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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

Birth In Philippines During Territorial Period Does Not Confer U.S. Citizenship

Posted on July 13, 2010
Nolos v. Holder, No. 08-60786 (5th Cir. July 9, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)Deriviative citizenship and a categorical approach/aggravated felony issue in the same opinion? You'll want to pay attention to this one.Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the

Defendant's Admission That PSR Was Correct Costs Him On Plain Error Review of Otherwise Erroneous Sentence Enhancement

Posted on July 01, 2010
United States v. Velasquez-Torres, No. 09-40646 (5th Cir. June 18, 2010) (per curiam) (Jolly, Smith, Owen)Here we have another object lesson in the perils of admitting?explicitly or implicitly?the accuracy of the PSR.Recall that, under the illegal reentry statute, 8 U...

No Categorical Rule for Deciding Whether (c)(1)(C) Sentence Was "Based On" Retroactively Reduced Guidelines Range for § 3582(c)(2) Purposes

Posted on June 15, 2010
United States v. Williams, No. 09-30778 (5th Cir. June 15, 2010) (per curiam) (Jolly, Smith, Owen)If that post title sounds familiar to you, it's because the Fifth Circuit addressed the same issue several weeks ago in United States v. Garcia. So why another published opinion so soon? Perhaps because Williams presents a slightly different factual scenario...

Second or Subsequent Simple Possession Not Aggravated Felony Unless Record of Conviction Shows It Was Based on Fact of Prior Drug Conviction

Posted on June 14, 2010
Carachuri-Rosendo v. Holder, No. 09-60 (U.S. June 14, 2010)As with so many other common issues in our neck of the woods, you're no doubt familiar with this one if you regularly handle illegal reentry cases. Today the Supreme Court held, reversing a decision from the Fifth Circuit, "that second or subsequent simple possession offenses are not aggravated felonies under [8 U...

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Sentence Resulting from (c)(1)(C) Agreement May or May Not be "Based On" a Retroactively Reduced Guidelines Range for § 3582(c)(2) Purposes

Posted on May 17, 2010
United States v. Garcia, No. 08-50458 (5th Cir. May 7, 2010) (per curiam) (Jones, Higginbotham, Elrod)Garcia was charged with seven counts of distributing lots of cocaine and crack. He entered a (c)(1)(C) agreements providing that 1) he would plead guilty to two counts in exchange for dismissal of the remaining counts, and 2) the sentence would be at least 240 months...

Split Remains Over Whether Court May Order Federal Sentence to Run Consecutively to Not Yet Imposed State Sentence

Posted on May 14, 2010
United States v. Setser, No. 08-10835 (5th Cir. May 11, 2010) (Benavides, Stewart, Southwick)May a district court order that the federal sentence it imposes run consecutively to an anticipated, but not yet imposed, state sentence? The answer is found in 18 U...

Adding "Without Prejudice" to Jurat on Form 1040 Did Not Make Tax Return Invalid

Posted on April 15, 2010
United States v. Davis, No. 08-20844 (5th Cir. Apr. 13, 2010) (DeMoss, Elrod, Haynes)What's that? You want to read about a tax-related opinion on tax day? You're in luck! Plus, it addresses a novel issue. So break out your adding machines, green eyeshades, and sharpened No...

Fives Reaffirm Limits On Collaterally Attacking Prior Convictions

Posted on April 14, 2010
United States v. Longstreet, No. 09-60051 (5th Cir. Apr. 7, 2010) (Garwood, Smith, Clement)As you're well aware, the number and nature of prior convictions can have a large effect on a defendant's sentencing exposure, due to a variety of statutory and Guidelines enhancements...

No Presumption of Vindictiveness When Defendant Receives Higher Sentence On Remand From Different Judge Of the Same Court

Posted on March 30, 2010
United States v. Rodriguez, No. 09-20181 (5th Cir. Mar. 25, 2010) (King, Barksdale, Elrod)From the be-careful-what-you-wish-for files: Rodriguez entered into plea agreement in exchange for 1) dismissal of some counts, and 2) the Government's promise not to seek offense level enhancements at sentencing...

Fives Reiterate That District Court May Not Impose Sentence Below Statutory Minimum, Absent Substantial Assistance Motion or Safety Valve

Posted on March 29, 2010
United States v. Montes, No. 08-10932 (5th Cir. Mar. 26, 2010) (Reavley, Davis, Stewart)That's what the court held in United States v. Krumnow, and that's what it holds here:In United States v. Krumnow, 476 F.3d 294, 295-98 (5th Cir. 2007), we held that district courts could impose a sentence of imprisonment below a statutory minimum only if: (1) the government so moves pursuant to 18 U...

Hiding in Sleeper Compartment of Tractor-Trailer Not 2L1.2 Reckless Endangerment

Posted on March 23, 2010
United States v. Torres, No. 09-40678 (5th Cir. Mar. 4, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)I've sometimes wondered how long it would take for a 1000 monkeys pecking away at a 1000 typewriters to answer every possible COV question out there...

Cert Grant On Derivative Citizenship Statute's Disparate Treatment of Out-of-Wedlock Birth to U.S. Citizen Father vs. U.S. Cititzen Mother

Posted on March 22, 2010
This post was written by Matthew Wright, Legal Research & Writing Specialist in the Amarillo office of the Federal Public Defender for the Northern District of Texas.Everyone who has raised an acquired or derivative citizenship defense to a prosecution for illegal reentry understands that it is more difficult to establish citizenship through an unwed U...

New SCOTUS Website

Posted on March 19, 2010
Tony Mauro reports in the National Law Journal:The Supreme Court's long-awaited Web site redesign was unveiled Thursday at supremecourt.gov, bringing the site into the 21st century only a few years late.The new site is visually appealing, with a rotating series of photos of the Court building, and iconography drawn from the Court's architectural features...

District Court Has Jurisdiction to Reduce Sentence Under 18 U.S.C. § 3582(c)(2), Even if Original Sentence Is Pending on Appeal

Posted on February 19, 2010
United States v. Martin, No. 07-30815 (5th Cir. Feb. 5, 2010) (Jolly, Dennis, Jordan, D.J.)More action for all of you § 3582(c)(2) wonks out there:This case presents a question of whether a district court has jurisdiction to modify a sentence under 18 U...

Panel Breaks With Prior Panel Precedent; Holds Ex Post Facto Clause Does Not Apply to Guidelines Increases Post-Booker

Posted on February 11, 2010
United States v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010) (Jones, Smith, Elrod)Here we have an instance of dueling panels. Castillo-Estevez holds that any error in the district court application of the Sentencing Guidelines was not plain, despite the fact that there is controlling circuit precedent on the precise question at issue, and under that precedent the district court

SCOTUS To Decide Whether Court May Impose Sentence Below Revised Range in § 3582(c)(2) Resentencings

Posted on February 05, 2010
Speaking of sentence reductions pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive amendments to the crack guidelines, the Supreme Court in December granted cert on questions that have divided the circuits in this area. Dillon v. United States, No...

Defendant Who Got 5K1.1 Departure Below Statutory Minimum Not Eligible for 3582(c)(2) Reduction, Because Sentence Was Based on Statute, Not Guidelines

Posted on February 05, 2010
United States v. Carter, No. 08-20235 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)The short answer (because the long one requires close examination of statutory and guideline language): "[W]e join the Fourth, Eighth, and Eleventh Circuits and hold that when a defendant is subject to a statutory minimum sentence above the upper end of his guideline range, even if the district court

Each Receipt of Money Is Separate Offense Under 18 U.S.C. § 641

Posted on February 05, 2010
United States v. Reagan, No. 08-11006 (5th Cir. Feb. 4, 2010) (King, Barksdale, Elrod)Ever wondered what the unit of prosecution is under the theft of public money statute, 18 U.S.C. § 641? Then read on.Reagan was charged under 18 U.S.C. § 641 for improperly receiving $41,832 over five years in Section 8 program payments from the Dallas Housing Authority (DHA), which administers funding provided

No Error In Letting Government Amend Indictment to Conform Serial Number of Gun Alleged to Gun Introduced at Trial

Posted on February 04, 2010
United States v. Midkiff, No. 07-30981 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)Although not otherwise breaking any new ground, this opinion does address one question that the Fifth Circuit hasn't previously addressed directly: is it a mistake of form or substance if an indictment alleging a gun crime alleges a serial number different from the one on the gun introduced at trial? (Hint:

Court Must Accept or Reject Entire (c)(1)(C) Agreement, May Not Accept Parts and Reject Others; Probably Goes for (c)(1)(A) Agreements, Too

Posted on February 03, 2010
United States v. Self, No. 08-40624 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)Self finds the court confronting an issue of first impression in the Fifth Circuit: whether a court can accept or reject a Rule 11(c)(1)(C) plea agreement on a "piecemeal basis...

Certificates of Non-Existence of Record Are Tesimonial for Confrontation Clause Purposes, But That's Not the Silver Bullet You Might Have Hoped For

Posted on February 01, 2010
United States v. Martinez-Rios, No. 08-40809 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)Think way, way back, to the mists of last July, when the world?well, this blog, at least?was abuzz over whether the Supreme Court's Confrontation Clause decision in Melendez-Diaz v...

The Legal Universe At Your Fingertips, For Free!

Posted on January 27, 2010
The end of the workday. You lock up your shop, trundle off to the local attorney watering hole, and almost instantly find yourself embroiled in a friendly, yet frenzied, argument over whether case X said Y or Z. Factions form. A wager ensues. The next round depends on who's right...

Melendez-Diaz Remains Safe; Court Vacates and Remands VA Case That Could Have Undermined the Recent Ruling

Posted on January 25, 2010
Last June, only one day after handing down its Confrontation Clause ruling in Melendez-Diaz v. Massachusetts, the Supreme Court granted cert in Briscoe v. Virginia on a question that Melendez-Diaz appeared to have answered. That development naturally prompted speculation that the Court might already be looking to modify, if not overrule, Melendez-Diaz, given the vigorousness of the dissent and

Court May Not Impose Special Assessment When Revoking Supervised Release, Nor Reimpose Unpaid Assement Ordered More Than Five Years Ago

Posted on January 22, 2010
United States v. Pineda, No. 08-41301 (5th Cir. Jan. 22, 2010) (per curiam) (Jones, Smith, Elrod)This opinion is so brief and to the point, you might as well read the whole thing. Here 'tis:This appeal concerns a $100 assessment.In 2001, Jose Carlos Pineda pled guilty to illegal reentry after deportation and was sentenced to seventy months of imprisonment and three years of supervised release.

"FRE & the Intertron" or "How to Borrow Mr. Peabody's WABAC Machine Without Getting Taken for a Ride"

Posted on January 21, 2010
Ever wondered how to get a web page admitted into evidence at trial? Ever tried and failed, only to be left sobbing uncontrollably? Then this article from law.com is for you: Authenticating Web Pages as Evidence, by M. Anderson Berry and David Kiernan...

New Report on Operation Streamline

Posted on January 14, 2010
Many of you are aware of, and even in the trenches of, Operation Streamline, an ostensibly* zero-tolerance policy of prosecuting every person caught entering the United States illegally in certain areas along the U.S.-Mexico border. You're probably also already aware that the effort has overwhelmed courts in the border districts in which it's been implemented, and that "due process" and "

State Felon-In-Possession Offense is Aggravated Felony, Despite Lack of Interstate Commerce Element

Posted on January 06, 2010
Nieto Hernandez v. Holder, No. 09-60261 (5th Cir. Dec. 30, 2009) (King, Davis, Haynes)In short:Nieto argues that the BIA erred in finding that his firearms conviction under [Texas Penal Code] § 46.04(a) was an ?aggravated felony? under 8 U.S.C. § 1101(a)(43)(E)(ii), which defines ?aggravated felony? as including an offense ?described in? 18 U...

Office of Defender Services Announces Litigation Support Available to Defenders and CJA Attorneys

Posted on January 06, 2010
Got a case where the discovery comprises mountains of documents and oceans of electrons? Then you just might benefit from the litigation support services offered by the Office of Defender Services. "What's litigation support," you say? As the spiffy new National Litigation Support page at the ODS website explains,The essential goal of litigation support is to organize, analyze, and present

Leaked DOJ Memos Shed Light on Discovery Practices!

Posted on January 05, 2010
OK, "leaked" is perhaps a loaded and inaccurate?and yet, entertaining?way of describing this post from the DOJ's Justice blog announcing the release of memos providing guidance to prosecutors on discovery practices:Last year, the Department of Justice convened a working group to explore the Department?s policies, practices, and training related to criminal case management and discovery...

Reduced Crack Guidelines Do Not Apply to Defendants Sentenced as Career Offenders

Posted on December 24, 2009
United States v. Anderson, No. 08-41314 (5th Cir. Dec. 21, 2009) (per curiam)Are defendants who were convicted of crack offenses and sentenced as career offenders eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. §1B1.10 in the wake of the Sentencing Commission's lowering of the crack guidelines?No, says Anderson...

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