Fifth Circuit Blog: Public Defense

Home -> Law Blog Directory -> Public Defense Blogs

OR PHONE (866) 635-1838 for Bankruptcy Help, (866) 635-6190 for Divorce,
(866) 635-2689 for Personal Injury or (866) 635-9402 for Criminal Defense

Find a Local Lawyer

Bankruptcy (866) 635-1838
Divorce (866) 635-6190
Personal Injury (866) 635-2689
Criminal Defense (866) 635-9402

Public Defense

Fifth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Fifth Circuit

Post Frequency: 1/day

Last Entry: August 28, 2017 at 09:00:00

Proposed Fifth Circuit Rules Changes

Posted on June 09, 2009
The 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, 2009
This 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, 2009
United 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, 2009
United 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

To access this complete feed in the blog feed reader login or register for free.

Ninth Circuit Finds Illegal Reentry Sentence Substantively Unreasonable

Posted on June 02, 2009
In 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, 2009
United 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, 2009
United 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, 2009
United 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, 2009
United 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, 2009
United 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, 2009
Long-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, 2009
United 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, 2009
Dean 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, 2009
Kansas 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, 2009
United 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, 2009
United 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, 2009
United 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, 2009
United 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, 2009
Corley 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, 2009
United 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, 2009
Puckett 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, 2009
United 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, 2009
United 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, 2009
Then 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, 2009
United 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, 2009

Cert Grant: Whether Lawyer's Nonadvice or Misadvice About Immigration Consequences of Guilty Plea Constitutes Ineffective Assistance of Counsel

Posted on March 02, 2009

Escapees Have No Fourth Amendment Rights

Posted on February 26, 2009
United 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, 2009
Yesterday 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, 2009
United 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...

Previous | Next

Related Law Bulletins

2d Circuit Hears Oral Arguments In Muslim Border-Search Case
Yesterday, the U.S. Second Circuit Court of Appeals heard oral arg...

10th Circuit Rules Largely In Favor of Summum "7 Aphorisms" Monuments
In decisions yesterday, the U.S. 10th Circuit Court of Appeals dea...

Hague Abduction: New 6th Circuit Case on Grave Risk of Harm
The U.S. Court of Appeals for the Sixth Circuit has issued a hi...

New Baptist Covenant Blog
Last week, I pointed to the New Baptist Convenant website, now onl...

The Mexico Trucker Blog
I've written before about the perceived problems with relaxed rest...