Public Defense

Standard for Sadistic Depiction Enhancement is Objective, Requires Contemporaneously Infliction Pain

Posted on August 28, 2017
United States v. Nesmith, No. 16-40196, ?F.3d?, 2017 WL 3393055 (5th Cir. Aug. 8, 2017) (King, Jolly, Prado) Calvin Nesmith pleaded guilty to the sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a) and (e). At sentencing, the district court applied a four-level enhancement under §2G2...

Illinois Aggravated Battery with a Deadly Weapon is Crime of Violence

Posted on August 25, 2017
United States v. Reyes, No. 16-40241, ? F.3d ?, 2017 WL 3262281 (5th Cir. Aug. 1, 2017) (Reavley, Southwick; Southwick concurring; Owen dissenting) The Court held that Illinois?s aggravated battery statute (720 Ill. Comp. Stat. § 5/12-3.05) is divisible, and that subsection (f)(1) (aggravated battery based on the use of a deadly weapon) is a crime of violence under the elements clause of

Sentencing Commission Adopts New Guideline Amendments

Posted on April 19, 2016
The U.S. Sentencing Commission voted on April 15 to amend the U.S. Sentencing Guidelines, including significant changes to 2L1.2, 2G2.2, and conditions of supervision. A "reader-friendly" version of the adopted amendments is available online. These amendments will be submitted to Congress and go into effect on November 1, 2016, absent congressional action.

Rehearing En Banc on Whether 18 U.S.C. § 16(b) Is Unconstitutionally Vague

Posted on March 04, 2016
United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. Feb. 10, 2016) (Jolly, Costa; Higginson dissenting) A divided panel held that 18 U.S.C. § 16(b) is unconstitutionally vague.  After examining the Johnson factors, the majority determined:   Section 16's standard is imprecise in all the ways that the ACCA's standard was imprecise; in each case, however, it is

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Public Comment Sought for Sentencing Commission Proposed Amendments

Posted on March 03, 2016
The U.S. Sentencing Commission released proposed amendments to the Sentencing Guidelines at the beginning of January.  USSC Press Release. Here is a link to the amendment related to the 4B1.2 crime of violence definition.  In light of Johnson v. United States, 135 S...

NACDL Report on Federal Indigent Defense: The Independence Imperative

Posted on September 16, 2015
Last week, the National Association of Criminal Defense Lawyers released its report on Federal Indigent Defense calling for greater independence from the judiciary. The report raises many concerns about the system and identifies Seven Fundamentals of a Robust Federal Indigent Defense System: 1...

No Equitable Vacatur of Supervised Release for Deported 1326 Defendant

Posted on July 23, 2015
United States v. Heredia-Holguin, No. 14-10846 (5th Cir. June 16, 2015) (Reavley, Owen, Higginson)   Heredia-Holguin was sentenced to one year in prison and a three-year term of supervised release for illegal reentry. He did not object to his sentence or term of supervised release...

Counsel?s Stipulation to Testimonial Evidence Waived Client?s Confrontation Right Even Absent Evidence that Client Agreed to Stipulation

Posted on July 17, 2015
United States v. Ceballos, No. 13-50786, (5th Cir. June 16, 2015) (Smith, Prado, Owen)   Ceballos appealed her conviction for ?transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States? by alleging a violation of her Sixth Amendment right, improper admission of evidence, and that cumulative error deprived her of a fair trial...

AK-47 Magazines Are ?Components? for Purposes of Firearm Exportation Laws

Posted on July 14, 2015
United States v. Gonzalez, No. 14-40344 (5th Cir. June 23, 2015) (Jones, Smith, Costa) Gone are the days of the Civil War musket, when one?s life depended on quickly loading the gun, only to fire a single, anti-climactic shot at the enemy. Fast-forward a couple wars later, and the AK-47, a high-powered, automatic rifle (?automatic? being the ?A? in AK-47), made its debut...

Louisiana Aggravated Battery Is Not a § 2L1.2 Crime of Violence

Posted on June 30, 2015
United States v. Hernandez-Rodriguez, No. 14-40321 (5th Cir. June 5, 2015) (Clement, Prado, Elrod) This case involved determining whether the least culpable means of committing aggravated battery under Louisiana law involves conduct within the scope of the generic, contemporary meaning of ?aggravated assault...

Judge?s Admonishments about Possible Deportation Did Not Foreclose Ineffective Assistance of Counsel Claim

Posted on June 29, 2015
United States v. Batamula, No. 12-20630 (5th Cir. June 2, 2015) (Dennis, Prado, Brown) (per curiam) Defendant Innocent Rutahagara Batamula pleaded guilty to making false statements right after a judge?s plea colloquy that the felonies committed were ?likely? to result in deportation...

Sentencing Court?s Discretion Not Limited for Career Offenders; Must Consider § 3553

Posted on June 26, 2015
United States v. Clay, No. 14-60283 (5th Cir. May 22, 2015) (Jolly, Higginson, Costa) (per curiam)   The district court sentenced Clay, who was classified as a ?career-offender? under the Guidelines, within the guideline sentencing range of 151-188 months of imprisonment...

ACCA Residual Clause Unconstitutional

Posted on June 26, 2015
Johnson v. United States, No. 13-7120, 576 U.S. __ (2015) (Scalia, Roberts, Ginsburg, Breyer, Sotomayor, Kagan; concurring opinions by Kennedy and Thomas; dissenting opinion by Alito)    From the opinion:   "In Taylor v. United States, 495 U. S. 575, 600 (1990), this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when

Georgia Possession With Intent to Distribute Is § 2L1.2 DTO Even Though Not an Aggravated Felony Per Moncrieffe; No Remuneration Required

Posted on April 03, 2015
United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam) The Fifth Circuit giveth and then taketh away.  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v...

180+ Day Incarceration, Regardless of Nature of Offense, Negates ?Good Moral Character? for Non-LPR Cancellation of Removal; GMC Period Ends Upon Final Administrative Decision

Posted on April 01, 2015
Rodriguez-Avalos v. Holder, No. 13-60736 (5th Cir. Mar. 4, 2015) (Davis, Dennis, Costa) (per curiam) This case involves the statutory interpretation of the good moral character (GMC) requirement, 8 U.S.C. § 1101(f)(7), for non-LPR cancellation of removal, 8 U...

Government Breached Plea Agreement by Using Information from Proffer to Argue for Higher Sentence

Posted on March 31, 2015
United States v. Chavful, No. 13-11173 (5th Cir. Mar. 20, 2015) (Smith, Prado, Owen) The PSR alleged 3 alleged drug transactions.  Chavful plead guilty to the third: 5kg of cocaine and 200lb of marijuana.  The first, negotiations for 10kg of cocaine and 1000lb of marijuana, Chavez argued in his objection and at sentencing was merely the negotiation that culminated in the third transaction.

Government Cannot Refuse to Move for Third Point of Acceptance Due to Sentencing Litigation

Posted on March 30, 2015
United States v. Castillo, 779 F.3d 318 (5th Cir. Feb. 26, 2015) (Benavides, Prado, Graves) Castillo pled guilty to bank robbery of over $1,000.  The PSR held her accountable for stealing $690,000 and added 14 levels to the base offense level.  Castillo filed written objections, denying that she confessed to stealing $690,000 and arguing that the evidence showed an amount between $70,000

Texas Aggravated Assault with Deadly Weapon Conviction Is Generic ?Aggravated Assault? even though Judgment of Conviction Had No Affirmative Weapon Finding

Posted on March 13, 2015
United States v. Sanchez-Sanchez, No. 14-10305 (5th Cir. Feb. 24, 2015) (Higginbotham, Smith, Graves) This case involved the reliability of a judgment of conviction to determine that Sanchez-Sanchez?s prior state conviction constituted ?aggravated assault? in the generic sense to support the 16-level enhancement under § 2L1...

Florida Manslaughter Not § 2L1.2 COV Because Requires Less than Recklessness as to Death

Posted on March 12, 2015
United States v. Garcia-Perez, No. 13-20482 (5th Cir. Feb. 23, 2015) (Jolly, Higginbotham, Owen) The Fifth Circuit reminds us again that the name of a state conviction is not dispositive as to whether it is a crime of violence (COV).  In this case, Garcia-Perez was convicted of illegal reentry, and the district court assessed a 16-level enhancement for his conviction of manslaughter in

Presumed Intent to Distribute due to Quantity of Drug Does Not Make Florida Trafficking in Meth a § 2L1.2 Drug Trafficking Offense

Posted on March 11, 2015
United States v. Sarabia-Martinez, No. 14-50064 (5th Cir. Feb. 20, 2015) (Reavley, Jones, Elrod) How can an offense called trafficking in methamphetamine not be a drug trafficking offense?  Well, Florida Statute § 893.135(1)(f) includes mere possession as a form of ?trafficking? provided the defendant possesses at least 14 grams of methamphetamine...

USAO Discovery Policies

Posted on March 06, 2015
Pursuant to a FOIA request, USA Today obtained the discovery policies for U.S. Attorney Offices.  The policies for many offices are available at this link.

Giving Away Drugs Is Not A § 2L1.2 Drug Trafficking Offense (Opinion Withdrawn)

Posted on December 31, 2014
The Fifth Circuit sua sponte withdrew the opinion described below and replaced it with United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam).  The new opinion holds affirms the district court and applies the 16-level enhancement after finding that Moncrieffe does not control...

Export Statute, 18 U.S.C. § 554, Is Divisible; Modified Categorical Approach Applies to Statutes that Refer to Other Statutes and Regulations

Posted on December 31, 2014
US v. Franco-Casasola, No. 12-60977 (5th Cir. Oct. 23, 2014) (Owen, Southwick, Graves) Franco-Casasola was convicted under the export violation statute, 18 U.S.C. § 554(a), for buying, receiving, or concealing ?merchandise, articles and object??to wit: five semi-automatic pistols?knowing they were intended for export contrary to the Arms Export Control Act, 22 U...

Absent Proof to the Contrary, Government Does Not Have to Prove No Other Charging Document Exists to Narrow Conviction Under Modified Categorical Approach

Posted on December 26, 2014
US v. Castellon-Aragon, No. 13-41244 (5th Cir. Nov. 24, 2014) (Jolly, Jones, Africk) Castellon-Aragon challenged the 12-level enhancement for his drug conviction, arguing that the Government presented insufficient evidence that his conviction under the broad statute, California Health and Safety Code section 11378, was for possession of methamphetamine for sale...

Previously Deported Noncitizen Apprehended at Port of Entry While Leaving the United States is ?Found In? Under § 1326

Posted on December 24, 2014
US v. Quezada Rojas, No. 13-50926 (5th Cir. Oct. 30, 2014) (Smith, Barksdale, Hayne) Quezada Rojas was on a bus headed into Mexico when the bus was stopped by U.S. Border Patrol agents conducting inspections of outbound traffic.  Upon questioning, Quezada Rojas admitted that he was previously deported...

They Say This Cat Tolentino's a Bad Mother? Shut Your Mouth! But I'm Just Talking 'Bout Tolentino! Then We Can DIG It!

Posted on March 29, 2011
As you can tell from the post title, today the Supreme Court dismissed as improvidently granted the writ of certiorari in Tolentino v. New York. As is usual with DIGs, the Court didn't explain the reason for the dismissal. But the oral argument transcript suggests a possibility: unanswered questions below...

Fives Take Side on Circuit Split, Hold That SORNA's Registration Requirement Did Not Become Applicable to Those with Pre-SORNA Convictions Until AG Issed Interim Rule Making SORNA Retroactive

Posted on February 25, 2011
United States v. Hoang, No. 09-30484 (5th Cir. Feb. 23, 2011) (Jones, Jolly, Garza) So what's this case about? Appellant Nam Van Hoang (?Hoang?) appeals from his conviction for failure to register pursuant to the Sex Offender Registration and Notification Act (?SORNA?)...

Downward Departure to Cat I for Overrepresented Criminal History Does Not Make Defendant Safety-Valve Eligible

Posted on February 24, 2011
United States v. Jasso, No. 10-40203 (5th Cir. Feb. 17, 2011) (Garza, Stewart, Haynes) Let's say you're facing a mandatory minimum, but you're ineligible for safety valve relief because you've got more than one criminal history point.  What if you persuade the district court that your criminal history category is overrepresents the seriousness of your criminal history, and you get a departure to

Obstructing Highway or Other Passageway in Violation of Tex. Penal Code § 42.03 Is Not Similar to "Loitering" Under Criminal History Guidelines

Posted on February 23, 2011
United States v. Hernandez, No. 10-10913 (5th Cir. Feb. 22, 2011) (per curiam) (Jolly, Higginbotham, Smith) The concise intro: The Federal Sentencing Guidelines instruct a sentencing court to consider all of a defendant?s prior convictions, including misdemeanors and petty offenses, subject to two exceptions designed ?to screen out past conduct which is of such minor significance that it is not

No.

Posted on February 23, 2011
That's the answer to the question posed in this post from a few weeks ago: Is SCOTUS Poised to Reconsider Almendarez-Torres? To recap, the Court seemed to be taking an interest in two petitions presenting the question of Almendarez-Torres's continuing viability...

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