Public Defense
Fifth Circuit Blog 
Case Summaries and Commentary by Federal Defenders of the Fifth Circuit
Post Frequency: 51/day Last Entry: November 02, 2009 at 17:32:00 Recent Entries: 204
Go to Fifth Circuit Blog, find other Public Defense blogs, or browse all law blogs.
Search
Posts
SCOTUS Snubs Seale; Stevens, Scalia Squawk
Posted on November 02, 2009Today the Supreme Court dismissed the certified question from the Fifth Circuit in United States v. Seale, concerning the statute of limitations applicable to the case. The Court offered no explanation for its action, which I can only assume is how it typically handles these matters...
Bad Border Patrol Stop Results in Suppression Victory
Posted on October 27, 2009United States v. Rangel-Portillo, No. 08-40803 (5th Cir. Oct. 26, 2009) (King, Davis, Benavides)Case law concerning traffic stops?and roving Border Patrol stops, in particular?breaks so heavily in favor of law enforcement that successful suppression motions are rare, although not unheard of...
"Altered or Obliterated Serial Number" Defined for Purposes of §2K2.1(b)(4)
Posted on October 16, 2009United States v. Perez, No. 08-40917 (5th Cir. Oct. 16, 2009) (Reavley, Smith, Dennis)Have you ever wondered what it means for a firearm's serial number to have been "altered or obliterated" for purposes of guideline §2K2.1(b)(4)? The Fifth Circuit answers that question for the first time in Perez, adopting the reasoning of the Ninth Circuit's 2005 decision in United States v...
Another Relevant Conduct Victory; Counterfeiter Not Responsible for All Recovered Bills Made from Same Image He Used
Posted on October 02, 2009United States v. Livingston, No. 08-10655 (5th Cir. Sept. 9, 2009) (per curaim) (unpublished) (Benavides, Dennis, Elrod)A helpful reader alerted me to this nice unpublished relevant conduct win, which actually came out a few weeks before Rhine. (Incidentally, please let me know of any unpublished opinions worth highlighting here, as those usually fly underneath my radar...
Excellent Opinion On Relevant Conduct; Rejects Speculative Findings and Incorrect Allocation of Burden of Proof
Posted on October 01, 2009United States v. Rhine, No. 08-10502 (5th Cir. Sept. 29, 2009) (Wiener, Garza, Elrod)Stop me if you've heard this one before: defendant is convicted of a drug charge based on a relatively small amount of drugs, but relevant conduct findings concerning drug quantity jack the Guidelines range over the statutory maximum on that count, aided and abetted by a felon-in-possession count...
Fives Extend Mezzanatto, Hold Defendant Can Waive Right to Keep Prosecution from Using Plea-Discussion Statements In Case-In-Chief
Posted on September 22, 2009United States v. Sylvester, No. 08-30586 (5th Cir. rev. Sept. 21, 2009) (Higginbotham, Smith, Southwick)As you know, FRE 410 and Federal Rule of Criminal Procedure 11(f) render statements made during plea discussions inadmissible at trial. As you also know, the Supreme Court held in United States v...
Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With Fifth
Posted on September 17, 2009For over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in some districts, but not others. Our own circuit, in United States v...
Why the Departure/Variance Distinction Matters, Part Two
Posted on August 31, 2009United States v. Gutierrez-Hernandez, No. 08-20620 (5th Cir. Aug. 28, 2009) (King, Higginbotham, Clement)Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review...
Suspended Sentence Not a "Sentence Imposed" for §2L1.2 Purposes, But Troubling Plain Error Analysis
Posted on August 28, 2009United States v. Rodriguez-Parra, No. 08-40708 (5th Cir. Aug. 26, 2009) (Higginbotham, Smith, Southwick)There's good and bad in this opinion. The good is that a suspended sentence isn't a "sentence imposed" for purposes of the 12- and 16-level drug-trafficking enhancements in guideline §2L1...
Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation Sentence
Posted on August 26, 2009United States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutive to any other sentence, even though the sentence for the original offense?as required by the terms of the plea agreement?ran concurrently with an already-imposed state sentence? That
Prosecutor's Misleading Rebuttal Argument at Trial Not Plain Error
Posted on August 24, 2009United States v. Vargas, No. 08-40704 (5th Cir. Aug. 21, 2009) (Higginbotham, Smith, Southwick)If a prosecutor successfully moves in limine to exclude from evidence an exculpatory statement that the defendant made at the time of his arrest, may she nevertheless strongly imply in the rebuttal portion of her closing argument that the defendant did not try to exculpate himself when he was arrested?
Crime-Fighting Armadillo
Posted on August 18, 2009The Wall Street Journal reports on an innovative approach to law enforcement:PEORIA, Ill. -- This industrial city, hard hit by the recession, has found a new, low-budget way to fight crime: Park an unmanned, former Brink's truck bristling with video cameras in front of the dwellings of troublemakers...
New Blog on Snitching
Posted on August 17, 2009Titled, appropriately enough, "Snitching Blog", and written by law professor Alexandra Natapoff. As the introductory post explains,This blog does a bunch of things. It discusses how snitching works--on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators ...
Enhancement for Committing an Offense While On Release Applies to One Convicted of Failing to Appear
Posted on August 13, 2009United States v. Dison, No. 08-30786 (5th Cir. June 23, 2009; rev. July 24, 2009) (Wiener, Dennis, Clement)If you get convicted of failing to report for service of a sentence, can you also receive a sentence enhancement for committing an offense while on release, even though the only way you could have failed to appear was because you were on release in the first place? Dison answers that vexing
Nice Opinion on Error Preservation and Harm In Appeal From Erroneous Guidelines Calculation
Posted on August 10, 2009United States v. Neal, No. 08-30693 (5th Cir. Aug. 7, 2009) (Wiener, Garza, Elrod)You'll want to keep this opinion handy, in case you get into a battle over whether an objection to a sentencing error was properly preserved in the district court. It's also a nice go-to for harm arguments when the district court miscalculated the advisory Guidelines range...
Fives Order Post-Conviction DNA Testing Under Innocence Protection Act, Address Burdens and Standards of Review
Posted on August 05, 2009United States v. Fasano, No. 08-60750 (5th Cir. July 31, 2009; rev. Aug. 4, 2009) (Higginbotham, Smith, Southwick)In 2002, a gentleman clad in a work shirt, hard hat, and sunglasses strolled into a bank in Morton, Mississippi, presented a demand note to a teller, and departed with $6,600...
Popular Mechanics Unveils "The Truth About 4 Common Forensics Methods"
Posted on August 03, 2009Forensic evidence, shmorensic evidence. Okay, that's a little bit of an exaggeration, but the point remains: much of forensic "science" is anything but scientific. That was one of the findings contained in a recent report by the National Academy of Sciences...
Fives Certify Question to SCOTUS in Seale; Ask What SOL Applies to Kidnapping Committed in 1967 But Not Indicted Until 2007
Posted on July 30, 2009You all remember Seale, right? Seale was indicted and convicted in 2007 for kidnapping and conspiracy to commit kidnapping, arising from his alleged involvement in the kidnapping and murder of two black men in 1964. A Fifth Circuit panel reversed Seale's convictions, holding that the prosecution was time-barred because a 1972 amendment to the kidnapping statute retroactively reduced the
Panel Majority Finds Constitutional Speedy Trial Violation, Holds Standard of Review is De Novo
Posted on July 29, 2009United States v. Molina-Solorio, No. 08-10167 (5th Cir. July 27, 2009) (Stewart, Southwick; King, dissenting)It's not every day that you see the court of appeals reverse a district court's denial of a constitutional speedy trial claim?much less when the charge is escaping from federal custody?but that's just what happened in this case...
Melendez-Diaz, Illegal Reentry, and Certificates of Non-Existence of Record
Posted on July 10, 2009As promised, here's a post explaining how the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases...
Courts Lack Authority to Suspend a Failure-to-Depart Sentence After the Sentence Has Begun
Posted on July 07, 2009United States v. Garcia-Quintanilla, No. 08-50400 (5th Cir. July 7, 2009) (Higginbotham, Garza, Prado)Prefatory disclosure: I did some work on this case.Ever heard of 8 U.S.C § 1253? It criminalizes conduct relating to an alien's failure to depart the United States after having been ordered to do so...
SCOTUS: Lab Reports Testimonial Under Crawford; Reasoning Applies Broadly to Other Documents Prepared Solely for Use at Trial
Posted on June 30, 2009Melendez-Diaz v. Massachusetts, No. 07-591 (U.S. June 25, 2009)Although it took the Supreme Court a long time to get this opinion out (the case was argued last November), it was worth the wait. The issue, as you'll recall, was "[w]hether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation
A Practice Guide to Aggravated Felony Issues in the Wake of Nijhawan
Posted on June 24, 2009The Immigrant Defense Project and National Immigration Project of the National Lawyer's Guild have prepared a paper that you may find useful: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 24, 2009)...
Why the Departure/Variance Distinction Matters
Posted on June 23, 2009In a recent case, the Fifth Circuit noted that it continues to draw a distinction between variances based on 3553(a) factors, and Guidelines departures. I suggested at the time that this "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review...
District Court May Not Impose Sentence Below Revised Guidleines Range In 3582(c)(2) Resentencings
Posted on June 22, 2009United States v. Doublin, No. 08-30775 (5th Cir. June 22, 2009) (per curiam) (Barksdale, Dennis, Elrod)A couple of years ago the Sentencing Commission revised the drug guidelines to reduce, but not eliminate, the disparity between crack and powder cocaine sentences...
Taylor/Shepard Categorical Approach Not Applicable to All Aggravated Felonies, Some Require "Circumstance-Specific" Approach
Posted on June 17, 2009Nijhawan v. Holder, No. 08-495 (U.S. June 15, 2009)Remember that circuit split over whether the Taylor/Shepard categorical approach applies to 8 U.S.C. § 1101(a)(43)(M)(i), which includes as an "aggravated felony" "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[?]" The split is no more, having been resolved by the Supreme Court in
Fives Reverse Course on UUV, Hold It's Not an Aggravated Felony
Posted on June 16, 2009United States v. Armendariz-Moreno, No. 07-40225 (5th Cir. June 15, 2009) (per curiam) (Reavley, Barksdale, Garza)The UUV saga is at an end. In a tersely-worded opinion, the Fifth Circuit has ditched Galvan-Rodriguez:On December 12, 2007 this court affirmed the sentence of Armando Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level enhancement of his offense level because of
For Purposes of Supervised-Release Tolling Provision, "Imprisonment" Includes Pretrial Detention
Posted on June 15, 2009United States v. Molina-Gazca, Nos. 08-50619, 08-50620 (5th Cir. June 11, 2009) (Jones, Elrod, Guirola, D.J.)Prefatory disclosure: I did some work on this case.Under 18 U.S.C. § 3583(i), a district court does not have jurisdiction to revoke a term of supervised release after it expires, unless a warrant or summons issued before the expiration of the term...
Carr Factors: "Close Assistance of Counsel" Not the Same Thing as "Ineffective Assistance of Counsel"
Posted on June 11, 2009United States v. McKnight, No. 08-30229 (5th Cir. June 5, 2009) (O'Connor, Wiener, Stewart)This case involves the appeal of a district court's denial of a motion to withdraw a guilty plea. Given the fact-intensive nature of the issue, a case like this ordinarily wouldn't be worth discussing here...
Proposed Fifth Circuit Rules Changes
Posted on June 09, 2009The clerk's office has posted this notice of proposed amendments to the Fifth Circuit Rules. On tap this time:1. Amendments to time deadlines to comply with the proposed December 1, 2009 amendments to the FED. R. APP. P.2. Replacing the word ?shall? with ?will? to be consistent with the previous linguistic preference in the FED...
En Banc Court Splits Evenly in Seale, Thereby Affirming District Court's Rejection of SOL Challenge
Posted on June 08, 2009This past Friday, the Fifth Circuit issued the following two-sentence order in United States v. Seale:By reason of an equally divided en banc court, the decision of the district court on the sole issue of its denying dismissal of the indictment because of the running of the statute of limitations is AFFIRMED...
Remorse Not Requried for Acceptance of Responsibility, But Lack of Remorse a Valid Basis for Upward Variance
Posted on June 05, 2009United States v. Douglas, No. 07-11007 (5th Cir. May 29, 2009) (O'Connor,* Wiener, Stewart)Can a defendant receive an acceptance-of-responsibility adjustment under guideline §3E1.1, even if he is not remorseful for having committed the offense? Yes. That's the good news in Douglas...
Generic "Arson" Is Willful and Malicious Burning of Property; Doesn't Require Threat of Harm to a Person
Posted on June 04, 2009United States v. Velez-Alderete, No. 08-20557 (5th Cir. June 2, 2009) (per curiam) (King, Garwood, Davis)Various COV definitions include "arson" as an enumerated offense. Ever wondered what generic arson is? Wonder no longer. Velez-Alderete holds, as have other circuits, that "the generic, contemporary definition of arson involves a willful and malicious burning of property[,]" without any
Ninth Circuit Finds Illegal Reentry Sentence Substantively Unreasonable
Posted on June 02, 2009In United States v. Amezcua-Vasquez, No. 07-50239 (9th Cir. June 1, 2009). Check out the Ninth Circuit Blog's summary of the case here.
Second or Subsequent Simple Possession Conviction Not An Aggravated Felony If Committed Before First One Became Final
Posted on June 02, 2009United States v. Andrade-Aguilar, No. 07-41132 (5th Cir. May 27, 2009) (Barksdale, Dennis, Elrod)As you know, our circuit has held that a second or subsequent conviction for simple possession of a controlled substance can be an aggravated felony. (Other circuits disagree...
Kimbrough's Not Just For Crack, and How to Vary Based On Policy Disagreements with Guidelines
Posted on May 19, 2009United States v. Simmons, No. 08-60755 (5th Cir. May 18, 2009) (King, Stewart, Southwick)In case there was any doubt left after Mondragon-Santiago as to whether Kimbrough allows a district court to vary from the advisory Guidelines range based on policy disgreements with guidelines other than the crack guidelines, Simmons makes things crystal clear:Kimbrough does not limit the relevance of a
Panel Members Call for En Banc Reconsideration of Whether Federal Sentence May Be Ordered to Run Consecutively to Yet-To-Be-Imposed State Sentence
Posted on May 19, 2009United States v. Garcia-Espinoza, No. 08-10775 (5th Cir. May 15, 2009) (per curiam) (unpublished)Sometimes you find the most interesting things in unpublished opinions. Like a call for the court to reconsider earlier precent en banc in light of 1) a long-standing circuit split, and 2) the Government's belief that the earlier precedent was wrongly decided...
The Next SCOTUS ACCA Case? Fives Hold TX Fleeing-By-Vehicle Is ACCA Violent Felony, Deepening Circuit Split On Issue
Posted on May 15, 2009United States v. Harrimon, No. 08-10690 (5th Cir. May 14, 2009) (Jones, Wiener, Benavides)James, Begay, Chambers, Johnson, . . . Harrimon? Looks like we got us a convoy, as Harrimon contributes to yet another circuit split over whether a particular offense falls within the Armed Career Criminal Act's "violent felony" definition...
2001 Amendment to 2B1.1 Loss-Amount Definition Supercedes Prior Fifth Circuit Law on Calculation of Losses From Ponzi Scheme
Posted on May 13, 2009United States v. Setser, No. 07-10199 (5th Cir. May 12, 2009) (Smith, Southwick, Rodriguez, D.J.)Deborah Setser, along with her brother Gregory, "were convicted of involvement in a Ponzi scheme focused on soliciting funds from Christian groups for largely mythical deals involving real estate and retail products...
Solicitor General Endorses View that UUV Is Not an Aggravated Felony, Seeks GVR In Serna-Guerra
Posted on May 08, 2009Long-time readers of this blog, as well as those of you who handle immigration and illegal reentry cases, are familiar with the Fifth Circuit's frustrating adherence to its view that unauthorized use of a vehicle is an aggravated felony, notwithstanding Supreme Court decisions undermining the Fifth Circuit's reasoning...
Intertubes = Interstate Commerce
Posted on May 07, 2009United States v. Barlow, No. 08-60556 (5th Cir. May 6, 2009) (Wiener, Dennis, Clement)Barlow was convicted of "(1) attempting to persuade or entice a person he believed to be a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), and (2) sending obscene material to a person he believed to be younger than 16 years old in violation of 18 U...
Discharge of Firearm Need Not Be Intentional to Trigger 10-Year Mandatory Minimum Under ACCA
Posted on April 29, 2009Dean v. United States, No. 08-5274 (U.S. Apr. 29, 2009)Title 18 U.S.C. § 924(c)(1)(A)(iii) requires a mandatory minimum sentence of 10 years if the firearm was "discharged." The question presented, which had divided the circuits, was whether the 10-year mandatory minimum requires that the defendant discharge the firearm intentionally...
Statement Obtained In Violation of Massiah Is Admissible at Trial for Impeachment Purposes
Posted on April 29, 2009Kansas v. Ventris, No. 07-1356 (U.S. Apr. 29, 2009)The question presented: "whether a defendant's incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant's conflicting statement...
Guidelines Calculation Error Doesn't Require Reversal If Sentence Didn't Result From That Error, Plus More on Plain Error
Posted on April 20, 2009United States v. Ruiz-Arriaga, No. 08-40242 (5th Cir. Apr. 9, 2009) (Jones, Wiener, Benavides)We know that, when imposing sentence, the district court must correctly calculate the advisory Guidelines range. Let's say the court gets the Guidelines calculation wrong, but says something along the lines of, "Even if the Guidelines range was different, I would still impose a sentence of X months, for
More On Reasonableness Review, Plain Error, Failures to Explain, Policy-Based Variances, and the Presumption of Reasonableness
Posted on April 10, 2009United States v. Mondragon-Santiago, No. 07-41099 (5th Cir. Mar. 26, 2009) (King, Dennis, Elrod)Our circuit's really been on a sentencing tear lately, issuing a lot of opinions explaning the ins-and-outs of reasonableness review. This one's especially dense, covering a failure to adequately explain a within-Guidelines sentence (which nevertheless doesn't merit vacation of the sentence on plain
Prior Conviction for Conduct In Furtherance of Drug Conspiracy Can Be Used to Enhance Sentence for Later Conviction In Same Conspiracy
Posted on April 10, 2009United States v. Moody, No. 07-11222 (5th Cir. Apr. 6, 2009) (Smith, Southwick, Engelhardt)Let's say a defendant gets convicted of a charge arising out of his participation in a drug conspiracy, serves his sentence, rejoins the same conspiracy, and gets convicted of conspiring to possess more than 50 grams of crack with the intent to distribute it...
Has the Fifth Circuit's Approach to Plain Error Review Been Too Permissive?
Posted on April 09, 2009United States v. Ellis, No. 07-11276 (5th Cir. Mar. 26, 2009) (Higginbotham, Elrod, Haynes)We all know that plain error review is not your friend. Nevertheless, there have been more than a few cases, particularly in the COV arena, in which the Fifth Circuit has vacated sentences on a finding of plain error...
McNabb-Mallory Rule Survives, Subject to Six-Hour Safe Harbor Provision in 18 U.S.C. § 3501(c)
Posted on April 07, 2009Corley v. United States, No. 07-10441 (U.S. Apr. 6, 2009)Remember the McNabb-Mallory rule? That's the one that says a confession obtained during a period of unnecessary delay in presenting an arrestee to a magistrate is inadmissible, even if the confession was voluntary...
Break Out Your Dancin' Boots: Fives Clarify That Reasonableness Review Is Two-Step Process with Procedure First, Then Substance
Posted on April 07, 2009United States v. Delgado-Martinez, No. 08-50439 (5th Cir. Apr. 6, 2009) (Smith, Garza, Clement)Have you found our circuit's pronouncements on post-Gall reasonableness review a little unclear? Then rejoice, for Delgado-Martinez explains cleanly and crisply just how sentences are reviewed these days...
Forfeited Claim That Government Breached Plea Agreement Is Reviewed for Plain Error; Third Prong Requires Showing That Breach Affected Sentence
Posted on March 27, 2009Puckett v. United States, No. 07-9712 (U.S. Mar. 25, 2009)The question presented: "whether a forteited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure...
Revocation Sentence Vacated as Plainly Unreasonable; Panel Purports to Limit Holding to Cases "Indistinguishable . . . In All Material Respects"
Posted on March 25, 2009United States v. Willis, No. 08-10018 (5th Cir. Mar. 24, 2009) (Jolly, Smith, Owen)In 1998, Willis was convicted of two counts of being a felon in possession of a firearm. "The two counts were premised on Willis?s simultaneous possession of two firearms and were, therefore, multiplicitous in violation of the Fifth Amendment?s prohibition against double jeopardy...
17 Year-Old not a "Minor" for Purposes of Generic "Sexual Abuse of a Minor" & How Specific Must COV Objection Be to Avoid Plain Error Review?
Posted on March 24, 2009United States v. Munoz-Ortenza, No. 07-51344 (5th Cir. Mar. 18, 2009) (Davis, Clement, Elrod)Recall that in United States v. Lopez-DeLeon the Fifth Circuit held that California's statutory rape provision---which sets the age of consent at eighteeen---is broader than generic "statutory rape," an enumerated COV for purposes of guideline §2L1...
Did You Wake Up This Morning Pleading, "My Kingdom for a Guide to the Canons of Statutory Interpretation!"
Posted on March 17, 2009Then you should buy a lottery ticket, because today is your lucky day. A little birdie hipped us to a Congressional Research Service report providing that which you seek. Behold: "Statutory Interpretation: General Principles and Recent Trends (updated Aug...
PA Terroristic Threat Not Categorically a 2L1.2 COV Because It Doesn't Necessarily Require Physical Force
Posted on March 13, 2009United States v. Ortiz-Gomez, No. 08-40292 (5th Cir. Mar. 10, 2008) (Davis, Smith, Owen)The Pennsylvania statute concerning "terroristic threats" criminalizes a variety of vexatious acts, including threats to commit a "crime of violence." Although Pennsylvania law isn't entirely clear on what constitutes a "crime of violence," the term includes arson...
Yet Another COV Circuit Split: Ninth Disagrees with Fifth Over Mens Rea for Generic Aggravated Assault
Posted on March 03, 2009Cert Grant: Whether Lawyer's Nonadvice or Misadvice About Immigration Consequences of Guilty Plea Constitutes Ineffective Assistance of Counsel
Posted on March 02, 2009Escapees Have No Fourth Amendment Rights
Posted on February 26, 2009United States v. Ward, No. 08-50114 (5th Cir. Feb. 26, 2009) (Higginbotham, Elrod, Haynes)"Shortly after he received a 10-year federal sentence on a felon in possession charge, state authorities mistakenly released federal prisoner Dan Ward, who exploited the situation by absconding...
Another Cert Grant on ACCA "Violent Felony" Definition: Does a Nonconsensual Touching Constitute the Use of Physical Force?
Posted on February 24, 2009Yesterday the Supreme Court granted cert in Johnson v. United States, No. 08-6925. The two questions presented are:1. Whether, when a state's highest court holds that a given offense of that state does not have as an element the use or threatened use of physical force, that holding is binding on federal courts in determining whether that same offense qualifies as a ''violent felony" under the
For Purposes of Illegal Reentry, Alien Who Departs U.S. Before Being Ordered Removed Has Been "Removed" If Removal Order Later Issues
Posted on February 20, 2009United States v. Ramirez-Carcamo, No. 08-30298 (5th Cir. Feb. 17, 2009) (Smith, Southwick, Rodriguez, D.J.)Submitted for your consideration: an offense that doesn't obey the rules of all the others in the U.S. Code. Some of the elements can be proven by paper, notwithstanding a defendant's right to confront the witnesses against him...
Ninth Weighs In On Circuit Split: No Objection Required In District Court to Preserve Substantive Reasonableness Challenge
Posted on February 20, 2009United States v. Autery, No. 07-30424 (9th Cir. Feb. 13, 2009) (Thompson, Smith; Tashima, concurring in part and dissenting in part)Remember that circuit split over reasonbleness review and plain error? Courtesy of our colleagues at the Ninth Circuit Blog (here and here), we learn that the Ninth Circuit has weighed in on that question...
Maximum Supervised Release Terms In 21 U.S.C. § 841 Trump Lower Maximums in 18 U.S.C. § 3583 When New Sentence Is Imposed on Revocation of Release
Posted on February 18, 2009United States v. Jackson, No. 07-51229 (5th Cir. Feb. 12, 2009) (Garwood, Garza, Owen)Title 21 U.S.C. § 841(b)(1) requires minimum terms of supervised release, but establishes no maximum term. Section (b)(1)(C), for example, requires a supervised release term of "at least 3 years" (assuming no prior felony drug convictions)...
Sentence Vacated: Attempted Murder Cross-Reference Improperly Applied to Defendant Convicted of Aiding & Abetting Felon-In-Possession
Posted on February 17, 2009United States v. Johnston, No. 08-10120 (5th Cir. Feb. 10, 2009) (Smith, Southwick, Rodriguez, D.J.)Just because the Guidelines are advisory doesn't mean they aren't important, as this case dramatically illustrates. And read carefully, because there's a quiz at the end...
Fifth Circuit's AVIS and Event Notification Systems To End February 13, 2009
Posted on February 11, 2009The Fifth Circuit's website recently posted these two notices announcing the impending demise of the AVIS and Event Notification Systems: AVIS System TerminationEffective February 13, 2009, we will close down our Automated Voice Information System, (AVIS)...
District Court Lacks Power, Under Rule 35(a), To Revise a Reasonable Sentence
Posted on February 09, 2009United States v. Ross, No. 07-41098 (5th Cir. Feb. 3, 2009) (Jones, Owen, Southwick) As the court tidily sums it up: Timothy Patrick Ross pled guilty to one count of possession of child pornography and was sentenced to sixty months imprisonment. Shortly after the initial sentencing hearing, the district court sua sponte resentenced Ross to seventy months to correct what it deemed to be ?clear
District Court May Categorically Reject Crack Guidelines Based Solely on Policy Disagreement, Even Without Individual Mitigating Circumstances
Posted on January 21, 2009Spears v. United States, No. 08-5721 (U.S. Jan. 21, 2009) (per curiam) You thought it was already clear from Kimbrough that a district court may categorically reject the crack guidelines based solely on the court's policy disagreement with the crack/powder ratio? So did a majority of the Supreme Court, hence this summary reversal of the Eighth Circuit's contrary understanding of Kimbrough...
Failure to Report for Service of Sentence Is Not an ACCA "Violent Felony"
Posted on January 14, 2009Chambers v. United States, No. 06-11206 (U.S. Jan. 13, 2009) Addressing a circuit split, the Supreme Court held yesterday, per Justice Breyer, that the Illinois offense of failing to report for penal confinement is not a "violent felony" under the ACCA...
Erroneous Relevant Conduct Finding Requires Vacation of Sentence, Even Though Defendant Received Downward Departure
Posted on January 08, 2009United States v. Ekanem, No. 06-11407 (5th Cir. Jan. 7, 2009) (Wiener, Garza, DeMoss) As this case nicely illustrates, relevant conduct liability is broad, but not unlimited, and must be supported by reliable evidence. But perhaps more importantly, the case shows that a sentence may be vacated due to a guidelines calculation error---a "significant procedural error" according to Gall---even
Defenders Make Short List for Green Bag's 2008 Exemplary Legal Writing Honorees
Posted on December 19, 2008Things have been slow lately opinion-wise, but here's something to whet your legal reading appetite in the meantime (courtesy of How Appealing): the Green Bag's list of "Exemplary Legal Writing 2008" honorees. The press release also includes a list of recommended reading, which just happens to include a piece from our fellow contributors at the Ninth Circuit Blog: Steven G...
Cert Tips
Posted on December 05, 2008Got a good cert candidate? Afraid of botching the petition? Then check out "Petitions for Certiorari: Understanding the Hidden Process", a brief article featuring the advice of the SCOTUS Chief Deputy Clerk, two experienced SCOTUS advocates, and a former SCOTUS clerk...
Claim That Jury Instructed On Multiple Theories May Have Found Guilt On Invalid One Is Subject to Harmless Error Review
Posted on December 02, 2008Hedgpeth v. Pulido, No. 07-544 (U.S. Dec. 2, 2008) (per curiam) The opening paragraph of today's opinion from the Supreme Court sums up the decision tidily: A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one...
Fives Grant En Banc Review in Seale
Posted on December 01, 2008United States v. Seale, No. 07-60732 (5th Cir. Sept. 9, 2008) (Davis, Smith, DeMoss), reh'g en banc granted (Nov. 14, 2008) We (meaning I) neglected to cover this decision when it came out nearly three months ago, but you likely saw some of the news coverage of the case...
Amendments to Federal Rules of Criminal Procedure Effective Today: Victims, Warrants, and Housekeeping
Posted on December 01, 2008It's December 1st, and you know what that means: a new batch of amendments to the Federal Rules of Criminal Procedure take effect. Most of the changes implement the dictates of 18 U.S.C. § 3771, otherwise known as the Crime Victims' Rights Act, including a new Rule 60 enumerating various rights of victims along with an enforcement mechanism...
Whether To Deduct Value of Collateral From Loan Amount, and Whether to Use Actual or Intended Loss Calculation, Depends on Specific Facts of Case
Posted on November 21, 2008Guilty Plea to Information Waives Argument That Defendant Did Not Knowingly and Voluntarily Waive Right to Indictment
Posted on November 20, 2008Circuit Split Over Whether Recidivist Possession Is Necessarily an Aggravated Felony Deepens; Second Circuit Says No
Posted on November 17, 2008Fives Reject Supervised Release Condition Prohibiting Defendant From Living With Anyone Other Than a Spouse or Blood Relative
Posted on October 29, 2008Defendant's Stipulation to Offense Elements In Bench Trial Renders Harmless Any Error In Denial of Suppression Motion
Posted on October 27, 2008"Forcible Sex Offense" Includes Offenses Committed With Constructive Force, But Not Offenses With Freely Given Consent-In-Fact
Posted on October 27, 2008"Circuit Split Over Elements of Generic 'Sexual Abuse of a Minor'", or "When Does 5=17 and 9=16?"
Posted on October 21, 2008Cert Grant: To Be Guilty of Aggravated ID Theft, Must Defendant Know That ID Actually Belonged to a Real Person?
Posted on October 20, 2008Panel Holds, Contrary to Prior Panel and Supreme Court Precedent, That TX Burglary of a Habitation Is Still a §2L1.2 16-Level COV
Posted on September 26, 2008United States v. Cardenas-Cardenas, No. 08-40210 (5th Cir. Sept. 25, 2008) (per curiam) (Jolly, Benavides, Haynes)The panel really should reconsider this decision, because it conflicts with prior panel precedent, treats binding Supreme Court predecent as dictum, and relies on state case law that is not on point for a critical issue in this case...
Another Set of Eyeballs: Justice Alito Opts Out of Cert Pool
Posted on September 26, 2008So reports Adam Liptak in the New York Times. Beyond that scoop, the rest of the article rehashes the pros and cons of the cert pool, and the pool's effect, or lack thereof, on the number of cert grants.UPDATE: Tony Mauro at The BLT adds some scuttlebut on the reasons behind Justice Alito's switch...
21 U.S.C. § 843(b) Conviction Is a §2L1.2 DTO If the Underlying Offense Committed, Caused, or Facilitated Is a DTO
Posted on September 18, 2008United States v. Pillado-Chaparro, No. 08-30192 (5th Cir. Sept. 17, 2008) (per curiam) (Davis, Garza, Prado)Four circuits have held that use of a communications facility in committing or causing or facilitating a felony drug trafficking offense, in violation of 21 U...
Circuit Split Over Whether "Abuse of Trust" Determination Under USSG §3B1.3 Is Reviewed De Novo or Only for Clear Error
Posted on September 11, 2008United States v. Dial, No. 07-30696 (5th Cir. Sept. 11, 2008) (per curiam) (Jones, Garwood, Smith)The court's discussion of the issue is brief, so let's just cut-n-paste:We review for clear error the district court?s application of § 3B1.3 to the facts, including its factual determination that Dial held a position of trust...
Fives Grant Pro Se Appellant's Request for Appointed Counsel in Crack Reduction Appeal
Posted on September 11, 2008United States v. Robinson, No. 08-10424 (5th Cir. Sept. 10, 2008) (Reavley, Stewart, Owen*)Back in 1994, Robinson received a 180-month sentence for possession of crack with the intent to distribute it. After the Sentencing Commission retroactively reduced the crack guidleines earlier this year, Robinson filed a pro se motion requesting a reduction in his sentence under 18 U...
Kidnapping Under Cal. Penal Code § 207(a) Isn't Categorically a 16-Level COV Under §2L1.2
Posted on September 10, 2008United States v. Moreno-Florean, No. 07-50833 (5th Cir. Sept. 8, 2008) (King, DeMoss, Prado)This opinion packs a lot into seventeen pages, and is probably more important for the satellite issues it resolves (details of the categorical approach, effect of guideline calculation error in appeal of sentence) than for the ultimate COV issue...
Court Must Aggregate All Revocation Imprisonment Terms When Calculating Maximum Supervised Release Term Available Under § 3583(h)
Posted on September 08, 2008United States v. Vera, No. 07-20516 (5th Cir. Sept. 8, 2008) (Garza, Dennis, Minaldi)When a district court revokes a defendant's supervised release and imposes a term of imprisonment, 18 U.S.C. § 3583(h) permits the court to impose an additional term of supervised release to be served following imprisonment...
Another Resource for Acquired and Derivative Citizenship Claims and Defenses
Posted on September 03, 2008Last month United States Citizenship and Immigration Services issued this press release announcing the establishment of the agency's new Geneology Program.USCIS maintains historical records documenting the arrival and naturalization of millions of immigrants who arrived in the United States since the late 1800s ...
Latest Hurricane Gustav Update
Posted on September 03, 2008The Fifth Circuit's web site is now advising that the court "will remain closed through Friday, September 5th. Court will reopen September 8, 2008, and court employees will report for work that day." Additionally, "[a]ll filing dates falling within the time the court was closed due to Hurricane Gustav are automatically extended until September 10, 2008...
Court Closure and Deadline Extensions Due to Hurricane Gustav
Posted on September 01, 2008The Fifth Circuit Clerk's Office posted the following notice on the court's website on Friday:The Clerk's Office tentatively will re-open for business Thursday, September 4, 2008. Deadlines falling on or between September 1, 2008 and September 4, 2008 are automatically extended until Monday, September 8, 2008...
Crush of Immigration Prosecutions Coming to Mississippi?
Posted on August 26, 2008As the New York Times and AP report, ICE agents arrested 350 suspected illegal immigrants during a raid at an electrical equipment plant in Laurel, Mississippi, on Monday.Although the NYT article states that no criminal charges had been filed as of Monday afternoon, such charges appear to be a possibility (especially if the recent mass prosecutions follwing the raid of a kosher meat plant in Postville, Iowa, are any indication)...
Fifth Circuit Rules Changes Concerning Attorney Admissions, Recording of Oral Arguments
Posted on August 18, 2008Last Friday, August 15th, a couple of changes to Fifth Circuit Rules took effect. The change to Rule 34.7 (Recording of Oral Arguments) is discussed here. Rule 46.1, concerning admission and fees, was amended to add another another category of attorneys who are exempt from the admission fee (those who are "newly graduated from law school, licensed to practice in Louisiana, Mississippi, or Texas, and on orders for extended active duty in the Judge Advocate General's Corps...
Relevant Conduct Requires Specific Findings; No Per Se Rules for §2L1.1 Reckless Endangerment Enhancement
Posted on August 14, 2008United States v. Garza, No. 07-40962 (5th Cir. Aug. 13, 2008) (Smith, DeMoss, Stewart)Ever get the sense that in some courts the base offense level under guideline §2L1.1 is level 18? Then remember this case, because you'll probably want to cite it a lot...
Drug-Related Act Done With Knowledge That Drugs Are Intended for Sale Is §2L1.2 "Drug Trafficking Offense"
Posted on August 14, 2008United States v. Fuentes-Oyervides, No. 07-41007 (5th Cir. Aug. 13, 2008) (per curiam) (Higginbotham, Stewart, Southwick)Consider Ohio Rev. Code Ann. § 2925.03(A)(2), which "provides that no person shall knowingly '[p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person...
TX Delivery of Controlled Substance, Even If Based on Offer to Sell, Is "Serious Drug Offense" Under ACCA
Posted on August 13, 2008United States v. Vickers, No. 07-10767 (5th Cir. Aug. 12, 2008) (Stewart, Owen, Southwick)From the you-can't-tell-the-players-without-a-program files:We know that the Texas offense of delivery of a controlled substance is neither a "drug trafficking" offense under guideline §2L1...
James Brown's [Expert Witness] Hot Tub Party?
Posted on August 12, 2008Today's New York Times features a very interesting article from legal correspondent Adam Liptak about the apparently unique American practice of relying on partisan experts in litigation, both criminal and civil. Australia, for example, prefers a practice called "hot tubbing," which isn't as swingin' as you might imagine (depending, I guess, on just what kind of imagination you have):In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial ? discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues...
Panel Divides Over Intent Requirement in Federal Bribery Statute
Posted on July 31, 2008United States v. Valle, No. 07-50869 (5th Cir. July 30, 2008) (Jones, Clement; Wiener, dissenting in part)The federal bribery statute prohibits, among other things, a public official from soliciting anything of value "in return for . . . being induced to do or omit to do any act in violation of the official duty of such official ...
Child Pornography Distribution Conviction Reversed, On Plain Error Review, Because Key Evidence Was Admitted Without Foundation
Posted on July 30, 2008United States v. Baker, No. 06-40757 (5th Cir. July 30, 2008) (Jolly, Clement, Owen)It's not often that you see a conviction reversed because of evidentiary error, much less on plain error review. But that's exactly what happened to one of the four child pornography counts of which Baker was convicted, all because the Government failed to lay the proper predicate for admission of the evidence it relied on to prove a distribution charge...
Panel Splits Over Whether Credit-Card Holder Who Is Reimbursed for Fraudulent Charges Is a "Victim" Under U.S.S.G. §2B1.1(b)(2)
Posted on July 29, 2008United States v. Conner, No. 06-50218 (5th Cir. July 28, 2008) (Reavley, Jolly; Garza, dissenting in part)Conner was sentenced to 100 months for his participation in a conspiracy to commit access-device fraud and mail fraud. The scheme used commercial credit card accounts, sans authorization, to purchase merchandise and gift cards from Home Depot, Lowe's, and Sam's Club...
Border Patrol Agents' Convictions Affirmed on Some Counts, Reversed on Others; 924(c)'s With Ten-Year Mandatory Minimums Stand
Posted on July 28, 2008United States v. Ramos, No. 06-51489 (5th Cir. July 28, 2008) (Jolly, Higginbotham, Prado)As you are probably already aware, Border Patrol agents Ignacio Ramos and Jose Compean were convicted of a variety of offenses after covering up and failing to report their shooting of an unarmed, fleeing drug smuggler...
When Defendant Files Untimely Notice of Appeal That is Later Dismissed, Conviction is Final Under 2255 When the Time for Appeal Expired
Posted on July 24, 2008United States v. Plascencia, No. 05-11169 (5th Cir. July 23, 2008) (Reavley, Benavides; Owen, dissenting)Here's one for all you habeas-heads and procedure-philes out there: when a defendant files a notice of appeal after the ten-day deadline, but within the thirty-day period in which the deadline may be extended, and the appeal is later dismissed after a finding that there was no good cause or excusable neglect for the late filing, when does the conviction become "final" for purposes of 28 U...
Circuit Split on Whether Recidivist Possession Is Necessarily An Aggravated Felony; Fives Hold "Yes"
Posted on July 23, 2008United States v. Cepeda-Rios, No. 07-50731 (5th Cir. June 4, 2008; revised July 22, 2008) (per curiam) (Jones, Wiener, Clement)As you can see, this opinion originally issued last month, but the panel just revised it and we didn't mention it the first time around, so here goes...
Court Correctly Holds Defendant Has Absolute Right to Withdraw Guilty Plea Before It's Accepted, But Did It Apply Wrong Standard of Review?
Posted on July 22, 2008United States v. Arami, No. 07-50536 (5th Cir. July 21, 2008) (Prado, Elrod, Haynes)This appeal concerns Federal Rule of Criminal Procedure 11(b)(1), which permits a defendant to "withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason[...
Panel Calls for En Banc Reconsideration of Whether Unauthorized Use of a Vehicle is an Aggravated Felony
Posted on July 21, 2008Serna-Guerra v. Mukasey, No. 07-60634 (5th Cir. May 30, 2008) (unpublished) (per curiam) (Jolly, Dennis, Prado)Remember that circuit split over whether unauthorized use of a vehicle is an aggravated felony? To briefly recap, the Fifth Circuit holds that it is, relying on reasoning rejected by the Supreme Court in Leocal v...
"How reliable is DNA in identifying suspects?"
Posted on July 21, 2008That's the title of this very interesting article from the Los Angeles Times. The answer: maybe not anywhere near as reliable as the FBI wants you to believe. I don't fully understand the science and statistics discussed in the article, but the problem appears to be that the FBI's DNA match methodology is based on some assumptions that have never been subjected to empirical testing...
New Version of BOP Legal Resource Guide Now Available
Posted on July 08, 2008The 2008 version of the "Legal Resource Guide to the Federal Bureau of Prisons" is now available on the BOP's website. The publication "provides a general overview of the BOP, its services, and its programs[,]" and "is intended to serve as a guide to legal resources, including relevant statutes, regulations, policy documents, and current case law concerning issues the BOP faces today...
Taking Apart the Guidelines, Brick by Brick
Posted on July 07, 2008Looking for freedom from the Guidelines? Then check out Deconstructing the Guidelines, "a special project undertaken by National Federal Defender Sentencing Resource Counsel" featuring papers that "critically examine the history and basis of the most frequently encountered provisions of the U...
More Circuit Splitting Over "Aggravated Felony" Definition: En Banc Ninth Holds Categorical Approach Applies to Loss Amount Under § 1101(a)(43)(M)
Posted on July 03, 2008The INA's "aggravated felony" definition includes, among many other things, ?an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000...
Fives Affirm Questionable 404(b) and Loss-Amount Determinations in Union Voter Fraud Case
Posted on July 03, 2008United States v. Crawley, No. 07-20461 (5th Cir. June 27, 2008) (Jones, Barksdale, Stewart)Crawley was elected president of a Teamsters local in Louisiana in 1997, 1999, and 2002. Irregularities in the 2002 election prompted an investigation which revealed that Crawley falsified voter ballots, and that he received a $20,000 kickback in connection with a contract for telephone services at the union hall...
Proposed Change to Fifth Circuit Rule Concerning Fee for Admission to Practice
Posted on June 30, 2008The clerk's office has posted this notice of a proposed amendment to Fifth Circuit Rule 46.1, concerning admission and fees. The redline isn't accurate, so the proposed change is a little confusing. It looks like it adds an additional category of attorneys who are exempt from paying an admission fee to practice in the Fifth Circuit: those who are "newly graduated from law school, licensed to practice in Louisiana, Mississippi, or Texas, and on orders for extended active duty in the Judge Advocate General's Corps of the military services[...
Conviction Reversed for Batson Violation; Prosecutor's Proffered Race-Neutral Reason for Strike of Two Black Jurors Was Pretextual
Posted on June 25, 2008United States v. Williamson, No. 07-10602 (5th Cir. June 24, 2008) (King, Higginbotham, Southwick)During the voir dire portion of jury selection at Williamson's trial for possession of crack with intent to distribute, the court asked the venire if they, or any of their family members or close friends, had ever been involved in a criminal matter or with drugs...
AWOL Not Similar to Truancy, So It Can Count For Criminal History Points Under U.S.S.G. §4A1.2(c)(2)
Posted on June 24, 2008United States v. Sanchez-Cortez, No.05-41130 (5th Cir. June 6, 2008) (per curiam) (Jones, Wiener, Clement)Sanchez was convicted of PWID cocaine. At sentencing, the district court concluded that Sanchez's prior AWOL conviction---for which he was sentenced to 114 days' confinement and forfeited $670 in pay per month for six months---counted for two criminal history points...
Crawford Doesn't Affect Admissibility of Co-Defendant's Out-of-Court Statements at Trial; Reference to Codefendants' Guilty Pleas Harmless Error
Posted on June 24, 2008United States v. Ramos-Cardenas, No. 06-51383 (5th Cir. Apr. 9, 2008) (per curiam) (King, Stewart, Prado)Recall that in Bruton v. Smith, the Supreme Court held that the Confrontation Clause bars the admission of a non-testifying codefendant's out-of-court statement that expressly implicates another defendant...
Fives Affirm 548-Month Sentence for First-Time Offender, But Criticize Government for Jacking Sentence So High By Stacking 924(c)'s
Posted on June 23, 2008United States v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (per curiam) (Reavley, Jolly, Garza)Five-hundred forty-eight months. That's the sentence fifty-three year-old, first-time offender Mary Beth Looney received after a jury found her guilty of conspiracy and substantive meth crimes, as well as a couple of 924(c)'s...
Fives Solict Comments On Proposed Change to Rule Concerning Recordings of Oral Arguments
Posted on June 19, 2008The court has proposed an amendment to 5th Cir. R. 34.7, which currently prohibits the use of audio or video recording equipment during oral argument. The one exception is if a party hires a court reporter to transcribe the argument. In that case, the reporter may record the argument and use it to prepare the transcript, but must then destroy the recording and may not provide it to anyone...
Constitutional Crisis in Texarkana?
Posted on June 10, 2008Consider the following:The federal courthouse in Texarkana straddles the state line. Half is in the Eastern District of Texas and the Fifth Circuit, the other half is in the Western District of Arkansas and the Eighth Circuit. There's one courtroom in the Arkansas side of the building, and two in the Texas side...
Fifth Circuit Plan for Expediting Criminal Appeals
Posted on June 09, 2008Effective May 4, 2008, the Fifth Circuit has adopted a plan to expedite the processing of criminal appeals. Those of you who handle appeals need to be aware that one of the means to this end is to require district courts, court reporters, and counsel to get records, transcripts, and briefs prepared and filed promptly, and to grant extensions of time sparingly...
Downward Variance to Supervised Release in Child Pornography Case Affirmed
Posted on June 05, 2008United States v. Rowan, No. 05-30536 (5th Cir. June 4, 2006) (Jolly, Garza, Prado)We've already seen that the Fifth Circuit is taking a very deferential approach to its post-Gall review of upward variances and departures. In light of the court's post-Booker/pre-Gall decisions, one could be forgiven for wondering whether the same would hold true for sentences below the advisory Guidelines range...
Circuit Split on Fast-Track Disparity
Posted on June 05, 2008Recall that a couple of months ago the Fifth Circuit held, in United States v. Gomez-Herrera, that not only are district courts not required to consider sentencing disparities created by differing fast-track policies around the country, but that it would be an abuse of discretion to do so...
Writ Writer
Posted on June 04, 2008Last night the PBS program Independent Lens featured the premiere of Writ Writer, a documentary about the prisoner whose writ-writing efforts earned him a lot of grief at the hands of prison officials and guards, but which eventually led to reform of the Texas prison system: In 1960, a young man from San Antonio, Texas was arrested for robbery, convicted and sent to a state prison farm to pick cotton...
Listen to Fifth Circuit Oral Arguments!
Posted on June 03, 2008Appellate junkies rejoice: today the Fifth Circuit announced thatbeginning with cases heard in late May 2008, recordings of oral argument are available to the public on the Internet at http://www.ca5.uscourts.gov/OralArgumentRecordings.aspxOral argument recordings generally are available late in the day argument is held...
AILA Podcast on the Immigration Consequences of Criminal Convictions
Posted on June 02, 2008Let's say you represent an alien on a criminal charge. Wouldn't you like to know what effect the disposition of that case will have on your client's immigration status? Thanks to the folks at the American Immigration Lawyers Association, you can download a podcast entitled "A Discussion for the Criminal Attorney on the Importance of Understanding the Immigration Law Consequences of Criminal Activity...
Judge Owen Calls for En Banc Consideration of Fifth Circuit's Understanding of Taylor/Shepard Categorical Approach
Posted on May 23, 2008United States v. Gonzalez-Terrazas, No. 07-50375 (5th Cir. May 22, 2008) (Garza, Stewart; Owen, concurring)"Wait a minute," you're asking, "didn't the Fifth Circuit already decide this case a few months ago?" Yes, it did. But the court granted the Government's petition for panel rehearing, withdrew the prior opinion, and substituted a new one in its stead...
Sentence Vacated: Evidence Insufficient to Support 3C1.2 Reckless Endangerment Enhancement
Posted on May 23, 2008United States v. Gould, No. 06-11058 (5th Cir. May 21, 2008) (Davis, Southwick, Clark, D.J.)Gould was at a house when a SWAT team showed up to execute a search warrant for drugs. Presumably not wanting to make the officers' acquaintance, Gould fled out foot out the back door past an officer who pointed a gun at him and ordered him to stop...
Interesting Discussion of Inconsistent Verdict In Importation/PWID Case
Posted on May 22, 2008United States v. Igbinosun, No. 07-20075 (5th Cir. May 15, 2008) (Davis, Southwick, Clark D.J.)Here's an interesting paragraph in a decision upholding a conviction in a bench trial in which the judge found the defendant guilty of importation of heroin, but not guilty of possession with intent to deliver that same heroin...
Court Declines to Decide Whether General Appeal Waiver Bars Review of Restitution Order
Posted on May 22, 2008United States v. Smith, No. 07-60385 (5th Cir. May 16, 2008) (King, DeMoss, Benavides)Smith pleaded guilty pursuant to a plea agreement providing that she "expressly waives her rights to appeal the conviction or sentence imposed in this case, and the manner in which the sentence was imposed, on any ground whatsoever...
Under 18 U.S.C. § 844(h)(2), Carrying of Explosives Need Only Be "During," Not "In Relation To," Underlying Felony
Posted on May 21, 2008United States v. Ressam, No. 07-455 (U.S. May 19, 2008)Title 18 U.S.C. § 844(h)(2) makes it a crime to "carry an explosive during the commission of any [federal] felony." Ressam was convicted of that offense, and a § 1001 false statements count, for carrying explosives in his car trunk when he provided false identity information on a customs declaration form at a port of entry in Washington...
Applicable Recidivist Enhancements Determine "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" Predicate
Posted on May 20, 2008United States v. Rodriquez, No. 06-1646 (U.S. May 19, 2008)The Court has been struggling recently with the interpretation of the Armed Career Criminal Act. What's striking about these recent decisions is that they don't seem to apply any predictable or consistent framework for interpreting the poorly-drafted provisions of the ACCA, and that you're about as likely to predict the voting lineup by pulling the justices names out of a hat as you are by tracking their votes and reading their opinions in these cases...
New Issue of "The Liberty Legend"
Posted on May 20, 2008The Spring 2008 issue of "The Liberty Legend," the newsletter of the National Association of Federal Defenders, is hot off the presses. Lots of good stuff, as usual, including an impressive list of FPD victories from around the country.One issue not enough for you? Then check out back issues at this link.
Practitioner's Guide to the Fifth Circuit
Posted on May 16, 2008Stymied by the mystery that is the Fifth Circuit? Luckily, Raymond Ward of "the (new) legal writer" hips us to the Practitioner?s Guide to the U.S. Court of Appeals for the Fifth Circuit, which gives a soup-to-nuts explanation of how the appeals process works in New Orleans...
NY 2d Degree Manslaughter Is Non-Generic, Doesn't Necessarily Constitute 16-Level COV Under U.S.S.G. §2L1.2
Posted on May 15, 2008United States v. Bonilla, No. 06-40894 (5th Cir. Apr. 10, 2008) (Jones, Davis; Garza, dissenting)This is the first of two posts on this case. I'm addressing the two issues resolved by the opinion separately, because they both merit their own discussion, and considering them both at the same time would make for too long a post...
Failure to Pay Child Support Obligation is a Continuing Offense
Posted on May 14, 2008United States v. Edelkind, No. 06-30777 (5th Cir. Apr. 15, 2008) (Reavley, Smith, Dennis)Title 18 U.S.C. § 228(a)(3) makes is a crime to "willfully fail[] to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than two years, or is greater than $10,000[...
When No Guideline Yet Exists for Offense, and Sentencing Commission Has Proposed One, It's Plain Error Not to Consider It at Sentencing
Posted on May 13, 2008United States v. Sanchez, No. 07-30578 (5th Cir. May 13, 2008) (Jones, Barksdale, Stewart)Lots of Sentencing Guidelines amendments are bad. But every now and then the Commission proposes an amendment that would actually result in reduced sentences. Wouldn't you like to be able to take advantage of those proposed amendments before they actually go into effect? Well here's some support for an argument that the district court has to at least consider the nascent guidelines...
Panel Divides Over Aggravated Felony Definition and Categorical Approach, Deepens Circuit Split On Those Questions
Posted on May 13, 2008Arguelles-Olivares v. Mukasey, No. 05-60914 (5th Cir. Apr. 22, 2008) (Garwood, Owen; Dennis, dissenting)This case presents two very interesting questions---both of which divide the panel---concerning one of the more obscure backwaters of the aggravated felony definition: 8 U...
More Guidelines Amendments On the Horizon
Posted on May 02, 2008Yesterday, in addition to promulgating some Guidelines amendments effective immediately, the Sentencing Commission submitted a new slate of amendments to Congress (official version, and redline). This group of amendments will take effect on November 1, 2008, absent Congressional action...
New Guidelines Effective March 1, 2008
Posted on May 01, 2008Not only is today Law Day, but it's also the date on which some emergency Sentencing Guidelines amendments take effect. They include:a temporary emergency amendment to guideline §2B1.1 to increase penalties for disaster and emergency relief fraudcorrection of the "bad math" problem that cropped up when the Commission revised the crack guidelinesrevision of policy statement §1B1...
Circuit Split Over Whether Court Must Consider Mistried Counts in Collateral Estoppel Analysis?
Posted on May 01, 2008United States v. Yeager, No. 06-20321 (5th Cir. Mar. 17, 2008) (Higginbotham, Garza, Benavides)Tired of reading about one crime-of-violence case after another? Well here's some legal sorbet to cleanse your palate: a discussion of a (possible) circuit split over whether a court must consider mistried counts along with acquitted counts when determining whether collateral estoppel bars a retrial...
Summary Denial of Unequivocal Request to Proceed Pro Se is Error & Requires Remand for Faretta Hearing
Posted on May 01, 2008United States v. Cano, No. 06-10940 (5th Cir. Mar. 10, 2008) (Higginbotham, Davis, Smith)A familiar factual scenario: traffic stop, cocaine, federal charges. After Cano's attorney filed a motion to suppress the cocaine, Cano filed a motion of his own seeking to act as lead counsel, with his retained attorney serving as co-counsel...
Warrantless Arrest Supported By Probable Cause, But Which Violates State Law, Does Not Violate Fourth Amendment
Posted on April 23, 2008Virginia v. Moore, No. 06-1082 (U.S. Apr. 23, 2008)A police officer has probable cause to believe that a person has committed a crime, but state law does not permit the officer to arrest the person for that particular offense. The officer arrests the person anyway, and performs a search incident to arrest...
Begay 2: Electric Boogaloo?
Posted on April 21, 2008Just five days after explicating the meaning of the "otherwise clause" in the ACCA's "violent felony" definition, the Supreme Court has granted cert in another case in which it will need to explicate the meaning of the "otherwise clause" in the ACCA's "violent felony" definition...
Be Prepared
Posted on April 17, 2008Hartz v. Adm'rs of the Tulane Educ. Fund, No. 07-30506 (5th Cir. Apr. 16, 2008) (per curiam) (unpublished) (King, Stewart, Prado)Don't go to court unprepared. If there's a key Supreme Court precedent relevant to you case, read it. Not only do you owe it to your client, but you also don't want this to happen to you:Phipps: ...
SCOTUS: CSA's "Felony Drug Offense" Is Term of Art, Does Not Depend on State Classification of Offense as Felony or Misdemeanor
Posted on April 16, 2008Burgess v. United States, No. 06-11429 (U.S. Apr. 16, 2008)The good news is that fans of statutory construction get two decisions to gnaw on today. The bad news is that you've already heard about the good one.The question in Burgess, which has produced a circuit split, "is whether a state drug offense classified as a misdemeanor, but punishable by more than one year's imprisonment, is a 'felony drug offense' as that term is used in [21 U...
Begin the Begay (-Based Arguments, That Is): SCOTUS Holds Felony DUI Not an ACCA "Violent Felony"
Posted on April 16, 2008Begay v. United States, No. 06-11543 (U.S. Apr. 16, 2008)Today's Supreme Court news will likely be dominated by coverage of Baze v. Rees, the lethal-injection case, but today's decision in Begay will likely have a far bigger impact in terms of the number of cases affected...
Cert Grant Involving Brady Violations
Posted on April 14, 2008As SCOTUSblog reports, the Supreme Court granted cert today in a case that may further outline the scope of a prosecutor's discovery obligations under Brady v. Maryland:The new case on prosecutorial immunity (Van De Kamp, et al., v. Goldstein, 07-854) does not involve line prosecutors...
New Fifth Circuit Judge: Senate Confirms Dallasite Catharina Haynes
Posted on April 11, 2008As the Houston Chronicle reports here, the Senate yesterday approved the nomination of Catharina Haynes to serve on the Fifth Circuit. Judge Haynes has previously served on the 191st District Court of Dallas County, and also worked in private practice at Thompson & Knight and Baker Botts...
Fives Suggest Consideration of Fast-Track Disparity Is Abuse of Discretion; Apply Very Robust Presumption of Reasonableness
Posted on April 10, 2008United States v. Gomez-Herrera, No. 07-10153 (5th Cir. Apr. 3, 2008; revised Apr. 4, 2008) (Jones, Davis, Garza)Recall that, after Booker, the Fifth Circuit held that a district court's refusal to consider geographic sentencing disparities created by differing fast-track policies around the country does not render a sentence unreasonable, notwithstanding the statutory command in § 3553(a)(6) to consider the need to avoid unwarranted sentencing disparities...
Date of Prior Removal Is Element of Enhanced Illegal Reentry Penalties Under 8 U.S.C. § 1326(b); Fives Better Than Nines on Plain Error Review
Posted on March 26, 2008United States v. Rojas-Luna, No. 07-40016 (5th Cir. Mar. 26, 2008) (King, Stewart, Prado)Remember several months ago when the Ninth Circuit held that the date of a prior removal is an element of the enhanced penalties found in 8 U.S.C. § 1326(b), the illegal reentry statute? The Fifth Circuit has now joined suit, but disagrees with the Ninth Circuit on a separate issue: the test to apply for the third prong of plain error review...
Shepard Permits Use of Texas Judicial Confession When Employing Modified Categorical Approach
Posted on March 26, 2008United States v. Garcia-Arellano, No. 06-11276 (5th Cir. Mar. 25, 2008) (Wiener, Garza, Benavides)You can add another item to the list of documents a court can use when employing the modified Taylor/Shepard categorical approach: a judical confession.In this illegal reentry case, Garcia had a prior Texas conviction for delivery of a controlled substance...
Court May Not Order Sentence to Run Consecutively to Anticipated, But Not-Yet-Imposed, Federal Sentence
Posted on March 25, 2008United States v. Quintana-Gomez, No. 07-10139 (5th Cir. Mar. 25, 2008) (Jolly, Barksdale, Benavides)May a district court order that a sentence run consecutively to an anticipated, but not-yet-imposed, federal sentence? Nope.Let's get a little more concrete...
Cert Grant: Is Domestic Relationship an Element of "Misdemeanor Crime of Domestic Violence" Under § 922(g)(9)?
Posted on March 24, 2008Today the Supreme Court granted cert in United States v. Hayes, No. 07-608, to consider whether, in order to qualify as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), the domestic relationship required by § 921(a)(33)(A)(ii) must be an element of the predicate offense...
Free Online Legal Databases (Some Even Searchable)
Posted on March 18, 2008This article at law.com highlights several sites offering free access to databases of federal statutes and case law. Some are simply a repository of opinions, which can be handy if all you want to do is pull up a case.Another project, still in early testing, aims to give this growing body of public-domain law a sophisticated search engine comparable to those of commercial legal databases...
Supremes Take Ice
Posted on March 17, 2008Oregon v. Ice, that is, granting cert on the question[w]hether the Sixth Amendment, as construed in [Apprendi and Blakely], is violated by the imposition of consecutive sentences based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant...
Cert Grant: Are Forensic Lab Reports "Testimonial" and Thus Subject to Crawford?
Posted on March 17, 2008Today the Supreme Court granted certiorari in Melendez-Diaz v. Massachusetts (No. 07-591), which presents the following question:Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v...
Tenth Edition of "An Introduction to Federal Sentencing" Now Available
Posted on March 17, 2008Interested in a broad overview of how federal sentencing works? Then you'll want to dig right into "An Introduction to Federal Sentencing," now in its tenth edition. Most of what's in the paper will be familiar to anyone handles federal cases on a regular basis, but if you're just getting started in the federal world (or if you just like to take in the big picture every now and then) you'll find: a summary of the relevant statutes and the Guidelines Manual, tips for applying the Guidelines, commentary on plea bargaining, and traps for the unwary...
If Defendant Got §4A1.3 Departure at Original Sentencing, Revocation Guidelines Calculation Requires Use of Pre-Departure CHC
Posted on March 14, 2008United States v. McKinney, No. 07-50170 (5th Cir. Mar. 7, 2008) (Jones, Davis, Garza)Chapter 7 of the Guidelines Manual provides advisory sentencing ranges for probation and supervised release violations. The recommended ranges are determined by the grade of violation and the defendant's criminal history category...
Hybrid Aggravated Felonies
Posted on March 13, 2008Looking for a new angle on aggravated felony arguments? Try this one on for size: hybrid crimes.As you're no doubt well aware, there's a whole slew of offenses that are "aggravated felonies." (And if you didn't know that, just pop on over to 8 U.S.C. § 1101(a)(43) and take yourself a gander...
Goverment's Burden of Proof on Harmless Error Review of Confrontation Clause Violation Depends on Type of Violation
Posted on March 13, 2008United States v. Alvarado-Valdez, No. 99-40370 (5th Cir. Mar. 12, 2008) (Higginbotham, Davis, Smith)Here's one for all the appellate geeks out there: how must the Government meet its burden of proving that a Confrontation Clause violation at trial was harmless beyond a reasonable doubt? Answer: it depends on the type of Confrontation Clause violation...
TX Indecency With a Child Is Generic "Sexual Abuse of a Minor," Therefore a 16-Level COV Under §2L1.2
Posted on March 11, 2008United States v. Najera-Najera, No. 07-10464 (5th Cir. Mar. 7, 2008) (Reavley, Benavides, Elrod)Texas Penal Code § 21.11 defines the offense of "indecency with a child." For purposes of that statute, a "child" is a person under age seventeen. The offense can be commited by sexual contact or exposure, and the statute apparently covers both consensual and non-consensual conduct...
Fives Speak to Post-Rita/Gall/Kimbrough Reasonableness Review, Affirm Substantial Upward Variance Based on Criminal History
Posted on March 11, 2008United States v. Herrera-Garduno, No. 07-40327 (5th Cir. Mar. 10, 2008) (Jolly, Barksdale, Benavides)Fifth Circuit watchers know that the court has been largely silent on what Rita, and more recently Gall and Kimbrough, mean for reasonableness review in our circuit...
New Texas Ethics Opinion on Conflicts Between Multiple Clients of a Single Public Defender's Office
Posted on March 05, 2008All Texas-licensed FPD lawyers practicing anywhere in the Fifth Circuit---as well as all FPD lawyers (wherever they may be licensed) who practice in a district that mandates compliance with the Texas ethical rules---should read the recent opinion from the Professional Ethics Committee of the State Bar of Texas appearing in the March 2008 issue of the Texas Bar Journal...
Robbery Under Cal. Penal Code § 211 Is Generic Robbery for §2L1.2 COV Purposes
Posted on February 29, 2008United States v. Tellez-Martinez, No. 06-50647 (5th Cir. Feb. 19, 2008; revised Feb. 22, 2008) (per curiam) (King, Higginbotham, Davis)In United States v. Santiesteban-Hernandez, the Fifth Circuit held that generic "robbery," for crime-of-violence purposes, is a theft under circumstances presenting some immediate danger to another person...
Defendant's Refusal to Enter Plea Agreement Containing Appeal Waiver Justifies Government's Refusal to Move for Third Acceptance Level
Posted on February 29, 2008United States v. Newson, No. 06-41115 (5th Cir. Jan. 22, 2008) (Higginbotham, Davis, Smith)Newson pleaded guilty, without a plea agreement, to possession of marijuana with intent to distribute. The Government refused to move for the third acceptance level, candidly admitting that its only reason for doing so was because Newson declined to enter a plea agreement containing an appeal waiver...
New Book: False Confessions "A Systemic Feature of American Criminal Justice"
Posted on February 27, 2008Via Grits for Breakfast, we see that Anne Reed at Deliberations is highlighting a new book by University of San Francisco law professor Richard Leo, entitled Police Interrogation and American Justice. According to the book,[t]he problem of false confession is not limited to a small number of cases...
U.S. Customs and Border Protection "Inspector's Field Manual" Available On-Line
Posted on February 19, 2008Thanks to the FOIA efforts of one Charles M. Miller, a California immigration attorney, the U.S. Customs and Border Protection "Inspector's Field Manual" is available for your persual here. As Miller's introduction cautions, "sections . . . may be out-of-date by later changes to the law or policy or may reflect an arguable exposition of the law...
Psychotherapist-Patient Privilege Only Applies to Communications Made with Reasonable Expectation of Confidentiality
Posted on February 13, 2008United States v. Auster, No. 07-30084 (5th Cir. Feb. 11, 2008) (Higginbotham, Davis, Smith)Auster is a retired New Orleans police officer. He had been underoing therapy for paranoia, anger, and depression for a number of years. Workers' comp covered the treatment, and an outfit named CCMSI managed his benefit claim...
En Banc Rehearing Granted in COV Case; Fives to Reconsider Categorical Approach?
Posted on February 12, 2008The Fifth Circuit has granted rehearing en banc in United States v. Gomez-Gomez. The panel held that the 1991 version of a California rape statute was not a "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. It reasonsed that because the offense can be committed by means of retribution (such as a threat to reveal embarrassing secrets about the victim), the offense lacks an element of physical force and also falls outside the generic meaning of a "forcible sex offense...
Protective Sweep Creep: Search of Entire Auto Repair Shop OK After Box-Truck Full of Marijuana Tried to Leave Premises
Posted on February 12, 2008United States v. Mata, No. 06-40957 (5th Cir. Feb. 11, 2008) (Jolly,* Clement, Owen)That the Fifth Circuit would find a warrantless search permissible as a protective sweep isn't all that surprising, given its ever-expanding view of the circumstances justifying that particular exception to the Fourth Amendment's warrant requirement...
Good Unpublished Opinion Rejecting Speculative Reasoning Underlying Reckless Endangerment Bump in Alien Transporting Case
Posted on February 11, 2008United States v. Balderas-Gonzalez, No. 07-20533 (5th Cir. Feb. 1, 2008) (revised Feb. 8, 2008) (unpublished) (Wiener, Barksdale, Dennis)It's too bad this opinion is unpublished. The actual fact pattern isn't likely to come up all that often, but the opinion is still valuable for its rejection of the type of speculative reasoning that is used all too often to justify Guidelines enhancements...
Interesting Sixth Circuit En Banc Decision Deepens Circuit Split Over Reasonableness Review and Plain Error
Posted on February 07, 2008As you'll recall, the Fifth Circuit held in United States v. Peltier that "a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." That decision was wrong for a variety of reasons, but that's not the point of this post, which is instead about the circuit split that has developed on this issue and what that means for counsel representing defendants at sentencing...
Burglary Under Cal. Penal Code § 459 Is Never Generic Burglary or Burglary of Dwelling; Court Clarifies Application of Modified Categorical Approach
Posted on February 06, 2008United States v. Gonzalez-Terrazas, No. 07-50375 (5th Cir. Feb. 1, 2008) (Garza, Stewart, Owen)This opinion is important for its clarification of a couple of points concerning the Taylor/Shepard categorical approach. First, it explains that resort to Shepard-approved documents under the "modified" categorical approach is permissible only when the statute underlying the prior conviction contains either multiple subsections, or a series of disjunctive elements...
An Offer to Sell Drugs Is Not a "Controlled Substance Offense" Under Guideline §4B1.2(b); Interesting Discussion of Plain Error
Posted on February 01, 2008United States v. Price, No. 07-40040 (5th Cir. Feb. 1, 2008) (Higginbotham, Davis, Smith)We know from United States v. Garza-Lopez that an offer to sell drugs is not a "drug trafficking offense" under guideline §2L1.2. And we know from United States v...
Possession of Even Large Amount of Controlled Substance Isn't §2L1.2 "Drug Trafficking" If Statute Has No Intent-to-Distribute Element
Posted on January 31, 2008United States v. Lopez-Salas, No. 06-41637 (5th Cir. Jan. 3, 2008; revised Jan. 30, 2008) (per curiam) (King, Barksdale, Dennis)Lopez-Salas picks up where Arce-Vences v. Mukasey left off. Arce-Vences, as you'll recall, is the case from last month holding that simple possession of even a large quantity of a controlled substance is not an aggravated felony under Lopez v...
California "Grand Theft from a Person" is an ACCA "Violent Felony"
Posted on January 30, 2008United States v. Hawley, No. 06-50510 (5th Cir. Jan. 30, 2008) (DeMoss, Dennis, Owen)The issue: is "grand theft from a person" under Cal. Penal Code § 487(2) a "violent felony" under the Armed Career Criminal Act? The court answers "yes," holding that it's a violent felony under the "otherwise clause" in 18 U...
Court Affirms Reckless Endangerment and Death Enhancements in Alien Smuggling Case; Takes a Broad View of Foreseeability
Posted on January 30, 2008United States v. De Jesus-Ojeda, No. 05-41265 (5th Cir. Jan. 24, 2008) (Garwood, Dennis, Owen)This appeal prinicipally concerns the sentences of two defendants involved in an alien-smuggling conspiracy: Maria De Jesus-Ojeda and Jose Geronimo-Mendez. Geronimo would bring aliens across the Rio Grande and take them a stash house on the U...
No Exigency Justified Border Patrol Agents' Warrantless Entry Into House
Posted on January 22, 2008United States v. Troop, No. 06-40922 (5th Cir. Jan. 15, 2008) (Jolly, Higginbotham, Prado)The Fourth Amendment has some life left in it yet, even on the frontera.Several Border Patrol agents were tracking some suspected illegal immigrants through the South Texas brush one late July night...
What Do a Pompadour, an Ascot, and a Haberdashery Have In Common?
Posted on January 11, 2008They're all mentioned in this entertaining article about a battle of wills over proper courtroom attire.Link via How Appealing.
Alien Gets Obstruction & Loses Acceptance for Requesting Interpreter at Sentencing, After Not Asking for One at Earlier Hearings
Posted on January 10, 2008United States v. Juarez-Duarte, No. 05-11394 (5th Cir. Jan. 4, 2008) (per curiam) (King, Barksdale, Dennis)Juarez, a Mexican citizen, was arrested for illegal reentry. At his initial appearance, he told the magistrate judge that he could understand and speak English...
Fives Restore Inter-Circuit Harmony, Hold Sixteen is the Age of Consent for Generic Statutory Rape
Posted on January 10, 2008United States v. Lopez-DeLeon, No. 06-41553 (5th Cir. Jan. 9, 2008) (Wiener, DeMoss, Prado)"Statutory rape" is one of the enumerated crimes of violence subject to a 16-level enhancement under the illegal reentry guideline, §2L1.2. Back in October the Ninth Circuit held, in United States v...
Cert Denied in Pineda-Arrellano; What Now of Challenges to Almendarez-Torres in the Fifth Circuit?
Posted on January 07, 2008Today the Supreme Court denied cert, without comment, in Pineda-Arrellano v. United States. As those of you who handle lots of illegal reentry cases know well, Pineda-Arrellano is the case in which a Fifth Circuit panel opined, in dicta, that a challenge to Almendarez-Torres no longer serves as a legitimate basis for appeal...
Simple Possession of Even Large Quantitites of Drugs Is Not an Aggravated Felony (or a Drug Trafficking or Controlled Substance Offense)
Posted on January 03, 2008Arce-Vences v. Mukasey, No. 06-60033 (5th Cir. Dec. 21, 2007) (Jolly, Higginbotham, Prado)First, some background for those of you who aren't familiar with the Texas controlled substance scheme: Texas has no statute that include the elements of possession of marihuana with the intent to distribute it...
How to Preserve Argument That Indictment Dismissed Because of Speedy Trial Act Violation Should Have Been Dismissed With Prejudice
Posted on December 20, 2007United States v. Stephens, No. 07-30837 (5th Cir. Dec. 19, 2007) (per curiam) (Jolly, Prado, Southwick)In United States v. Jackson, the Fifth Circuit held that a dismissal of an indictment without prejudice (due to a Speedy Trial Act violation) is not a final appealable order...
If Defendant Appears Before Being Indicted, then Indictment Starts Speedy Trial Clock Running
Posted on December 20, 2007United States v. Lopez-Valenzuela, No. 05-61130 (5th Cir. Dec. 19, 2007) (Jolly, Clement, Owen)This is a Speedy Trial Act case, so let's start with the timeline:Lopez is arrested for illegal reentry and appears before a magistrate judgeLopez is indicted for illegal reentryLopez signs a "Waiver of Appearance and Entry of Not Guilty Plea" formmore than three months later, the waiver form is filedthe next day, Lopez files a motion to dismiss the indictment because he wasn't brought to trial within 70 days of his indictment, as required by the STAThe district court denied Lopez's motion, so he entered a conditional guilty plea reserving the right to appeal that ruling...
Assault with Intent to Commit a Felony is Generic "Aggravated Assault" for COV Purposes
Posted on December 17, 2007United States v. Rojas-Gutierrez, No. 06-50584 (5th Cir. Dec. 13, 2007) (Garwood, Jolly, Stewart)Rojas, who pled guilty to illegal reentry, had a prior conviction under Cal. Penal Code § 220(a), which criminalizes assault with the intent to commit certain felonies (mayhem, rape, sodomy, oral copulation, or three other sex offenses)...
Panel Reverses Itself in Ford; Now Holds Possession with Intent to Offer to Sell is a Drug Trafficking/Controlled Substance Offense
Posted on December 12, 2007United States v. Ford, No. 06-20142 (5th Cir. Dec. 11, 2007) (Davis, Prado; Dennis, dissenting)As you'll recall, back in May the panel in this case held unanimously that the Texas offense of possession of a controlled substance with intent to deliver is not a "controlled substance offense" as defined in guideline §4B1...
Fifth Circuit Local Rules Changes Effective December 1, 2007
Posted on December 11, 2007The Fifth Circuit has helpfully provided this summary of Local Rules changes that took effect on December 1st. Those changes include:elimination of the Rule 28.2 provisions concerning the "Summary of Argument," "Statement of Jurisdiction," and "Standard of Review;"amendment of Rule 30...
Court Adopts Generic Definition of "Theft Offense" Used By Other Circuits for Aggravated Felony Purposes
Posted on December 11, 2007Burke v. Mukasey, No. 06-60710 (5th Cir. Dec. 10, 2007) (per curiam) (Jolly, Higginbotham, Elrod)The "aggravated felony" defintion in 8 U.S.C. § 1101(a)(43) includes a bunch of things (many of which are neither aggravated nor felonies), including a "theft offense...
Plenty of FEMA Fraud Prosecutions in Southern Mississippi
Posted on December 05, 2007Speaking of FEMA fraud, the Associated Press reports thatThe Bush administration now acknowledges it is trying to recover nearly $500 million from people who improperly received federal aid money intended to help victims of two deadly hurricanes, Katrina and Rita, along the Gulf Coast two years ago...
Cool (and Free) Online Legal Resources
Posted on November 27, 2007Eugene Volokh hips us to a treatise published by the Congressional Research Service: The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States. I've never heard of it before, so I can't vouch for it...
Speedy Trial Act Claims Rejected in Katrina-Related Fraud Case
Posted on November 26, 2007United States v. Green, No. 07-60184 (5th Cir. Nov. 9, 2007) (Reavley, Smith, Garza)Green rejects a couple of novel (in the Fifth Circuit) Speedy Trial Act arguments, but doesn't completely close the door on one of them. All of you STA mavens out there will definitely want to read on to find out what this font of future litigation might be...
Documents Established That FL 2d Degree Burglary Conviction Was for "Burglary of a Dwelling" & Thus a §2L1.2 COV
Posted on November 26, 2007United States v. Castillo-Morales, No. 07-40053 (5th Cir. Nov. 8, 2007) (Jones, DeMoss, Stewart)Under the categorical approach, a court is generally precluded from relying on documents such as complaint applications when determining whether a prior conviction was for a generic offense, such as burglary...
Search & Seizure Outline from the Oregon Federal Public Defender
Posted on November 26, 2007As the Ninth Circuit Blog reports:The November 2007 version of Developments in Federal Search and Seizure Law is now available on the Oregon Federal Public Defender website here. We have been collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights...
District Court May Not Grant New Trial On Ground Not Raised in Defendant's Rule 33 Motion
Posted on November 08, 2007United States v. Nguyen, No. 06-20598 (5th Cir. Nov. 7, 2007) (per curiam) (Benavides, Clement, Prado)At the closing arguments during Nguyen's trial for possession of cocaine with intent to distribute, the Government made an argument during rebuttal that it had not made in its opening argument, and that Nguyen had not addressed during his argument...
TX Injury to Child by Act is 18 U.S.C. § 16(b) COV, Because Of Substantial Risk Physical Force Against Person Will Be Used In Course of Committing It
Posted on November 07, 2007Perez-Munoz v. Keisler, No. 06-60440 (5th Cir. Nov. 6, 2007) (Jolly, Davis, Wiener)The Texas Penal Code has an offense called "Injury to a Child," which is defined as intentionally, knowingly, or recklessly causing bodily injury to a child, either by act or omission...
More News On Operation Streamline
Posted on November 06, 2007The Dallas Morning News reports here on the commencement of Operation Streamline in Laredo. The story covers much of the same ground as the articles mentioned here, but it's still worth a look-see.Also, the Arizona Republic reports that Operation Streamline, which has been in effect in the Yuma sector for a while now, may be expanded to the rest of Arizona...
Ninth Circuit Addresses Sell; Takes Somewhat Different View Than Fifth Circuit
Posted on November 05, 2007Let's jump in the way-back machine for a short trip to last week, when the Fifth Circuit addressed the standard of review for Sell orders (that a defendant be involuntarily medicated to restore his competency to stand trial) in United States v. Palmer...
Happy Guidelines Day! (Hope You Saved Some of Your Halloween Candy to Celebrate With)
Posted on November 01, 2007It's November 1st, and you know what that means: new Guidelines! The Sentencing Commission has helpfully posted on its website the 2007 version of the Guidelines Manual, as well as a reader-friendly redline version of the amendments taking effect today...
Panel Withdraws Opinion Holding that GA Meth "Trafficking" is a 2L1.2 DTO, But Holds That State Guilty Plea Admitted Conduct That Is a DTO
Posted on November 01, 2007United States v. Gutierrez-Bautista, No. 06-40486 (5th Cir. Oct. 31, 2007) (Smith, Weiner, Owen)The court first decided this case back in July. Gutierrez, who pled guilty to illegal reentry, had a prior Georgia conviction for "trafficking" in methamphetamine...
Court Adopts Standard of Review for Appeal from Order That Defendant Be Involuntarily Medicated to Restore Competency to Stand Trial
Posted on November 01, 2007United States v. Palmer, No. 06-31018 (5th Cir. Oct. 31, 2007) (Garwood, Jolly, Stewart)Palmer appealed an order that he be forcibly medicated with Haldol to restore his competency so he could stand trial on a charge of possession of a firearm by a person adjudicated mentally defective...
ACCA Enhancement Vacated Because Government Failed to Prove That One of the Three Prior Violent Felonies Was Counseled
Posted on October 31, 2007United States v. Hollis, No. 06-50784 (5th Cir. Oct. 30, 2007) (Higginbotham, Smith, Owen)Although brief, this opinion covers a lot of ground on three very interesting issues: 1) whether an Old Chief stipulation waived Hollis's right to collaterally attack the validity of an uncounseled prior conviction; 2) whether the Government proved that the prior conviction complied with Gideon, in the face of Hollis's testimony that he was indigent at the time of the prior conviction, that he did not have counsel, that the court never offered him counsel, and that he never waived counsel; and 3) assuming that the court decided an issue against Hollis in his first appeal, whether the manifest-injustice exception to the law of the case rule allowed the court to reconsider that issue on this appeal following resentencing...
Ninth Circuit Holds Date of Removal Is An Element of Enhanced Penalties Under 8 U.S.C. § 1326(b) & Must Be Alleged In Indictment & Found By Jury BRD
Posted on October 29, 2007In what is becoming a semi-regular feature of this blog, here's another Ninth Circuit case that you should be aware of: United States v. Salazar-Lopez, No. 06-50438 (9th Cir. Oct. 24, 2007) (Fisher, Clifton, Fogel, D.J.). There's good and bad in this opinion...
Related Law Questions
What are the differences in the jurisdictions of State and Federal Courts?
U.S. Supreme Court cases must be followed by all courts nationwide. State Suprem...
Is it libel to write blog posts and/or online reviews about a local business that defames one's reputation?
Libel is the form of defamation expressed in fixed-- usually written form. Sland...
#1 Online Legal Resource
On 08-28 at 21:13PM
Ten months later, Fed must reveal names of emergency lending recipients #FOIA
On 08-25 at 19:02PM
Squeaky Fromme, would-be Ford assassin and Manson devotee, released from prison
On 08-14 at 15:19PM
Likely unintended consequence of cash-for-clunkers stimulus is dampening of 2010 spending
On 08-14 at 14:34PM
Palm seeks to halt Palm Pre Android theme on copyright and trademark ground
On 08-12 at 17:30PM
Congressional investigation demonstrates Karl Rove lied about his active role in US attorney's firing
On 08-12 at 16:20PM
Family of New York City swine flu victim to sue city for failure to secure school #nyc #swineflu
On 08-12 at 12:59PM
Real Network's DVD copying software deemed to break DMCA's anti-circumvention provisions
On 08-12 at 12:57PM
Prepaid funeral operators indicted for $100 Million fraud
On 08-12 at 12:53PM
NY Jets join Cincinnati, Dallas, Green Bay, Houston & Seattle #NFL teams offering branded state lottery games
On 08-12 at 12:43PM
Are you the author of this blog? Adding USLaw.com to your Blogroll increases relevance. You qualify to display a USLaw Network badge.
Suggest changes to this blog's description or nominate another for inclusion. Register for updates.
What are the differences in the jurisdictions of State and Federal Courts?
U.S. Supreme Court cases must be followed by all courts nationwide. State Suprem...
Is it libel to write blog posts and/or online reviews about a local business that defames one's reputation?
Libel is the form of defamation expressed in fixed-- usually written form. Sland...
 |
|
Contact Us | About Us | Celebrity Law Blog |
Our Partners | Disclaimer
| Law Blog Directory
| Law Jobs
| Law Tweets
| GoDaddy Hosting
All original material © 1999-2009 by USLaw.com. |