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Public Defense

Fifth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Fifth Circuit

Post Frequency: 1.4/day

Last Entry: June 17, 2013 at 11:20:00

Cannot Rely on Bare Arrest Records in Sentencing; Prohibiting Indirect Conduct with Minors was Substantively Unreasonable

Posted on June 17, 2013
United States v. Windless, No. 12-60370 (June 12, 2013) (Higginbotham, Owen, Graves) The panel found reversible error in the district court?s sentencing of Windless, who had failed to register under SORNA. The district court explicitly referenced Windless? arrest record in sentencing him at the top of the Guidelines and fashioning his conditions of supervised release...

Speedy Trial Issues: Notice of Intent to File Guilty Plea Tolls Clock

Posted on May 30, 2013
United States v. Dignam, No. 12-30262 (May 28, 2013) (Davis, Graves, Higginson) Notice of Intent to File Guilty Plea Tolls Speedy Trial Clock The Fifth Circuit joined six other circuits by finding that the delay prompted by the parties? notice of intent to file a guilty plea was excludable under 18 U...

Degree of Causation Required for Aggravated Alien Transporting Unresolved

Posted on May 24, 2013
United States v. Alvarado-Casas, No. 12-40295 (May 14, 2013) (Davis, Graves, Higginson) Pursuant to a plea agreement, Alvarado-Casas pled guilty to conspiring to transport unlawful aliens causing serious bodily injury to, or placing in jeopardy the life of, any person ("aggravated alien transporting")...

Immigration Cases Strain Justice System and Threaten Rights

Posted on May 23, 2013
Human Rights Watch released a report today entitled Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions. This 82-page report captures in detail the rise of illegal entry and illegal reentry prosecutions, the cost on our judicial system, and the resulting toll on human rights...

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Mandatory Minimum at Original Sentencing Applies to Modification Hearing Notwithstanding Dorsey

Posted on May 20, 2013
United States v. Kelly, No. 12-30936 (May 13, 2013) (Jones, Dennis, Haynes) The panel affirmed that Kelly was subject to the 10-year mandatory minimum in place at the time of his original sentencing in 2004, not the 5-year mandatory minimum in place at the time of his modification hearing pursuant to 18 U...

Pharmacies' Pseudoephedrine Purchase Logs Are Business Records & Are Not Subject to the Confrontation Clause

Posted on May 06, 2013
United States v. Towns, No. 11-50948 (Apr. 30, 2013) (Jolly, Jones, Graves) A divided panel held that the pseudoephedrine purchase logs from various retailers were business records under Federal Rule of Evidence 803(6) and not subject to the Confrontation Clause...

Florida Conviction of Sexual Battery is � 2L1.2 Crime of Violence

Posted on April 30, 2013
United States v. Garza-Guijan, No. 11-20508 (Apr. 29, 2013) (Jones, Dennis, Higginson) The panel found that Garza?s prior Florida state court conviction for sexual battery was a "forcible sex offense" as defined in the U.S. Sentencing Guidelines for a sixteen-level enhancement under � 2L1...

Firearms and Drug Trafficking Convictions Affirmed Over Challenges to Indictment, Juror Dismissal, Instructions, Consent-to-Search Question, and Evidence Sufficiency

Posted on April 30, 2013
United States v. Cooper, No. 11-20711 (Apr. 26, 2013) (Stewart, Davis, Clement) The panel addressed arguments challenging Cooper?s indictment and trial, ultimately affirming his conviction for a number of drug and firearms offenses. Indictment Sufficient and Jury Instructions Not a Constructive AmendmentCooper challenged the sufficiency of Counts 2 and 4 of the indictment, which alleged

State Conviction for Possession with Intent to Distribute for No Remuneration Is Not Aggravated Felony

Posted on April 29, 2013
Moncrieffe v. Holder, No. 11-702 (Apr. 23, 2013) (Justice Sotomayor, majority) Applying (and celebrating) the categorical approach, the Supreme Court held that a state conviction for possession with intent to distribute (for no remuneration) a small amount of marijuana does not constitute "illicit trafficking in a controlled substance" under section 1101(a)(43) of the Immigration and Nationality

No Sex Act Required for Child Sex Trafficking; Harboring Counts for Same Victims in Different Locations Not Plain Error

Posted on April 23, 2013
United States v. Garcia-Gonzalez, No. 11-41097 (Apr. 17, 2013) (Higginbotham, Smith, Elrod) Garcia was convicted of three counts of child sex trafficking, one count of conspiracy to harbor illegal aliens, and six counts of harboring illegal aliens...

Court?s Decision to Keep Appointed Counsel Trumps Pro Se Requests for New Counsel and Plea Withdrawal

Posted on April 22, 2013
United States v. Minor, No. 12-30247 (Apr. 17, 2013) (Jones, Dennis, Higginson) (per curiam) Minor pled guilty pursuant to a plea agreement to conspiracy to distribute and possess with intent to distributed 50 grams or more of cocaine base or crack cocaine...

To Be ?Found? Under � 1326, Immigration Authorities?Not Other Officials?Must Discover Alien

Posted on April 16, 2013
United States v. Compian-Torres, No. 11-10921 (Mar. 19, 2013) (Reavley, Prado, Elrod) To be "found" under � 1326, (1) immigration authorities must have specifically discovered and noted the alien?s physical presence, and (2) knowledge of the illegality of the alien?s presence must be reasonably attributable to immigration authorities...

Kebodeaux Argument Preview

Posted on April 15, 2013
The oral argument for the Fifth Circuit decision�United States v. Kebodeaux, a SORNA case, is scheduled for this Wednesday, April 17th.� SCOTUSBlog offers a detailed argument preview in the post by Steven Schwinn, Can Congress punish a former sex offender for failure to register?, concluding with this analysis: This is a narrow case...

Plain Error to Impose Sentence Based on Rehabilitative Needs

Posted on April 15, 2013
United States v. Garza, No. 11-10543 (Feb. 1, 2013) (DeMoss, Owen, Haynes) United States v. Culbertson, No. 11-10917 (Mar. 22, 2013) (Stewart, Garza, Elrod) In Tapia v. United States, the Supreme Court held that a district court "may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation...

No Merger of Wire Fraud and Money Laundering Convictions

Posted on April 12, 2013
United States v. Kennedy, No. 11-60531 (Feb. 7, 2013) (Jolly, Jones, Graves) Defendants argued that the wire fraud convictions merged with the money laundering convictions to impermissibly result in convictions for two crimes on the same facts. The panel rejected this argument...

Sentences with Aggravating Role Enhancements and Upward Departure Affirmed in Alien Smuggling and Money Laundering Case

Posted on April 11, 2013
United States v. Chon, No. 11-50143 (Apr. 10, 2013) (Higginbotham, Smith, Elrod) (per curiam) The panel affirmed convictions for alien smuggling, money laundering, and aiding and assisting in the filing of a false tax return despite challenges to the sufficiency of the evidence...

Clarifies Review for Sufficiency of the Evidence: Was Verdict Irrational?

Posted on April 08, 2013
United States v. Vargas-Ocampo, No. 11-41363 (Mar. 14, 2013) (Davis, Jones, Smith) The panel clarified that the Jackson v. Virginia, 443 U.S. 307 (1979), constitutional test for sufficiency of the evidence to uphold a conviction is simply "whether, viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the

Use Present Tense to Adopt Prior Statement or Is Hearsay; Insufficient Evidence for Money Laundering Count

Posted on April 06, 2013
United States v. Demmitt, No. 11-11120 (Feb. 1, 2013) (Stewart, Garza, Elrod) The factual resume of the basis for a plea was impermissibly admitted hearsay. The witness did not admit on the stand that he made the statement and that it was true, so it was not adopted pursuant to Rule 801(d)(1)...

Enticed Minor Even Though Communicated Only with Adult

Posted on April 05, 2013
United States v. Caudill, No. 12-10292 (Feb. 19, 2013) (DeMoss, Owen, and Haynes) Caudill was convicted under 18 U.S.C. � 2422(b) for attempting to persuade, induce, or entice individuals whom he believed were eleven and thirteen years old to engage in criminal sexual activity...

Canine Sniff of Home is Fourth Amendment Search

Posted on March 27, 2013
Florida v. Jardines, No. 11-564, _ S. Ct. _, 2013 WL 1196577 (Mar. 26, 2013) Majority (Scalia, Thomas, Ginsburg, Sotomayor, Kagan) "The government?s use of trained police dogs to investigate the home and its immediate surroundings is a ?search? within the meaning of the Fourth Amendment...

New ?Plain-Meaning? Approach for Non-Common Law Enumerated Offenses Under � 2L1.2 Crimes of Violence: Use Dictionaries, Not 50-State Surveys or Model Penal Code

Posted on March 19, 2013
United States v. Cabecera Rodriguez, No. 11-20881 (en banc) (Mar. 15, 2013) Majority (Elrod, Higginson, Stewart, King, Jolly, Davis, Smith, DeMoss, Clement, Prado, Southwick) The Fifth Circuit en banc, frustrated with the Sentencing Commission?s lack of definitions for enumerated offenses and the categorical approach, created a "plain-meaning" approach for non-common law enumerated offenses

Error, if Any, in Relying on Non-Shepard Document to Assess 12-Level Enhancement Did Not Affect Fairness, Integrity, or Public Reputation of Judicial Proceedings

Posted on March 15, 2013
United States v. Duque-Hernandez, No. 11-40642 (Smith, Prado, Higginson) Duque-Hernandez pled guilty to illegal reentry and was sentenced to 51 months of imprisonment, which was the low end of the guidelines range after the court applied a 12-level enhancement...

Miranda Violation Does Not Automatically Make Consent to Search Involuntary

Posted on March 13, 2013
United States v. Gonzalez-Garcia, No. 11-41365 (Higginbotham, Smith, Elrod) Federal agents were surveilling a suspected drug house when they saw Gonzalez-Garcia leave from the house. Agents approached him and asked if he was in the country legally...

Imposition of 3-Years Supervised Release for Illegal Reentry Affirmed Despite District Court?s Erroneous Belief that Supervised Release Was Mandatory (Plain Error)

Posted on March 12, 2013
United States v. Cancino-Trinidad, No. 11-41344 (Stewart, Smith, Weiner) Cancino-Trinidad pled guilty to illegal reentry and was sentenced to 32 months? imprisonment and three years? supervised release. He had a lengthy criminal history (28 convictions) and was re-arrested less than 3 months after his deportation...

Conviction in ATF-Aided Conspiracy Affirmed; Remanded for Sentencing

Posted on March 11, 2013
United States v. Cervantes, Nos. 11-41385 & 11-41407 (Jolly, Prado, Higginson) The panel addressed the appellants? multiple complaints regarding their trial and sentence, affirming their convictions but vacating and remanding the sentences of Cervantes and Alvarez...

Sequestering Justice

Posted on March 11, 2013
This Atlantic Monthly article entitled How the Sequester Threatens the U.S. Legal System details the impact of the sequester on the Judiciary, including Federal Public Defender offices: If federal court administrators offer the big picture impact of the sequestration, federal public defenders all over the country are sharing the details on an office-by-office basis...

Latest Supreme Court Opinions - Fourth Amendment, Plain Error, Padilla, Double Jeopardy

Posted on March 01, 2013
Florida v. Harris, No. 11-817 (Kagan, unanimous) The government does not need to produce a dog?s training and certification records, in addition to other evidence, to demonstrate a drug detection dog?s reliability. Instead, "[t]he question?similar to every inquiry into probable cause?is whether all the facts surrounding a dog?s alert, viewed through the lens of common sense, would make a

30-Day Forfeiture Deadline Applies to Minors

Posted on February 28, 2013
United States v. Alvarez, No. 11-41371 (Higginbotham, Smith, Elrod) The moral of this story could be that deadlines matter and, if you miss one, ask for an extension instead of (or in addition to) arguing that the deadline doesn?t apply to you. Claimant, the minor child of Defendant Alvarez, appealed an order of forfeiture regarding property that Alvarez agreed to forfeit in his plea

Prison and the Poverty Trap - Why Longer Sentences Hurt Society

Posted on February 28, 2013
The United States? incarceration rate is the world?s highest, and the number of Americans in state and federal prisons has quintupled since 1980. This New York Times article from February 19, 2013, "Prison and the Poverty Trap," describes how social scientists are finding that the benefits of incarceration are far outweighed by the costs...

Failure to Give Notice of Upward Departure Did Not Affect Substantial Rights

Posted on February 19, 2013
United States v. Zelaya-Rosales, No. 12-31021 (Reavley, Prado, Elrod) (per curiam) Zelaya-Rosales pled guilty to illegal reentry with an advisory guideline range of 0 to 6 months. At sentencing, without prior notice, the district court imposed a 6-month upward departure based on Zelaya-Rosales?s 5 previous immigration encounters and 4 prior removals...

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