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

One Sausage, Different Lengths? Panel Agrees Necessary & Proper Clause Authorizes SORNA's Failure-to-Register Offense for Those With Federal Priors, But Disagrees As to Why

Posted on February 17, 2011
United States v. Kebodeaux, No. 08-51185 (5th Cir. Feb. 15, 2011) (per curiam) (Stewart, Haynes; Dennis, concurring in the judgment) (Disclosure: My office represents Mr. Kebodeaux, so I'm limiting this post to just a summary of the two opinions, without any analysis of their merits...

Defense Suppression Victory; Court Upbraids Prosecutor for Improper Remarks During Closing Argument

Posted on February 15, 2011
United States v. Raney, No. 10-20007 (5th Cir. Feb. 9, 2011; rev. Feb. 10, 2011) (per curiam) (DeMoss, Elrod; Benavides, dissenting) This case presents two you-dont-see-that-every-days: a rare Fourth Amendment win for the defense, and a stern warning to prosecutors to knock it off with the improper jury arguments...

3582(c)(2) Reduction Denial Vacated for Failure to Consider 3553(a) Factors

Posted on February 10, 2011
United States v. Larry, No. 08-30368 (5th Cir. Feb. 8, 2011) (DeMoss, Prado; King, dissenting) Larry picked up a 280-month sentence for a crack offense. In response to a Rule 35 motion from the Government, his sentence was later reduced to 154 months...

Convictions Reversed for Insufficiency and Cumulative Error; Good Discussion of Deliberate Ignorance

Posted on February 09, 2011
United States v. Delgado, No. 07-41041 (5th Cir. Jan. 19, 2011) (Wiener, Dennis; Clement, J. dissenting) A common fact pattern, an uncommon result: Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense, 21 U...

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

Is SCOTUS Poised to Reconsider Almendarez-Torres?

Posted on January 27, 2011
That the question posed in this post at SCOTUSblog. What prompted this speculation? As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v...

Proposed Guidelines Amendments and Requests for Comment

Posted on January 19, 2011
As Professor Berman highlighted last week, the Sentencing Commission has published for public comment a raft of proposed amendments to the Guidelines. A few of these proposals could be quite significant for those of us in border districts, as well as anyone who represents alien defendants (which is pretty much everyone these days)...

Bare Offer to Sell Drugs Is Now Drug-Trafficking Offense Under Illegal Reentry Guideline; Still Not Plain Error to Apply Higher Guidelines In Effect at Time of Sentencing

Posted on January 18, 2011
United States v. Marban-Calderon, No. 09-40207 (Higginbotham, Smith, Elrod) As you'll recall, the Fifth Circuit has in the past held that a Texas conviction for delivery of a controlled substance was not categorcially a "drug trafficking offense" under guideline §2L1...

Cert Grant: Under ACCA, Is Maximum Punishment for Prior Offense Determined By Current Law or By Law In Effect at the Time of That Offense?

Posted on January 14, 2011
Under the ACCA, a "serious drug offense" is one carrying a maximum term of imprisonment of at least 10 years. In determining whether a prior offense is a serious drug offense, does the court look at the maximum punishment authorized at the time the defendant committed the offense, or at the time of sentencing for the new federal offense? That is the question on which the Supreme Court granted

Revocation Aggregation

Posted on January 13, 2011
United States v. Shabazz, No. 10-10553 (5th Cir. Jan. 6, 2011; rev. Jan. 12, 2011) (King, Stewart, Owen) United States v. Hampton, No. 10-10035 (5th Cir. Jan. 6, 2011) (King, Stewart, Owen) In these cases, the court addresses an issue concerning revocation imprisonment terms that has been lurking since the passage of the PROTECT Act in 2003...

TX Fleeing by Vehicle Is Aggravated Felony, for Largely the Same Reason It's an ACCA Violent Felony

Posted on January 12, 2011
United States v. Sanchez-Ledezma, No. 10-40451 (5th Cir. Jan. 7, 2011) (Garza, Stewart, Haynes) Recall that, in United States v. Harrimon, the Fifth Circuit found that evading arrest or detention by use of a vehicle, in violation of Texas Penal Code § 38...

Legally Non-Consensual Sex Offenses, Even If Involving Consent In Fact, are "Forcible Sex Offenses" Under §2L1.2's COV Definition

Posted on January 11, 2011
United States v. Rodriguez-Juarez, No. 09-41001 (5th Cir. Jan. 10, 2011) (per curiam) (Higginbotham, Smith, Haynes) Remember the Fifth Circuit cases, such as Luciano-Rodriguez and Sarmiento-Funes, which held that sex offenses that are factually consensual but legally non-consensual (such as when the victim is too intoxicated to legally consent) are not "forcible sex offenses" for purposes of the

Fives Clarify Harmlessness Analysis of Guidelines Calculation Error

Posted on January 07, 2011
United States v. Ibarra-Luna, No. 09-40768 (5th Cir. Dec. 22, 2010) (Higginbotham, Clement, Owen) Been wondering just when an error in calculating the advisory Guidelines range require reversal? Today is your lucky day: Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless...

California First-Degree Burglary is COV Under 18 U.S.C. § 16(b), and Therefore Aggravated Felony

Posted on December 16, 2010
United States v. Echeverria-Gomez, No. 09-50261 (5th Cir. Dec. 8, 2010) (per curiam) (Jolly, Higginbotham, Smith) We know that burglary under Cal. Penal Code § 459 is not generic "burglary" because it does not require that the entry be unlawful or unprivileged...

Cert Grant: Are Pre-Existing Identity-Related Governmental Documents, Such as Motor Vehicle Records, Obtained as the Direct Result of Police Action Violative of the Fourth Amendment, Subject to the Exclusionary Rule?

Posted on December 15, 2010
Last month the Supreme Court granted cert to answer that question?a question that has divided courts 'round the land?in Tolentino v. United States, No. 09-11556. The evidence at issue is Tolentino's driving record, which police obtained by running a computer records check during an allegedly illegal traffic stop...

Cert Grant: May a District Court Give a Defendant a Longer Sentence to Promote Rehabilitation?

Posted on December 14, 2010
Such is the question presented in Tapia v. United States, No. 10-5400, in which the Supreme Court granted cert last Friday. You may be familiar with the scenario presented in Tapia: the district court imposed a 51-month, top-of-the-guidelines sentence in part to ensure that Tapia would remain in prison long enough to be able to participate in BOP's 500-hour drug treatment program...

21 U.S.C. § 851 Does Not Bar Defendant From Challenging 5+ Year-Old Conviction on Identity Grounds

Posted on November 05, 2010
United States v. Gonzalez, No. 09-40125 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis) Sometimes it seems like sentencing in federal court has more to do with what the defendant did in the past than what he did this time. Which brings us to Gonzalez and 21 U...

Career Offenders Ineligible for Mitigating Role Adjustment

Posted on November 04, 2010
United States v. Cashaw, No. 09-51035 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis) As it turns out, this appears to be the first time the Fifth Circuit has held as such. Cashaw had argued that he was eligible for the adjustment because "the career offender provision does not expressly preclude a downward adjustment for a minor participant and ...

CA "Willful Infliction of Corporal Injury" a §2L1.2 16-Level COV, But CA "Making Criminal Threats" Not

Posted on November 03, 2010
United States v. Cruz-Rodriguez, No. 09-40500 (5th Cir. Nov. 2, 2010) (per curiam) (King, Benavides, Elrod) And now for something completely different: a §2L1.2 16-level COV case. Cruz got hooked with the enhancement on the basis of two Golden State priors: Cal...

GA Residential Burglary Statute Is Within Curtilage of Generic Burglary of a Dwelling

Posted on October 28, 2010
United States v. Garcia, No. 09-20587 (5th Cir. Oct. 27, 2010) (Barksdale, Stewart, Southwick) Another day, another COV case. The opinion doesn't contain anything new on the categorical approach or any meta-COV issues; it's just one more to add to your list...

Fourth Amendment Friday: Jail Strip Search of Person Arrested for Minor Offense Still Requires Reasonable Suspicion of Weapon or Contraband Possession . . . For Now

Posted on September 24, 2010
Jimenez v. Wood County, Texas, No. 09-40892 (5th Cir. Sept. 22, 2010) (Garza, Benevides, Lynn, D.J.) "I'll take 'Book 'em Danno' for $200, Alex." "Strip searches in a prison setting may be performed on less than probable cause." "What was the holding of Bell v...

Prior Illegal Reentry Was Aggravated Felony Where Judgment Listed § 1326(b)(2) as Statute of Conviction

Posted on September 23, 2010
United States v. Gamboa-Garcia, No. 09-50513 (5th Cir. Sept. 21, 2010) (Jones, Prado, Ozerden, D.J.) One part of the "aggravated felony" definition doesn't get a lot of attention, perhaps because it seems superfluous. We're talking, of course, about 8 U...

On Remand for Resentencing Without Specific Instructions, District Court May Consider Any New Evidence from Either Party Relevant to Issues Appealed

Posted on August 31, 2010
United States v. Carales-Villalta, No. 09-40468 (5th Cir. Aug. 26, 2010) (Jolly, Garza, Starrett, D.J.)Let's say a defendant successfully appeals his sentence. What's in play on remand? As it turns out, this has been something of an open question in the Fifth Circuit: "This Court has not precisely stated what is proper for the district court to consider on remand absent a specific mandate...

§ 924(c) Conviction a "Felony Drug Offense" for Controlled Substance Act Enhancement Purposes If Record Shows It Involved Drug-Trafficking Crime

Posted on August 24, 2010
United States v. Rains, No. 09-50724 (5th Cir. Aug. 23, 2010) (King, Higginbotham, Garza)Rains confronts what is surprisingly a question of first impression for the court. In fact, only one other circuit has addressed it in a published opinion. That question is whether a § 924(c) conviction is a "felony drug offense" for purposes of the enhanced penalties in 21 U...

Government Failed to Prove That Defendant Used "Counterfeit Mark" on Containers of Allegedly Counterfeit Drugs

Posted on August 16, 2010
United States v. Xu, 599 F.3d 452 (5th Cir. 2010) (Smith, Garza, Clement)You may not find yourself handling many counterfeit drug cases, but there's still a broader lesson to be learned from Xu: even if there's a simple, straightforward way for the Government to establish an easily provable element of an offense, the Government can still screw it up...

Border Search Doctrine Applies As Long as International Border Has Been Crossed, Regardless of Where Travel Originated

Posted on August 12, 2010
United States v. Pickett, 598 F.3d 231 (5th Cir. 2010) (per curiam) (Clement, Prado, Elrod) [I haven't included a hyperlink to the opinion because it doesn't appear to available on the opinions page at the Fifth Circuit's website.]Now here's an interesting case...

Court May Deny Third Acceptance Point, Even if Government Moves for It

Posted on August 12, 2010
United States v. Williamson, 598 F.3d 227 (5th Cir. 2010) (Smith, Clement, Owen)Post-PROTECT Act, a government motion is a necessary condition for the third acceptance point under guideline §3E1.1(b). But it is sufficient? No.Williamson went to trial on a 50+ gram crack charge a few years ago...

Programming Note

Posted on August 12, 2010
I am in the middle of preparing a Fifth Circuit case update for a CLE presentation in September. While doing that, I'm going to be posting summaries of some important cases that I neglected to mention at the time they came out. So if you're wondering why I'm blogging cases that are weeks or months old, that's why.

Restitution Order Based on Taxes Owed Is "Debt Due for Federal Tax" Under Federal Debt Collection Procedures Act & Consumer Credit Protection Act

Posted on August 03, 2010
United States v. Clayton, No. 09-31025 (5th Cir. Aug. 2, 2010) (Davis, Smith, Haynes)How much of one's earnings may be garnished to satisfy a restitution order based on a failure to pay federal income taxes? All of them.Clayton pleaded guilty to three misdemeanor counts of failing to file federal income tax returns for the tax years 1999 through 2001...

Sixth Circuit Approves of Variances Based on Fast-Track Disparity, Brining Circuit Split On Issue to 3-3

Posted on July 16, 2010
If you handle illegal reentry cases, you're well aware of the circuit split over whether a court in a non-fast-track district may vary from the advisory Guidelines range to temper the disparity caused by the availability of such programs elsewhere. The Fifth, Ninth, and Eleventh Circuits have said no...

TX Injury to Child by Act Not 2L1.2 16-Level COV; No Invited Error Where Counsel Misunderstood Relevant Precedent

Posted on July 14, 2010
United States v. Andino-Ortega, No. 09-40498 (5th Cir. June 8, 2010) (Barksdale, Garza, Dennis)Two important holdings in this appeal of an illegal reentry sentence. But first, the facts:Andino had a prior Texas conviction for injury to a child (Tex. Penal Code § 22...

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...