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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

Feeling Busier Lately?

Posted on December 23, 2009
That's not suprising, given the recent explosion in the number of immigration prosecutions. As a new report from the Transactional Records Access Clearinghouse at Syracuse University reveals, "the number of all kinds of federal criminal prosecutions peaked at 169,612 cases in FY 2009, up nearly 9 percent from the previous year's total of 155,694 and 42 percent from five years ago when

SCOTUS Snubs Seale; Stevens, Scalia Squawk

Posted on November 02, 2009
Today the Supreme Court dismissed the certified question from the Fifth Circuit in United States v. Seale, concerning the statute of limitations applicable to the case. The Court offered no explanation for its action, which I can only assume is how it typically handles these matters...

Bad Border Patrol Stop Results in Suppression Victory

Posted on October 27, 2009
United States v. Rangel-Portillo, No. 08-40803 (5th Cir. Oct. 26, 2009) (King, Davis, Benavides)Case law concerning traffic stops?and roving Border Patrol stops, in particular?breaks so heavily in favor of law enforcement that successful suppression motions are rare, although not unheard of...

"Altered or Obliterated Serial Number" Defined for Purposes of §2K2.1(b)(4)

Posted on October 16, 2009
United States v. Perez, No. 08-40917 (5th Cir. Oct. 16, 2009) (Reavley, Smith, Dennis)Have you ever wondered what it means for a firearm's serial number to have been "altered or obliterated" for purposes of guideline §2K2.1(b)(4)? The Fifth Circuit answers that question for the first time in Perez, adopting the reasoning of the Ninth Circuit's 2005 decision in United States v...

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Another Relevant Conduct Victory; Counterfeiter Not Responsible for All Recovered Bills Made from Same Image He Used

Posted on October 02, 2009
United States v. Livingston, No. 08-10655 (5th Cir. Sept. 9, 2009) (per curaim) (unpublished) (Benavides, Dennis, Elrod)A helpful reader alerted me to this nice unpublished relevant conduct win, which actually came out a few weeks before Rhine. (Incidentally, please let me know of any unpublished opinions worth highlighting here, as those usually fly underneath my radar...

Excellent Opinion On Relevant Conduct; Rejects Speculative Findings and Incorrect Allocation of Burden of Proof

Posted on October 01, 2009
United States v. Rhine, No. 08-10502 (5th Cir. Sept. 29, 2009) (Wiener, Garza, Elrod)Stop me if you've heard this one before: defendant is convicted of a drug charge based on a relatively small amount of drugs, but relevant conduct findings concerning drug quantity jack the Guidelines range over the statutory maximum on that count, aided and abetted by a felon-in-possession count...

Fives Extend Mezzanatto, Hold Defendant Can Waive Right to Keep Prosecution from Using Plea-Discussion Statements In Case-In-Chief

Posted on September 22, 2009
United States v. Sylvester, No. 08-30586 (5th Cir. rev. Sept. 21, 2009) (Higginbotham, Smith, Southwick)As you know, FRE 410 and Federal Rule of Criminal Procedure 11(f) render statements made during plea discussions inadmissible at trial. As you also know, the Supreme Court held in United States v...

Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With Fifth

Posted on September 17, 2009
For over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in some districts, but not others. Our own circuit, in United States v...

Why the Departure/Variance Distinction Matters, Part Two

Posted on August 31, 2009
United States v. Gutierrez-Hernandez, No. 08-20620 (5th Cir. Aug. 28, 2009) (King, Higginbotham, Clement)Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review...

Suspended Sentence Not a "Sentence Imposed" for §2L1.2 Purposes, But Troubling Plain Error Analysis

Posted on August 28, 2009
United States v. Rodriguez-Parra, No. 08-40708 (5th Cir. Aug. 26, 2009) (Higginbotham, Smith, Southwick)There's good and bad in this opinion. The good is that a suspended sentence isn't a "sentence imposed" for purposes of the 12- and 16-level drug-trafficking enhancements in guideline §2L1...

Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation Sentence

Posted on August 26, 2009
United States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutive to any other sentence, even though the sentence for the original offense?as required by the terms of the plea agreement?ran concurrently with an already-imposed state sentence? That

Prosecutor's Misleading Rebuttal Argument at Trial Not Plain Error

Posted on August 24, 2009
United States v. Vargas, No. 08-40704 (5th Cir. Aug. 21, 2009) (Higginbotham, Smith, Southwick)If a prosecutor successfully moves in limine to exclude from evidence an exculpatory statement that the defendant made at the time of his arrest, may she nevertheless strongly imply in the rebuttal portion of her closing argument that the defendant did not try to exculpate himself when he was arrested?

Crime-Fighting Armadillo

Posted on August 18, 2009
The Wall Street Journal reports on an innovative approach to law enforcement:PEORIA, Ill. -- This industrial city, hard hit by the recession, has found a new, low-budget way to fight crime: Park an unmanned, former Brink's truck bristling with video cameras in front of the dwellings of troublemakers...

New Blog on Snitching

Posted on August 17, 2009
Titled, appropriately enough, "Snitching Blog", and written by law professor Alexandra Natapoff. As the introductory post explains,This blog does a bunch of things. It discusses how snitching works--on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators ...

Enhancement for Committing an Offense While On Release Applies to One Convicted of Failing to Appear

Posted on August 13, 2009
United States v. Dison, No. 08-30786 (5th Cir. June 23, 2009; rev. July 24, 2009) (Wiener, Dennis, Clement)If you get convicted of failing to report for service of a sentence, can you also receive a sentence enhancement for committing an offense while on release, even though the only way you could have failed to appear was because you were on release in the first place? Dison answers that vexing

Nice Opinion on Error Preservation and Harm In Appeal From Erroneous Guidelines Calculation

Posted on August 10, 2009
United States v. Neal, No. 08-30693 (5th Cir. Aug. 7, 2009) (Wiener, Garza, Elrod)You'll want to keep this opinion handy, in case you get into a battle over whether an objection to a sentencing error was properly preserved in the district court. It's also a nice go-to for harm arguments when the district court miscalculated the advisory Guidelines range...

Fives Order Post-Conviction DNA Testing Under Innocence Protection Act, Address Burdens and Standards of Review

Posted on August 05, 2009
United States v. Fasano, No. 08-60750 (5th Cir. July 31, 2009; rev. Aug. 4, 2009) (Higginbotham, Smith, Southwick)In 2002, a gentleman clad in a work shirt, hard hat, and sunglasses strolled into a bank in Morton, Mississippi, presented a demand note to a teller, and departed with $6,600...

Popular Mechanics Unveils "The Truth About 4 Common Forensics Methods"

Posted on August 03, 2009
Forensic evidence, shmorensic evidence. Okay, that's a little bit of an exaggeration, but the point remains: much of forensic "science" is anything but scientific. That was one of the findings contained in a recent report by the National Academy of Sciences...

Fives Certify Question to SCOTUS in Seale; Ask What SOL Applies to Kidnapping Committed in 1967 But Not Indicted Until 2007

Posted on July 30, 2009
You all remember Seale, right? Seale was indicted and convicted in 2007 for kidnapping and conspiracy to commit kidnapping, arising from his alleged involvement in the kidnapping and murder of two black men in 1964. A Fifth Circuit panel reversed Seale's convictions, holding that the prosecution was time-barred because a 1972 amendment to the kidnapping statute retroactively reduced the

Panel Majority Finds Constitutional Speedy Trial Violation, Holds Standard of Review is De Novo

Posted on July 29, 2009
United States v. Molina-Solorio, No. 08-10167 (5th Cir. July 27, 2009) (Stewart, Southwick; King, dissenting)It's not every day that you see the court of appeals reverse a district court's denial of a constitutional speedy trial claim?much less when the charge is escaping from federal custody?but that's just what happened in this case...

Melendez-Diaz, Illegal Reentry, and Certificates of Non-Existence of Record

Posted on July 10, 2009
As promised, here's a post explaining how the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases...

Courts Lack Authority to Suspend a Failure-to-Depart Sentence After the Sentence Has Begun

Posted on July 07, 2009
United States v. Garcia-Quintanilla, No. 08-50400 (5th Cir. July 7, 2009) (Higginbotham, Garza, Prado)Prefatory disclosure: I did some work on this case.Ever heard of 8 U.S.C § 1253? It criminalizes conduct relating to an alien's failure to depart the United States after having been ordered to do so...

SCOTUS: Lab Reports Testimonial Under Crawford; Reasoning Applies Broadly to Other Documents Prepared Solely for Use at Trial

Posted on June 30, 2009
Melendez-Diaz v. Massachusetts, No. 07-591 (U.S. June 25, 2009)Although it took the Supreme Court a long time to get this opinion out (the case was argued last November), it was worth the wait. The issue, as you'll recall, was "[w]hether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation

A Practice Guide to Aggravated Felony Issues in the Wake of Nijhawan

Posted on June 24, 2009
The Immigrant Defense Project and National Immigration Project of the National Lawyer's Guild have prepared a paper that you may find useful: The Impact of Nijhawan v. Holder on Application of the Categorical Approach to Aggravated Felony Determinations (June 24, 2009)...

Why the Departure/Variance Distinction Matters

Posted on June 23, 2009
In a recent case, the Fifth Circuit noted that it continues to draw a distinction between variances based on 3553(a) factors, and Guidelines departures. I suggested at the time that this "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review...

District Court May Not Impose Sentence Below Revised Guidleines Range In 3582(c)(2) Resentencings

Posted on June 22, 2009
United States v. Doublin, No. 08-30775 (5th Cir. June 22, 2009) (per curiam) (Barksdale, Dennis, Elrod)A couple of years ago the Sentencing Commission revised the drug guidelines to reduce, but not eliminate, the disparity between crack and powder cocaine sentences...

Taylor/Shepard Categorical Approach Not Applicable to All Aggravated Felonies, Some Require "Circumstance-Specific" Approach

Posted on June 17, 2009
Nijhawan v. Holder, No. 08-495 (U.S. June 15, 2009)Remember that circuit split over whether the Taylor/Shepard categorical approach applies to 8 U.S.C. § 1101(a)(43)(M)(i), which includes as an "aggravated felony" "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[?]" The split is no more, having been resolved by the Supreme Court in

Fives Reverse Course on UUV, Hold It's Not an Aggravated Felony

Posted on June 16, 2009
United States v. Armendariz-Moreno, No. 07-40225 (5th Cir. June 15, 2009) (per curiam) (Reavley, Barksdale, Garza)The UUV saga is at an end. In a tersely-worded opinion, the Fifth Circuit has ditched Galvan-Rodriguez:On December 12, 2007 this court affirmed the sentence of Armando Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level enhancement of his offense level because of

For Purposes of Supervised-Release Tolling Provision, "Imprisonment" Includes Pretrial Detention

Posted on June 15, 2009
United States v. Molina-Gazca, Nos. 08-50619, 08-50620 (5th Cir. June 11, 2009) (Jones, Elrod, Guirola, D.J.)Prefatory disclosure: I did some work on this case.Under 18 U.S.C. § 3583(i), a district court does not have jurisdiction to revoke a term of supervised release after it expires, unless a warrant or summons issued before the expiration of the term...

Carr Factors: "Close Assistance of Counsel" Not the Same Thing as "Ineffective Assistance of Counsel"

Posted on June 11, 2009
United States v. McKnight, No. 08-30229 (5th Cir. June 5, 2009) (O'Connor, Wiener, Stewart)This case involves the appeal of a district court's denial of a motion to withdraw a guilty plea. Given the fact-intensive nature of the issue, a case like this ordinarily wouldn't be worth discussing here...

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