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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

Ninth Weighs In On Circuit Split: No Objection Required In District Court to Preserve Substantive Reasonableness Challenge

Posted on February 20, 2009
United 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, 2009
United 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, 2009
United 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, 2009
The 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)...

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District Court Lacks Power, Under Rule 35(a), To Revise a Reasonable Sentence

Posted on February 09, 2009
United 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, 2009
Spears 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, 2009
Chambers 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, 2009
United 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, 2008
Things 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, 2008
Got 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, 2008
Hedgpeth 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, 2008
United 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, 2008
It'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, 2008

Guilty Plea to Information Waives Argument That Defendant Did Not Knowingly and Voluntarily Waive Right to Indictment

Posted on November 20, 2008

UUV Circuit Split On Its Way To the Supreme Court?

Posted on November 18, 2008

Circuit Split Over Whether Recidivist Possession Is Necessarily an Aggravated Felony Deepens; Second Circuit Says No

Posted on November 17, 2008

Will They Call It an EA-File?

Posted on November 12, 2008

Fives Reject Supervised Release Condition Prohibiting Defendant From Living With Anyone Other Than a Spouse or Blood Relative

Posted on October 29, 2008

Burglary for Texas, Burglary for Tennessee (But Not for ACCA)

Posted on October 29, 2008

Defendant'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, 2008

Cert Grant: To Be Guilty of Aggravated ID Theft, Must Defendant Know That ID Actually Belonged to a Real Person?

Posted on October 20, 2008

Panel 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, 2008
United 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, 2008
So 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, 2008
United 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, 2008
United 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, 2008
United 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, 2008
United 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...

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