Welcome to another monthly roundup of notable Fifth Circuit Criminal and White Collar-related case updates. July was a relatively quiet month for published criminal decisions, with the Court issuing just three new decisions, with another opinion replacing a previous decision.
This month’s cases addressed a range of important topics, including the application of Bruen, an extended discussion of Terry stops, the Sentencing Guidelines, and collateral attacks on previous immigration removal orders.
As always, each case title below links directly to the full opinion, and the judge who authored the Court’s opinion is highlighted in bold.
United States v. Goody, No. 23-20471, — F.4th —, 2025 WL 1924688 (5th Cir. July 14, 2025)
Issues: Bruen, Felon in Possession, Second Amendment, Firearms, Equal Protection, Due Process
Judge Southwick, Judge Oldham, Judge Ramirez (Per Curiam) (from S.D. Texas):
The Fifth Circuit affirmed Joseph Terrell Goody’s conviction and sentence for possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Goody, a documented gang member with an extensive criminal history—including convictions for robbery, assault, deadly conduct, evading arrest, and burglary—was apprehended after a traffic stop revealed narcotics and a loaded rifle concealed in a guitar case. Goody pleaded guilty and received a 57-month term of imprisonment followed by two years of supervised release, with special conditions prohibiting gang association.
On appeal, Goody raised three principal arguments. First, he challenged the constitutionality of the felon-in-possession statute under the Second Amendment, contending that it facially infringes the fundamental right to keep and bear arms. The Fifth Circuit rejected this argument, citing its own recent precedent in United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), which upheld the constitutionality of Section 922(g)(1) against similar Second Amendment challenges. The Court reaffirmed that, while the right to bear arms is fundamental, longstanding prohibitions on firearm possession by felons remain constitutionally permissible.
Second, Goody argued that the statute violated the equal protection principles implicit in the Fifth Amendment’s Due Process Clause, asserting that it impermissibly burdens a fundamental right. The Court dismissed this claim, noting that the Fifth Amendment does not provide an additional layer of protection for Second Amendment rights, and that attempts to repackage Second Amendment arguments as due process or equal protection claims are unavailing under established Fifth Circuit and Supreme Court precedent.
Third, Goody challenged the supervised release condition barring him from associating with gang members, arguing it was unconstitutionally vague. The Court reviewed this claim for plain error and found none, emphasizing that such conditions are routinely imposed and have been upheld by multiple circuits as reasonable measures to deter recidivism and protect the public. The Fifth Circuit noted the absence of any binding precedent holding such conditions unconstitutionally vague and cited decisions from other circuits that have upheld similar restrictions as reasons it found no plain error.
In sum, the Fifth Circuit found no merit in any of Goody’s constitutional or procedural challenges and affirmed his conviction and sentence.
United States v. Wilson, No. 23-30777, — F.4th —, 2025 WL 1982767 (5th Cir. July 17, 2025)
Issues: Terry Stops, Sufficiency of the Evidence, False Statements, Lay Opinion Testimony, Prosecutorial Misconduct, Sentencing Guidelines
Judge Graves, Judge Englehardt, Judge Oldham (from E.D. Louisiana):
The Fifth Circuit addressed issues concerning the Fourth Amendment, the Second Amendment, and federal sentencing law. The case arose from a 2022 Terry stop of Damion Wilson by federal agents in Louisiana, which led to his conviction on multiple drug and firearm charges. Ultimately, the Court affirmed Wilson’s conviction and sentence.
Background and Procedural History
On March 16, 2022, a Deputy U.S. Marshal and other federal agents stopped Damion Wilson after observing a bulge in his waistband that appeared consistent with a concealed firearm. Upon being stopped, Wilson admitted to being armed and lacking a concealed carry permit, as then required by Louisiana law. The agents seized a loaded handgun with an extended magazine from Wilson and, incident to his arrest for carrying a firearm without a permit, searched his backpack and found marijuana. A subsequent search of Wilson’s apartment, pursuant to a warrant, uncovered additional marijuana, drug paraphernalia, and cash.
Wilson was indicted on six counts, with four relevant to the appeal: possession with intent to distribute marijuana, possession of a handgun in furtherance of a drug trafficking crime, maintaining a drug-involved premises, and making a false statement to a federal agent. He moved to suppress the evidence and statements arising from the Terry stop, but the district court denied the motion, finding reasonable suspicion based on the observation of the firearm bulge. The Court also held that the search of the backpack was justified under the inevitable discovery doctrine. Wilson was convicted on all four counts and sentenced to a total of 87 months’ imprisonment, consisting of 27 months on the drug and false statement counts and a consecutive 60 months for the firearm offense. He appealed, challenging the denial of his suppression motion, the sufficiency of the evidence, certain evidentiary rulings, alleged prosecutorial misconduct, and the calculation of his Guidelines range.
Fourth Amendment Analysis: Terry Stops and Firearm Possession
The central issue on appeal was whether the mere act of carrying a firearm, without more, provides reasonable suspicion sufficient to justify a Terry stop. The Fifth Circuit found it was not, holding that police cannot stop a citizen solely for carrying a firearm. The Court rejected the district court’s presumption that carrying a firearm is presumptively illegal in Louisiana, and thus sufficient to justify a stop.
The opinion provides an extensive historical analysis, tracing the origins of the Fourth Amendment’s prohibition on unreasonable searches and seizures to the Founders’ rejection of general warrants and writs of assistance. The Court analogized the right to keep and bear arms to the right to possess papers, emphasizing that both are protected by the Constitution and cannot be the basis for suspicion-less stops. The Court noted that, at the time of Wilson’s arrest, Louisiana law prohibited concealed carrying of a firearm without a permit, but the permit requirement was minimal and the burden of proof for licensure was on the defendant at trial. The district court had reasoned that this statutory scheme made carrying a firearm presumptively unlawful, justifying Terry stops of anyone carrying a firearm.
The Fifth Circuit rejected this approach for six reasons:
- Historical and Constitutional Inconsistency: The presumption of illegality is inconsistent with the Fourth Amendment’s history and tradition, which require individualized suspicion and prohibit class-based assumptions of criminality.
- Terry Doctrine Requirements: The Terry doctrine requires reasonable, individualized suspicion based on the totality of the circumstances. There is no “firearm exception” to this requirement.
- Fourth Amendment Doctrine: The Supreme Court has only permitted suspicion-less searches in limited, programmatic contexts (g., sobriety checkpoints), not for general law enforcement or for targeting gun owners as a class.
- Substance vs. Procedure: The allocation of the burden of proof for licensure in state law is a matter of trial procedure, not substantive criminality, and cannot justify a presumption of illegality for Fourth Amendment purposes.
- Doctrinal Indeterminacy: The presumption of illegality is not consistently applied across jurisdictions, especially in “shall issue” states where permits are readily available.
- Analogy to Other Licensing Schemes: The Court analogized driver’s licenses, noting that the mere act of driving does not create reasonable suspicion of unlicensed driving, even where licensure is an affirmative defense.
The Court further emphasized that the right to keep and bear arms is a fundamental constitutional right, and that the presumption of illegality should be even weaker for gun owners than for drivers, given the Second Amendment’s protections.
Application to Wilson’s Case: Reasonable Suspicion Based on Totality of Circumstances
Despite rejecting the district court’s categorical rule, the Fifth Circuit upheld the Terry stop in Wilson’s case based on the totality of the circumstances. The agents did not stop Wilson solely because he was armed; rather, they sought to interview him about his association with Malik Fernandez, a federal fugitive involved in drug trafficking and a recent shootout. Multiple witnesses had reported seeing Fernandez with Wilson, and Wilson’s criminal history included recent charges for drug trafficking and firearm offenses. The Court found that these facts, combined with the observation of the firearm, provided ample reasonable suspicion to justify the stop and a protective search.
Sufficiency of the Evidence
Wilson challenged the sufficiency of the evidence supporting his conviction for making a false statement to a federal agent. The Court reviewed this claim under the plain error standard, as Wilson had not moved for a judgment of acquittal at trial. The government’s evidence included Instagram photos of Wilson and Fernandez together, posted less than four months before the stop, and a stipulation that Wilson and Fernandez were found together in a car five days after the stop. The Court held that a reasonable jury could conclude that Wilson’s statement that he had not seen Fernandez in six years was false, and that the evidence was not “completely, obviously, and unbelievably inadequate.”
Evidentiary Rulings: Lay Opinion Testimony
Wilson also challenged the admission of the U.S. Deputy Marshal’s lay opinion testimony identifying him and Fernandez in photographs. The Court held that this claim was subject to plain error review, as Wilson’s objections at trial were not specific to Rule 701 or lay opinion testimony. The Court found no error, noting that lay witnesses may identify individuals in photographs if the testimony is based on first-hand knowledge or observation. Deputy Atkins’ familiarity with Wilson and Fernandez, and the fact that the photos depicted them wearing hats and sunglasses, made his testimony helpful to the jury and within the scope of permissible lay opinion.
Prosecutorial Misconduct
Wilson argued that the prosecutor made improper remarks during closing argument, including vouching for the credibility of law enforcement witnesses, expressing personal opinions about Wilson’s guilt, and referring to Wilson as an “armed drug dealer.” The Court reviewed these claims for plain error, as Wilson did not object at trial. The Court found that the prosecutor’s remarks were either supported by the evidence or constituted permissible rhetorical flourish. The Court also noted that the trial judge instructed the jury that attorneys’ statements were not evidence, and that the evidence of Wilson’s guilt was overwhelming. The Court concluded that the remarks did not cast serious doubt on the correctness of the verdict or undermine the fundamental fairness of the trial.
Sentencing Guidelines: Cross-Reference to Obstruction of Justice
The final issue concerned the district court’s application of the Sentencing Guidelines. Wilson was convicted of making a false statement under 18 U.S.C. § 1001(a)(2), for which the applicable Guideline is generally USSG § 2B1.1 (fraud and deceit). However, USSG § 2B1.1(c)(3) provides a cross-reference to another Guideline if the conduct set forth in the count of conviction establishes an offense specifically covered by another Guideline in Chapter Two. The district court applied the obstruction-of-justice Guideline (USSG § 2J1.2), finding that Wilson’s conduct constituted obstruction.
The Fifth Circuit affirmed the district court’s application of the cross-reference, holding that the indictment and trial evidence supported the finding that Wilson’s conduct amounted to obstruction of justice. The Court noted that, even if this was an error, it was not a plain error, as there was no binding precedent prohibiting the district court from considering trial evidence in applying the cross-reference.
Dissent on Sentencing Issue
Judge Graves concurred in the majority’s rejection of Wilson’s challenges to his conviction but dissented from the affirmance of the sentence. He argued that, under Fifth Circuit precedent (United States v. Arturo Garcia, 590 F.3d 308 (5th Cir. 2009), and United States v. Griego, 837 F.3d 520 (5th Cir. 2016)), the cross-reference in USSG § 2B1.1(c)(3) may only be applied if the conduct alleged in the indictment establishes the elements of another offense. In both Arturo Garcia and Griego, the Court held that the indictment must allege the specific mens rea required for the cross-referenced offense (e.g., “corruptly” for obstruction), and that trial evidence or stipulations cannot cure deficiencies in the indictment. Judge Graves concluded that Wilson’s indictment, which merely alleged a knowing and willful false statement, did not establish the specific intent required for obstruction under 18 U.S.C. §§ 1503 or 1505. He further noted that the error affected Wilson’s substantial rights, as he was sentenced at the top of the Guidelines range, and that the error warranted correction under Supreme Court precedent.
United States v. Wickware, No. 24-10519, — F.4th —, 2025 WL 2048446 (5th Cir. July 22, 2025)
Issues: Sentencing, Sentencing Guidelines, Intervening Amendment, Categorical Approach, Crimes of Violence
Judge Stewart, Judge Clement, Judge Willett (Per Curiam) (from N.D. Texas):
The Fifth Circuit issued its original opinion in this case on May 7, 2025, and my summary of that case can be found here: Fifth Circuit Criminal Opinions: Insights and Analyses Part IIII – Jackson Walker.
Wickware moved for a rehearing, and the Court substituted this new opinion in place of the original. The body of the opinion was largely the same, but in a footnote, the Court added language concerning a new argument Wickware made in that petition—that the definition of Texas robbery tracks the federal Hobbs Act robbery language. Since Wickware never raised that argument during the principal briefing phase of the appellate process, the Court found he forfeited this argument.
United States v. Ortiz-Rodriguez, No. 24-50213, — F.4th —, 2025 WL 2078220 (July 23, 2025)
Issues: Immigration, Deportation, Collateral Attacks to Deportation
Judge Richman, Judge Willett, Judge Douglas (from W.D. Texas):
The case involves Ismael Adan Ortiz-Rodriguez, a noncitizen who was removed from the United States in 2017 through expedited removal proceedings after a Texas felony conviction for evading arrest with a vehicle. In 2023, Ortiz-Rodriguez was found in the United States and charged with illegal reentry under 8 U.S.C. § 1326(a). He moved to dismiss the indictment by collaterally attacking the validity of his 2017 removal order pursuant to 8 U.S.C. § 1326(d), arguing that his waiver of judicial review was unknowing and involuntary, and that his underlying conviction was erroneously classified as an aggravated felony. The district court denied his motion, and Ortiz-Rodriguez was convicted and sentenced to 51 months’ imprisonment. He appealed, challenging both the denial of his motion to dismiss and the revocation of supervised release from a prior illegal reentry conviction.
Collateral Attack Under 8 U.S.C. § 1326(d)
Section 1326(d) provides a narrow avenue for a defendant to collaterally attack the validity of a prior deportation order, which is an element of the illegal reentry offense. To succeed, the defendant must show: (1) exhaustion of any administrative remedies available to seek relief against the order; (2) that the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) that the entry of the order was fundamentally unfair. These requirements are conjunctive; failure to satisfy any one is fatal to the collateral attack.
Facts of the 2017 Expedited Removal
Ortiz-Rodriguez’s 2017 expedited removal was initiated after his conviction for evading arrest with a vehicle, a third-degree felony under Texas law. At the time, Fifth Circuit precedent held that this offense qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which incorporates crimes of violence as defined in 18 U.S.C. § 16(b). Ortiz-Rodriguez was served with a Notice of Intent to Issue a Final Administrative Removal Order (Form I-851), which explained the expedited removal process, his right to counsel, the right to file a petition for review in the court of appeals and provided checkboxes to contest deportability or request withholding of removal. Ortiz-Rodriguez signed the form, checked boxes indicating he did not wish to contest or request withholding, admitted the allegations, and waived his right to remain in the U.S. for 14 days to seek judicial review. He was removed in January 2018 and did not appeal.
Subsequent Developments in the Law
In 2018, the Supreme Court in Sessions v. Dimaya, 584 U.S. 148 (2018), held that 18 U.S.C. § 16(b) was unconstitutionally vague, and subsequent Fifth Circuit decisions clarified that Texas’s evading arrest offense no longer qualified as a crime of violence or aggravated felony. Ortiz-Rodriguez argued that this change in law rendered his 2017 removal order invalid and that his waiver of judicial review was unknowing because he was misled about the aggravated felony classification.
The Fifth Circuit affirmed the district court’s denial of the motion to dismiss, holding that Ortiz-Rodriguez failed to satisfy the requirements of Section 1326(d)(2) and (3).
Opportunity for Judicial Review
The Court found that Ortiz-Rodriguez was not deprived of the opportunity for judicial review. The Notice of Intent explicitly informed him of his right to file a petition for review in the appropriate U.S. Circuit Court of Appeals within 30 days of the final order, even if he waived the 14-day stay. The form also stated that he could be represented by counsel and provided information about free legal services. Ortiz-Rodriguez signed the form, acknowledged receipt, and waived his right to contest or seek withholding of removal. The Court emphasized that the burden was on Ortiz-Rodriguez to show that his waiver was unknowing or involuntary, especially where the government produced a written, signed waiver.
Validity of the Waiver
Ortiz-Rodriguez argued that his waiver was not considered and intelligent because the form misled him into believing he could not challenge the legal conclusion that his conviction was an aggravated felony. The Fifth Circuit rejected this argument, noting that at the time of his removal, binding circuit precedent held that his offense was an aggravated felony. The Court held that a subsequent change in law does not retroactively render a waiver unknowing or involuntary. The Court also rejected the argument that the form’s checkboxes limited him to factual challenges, pointing out that the form elsewhere notified him of his right to seek judicial review, which encompasses legal challenges.
The Court distinguished the Ninth Circuit’s approach in United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), overruled on other grounds by Alfred v. Garland, 64 F.4th 1025, 1048 (9th Cir. 2023) (en banc), which placed the burden on the government to show a valid waiver and found a similar form misleading. The Fifth Circuit reaffirmed its own precedent, which places the burden on the defendant and accepts a signed waiver as sufficient absent evidence to the contrary. The Court also noted that Ortiz-Rodriguez was fluent in English and that the form was served in English.
Fundamental Unfairness and Due Process
Under Section 1326(d)(3), the defendant must show that the entry of the order was fundamentally unfair, which requires both a due process violation and prejudice. The Court held that Ortiz-Rodriguez received all the process he was due under the expedited removal procedures of 8 U.S.C. § 1228(b), as previously upheld in United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999). The Court rejected the argument that the subsequent change in law rendered the proceedings fundamentally unfair, emphasizing that fundamental fairness is a question of procedure, not substance. The Court cited its own unpublished and published decisions, as well as decisions from other circuits, holding that a change in substantive law after removal does not retroactively render the proceedings unfair or procedurally deficient.
Prejudice
The Court held that Ortiz-Rodriguez could not show prejudice because, at the time of his removal, he was legally deportable under then-existing law. The Court explained that prejudice must be judged at the time of the agency’s decision, not in light of subsequent legal developments. Since DHS correctly applied the law as it stood in 2017, and Ortiz-Rodriguez was ineligible for relief, he could not establish a reasonable likelihood that the outcome would have been different but for the alleged errors.
Rejection of Ninth Circuit’s Approach
The Fifth Circuit explicitly declined to follow the Ninth Circuit’s rule that a defendant whose removal was based on a conviction later found not to be an aggravated felony automatically satisfies the due process and prejudice prongs of Section 1326(d)(3). The Court reasoned that such an approach would undermine Congress’s intent to limit collateral attacks in reentry prosecutions to a narrow set of circumstances and would conflate procedural and substantive errors.
Additional Arguments and Circuit Split
Ortiz-Rodriguez raised a due process challenge under United States v. Mendoza-Lopez, 481 U.S. 828 (1987), arguing that the requirements of Section 1326(d) are more stringent than those required by the Supreme Court’s decision. The Fifth Circuit rejected this, holding that Section 1326(d) codifies Mendoza-Lopez and that the statutory requirements are coterminous with constitutional due process.
The Court acknowledged a circuit split regarding the effect of subsequent changes in law on the validity of waivers and the scope of due process under Section 1326(d). The Fifth Circuit indicated that its approach is to focus on the law and procedures in effect at the time of removal, placing the burden on the defendant to show a procedural defect and actual prejudice.
Concurring and Dissenting Opinion
Judge Douglas concurred in part and dissented in part. She agreed that Ortiz-Rodriguez failed to show prejudice, which alone required affirmance. However, she disagreed with the majority’s analysis of the opportunity for judicial review and due process. Judge Douglas argued that the Notice of Intent’s checkboxes effectively limited Ortiz-Rodriguez’s ability to contest his removability to three factual grounds, misleading him into believing he could not challenge the legal classification of his conviction as an aggravated felony. She found the form fundamentally misleading and deficient, particularly given the lack of legal counsel and the expedited nature of the proceedings.
Judge Douglas also argued that a due process violation necessarily occurs when a defendant is removed via expedited proceedings based on a conviction later found not to be an aggravated felony, as the defendant would not have been subject to expedited removal and would have had the opportunity to appear before an immigration judge and appeal. She cited decisions from other circuits supporting the view that such defects in the underlying deportation proceeding constitute a due process violation, even if actual prejudice must still be shown.
