourth, and most significantly, the Court found that the submission-to-search condition was a discretionary condition not orally pronounced at sentencing. The inclusion of this condition in the written judgment constituted a conflict, as it broadened the requirements of supervised release beyond what was imposed in open court. Citing precedent, the Court held that in the event of such a conflict, the written judgment must be conformed to the oral pronouncement.

The Fifth Circuit affirmed Baxter’s sentence in all respects except for the submission-to-search condition, which it vacated. The case was remanded with instructions to amend the written judgment to conform to the oral pronouncement, underscoring the importance of strict adherence to the oral pronouncement rule for discretionary conditions of supervised release.

Practitioner Tips: Ensure every discretionary supervised-release condition is orally pronounced or explicitly adopted by reference to a written list (PSR or standing order) on the record after confirming defendant’s review with counsel. Avoid boilerplate like “all previous conditions remain” unless those conditions were pronounced or validly incorporated. Remember oral pronouncement controls; any broader written condition (e.g., submission-to-search) will be vacated if not pronounced. Conditions tied to mandatory requirements (e.g., no controlled substances without a valid prescription and disclosure to probation) typically need not be pronounced. Prohibitions on psychoactive substances often survive if consistent with orally ordered substance-abuse treatment and the defendant’s history. Be precise about inpatient vs. outpatient treatment to prevent conflicts or “ambiguity resolved by context.”  Preserve objections at sentencing to avoid plain-error review and to secure correction on appeal.

United States v. Brown, No. 24-20095, — F.4th —, 2025 WL 2318686 (5th Cir. Aug. 12, 2025)

(Judge Wiener, Judge Douglas, Judge Ramirez) (from S.D. Texas):

Issues: Attorney-Client Privilege, Drug-Trafficking, Sixth Amendment, Double Jeopardy, Dismissal of Counts, Common-Interest Privilege.

The Fifth Circuit’s decision in United States v. Ronald Donell Brown addresses a complex criminal appeal involving issues of attorney-client privilege, the Sixth Amendment right to counsel, double jeopardy, and the proper exercise of district court discretion in sentencing and vacatur of convictions. The case arises from Brown’s leadership of a large-scale drug trafficking organization and his subsequent prosecution and conviction on multiple counts, including conspiracy to commit murder for hire, intentional killing while engaged in drug trafficking, and related firearms offenses.

Factual and Procedural Background

Ronald Donell Brown was identified as the leader and manager of a drug trafficking organization that operated between Houston, Texas, and Atlanta, Georgia, distributing large quantities of cocaine and marijuana sourced primarily from Mexico. Brown orchestrated the transport of narcotics and proceeds using organization members and tractor-trailer drivers. The organization’s activities included violent acts, notably Brown’s orchestration of retaliatory violence following the theft of a large cocaine shipment. After suspecting two associates, Eric Williams and Marcus Celestine, of involvement in the theft, Brown attempted to murder Williams and successfully arranged the murder of Celestine through intermediaries, including Raphael Risher and Clyde Williams.

A federal grand jury returned a twelve-count superseding indictment against Brown and co-defendant Clyde Williams. The counts relevant to the appeal included conspiracy to commit murder for hire (Count One), intentional killing while engaged in drug trafficking (Count Two), and two counts under 18 U.S.C. § 924(c) and (j) for using a firearm during and in relation to a crime of violence resulting in death (Counts Three and Four).  Brown moved to suppress evidence on the grounds of attorney-client privilege and Sixth Amendment violations, and later challenged the district court’s grant of the government’s post-verdict motion to dismiss Counts Three and Four.

Attorney-Client Privilege and the Common Legal Interest Exception

Brown’s suppression motion centered on two meetings in 2013 involving himself, his attorneys (Chip Lewis and Alicia O’Neil), and a confidential informant (CI). The CI, initially under the impression that the meetings concerned a potential investment in her school, was instead drawn into discussions about a plan to recover $718,407 in cash seized by law enforcement from one of Brown’s drivers. Brown and his attorneys discussed a scheme whereby the CI would file a petition to claim the seized funds as her own, in exchange for a share of the money as an “investment” in her school. The CI, concerned about the legality of the plan, reported the meeting to the FBI, and subsequently recorded a second meeting at the attorneys’ office.

The district court denied Brown’s motion to suppress, finding that the communications at the August 4 meeting were not protected by attorney-client privilege. The Fifth Circuit affirmed, applying established precedent that the presence of a third party who is not a client generally waives the privilege unless the third party shares a common legal interest with the client. The Court found that the CI did not share a common legal interest with Brown regarding the seized money; she was not seeking legal advice or representation, had no prior knowledge of the meeting’s true purpose, and promptly reported the scheme to law enforcement. The Court distinguished the facts from those in In re Auclair, 961 F.2d 65 (5th Cir. 1992), where multiple prospective clients jointly sought legal representation, and from Upjohn Co. v. United States, 449 U.S. 383 (1981), which extended privilege to corporate employees communicating with in-house counsel for the purpose of legal advice.  Here, the CI was neither a co-defendant nor a participant in a joint defense, and her presence rendered the communications non-confidential.

Sixth Amendment Right to Counsel

Brown also argued that the government’s use of the CI to record meetings with his attorneys violated his Sixth Amendment right to counsel. The Fifth Circuit rejected this claim, reiterating that the right to counsel attaches only upon the initiation of adversarial judicial proceedings—by formal charge, indictment, or arraignment. The meetings in question occurred in 2013, more than four years before Brown was indicted in 2017. Citing United States v. Diaz, 941 F.3d 729 (5th Cir. 2019) and United States v. Carr, 83 F.4th 267 (5th Cir. 2023), the Court held that pre-indictment investigatory intrusions do not implicate the Sixth Amendment. The Court also distinguished Supreme Court cases cited by Brown, such as Black v. United States, 385 U.S. 26 (1966) and Weatherford v. Bursey, 429 U.S. 545 (1977), noting that neither established a pre-indictment right to counsel in these circumstances.

Rule 48(a) Dismissal and Double Jeopardy

After Brown’s conviction on seven counts, the government moved post-verdict to dismiss Counts Three and Four—the Section 924(j) firearm offenses—arguing that sentencing on both those counts and the predicate crimes of violence (Counts One and Two) would violate the Double Jeopardy Clause, particularly in light of the Supreme Court’s decision in Lora v. United States, 599 U.S. 453 (2023) and the Fifth Circuit’s own decision in United States v. Sanders, 133 F.4th 341 (5th Cir. 2025).  The government’s motion was filed on the morning of sentencing, and defense counsel requested a continuance to respond and leave to amend a previously filed motion to vacate, both of which the district court denied. The court granted the government’s motion, dismissed Counts Three and Four, and imposed mandatory life sentences on Counts One and Two.

On appeal, Brown argued that the district court erred by granting the government’s Rule 48(a) motion without his consent and by dismissing the greater-included offenses (Counts Three and Four) rather than the lesser-included offenses (Counts One and Two). The Fifth Circuit addressed the procedural and substantive aspects of this challenge.

Procedural Requirements and Preservation of Error

The Court first considered whether Brown had preserved his objection to the dismissal of Counts Three and Four. Although Brown did not expressly object to the government’s motion or its reasoning, the Court found that the circumstances—specifically, the last-minute filing of the motion and the denial of a continuance—deprived Brown of a meaningful opportunity to respond. Defense counsel’s statements at sentencing, including requests to amend the motion to vacate and references to double jeopardy and multiplicity, were deemed sufficient to preserve the issue for appeal. The Court emphasized that preservation does not require identical arguments on appeal and at trial, but rather that the trial court be given an opportunity to address the gravamen of the objection.

Rule 48(a) and the District Court’s Discretion

Rule 48(a) allows the government to dismiss an indictment, information, or complaint “with leave of court,” but requires the defendant’s consent only if the dismissal occurs “during trial.”  The Fifth Circuit, following the Eighth Circuit’s interpretation in United States v. Williams, 720 F.3d 674 (8th Cir. 2013) held that post-verdict dismissals do not require the defendant’s consent, only leave of court. However, the Court distinguished between the government’s discretion to decide which charges to prosecute and the district court’s responsibility, post-verdict, to determine which convictions to vacate in light of double jeopardy concerns.

The Court found that the government’s motion to dismiss Counts Three and Four was motivated not by prosecutorial discretion as to which offenses to pursue, but by a desire to limit the district court’s sentencing options. Counts Three and Four, as greater-included offenses under Section 924(j), allowed for a term of years or life imprisonment, whereas Counts One and Two carried mandatory minimum sentences—life for conspiracy to commit murder for hire resulting in death, and a minimum of 20 years to life for intentional killing while engaged in drug trafficking.  By dismissing the greater-included offenses, the government effectively foreclosed the possibility of a sentence less than life imprisonment.

The Fifth Circuit held that, under Supreme Court precedent, Ball v. United States, 470 U.S. 856 (1985), and its own case law, the district court must exercise its own discretion in determining which of the multiplicitous convictions to vacate. The Court cited United States v. Brito, 136 F.3d 397 (5th Cir. 1998) and United States v. Michel, 588 F.2d 986 (5th Cir. 1979) for the general rule that, in cases of simultaneous convictions for greater and lesser-included offenses, the lesser-included offense is typically vacated.  However, the Court recognized that this rule is not absolute, particularly where the lesser-included offense carries a greater penalty due to statutory anomalies. In such cases, the district court must make a discretionary determination as to which conviction to vacate, considering the sentencing consequences and the interests of justice.

Remand for Discretionary Determination and Resentencing

The Fifth Circuit concluded that the district court erred by abdicating its discretionary authority to the government and failing to conduct any analysis or make findings as to which counts should be dismissed. The Court vacated the district court’s ruling on the government’s Rule 48(a) motion, vacated the sentences as to Counts One and Two, and remanded the case for the district court to exercise its discretion in selecting which convictions—Counts One and Two or Counts Three and Four—should be dismissed, and to resentence Brown accordingly.  The Court expressly declined to dictate which counts should be vacated, noting that the decision rests with the district court in the first instance, particularly given the unusual circumstance that the lesser-included offenses carried mandatory minimum sentences exceeding the potential penalties for the greater-included offenses.

Practitioner Tips: Do not include third parties in attorney-client meetings unless a narrowly defined common legal interest truly exists—mere business ties or prospective investments won’t preserve privilege; Upjohn won’t save communications with non-agents. Pre-indictment recordings by informants typically do not trigger Sixth Amendment protections, so structure sensitive discussions accordingly. On multiplicity and double jeopardy post-Lora, convictions under Section 924(j) and the predicate offenses cannot both be punished; press the court—not the government—to exercise its discretion on which counts to vacate, emphasizing sentencing flexibility (e.g., Section 924(j)’s term-of-years option versus mandatory life under Section 1958/ Section 848).  If the government springs a late Rule 48(a) motion, promptly request a continuance and lodge on-the-record objections; defendant consent isn’t required post-trial, but the court must independently assess the proper dismissal and articulate its Section 3553(a) reasoning at sentencing. Finally, build a record on prejudice and taint early, but expect privilege claims to fail where a CI was an unaligned attendee.

United States v. Larremore, No. 24-50431, — F.4th —, 2025 WL 2355525 (5th Cir. Aug. 14, 2025)

(Chief Judge Elrod, Judge Engelhardt, Judge Guidry [E.D. Louisiana District Court Judge, Sitting by Designation]) (from W.D. Texas):  

Issues: Criminal Immigration, Fourth Amendment, Suppression, Traffic Stop, Terry Stop.

The Fifth Circuit addressed the denial of a motion to suppress evidence obtained during a traffic stop that led to the discovery of undocumented immigrants concealed in a horse trailer. The case provides a detailed analysis of Fourth Amendment jurisprudence, particularly the distinction between consensual encounters and seizures, the requirements for reasonable suspicion, and the application of the “fruit of the poisonous tree” doctrine. The majority opinion, authored by District Judge Guidry, sitting by designation, affirmed the district court’s denial of suppression, while Chief Judge Elrod dissented in part, arguing that a seizure occurred earlier than the majority found and that the evidence should have been suppressed.

Factual Background

On July 9, 2023, Brewster County Deputy Christopher Colona was stationed on a remote stretch of U.S. Highway 385, near a border patrol checkpoint that was not continuously manned and was known to be exploited by smugglers during shift changes. Deputy Colona observed a white pickup truck, driven by James Eric Larremore, towing a horse trailer with both open and enclosed compartments. Colona recognized both the vehicle and Larremore, having previously received a tip implicating Larremore in smuggling activities. Colona followed Larremore for a short distance; Larremore then pulled over to the shoulder of the highway without any directive from Colona, who did not activate his lights or siren.

Colona parked behind Larremore and approached the passenger side of the truck. The initial interaction was cordial, with Colona greeting Larremore and inquiring about his activities. During this exchange, Colona noticed an open alcohol container in plain view inside the truck. Colona then told Larremore to “hang on a sec” while he purportedly intended to radio his location for officer safety. However, before Colona could do so, Larremore exited his vehicle and met Colona on the shoulder. Colona observed a padlock on the trailer’s enclosed compartment and questioned Larremore about its contents and the key. Larremore gave inconsistent answers, claiming the compartment contained saddles, that he did not have the key, and that his girlfriend—whose name he struggled to recall—had locked it.

Colona expressed his suspicion that Larremore was smuggling contraband and asked to look inside the trailer, suggesting he could cut the lock. Larremore’s responses were equivocal; he initially acquiesced but then hesitated, asking about the consequences of refusing consent and asserting his rights. After a protracted exchange, Larremore ultimately refused consent. Colona then stated he had probable cause to search the truck due to the open alcohol container and asked if the key to the trailer was inside. At this point, Larremore confessed that there were “three cousins” in the trailer and produced the key, which had been hidden. The compartment was opened, revealing three undocumented immigrants. The entire encounter was recorded on Colona’s dash and body cameras.

Procedural History

Larremore was charged with two counts of transporting illegal aliens under 8 U.S.C. § 1324. He moved to suppress the evidence, arguing that he was seized without reasonable suspicion and that the search was unlawful. The district court denied the motion, finding that Larremore had been seized with reasonable suspicion and that his consent to search attenuated any taint from a purported trespassory search. Larremore entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and was sentenced to 37 months’ imprisonment.

Majority Opinion: No Fourth Amendment Violation

The Fifth Circuit affirmed, holding that there was no Fourth Amendment violation. The court’s analysis is structured around three main issues: (1) the timing and nature of the seizure, (2) the existence of reasonable suspicion, and (3) whether a trespassory search occurred.

1. Timing and Nature of the Seizure

The Court first addressed when, if at all, Larremore was seized for Fourth Amendment purposes. The majority rejected Larremore’s arguments that he was seized when Colona followed him onto the shoulder, when Colona rested his hand on the truck, or when Colona said “hang on a sec.”  The Court emphasized that a seizure requires either physical force with intent to restrain or a sufficient show of authority to which the individual submits. Merely following a vehicle on a public highway, without activating emergency lights or issuing commands, does not constitute a seizure. The Court analogized to Supreme Court precedent holding that police observation in public is not inherently coercive.

Colona’s brief physical contact with the truck—resting his hand on the window frame during a handshake—was deemed de minimis and not indicative of an intent to restrain. The Court also found that Colona’s statement to “hang on a sec” was made in a casual tone, was not repeated, and did not amount to a command. The totality of the circumstances, including the absence of multiple officers, lack of weapon display, and the non-authoritative tone, supported the conclusion that the encounter remained consensual at that point.

The majority found that a seizure occurred only when Colona communicated his suspicion of smuggling and stated that he wanted to look inside the trailer. At that juncture, a reasonable person would not have felt free to leave, transforming the encounter into a Terry stop requiring reasonable suspicion.

2. Reasonable Suspicion for the Terry Stop

The Court held that Colona had reasonable suspicion to justify the Terry stop. Reasonable suspicion is based on specific, articulable facts suggesting that a person is, was, or will be engaged in criminal activity. The Court considered the totality of the circumstances, including the location (a known smuggling route near a border checkpoint during a shift change), the tip implicating Larremore, and Larremore’s inconsistent and suspicious answers regarding the trailer and its contents. The Court noted that inconsistent or nonsensical explanations, especially on a highway known for smuggling, can support reasonable suspicion.

Larremore’s claim that he was selling a trailer with a locked compartment containing saddles to which he had no key, his inability to recall his girlfriend’s name, and his assertion that he had just delivered a horse in a distant border town all contributed to Colona’s suspicion.  The Court found that these factors, viewed collectively, justified the brief investigative detention.

The Court further held that the scope and duration of the Terry stop were reasonable. Colona’s questioning was permissible, and any delay was attributable to Larremore’s own equivocation and stalling. The Court emphasized that officers may ask about the purpose and itinerary of a trip and may extend questioning if the detainee’s conduct increases suspicion.

3. No Trespassory Search

Larremore argued that Colona’s physical contact with the truck constituted a trespassory search under United States v. Jones, 565 U.S. 400 (2012) and that the subsequent discovery of the open alcohol container was the fruit of that unlawful search. The Court rejected this argument, holding that mere incidental contact with the vehicle, not conjoined with an attempt to obtain information, does not amount to a search. The Court distinguished between investigatory purpose and incidental touching, finding that Colona’s actions were not aimed at discovering evidence but were part of a consensual interaction. The plain view discovery of the alcohol container was therefore lawful, and any evidence obtained thereafter was not subject to suppression.

Dissent: Early Seizure and Suppression Required

Chief Judge Elrod concurred in the majority’s holding that no trespassory search occurred but dissented on the seizure issue. She argued that Larremore was seized as soon as Colona told him to “hang on one sec for me,” given the totality of the circumstances: Colona’s high-speed pursuit, close following, immediate approach and questioning, and physical positioning at the truck. Chief Judge Elrod emphasized that even brief interference with an individual’s freedom of movement can constitute a seizure, and that Colona’s directive, in context, would have communicated to a reasonable person that he was not free to leave.

Chief Judge Elrod noted that Colona himself testified that a reasonable person in Larremore’s position would not have felt free to leave after being told to “hang on.”  She also pointed out that Colona never actually radioed his location, instead immediately resuming investigatory questioning. Chief Judge Elrod analogized to prior Fifth Circuit cases where similar directives and circumstances were found to constitute seizures. She concluded that, because Colona lacked reasonable suspicion at the moment of seizure, all evidence obtained thereafter—including Larremore’s confession and the discovery of the immigrants—was tainted and should have been suppressed under the fruit of the poisonous tree doctrine.

Practitioner Tips: Distinguish consensual encounters from seizures—mere following without lights/sirens and brief, non-authoritative phrases like “hang on a sec” may remain consensual in context, but note the dissent’s warning that such language can tip into a seizure. Build or attack reasonable suspicion with totality factors: known smuggling corridor and timing (checkpoint shift change), origin from a border town, and inconsistent or implausible travel explanations. Preserve and scrutinize dash/body-cam video; courts heavily weigh video when testimony conflicts. For plain-view issues, incidental touching of a vehicle without investigatory purpose is not a trespassory search; establish or rebut “investigatory purpose” carefully. On scope/duration, officers may broaden questioning as suspicion grows, and delays caused by the suspect won’t invalidate a Terry stop—document who caused any pause. Finally, be cautious with “consent” and equivocation; clarify, memorialize, and avoid implying compulsion, and for defense, leverage any commands or positioning that could be construed as a show of authority.

United States v. King, No. 24-30323, — F.4th —, 2025 WL 2371032 (5th Cir. Aug. 15, 2025)

(Judge Higginson, Judge Ho, Judge Wilson) (from E.D. Louisiana):

Issues: Sentencing, Firearm Offenses, Crime of Violence, Sentencing Guidelines, Oral Pronouncement of Supervised Release Conditions.

The Fifth Circuit analyzed several important sentencing issues arising from Tyree King’s convictions for being a felon in possession of a firearm and possession of a machinegun.

Background and Procedural Posture

Tyree King pled guilty, without a plea agreement, to violations of 18 U.S.C. §§ 922(g)(1) and 922(o), relating to firearm offenses. The presentence investigation report (PSR) calculated a base offense level of 22 under USSG § 2K2.1(a)(3), based on King’s prior Louisiana armed robbery conviction being classified as a “crime of violence” under Section 4B1.2(a). King did not object to the PSR at sentencing. On appeal, he challenged the use of his prior conviction as a predicate “crime of violence,” the district court’s handling of pre-sentence detention credit, and inconsistencies between the oral and written conditions of supervised release.

Standard of Review and Invited Error Doctrine

Because King failed to object contemporaneously to the Guidelines calculation, the Fifth Circuit reviewed for plain error. The Court reiterated the four-prong test for plain error: (1) error or defect, (2) clear or obvious legal error, (3) effect on substantial rights, and (4) discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.  The Court also addressed the government’s argument that King had invited the error by not objecting below, but found that King’s counsel’s conduct did not rise to the level of invited error, as he did not independently advocate for the higher Guidelines range.

Classification of Louisiana Armed Robbery as a “Crime of Violence”

The central issue was whether King’s prior Louisiana armed robbery conviction under La. R.S. 14:64 qualifies as a “crime of violence” for purposes of Section 2K2.1(a)(3). Section 4B1.2(a) defines “crime of violence” both by a force clause (requiring the use, attempted use, or threatened use of physical force) and by enumerated offenses, including “robbery.”  The Fifth Circuit applied the categorical approach, focusing on the statutory elements rather than the facts of King’s prior conviction.

King argued that, following the Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021), and the Fifth Circuit’s own decision in United States v. Garner, 28 F.4th 678 (5th Cir. 2022), Louisiana’s general intent crimes—such as armed robbery—could be committed with a mens rea of recklessness or negligence, and thus do not categorically qualify as crimes of violence.  In Garner, the Fifth Circuit held that aggravated assault with a firearm under Louisiana law was not a crime of violence because it could be committed with a reckless or negligent mental state.

However, the panel declined to extend Garner’s reasoning to armed robbery on plain error review. The Court noted that, post-Garner, it has been cautious about expanding that holding to other Louisiana general intent crimes absent clear state court authority demonstrating that the offense can be committed with less than knowing or intentional conduct. The Court cited State v. Smith, 23 So. 3d 291 (La. 2009), but the Fifth Circuit found that Smith did not definitively establish that armed robbery could be committed recklessly or negligently. As such, the court held that any error in classifying the prior conviction as a crime of violence was not “clear or obvious,” and thus failed the second prong of plain error review. The Court thus affirmed the district court’s calculation of the base offense level.

Pre-Sentence Detention Credit and Sentencing Intent

King also challenged the district court’s handling of pre-sentence detention credit, arguing that the court intended to give him credit for time served prior to sentencing, but the written judgment did not reflect this. The Fifth Circuit acknowledged that the oral pronouncement at sentencing indicated an intent to credit King for time served, but the record was ambiguous regarding the specifics of King’s custody status and whether the Bureau of Prisons (BOP) would apply such credit. The Court reiterated that while sentencing courts cannot order the BOP to credit time served, they retain authority to adjust sentences under USSG §§ 5G1.3(b) or 5K2.23 to account for undischarged terms of imprisonment related to relevant conduct. Given the ambiguity, the Court remanded for the district court to clarify its intent regarding pre-sentence detention credit.

Oral vs. Written Pronouncement of Supervised Release Conditions

Both parties agreed that two special conditions of supervised release in the written judgment conflicted with the oral pronouncement at sentencing. The Fifth Circuit reaffirmed that discretionary conditions of supervised release must be orally pronounced, and where there is a conflict, the oral pronouncement controls. The Court remanded for the written judgment to be conformed to the oral pronouncement.

Practitioner Tips: Object to the PSR’s “crime of violence” classification at sentencing to avoid plain-error review, and, for Louisiana offenses, marshal state cases showing the statute is actually applied with reckless/negligent mens rea if you want to extend Garner beyond its facts. Don’t rely on Louisiana’s statutory “crime of violence” list; do the force/enumerated-clause analysis. Create a clear record on custody status and time-served credits; if the court intends credit, ask for an express downward adjustment or variance under Sections 5G1.3(b) or 5K2.23, and clarify concurrency with any state revocation term. Always ensure discretionary supervised-release conditions are orally pronounced and that the written judgment matches the oral sentence—review and move to conform if it doesn’t. Finally, consider obtaining and filing BOP computation data early to confirm (and correct) credit assumptions.

United States v. Duffey, Ross, & Hewitt, No. 22-10265, — F.4th —, 2025 WL 2399387 (5th Cir. Aug. 19, 2025)

(Judge Southwick, Judge Englehardt, Judge Wilson) (per curiam) (from N.D. Texas):

Issues: First Step Act, Section 924(c), Re-Sentencing.

The Fifth Circuit, on remand from the Supreme Court, vacated the sentences of Corey Deyon Duffey, Jarvis Dupree Ross, and Tony R. Hewitt, and remanded for resentencing in accordance with the Supreme Court’s recent interpretation of Section 403 of the First Step Act. Previously, the Fifth Circuit had held that the Act’s revised penalties for first-time 18 U.S.C. § 924(c) offenders did not apply to post-enactment re-sentencings following vacatur of pre-Act sentences. However, the Supreme Court reversed, holding that all first-time Section 924(c) offenders who are resentenced after the Act’s enactment—including those whose original sentences were vacated—are entitled to the Act’s more lenient penalties. The Fifth Circuit directed the district court to resentence the appellants consistent with this holding, while leaving unaffected its prior rulings on other sentencing enhancements and jurisdictional issues.

Practitioner Tips: On resentencing after vacatur, practitioners should insist that first-time Section 924(c) counts receive the First Step Act Section 403’s non-stacking penalties, and build the record showing “first-time offender” status and that sentencing occurs post-Act. It is important to revisit plea and sentencing strategies in legacy cases, as a vacatur now meaningfully lowers exposure on multiple Section 924(c) counts. Prompt resentencing briefs should be filed recalculating guidelines and statutory minimums, and restitution and supervised-release positions should be updated accordingly. They should preserve and brief any guideline disputes unaffected by the Supreme Court ruling, but note that a Section 2B3.1(b)(4)(B) “physical restraint” enhancement remains viable per the prior, unaffected Fifth Circuit holdings. Resentencing should not be treated as a vehicle to collaterally attack underlying convictions; jurisdictional limits must be respected and the proper procedural avenues (such as Section 2255) should be used for conviction challenges. Finally, seek expedited scheduling and amended judgments to capture custodial credit changes from the vacated sentences.

United States v. Clark, No. 24-60531, — F.4th —, 2025 WL 2417117 (5th Cir. Aug. 21, 2025)

(Judge King, Judge Smith, Judge Douglas) (from S.D. Mississippi):

Issues: Bruen, Felon in Possession, Second Amendment, Firearms, Equal Protection, Commerce Clause.

The Fifth Circuit’s decision here reaffirmed the constitutionality of 18 U.S.C. § 922(g)(1) as applied to individuals convicted of violent felonies and those found in possession of firearms while on probation, in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022).  The case involved Ernest Quintez Clark, who, while on probation for a Louisiana felony conviction of aggravated assault with a firearm, was found in possession of a firearm. Clark pled guilty to violating Section 922(g)(1), which prohibits firearm possession by individuals convicted of crimes punishable by more than one year of imprisonment. On appeal, Clark challenged the statute’s constitutionality under the Second Amendment, raised an equal protection claim under the Fifth Amendment, and asserted a Commerce Clause argument.

Clark’s plea agreement included a waiver of his right to appeal the conviction and sentence on any ground, except for a direct appeal of the district court’s order denying his motion to dismiss under Bruen. The Fifth Circuit, therefore, limited its review to Clark’s as-applied Second Amendment challenge and briefly addressed his equal protection claim, which it found to be waived and, in any event, foreclosed by precedent.

The Court began its analysis by reiterating the two-step framework for Second Amendment challenges post-Bruen: first, determining whether the conduct at issue is covered by the Second Amendment’s plain text, and second, if so, whether the government can demonstrate that the regulation is consistent with the nation’s historical tradition of firearm regulation.  The Court emphasized that while the Second Amendment protects an individual right to keep and bear arms, this right is not unlimited. Historical tradition supports Congress’s authority to disarm certain groups, particularly those with a history of violence or criminality.

The Fifth Circuit identified three categories of offenses that defeat as-applied challenges to Section 922(g)(1): theft, violence, and violations of release conditions by possessing firearms while on parole or probation. Clark’s predicate offense—aggravated assault with a firearm—squarely fell within the “violence” category. The Court relied on recent Fifth Circuit precedents, including United States v. Bullock, 123 F.4th 183 (5th Cir. 2024); United States v. Isaac, No. 24-50112, 2024 WL 4835243 (5th Cir. Nov. 20, 2024); and United States v. Schnur, 132 F.4th 863 (5th Cir. 2025), all of which upheld the constitutionality of Section 922(g)(1) as applied to defendants with violent felony convictions.  In Bullock, the court found that historical analogues supported disarmament of individuals with a history of dangerous and violent crimes, including aggravated assault with a firearm. Similarly, Isaac and Schnur confirmed that bans on firearm possession by those convicted of violent felonies are consistent with the nation’s historical tradition.

Clark attempted to distinguish his case by arguing that the record did not establish the specific facts underlying his aggravated assault conviction, suggesting that his conduct may have amounted only to negligent discharge of a firearm. The Court rejected this argument, noting that even negligent aggravated assault with a firearm falls within the tradition of disarming those who menace others or disrupt public order with firearms. The Court further observed that if violent conduct without a firearm (as in Schnur) suffices to uphold disarmament, then violent conduct with a firearm, even if negligent, certainly does as well.

Additionally, the Court found that Clark’s possession of a firearm while on probation provided an independent basis for upholding his conviction. Citing United States v. Contreras, 125 F.4th 725 (5th Cir. 2025), the Court held that Section 922(g)(1) is constitutional as applied to individuals who possess firearms while on probation or supervised release, as this is consistent with historical practices of restricting firearm rights for those under criminal justice supervision.  The Court dismissed Clark’s contention that the government could not rely on his probation status on appeal, explaining that the Second Amendment analysis is a legal inquiry and that the record, including the presentence report, established his probation status without objection.

Turning to Clark’s Fifth Amendment equal protection challenge, the Court held that this claim was waived by the terms of his appeal waiver, which preserved only his as-applied Bruen challenge. Even if not waived, the Court noted that the claim was foreclosed by circuit precedent, specifically United States v. Goody, 143 F.4th 617 (5th Cir. 2025) and United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), both of which rejected equal protection challenges to Section 922(g)(1).

Practitioner Tips: In the Fifth Circuit, as-applied Bruen challenges to Section 922(g)(1) are effectively foreclosed for clients with violent predicates or who possessed a gun while on probation/supervision; tailor challenges to nonviolent, non-theft predicates with clean supervision status. Build a detailed record on the predicate offense’s facts; do not rely on “minimum conduct” arguments alone. Scrutinize and, if necessary, object to any PSR statements (e.g., probation status), as unobjected facts will be used on appeal. When negotiating plea agreements, draft carve-outs that expressly preserve all constitutional theories (not just “Bruen”) if you intend to raise equal protection or Commerce Clause claims; otherwise, they will be waived and are foreclosed in any event in this circuit. Expect the government to add historical/legal support on appeal. If defense success is unlikely, focus advocacy on sentencing rather than constitutional invalidation; if prosecuting, cite Bullock, Isaac, Schnur, and Contreras to defeat as-applied challenges.

Burgess v. Whang et al, No. 22-11172, — F.4th —, 2025 WL 2437490 (5th Cir. Aug. 25, 2025)

(Judge Wiener, Judge Douglas, Judge Ramirez) (from N.D. Texas):

Issues: Preliminary Injunction, FDIC Enforcement Actions, Subject-Matter Jurisdiction, Administrative Procedure Act, Removal Clause, Appointments Clause, Seventh Amendment.

The Fifth Circuit reversed a district court’s preliminary injunction that had halted the Federal Deposit Insurance Corporation’s enforcement proceeding against former Herring Bank chief executive Cornelius Burgess. Writing for a unanimous panel, Judge Wiener held that 12 U.S.C. § 1818(i)(1) unequivocally strips district courts of jurisdiction “to affect by injunction or otherwise the issuance or enforcement” of FDIC orders, save for the statute’s carefully enumerated exceptions. Because the district court lacked subject-matter jurisdiction from the outset, the Court of Appeals remanded with instructions to dismiss the case in its entirety, thereby obviating any need to reach substantive constitutional challenges Burgess had brought under the Removal and Appointments Clauses and the Seventh Amendment.

Procedural History in Administrative Court

The Court recounted the long and winding procedural path of this enforcement saga. The FDIC launched an investigation into Burgess in 2010, formally charged him in 2014, and in 2017 secured from its Administrative Law Judge a recommended decision removing him from his positions, barring him from the banking industry, and assessing a $200,000 civil money penalty. Burgess initially petitioned the Fifth Circuit for review of that final order under Section 1818(h)(2), obtaining a stay pending the Supreme Court’s decision in Lucia v. SEC, 585 U.S. 237 (2018). Following Lucia’s confirmation that ALJs are officers of the United States who must be constitutionally appointed, the Fifth Circuit remanded to the agency for a de novo hearing before a properly appointed ALJ. The FDIC assigned Administrative Law Judge Jennifer Whang, who—after pandemic-related delays—conducted a supplemental evidentiary hearing and in 2022 recommended the same relief the prior ALJ had proposed. At that juncture Burgess decamped to federal district court, filing a three-count complaint seeking to enjoin the FDIC Board from issuing any final order. He alleged that (i) the Board’s multi-member structure rendered its members unconstitutionally insulated from presidential removal; (ii) FDIC ALJs enjoy similarly impermissible tenure protections; and (iii) the administrative forum deprived him of his Seventh Amendment right to a jury trial.

District Court’s Injunction

The district court convinced it had jurisdiction despite Section 1818(i)(1)’s facial prohibition, entered a sweeping preliminary injunction blocking the Board from acting. Relying heavily on Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 461 (1977)-style Seventh Amendment analysis, it concluded Burgess was likely to succeed in showing that adjudication of fraud claims seeking monetary penalties must proceed in an Article III court with a jury.  On Burgess’s dual removal-restriction theories, the district court acknowledged merit but denied preliminary relief under Collins v. Yellen, 594 U.S. 220, 260 (2021), because Burgess had not shown a causal nexus between the alleged infirmities and any concrete harm. The FDIC appealed the injunction; Burgess cross-appealed the refusal to enjoin on his removal theories.

The Fifth Circuit Found the District Court Lacked Subject-Matter Jurisdiction

The Fifth Circuit framed the sole appellate issue it considered fully as one of subject-matter jurisdiction, not constitutional merits. It emphasized that Section 1818 establishes an intentionally comprehensive and reticulated review scheme. Enforcement actions commence before an ALJ operating under the APA and FDIC procedural rules. Parties may appeal the Board’s final decision exclusively to the D.C. Circuit or the circuit “where the bank’s home office is located” within thirty days. Parallel district-court jurisdiction exists only in discrete, time-limited contexts—e.g., challenges to temporary suspensions, temporary cease-and-desist orders, removal suspensions, subpoena enforcement, or Board applications to enforce outstanding orders. Outside those narrow pockets, Congress expressly barred courts from interfering while an FDIC action is pending.

Turning to the operative text, the panel highlighted the clause: “but except as otherwise provided in this section . . . no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order . . . or to review, modify, suspend, terminate, or set aside any such notice or order.”  The opinion characterizes that language as the paradigmatic example of explicit jurisdictional preclusion. Contrasting implicit-preclusion analysis under Thunder Basin Coal Co. v. Reich, 510 U.S. 200, (1994) with explicit language, the Court explained that where Congress has legislated with such clarity, a district court’s role is foreclosed ab initio. The panel acknowledged that in Bank of Louisiana v. FDIC, 919 F.3d 916, 923 (5th Cir. 2019), it had walked through Thunder Basin’s three factors notwithstanding Section 1818(i)(1)’s clarity, but stressed that Bank of Louisiana itself recognized the “temptation” to stop at express preclusion and employed Thunder Basin only as belt-and-suspenders reinforcement.  Addressing its more recent en banc precedent in Cochran v. SEC, 20 F.4th 194, 200 (5th Cir. 2021) (en banc) and the Supreme Court’s affirmance in Axon Enter., Inc. v. FTC, 598 U.S. 175 (2023), the Court said Cochran merely clarified that Bank of Louisiana turned on explicit statutory text not present in the Exchange Act; therefore, Cochran poses no obstacle to straightforward application of Section 1818(i)(1) here.

Burgess invoked Webster v. Doe, 486 U.S. 592 (1988) for the proposition that constitutional claims survive unless Congress unmistakably forecloses judicial review, arguing that Section 1818(i)(1)’s language, while broad, did not explicitly mention constitutional challenges. The Fifth Circuit rejected that reading as incompatible with later Supreme Court decisions. In Elgin v. Dep’t of Treasury, 567 U.S. 1, 25 (2012), the Court clarified that Webster’s heightened clear-statement rule applies only where a statute purports to deny any judicial forum for constitutional claims, whereas Section 1818 merely channels those claims to the courts of appeals through Section 1818(h)(2).  Recent Fifth Circuit authority, Zummer v. Sallet, 37 F.4th 996 (5th Cir. 2022) likewise declined to extend Webster outside its narrow domain. Consequently, lawyers cannot rely on Webster to carve out a free-floating district-court exception for structural challenges when Congress has provided a specific, albeit deferred, avenue for judicial review.

The panel next addressed two intra-circuit strands that might seem in tension with its holding: FDIC v. Bank of Coushatta, 930 F.2d 1122 (5th Cir. 1991) and Collins v. Treasury, 83 F.4th 970 (5th Cir. 2023). In Coushatta, the Court had permitted a due-process challenge to proceed in district court in the context of an FDIC suit to enforce a capital directive—an instance expressly permitted by the first clause of Section 1818(i)(1). The Burgess panel explained that Coushatta dealt with APA reviewability under Section 701(a)(2), not jurisdictional preclusion; the FDIC itself had invoked district-court jurisdiction. Accordingly, Coushatta offers no precedent for private parties seeking to enjoin an unissued order. Collins, which noted in dicta that Section 1818(i) did not bar constitutional claims, likewise did not undermine Bank of Louisiana because Collins involved the Housing and Economic Recovery Act’s anti-injunction clause, not Section 1818, and its footnoted observation was nonbinding dicta. Under the rule of orderliness, a later panel cannot override Bank of Louisiana, and Cochran’s en banc clarification buttresses the conclusion that Section 1818(i)(1) is dispositive.

Having resolved the jurisdictional question, the Court found it unnecessary to evaluate whether Burgess’s removal-protection theory survives Collins, whether his Seventh Amendment argument harmonizes with Atlas Roofing and its progeny, or whether the FDIC’s internal procedures comport with modern non-delegation and Due Process norms. All such arguments must await petition for review of the Board’s final order in the Fifth Circuit (or D.C. Circuit). The opinion demonstrates that Congress deliberately placed the district courts out of the business of interlocutory interference with ongoing FDIC adjudications; any constitutional grievances are to be raised after the agency’s decision has crystallized.

Practitioner Tips:

1. Section 1818(i)(1) is now cemented—at least within the Fifth Circuit—as an explicit, jurisdiction-stripping provision that precludes district-court actions by investigated parties seeking to halt, delay, or collaterally attack pending FDIC proceedings, even on structural constitutional grounds. Litigants must channel such challenges through the statutory review scheme, appealing to the appropriate court of appeals once the Board issues a final order.
2. When framing defensive strategies in FDIC cases, respondents should recognize that district-court windows exist only where the statute itself confers them: challenges to temporary suspensions, temporary cease-and-desist orders, and applications for stays-of-removal-from-office orders, all within tight filing deadlines. Outside those windows, litigants attempting to skirt the administrative process risk immediate dismissal.
3. The Fifth Circuit has signaled that Webster v. Doe’s clear-statement principle is narrowed by Elgin and subsequent precedent; it will not rescue district-court jurisdiction where Congress has channeled review elsewhere. Counsel contemplating collateral attacks should instead focus on preserving constitutional issues in the administrative record to ensure they are properly before the court of appeals on statutory petitions.
4. The Court’s reliance on Supreme Court dicta identifying Section 1818 as a model of explicit preclusion hints that other regulatory regimes lacking such clarity will continue to be litigated under Thunder Basin, whereas Section 1818’s text is so forceful that courts may bypass the Thunder Basin inquiry altogether. Counsel should therefore distinguish between “explicit” and “implicit” regimes when advising clients.
5. Although the panel did not address the Seventh Amendment merits, its willingness to dispose of the case jurisdictionally suggests that district courts will rarely entertain arguments that FDIC adjudication contravenes the right to a jury unless Congress has expressly furnished an exception. Lawyers seeking to push such constitutional theories must be prepared to litigate them, in the first instance, before the agency and thereafter in the court of appeals.
6. Similarly, the opinion leaves unresolved whether the Board’s or ALJs’ removal protections violate the separation of powers. While Collins imposes a demanding causation hurdle for retrospective relief, the Fifth Circuit did not foreclose prospective relief once jurisdiction is properly invoked. Expect petitioners to argue on direct review that dual-layer removal restrictions are invalid and that, unlike the FHFA context of Collins, FDIC enforcement decisions are not insulated from corrective review or set-aside relief.

National Association of Private Fund Managers et al v. Securities and Exchange Commission, No. 23-60626, — F.4th —, 2025 WL 2434051 (5th Cir. Aug. 25, 2025)

(Judge Wilson, Judge Douglas, Judge Vitter [E.D. Louisiana District Court Judge, Sitting by Designation]) (from SEC Commission):

Issues: Securities Laws, Securities Lending Rule, Short-Sale Rule, Administrative Rulemaking Authority, Administrative Procedure Act, Exchange Act.

Introduction and Procedural Background

The Fifth Circuit reviewed challenges to two rules promulgated by the Securities and Exchange Commission (SEC) aimed at increasing transparency in the securities lending and short sale markets. The petitioners—comprising the National Association of Private Fund Managers, Managed Funds Association, and Alternative Investment Management Association—contested the validity of these rules on several grounds, including statutory authority, procedural adequacy, and the sufficiency of the SEC’s economic impact analysis. The Court granted the petition for review in part, remanding the rules to the SEC for further proceedings, specifically to address the cumulative economic impact of the rules as required by the governing statutes.

Overview of the Rules and Statutory Authority

The two rules at issue are the Reporting of Securities Loans Rule (the “Securities Lending Rule”), codified at 17 C.F.R. § 240.10c-1a, and the Short Position and Short Activity Reporting by Institutional Investment Managers Rule (the “Short Sale Rule”), codified at 17 C.F.R. § 240.13f-2.  Both rules were adopted pursuant to rulemaking authority granted to the SEC by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”), which amended the Securities Exchange Act of 1934.

Section 984(b) of Dodd-Frank, codified as a note to 15 U.S.C. § 78j, authorizes the SEC to promulgate rules “designed to increase the transparency of information available to brokers, dealers, and investors, with respect to the loan or borrowing of securities.”  Section 929X, codified at 15 U.S.C. § 78m(f)(2), grants the SEC authority to require public disclosure of short sale data, including the name of the issuer, title, class, CUSIP number, aggregate amount of short sales, and any additional information determined by the Commission, with a minimum disclosure frequency of every month.

Market Context and Rationale for Rulemaking

Securities lending involves the temporary transfer of securities from a lender to a borrower for a fee, and is integral to the short sale market, which itself is a critical component of modern securities markets. Short sales occur when an investor sells a security not owned, anticipating a price decline, and must borrow the security to deliver it. The SEC and some market participants have characterized the securities lending market as opaque, with limited public information, complicating regulatory oversight and market efficiency. The short sale market is similarly opaque and susceptible to abusive practices such as “short and distort” and “naked” short selling.

In response to these perceived gaps, the SEC sought to enhance transparency in both markets. The Securities Lending Rule requires certain parties to report the material terms of each covered securities loan to the Financial Industry Regulatory Authority (FINRA), which then makes specified aggregated information publicly available. The Short Sale Rule requires institutional investment managers to report and publish short sale data on an aggregate, monthly basis through the SEC’s EDGAR system.

Rulemaking Process and Final Rule Provisions

The SEC proposed the Securities Lending Rule in November 2021, with a comment period through January 2022. The proposed rule required reporting of securities loan transactions to FINRA within fifteen minutes of execution, with prompt publication of transaction-level data. The Short Sale Rule was proposed in February 2022, applying to institutional investment managers and requiring monthly reporting of short sale data via EDGAR. The SEC reopened the comment period for the Securities Lending Rule to allow for consideration of the interplay between the two rules.

The final Securities Lending Rule extended the reporting timeframe to the end of the day and delayed publication of loan size information by twenty business days. The final Short Sale Rule was adopted largely as proposed. Both rules were adopted on the same day in October 2023.

Petitioners’ Challenges

The petitioners advanced several arguments against the rules, both individually and collectively:

• Statutory Authority: Petitioners argued that the Securities Lending Rule exceeded the SEC’s statutory authority, contending that Section 929X’s requirements for short sale disclosures should also govern securities lending disclosures, effectively limiting the SEC to monthly, aggregate reporting.
• Procedural Adequacy: They asserted that the SEC failed to provide adequate opportunity for public comment, particularly regarding the twenty-day delay for loan size data in the final Securities Lending Rule.
• Arbitrary and Capricious Action: Petitioners claimed that the rules were arbitrary and capricious because the disclosures required by the Securities Lending Rule would reveal information the Short Sale Rule sought to protect, and because the SEC failed to consider the cumulative economic impact of the two rules.
• Reporting Infrastructure: With respect to the Short Sale Rule, petitioners argued that the SEC failed to justify its decision to use the EDGAR system instead of FINRA’s existing infrastructure, which they claimed would be less burdensome.
• Extraterritorial Application: Petitioners contended that the Short Sale Rule impermissibly applied to foreign transactions.

Court’s Analysis and Holdings

A. Statutory Authority

The Court rejected the argument that the SEC exceeded its statutory authority in promulgating the Securities Lending Rule. The Court found that Section 984(b) of Dodd-Frank expressly authorizes the SEC to increase transparency in securities lending, and that nothing in Section 929X limits this authority. The Court emphasized that the two provisions are separate delegations of rulemaking authority, with Section 984(b) addressing securities lending and Section 929X addressing short sales. The Court also noted that the reporting frequency specified in Section 929X is a minimum, not a maximum, and does not preclude more frequent disclosures.

B. Procedural Adequacy

The Court found that the SEC satisfied the notice-and-comment requirements of the Administrative Procedure Act (APA). The final Securities Lending Rule’s twenty-day delay for loan size data was a logical outgrowth of the proposed rule, and the SEC had solicited and considered public comments on the timing of data reporting and publication. The Court concluded that the SEC provided adequate opportunity for meaningful public comment.

C. Arbitrary and Capricious Review

The Court applied the arbitrary-and-capricious standard under the APA, which requires agencies to examine relevant data and articulate a rational connection between the facts found and the choices made. The Court also noted the SEC’s unique obligation under the Exchange Act to consider the effect of new rules on efficiency, competition, and capital formation, and to apprise itself and the public of the economic consequences of proposed regulations.

• Interplay Between the Rules: The Court acknowledged the significant overlap between securities lending and short sale data, but found that the data required to be reported under each rule are not direct proxies for each other. While short selling is a primary reason for securities loans, loans are also used for hedging, closing positions, and obtaining collateral. The SEC had adequately considered the related nature of the data and justified its choices regarding transparency and protection of proprietary information.
• Reporting Infrastructure: The Court found that the SEC reasonably considered and explained its decision to use the EDGAR system for the Short Sale Rule, noting that FINRA’s system would not cover all users subject to the rule and would not provide the desired level of transparency. The SEC also addressed concerns about cybersecurity risks associated with EDGAR.
• Extraterritorial Application: The Court rejected the argument that the Short Sale Rule had impermissible extraterritorial reach. The rule applies only to equity securities subject to Regulation SHO, which covers securities traded in the United States. The Court found no evidence that the rule extended to foreign transactions.

D. Cumulative Economic Impact Analysis

The Court agreed with petitioners that the SEC failed to consider and quantify the cumulative economic impact of the two rules, as required by the APA and the Exchange Act. The SEC’s practice is to analyze the incremental benefits and costs of each rule compared to a baseline that includes existing regulatory requirements. In this case, the SEC adopted the Securities Lending Rule and the Short Sale Rule during the same meeting but only considered the economic impact of the first-adopted rule (Securities Lending Rule) in the analysis of the second (Short Sale Rule), not vice versa.

The Court found this approach insufficient, given the close temporal proximity and significant interplay between the rules. The SEC’s rationale that the Short Sale Rule was only a proposed rule at the time the Securities Lending Rule was adopted was unpersuasive, as both rules were adopted concurrently. The Court emphasized that agencies must consider the cumulative impact of related rules adopted together, and that the SEC’s failure to do so in this case rendered the rules insufficiently explained and unjustified under the APA and the Exchange Act.

The Court also noted that the SEC’s approach was inconsistent with its prior practice of treating related rules as adopted concurrently and factoring them into each other’s economic analysis. The Court cited examples such as the adoption of Regulation Best Interest and Form CRS, where the SEC analyzed the joint costs and benefits of the rules.

Remedy and Conclusion

The Court granted the petition for review in part and remanded both the Securities Lending Rule and the Short Sale Rule to the SEC for further proceedings. Specifically, the SEC was directed to consider and quantify the cumulative economic impact of the rules and to respond to further comments in light of that analysis. The Court otherwise denied the petition for review, upholding the rules against the other challenges.

The Court emphasized the limited nature of its holding, clarifying that it was not establishing a general rule requiring cumulative economic impact analyses in all cases involving multiple proposed rules. Rather, the unique circumstances of this case—concurrent adoption of highly interrelated rules—required such an analysis.

Practitioner Tips: This decision underlines the importance of rigorous economic impact analysis in the rulemaking process, particularly when agencies adopt multiple, interrelated rules in close temporal proximity. Attorneys advising clients subject to SEC regulation should be attentive to the procedural and substantive requirements imposed by the APA and the Exchange Act, including the need for agencies to consider the cumulative effects of their regulatory actions.

The Court’s analysis also highlights the limits of statutory interpretation in the context of overlapping regulatory authority, reaffirming that separate statutory provisions should be given independent effect unless Congress clearly indicates otherwise. They should be mindful of the distinctions between different sources of rulemaking authority and the implications for regulatory compliance.

Finally, the decision illustrates the role of judicial review in ensuring that agencies do not circumvent their obligations to consider the full economic consequences of their actions, particularly when those actions have significant and overlapping effects on regulated parties. The remand to the SEC provides an opportunity for further engagement by stakeholders.

United States v. Humbles, No. 24-30364, — F.4th —, 2025 WL 2450726 (5th Cir. Aug. 26, 2025)

(Judge Stewart, Judge Stewart, Judge Wilson) (from E.D. Louisiana):

Issues: Felon in Possession of a Firearm, Sentencing, Downward Departure, Variance, Sentencing Enhancements, Competency, Guidelines Cross-Reference.

The Fifth Circuit addressed a complex sentencing appeal following Reginald Humbles’s conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The case presents a multifaceted analysis of the Sentencing Guidelines, the application of cross-referencing to the robbery guideline, the denial of downward departures and variances, the imposition of enhancements for reckless endangerment, and the inclusion of an uncounseled-by-an-attorney misdemeanor DUI conviction in the defendant’s criminal history.  The Court ultimately affirmed the district court’s judgment.

Factual and Procedural Background

Reginald Humbles, a U.S. Army veteran, was arrested after a series of events that began with his release from a psychiatric hold. According to the record, Humbles, suffering from bipolar disorder with psychotic features, believed he received a divine message instructing him to take a waste disposal truck in New Orleans. He brandished a firearm to take the truck, leading to a police chase that ended with his arrest and the recovery of a loaded .22 caliber revolver. Humbles was indicted on a single count of being a felon in possession of a firearm. After initially pleading not guilty, he retained a psychiatric expert, Dr. Sarah DeLand, who opined that Humbles was suffering from active psychosis at the time of the offense and could not distinguish right from wrong. Nevertheless, Humbles ultimately pled guilty, expressly waiving any insanity defense as to the felon-in-possession charge, though his counsel reserved the right to raise mental health issues at sentencing.

The presentence investigation report (PSR) calculated Humbles’s total offense level by cross-referencing the robbery guideline under USSG § 2B3.1, applying enhancements for brandishing a firearm and reckless endangerment, and including a reduction for acceptance of responsibility. Humbles’s criminal history category was calculated as V, in part due to a prior uncounseled-by-an-attorney misdemeanor DUI conviction in Oklahoma. The resulting Guidelines range was 92 to 115 months, and the district court imposed a sentence at the low end of that range.

Issues on Appeal

Humbles raised five principal issues on appeal: (1) whether the district court erred in cross-referencing the robbery guideline; (2) whether the court erred in denying his motion for a downward departure and variance based on mental health and military service; (3) whether the court erred in applying a two-level enhancement for reckless endangerment; (4) whether the inclusion of his uncounseled-by-an-attorney DUI conviction in his criminal history was improper; and (5) whether the case should be reassigned to a different judge on remand.

Legal Standards and Appellate Review

Throughout its opinion, the Fifth Circuit articulated the applicable standards of review. The Court reviews the district court’s interpretation of the Sentencing Guidelines de novo and its factual findings for clear error.  Substantive reasonableness of a sentence is reviewed for abuse of discretion, with a presumption of reasonableness for within-Guidelines sentences. The Court also reiterated that it lacks jurisdiction to review the denial of a downward departure unless the district court mistakenly believed it lacked authority to depart.

Cross-Reference to the Robbery Guideline

The central issue concerned the district court’s application of the cross-reference provision in USSG § 2K2.1(c)(1), which directs courts to apply the offense level for another offense (here, robbery) if the defendant used or possessed a firearm in connection with that offense and the resulting offense level is greater.  Humbles argued that, because he was legally insane at the time of the robbery, the cross-reference should not apply. The Fifth Circuit, assuming arguendo that the insanity defense could apply to a cross-referenced offense, held that Humbles failed to meet his burden of proving legal insanity. The Court emphasized that the insanity defense requires a showing that, at the time of the offense, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts. While Dr. DeLand’s report supported the presence of psychosis, the Court found that the totality of the evidence—including Humbles’s conduct, statements, and interactions with the truck driver and police—demonstrated that he understood the wrongfulness of his actions. The Court noted that Humbles hesitated before taking the truck, asked God what would happen if he did so, apologized to the driver, anticipated being chased, and asked the arresting officer for forgiveness. These facts, the Court concluded, undermined the assertion that Humbles was legally insane as to the robbery. Accordingly, the district court did not err in applying the cross-reference to the robbery guideline.

Denial of Downward Departure and Variance

Humbles also challenged the district court’s denial of his motion for a downward departure under USSG § 5K2.13 (diminished capacity) and for a downward variance under 18 U.S.C. § 3553(a). The Fifth Circuit reiterated that it lacks jurisdiction to review the denial of a downward departure unless the district court mistakenly believed it lacked authority to depart. Here, the district court denied the departure on the merits, finding that the facts did not support a departure given the violent nature of the offense and the need to protect the public. The Court also found that Humbles’s mental health issues did not warrant a variance, particularly in light of the simultaneous commission of the felon-in-possession and robbery offenses. The Fifth Circuit found no abuse of discretion, noting that the district court considered the relevant Section 3553(a) factors, including the nature and circumstances of the offense, the need to protect the public, and Humbles’s personal history and characteristics. The within-Guidelines sentence was therefore entitled to a presumption of reasonableness, which Humbles failed to rebut.

Enhancement for Reckless Endangerment

The district court applied a two-level enhancement under USSG § 3C1.2 for reckless endangerment during flight. Humbles argued that his conduct did not rise to the level of reckless endangerment, as he did not speed or otherwise engage in conduct as egregious as in other cases where the enhancement was upheld. The Fifth Circuit disagreed, emphasizing that the enhancement does not require high-speed chases or actual harm, but only that the defendant’s conduct created a substantial risk of death or serious bodily injury and grossly deviated from the standard of care. The Court found that Humbles’s actions—fleeing police for 45 minutes, dragging a hose and fence under the truck, driving without headlights, and requiring the deployment of spike strips—created substantial risks to officers and the public. Court distinguished cases involving mere flight and found no clear error in the district court’s factual findings.

Inclusion of Uncounseled-by-an-Attorney Misdemeanor DUI Conviction

Humbles’s criminal history included a prior Oklahoma misdemeanor DUI conviction for which he was not represented by counsel. He argued that the conviction should not have been counted because he did not knowingly waive his right to counsel. The Fifth Circuit explained that, under Oklahoma law, the burden is on the defendant to show that he did not waive his right to counsel. The record, including the minute entry from the Oklahoma court, indicated that Humbles was aware of his rights and chose to proceed pro se. The court also considered Humbles’s age, education, prior experience with the criminal justice system, and the straightforward nature of the DUI charge, all of which supported the conclusion that his waiver was knowing and voluntary. Accordingly, the district court did not err in including the conviction in Humbles’s criminal history.

Request for Reassignment on Remand

Finally, Humbles requested that the case be reassigned to a different judge on remand, citing the district court’s statements regarding his mental capacity. The Fifth Circuit found this issue moot, as it affirmed the district court’s judgment and thus no remand was necessary.

Practitioner Tips: Focus early on the Guidelines cross-reference: if the PSR uses Section 2K2.1(c) to reach Section 2B3.1, you must both preserve specific objections and marshal evidence that negates elements of the “other offense” (here, insanity required proof the client could not appreciate wrongfulness; expert opinions must fit the facts).  For diminished-capacity relief (Section 5K2.13) and variances, build a record addressing the public-protection bar when there’s brandishing or flight, and remember denials of departures are generally unreviewable absent a mistaken belief about authority. On Section 3C1.2, expect a broad reading—prolonged flight, equipment dragging, and ignored commands can suffice without high speeds or actual harm—so contest awareness of risk with concrete facts. For uncounseled-by-an-attorney misdemeanors adding criminal history, state law controls the burden; obtain transcripts or minute entries and be ready to prove the waiver was not knowing, voluntary, and intelligent. Finally, within-Guidelines sentences carry a strong presumption; tailor Section 3553(a) arguments to concrete mitigation and victim/public-safety impacts, and don’t rely on reassignment unless you’re already securing a remand.

United States v. Peterson, No. 24-30043, — F.4th —, 2025 WL 2462665 (5th Cir. Aug 27, 2025)

(Chief Judge Elrod, Judge Higginbotham, Judge Southwick) (from E.D. Louisiana):

Issues: Bruen, Good Faith, Exclusionary Rule, Suppressors, National Firearms Act, Leon Good Faith Factors.

The Fifth Circuit’s published opinion in United States v. Peterson provides an analytically dense reaffirmation of two federal doctrines that have acquired heightened salience after the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022): (1) the continuing, though rebuttable, presumption of constitutionality that attaches to “shall-issue” firearms-licensing regimes, and (2) the resilience of the good-faith exception to the Fourth Amendment’s exclusionary rule.  The panel unanimously rejected defendant George Peterson’s twin pre-trial challenges: first, an as-applied Second Amendment attack on the National Firearms Act’s suppressor-registration provisions, and second, a Fourth Amendment motion to suppress the suppressor itself, which agents discovered while executing a warrant to search Peterson’s home-based firearms business.

Peterson’s troubles began after the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) undertook a months-long undercover investigation of his company, PDW Solutions, which he operated from his residence. The investigation documented multiple regulatory violations. On one occasion an undercover state deputy purchased two handguns that Peterson failed to report to the ATF despite the plain requirement of 27 C.F.R. § 478.126a.  On another, an ATF agent and a confidential informant arranged a straw purchase in which the informant, whom Peterson knew to be disqualified, financed the transaction. Compounding these omissions, Peterson had earlier represented on his federal-firearms-license application that he would conduct business only at gun shows and from a leased storage unit, yet the evidence demonstrated he was transacting directly from his home—an apparent false statement in violation of 18 U.S.C. § 1001(a)(3).  Armed with these facts, a magistrate judge issued a warrant authorizing a wide-ranging search of both Peterson’s residence and an attached outbuilding, including authority to seize firearms, records, and electronic devices. During the search, agents located an operational, self-manufactured suppressor in a bedroom-closet safe; the device bore no serial number and was absent from the National Firearms Registration and Transfer Record.

A grand jury returned a single-count indictment charging unlawful possession of an unregistered suppressor under 26 U.S.C. §§ 5841, 5861(d), and 5871. Peterson sought dismissal, contending that the NFA’s registration scheme impermissibly burdened his purported Second Amendment right to possess a suppressor, and he simultaneously moved to suppress the physical evidence, arguing the warrant affidavit was facially deficient. The district court denied both motions; Peterson then entered a conditional guilty plea reserving appellate review. He received a 24-month sentence and lodged a timely appeal.

The Fifth Circuit’s treatment of the Second Amendment claim is the crux of its opinion. Consistent with Bruen’s instruction, the panel applied the two-tiered framework that begins with textual coverage and, if satisfied, shifts to historical analogue. Without definitively deciding whether a suppressor is an “Arm” within the Second Amendment’s textual ambit—a question the Government conceded—the Court assumed coverage arguendo. Bruen had drawn a critical distinction between “may-issue” licensing regimes, which condition permit issuance on a discretionary showing of special need, and “shall-issue” regimes, which rest on objective criteria. Crucially, Bruen stated that shall-issue systems do “not necessarily” burden the right and are therefore presumptively constitutional, though subject to as-applied attacks alleging abusive administration such as exorbitant fees or excessive delays. That dicta, the Fifth Circuit emphasized, is binding under McRorey v. Garland, 99 F.4th 831 (5th Cir. 2024), which held that Bruen’s assurances fortify long-standing ancillary regulations like background checks.

Relying on statutory mechanics, the panel categorized the NFA’s suppressor-registration process as a paradigmatic shall-issue regime. The statute prescribes narrow, objective requirements: submission of an ATF Form 1 application, fingerprints, a photograph, a $200 tax payment, and verification that manufacture or possession would not contravene other laws. Denials occur only where the applicant’s status independently violates federal or state law; otherwise, the ATF “shall” approve. The Court emphasized that this mirrors the objective criteria Bruen and McRorey blessed—fingerprinting, background vetting, and payment of a fee—none of which empowers discretionary gate-keeping of the kind Bruen condemned.

Peterson’s as-applied challenge, the Court observed, was fatally under-developed.  He had never attempted to comply with the NFA, never remitted the $200 tax, and never introduced evidence regarding actual wait times or administrative burdens. His appellate briefing posited eight-month delays, but at oral argument counsel acknowledged a lack of record proof, whereas the Government represented current processing can be “a few days.”  Absent a factual predicate, Peterson could not show the NFA was “put toward abusive ends” by denying him practical access to suppressors. The panel noted that a historic $200 tax in 1934 represented an onerous barrier—then equivalent to roughly $4,800—but whatever force that argument once carried, it was irrelevant to Peterson’s contemporary, as-applied posture. The Court concluded the presumptive constitutionality remained intact, obviating any need to proceed to Bruen’s historical-analogue inquiry. In dicta, the panel cited district-court authorities finding adequate historical support for suppressor regulation, but reserved ultimate judgment because Peterson had not pierced the initial presumption.

Turning to the Fourth Amendment issue, the opinion offers a concise affirmation of the good-faith doctrine. The district court had denied suppression after finding that executing agents reasonably relied on the issuing magistrate’s determination of probable cause. On appeal, Peterson attacked only the sufficiency of the affidavit but conspicuously ignored the good-faith overlay, thereby likely forfeiting the argument. Nonetheless, the Fifth Circuit undertook plenary review and agreed on the merits: none of the four recognized United States v. Leon, 468 U.S. 897 (1984) exceptions applied. The affidavit recited specific investigative facts—false licensing representations, unreported multiple-handgun sales, and corroborated straw-purchase conduct—that surpassed the “bare-bones” threshold. Nothing suggested deliberate falsity, abandonment of judicial neutrality, or facial deficiency in the warrant. Consequently, even if probable cause were debatable, suppression would be unwarranted.

Practitioner Tips: For litigators, several insights emerge. First, when challenging firearms-licensing provisions post-Bruen, defendants bear a heavy evidentiary burden if the scheme can be characterized as “shall-issue.”  Counsel must compile a record demonstrating concrete burdens—prolonged processing, prohibitive fees, erratic administration—lest courts invoke Bruen’s presumption and short-circuit the historical analysis. Merely asserting theoretical obstacles, or decrying the administrative regime in general terms, will not suffice. Peterson’s concession that he “simply forgot to do the paperwork” proved dispositive; the panel treated that lapse as incompatible with an as-applied grievance about burdensome procedures.

Second, the opinion reinforces McRorey’s reading of Bruen as preserving wide latitude for objective, ancillary regulations that screen for disqualifying criteria. The decision thus furnishes prosecutors with persuasive precedent for resisting facial attacks on NFA provisions, background-check statutes, and analogous licensing mechanisms. Defense counsel, on the other hand, must now reckon with the presumption’s scope and marshal as-applied facts to mount a viable challenge, perhaps through discovery and evidentiary hearings aimed at quantifying delays or fees.

Third, the court’s discussion of the NFA tax illuminates a bifurcated analytical lens: historical cost burdens at the statute’s inception may illuminate facial challenges, yet they carry little weight in contemporary as-applied contexts unless the defendant can show the fee remains exorbitant relative to modern purchasing power.

Fourth, on the Fourth Amendment front, the opinion instructs defense lawyers to address Leon explicitly. An affidavit that is not egregiously defective will typically trigger the good-faith shield; to pierce it, counsel must allege and substantiate one of the four narrow exceptions. Here, Peterson’s silence on Leon was practically fatal. Prosecutors, for their part, should continue to front-load affidavits with granular investigative detail, thereby inoculating subsequent searches against suppression even if probable-cause determinations are later second-guessed.

Finally, the opinion’s brief but pointed footnote cataloguing contrary district-court predictions regarding suppressor registration signals that lower-court experimentation is inevitable. While the Fifth Circuit declined to pronounce on historical analogues, it observed that multiple courts have already upheld the NFA at the second Bruen step, suggesting an emerging consensus that suppressor regulation comports with tradition. Nevertheless, the panel expressly left that door ajar, cautioning that future litigants with richer factual showings may yet force the issue.

United States v. Wadi, No. 24-50160, — F.4th —, 2025 WL 2489462 (5th Cir. Aug. 29, 2025)

(Judge Stewart, Judge Clement, Judge Wilson) (from W.D. Texas):

Issues: Rule 403, Spoliation Instruction, Material Support to Foreign Terorrist Organization, Sixth Amendment, Entrapment, Sufficiency of the Evidence, Combatant Immunity.

The Fifth Circuit, in United States v. Imad Eddin Wadi affirmed the convictions and concurrent 160-month sentences imposed on a naturalized U.S. citizen who conspired to fund, and thereby facilitate, violent acts by the Syrian jihadist group Jabhat al-Nusra. The panel addressed six appellate challenges arising out of a two-year undercover operation that culminated in a 2023 trial in the Western District of Texas. The Court’s opinion offers practice points on Rule 403 exclusions, cross-examination limitations, sufficiency review, combatant-immunity instructions, the proper way to frame the “designation” element of 18 U.S.C. § 2339B, and the standard for spoliation sanctions—particularly when the missing evidence belongs to a confidential FBI source rather than the prosecution team.

According to the opinion, Wadi and his longtime business associate Ahmed Barodi hoped to launch a Colombian halal-beef slaughterhouse but could not attract the approximately $13 million in capital they needed. The FBI, alerted by Wadi’s friend Hussain Baker—who was, unbeknownst to Wadi, a confidential source—devised an operation in which an undercover agent posed as the “representative” of a wealthy Kuwaiti “sheikh” willing to invest $9 million if five percent of that sum would be funneled to al-Nusra, a State-Department-designated foreign terrorist organization engaged in the Syrian civil war.  The panel’s description of the factual record demonstrated that Wadi and Barodi accepted the terror-funding condition “without hesitation or reservation,” that they had supported Syrian rebels previously, and that they pressed the sheikh to accelerate the cash transfer so that al-Nusra could procure weapons from Turkish and Ukrainian brokers.  The government introduced evidence—recorded conversations, text messages, and expert testimony—that Wadi knew al-Nusra was conducting suicide attacks, bombing Russian aircraft, and “killing women [and] kids like dogs.”  The conspirators set up shell companies, opened foreign bank accounts, coded their communications, and generated a $9 million invoice; the scheme unraveled only because the FBI terminated its operation in June 2021. A grand jury returned a three-count indictment charging: (1) conspiracy to murder and maim persons abroad, in violation of 18 U.S.C. § 956(a)(1); (2) conspiracy to provide material support to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B; and (3) conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 2339A.  A jury found Wadi guilty on all counts, and the district court imposed concurrent 160-month terms.

On appeal, Wadi first argued that his Sixth Amendment right to present a complete defense was infringed when the trial court excluded the testimony of his adult son, Amer, proffered that Wadi’s precarious finances rendered him susceptible to entrapment and to rebut the government’s portrayal of him as a wealthy financier.  The panel applied a two-step analysis: because Rules 401 and 403 are facially valid evidentiary constraints, the constitutional inquiry comes down to whether the trial court abused its discretion under those rules. The district judge had deemed Amer’s proposed testimony largely irrelevant, unduly prejudicial, hearsay-laden, and cumulative of other defense evidence bearing on Wadi’s money troubles. The Fifth Circuit concluded there was no abuse: Wadi was allowed to develop his financial-hardship theme through bank records and other witnesses, and Amer’s testimony would have been “a plea for sympathy” unlikely to increase the probative value of that theme.

Wadi’s second argument, that the court impermissibly limited his cross-examination of Baker, foundered on briefing deficiencies. The appellant pointed to no portion of the record showing an actual limitation, and the panel held the issue forfeited for failure to cite the record or specify the allegedly curtailed line of questioning. Even had the issue been preserved, Wadi did not demonstrate that additional cross-examination would have altered the jury’s perception of Baker’s credibility, a prerequisite under confrontation-clause precedent.

The third and most substantial claim attacked the sufficiency of the evidence for the Section 956 conviction. Wadi contended on appeal that the government had proved only a conspiracy to transmit funds, not an agreement that Wadi himself would murder or maim. Critically, he had not articulated this theory in his Rule 29 motions, asserting only generically that the government showed no “intent to kill.”  Citing circuit authority, the panel reviewed for manifest miscarriage of justice—a standard under which reversal occurs only if the record is devoid of evidence on an essential element. That burden was insurmountable: the government’s proof included recorded statements acknowledging that the money was destined for rifles, grenades, and suicide operations; thus, the panel swiftly concluded the record is not “tenuous.”  The Court also noted that Section 956 punishes conspiracies to maim as well as to kill, and Wadi never challenged the government’s maiming theory.

Fourth, Wadi asserted that the district court erred by refusing to give a combatant-immunity instruction premised on the notion that al-Nusra fighters were lawful belligerents under international law, shielded from murder liability by the Geneva Conventions. The panel elided the preservation question, deeming that even under abuse-of-discretion review the instruction was properly refused. Unrebutted evidence showed al-Nusra slaughtering civilians, which, under black-letter war-crimes doctrine, precludes combatant immunity. Wadi offered no contrary evidence that the killings were acts of lawful war, so the proposed instruction lacked a legal foundation.

The fifth issue centered on the jury charge for the Section 2339B count—the crime of providing material support to a designated foreign terrorist organization. The district court told jurors that al-Nusra “is a designated terrorist organization,” a fact that was indisputably true at the time of the charged conduct. Wadi argued this statement impermissibly removed an element from the jury’s consideration. The panel disagreed, invoking both the statutory text and the circuit’s pattern instruction: the “designation” fact is purely legal, akin to judicial notice of a regulation’s existence, and the jury’s role concerns the defendant’s knowledge of that designation. The instruction therefore tracked the statute and did not violate the Fifth or Sixth Amendments.

Finally, Wadi challenged the denial of sanctions for spoliation after Baker, the FBI informant, replaced his personal cellphone despite a subpoena commanding him to preserve it. At a show-cause hearing, Baker testified that all data had migrated to his new phone, which he made available for forensic imaging. The district court denied dismissal of the indictment and gave no spoliation instruction. The Fifth Circuit reviewed for abuse of discretion and, aligning with Arizona v. Youngblood, 488 U.S. 51, 58 (1988), stressed that bad faith is the touchstone where potentially useful evidence is lost. Nothing indicated the government orchestrated or even knew of the phone’s replacement; indeed, Baker’s cooperation in producing the new phone suggested the absence of motive to suppress inculpatory material. Consequently, denial of sanctions was within the trial court’s discretion.

Practitioner Tips: Collectively, the opinion highlights several strategic lessons. First, when a defense team believes financial vulnerability supports entrapment, it must marshal concrete, non-cumulative evidence and be prepared to explain its probative value under Rule 403. Second, preservation demands specificity: a Rule 29 motion that simply says “no intent to kill” may suffice for de novo review only if the trial record unmistakably alerts the court to the nuanced theory later pressed on appeal; otherwise, sufficiency challenges will be relegated to the draconian manifest-miscarriage standard.  Third, the evidentiary foundation for a combatant-immunity instruction must be robust and supported by facts showing adherence to the laws of war; generalized references to a civil conflict will not suffice when the record documents indiscriminate attacks on civilians. Fourth, defense counsel should anticipate that courts will treat the “designation” of a foreign terrorist organization as a judicially noticeable legal fact, and should instead focus on undermining the defendant’s knowledge element if that is genuinely in dispute. Fifth, requests for spoliation sanctions require a showing that the prosecution team itself acted with intent to conceal; when the evidence is in private hands, attorneys must demonstrate collusion or direction by the government, or else suggest alternative remedies short of dismissal.

The panel’s treatment of Section 956 also reflects the statute’s sweep: a financier who never picks up a weapon can nonetheless join a murder or maiming conspiracy if he knowingly advances violence abroad, even indirectly. The Court’s approach to Section 2339B reaffirms that Congress may incorporate administrative findings—here, the State Department’s designation list—into criminal statutes without infringing the jury function. And its evidentiary rulings exemplify the deference afforded trial judges under the abuse-of-discretion rubric, particularly where the defense’s proffer is marginal, cumulative, or potentially confusing.

United States v. McGuire, Lala, Ragle, Sargent, & Roberts, Nos. 24-40109, 24-40111, 24-40117, 24-40139, 24-40299, — F.4th —, 2025 WL 2490720 (5th Cir. Aug. 29, 2025)

(Judge King, Judge Smith, Judge Douglas) (from E.D. Texas):

Issues: 1006 Summary Charts, Drug Trafficking Conspiracy, Sufficiency of the Evidence, Alleyne Doctrine, Relevant Conduct, Sentencing, Continuing Criminal Enterprise, Constructive Amendment, Venue Challenges.

This appeal arises from the prosecution of Eric Roberts, Ronald McGuire, Lowell Sargent, Christopher Ragle, and Philip Lala in the Eastern District of Texas. The opinion spans virtually every doctrinal issue likely to recur in complex multi‐defendant drug and money‐laundering prosecutions: admissibility of summary charts under Federal Rule of Evidence 1006; sufficiency of the evidence on drug‐quantity and money‐laundering theories; application of the Sentencing Guidelines’ relevant-conduct rules; indictment sufficiency under a continuing criminal enterprise (CCE) theory; constructive‐amendment principles; Sixth Amendment fact-finding in firearm counts after Alleyne; clerical correction under Criminal Rule 36; and venue doctrine for sprawling conspiracies under 18 U.S.C. § 3237(a).

1. Genesis and Operational Mechanics of the Conspiracy

The record described a cannabis supply chain built on legal marijuana markets in California and Oregon and an illicit distribution network in jurisdictions where it is (or was) illegal. In early 2018 Nicholas Simonds, a medical-marijuana vendor squeezed by California’s shift to recreational licensing, relocated to Texas. There he connected with co-defendant Eric Roberts, a Dallas entrepreneur dabbling in CBD who quickly concluded that non-psychoactive hemp would not yield sufficient profit. The men reached an agreement to exploit Texas’s rigid anti-THC laws by importing high-grade “West Coast” flower, vape cartridges, waxes, and edibles and then selling them at a substantial arbitrage in Texas and twenty-one other states.

At first, Simonds and Roberts shipped product through parcel services, but escalating seizure rates forced a pivot to overland courier runs. Vans were purchased through Roberts’s shell auto-sales entity, “Roberts Elite Group,” titled in corporate names to obscure beneficial ownership, and loaded in California or Oregon by grower-sources. Every trip transported at least $10,000 in cannabis inventory; large-volume “max loads” exceeded half a ton. Drivers—eventually including all five appellants—received between $500 and $1,200 per day, plus travel per-diem of roughly $1,500–$2,000. The conspirators were coached to avoid recognized drug corridors, to keep manifests off the vehicle, and to refuse consent searches. Cell-phone communications were conducted almost exclusively over Signal with disappearing messages, employing terminology such as “units,” “bags,” “paper,” and “paperwork” to signify pounds, cash, or both.

Once couriers reached designated markets—Buffalo, St. Louis, Atlanta, Sarasota, Boise, among others—they exchanged the marijuana for vacuum-sealed currency, often inside residential garages, or self-storage facilities. On the return leg they delivered proceeds to one of three Dallas hubs (Roberts’s Aintree Circle residence, a Mañana Drive warehouse, or a Denton Drive storage unit), where funds were counted, overhead reimbursed, and residual profits split fifty–fifty between Roberts and Simonds. Direct evidence confirmed that no banking channels were used; the mission was strictly cash-in/cash-out to defeat CTR and SAR reporting regimes.

2. Law-Enforcement Response and Evidence Gathered

The conspiracy first drew serious police attention in 2019 when the Mesquite, Texas Narcotics Unit began tailing Christopher Terry, a lower-tier distributor linked to co-defendant Sidney Greenwood. A warranted search of Greenwood’s apartment netted $25,153 in currency, more than thirty kilograms of marijuana, and several firearms—an early flash point that placed Roberts and his courier network on law-enforcement’s radar screen.

The most probative interdictions occurred on interstates. In July 2020 a Cibola County, New Mexico deputy stopped co-appellant McGuire’s white transit van for speeding and tailgating. McGuire’s proffered Wells Fargo “server” paperwork appeared strange and, after a K-9 hit, officers seized 112 kg of marijuana, 1.246 kg of THC vapes/edibles, and $13,000 cash. In August 2020 a Junction City, Kansas officer halted another Roberts Elite van driven by Paul Seward. A probable-cause search revealed 492 kg of marijuana; maintenance receipts linked the vehicle to both Lala and McGuire, and insurance documents again led back to Roberts. Seward pegged the load at 2,100 pounds—the largest he had ever carried—and testified to a pervasive odor of raw cannabis throughout the van.

Parallel surveillance in Dallas culminated in search warrants at Roberts’s Aintree residence, the Mañana warehouse, and a Denton Drive storage unit. Officers recovered:

• Aintree: 34 firearms; 1.055 kg THC gummies; 5.68 g THC oil; and $255,364 (with $253,000 in a safe).
• Mañana: Cacuum sealer; 31 kg marijuana; assorted wax, carts, psilocybin; $1,870 cash; and McGuire’s backpack and handgun.
• Denton: 73.8 kg THC carts; 226 kg gummies; 35.7 kg flower; 107 kg pre-rolled joints; and psilocybin and THC oil.

Most important for trial was the digital trove from Roberts’s seized iPhones—80,000 pages of extraction data from which lead investigator Detective Philip Offutt built Government Exhibit 190, the summary spreadsheet that later dominated appellate scrutiny.

3. Indictment and Trial Led to Convictions of all Defendants

A 2021 superseding indictment charged six counts. Count 1 alleged a Section 846 conspiracy to possess with intent to distribute ≥1,000 kg marijuana. Count 2 charged Roberts alone with running a CCE under Section 848(a). Count 3 alleged all defendants conspired to launder monetary proceeds in violation of Section 1956(h), referencing four substantive laundering prongs: (a)(1)(A)(i) (domestic promotion), (a)(1)(B)(i) (domestic concealment), (a)(2)(A) (international promotion), and (a)(2)(B)(i) (international concealment).  Counts 4 and 6 charged McGuire and Roberts, respectively, with Section 924(c) firearm offenses; Count 5 pertained to non-appellants.

Eight co-defendants pled out and testified. After an eight-day jury trial the five appellants were convicted on all counts submitted against them, except McGuire was acquitted on his firearm charge. The district court dismissed Count 1 as to Roberts (folded into CCE predicates) and imposed these sentences:

• Roberts – 240 months (CCE) + 120 months (money laundering, concurrent) + 120 months (firearm, consecutive) = 360 months total.
• McGuire – 188 months concurrent on drug and laundering counts.
• Sargent – 120 months concurrent.
• Ragle – 60 months concurrent.
• Lala – 48 months concurrent (post-safety-valve variance).

Each defendant lodged a notice of appeal; the Fifth Circuit consolidated the matters.

4. Rule 1006: The Exhibit 190 Controversy

Government Exhibit 190 purported to translate thousands of Signal messages and other seized data into a ledger of “deliveries,” assigning weights and counts of pounds, cartridges, and edible units to individual drivers. Offutt admitted on cross that he reviewed only “relevant” subsets of the extraction report, not the full 80,000 pages. His methodology, reconstructed on appeal, was that (1) he itemized 33 loads for which any weight was objectively known from seizures, GPS photos, or driver texts; and (2) divided the aggregate weight of those loads (4,079 lbs.) by 33 to arrive at a 123.6 lb. mean, but, critically, he later represented, in a different tab, that the “average” run was 506 lbs.  That larger figure appears to have been calculated by bundling deliveries into multi-city “trips” and then averaging at that higher aggregation level; the exhibit did not reveal which loads comprised which trip, or who the driver was for many grouped weights.

More concerning to the Court, at least seven arithmetic errors in the right-hand “trip total” column inflated sums; two loads lacked underlying numbers; several known-weight trips were inexplicably omitted from the average; and the highest load—an ostensible 6,446-lb. run—was likely a misinterpretation of “6,000 pre-roll cigars.”  Offutt then multiplied the contested 506-lb. average by each driver’s count of “trips” (itself unexplained) and replaced unknown-weight trips with that quantum, declaring, for example, that McGuire accounted for 11,132 lbs. of marijuana when only 764 lbs. were actually documented.

At trial Roberts’s counsel objected to the exhibit under Rule 1006 but did so on the narrow grounds that Offutt had not examined the entire extraction report. On appeal McGuire and Sargent pressed broader flaws—logical leaps, math mistakes, double counts—deemed “new” objections, so the Fifth Circuit applied plain-error review.

The panel nevertheless held: (1) admission was error because Rule 1006 insists on accurate, non-argumentative summaries resting on competent evidence; (2) the error was clear and obvious—the chart “manufactured evidence of unproven facts”; (3) the error affected substantial rights because it drove the jury’s special verdict attributing ≥1,000 kg to each defendant; and (4) the Court elected to exercise its discretion to correct the error for sentencing though not for guilt, reasoning that, minus Exhibit 190, a conviction still lay on other proof but statutory sentencing exposure had been tainted.  The Court thus affirmed the Section 846 convictions but remanded McGuire and Sargent for resentencing under Section 841(b)(1)(D), the “default” marijuana penalty (0–5 years), eliminating the 10-year mandatory minimum tied to ≥1,000 kg.

5. Sufficiency Challenges Distinguished from Evidentiary Error

Philip Lala tried a different tack: even with Exhibit 190 in evidence, the government allegedly failed to prove beyond a reasonable doubt that he reasonably foresaw the conspiracy’s 1,000-kg scope. The Fifth Circuit underscored that Rule 29 sufficiency review examines the record as-admitted, not the hypothetical record excluding erroneously admitted evidence. Viewing co-conspirator testimony, text snippets, and corroborating seizures in the light most favorable to the verdict, the panel held a rational jury could pin more than a metric ton on Lala; the fact that Exhibit 190 was imperfect went to weight, not sufficiency. The Court also rejected an untimely effort by Sargent to piggyback a sufficiency claim onto the Rule 1006 point, finding it inadequately briefed.

6. Indictment Sufficiency and Constructive Amendment—Roberts’s CCE Count

Section 848(a) requires proof that the defendant committed a continuing series of felony drug violations—i.e., at least three predicates—from which he derived substantial income while acting as organizer or supervisor of five or more persons. The superseding indictment’s Count 2 alleged only that Roberts violated Section 846 (conspiracy) “which violation includes, but is not limited to,” Count 1. No other predicate CSA violations were set out. Mid-trial the district judge sua sponte suggested the indictment was facially deficient. The government maintained that uncharged substantive distributions embedded within the conspiracy could serve as predicates. Roberts moved for a Rule 29 acquittal.

On appeal, the Fifth Circuit reviewed the legal sufficiency de novo (finding the issue adequately preserved by the district court’s colloquy and Rule 29 motion). The panel agreed the indictment omitted two required predicates but deemed the error harmless. Applying the United States v. Dentler, 492 F.3d 306 (5th Cir. 2007), two-step analytical framework: (1) notice—while the indictment lacked specifics, Roberts knew from discovery and trial proof that the government would rely on discrete loads and phone-facilitated offenses; (2) grand-jury prejudice—given overwhelming evidence of myriad substantive distributions and a Section 843(b) communication-facility offense, “any rational grand jury” would have found probable cause for at least three predicates.  Therefore, the conviction survived.

Roberts’s constructive-amendment claim fared no better. Although the jury instructions enumerated as possible predicates a substantive Section 841 delivery and a Section 843(b) count, neither of which the grand jury had explicitly charged, the panel—reviewing for plain error—held that the variance did not alter the offense’s essential nature or broaden it beyond the indictment’s pleaded core (running a marijuana CCE).

7. Money-Laundering Theories—Concealment vs. Promotion

Count 3 charged one conspiracy embracing both domestic and international laundering under four statutory prongs. At trial, the government pursued only domestic promotion and domestic concealment. The jury nonetheless received a general verdict on the count. On appeal the defendants attacked both theories.

1. Concealment Money Laundering—Invoking Cuellar v. United States, 553 U.S. 550 (2008), the panel clarified that transporting cash in a hidden manner is not, standing alone, concealment-laundering; the question is why the funds are moved. Evidence showed the purpose of each cash leg was compensatory and to fund further buys, not to disguise ownership or source. Secretive trappings such as no manifests, encrypted chats, and “leave the cash in the hotel room” instructions concerned how the money was moved. Because neither the government’s evidence nor closing argument demonstrated an intent to conceal, the Court ruled the concealment theory legally unsustainable.
2. Promotional Money Laundering—By contrast, promotional-laundering intent was amply proved: proceeds paid drivers, reimbursed travel overhead, and were reinvested into fresh product. Under United States v. Trejo, 610 F.3d 308 (5th Cir. 2010) and United States v. Stanford, 823 F.3d 814 (5th Cir. 2016), compensating participants and recycling profits to expand inventory is quintessential “promotion.” Transactions need not involve a bank; handing cash to Roberts constituted a “disposition” under Section 1956(c)(3). Each appellant’s knowledge and intent could be inferred from (1) repeated courier trips, (2) familiarity with cash-only protocol, (3) awareness of van modifications and code words, and (4) recruitment of new drivers (Ragle, Sargent). Accordingly, the convictions were affirmed on promotional grounds alone. The panel, however, directed the district court on remand to amend judgments and PSRs so that Count 3 references solely the domestic-promotion subparagraphs.

8. Section 924(c) Short-Barrel Fact-Finding—Alleyne Error

For Roberts, Count 6 added a 120-month consecutive term for possessing a firearm in furtherance of drug trafficking. The government argued at sentencing that one recovered weapon was a short-barreled rifle (SBR), triggering a 10-year minimum instead of the baseline 5-year term. The district court imposed 120 months without having submitted the SBR feature to the jury. Alleyne renders such facts “elements.”  The government confessed error on appeal. The Fifth Circuit vacated the firearm sentence and remanded; the conviction stands, but the district court must resentence within the correct statutory range absent jury findings on barrel length.

9. Clerical Misstatements—Rule 36 Relief

Because the jury instructions withdrew the two international laundering theories, the ultimate convictions rested exclusively on domestic promotion. Yet each written judgment—and each PSR—recited that the defendants violated Section 1956(a)(2)(A) and (B), implying an international nexus. The Fifth Circuit labeled these “clerical errors” and, under Rule 36, ordered correction so the public record unambiguously tracks the verdict. Thus, PSRs, though prepared by Probation, are “parts of the record” within Rule 36’s ambit; failing to move in the district court does not foreclose appellate correction.

10. Venue

Roberts’s venue argument, raised solely to preserve Supreme Court review, acknowledged Fifth Circuit precedent that a single overt act by any conspirator in a district suffices. The panel cited United States v. Romans, 823 F.3d 299 (5th Cir. 2016) and United States v. Garcia Mendoza, 587 F.3d 682 (5th Cir. 2009): transportation of drug proceeds through the Eastern District of Texas by any courier conferred venue for all.

11. Sentencing—Guidelines Drug-Quantity Findings

1. McGuire—His PSR adopted Offutt’s extrapolated 5,060 kg figure and accordingly set a base offense level of 32 (≥3,000 kg). McGuire objected, emphasizing only 861 lbs. (and 500 vape pens) could be shown. The district court simply stated it “sat through trial” and found the PSR “reliable.” The Fifth Circuit deemed that insufficient: sentencing courts may estimate but must articulate a defensible methodology grounded in evidence with “sufficient indicia of reliability.”  Sole reliance on Exhibit 190—a chart already branded speculative—was clear error. The panel vacated and remanded for individualized quantity findings; it left open whether the same or a different figure might ultimately apply if properly supported.
2. Sargent—Although his PSR likewise used 5,060 kg, defense counsel at sentencing conceded those quantities were “reasonably foreseeable,” merely arguing the evidence of specific weights at trial totaled only 230 kg. The Fifth Circuit held that concession justified the district court’s adoption of the PSR. Result: Sargent’s 120-month sentence (below his Guideline range after his statutory minimum sentence) stood.
3. Lala—His downward-variance sentence rendered any Guidelines error harmless. The district judge explicitly said it would impose 48 months regardless of whether drug amounts were recalculated, citing safety-valve eligibility, minor role, and military record. Under controlling harmless-error doctrine, the government met both prongs.

12. Aggregate Dispositions

• McGuire—Drug-and-laundering convictions affirmed; drug sentence vacated; remand for new quantity finding and resentencing; Rule 36 corrections ordered.
• Sargent—Convictions and sentence affirmed; clerical corrections ordered.
• Lala—Conviction and sentence affirmed without modification.
• Ragle—Conviction affirmed; clerical corrections ordered.
• Roberts—Money-laundering and CCE convictions affirmed; firearm sentence vacated for Alleyne error; Rule 36 corrections ordered.

Practitioner Tips: Rule 1006 Vigilance. Exhibit 190 is a cautionary tale. Prosecutors crafting summary charts must (a) disclose full underlying data, (b) avoid speculative averaging, and (c) ensure arithmetic accuracy. Defense counsel should audit math rigorously and lodge specific objections early, or else face plain-error hurdles.

Sentencing Precision. District judges cannot rest on a PSR that itself relies on a contested summary. Written findings or on-record explanations are indispensable. Where Guideline levels pivot on quantity tiers, even a one-level drop may reshape statutory-minimum exposure after Booker variances.

CCE Drafting. When charging Section 848(a), spell out three predicates or incorporate counts by reference. Though harmlessness saved the conviction here, future panels may scrutinize prejudice more strictly, especially if trial evidence of extra predicates is weaker.

Laundering Theory Choice. Cuellar continues to delimit concealment cases. Promotion remains easier to prove; prudent prosecutors should jury-proof by splitting counts or seeking interrogatories on each theory to avoid wholesale reversal.

Alleyne Compliance. Where firearm type or device feature aggravates Section 924(c), submit special interrogatories. Post-Bruen scrutiny of firearms statutes makes prophylactic jury findings advisable in any event.

Rule 36 Scrutiny. Review every judgment and PSR for internal consistency with the verdict and instructions—particularly when counts are pared mid-trial. Simple docket corrections avert confusion in BOP designation, supervised-release conditions, and collateral review.

United States v. Wilson, No. 25-30105, — F.4th —, 2025 WL 2490719 (5th Cir. Aug. 29, 2025)

(Judge Wiener, Judge Willett, Judge Ho) (from E.D. Louisiana):

Issues: Fourth Amendment, Bare-Bones Affidavit, Good Faith, Leon Good Faith Factors, Search Warrant.

The Fifth Circuit’s decision reaffirmed the Fourth Amendment’s particularity and nexus requirements and a pointed reminder that the United States v. Leon, 468 U.S. 897 (1984) good-faith exception does not cure every defect in a warrant. Writing for the panel majority, Judge Willett upheld the district court’s suppression order, concluding that the affidavit supporting a search of Ricky Wilson’s girlfriend’s apartment was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The opinion canvassed decades of Supreme Court and circuit precedent, contrasted bare-bones affidavits with those that survive under Leon, and underscored that even “common-sense” inferences cannot substitute for a concrete factual link between the place to be searched and the items to be seized.

Judge Ho’s dissent warned that the majority’s approach over-rigorously scrutinizes affidavits drafted “by cops, not copy editors,” and risks eroding the presumption that people keep personal items—including firearms—at home. The result, however, leaves law-enforcement officers on notice that within the Fifth Circuit, generalized hunches about where evidence “ought” to be found will not salvage a warrant whose supporting affidavit fails to articulate an evidentiary nexus with the premises.

Factual Background

In late April 2023, Ricky Wilson was involved in a heated altercation at a Waffle House in Jefferson Parish, Louisiana. Witnesses said Wilson retrieved a distinctive green pistol fitted with a drum magazine from his backpack, alarming a customer who later became the complaining victim. Two weeks later, a detective investigating Wilson for an unrelated offense noticed Wilson’s vehicle parked outside an apartment at 212 Central Avenue, the unit rented by Wilson’s girlfriend. Armed with the Waffle House police report, the detective prepared two warrants: an arrest warrant for Wilson and a search warrant for the apartment, seeking “all items related to the aggravated-assault investigation,” including ammunition, drum magazines, firearms, backpacks containing firearms, and “any other evidence related to criminal activity observed during the search.”

The affidavit described the apartment’s exterior and labeled it “Wilson’s residence,” noting that the girlfriend was the lessee and that unnamed witnesses had seen Wilson there. It also recounted, in detail, the Waffle House episode, the victim’s positive identifications of Wilson, his vehicle, and the green pistol, and an Instagram video showing Wilson rapping with a Glock and drum magazine. Critically, however, the affidavit included no statement that anyone had seen the green pistol—or any contraband—at 212 Central, nor did it offer any basis to believe the gun would still be there two weeks later. A state judge nonetheless issued the warrant, officers executed it the same morning, and they recovered ammunition, marijuana, and a firearm. Wilson was indicted on narcotics and firearms charges, moved to suppress, and prevailed; the Government took an interlocutory appeal.

District Court Ruling on Motion to Suppress

The district judge held that the affidavit failed to establish probable cause to search the apartment because it provided “no nexus between the assault at the Waffle House and the search of the residence.”  Finding the affidavit “so lacking in indicia of probable cause” that reliance on the warrant was objectively unreasonable, the court declined to apply the Leon good-faith exception and suppressed all evidence seized from the apartment.

Issues on Appeal

The Fifth Circuit framed its review around the two-step analysis mandated by United States v. Leon. First, the Court asked whether the good-faith exception applied—i.e., whether officers could have reasonably relied on the warrant. Only if good faith was unavailable would the panel proceed to evaluate probable cause in its own right. The Government had the burden at both steps but argued primarily that the warrant, though arguably thin, was not “bare bones” and that seasoned officers could in good faith infer the suspect would keep his distinctive firearm at the home of his intimate partner.

Majority Opinion: Affirms Suppression Ruling

Judge Willett’s opinion begins with a historical and doctrinal discussion of the exclusionary rule’s critics and defenders. Recognizing Leon’s cost-benefit framework, the majority nevertheless insists that Leon imposes meaningful limits; it is not a “magic eraser” for constitutional defects. To decide whether reliance on this warrant was objectively reasonable, the court zeroes in on the affidavit’s failure to draw any factual bridge between the Waffle House Court and the apartment. The opinion repeatedly invokes the “nexus” requirement—that an affidavit must show “a fair probability that contraband or evidence of a crime will be found in a particular place”—and catalogs Fifth Circuit cases where similar warrants were deemed bare bones.

The majority conceded that the affidavit probably established probable cause to arrest Wilson, but emphasized that probable cause to arrest does not automatically extend to a search of a suspect’s home. In language likely to be quoted in future suppression motions, the Court stated: “Assumption is not evidence; geography is not nexus; and intuition is not cause.”  The panel rejected the Government’s invitation to treat firearms like passports, mail, or bank records—items people “normally keep at home”—explaining that guns are portable and often disposed of quickly after a crime, especially when two weeks have elapsed. The opinion stressed the absence of corroborative facts: no surveillance, no informant tip tying the weapon to the apartment, no observation of Wilson entering the residence with a backpack, and no evidence that Wilson even resided there full-time.

Comparing the affidavit to the “classic” bare-bones affidavits discussed in Leon and in the Fifth Circuit’s en banc decision in United States v. Morton, 46 F.4th 331 (5th Cir. 2022), Judge Willett found the warrant “indistinguishable in its conclusory nature.”  The affidavit merely declared that items “related to the aggravated assault investigation” were “believed to be located” at 212 Central. Because that statement lacked any supporting detail, it could not provide an officer of reasonable caution grounds to think probable cause existed. As a result, the good-faith exception was inapplicable, and suppression followed automatically.

Evaluation of Probable Cause

Having deemed Leon inapplicable, the majority briefly addressed probable cause. Under Illinois v. Gates, 462 U.S. 213, 238 (1983), and the “totality of the circumstances,” the affidavit had to establish a “substantial basis” for concluding evidence would be found at 212 Central. Given the absence of any connecting facts, the Court found the warrant wanting. It emphasized the Fifth Circuit’s heightened protection of the home as the “first among equals” in Fourth Amendment jurisprudence, noting that the leap from probable cause to arrest to probable cause to search is never automatic. The suppression order thus stood.

Dissent

Judge Ho, dissenting, chided the majority for adopting a “hypertechnical” reading of an affidavit drafted “amid the haste of a criminal investigation.”  He argued that people ordinarily store personal possessions, including firearms, at home and that officers can reasonably rely on that intuition without reciting it in the affidavit. In his view, the majority collapsed the distinction between a merely “thin” affidavit, which Leon forgives, and a truly “bare bones” affidavit, which it does not. He also maintained that the majority misread United States v. Green, 634 F.2d 222 (5th Cir. 1981), asserting that the distance between the crime and the residence—not the lack of nexus per se—drove that case’s suppression ruling. Because Wilson’s apartment lay only about a dozen miles from the Waffle House, the dissent would have credited the inference that the distinctive pistol was probably present. Judge Ho cautioned that the majority’s standard risks undermining legitimate law-enforcement efforts and imposing unwarranted social costs by suppressing reliable evidence.

Practitioner Tips:

• Rigid Application of the Nexus Requirement. The opinion systematically rejects the notion that a suspect’s residence alone can supply the nexus, especially for easily moved items like firearms. This elevates the factual specificity demanded of affidavits targeting a home.
• Leon’s Outer Limits. By refusing to apply Leon to what it deemed a fact-free affidavit, the panel signals that the good-faith exception will not rescue warrants that amount to mere formalities. Officers must demonstrate that their reliance on a warrant is objectively reasonable, and that showing depends on the affidavit’s substantive content, not on hindsight that a magistrate signed it.
• Home as a Special Haven. Invoking Lange v. California, 594 U.S. 295, 303 (2021) and Florida v. Jardines, 569 U.S. 1, 6 (2013), the Court reinforces the home’s unique constitutional status. Even when contraband is sought, intrusion into a dwelling demands a factually grounded justification.
• Distinct Treatment of Firearms. The Court declines to analogize firearms to documents normally stored at home, marking an analytical distinction that could reverberate in future gun-related searches.

Practical Takeaways for Defense Counsel

• Scrutinize Affidavits for Nexus Gaps. Defense lawyers should closely examine the warrant affidavit for any failure to connect the items sought with the place searched. Even detailed narratives of criminal conduct elsewhere do not fill that gap.
• Challenge Overbroad Inferences. When the Government asserts “common-sense” assumptions (e.g., weapons kept at home), question whether the items are inherently domestic or could be easily removed.
• Leverage Timing Issues. Argue that the passage of time between the crime and the search diminishes probable cause, especially for movable contraband.
• Invoke the Home’s Special Status. Courts remain protective of dwellings; reiterate that heightened protection to frame suppression arguments.

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The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For questions related to these cases, please contact a member of the Investigations & White Collar Defense practice.

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