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Public Defense

Fifth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Fifth Circuit

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

Constitutional Crisis in Texarkana?

Posted on June 10, 2008
Consider 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, 2008
Effective 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, 2008
United 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, 2008
Recall 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...

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Writ Writer

Posted on June 04, 2008
Last 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, 2008
Appellate 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, 2008
Let'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, 2008
United 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, 2008
United 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, 2008
United 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, 2008
United 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, 2008
United 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, 2008
United 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, 2008
The 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, 2008
Stymied 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, 2008
United 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, 2008
United 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, 2008
United 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, 2008
Arguelles-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, 2008
Yesterday, 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, 2008
Not 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, 2008
United 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, 2008
United 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, 2008
Virginia 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, 2008
Just 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, 2008
Hartz 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, 2008
Burgess 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, 2008
Begay 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, 2008
As 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, 2008
As 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...

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