By Joe Magliolo

Hi all. Below is the June edition of the Fifth Circuit criminal and civil case summaries, with a special focus on cases of interest to white-collar practitioners.

In June, the Fifth Circuit considered a number of Bruen-based challenges to firearm convictions, multiple healthcare fraud cases involving marketers, restitution, and the reversal of one such conviction based on a mid-trial dismissal of a juror.

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. Betancourt, No. 24-20070, 139 F.4th 480 (5th Cir. June 4, 2025)

Issues: Bruen, Felon in Possession, Second Amendment, Firearms.

Judge Stewart, Judge Dennis, Judge Haynes (from S.D. Texas):

The Fifth Circuit Court affirmed the conviction of Joseph Lee Betancourt for violating 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute, and rejected his Second Amendment challenge. Betancourt’s conviction stemmed from an incident in which he brandished a firearm during a domestic dispute, and a subsequent search revealed firearms, ammunition, and body armor in his possession. His predicate felony convictions were for aggravated assault, arising from a reckless driving incident that resulted in serious injuries to others. Betancourt argued that Section 922(g)(1), as applied to him, violated his Second Amendment rights, contending that his prior convictions did not involve the misuse of firearms and that the Founding-era analogue for his conduct would not have warranted permanent disarmament.

The Court applied the framework established in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), which requires courts to first determine whether the Second Amendment’s plain text covers the regulated conduct and, if so, whether the government can demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. The Court also relied on United States v. Rahimi, 602 U.S. 680 (2024), in which the Supreme Court reaffirmed that prohibitions on firearm possession by felons are “presumptively lawful” and that individuals found to pose a credible threat to public safety may be disarmed consistent with the Second Amendment.

Betancourt’s facial challenge to Section 922(g)(1) was foreclosed by circuit precedent, specifically United States v. Diaz, 116 F.4th 458 (2024), petition for cert. filed, No. 24-6625 (U.S. Feb. 18, 2025), which upheld the statute’s constitutionality on its face. The Court then addressed Betancourt’s as-applied challenge, focusing on whether the Nation has a longstanding tradition of disarming individuals with a criminal history analogous to Betancourt’s. The Fifth Circuit found that Founding-era legal traditions permitted the disarmament of individuals who had committed serious crimes or were deemed threats to public safety, and that statutes authorizing forfeiture of weapons as punishment were comparable in their burden to Section 922(g)(1). The Court rejected Betancourt’s argument that his aggravated assault convictions were insufficiently analogous to Founding-era felonies warranting disarmament, emphasizing that his conduct—driving at excessive speed, disregarding a red light, and causing serious injury—posed a clear threat to public safety.

Ultimately, the Court concluded that the application of Section 922(g)(1) to Betancourt was consistent with the principles underpinning the Nation’s historical tradition of firearm regulation.

United States v. Riojas, No. 24-40378, 139 F.4th 465 (5th Cir. June 4, 2025)

Issues: Appellate Jurisdiction, Fourth Amendment, Automobile Exception, Suppression. 

Judge Stewart, Judge Dennis, Judge Haynes (from S.D. Texas):

The Fifth Circuit addressed two key issues: (1) the effect of an unconditional guilty plea on appellate jurisdiction, and (2) the lawfulness of a warrantless vehicle search under the automobile exception to the Fourth Amendment. The case arose after Isaac Riojas was stopped by Corpus Christi police officers at approximately 2:00 a.m. for rolling through a stop sign. The officers, familiar with Riojas from prior investigations and aware of his history with weapons charges, approached the vehicle with caution. Upon approach, Riojas opened his car door, threw his keys outside, and made movements toward the center console. Officer Perez, a seven-year veteran, immediately detected a strong odor of marijuana emanating from the vehicle and observed ashes on Riojas’s lap. A subsequent observation revealed a partially smoked marijuana joint on the floorboard. The officers proceeded to search the vehicle, discovering multiple bags of synthetic cannabinoid, marijuana, and methamphetamine, leading to Riojas’s arrest and subsequent federal indictment for drug and firearm offenses.

Riojas moved to suppress the evidence, arguing the searching officers lacked probable cause. The district court, after reviewing bodycam footage and hearing testimony, denied the motion, finding the search justified under the automobile exception. Riojas then entered an unconditional guilty plea and was sentenced to 121 months’ imprisonment. On appeal, Riojas sought review of the suppression ruling, raising the question of whether such an appeal survives an unconditional guilty plea when the government does not invoke the waiver.

The Fifth Circuit began by analyzing the jurisdictional implications of an unconditional guilty plea. Citing established precedent, the Court reiterated that such a plea ordinarily waives all non-jurisdictional defects, including suppression rulings. However, the Court noted a circuit split on whether appellate courts must enforce this waiver sua sponte if the government fails to raise it. The Seventh Circuit treats the waiver as jurisdictional and enforces it on its own motion, while the Ninth and Tenth Circuits view it as a waivable claim-processing rule. The Fifth Circuit aligned with the latter approach, holding that the government’s silence can itself waive the waiver, and thus, the Court retains jurisdiction to review the merits if the government does not timely assert the bar. The Court emphasized that subject-matter jurisdiction cannot be conferred or removed by party agreement or waiver, and that appeal waivers are not jurisdictional in nature.

Turning to the merits, the Fifth Circuit affirmed the district court’s denial of the suppression motion. The court found that the facts—Riojas’s traffic violation, the officers’ prior knowledge of Riojas, the strong odor of marijuana, visible ashes, and the presence of a marijuana joint—collectively established probable cause to search the vehicle under the automobile exception. The Court cited its own precedent, as well as Supreme Court authority, holding that the smell of marijuana alone may constitute probable cause for a vehicle search. The officers’ experience and the totality of the circumstances further supported the lawfulness of the search. The Court declined to address the plain view doctrine, as the automobile exception was dispositive.

Therefore, the Fifth Circuit held that while an unconditional guilty plea generally waives appellate review of suppression issues, the government’s failure to invoke the waiver permits the Court to reach the merits. On the substantive issue, the Court found the warrantless search lawful, and it affirmed Riojas’s conviction.

United States v. Jubert, No. 24-60199, 139 F.4th 484 (5th Cir. June 4, 2025)

Issues: Cyberstalking, True Threats, First Amendment.

Judge Stewart, Judge Clement, Judge Willett (from S.D. Mississippi):

The Court analyzed the constitutionality of 18 U.S.C. § 2261A(2)(B), the federal cyberstalking statute, both as applied and on its face, in the context of a criminal prosecution involving a sustained campaign of online threats and harassment. Justin Gregory Jubert, who pled guilty to cyberstalking and transmitting threatening communications, reserved his right to challenge the statute under the First Amendment, arguing that it impermissibly criminalizes protected speech.

The Court began by outlining the statutory requirements: (1) use of interstate facilities (including electronic communication) at least twice; (2) intent to kill, injure, harass, intimidate, or surveil another person; and (3) engagement in a course of conduct reasonably expected to cause substantial emotional distress. The panel emphasized that the statute targets persistent, purposeful conduct rather than isolated or accidental communications.

Addressing the as-applied challenge, the Court analyzed whether Jubert’s conduct—consisting of repeated, escalating online threats and harassment directed at a former acquaintance and his family—constituted “true threats” unprotected by the First Amendment. The Court applied the Supreme Court’s recent guidance in Counterman v. Colorado, 600 U.S. 66 (2023), which requires both an objective and subjective inquiry: whether a reasonable person would perceive the statements as serious threats, and whether the speaker was subjectively aware of their threatening nature, with recklessness as the minimum mens rea. The Court found that Jubert’s conduct, which included explicit threats of violence, tracking of the victims’ children, and deliberate efforts to ensure the victims saw the posts, satisfied both prongs. The victims’ responses—installing security systems, altering routines, and contacting law enforcement—were deemed predictable results of Jubert’s intentional campaign. The Court distinguished Jubert’s conduct from cases involving political hyperbole or satire, noting the specificity, persistence, and targeted nature of the threats.

Turning to the facial overbreadth challenge, the Court reiterated that the overbreadth doctrine is a “strong medicine” reserved for statutes that substantially chill protected speech relative to their legitimate sweep. The Court noted that every federal appellate court to consider Section 2261A(2)(B) has upheld its constitutionality, often by construing the statute to reach only unprotected speech such as true threats or speech integral to criminal conduct. The Fifth Circuit adopted the reasoning of its sister circuits, emphasizing that the statute’s focus on a “course of conduct,” its intent requirement, and the substantial emotional distress element all serve to cabin its reach to conduct outside the First Amendment’s protection. The Court further clarified that the terms “harass” and “intimidate,” while not defined in the statute, have been judicially construed to require conduct that places the victim in fear of death or bodily injury, or that distresses the victim through threats or intimidation, thus excluding mere annoyance or offense.

In conclusion, the Fifth Circuit affirmed the district court’s denial of Jubert’s motion to dismiss, holding that Section 2261A(2)(B) is neither unconstitutionally overbroad nor invalid as applied to conduct constituting true threats.

United States v. Branson, No. 24-60417, 139 F.4th 475 (5th Cir. June 4, 2025)

Issues: Bruen, Felon in Possession, Second Amendment, Firearms.

Judge Smith, Judge Graves, Judge Duncan (from S.D. Mississippi):

Marcus Delars Branson challenged the constitutionality of 18 U.S.C. § 922(g)(1) under Bruen. Branson, previously convicted of bank robbery and found in possession of firearms while on supervised release, argued that Section 922(g)(1) is unconstitutional both facially and as applied under the Second Amendment. He further asserted that the statute violates the Commerce Clause and the Due Process Clause’s equal protection component, and is void for vagueness.

The Fifth Circuit systematically rejected each of Branson’s arguments. The Court noted that its own precedent, including United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), petition for cert. filed (U.S. Feb. 24, 2025) (No. 24-6625), and United States v. Schnur, 132 F.4th 863 (5th Cir. 2025), forecloses both facial and as-applied Second Amendment challenges to Section 922(g)(1) for individuals with theft-related felony convictions such as Branson’s. The panel also reaffirmed it previously rejected Commerce Clause and equal protection-based challenges to Section 922(g)(1).

On the vagueness claim, the Court held that Section 922(g)(1) provides clear notice to individuals with felony convictions that firearm possession is prohibited, and that the statute’s language is sufficiently definite to withstand a void-for-vagueness challenge. The Court distinguished Branson’s reliance on evolving judicial interpretations, emphasizing that statutory clarity is measured by the text as applied to the defendant’s conduct at the time of the offense. Because Branson’s conviction and sentence fell squarely within the statute’s plain terms, the Court found no due process violation and affirmed the district court’s judgment.

United States v. Cockerell, No. 24-10687, 140 F.4th 213 (5th Cir. June 5, 2025)

Issues: Healthcare Fraud, Healthcare Marketers, Compounding Pharmacies, Sufficiency of the Evidence, Money Laundering, Jury Charge, Government Statements During Closing Argument, Restitution. 

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

The Fifth Circuit provided a comprehensive analysis of a complex healthcare fraud scheme involving compounding pharmacies, the Anti-Kickback Statute, conspiracy, and money laundering. The Court affirmed Cockerell’s convictions and the district court’s restitution order, addressing a range of evidentiary, legal, and procedural challenges raised on appeal.

Background and Scheme Overview

Xpress Compounding, a pharmacy that accepted funds from federal insurance programs like TRICARE, was at the center of the scheme. The business model focused on formulating topical creams with ingredient combinations designed to maximize insurance reimbursements. Between July 2014 and September 2016, Xpress received over $59 million from TRICARE and other federal insurers. Cockerell, a top marketer for Xpress, was deeply involved in both recruiting physicians to prescribe these creams and in developing new, more lucrative formulas. He also played a key role in recruiting and managing sub-representatives (“sub-reps”), who further expanded the network of prescribing physicians.

Marketers, including Cockerell, were compensated through commissions based on the revenue generated from prescriptions they influenced. To conceal the illicit nature of these payments, Cockerell arranged for commissions to be paid in the name of his then-wife, who had no substantive involvement with Xpress. Over a two-year period, Cockerell’s commissions totaled nearly $2.5 million.

The marketers’ tactics included providing physicians with pre-filled prescription pads for the most profitable compounds, offering lavish vacations and expensive dinners, and creating opportunities for physicians to invest in management service organizations that allowed them to profit from prescriptions they wrote. These inducements were particularly targeted at prescriptions reimbursed by federal insurers, despite explicit prohibitions against such arrangements under federal program rules.

Convictions and Sentencing

Cockerell was convicted of violating the Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), conspiracy (18 U.S.C. § 371), and money laundering (18 U.S.C. § 1957). The district court sentenced him to 29 months’ imprisonment and two years of supervised release, and ordered restitution in the amount of $59,879,871. The jury acquitted him of certain other money laundering charges not at issue on appeal.

Sufficiency of the Evidence

On appeal, Cockerell challenged the sufficiency of the evidence supporting his convictions, particularly under the Anti-Kickback Statute. The Fifth Circuit reviewed the evidence de novo, applying the highly deferential standard to the jury’s verdict. The Court emphasized that the Anti-Kickback Statute criminalizes knowingly and willfully soliciting or receiving remuneration in return for referrals for services reimbursed by federal healthcare programs. The government must show intent to improperly influence healthcare decision-makers, not merely compensation for advertising or marketing.

The Court found ample evidence that Cockerell aided and abetted unlawful conduct. Although there was no direct evidence of Cockerell personally influencing Dr. Ince, the physician whose prescriptions formed the basis of the kickback charge, the government established that Cockerell hired and managed sub-reps, dictated their compensation, and ensured he received an “override” on their commissions. Payments were traced from Xpress to Cockerell’s then-wife for the relevant prescriptions. The Court held that the use of a spouse as a conduit for payments was further evidence of intent to conceal and violate the statute.

The government also presented evidence that the payments were intended to induce physicians to prescribe Xpress’s creams, including testimony about the use of pre-filled prescription pads, promotional dinners, and investment opportunities for physicians. The Court distinguished this case from others where mere marketing or advertising was at issue, noting that the evidence here demonstrated affirmative inducement and improper influence over prescribing decisions.

Conspiracy and Money Laundering

Cockerell’s convictions for conspiracy and money laundering were predicated on the underlying Anti-Kickback Statute violation. For money laundering, the government must show a financial transaction involving more than $10,000 in proceeds from specified unlawful activity, with knowledge of the funds’ illicit source.

Because the Court found the evidence sufficient to support the Anti-Kickback Statute conviction, it likewise upheld the conspiracy and money laundering convictions. The Court further rejected Cockerell’s argument that reversal of the underlying kickback conviction would necessitate reversal of the related charges.

Prosecutorial Statements and Jury Instructions

Cockerell also challenged several statements made by the government during closing and rebuttal arguments, alleging misstatements of law regarding the distinction between lawful marketing and unlawful kickbacks. The Court reviewed preserved objections for abuse of discretion and unpreserved claims for plain error.

The Court found no reversible error. The government’s statements, when read in context, accurately distinguished between permissible marketing and marketing in exchange for kickbacks. The district court repeatedly instructed the jury that only unlawful inducements, not mere marketing, were criminalized. These instructions mitigated any potential prejudice from the government’s remarks. The Court also noted the substantial evidence of guilt, which further weighed against a finding of prejudice.

Restitution Judgment

The district court’s restitution order, imposing joint and several liability for the full $59,879,871 paid by federal insurers, was challenged on both legal and factual grounds. Cockerell argued that the Court failed to hold a separate restitution hearing and improperly shifted the burden to him to prove he provided legitimate services.

The Fifth Circuit affirmed the restitution order, explaining that the Mandatory Victims Restitution Act (“MVRA”) requires restitution for offenses involving fraud or deceit. Under the MVRA, all members of a conspiracy may be held jointly and severally liable for foreseeable losses within the scope of the conspiracy. The government bears the initial burden of proving the loss amount by a preponderance of the evidence, after which the burden shifts to the defendant to demonstrate any legitimate services that should offset the loss.

Here, the government presented evidence that the entire amount paid by federal insurers was tainted by the pervasive fraud, and Cockerell failed to provide any evidence of legitimate prescriptions or services. The Court held that when fraud is so pervasive that separating legitimate from fraudulent conduct is not reasonably practicable, the district court may reasonably treat the entire claim as loss and shift the burden to the defendant. Cockerell’s unsupported assertions that some services were legitimate were insufficient to warrant an offset.

United States v. Jackson, No. 23-30683, 140 F.4th 263 (5th Cir. June 10, 2025)

Issues: Pro Se Representation, Sixth Amendment, Competency to Stand Trial, Faretta Hearing, Dusky Standard.

Judge Higginbotham, Judge Jones, Judge Southwick (from W.D. Louisiana):

The Court examined the intersection of competency, self-representation, and the trial court’s obligations under the Sixth Amendment and relevant statutory authority. Louis Vernon Jackson, convicted on multiple drug and firearm charges stemming from two separate motel busts in Louisiana, appealed his conviction on the grounds that the district court erred by not sua sponte conducting a competency hearing before allowing him to proceed pro se. Jackson’s case is notable for his persistent insistence on self-representation from the outset, which triggered multiple Faretta colloquies at both the magistrate and district court levels. These colloquies were thorough, with the district court repeatedly warning Jackson of the dangers and disadvantages of self-representation, confirming his educational background, and ensuring he understood the charges, penalties, and procedural complexities he would face.

The Court reaffirmed that due process prohibits the prosecution of a defendant who is not competent to stand trial, referencing the Dusky v. United States, 362 U.S. 402 (1960), standard: a defendant must have both a rational and factual understanding of the proceedings and the ability to consult with counsel with a reasonable degree of rational understanding. The Court also recognized, under Indiana v. Edwards, 554 U.S. 164 (2008), that a higher threshold of competency may be required for self-representation than for standing trial, but emphasized that this is an exceptional circumstance, not the norm.

In reviewing the district court’s actions, the Fifth Circuit applied an abuse of discretion standard, both for the determination of Jackson’s competency to proceed pro se and for the decision not to hold a sua sponte competency hearing. The Court considered the relevant factors: Jackson’s history of irrational behavior, his demeanor at trial, and any prior medical opinions regarding his competency. The record showed that Jackson’s pretrial motions, while sometimes legally misguided, were based on existing legal principles rather than evidence of severe mental illness or incompetence. His conduct at trial, including his defense strategy and partial acquittal on two counts, further supported the conclusion that he was capable of rational thought and strategic decision-making.

The Court rejected Jackson’s argument that his “erratic and incoherent” filings and statements were sufficient to raise a bona fide doubt as to his competency. The panel noted that lack of legal sophistication or even poor judgment in self-representation does not equate to incompetence. The district court’s repeated and detailed Faretta colloquies, as well as the provision of standby counsel, demonstrated a careful and deliberate approach to safeguarding Jackson’s rights while respecting his autonomy.

Ultimately, the Fifth Circuit found no abuse of discretion in the district court’s handling of Jackson’s self-representation or its decision not to conduct a sua sponte competency hearing, thus affirming Jackson’s conviction.

United States v. Allam, No. 24-40065, 140 F.4th 289 (5th Cir. June 16, 2025)

Issues: Bruen, Second Amendment, Firearms, Firearm Possession Near a School.

Judge Graves, Judge Higginson, Judge Wilson (from E.D. Texas):

The Fifth Circuit considered an as-applied Second Amendment challenge to 18 U.S.C. § 922(q)(2)(A), which prohibits firearm possession within 1,000 feet of a school zone. Ahmed Abdalla Allam was convicted under this statute after being found with an AR-15-style rifle and ammunition while parked near a private school in Beaumont, Texas. Allam’s conduct—marked by extended periods of parking near the school, disturbing behavior, and ominous statements—prompted repeated police intervention and significant disruption to the school’s operations.

Allam, originally from Brooklyn, New York, purchased a rifle in Pennsylvania during a cross-country trip and began living out of his SUV. Upon arriving in Beaumont, he repeatedly parked adjacent to St. Anthony Cathedral Basilica School, a private school for young children. His persistent presence, refusal to leave despite requests from school staff, police, and community members, and his cryptic statement about having a “mission” and not being seen again after Monday caused alarm. The school responded by suspending outdoor activities and altering student routines. On January 29, 2023, after being stopped for traffic violations and refusing to comply with police instructions, Allam was arrested. A search of his vehicle revealed the rifle, 150 rounds of ammunition, a loaded thirty-round magazine, disturbing notes and images, children’s clothing, and drug residue.

Allam was indicted under Section 922(q)(2)(A), which makes it unlawful to knowingly possess a firearm that has moved in or otherwise affects interstate or foreign commerce at a place the individual knows, or has reasonable cause to believe, is a school zone. The statute defines a “school zone” as the grounds of a public, parochial, or private school, or within 1,000 feet of such grounds. Allam moved to dismiss the indictment, arguing that the statute, as applied to him, violated his Second Amendment rights. The district court denied the motion, upholding the statute’s constitutionality both facially and as applied. Allam pled guilty and was sentenced to 60 months’ imprisonment and three years of supervised release. On appeal, he challenged only the as-applied denial of his Second Amendment claim.

The Fifth Circuit again assessed the challenge under the Bruen framework. The Court also referenced United States v. Rahimi, which clarified that a regulation need not be a “dead ringer” for historical analogues but must be “relevantly similar” in terms of the “why and how” it burdens the right to keep and bear arms.

The Court found that Allam’s conduct—possessing a rifle in his vehicle for self-defense—fell within the plain text of the Second Amendment. The core issue, therefore, was whether applying Section 922(q)(2)(A) to Allam was consistent with historical firearm regulations.

Historical Analogues and Sensitive Places

The government advanced several historical analogues. The Court began with the Statute of Northampton, an English law from 1328 and later versions, which prohibited carrying arms in public places in a manner that would “terrify the people.” While the statute was not strictly enforced as written and was ultimately interpreted to prohibit carrying arms only when done to the terror of the public, the Court found it to be a relevantly similar example of a location-based restriction on arms, especially as incorporated into American common law through “going armed” offenses.

The Court also considered early American regulations in educational settings, such as 19th-century college rules prohibiting students from possessing weapons on campus. These were limited in scope, applying only to students and not the general public, and did not create buffer zones extending beyond school grounds. Later 19th-century statutes in Texas and Missouri more broadly prohibited carrying firearms in schools, but again, these were largely confined to the interior of school buildings. The government further pointed to historical buffer zones around polling places, such as Delaware’s 1776 constitutional provision and post-Civil War statutes in Louisiana, Texas, and Maryland, which restricted arms within certain distances of polling places on election days. While these laws were temporally and geographically limited, the Court found that they provided some support for the permissibility of buffer zones designed to prevent violence in sensitive contexts.

Application to Allam’s Conduct

The Court’s as-applied analysis was fact-driven. Allam was not merely passing through a school zone; he was parked approximately 40 feet from the school, adjacent to a playground and a crosswalk used by students, and his conduct had a direct and disruptive impact on the school community. His behavior was perceived as threatening, prompting repeated police intervention and changes to school operations. The Court noted that the buffer zone in Section 922(q)(2)(A) “needed to do very little work here, if any,” given Allam’s proximity to the school and the nature of his conduct.

The Court rejected Allam’s argument that the lack of a precise historical analogue for a 1,000-foot buffer zone rendered the statute unconstitutional as applied. The relevant inquiry under Bruen and Rahimi is not whether there is a historical “twin,” but whether the regulation is consistent with the principles underlying the Second Amendment and the nation’s tradition of firearm regulation. The Court found that, as applied to Allam, Section 922(q)(2)(A) was “relevantly similar” to historical going-armed laws and the limited historical examples of firearm restrictions in educational and sensitive settings.

The Fifth Circuit affirmed the district court’s denial of Allam’s as-applied Second Amendment challenge, holding that the application of Section 922(q)(2)(A) to Allam was consistent with the nation’s historical tradition of firearm regulation.

United States v. Nyandoro, No. 23-10579, 140 F.4th 714 (5th Cir. June 19, 2025)

Issues: Withdrawal of Guilty Plea, Appellate Waiver.

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

The Fifth Circuit addressed two principal issues arising from a guilty plea to a charge under 18 U.S.C. § 922(g)(3): (1) whether the district court abused its discretion in denying the defendant’s motion to withdraw his guilty plea, and (2) whether the defendant’s challenge to the constitutionality of Section 922(g)(3) is foreclosed by an appeal waiver contained in his plea agreement.

Kenleone Joe Nyandoro was arrested after police responded to reports of gunfire and found him in possession of a stolen Smith & Wesson pistol. Subsequent searches uncovered additional firearms, marijuana, and drug paraphernalia at his residence and in his vehicle. Nyandoro admitted to daily marijuana use and to discharging a firearm. He was charged with possession of a firearm by an unlawful user of a controlled substance, in violation of Section 922(g)(3).

Nyandoro entered into a favorable plea agreement: in exchange for his guilty plea, the government allowed him to participate in a rehabilitation program (“STEPS”), with the promise that successful completion would result in dismissal of the charges. The agreement included a broad waiver of appellate rights, subject to limited exceptions. After failing out of the STEPS program due to a new arrest for fleeing police, Nyandoro lost the opportunity for dismissal and proceeded to sentencing.

Nearly ten months after his guilty plea, and after the Supreme Court’s decision in Bruen, Nyandoro moved to withdraw his plea, arguing that Section 922(g)(3) was unconstitutional under the Second and Fifth Amendments. The district court denied the motion after weighing the factors set forth in United States v. Carr, 740 F.2d 339 (5th Cir. 1984), and it sentenced Nyandoro to 51 months’ imprisonment and three years of supervised release. Nyandoro appealed, raising both the denial of his withdrawal motion and the acceptance of his plea in light of his constitutional challenge.

Denial of Motion to Withdraw Guilty Plea

The Fifth Circuit began by reiterating that there is no absolute right to withdraw a guilty plea prior to sentencing; rather, the decision is committed to the district court’s broad discretion. The Court must determine whether the defendant has shown a “fair and just reason” for withdrawal, guided by the seven Carr factors: assertion of innocence, prejudice to the government, delay in filing the motion, inconvenience to the court, availability of close assistance of counsel, whether the plea was knowing and voluntary, and whether withdrawal would waste judicial resources.

The district court found that only the assertion of innocence favored Nyandoro, while the inconvenience to the court was neutral. The remaining factors—including the significant delay in seeking withdrawal (measured from the date of Bruen), potential prejudice to the government, and the knowing and voluntary nature of the plea—favored the government. The Fifth Circuit found no abuse of discretion in this analysis. The Court specifically rejected Nyandoro’s argument that a change in law (Bruen and the subsequent Rahimi decision) rendered his plea retroactively unknowing or involuntary, reaffirming that a plea made intelligently under then-applicable law does not become invalid due to later legal developments. The Court also noted that the risk of adverse changes in the law is inherent in plea bargaining, especially where an appeal waiver is included.

Scope and Enforceability of the Appeal Waiver

Turning to Nyandoro’s challenge to the acceptance of his guilty plea, the Court addressed whether his constitutional attack on Section 922(g)(3) was barred by the appeal waiver in his plea agreement. The waiver, which was explicit and unambiguous, precluded appeals of the conviction and sentence except for certain narrow exceptions (e.g., sentences exceeding the statutory maximum, arithmetic errors, voluntariness of the plea or waiver, and ineffective assistance of counsel).

The Court conducted a two-step inquiry: first, whether the waiver was knowing and voluntary (which it was, based on the record and Nyandoro’s own acknowledgments), and second, whether the waiver applied to the circumstances at hand. The Court held that the waiver did apply and that none of the exceptions were implicated by Nyandoro’s constitutional challenge.

Distinction Between Factual-Insufficiency and Constitutional Challenges

A significant portion of the opinion is devoted to clarifying the so-called “factual-insufficiency” exception to appeal waivers. The Fifth Circuit has recognized that, even where a defendant has entered an unconditional guilty plea or signed an appeal waiver, the Court may review whether the factual basis for the plea fails to establish an element of the offense. This exception is narrow and applies only where the admitted conduct does not satisfy the statutory elements of the crime.

The Court distinguished this from constitutional challenges, which are waivable and do not fall within the factual-insufficiency exception. A constitutional challenge presumes that the statute applies to the defendant’s conduct but argues that Congress may not constitutionally proscribe that conduct. The Court cited United States v. Miles, No. 22-10932, 2024 WL 1827825 (5th Cir. Apr. 26, 2024), and United States v. Johnson, 246 F.3d 749 (5th Cir. 2001), to reinforce that constitutional challenges to the statute of conviction are waivable, whereas factual-insufficiency claims are not.

Applying these principles, the Court found that Nyandoro’s arguments were purely constitutional—he did not dispute that his conduct satisfied the elements of Section 922(g)(3), but rather that the statute was unconstitutional as applied to him. The Court rejected his attempt to reframe his constitutional challenge as a factual-insufficiency claim, noting that such a maneuver would undermine the enforceability of appeal waivers and settled precedent.

Rejection of Additional Arguments to Avoid the Waiver

The Court also rejected several alternative arguments advanced by Nyandoro to avoid the waiver. First, it found no merit in his claim that his plea was not knowing and voluntary due to the court’s failure to advise him of the statute’s alleged unconstitutionality, reiterating that a plea is not rendered involuntary by subsequent changes in the law. Second, the Court distinguished United States v. White, 258 F.3d 374 (5th Cir. 2001), which involved materially different waiver language and a preserved jurisdictional challenge. Third, the Court held that the statutory-maximum exception to the waiver did not apply, as Nyandoro’s sentence did not exceed the statutory ceiling. Finally, the Court declined to recognize a “miscarriage of justice” exception to the waiver, noting that such an exception has not been adopted in the Fifth Circuit and would be inconsistent with controlling precedent.

Thus, the Fifth Circuit affirmed the district court’s judgment in all respects.

United States v. Carpenter, No. 24-11076, 140 F.4th 733 (5th Cir. June 20, 2025)

Issues: Healthcare Fraud, Juror Exclusion, Hearsay, Rule of Completeness, Confrontation Clause, Rule 404(b). 

Judge Higginson, Judge Ho, Judge Wilson (from N.D. Texas):

The Fifth Circuit analyzed Dr. Brian Carpenter’s convictions for healthcare fraud and conspiracy to commit healthcare fraud, arising from his alleged participation in a scheme to defraud TRICARE, the Department of Defense’s health insurance program. Ultimately, the Court reversed Carpenter’s convictions based on the district court improperly excusing a juror mid-trial while affirming the district court’s evidentiary rulings made during the trial.

Factual Background

Dr. Carpenter, a podiatrist at the University of North Texas, was implicated in a large-scale scheme orchestrated by Britt and Matt Hawrylak, who, along with their uncle Jerry Hawrylak (Carpenter’s co-defendant), recruited doctors to write medically unnecessary prescriptions for compounded medications to be filled by Rxpress Pharmacy and billed to TRICARE at inflated rates. The Hawrylak brothers, through a network of “sub-reps,” obtained medical information about TRICARE beneficiaries and identified physicians willing to participate. Rxpress paid the Hawrylaks, who in turn compensated sub-reps, doctors, and even beneficiaries via kickbacks. By 2015, the scheme had grown to include over a hundred sub-reps and hundreds of doctors, generating millions in illicit proceeds.

Jerry Hawrylak, leveraging his insurance industry connections, recruited Carpenter to write prescriptions for TRICARE beneficiaries. Initially, Carpenter refused to participate for compensation, citing legal concerns, but later agreed to write prescriptions for TRICARE patients referred by Jerry, purportedly as a gesture to help veterans, and routed these through Rxpress. Carpenter maintained separate records for TRICARE and clinical patients, with a significant portion of the TRICARE prescriptions showing patterns suggestive of fraud (e.g., multiple patients at the same address, shared surnames, and Jerry’s fax number on most prescriptions). The financial benefit to the Hawrylaks and Jerry from Carpenter’s prescriptions alone was substantial, with Jerry receiving approximately $1.3 million. At one point, Jerry requested and received $6,000–$8,000 from Britt Hawrylak to pay Carpenter for his prescriptions.

In September 2019, Carpenter and Jerry were indicted on six counts of healthcare fraud and one count of conspiracy. Both were convicted on all counts in April 2023, and Carpenter appealed, raising four principal issues.

Juror Dismissal Under Federal Rule of Criminal Procedure 24

The dispositive issue on appeal was the district court’s dismissal of a seated juror after the first day of trial. The juror, a seventh-grade math teacher, was excused after her principal emailed the district court, expressing concern that her absence would disrupt preparations for the upcoming STAAR standardized test. The court, noting that it would have excused her for undue hardship had it known of the principal’s concerns during voir dire, decided to dismiss her after the first day, over the defendants’ objections.

Federal Rule of Criminal Procedure 24(c) permits the replacement of jurors who are “unable to perform or who are disqualified from performing their duties.” The Fifth Circuit emphasized that the standard for dismissing a seated juror is more stringent than for excusing a prospective juror during voir dire, where “undue hardship or extreme inconvenience” suffices. Once empaneled, a juror may only be dismissed if her ability to perform her duties is impaired.

The Court found that the district court made no finding that the juror was unable to perform her duties or that her ability was impaired. The record indicated that the juror was attentive and did not request to be excused. The only basis for her dismissal was the hardship to her employer, not to the juror herself. The Fifth Circuit distinguished this case from United States v. Dumas, 658 F.2d 411 (5th Cir. Unit A Oct. 1981), where a juror was excused due to an urgent need by his employer (the U.S. Army), and the court found the juror “unable to serve.” Here, the Court found no evidence that the juror’s absence from work would have distracted her from her duties as a juror or rendered her unable to serve.

The Court reiterated that, under its precedent, prejudice is presumed when a juror is discharged without factual support or for a legally irrelevant reason. The Court concluded that the district court erred by conflating the standards for voir dire and post-empanelment dismissal and that the dismissal was not supported by a legally relevant reason under Rule 24(c). Accordingly, the Court vacated Carpenter’s convictions and remanded for a new trial.

As noted, the Court, despite reversing Carpenter’s convictions, still considered the remainder of his appellate challenges, likely as a signal to the district court for making similar rulings should a retrial occur.

Rule of Completeness and Hearsay

Carpenter’s first evidentiary argument on appeal concerned the district court’s application of Federal Rule of Evidence 106, the rule of completeness. At trial, the government introduced selected excerpts from a two-hour recorded conversation between Britt and Jerry Hawrylak, including a statement by Jerry that he could “account for all the money [he] gave [Carpenter],” which the government used as direct evidence that Carpenter received payments for writing prescriptions. However, the jury did not hear other portions of the recording in which Jerry repeatedly denied ever paying Carpenter, including an emphatic statement that Carpenter “didn’t get any f—ing money.”

The defense did not object to the government’s excerpts or move to admit the full recording contemporaneously, but did cross-examine Britt about Jerry’s denials. The district court, after a sidebar, sustained the government’s objection to admitting the remainder of the recording, reasoning that the omitted portions constituted self-serving hearsay and were inadmissible under Fifth Circuit precedent.

The Fifth Circuit found that the district court misapplied Rule 106, which, as clarified in United States v. Portillo, 969 F.3d 144 (5th Cir. 2020), and subsequently codified in the 2023 amendment to Rule 106, allows for the admission of otherwise hearsay statements when necessary to qualify, explain, or place into context the admitted portions. Court held that the district court erred in excluding the remainder of the recording solely on hearsay grounds. However, the error was deemed harmless because the defense was able to elicit, through cross-examination, that Jerry had repeatedly denied paying Carpenter, and the jury was thus exposed to the substance of the omitted statements. The Court concluded that Carpenter’s substantial rights were not affected, and thus no reversible error occurred on this ground.

Limitations on Cross-Examination and Exclusion of Expert Testimony

Carpenter next argued that the district court violated his Sixth Amendment confrontation rights by limiting his cross-examination of the Hawrylak brothers regarding the sentencing benefits they received for cooperating with the government. Carpenter sought to question them about the reduction in their Sentencing Guidelines ranges and to introduce expert testimony explaining the calculation of those reductions.

The district court permitted only limited questioning about whether the Hawrylaks’ plea agreements resulted in lower statutory maximums and whether they received significant benefits, but it prohibited any discussion of the Guidelines or expert testimony on the subject. The Fifth Circuit held that these limitations did not violate the Confrontation Clause or constitute an abuse of discretion. The Court reasoned that the defense was able to elicit sufficient testimony to allow the jury to infer the witnesses’ bias and understand the incentives for their cooperation. The jury was also instructed to view their testimony with caution due to the benefits received. The exclusion of the expert was likewise not an abuse of discretion, as the jury was adequately informed of the sentencing benefits without the need for technical explanation of the Guidelines.

Admission of Intrinsic Evidence Under Rule 404(b)

Carpenter also challenged the admission of a prescription he wrote for Jerry Hawrylak, which was routed through Jerry’s personal insurer rather than TRICARE. The defense objected under Federal Rule of Evidence 404(b), arguing that the evidence was inadmissible as an “other act” offered to show character. The district court overruled the objection, finding the evidence intrinsic to the charged conspiracy, as the prescription was nearly identical to those written for TRICARE beneficiaries and was issued during the period of the alleged scheme.

The Fifth Circuit affirmed the district court’s ruling, noting that evidence is intrinsic and not subject to Rule 404(b) when it is inextricably intertwined with the charged offense or part of a single criminal episode. The prescription in question was sufficiently connected to the conspiracy, given its timing, similarity, and Jerry’s central role, and its admission was not an abuse of discretion.

Dissenting Opinion

Judge Ho dissented, arguing that the district court did not abuse its discretion in dismissing the juror. He reasoned that the plain meaning of “unable to perform” under Rule 24(c) encompasses situations where a juror’s employer urgently needs her presence, as in Dumas. Judge Ho contended that the district court’s decision to credit the principal’s concerns was within its discretion and that the majority’s approach unduly restricts the trial court’s authority to manage the jury.

United States v. Reyes, No. 24-40369, 141 F.4th 682 (5th Cir. June 24, 2025)

Issues: Bruen, Felon in Possession, Second Amendment, Firearms.

Chief Judge Elrod, Judge King, Judge Graves (Per Curiam) (from S.D. Texas):

The Fifth Circuit addressed another Bruen-based challenge to 18 U.S.C. § 922(g)(1). Luis Reyes, a documented member of the Texas Syndicate prison gang with an extensive and violent criminal history, was convicted under Section 922(g)(1) after police discovered a loaded firearm in his vehicle during a lawful impoundment. Reyes entered a conditional guilty plea, preserving his right to challenge the statute’s constitutionality on both Second Amendment and Commerce Clause grounds.

On appeal, Reyes advanced three principal arguments: (1) that Section 922(g)(1) is facially unconstitutional under the Second Amendment; (2) that the statute exceeds Congress’s authority under the Commerce Clause as applied to him; and (3) that, in light of Bruen and Rahimi, the statute is unconstitutional as applied to his circumstances. The Fifth Circuit rejected each argument. The Court reaffirmed that it is bound by prior circuit precedent upholding the facial constitutionality of Section 922(g)(1) and its application under the Commerce Clause, noting that the statute’s interstate commerce element is satisfied by evidence that the firearm traveled across state lines, regardless of the defendant’s involvement in that movement.

Addressing the as-applied Second Amendment challenge, the Court conducted a de novo review and found that the Nation has a longstanding tradition of disarming individuals with criminal histories analogous to Reyes’s, particularly those who pose a credible threat to public safety. The Court cited recent Fifth Circuit and Supreme Court authority confirming the constitutionality of Section 922(g)(1) as applied to defendants with violent or otherwise serious felony convictions. Ultimately, the Court concluded that the application of Section 922(g)(1) to Reyes “fits neatly” within the historical tradition of firearm regulation and does not violate the Commerce Clause, affirming both his conviction and sentence.

United States v. Kimble, No. 23-50874, 142 F.4th 308 (5th Cir. June 30, 2025)

Issues: Bruen, Felon in Possession, Second Amendment, Firearms.

Judge Smith, Judge Graves, Judge Duncan (from W.D. Texas):

The Fifth Circuit assessed the constitutionality of 18 U.S.C. § 922(g)(1) as applied to individuals convicted of drug-trafficking felonies under Bruen. Sidney Donnell Kimble, the appellant, had two prior drug-trafficking felony convictions—one under Texas law for manufacturing or delivering a controlled substance, and another federal conviction for possession with intent to distribute cocaine. After serving his sentences, Kimble was arrested in 2021 for being a felon in possession of a firearm, in violation of Section 922(g)(1). He moved to dismiss the indictment, arguing that the statute was unconstitutional both facially and as applied to him, particularly in light of Bruen. The district court denied his motion, and Kimble entered a conditional guilty plea, preserving his right to appeal the constitutional question.

The panel began by outlining the familiar post-Bruen analytical framework for Second Amendment challenges. The Court noted that, under Bruen and subsequent Fifth Circuit precedent, the Second Amendment’s protections extend to all “the people,” including convicted felons, and thus the government must justify the disarmament of felons by reference to historical analogues.

The Court then reviewed its own post-Bruen jurisprudence, particularly United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), which recognized that categorical bans on firearm possession by felons are no longer automatically constitutional. Instead, courts must entertain as-applied challenges, requiring the government to show a tradition of disarming individuals with criminal histories analogous to the challenger’s. The Fifth Circuit had previously upheld Section 922(g)(1) as applied to felons convicted of theft, violence, or those found in possession of firearms while on supervised release, based on historical analogues of severe punishment for such offenses.

The central question in Kimble’s appeal was whether a predicate drug-trafficking felony justifies permanent disarmament under Section 922(g)(1), even after the individual has completed their sentence. The government advanced two principal arguments: first, that drug-trafficking felonies are analogous to certain Founding-era felonies (such as horse theft, mail theft, and counterfeiting) that were punishable by death or estate forfeiture; and second, that drug trafficking is an intrinsically dangerous felony, and thus Congress may disarm those convicted of such offenses as a class of dangerous persons.

The Court rejected the first argument, finding that the government’s analogical reasoning stretched Bruen too far. The historical crimes cited by the government—while severely punished—were fundamentally crimes of theft, fraud, or deceit, not the creation, possession, or distribution of illicit goods. The Court cautioned against reading historical principles at such a high level of generality that they would allow Congress to disarm anyone convicted of possessing any item deemed illicit, which would “water down the right” protected by the Second Amendment.

However, the Court accepted the government’s second argument, holding that drug trafficking is an inherently dangerous activity, and that Congress’s decision to disarm individuals convicted of such offenses is consistent with the historical tradition of disarming those deemed dangerous. The Court cited English and colonial American practices of disarming groups considered dangerous to public safety, as well as the understanding at the time of the Founding that legislatures could disarm those who posed a threat of violence or public injury. The Court also referenced legislative, executive, and judicial recognition of the link between drug trafficking and violence, noting that firearms are commonly used in the drug trade and that Congress has specifically targeted the combination of drugs and guns as a threat to public safety.

The panel emphasized the narrowness of its decision, making clear that its holding was limited to the constitutionality of Section 922(g)(1) as applied to individuals convicted of drug-trafficking felonies. The Court expressly declined to require an individualized assessment of dangerousness in such cases, instead upholding Congress’s authority to make categorical judgments about the dangerousness of certain classes of offenders. The Court distinguished its approach from that of other circuits, such as the Third and Sixth Circuits, which have required individualized assessments of dangerousness in as-applied challenges to Section 922(g)(1). The Fifth Circuit affirmed Kimble’s conviction, holding that Section 922(g)(1) is constitutional as applied to individuals convicted of drug-trafficking felonies, based on the historical tradition of disarming those deemed dangerous.

Judge Graves concurred in the judgment but disagreed with the majority’s refusal to conduct an individualized assessment of dangerousness. He argued that the majority’s reliance on pre-Bruen cases involving both drugs and guns was misplaced, as those cases typically involved the actual use or presence of a firearm in connection with a drug offense, rather than mere status-based disarmament. Judge Graves also noted that the distinction between drug users and drug traffickers is often a matter of quantity, and that there is no principled basis for categorically deeming all drug traffickers “intrinsically dangerous” while exempting habitual drug users from permanent disarmament. He pointed to the risk of overbreadth, noting that individuals convicted of nonviolent drug-trafficking offenses without any connection to firearms or violence could be permanently disarmed without any opportunity to demonstrate their lack of dangerousness.

Judge Graves further observed that other circuits, such as the Sixth Circuit in United States v. Williams, 113 F.4th 637 (6th Cir. 2024), have required district courts to make fact-specific determinations of dangerousness, considering the unique circumstances of the individual and their entire criminal record. He criticized the majority for rejecting this approach and for failing to provide authority for its categorical rule. In his view, the majority’s approach risks creating unjust disparities and undermines the individualized assessment that should be at the heart of as-applied constitutional challenges.

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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