Expressly Limiting a Notice of Appeal to “Sentence Only” Waives Appellate Review of the Conviction in the Fifth Circuit

1. Introduction

United States v. Mendez-Lozano (5th Cir. Mar. 10, 2026) arises from a multi-count prosecution in the Southern District of Texas after officers executing an arrest warrant at a mobile home found Heriberto Mendez-Lozano inside with five undocumented aliens who reported being held hostage, threatened with firearms, and used to extort money from their families. Officers recovered a firearm and magazines from the trailer.

Mendez-Lozano was tried and convicted on thirteen counts, including conspiracy to harbor aliens, substantive harboring counts, conspiracy to take hostages, substantive hostage-taking counts, and a felon-in-possession count under 18 U.S.C. § 922(g)(1). He received a 460-month sentence.

On appeal, he attempted to raise (1) trial-structure issues (severance/bifurcation of the § 922(g)(1) count and an asserted missing limiting instruction about his felony status) and (2) a sentencing issue challenging a leadership enhancement under U.S.S.G. § 3B1.1(a). A threshold complication drove the opinion: his notice of appeal stated that the appeal “is limited to the sentence imposed and does not challenge the underlying conviction.”

2. Summary of the Opinion

The Fifth Circuit affirmed.

  • Conviction-related claims: The panel held that by expressly limiting his notice of appeal to the sentence and disclaiming any challenge to the conviction, Mendez-Lozano waived any appellate challenge to the conviction—without deciding whether Federal Rule of Appellate Procedure 3(c)(6) is jurisdictional or merely claim-processing.
  • Sentencing: The panel held the district court did not clearly err in applying the four-level organizer/leader enhancement under U.S.S.G. § 3B1.1(a).

Judge Graves concurred in the judgment only, disagreeing with the majority’s waiver conclusion and emphasizing the 2021 amendments to Rule 3(c), the Government’s failure to argue waiver, and the prudential concerns of treating a limiting phrase in a criminal notice of appeal as a waiver of conviction review.

3. Analysis

A. Precedents Cited

1) Waiver framework and the notice-of-appeal limitation

  • United States. v. Olano, 507 U.S. 725, 733 (1993): The majority anchored its disposition in the doctrinal definition of waiver—“the intentional relinquishment or abandonment of a known right.” By treating the limiting language in the notice of appeal as deliberate and explicit, the panel characterized the situation as waiver, not mere forfeiture.
  • Macias v. Perry, No. 25-40028, 2025 U.S. App. LEXIS 33500, at *6 n.9 (5th Cir. 2025): Used as persuasive authority that an appellant who expressly limits the scope of the appeal in the notice can be held to that limitation. The concurrence criticized this reliance because it was not a criminal case and did not involve limiting review of a final judgment’s merits in the same way.
  • Short v. Billings County, 138 F.4th 1072, 1076 n.4 (8th Cir. 2025): Cited similarly for the proposition that a notice designating a particular order for review can restrict the appellate inquiry. The concurrence likewise distinguished it as civil/procedural and not a criminal conviction-appeal scenario.
  • Ibarra v. United Parcel Serv., 695 F.3d 354, 358 n.21 (5th Cir. 2012) (in concurrence): Not about Rule 3(c)(6) directly, but invoked for the principle that courts do not consider arguments not included in a party’s briefs—used by the concurrence to fault the Government for not briefing waiver while the panel resolved the case on that basis.
  • United States v. Sylvain, No. 22-13225, 2023 WL 5842006 (11th Cir. Sept. 11, 2023) (in concurrence footnote discussion): Highlighted as one of the few cases addressing Rule 3(c)(6), treating an express limitation as confining the orders reviewable and speaking in terms of jurisdiction/abandonment rather than “waiver,” while still addressing merits contingently.

2) Sentencing enhancement review and clear-error deference

  • United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011): Provided the standard that factual findings supporting a sentencing enhancement are reviewed for clear error.
  • United States v. Ochoa-Gomez, 777 F.3d 278, 281-82 (5th Cir. 2015): Cited as analogous authority applying clear-error review to a § 3B1.1 enhancement decision.
  • United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) and United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007): Both reinforce that findings are not clearly erroneous if they are plausible in light of the record as a whole—supporting the panel’s conclusion that the leadership finding survived deferential review.

B. Legal Reasoning

1) The majority’s waiver holding (Rule 3(c)(6) issue sidestepped)

The panel acknowledged that Mendez-Lozano’s appellate brief attempted to challenge trial rulings (severance/bifurcation and limiting instructions), but his notice of appeal expressly said the appeal “is limited to the sentence imposed and does not challenge the underlying conviction.” The court requested supplemental briefing on whether Federal Rule of Appellate Procedure 3(c)(6) is jurisdictional or merely claim-processing, then declined to decide that question.

Instead, the panel treated the express limitation as a classic Olano waiver: an intentional relinquishment of the right to seek review of conviction-related issues. Because waiver extinguishes appellate review, the court did not reach the severance/bifurcation or limiting instruction arguments at all.

2) The concurring opinion’s competing approach

Judge Graves agreed that Mendez-Lozano should lose on the merits, but rejected calling the notice language a waiver of conviction review. The concurrence emphasized the 2021 amendments to Rule 3(c), including the advisory committee’s clarification that designating the final judgment confers jurisdiction over prior interlocutory orders that merge into it, and described Rule 3(c)(6) as intended to remove “traps for the unwary” while allowing deliberate limitations.

The concurrence stressed three practical points: (i) the briefing made it “abundantly clear” the defendant intended to challenge conviction and sentence; (ii) the Government did not argue waiver and even stated it could reasonably conclude the defendant intended to appeal the conviction; and (iii) the majority’s cited cases were distinguishable and not criminal conviction appeals. The concurrence warned that treating a limiting phrase as waiver may operate as a harsh notice-of-appeal trap in criminal cases.

3) Organizer/leader enhancement under U.S.S.G. § 3B1.1(a)

On sentencing, the panel applied familiar Fifth Circuit doctrine: whether a defendant was an “organizer or leader” is a factual determination reviewed only for clear error. The defendant argued the Government failed to prove the requisite participation by a preponderance of the evidence. The panel, reviewing “the record as a whole,” held the district court’s finding was plausible and therefore not clearly erroneous (invoking Rodriguez, Ochoa-Gomez, Zuniga, and Trujillo).

C. Impact

1) Appellate practice: a powerful (and risky) notice-of-appeal rule

The opinion’s most consequential doctrinal move is its holding that an appellant who expressly disclaims conviction challenges and limits the appeal to sentencing in the notice of appeal waives appellate review of the conviction—even where the appellant later briefs conviction issues. In practice, this encourages extreme caution in criminal notices of appeal: “sentence-only” language may be treated as an intentional abandonment of conviction review.

2) Litigation incentives and government strategy

The concurrence highlights a strategic wrinkle: the Government did not press waiver, yet the majority resolved on waiver. Future appellees may now affirmatively argue waiver based on limiting notice language, potentially narrowing appellate review without reaching the merits.

3) Sentencing: reinforces deference to district courts on role adjustments

The Guidelines portion is less novel but reinforces that § 3B1.1(a) findings—often fact-bound—are difficult to overturn on appeal because clear-error review tolerates any plausible view of the record.

4. Complex Concepts Simplified

  • Notice of appeal: The document that starts an appeal and identifies what judgment/order is being appealed. Here, the notice explicitly said the appeal was “limited to the sentence.”
  • Rule 3(c)(6): A provision allowing an appellant to designate only part of a judgment/order for appeal by expressly limiting the notice. The opinion treats such a limitation as potentially decisive.
  • Jurisdictional vs. claim-processing rule: If jurisdictional, a court lacks power to hear issues outside the notice’s scope. If claim-processing, the rule can be waived/forfeited by parties. The majority avoided deciding which Rule 3(c)(6) is, resolving instead via “waiver” by the appellant.
  • Waiver vs. forfeiture: Waiver is intentional abandonment (courts generally will not review). Forfeiture is an accidental failure to raise an issue (sometimes reviewed under plain-error standards). The majority characterized the notice limitation as waiver.
  • Severance/bifurcation: Procedures to separate charges (or phases of trial) so that evidence relevant to one count—like prior felony status for § 922(g)(1)—doesn’t unfairly prejudice the jury on other counts.
  • Limiting instruction: A jury instruction restricting how jurors may use certain evidence (e.g., considering felony status only for the felon-in-possession count).
  • U.S.S.G. § 3B1.1(a) “organizer or leader”: A four-level increase if the defendant led/organized a criminal activity involving five or more participants or otherwise extensive activity.
  • Clear error review: A highly deferential appellate standard. The appellate court will not overturn factual findings if they are plausible given the full record, even if another view is possible.

5. Conclusion

United States v. Mendez-Lozano affirms a lengthy sentence and, more importantly for future appellate practice, establishes a cautionary Fifth Circuit principle: an appellant who expressly limits a notice of appeal to sentencing and disclaims any challenge to the conviction may be held to have waived conviction review—even if conviction issues are later briefed. The concurrence signals that this approach is contestable and potentially at odds with the spirit of the 2021 Rule 3(c) amendments, but the majority’s disposition stands as a clear warning to criminal practitioners: draft notices of appeal broadly unless a true, strategic limitation is intended.