Fifth Circuit Case Criminal Law in CY 2008--2010 : D to I



Fifth Circuit Case Criminal Law in CY 2008 Through 2016 : D to F

Compiled by Attorney John M. Economidy of San Antonio

( Cases with “__ F.3d __” are reported cases that lack an official cite

at the time they were posted on the Fifth Circuit Webpage.

( Cases with “___ F. App’x ___” are unreported, but you can get

their Federal Appendix cite. For significance and dissent on unreported

cases, see the topic “Unreported Cases.”

( The Fifth Circuit case number is given for the cases with incomplete

citations so that you can find and read the cases on Fifth Circuit webpage.

Note: Cases can be researched on the State Bar of Texas legal research engine.

Dangerous Weapon. Nunez-Granados, 12-41081, (5th Cir. Nov. 6, 2013): D became combative and kicked Agent Paquette in the face multiple times while wearing shoes. In his report, Agent Paquette stated that Nunez-Granados turned his head to look at him and then kicked him in the face. After a brief struggle, Agent Paquette handcuffed and

arrested Nunez-Granados. Agent Paquette was taken to a nearby hospital,

where it was determined that he “sustained lacerations on the forehead and a

mild deviation to the nasal septum.” …PSR recommended applying § 2A2.2, the aggravated assault Guideline, which provides a base offense level of fourteen. See U.S.S.G. § 2A2.2. The PSR further recommended a five-level enhancement under § 2A2.2(b)(3)(B) because the victim sustained serious bodily injury, and a two-level enhancement under § 2A2.2(b)(6) because NunezGranados was convicted under § 111(b). See U.S.S.G. § 2A2.2; 18 U.S.C. § 111. Nunez-Granados objected to the use of § 2A2.2, arguing that the offense was not an aggravated assault; therefore, either § 2A2.3 (minor assault) or § 2A2.4 (obstructing or impeding officers) should apply. See U.S.S.G. §§ 2A2.2, 2A2.3, 2A2.4. He also objected to the enhancement for serious bodily injury.

…court determined that the assault qualified as an aggravated assault and that § 2A2.2 applied. See U.S.S.G. § 2A2.2. However, the court imposed only a three-level adjustment for bodily injury rather than the recommended five-level adjustment for a serious bodily injury. … court reviews the district court’s application and interpretation of the Sentencing Guidelines de novo and the district court’s factual findings for clear error. United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008) (citations omitted). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). …

Other circuits have held that, “in the proper circumstances, almost anything can count as a dangerous weapon, including walking sticks, leather straps, rakes, tennis shoes, rubber boots, dogs, rings, concrete curbs, clothes irons, and stink bombs.” United States v. Serrata, 425 F.3d 886, 910 (10th Cir. 2005) (quoting United States v. Dayea, 32 F.3d 1377, 1379 (9th Cir. 1994)). Whether the defendant intended to use an instrumentality to cause bodily injury, and thus as a dangerous weapon, is a finding of fact that this court reviews for clear error. United States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997). Intent to do bodily harm “is to be judged objectively from the visible conduct of the actor and what one in the position of the victim might reasonably

conclude.” United States v. Perez, 897 F.2d 751, 753 (5th Cir. 1990) (quoting

Shaffer v. United States, 308 F.2d 654, 655 (5th Cir. 1962)); see also United

States v. Ortegon, No. 01-51202, 2002 WL 1860281, at *1 (5th Cir. 2002)

… the district court’s determination that he intended to cause bodily harm with a dangerous weapon is not plausible in light of the record as a whole, see Calbat, 266 F.3d at 364 (5th Cir. 2001). Consequently, we hold that the district court’s application of

the aggravated assault enhancement during sentencing was erroneous.

( Shoes: shoes Velasco used to “stomp” Sanchez’s head against the “solid prison floor” were dangerous weapons, requiring a four-level enhancement pursuant to U.S.S.G. § 2A2.2(b)(2)(B). United States v. Velasco, __ F.3d ___ (5t Cir. May 5, 2017)(16-30341).

( Feet. When a defendant objects to the Guidelines calculation in the district court, this court “review[s] the application of the Guidelines de novo and the district court’s factual findings—along with the reasonable inferences drawn from those facts—for clear error.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (citing United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012)). Whether an item is a dangerous weapon is a finding of fact. United States v. Estrada-Fernandez, 150 F.3d 491, 497 (5th Cir. 1998) (per curiam) (citing United States v. Schoenborn, 4 F.3d 1424, 1433 (7th Cir. 1993) (“Whether or not an object constitutes a dangerous weapon . . . is a question of fact and necessarily depends on the particular circumstances of each case.”)). Therefore, we review this finding for clear error. See United States v. Ortegon, No. 01-51202, 2002 WL 1860281, at *1 (5th Cir. June 17, 2002). The intent to do bodily harm is not measured by the actor’s subjective motivation, but rather, it is measured objectively, by what someone in the victim’s position might reasonably conclude from the assailant’s conduct. United States v. Perez, 897 F.2d 751, 753 (5th Cir. 1990); compare United States v. Nunez-Granados, 546 F. App’x 483, 486–87 (5th Cir. 2013) (per curiam) (finding the enhancement did not apply, because the defendant kicked the officer with the intent to escape, not to cause the officer serious injury), with United States v. Serrata, 425 F.3d 886, 893–94, 909–10 (10th Cir. 2005) (holding that shoes are a dangerous weapon when used to repeatedly stomp a victim’s head, thus revealing a clear intent to do serious harm).

Death of Defendant on Appeal. “[T]he death of a criminal defendant

pending an appeal of his or her case abates, ab initio, the entire criminal

proceeding.” United States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004) (en banc) (quoting United States v. Asset, 990 F.2d 208, 210 (5th Cir.

1993)). The case is extinguished, and the defendant is left “as if he had never

been indicted or convicted.” Id. (quoting United States v. Estate of Parsons, 314

F.3d 745, 749 (5th Cir. 2002)).

Death of applicant on Habeas Corpus. Soffar v. Davis, 5th Cir June 9, 2016)(14-70040):

Death abates habeas application. district court judgment set aside (had denied HC).

See Knapp v. Baker, 509 F.2d 922, 922 (5th Cir. 1975) (citing Gornto v. MacDougall, 482 F.2d 361 (5th Cir. 1973)).

Death Penalty—Defense Not Entitled to AUSA Submission to DOJ

( This issue has now been raised in multiple courts and has been uniformly and unequivocally denied. See, e.g., United States v. Taylor, 608 F.Supp.2d 1263 (D. New Mexico 2009)(death penalty evaluation and memorandum privileged); United States v. Nguyen, 928 F.Supp. 1525, 1544, 1552 (D. Kansas 1996)(death penalty

materials are “immune from judicial scrutiny”); United States v. Edelin, 128 F.Supp. 2d 23, 39 (D.D.C., J. Lamberth, 2001)(death penalty materials are privileged); United States v. Frank, 8 F.Supp. 2d (S.D. New York 1998)(disclosure would have chilling effect on thorough evaluation by prosecution and cannot be ordered disclosed).

( The Court here asked if an in camera inspection of the materials requested is an option. Inno reported decision were these materials tendered to the trial court for private inspection because this would constitute prohibited judicial review. As a matter of policy, precedent, and for practical reasons, the Government here believes the better course– the only lawful option– is for the Court to deny the Defendant’s request to inspect or review any death penalty materials because they are privileged.

( Treaty. Tamayo v. Stephens, 740 F.3d 991 (5th Cir. 2014). Habeas petitioner/Mexican national was not entitled to CofA or stay of execution because of US treaty obligation as interpreted in January 2014 Decision of the Inter-American Commission on Human Rights.

Debt Collection by United States to Secure Restitution

( From United States v. DeCay, 620 F.3d 534 (5th Cir. Sept. 20, 2010)(09-30218):

The United States moved for writs of garnishment under the Federal Debt Collection Procedures Act (“FDCPA”) seeking seizure of the defendants’ interests in their pension funds to satisfy the restitution order. The district court found that the statutory prerequisites to garnishment were satisfied, see 28 U.S.C. § 3205(b). The Louisiana Sheriffs Pension and Relief Fund (“LSPRF”) and appellant argued that even if garnishment were proper, the Consumer Credit Protection Act (“CCPA”) limits the United States’ right to garnish Barre’s pension to twenty-five percent of his monthly benefit. The district court overruled the appellants’ objections to the garnishment

writs and held that the United States could garnish the entire amount of

DeCay’s contributions to the LSPRF.

( We review a district court’s construction and application of a statute de

novo. United States v. Williams, 602 F.3d 313, 315 (5th Cir. 2010).

( LSPRF, as the object of the writ of garnishment and as a sovereign entity, has standing to assert that the United States lacks the constitutional authority to compel it to release the funds.

( The Mandatory Victims Restitution Act (“MVRA”) makes restitution

mandatory for certain crimes, “including any offense committed by fraud or deceit,” 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii), and authorizes the United States to enforce a restitution order in accordance with its civil enforcement powers. Section 3613 of the MVRA sets forth several enumerated exceptions to the United States’ authority to garnish any and all of the debtor’s property to satisfy a restitution order; however, the statute does not exempt state-run pension plans. Further, § 3613(a)(2) explicitly states that the exemptions contained in the FDCPA, 28 U.S.C. § 3014, do not apply to the enforcement of a federal criminal judgment.

( The appellants assert that the United States may not garnish pension

benefits under the MVRA because (1) § 401(a)(13) of the Internal Revenue Code

(“IRC”) makes pension benefits inalienable. This circuit has never addressed whether

§ 3613(a) of the MVRA overrides § 401(a)(13) of the IRC. Section 3613(a) of the MVRA states that “Notwithstanding any other Federal law . . . a judgment imposing a fine may be enforced against all property or rights to property of the person fined.” …

The language in § 3613(a) authorizing the United States to enforce a garnishment order against “all property or rights to property” of the debtor, “[n]otwithstanding any other Federal law,” is sufficient to override the anti-alienation provision of the IRC.

The Supreme Court has recognized that the use of a “notwithstanding” clause signals Congressional intent to supersede conflicting provisions of any other statute. Caseros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993). Unlike the general “other appropriate relief” language contained in the Labor-Management Reporting and Disclosure

Act of 1959 (“LMRDA”) as in Guidry v. Sheet Metal Workers National Pension

Fund, 493 U.S. 365 (1990), the “notwithstanding any other Federal law” clause signals a clear Congressional intent to override conflicting federal law. Indeed, we agree with

our sister circuit that “it appears that Congress accepted the Supreme Court’s invitation in Guidry by enacting the [MVRA].” United States v. Irving, 452 F.3d 110, 126 (2d Cir. 2003); see also United States v. Novak, 476 F.3d 1041, 1053 (9th Cir. 2007) (en banc).

Second, reading § 3613(a) to allow garnishment of the defendants’ retirement benefits is consistent with the MVRA’s statutory scheme and purpose. The only property exempt from garnishment under § 3613(a) is property that the government cannot seize to satisfy the payment of federal income taxes. 18 U.S.C. § 3613(a). Section 3613(c) underscores the Congressional directive that restitution orders should be satisfied in the same manner as tax liabilities. 18 U.S.C. § 3613(c) (stating that an order of restitution imposed under this chapter “is a lien in favor of the United States on all property and rights to property of the person fined as if the liability of the person fined were a liability for a tax assessed under the Internal Revenue Code of 1986")(emphasis added). As we have already recognized, pension plan benefits are subject to levy under the IRC to collect unpaid taxes. See Shanbaum v. United States, 32 F.3d 180, 183 (5th Cir. 1994); see also Irving, 452 F.3d at 126 (“ERISA pension plans are not exempted from payment of taxes under 26 U.S.C. § 6334 [of the IRC], and thus they should not be exempted from payment of criminal fines. . . . Moreover, § 3613(c) [of the MVRA] demands that criminal fines in

favor of the United States should be enforced in the same manner as a tax liability would be enforced.”). Third, other circuit and district courts have concluded that the United

States may garnish a defendant’s pension benefits to satisfy a restitution order, despite similar anti-alienation language contained in § 206(d) of ERISA. See Irving, 452 F.3d at 126; Novak, 476 F.3d at 1053; United States v. Lazorwitz, 411 F. Supp. 2d 634, 637 (E.D.N.C. 2005).

( The appellants assert that the United States lacks the authority to garnish

DeCay’s and Barre’s pension benefits because Louisiana law precludes enforcement of a restitution order against pension benefits. See LA. CONST. art. X, § 29(E)(5)(a) (1974); LA. REV. STAT. § 11:2182 (1991). To the extent Louisiana law is inconsistent with the FDCPA and MVRA, Louisiana law is preempted. 28 U.S.C. § 3003(d); see also United States v. Wilson, No. CR-305-008, 2007 WL 4557774, at *1 n.2 (S.D. Ga. Dec. 20, 2007).

( The CCPA’s Limitation on Garnishment of Disposable Earnings. The LSPRF and Barre assert that, even if Barre’s retirement benefits are subject to garnishment, the United States cannot garnish more than twenty-five percent of Barre’s monthly pension benefits under § 303 of the CCPA. Section 3613(a)(3) of the MVRA states that the protections of the CCPA shall apply to enforcement of the judgment under either federal or state law. The CCPA provides that the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may

not exceed

(1) 25 per centum of his disposable earnings for that week, or

(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206(a)(1) of Title 29

in effect at the time the earnings are payable, whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2). 15 U.S.C. § 1673(a).

The parties dispute whether Barre’s monthly benefit payments constitute “earnings” under the CCPA. The CCPA defines “earnings” as “compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.” 15 U.S.C. § 1672(a) (emphasis added). The Supreme Court has cautioned that the terms “earnings” and “disposable earnings” under the CCPA are “limited to ‘periodic payments of compensation and (do) not pertain to every asset that is traceable in some way to such compensation.’” Kokoszka v. Belford, 417 U.S. 642, 651 (1974). Here, the question is whether payments made from an employer’s retirement program to an employee are too attenuated to be considered “earnings” under the CCPA.

The district courts around the country have divided over whether monthly

pension-benefit payments constitute “earnings” under the CCPA. Several district courts have concluded that “once passed to a retirement account or annuity in the hands of the employee, the funds in the account or annuity are not ‘earnings’ under the CCPA, and thus not subject to the 25% cap, even if they are distributed in periodic payments—in other words, the distributions from the fund to the defendant are not ‘disposable earnings’ under § 303.” (CITATIONS)

At least one district court has reached the opposite conclusion

and held that periodic payments of retirement benefits are “earnings” under the

CCPA. McLanahan, 2006 WL 1455698, at *3 (holding that “under clear

statutory language, it appears that the Government may garnish only 25% of the

Defendant’s pension”).

We find the statutory language unambiguous and hold that the United

States may garnish only twenty-five percent of Barre’s monthly pension benefits.

The statute explicitly defines “earnings” to include “periodic payments made

pursuant to a pension or retirement program.” 15 U.S.C. § 1672(a)(emphasis

added). The term “pursuant to” is generally defined as “in compliance with; in

accordance with; under [or] . . . as authorized by . . . [or] in carrying out.”

The parties do not dispute the terms of the pension plan or that the plan entitles Barre to monthly pension-benefit payments. Because the United States does not dispute that the terms of the pension plan authorize Barre to receive monthly pension benefits, we conclude that the payments are being made “pursuant to” the pension fund and therefore constitute “earnings” under the CCPA. Accordingly, we conclude that the United States may not garnish more than twenty-five percent of Barre’s monthly pension benefits under the CCPA.

( United States v. Petal, (5th Cir. July 7, 2011)(10-30473).

( After Petal reported to prison, the United States applied to the district court for a writ of garnishment to Bosch pursuant to the Federal Debt Collection Procedures Act (FDCPA), 28 USC § 3205. The district court granted the application. Bosch, as required by statute, answered the writ. Petal moved to quash the writ, arguing that the district court lacked jurisdiction to issue the writ because Petal did not have a substantial interest in the rental proceeds. Petal asserted that the mortgagee, Capital One, N.A. (the Bank), had a superior interest to his or the United States’ interest in the lease proceeds under the terms of his mortgage. He additionally asserted that the Bank had foreclosed on the residence and was entitled to the lease proceeds. … The Government opposed Petal’s motion to quash.

( The Government contends, for the first time on appeal, that Petal lacks

standing. “The doctrine of standing asks whether a litigant is entitled to have

a federal court resolve his grievance,” a question that “involves both

constitutional limitations on federal-court jurisdiction and prudential limitations

on its exercise. Kowalski v. Tesmer, 543 U.S. 125, 128 (2004).

( We must address the Government’s challenge to constitutional standing,

which pertains to our subject matter jurisdiction, before addressing the merits

of the case. Del-Ray Battery Co. v. Douglas Battery Co., 635 F.3d 725, 729 (5th Cir. 2011) To meet the constitutional standing requirement, a party must show “(1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision.” Proctor & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir. 2001). … We conclude that Petal has prudential standing to challenge the writ of garnishment to the extent he is seeking to advance his own financial interest, as distinguished from that of the Bank.

( Standard of Review. We turn now to the merits of Petal’s objections to the writ of garnishment. We review the district court’s final order of garnishment for an abuse of discretion. United States v. Clayton, 613 F.3d 592, 595 (5th Cir. 2010). We review de novo underlying issues of statutory interpretation. Id.

( We conclude that notwithstanding any interest the Bank may have in the lease proceeds from Petal’s property absent foreclosure on that property, Petal’s interest in the lease payments is “substantial” within the meaning of the FDCPA and those payments were subject to garnishment. …. The Bank is not a party to the residential lease, which names only Ruth Petal as payee. Petal does not dispute that payments were delivered from Bosch to Ruth Petal, not the Bank.

Deferred Adjudication

( Texas deferred adjudication is a final conviction for purposes of U.S.S.G.

§ 2L1.2(b)(1)(A). United States v. Valdez-Valdez, 143 F.3d 196, 200-01 (5th Cir. 1998).

( United States v. Mills, __ F.3d ___ (5th Cir. Dec. 8, 2016)(16-40258)[excellent review of application of Texas deferred adjudication in different contexts]:

Held: deferred adjudication is a prior conviction in USSG § 4B1.5 for a conviction of

18 USC § 2422(b)[on line solicitation of a minor]. PSI determined that Mills was a repeat and dangerous sex offender pursuant to U.S.S.G. § 4B1.5(a), because he had committed his instant offense subsequent to sustaining a prior sex offense conviction.

Whether the Sentencing Guidelines apply to a prior conviction is a question of federal law, which we review de novo. United States v. Vasquez, 298 F.3d 354, 356, 358 (5th Cir. 2002); United States v. Valdez-Valdez, 143 F.3d 196, 197–98 (5th Cir. 1998); United States v. Cisneros, 112 F.3d 1272, 1280 (5th Cir. 1997). State law can “be looked to ‘for informational purposes, but we are not bound by its treatment of a . . . conviction when we apply the federal sentence-enhancement provisions.’” Cisneros, 112 F.3d at 1280 (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988)); see also Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111–12 (1983) (“Whether one has been ‘convicted’ within the language of the gun control statutes is necessarily . . . a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State.”). “This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of ‘conviction.’” Dickerson, 460 U.S. at 112. Under Texas law, a court may, upon receiving a guilty plea, “defer adjudication” in the case instead of entering a formal finding or judgment of guilt. This procedure is described in the Texas Code of Criminal Procedure [W]hen in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty . . . , hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. TEX. CODE CRIM. PROC. art. 42.12, § 5(a) (West 2006). If the defendant violates a condition of community supervision, the court may then proceed to adjudicate guilt and assess a punishment. Id. at art. 42.12, § 5(b). If, however, the defendant successfully completes the community supervision term, the case, for most legal purposes, “disappears.” Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (quoting Ex parte Hernandez, 705 S.W.2d 700, 702 (Tex. Crim. App. 1986)). “In those circumstances, the proceedings are dismissed, the defendant is discharged, and the defendant is deemed not to have a conviction for many purposes” under Texas law.1 Id.

Note 1: 1 Notably, there are exceptions to this general rule. For example, prior deferred adjudications for certain offenses are counted as “convictions” for the purpose of enhancing sentences of repeat and habitual offenders, even if the defendant successfully completed the community supervision term. This includes defendants with a previous deferred adjudication for Indecency with a Child under Texas Penal Code § 21.11. See Tex. Penal Code §§ 12.42(c)(2), (g) (West 2013); Nolan v. State, 102 S.W.3d 231, 239–41 (Tex. App. 2003); see also TEX. CODE CRIM. PROC. art. 42.12, § 5(c)(1) (successfully completed deferred adjudication admissible at punishment phase of subsequent conviction).

Mills concedes that this court has consistently treated Texas deferred adjudications as “convictions” under the Sentencing Guidelines.2

Note 2: See, e.g., United States v. Washington, 480 F.3d 309, 318 (5th Cir. 2007) (holding a deferred adjudication is a prior conviction for purposes of § 4B1.1); United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004) (holding a deferred adjudication probation is a prior conviction for purposes of § 2L1.2); Valdez-Valdez, 143 F.3d at 200 (holding that a deferred adjudication counts as a prior sentence for the purposes of calculating a defendant’s criminal history score under §§ 4A1.1 and 4A1.2); United States v. Stauder, 73 F.3d 56, 56–57 (5th Cir. 1996) (noting that § 2K2.1 refers to criminal history Guidelines provisions, which state a deferred adjudication is used to calculate a defendant’s criminal history); see also United States v. Joslin, 487 F. App’x 139, 144 & n.3 (5th Cir. 2012) (per curiam) (finding no plain error where district court held defendant’s deferred adjudication counted as a prior conviction for purposes of subsequent federal sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e)); United States v. Guerrero, 460 F. App’x 424, 425–26 (5th Cir. 2012) (per curiam) (same under § 4A1.2(f) and comment n.10).

However, as Mills correctly points out, the sentencing provisions of many of

our prior cases provide specific interpretive clues by either expressly defining the term “conviction” or by referencing commentary indicating that deferred adjudications qualify as convictions.3 Therefore, we agree with Mills that, although instructive, these prior holdings do not fully resolve the meaning of “conviction” as used in § 4B1.5(a). See DeLeon v. City of Corpus Christi, 488 F.3d 649, 652 (5th Cir. 2007); Cisneros, 112 F.3d at 1281. Because § 4B1.5 does not expressly define “conviction,” Mills urges us to depart from our prior understanding of the term and hold that, as used in § 4B1.5, “conviction” excludes deferred adjudications such as his. Mills argues that because the term is capable of multiple meanings, this court must apply the rule of lenity and give him the benefit of the reading that results in a shorter sentence. However, the rule of lenity is only applied where “‘[a]fter seiz[ing] every thing from which aid can be derived,’ the Court is ‘left with an ambiguous statute.’” Smith v. United States, 508 U.S. 223, 239 (1993) (alterations in original) (quoting United States v. Bass, 404 U.S. 336, 347 (1971)). Mills relies on the Supreme Court’s decision in Deal v. United States, 508 U.S. 129 (1993), for the proposition that the term “conviction” “has long been understood” to be “ambiguous.” In fact, the Court in that case came to the opposite conclusion, rejecting a defendant’s similar suggestion that “conviction,” left undefined, was ambiguous as used in 18 U.S.C. § 924(c)(1), which provides a sentencing enhancement for prior convictions of crimes of violence. Id. at 131–32 (“[O]f course susceptibility [to multiple] meanings does not render the word ‘conviction,’ whenever it is used, ambiguous.”). While acknowledging that “conviction,” according to the dictionary, could have multiple meanings, the Court noted that the defendant had overlooked the “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.” Id. at 132.

Indeed, this court has previously held that a deferred adjudication qualifies as a conviction in a federal sentencing context substantially similar to this one, and there too the term was not expressly defined. In Cisneros, the court concluded that a Texas deferred adjudication counted as a “prior conviction” for purposes of 21 U.S.C. § 841(b)(1)(A), which provides a sentencing enhancement if the instant offense occurs “after two or more prior convictions for a felony drug offense have become final.” 112 F.3d at 1280; see also United States v. Fazande, 487 F.3d 307, 308 (5th Cir. 2007). The court in Cisneros held that a deferred adjudication constituted a conviction, because “after receiving [the defendant’s] guilty plea and hearing the evidence, the [Texas] state trial court had to find that the evidence substantiated [the defendant’s] guilt in order to defer proceedings without entering an adjudication of guilt.” Id. at 1282. The court’s holding followed naturally from the Supreme Court’s determination in Dickerson that an Iowa court’s “deferred” entry of judgment following a defendant’s guilty plea counted as a conviction for purposes of 18 U.S.C. § 922(g), which relates to firearms offenses.4 460 U.S. at 113 (concluding that, for the purpose of the federal gun control statute, “we equate a plea of guilty and its notation by the state court, followed by a sentence of probation, with being ‘convicted’”). Regardless of Texas’s unique procedural circumstances, for defendants placed on probation as a result of deferred adjudication but who have not yet successfully completed that term, we note that the Supreme Court in Dickerson stated, “It is . . . plain that one cannot be placed on probation if the court does not deem him to be guilty of a crime.” Id. at 113–14. The court in Cisneros additionally highlighted the Government’s argument that counting deferred adjudications as “convictions” under the statute “would promote the policy that defendants who obtain the advantage of a rehabilitative sentence but nevertheless continue to commit crimes should not receive further leniency.” Cisneros, 112 F.3d at 1281. The commentary to § 4B1.5 suggests the same rationale applies here. The background in § 4B1.5 notes that Congress “directed the Commission to ensure lengthy incarceration for offenders who engage in a pattern of activity involving the sexual abuse or exploitation of minors.” U.S.S.G. § 4B1.5 cmt. background. Excluding an offense—for which a defendant has pleaded guilty and a judge has found that the evidence substantiates the defendant’s guilt—merely because the defendant received the more lenient state order of deferred adjudication probation rather than imprisonment would appear to undermine the purpose of the enhancement.5 The commentary additionally notes that § 4B1.5 is intended to apply “to offenders whose instant offense of conviction is a sex offense committed against a minor and who present a continuing danger to the

public.” Id. Mills’s urged understanding of the term “conviction” would seem particularly adverse to this purpose in situations such as his, where a defendant quickly recommits while still under a criminal justice order for a prior sex offense. See United States v. Daniels, 588 F.3d 835, 837 (5th Cir. 2009) (“[A] recidivist offender . . . may not doubly benefit from the fortune of a lenient disposition in the Texas courts . . . .”).

Our understanding of deferred adjudication in the context of § 4B1.5 further accords with our treatment of deferred adjudication as the functional equivalent of a final conviction in various other contexts. For example, this court has determined that Texas deferred adjudications qualify as “final judgments” for the purpose of triggering the federal habeas limitations period. See Caldwell v. Dretke, 429 F.3d 521, 530 (5th Cir. 2005); see also DeLeon, 488 F.3d at 653–54 (holding that a Texas deferred adjudication was the “functional equivalent” of a conviction for purposes of dismissal of a 42 U.S.C. § 1983 action). Similarly, under Texas law, deferred adjudications are immediately appealable upon entry of the initial order, triggering the 30-day limitations period for filing a notice of appeal. See Vasquez, 298 F.3d at 358–59. In fact, a defendant subject to a deferred adjudication may only appeal issues related to the original plea proceedings—including sufficiency of the evidence—when the deferred adjudication is originally imposed, not upon revocation. See Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). These state appeals proceed “in the same manner as if guilt had been determined.” Ramirez v. State, 36 S.W.3d 660, 662 (Tex. App. 2001, pet. ref’d).

Accordingly, we hold that the district court did not err in applying the Guidelines enhancement under § 4B1.5 based on Mills’s prior deferred adjudication.

Delay, Preindictment

( From United States v. Seale, __ F.3d __ (5th Cir. March 16, 2010)(07-60732):

The mere passage of time is insufficient to support a due process claim, even if

the time lapse prejudiced the defense. Dickerson v. Guste, 932 F.2d 1142, 1144

(5th Cir. 1991). To show an unconstitutional pre-indictment delay, a party must

establish two elements: 1) the Government intended to delay obtaining an

indictment for the purpose of gaining some tactical advantage over the accused

in the contemplated prosecution or for some other bad faith purpose, and 2) that

the improper delay caused actual, substantial prejudice to his defense. United

States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc). The burden is on

the defendant to establish both prongs. United States v. Jimenez, 256 F.3d 330,

345 (5th Cir. 2001).

( In United States v. Lovasco, 431 U.S. 783 (1977), the Supreme Court

distinguished between investigative delay and tactical or bad faith delay. In

distinguishing between the two, the Court stated: Investigative delay is fundamentally unlike delay undertaken by the Government solely “to gain tactical advantage over the accused” precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of “fair play and decency,” a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute

and will be able promptly to establish guilt beyond a reasonable doubt. Id. at 795 (internal citations and quotations omitted). Applying the Court’s analysis in Lovasco to this case, we are satisfied that the district court did not err in concluding that the delay preceding Seale’s indictment was investigative rather than tactical.

Deliberate Ignorance

( See Willful Blindness, term used by U.S. Supreme Court

( Nathan and Hamilton also object to the “deliberate ignorance” instruction given to the jury, arguing that it did not require the jury to find that both of them possessed subjective awareness of the illegality. Because they did not object at trial, this court reviews for plain error. The instruction allowed the jury to find that the defendants had knowledge if jurors found that “the defendant deliberately closed his eyes to what would otherwise have been obvious to him” or “deliberately blinded himself to the existence of a fact.” This court has noted that these types of instructions should rarely be given, but can

be justified where “a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.” United States v. Bieganowski, 313 F.3d 264, 289 (5th Cir. 2002) (internal quotation marks omitted). Given the facts presented at trial, including the evidence that Appellants had participated in other similarly-executed land flip transactions, the Appellants cannot establish that the court’s use of this instruction was a marked departure from our past cases. See, e.g., United States v.

Lara-Velasquez, 919 F.2d 946, 952 (5th Cir. 1990).

( Instruction Should Rarely Be Given. United Sates v. Kuhrt, __ F.3d __ (5th Cir. June 5, 2015)(13-20115): “We have often cautioned against the use of the deliberate ignorance instruction.” United Stated v. Mendoza–Medina, 346 F.3d 121, 132 (5th Cir. 2003) (holding deliberate ignorance instruction not warranted in an actual knowledge case). We have also stated that “a deliberate ignorance instruction ‘should rarely be given.’” United States v. Faulkner, 17 F.3d 745, 766 (5th Cir. 1994) (quoting United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992)); see also United States v. Cartwright, 6 F.3d 294, 301 (5th Cir. 1993) (“Because the deliberate ignorance instruction may confuse the jury, the instruction should rarely be given.” (internal quotation marks omitted)). The proper role of the deliberate ignorance instruction is not as a backup or supplement in a case that hinges on a defendant’s actual knowledge. The instruction is appropriate only in the circumstances where a defendant “claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.” Brooks, 681 F.3d at 701 (internal quotation marks omitted). “The evidence at trial must raise two inferences: (1) the defendant was subjectively aware of a high probability of the existence of the illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct.” Id. (internal quotation marks omitted). “‘[T]he district court should not instruct the jury on deliberate ignorance when the evidence raises only the inferences that the defendant[s] had actual knowledge or no knowledge at all of the facts in question.’” Mendoza–Medina, 346 F.3d at 133–34 (quoting United States v. Lara–Velasquez, 919 F.2d 946, 951 (5th Cir. 1990)). Undoubtedly, the deliberate ignorance instruction is “inappropriate for an offense which requires a specific purpose by the defendant.” United States v. Chen, 913 F.2d 183, 190 (5th Cir. 1990).

( Error Harmless. Even assuming arguendo that this was error, we have held, nevertheless, that the giving of the instruction is harmless where there is substantial evidence of actual knowledge. See, e.g., United States v. St. Junius, 739 F.3d 193, 204–05 (5th Cir. 2013)

( C. Deliberate Indifference Instruction. The Fifth Circuit consistently upholds instructions of deliberate ignorance if they have the required factual basis. United States v. Moreno, 185 F.3d 465, 476 (5th Cir. 1999). The instruction is only warranted “when a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.” Id. (quoting United States v. Posada-Rios, 158 F.3d 832, 875 (5th Cir. 1998)). “The evidence at trial must raise two inferences: (1) the defendant was subjectively aware of a high probability of the existence of the illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct.” United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990). The court errs in giving the instruction if the defendant does not claim

a lack of guilty knowledge. Id.

( United States v. Roussel, __ F.3d __ (5th Cir. Jan. 17, 2013)(11-30908):

This circuit’s pattern jury instructions state that “ ‘knowingly’ . . . means that the act was done voluntarily and intentionally, not because of mistake or accident.” 5th Cir. Pattern Jury Instructions: Criminal § 1.37 (2001). If a deliberate ignorance instruction is warranted, the judge may continue reading from the pattern instruction as follows:

You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can

be inferred if the defendant deliberately blinded himself to the existence of a fact.

Id.

“[A] deliberate ignorance instruction is warranted when a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.” Brooks, 681 F.3d at 701 (quotation omitted). “The evidence at trial must raise two inferences: (1) the defendant was subjectively aware of a high probability of the existence of the illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct.” Id. (quotation omitted).

In Mendoza-Medina, we explained:

We have often cautioned against the use of the deliberate ignorance instruction. Because the instruction permits a jury to convict a defendant without a finding that the defendant was actually aware of the existence of illegal conduct, the deliberate ignorance instruction poses the risk that a jury might convict the defendant on a lesser negligence standard—the defendant should have been aware of the illegal conduct.

United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003)

Last year, we further elaborated that “[d]eliberate indifference instructions are inappropriate in the usual case, where the evidence presents a simple choice between a version of the facts in which the defendant had actual knowledge, and one in which the defendant was no more than negligent or stupid.” United States v. Jones, 664 F.3d 966, 979 (5th Cir. 2011), cert. denied, 132 S. Ct. 2728 (2012).

Nevertheless, we have “consistently held that an error in giving the deliberate ignorance instruction is . . . harmless where there is substantial evidence of actual knowledge.” United States v. Threadgill, 172 F.3d 357, 369 (5th Cir. 1999) (quotations omitted); accord Jones, 664 F.3d at 979 (holding that any erroneous issuance of deliberate ignorance jury charge was harmless in that case). In Threadgill, we found that the defendants had actual knowledge of their participation in a money laundering scheme, and there was thus no need to address whether the deliberate ignorance instruction was properly submitted. Id. “We concede, after reviewing the record, that there is little evidence that the defendants purposefully contrived to avoid knowing that their actions were unlawful. In fact, the evidence reveals just the opposite, that the defendants knew that their conduct was criminal and took elaborate measures to hide it.”

Id. Here, the district court’s issuance of the deliberate ignorance charge, though erroneous, was harmless error. As in Threadgill, there was substantial evidence of Roussel’s actual knowledge of the illegal scheme

( United States v. Sheridan, __ F.3d __ (5th Cir. Oct. 4, 2016)(15-41678). Trial court properly instructed elements of offense of transporting aliens in the United States and properly rejected a proposed instruction on constructive possession taken from a drug

case, United States v. Pennington, 20 F.3d 593 (5th Cir. 1994)…. A jury’s finding that a defendant “knew or recklessly disregarded the fact that [an] alien was in the United States in violation of the law” requires the jury to find that the defendant knows that a person, who is an alien, exists. Relatedly, the third element of the offense—that a defendant “transported . . . said alien within the United States with intent to further the alien’s unlawful presence”—confirms both actual knowledge of an alien’s presence as well as “intent to further the alien’s unlawful presence.” In addition, the district court instructed the jury that knowledge cannot be shown by mistake or accident. The district court’s jury charge was a correct statement of the law relating to the crime of transporting aliens, and the court did not abuse its discretion in refusing to provide Sheridan’s proposed supplemental instruction, borrowed from our constructive possession of narcotics case law. Accordingly, the judgment of the district court is AFFIRMED.

( Use in Conspiracy Cases. United States v. Oti, _ F.3d __ (5th Cir. Oct. 3, 2017)(16-10386): We have often cautioned against the use of the deliberate ignorance instruction.” Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003). In United States v. Skilling, we noted that such an instruction should be given only in “‘rare’ instance[s]” and observed:

The concern is that once a jury learns that it can convict a defendant despite evidence of a lack of knowledge, it will be misled into thinking that it can convict based on negligent or reckless ignorance rather than intentional ignorance. In other words, the jury may erroneously apply a lesser mens rea requirement: a “should have known” standard of knowledge.

Skilling, 554 F.3d at 548–49, rev’d on other grounds, 561 U.S. 358 (2010). “The instruction is appropriate only in the circumstances where a defendant claims a lack of guilty knowledge and the proof at trial supports an inference of deliberate indifference.” United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015). Appellants argue that the instruction was inappropriate because, with the evidence before it, the jury had the choice of deciding whether Appellants were actually aware of the pill mill activities or actually not aware of the activities. We agree. “[T]he district court should not instruct the jury on deliberate ignorance when the evidence raises only the inferences that the defendant had actual knowledge or no knowledge at all of the facts in question.” Mendoza-Medina, 346 F.3d at 133–34.

( SCOTUS Blog of June 1, 2011

Commentary: Bad facts swing pendulum to rare Federal Circuit affirmance

On Tuesday, 25 May 2011, the U.S. Supreme Court handed down its opinion in Global Tech Appliances, Inc. v. SEB S.A., No. 10-6.

When the Court granted review in Global Tech Appliances, Inc. v. SEB S.A., the case had all the classic features of recent cases from the Federal Circuit:  the Federal Circuit adopts a broad pro-patentee rule that imposes large risks on businesses.  The Supreme Court, giving no credence to the Federal Circuit’s institutional expertise in patent law, grants review in the absence of a circuit conflict.  Academics and businesses weigh in, predominantly on the side of the alleged infringer.  The Supreme Court predictably reverses.  But something funny happened on the way to the United States Reports, as the Court ultimately issued an opinion affirming the judgment of the Federal Circuit.  Moreover, that opinion is likely to have broad implications not only for patent law, but also for scienter requirements in criminal cases. 

The question presented by this case was the state of mind necessary for imposing liability under Section 271(b) of the Patent Act, which concisely provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” The plaintiff SEB (the respondent in this case) holds a patent on a design for a deep-fat fryer; the defendant Global Tech (here, the petitioner) reverse-engineered SEB’s fryer and marketed a competing fryer.  The central question on which the parties joined issue was whether induced infringement can be “activ[e]” for purposes of Section 271(b) if the defendant does not know of the particular patent.  Global Tech’s principal argument was that it could not have “actively” induced infringement because it obtained a legal opinion that its product did not infringe and because it was not aware of SEB’s patent.  SEB countered the evidence of Global Tech’s conscious efforts to reverse-engineer the fryer was enough to affirm the Federal Circuit’s decision, which had upheld the jury verdict in favor of SEB.

Although the Court rejected the Federal Circuit’s analysis, it nonetheless upheld its decision at the same time.  First, the Court unanimously concluded that Section 271(b) requires actual knowledge of the patent.  Thus, the Court rejected the Federal Circuit’s holding that deliberate indifference to the risk of infringement is enough.  Although debatable, that part of the opinion was not surprising.  The statute was plainly ambiguous and it made some sense for the Court to rely on the parallel analysis of Section 271(c) in the Court’s 1964 decision in Aro Manufacturing Co. v. Convertible Top Replacement Co. 

But the remainder of the opinion is quite interesting.  Adopting a suggestion from the oral argument, the Court (with only Justice Kennedy dissenting) held that the judgment of the Federal Circuit nevertheless could be affirmed on the basis of Global Tech’s willful blindness.   Echoing Justice Alito’s sentiments at oral argument, the Court voices its dissatisfaction with Global Tech’s strategy of seeking a patent opinion from a lawyer without identifying the company whose appliance Global Tech copied:  “[W]e cannot fathom what motive [Global Tech’s representative] could have had for withholding this information other than to manufacture a claim of plausible deniability in the event that his company was later accused of patent infringement.”  (Of course, whether the Justices are well-placed to understand the norms of customary behavior for manufacturers is debatable). 

The decision is likely cast a long shadow over strategic IP planning in the years to come, in no small part because of the steps that the Court took in its analysis to reach its result.    First, the Court has to construe the knowledge requirement that it has just discovered in Section 271(b) to be satisfied by willful blindness (doctrinally, a step harder to prove than the deliberate indifference standard accepted by the Federal Circuit).  What is novel about this (and what will make this one of the most commonly cited decisions of the Term) is the Court’s explanation for the first time that criminal statutes which require proof of knowing or willful conduct are satisfied by proof of willful blindness.  Although most of the courts of appeals had reached that conclusion in criminal cases, the Court resolved this substantial question of criminal law here for the first time in a civil patent case without receiving briefs or argument on the question.  [This is the point at which Justice Kennedy parted ways from the majority.

Second, the Court had to conclude that the facts in this case satisfied the willful blindness standard.  In the Court’s words (now establishing the standard for all federal criminal law), willful blindness requires proof that the defendant subjectively believes that there is a high probability that a fact exists.  But there was little in the record to justify a “high probability” that SEB had patented the fryer in question.  The record did establish that Global Tech copied SEB’s fryer, and that SEB’s fryer had been commercially successful, but that is a long way from establishing a “high probability” that the aspects of the fryer copied by Global Tech were protected by valid patents.  Among other things, it would have been reasonable for Global Tech to think that SEB might not have patented the particular features that Global Tech copied.  Surely most features of technology on sale in American markets are not protected by current patents, and the record includes no evidence about the patenting proclivities of French companies in the kitchen appliance sector. The Federal Circuit and the trial courts it supervises will surely struggle to apply this opinion in areas (like software) in which patterns of patent protection are reliably irregular.

Third, the Court upheld the judgment of the court of appeals even though the trial court understandably instructed the jury under a considerably more lenient standard than the standard articulated by the Court; the Court’s brief answer is that Global Tech failed to raise that objection to the instruction in the courts below.  But that is a weak answer indeed in a case in which the Court affirms a jury verdict on the theory that the evidence satisfies a legal standard not presented by the patentee at any stage of the litigation.  Surely it would have been more customary to remand the case to the Federal Circuit with instructions to consider the case under the new standard.

They say that hard cases make bad law, but perhaps this is an example of a case in which a case seemed so easy that the Court’s drive to justify affirmance made bad law.

Departure

United States v. Torrez-Zuniga (5th Cir. July 22, 2011)(10-50471):

A “departure” is a “term of art under the Guidelines and refers only to nonGuidelines sentences imposed under the framework set out in the Guidelines.” Id. “The district court’s authority to impose a departure emanates from 18 U.S.C. § 3553(b)(1) and, in turn, Chapter 5, Part K of the Guidelines.” Id. (citation omitted). In contrast, a “variance” is a sentence imposed outside of the Guidelines framework. Id. The court’s authority to impose a variance is discretionary and stems from § 3553(a). Id. “Rule 32(h)’s notice requirement does not apply to variances.” Id. (citations omitted); see also United States v. Mejia-Huerta, 480 F.3d 713, 721-22 (5th Cir. 2007) (analyzing the notice requirement under the “post-Booker advisory Guidelines regime” and holding that Rule 32(h) applies to departures only and not to variances). Neither party argues that the district court’s orally pronounced sentence conflicts with the court’s written statement of reasons.

Destructive Device with Drugs

( 18 U.S.C. § 922(g)(3).

( § 2K2.1(b)(3)(B) for conduct involving the manufacture and possession of a destructive device.

( United States v. Waits, (5th Cir. Sept. 8, 2014)(14-60010). Level upheld despite assertion device was to exploded water to get fish. The device was in the nature of a pipe bomb, constructed by using a metal flashlight body that was sealed on one end with the brass from a 12-gauge shotgun shell and on the opposite end with a small, threaded metal cap. The device contained a quantity of explosive powder, identified by laboratory

analysis as double‐base smokeless powder. An improvised fuse was fashioned from a piece of toilet paper that was twisted and coated with candle wax and inserted through the primer hole in the 12‐gauge shell brass, allowing contact with the explosives contained within the shell brass.

( United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004) held that an explosive device made of cardboard, glue, candle wax, and tape was merely a firecracker and not designed as a weapon, because if “it exploded there is no evidence that anything would have been propelled but bits and pieces of cardboard.”

( United States v. Charles, 883 F.2d 355, 357 (5th Cir. 1989), supports the conclusion that this was a destructive device. The devices in Charles were three pipe bombs, viz., tubes about ten inches long, each filled with explosive components and each having an igniter or fuse attached. The defendant claimed that they were “percussion devices” designed to detonate underwater and stun fish. Expert testimony indicated that the “percussion devices” were improvised grenades, which, when detonated, would explode

loudly and released shrapnel. We held that the evidence was sufficient to show

that they were destructive devices. 883 F.2d at 357.

Detention Rulings

( Absent an error of law, we will uphold a district court’s pretrial detention order if it is

supported by the proceedings below. United States v. Rueben, 974 F.2d 580, 585 (5th

Cir. 1992); United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989). Zavala has not

shown that he rebutted the presumption that he is a flight risk and that his release would present a danger to the community. See § 3142. Zavala did not raise his constitutional arguments in the district court. Further, he has abandoned any argument related to the Speedy Trial Act by failing to brief it adequately. See United States v. Stevens, 487 F.3d 232, 242 n.1 (5th Cir), cert. denied, 128 S. Ct. 336 (2007). His Eighth Amendment argument is foreclosed. See Hare, 873 F.2d at 800. The lack of consideration of Zavala’s due process claim will not result in a manifest miscarriage of justice as Zavala had ample opportunity to present the argument to the district court. See United States v. Barrett, 837 F.2d 1341, 1344 n.2 (5th Cir. 1988) (declining to consider due process argument raised for the first time).

( United States v. Afghahi, (5th Cir. Dec. 21, 2015)(15-20465):

Absent an error of law, we must uphold a district court’s pretrial detention order if it is supported by the proceedings below, a deferential standard of review that we have equated to the abuse-of-discretion standard. United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989). The same standard governs our review of the denial of a § 3145(b) motion to revoke a detention order. Id. We generally look to whether “the evidence as a whole supports the conclusions of the proceedings” in the district court, United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992), although we review questions of law de novo, United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006). Afghahi argues that the district court applied incorrect legal standards. We disagree. The district court repeatedly articulated and applied the correct statutory standards. See § 3142(e)-(f).

Dictum

United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (“A statement is dictum if it could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it. A statement is not dictum if it is necessary to the result or constitutes an explication of the governing rules of law.”) (internal quotation marks omitted) (quoting Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004)).

Diluting Powers of Minority White Voters.

( US v. Brown, 561 F.3d 420 (5th Cir. 2009)(07-60588)(revised April 1, 2009)

Diminished Capacity and Sentencing

( Appellant urged that TJ erred in failing to grant a downward departure under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 5K2.12 or U.S.S.G. § 5K2.13 based on diminished capacity or mental duress. Thompson does not argue and the record does not indicate that the district court believed that it was without authority to depart from the USSG. Because the district court did not misapprehend its authority, we lack jurisdiction

to review the court’s denial of a downward departure. See United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006); United States v. Buck, 324 F.3d 786, 797-98 (5th Cir. 2003).

( See also category “Psychiatric Testimony Excluded …”

( Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., f

Klein ISD v. Hovem, __ F.3d __ (5th Cir. Aug. 6, 2012)(10-20694):

( Standard of Review: In cases such as this, “although the district court must accord ‘due weight’ to the hearing officer’s findings, the court must ultimately reach an independent decision based on a preponderance of the evidence.” Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997) (citations omitted)

(hereaf ter, “Michael F.”). Thus, the district court’s review of the special hearing

officer’s recommendation is “virtually de novo.” Id. This court reviews de novo, as a mixed question of law and fact, the district court’s decision that a school district failed to provide a FAPE under IDEA. Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). The district court’s findings of “underlying fact” are reviewed for clear error. Id. “The clear error standard of review ‘precludes reversal of a district court’s [factual] findings unless [the appellate court is] left with a definite and firm

conviction that a mistake has been committed.’” Hous. Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009) (quoting Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir. 2006) (internal quotation marks and citations omitted)). Whether the student obtained educational benefits from the school’s special education services is a finding of underlying fact. Teague, 999 F.2d at 131. A party attacking the district’s IEP bears the burden of demonstrating its non-compliance with IDEA. Id.

( IDEA requires the development of an individualized education program

(“IEP”) for each child falling within the purview of IDEA. IEPs are created and

periodically reviewed following meetings at which parents, teachers, other school personnel, and educational experts all participate. 20 U.S.C. § 1414(d)(1)(B). The IEP includes a statement of the special education, related services and accommodations the school will provide to the child. 20 U.S.C. § 1414(d)(1)(A). Once school officials and parents agree on the IEP, the school district must put it into effect. 20 U.S.C. § 1414(d)(2)(A). The IDEA requires that school districts allow parents to play a significant role in the development of IEPs for each child with a disability. Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524, 127 S. Ct. 1994 (2007).

IDEA also requires states to establish procedures to resolve IEP-related disputes between parents and school districts. 20 U.S.C. §§ 1414, 1415. A state must provide parents an opportunity to present complaints “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6)(A). If such a complaint cannot be resolved to the parents’ satisfaction, they may proceed to an impartial due process hearing. 20 U.S.C. § 1415(f)(1)(A). The hearing generally is limited to the identification, evaluation, or educational placement of the child, or to determining whether the child received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(I).

After parents have exhausted the available administrative procedures, any involved party aggrieved by the final decision of the state education agency that conducted the hearing may “bring a civil action with respect to the complaint presented pursuant to this section” in state or federal court. 20 U.S.C. § 1415(i)(2)(A). While the court must receive the record of the administrative proceeding and give it “due weight,” it must also hear any additional evidence the parties present. 20 U.S.C. § 1415(i)(2)(C); Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034 (1982). IDEA authorizes the court then to issue “appropriate” relief. 20 U.S.C. § 1415(i)(2)(C). Parents who remove their child from a public school setting because they believe that the public education program fails to provide a FAPE and who place their child in a private school for that reason are entitled to reimbursement if

the court holds that the proposed IEP did not provide a FAPE and the private school placement was “appropriate.” School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 369 (1985); see also, 34 C.F.R. 300.148(c); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S. Ct. 2484, 2496 (2009). IDEA guarantees only a “basic floor” of opportunity, “specifically designed to meet the child’s unique needs, supported by services that will permit him to benefit from the instruction.” Rowley, 458 U.S. at 188-89, 102 S. Ct. at 3042; see also Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 292 (5th Cir. 2009) (citations omitted). An IEP need not be the best possible one, nor does it entitle a disabled child to a program that maximizes the child’s potential. Michael F., 118 F.3d at 247-48. Nevertheless, a school district must provide the student with a meaningful educational benefit. See Juan P., 582 F.3d at 583 (citing Michael F., 118 F.3d at 248 (5th Cir. 1997) (citations omitted)). This court’s de novo review of the adequacy of an IEP is limited to two basic questions: (1) Did the school district comply with the procedural requirements of the IDEA?; and (2) Is the IEP reasonably calculated to enable the student to receive educational benefits? Rowley, 458 U.S. 176, 206–7, 102 S. Ct. at 3051 (1982). …Procedural defects

alone do not constitute a violation of the right to a FAPE unless they result in the loss of an educational opportunity[.]” Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 812 (5th Cir. 2003) (quoting T.S. v. Indep. Sch. Dist. No. 54, 265 F.3d 1090, 1095 (10th Cir. 2001)). Four factors guide the court’s analysis of the second inquiry. The court evaluates whether: “(1) the program is individualized on the basis of the student’s assessment and performance; (2) the program is administered in the least restrictive environment; (3) the services are provided in a coordinated and collaborative

manner by the key ‘stakeholders’; and (4) positive academic and non-academic benefits are demonstrated.” Michael F., 118 F.3d at 253. This Court, however, has “not held that district courts are required to consider them or to weigh them in any particular way.” Michael Z., 580 F.3d at 293.

Directed Verdict. A directed verdict is an acquittal for which jeopardy will lie.

Martinez v. Illinois, 134 S. Ct. 2070 (2014).

Discovery

( The Fifth Circuit reviews “alleged errors in the administration of discovery rules under an abuse of discretion standard and will not reverse on that basis unless a

defendant establishes prejudice to his substantial rights.” United States v. Holmes, 406 F.3d 337, 357 (5th Cir. 2005).

( NCIC Check. Requiring U.S. to check NCIC for criminal background of witnesses on defense request has been upheld provided movant satisfies Brady elements. United States v. Auten, 632 F.2d 478 (5th Cir. 1980). Texas law is contra: Terrell v. State,

766 S.W.2d 561 (Tex. App.—Beaumont 1989).

( Discovery Sanction. A district court’s choice of sanction for a criminal discovery violation is reviewed for abuse of discretion. United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992). A court is to impose the least severe sanction necessary in the

light of the following considerations: “(1) the reasons why the disclosure was not made; (2) the amount of prejudice to the opposing party; (3) the feasibility of curing such prejudice with a continuance of the trial; and (4) any other relevant circumstances.” United States v. Garza, 448 F.3d 294, 299-300 (5th Cir. 2006). Reversal is appropriate only if the defendant can show that the violation prejudiced his substantial rights. Singer, 970 F.2d at 1418.

Disqualification of Counsel: See Attorney Disqualification.

DNA Testing

( From United States v. Fasono, 577 F.3d 572 (5th Cir. 2009)(08-60750): Innocence Protection Act, 18 USC § 3600(a) sets forth criteria for DNA testing. Held: lower court erred and should have granted request. This is an issue of law that requires de novo review. We do not read the statute to impose a more exacting standard for a showing of the chain of custody in a proceeding under the Innocence Act than would be demanded in a trial itself.

Double Counting

( Double counting is not impermissible in sentencing unless the Guidelines so state.

United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).

( Double Counting in Firearms Case: United States v. Velasquez, __ F.3d __ (5th Cir. June 8, 2015)(15-40855): guilty to one count of making a false statement or representation with regards to firearm records, in violation of 18 U.S.C. § 924(a)(1)(a).

Velasquez argues that the district court reversibly erred when it applied four-level offense enhancements under both U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6), alleging that such an action amounted to “double counting.” She explains that the trafficking offense underlying the enhancement under § 2K2.1(b)(5) was the “felony offense” underlying the enhancement under § 2K2.1(b)(6) and that, pursuant to United States v. Guzman, 623 F. App’x 151 (5th Cir. 2015), § 2K2.1, comment (n.13(D)), prohibits an enhancement under both sections when they rely on the same trafficking offense. … Guzman, 623 F. App’x at 155-56. Limiting our analysis solely to whether Application Note 13(D) prohibits the application of both enhancements, we found that the commentary indeed expressly prohibited such double counting. Id. at 155. Although our opinion in Guzman is unpublished, it is nonetheless persuasive. See 5TH CIR. R. 47.5.4. Therefore, we find that the imposition of the enhancements under § 2K2.1(b)(5) and § 2K2.1(b)(6) was clear and obvious error. See Guzman, 623 F. App’x at 155-56. (but error was harmless).

Double Jeopardy See also “Jeopardy Attaches”

( In the successive prosecution context, the authorities hold that a defendant’s double jeopardy concerns arise only after original jeopardy attaches and terminates. Richardson v. United States, 468 U.S. 317, 325 (1984). No matter the sufficiency of the evidence, “the failure of the jury to reach a verdict is not an event which terminates jeopardy.”

Id. at 325–26. Arriaga-Guerrero’s citation to Burks v. United States, 437 U.S. 1 (1978), is inapposite, for “Burks did not deal with the situation in which a trial court declares a mistrial because of a jury’s inability to agree on a verdict.” Richardson, 468 U.S. at 323. Rather, “Burks established only that an appellate court’s finding of insufficient evidence to convict on appeal from a judgment of conviction is for double jeopardy purposes, the equivalent of an acquittal.” Id. at 325. Richardson and Burks’s boundaries are no longer an open question in this Circuit. See United States v. Achobe, 560 F.3d 259 (5th Cir. 2008); Vanderbilt v. Collins, 994 F.2d 189 (5th Cir. 1993); United States v. Miller, 952 F.2d 866 (5th Cir. 1992).

After [Justice of Boston Municipal Court v. Lydon, 466 U.S.294 (1984)] and Richardson, it appears that there are only three possible jeopardy terminating events: (1) an acquittal, (2) a trial court determination of insufficiency leading to a directed verdict of acquittal, and (3) an unreversed determination on direct appeal that there was insufficient evidence to support the conviction. In the absence of one of these events, a later determination that there was insufficient evidence apparently will not bar a retrial. Vanderbilt, 994 F.2d at 195 (footnotes omitted). With respect to appeals from first-trial sufficiency decisions, “Miller holds that after Richardson, the Burks bar only prevents retrial when the appellate court in fact reverses for insufficient evidence.” Id. Thus, when defendants raise first-trial insufficiency arguments in a subsequent trial, Miller, Vanderbilt, and now Achobe dictate that our task is not to determine whether original jeopardy should have ceased before retrial because of the insufficiency argument; rather, we determine only the narrower question of whether original jeopardy actually ceased before retrial. Achobe, 560 F.3d at 265–68; Vanderbilt, 994 F.2d at 195.

( Revocation of Supervised Release and Prosecution for the Crime that Caused Revocation is Not Double Jeopardy or Collateral Estoppel. United States v. Fleming, __ F. App’x __ (5th Cir. Feb. 8, 2010)(09-20142). for the offense for which supervised release had been imposed. See Johnson v. United States, 529 U.S. 694, 700 (2000); United States v. Jackson, 559 F.3d 368, 371 (5th Cir. 2009). Thus, Fleming is not being punished twice for the same offense. See United States v. Carlton, 534 F.3d 97, 101 (2d Cir.), cert. denied, 129 S. Ct. 613 (2008); United States v. Wyatt, 102 F.3d 241, 245 (7th Cir. 1996). Because revocation proceedings are not “essentially criminal,” the instant

prosecution does not constitute a second prosecution for the same offense. See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998); United States v. Whitney, 649 F.2d 296, 298 (5th Cir. 1981). Accordingly, the doctrine of collateral estoppel is inapplicable. See Ashe v. Swenson, 397 U.S. 436, 445 (1970); Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir. 1987).

( United States v. Hoeffner, __ F.3d __ (5th Cir. Nov. 18, 2010)(09-20781):

Standard of Review. We review de novo the district court’s order denying the defendant’s motion to dismiss the indictment on double jeopardy grounds, but we accept as true the district court’s underlying factual findings unless clearly erroneous. United States v. Mauskar, 557 F.3d 219, 227 (5th Cir. 2009) (quoting United States v. Gonzalez, 76 F.3d 1339, 1342 (5th Cir. 1996)). In this interlocutory appeal, we are concerned only with the defendant’s claim of double jeopardy, and we do not address the sufficiency of any of the allegations in the indictment. See Abney v. United States, 431 U.S. 651, 663 (1977).

…Having decided that the indictment does, in fact, allege two theories of

liability, we next must determine the consequence of the government’s abandonment of one of those theories. The Double Jeopardy Clause provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend V. “As traditionally understood, the Double Jeopardy Clause precludes multiple prosecutions and multiple punishments for the same offense.” Brown II, 571 F.3d at 497 (internal quotation omitted); see also Brown v. Ohio, 432 U.S. 161, 165 (1977). T h e D o u b l e Jeopardy Clause is not implicated, however, “when[] the State seeks a second

trial after its first attempt to obtain a conviction results in a mistrial because the

jury has failed to reach a verdict. . . . [T]he second trial does not put the defendant in jeopardy ‘twice.’” Yeager v. United States, 129 S. Ct. 2360, 2366 (2009).

( United States v. Dugue, __ F.3d __ (5th Cir. Aug. 19, 2012)(12-60529). Double jeopardy does not bar mistrial cause by prosecutorial misconduct unless there prosecutor intended to cause mistrial.

( DJ does not apply when there is a mistrial in a civil rights violation case. United States v. Dugue, 590 F.3d 636 (5th Cir. 2012).

( Charging both possession with intent to distribute meth with possessing a firearm in

furtherance of a drug trafficking offense does violate double Jeopardy.

United States v. United States v. Nguyen, 117 F.3d 796, 797 & n.1 (5th Cir. 1997);

United States v. Martinez, 28 F.3d 444, 446 (5th Cir. 1994). Accord: United States v.

Steinberg, (5th Cir. Sept. 22, 2016)(15-11041).

( Double Jeopardy: Habeas under § 2241 versus 2254. Montano v.. Texas, __ F.3d

__ (5th Cir. Sept. 1, 2015)(16-20083): In TX prosecution, witness asserted 5th

Amendment privilege & trial judge granted mistrial. D filed habeas in State Crt.

denied. State appeals on DJ denied. Brought federal HC under 2241. Dismissed for

failure to exhaust state remedies. Rev’d. Exhaustion not required.

Unlike 28 U.S.C. § 2254, Section 2241’s text does not require exhaustion.

However, it has long been settled that a Section 2241 petitioner must exhaust

available state court remedies before a federal court will entertain a challenge to

state detention. As we explained before,

[d]espite the absence of an exhaustion requirement in the statutory language of section 2241(c)(3), a body of case law has developed holding that although section 2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.

Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987); see also Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). At the same time, we have recognized that “[e]xceptions to the exhaustion requirement are appropriate where the available . . . remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Fuller, 11 F.3d at 62; see also Gallegos-Hernandez, 688 F.3d at 194 (same). The district court determined that Montano still had state remedies available to him that he was required to exhaust before utilizing Section 2241. Specifically, the district court concluded that Montano had failed to exhaust Articles 45.0232 and 27.053 of the Texas Code of Criminal Procedure, which allow a defendant to enter a special plea of Double Jeopardy at trial. The district court further reasoned that “[i]f Montano is retried and convicted, he will have the opportunity to appeal that conviction in state court and, if unsuccessful, to seek state habeas relief.” We disagree. In Fain v. Duff, 488 F.2d 218 (5th Cir. 1973), reh’g en banc denied, (5th Cir. Mar. 1, 1974), we confronted this precise issue. There, Florida sought to try a defendant (Fain) for rape after he had already been adjudicated delinquent for the same offense. Id. at 220–21. After having raised a Double Jeopardy challenge at every level of the state judiciary and ultimately not prevailed, Fain brought a Section 2241 petition in federal district court raising the same claim, and the district court granted relief. Id. at 221. We held that Fain satisfied Section 2241’s exhaustion requirement because he had raised and received a ruling on his Double Jeopardy claim at every level of the state judiciary; there was, then, “nothing more for the courts of Florida to say on [the] issue.” Id. at 224. We acknowledged that “a petition for habeas corpus relief could be brought after the trial in state court,” and that this would “leav[e] open the possibility that a finding of not guilty in state court would make resort to federal habeas corpus unnecessary.” Id. (emphasis added). Despite this, we concluded that requiring a defendant to endure a second prosecution in order to fully exhaust a Double Jeopardy claim was incompatible with the nature of the Double Jeopardy Clause’s protection.

Texas relies on Dickerson v. Louisiana, 816 F.2d 220 (5th Cir. 1987) and Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), but to no avail. Braden held that a defendant could bring a Speedy Trial Clause claim in a Section 2241 petition prior to trial. 410 U.S. at 489–93. In finding Section 2241’s exhaustion requirement satisfied, the Supreme Court observed, first, that the defendant had presented his federal constitutional claim to the state courts, and second, that the defendant was not seeking to “forestall a state prosecution, but to enforce the [state’s] obligation to provide him with a state court forum.” Id. at 491. Importantly, Fain addressed Braden in the context of its exhaustion ruling and concluded that its holding was in harmony with Braden.

Double Sovereignty Doctrine

( From United States v. Moore, (5th Cir. Mar. 26, 2010)(08-10198)(unreported):

Under the dual-sovereignty doctrine, double jeopardy does not attach when separate sovereigns prosecute offenses with identical elements. Cf. Heath v. Alabama, 474 U.S. 82, 88 (1985). As a sovereign nation, Canada qualifies as a sovereign for purposes of the doctrine. See Villanueva, 408 F.3d 193, 201 (5th Cir. 2005). Nonetheless, Moore urges the court to find that double jeopardy applies because the Canadian prosecution was merely a sham, or put differently, a mere tool controlled by the United States. it is unclear whether such an exception to the dual sovereignty doctrine exists in this circuit. This exception originated from Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959), where the Supreme Court suggested in dicta that there may be an exception to the dual-sovereignty doctrine when one sovereign is “merely a tool” of the other in bringing a second prosecution that is a “sham and a cover” for a prosecution that would otherwise be barred under the Double Jeopardy Clause. We have not formally recognized or applied the exception; when confronted with the issue, we have held that, even if the exception exists, the facts do not merit its application. See United States v. Angleton, 314 F.3d 767, 773-74 (5th Cir. 2002) (citing United States v. Patterson, 809 F.2d 244, 247 n.2 (5th Cir. 1987)).1 This case does not warrant a different approach.

( We have emphasized that the essential element of the Bartkus “tool” test is a high level of control: one sovereign must (1) have the ability to control the prosecution of the other and (2) it must exert this control to “essentially manipulate[] another sovereign into prosecuting.” See United States v. Angleton, 314 F.3d 767, 774 (5th Cir. 2002) (citations and internal quotation marks omitted); see also Villanueva, 408 F.3d at 201 (“Although United States officials assisted the Mexican government, defendants-appellants presented no evidence that the United States had any ability to control the prosecution, so they have failed to prove that the Mexican prosecution was a sham.”). Consistent with this approach, a recent decision of the First Circuit emphasized that the “Bartkus exception is ‘narrow[ly] . . . limited to situations in which one sovereign so

thoroughly dominates or manipulates the prosecutorial machinery of another that the latter retains little or no volition in its own proceedings.’” United States v. Dowdell, —F.3d—, 2010 WL 481416, at *11 (1st Cir. Feb. 12, 2010) (citation omitted) (alterations in original). Accordingly, to prevail, Moore must establish a prima facie case that Canada was a mere tool of the United States. Villanueva, 408 F.3d at 201 (citation omitted). He has not come close to satisfying this standard.

Drug Dogs

( Today’s decision in Florida v. Jardines with Justice Scalia writing for a 5-4 majority that a drug dog sniffing the odor of drugs at a person’s doorstep is a search under the Fourth Amendment.  This is in contrast with the Court’s unanimous decision last month, coverage here and decision here, in Florida v. Harris that held a drug dog alerting outside a vehicle gives sufficient justification for a search of the vehicle.

( Florida v. Jardines, 11–564, 569 U. S. ____, ___ S.Ct. ___, ___LEd.2d ___ (2013)

 

SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined.

 

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

 

Held: The investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment. Pp. 3–10.

 

(a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v.Jones, 565 U. S. ___, ___, n. 3. Pp. 3–4.

 

(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.”Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12. Pp. 4–5.

 

(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,”California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbour’s close without his leave,” Entick

v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.”Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the cartilage simply to conduct a search. Pp. 5–8.

 

(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347. Pp. 8–10.

( United States v. Thompson, (5th Cir. Oct. 8, 2013)(12-51161): Thompson primarily relies on the Supreme Court’s recent decision in Florida v. Harris, 133 S. Ct. 1050 (2013), which was decided after the district court’s decision in this case. In Harris, the Supreme Court addressed how a court should evaluate probable cause based on an alert from a drug-detection dog when the defendant has challenged the dog’s reliability. See 133 S. Ct. at 1053. The Court rejected Florida’s rigid test that required the state in every case to present exhaustive evidence of reliability in favor of a more flexible, common-sense approach that examines the dog’s training. Id. The Court held that “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Id. at 1057. The Court noted, however, that a defendant “must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.” Id. The Court believed that “even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not).” Id. at 1057–58.

Although Harris recognized that a defendant may challenge the Government’s evidence of the reliability of a dog’s alert when reliability is at issue, the Court’s opinion does not address whether or when the district court is required to grant an evidentiary hearing in the first place. Indeed, the Harris Court held that “a probable-cause hearing focusing on a dog’s alert should proceed much like any other.” Id. at 1058. In this circuit, it is well-established that “‘an alert by a drug-detecting dog provides probable cause to search [a vehicle],’ . . . and that ‘a showing of the dog’s training and reliability is not required if probable cause is developed on site as a result of a dog sniff of a vehicle.” United States v. Rodriguez, 702 F.3d 206, 210 (5th Cir. 2012) (quoting United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003)), cert. denied, Izquierdo v. United States, 133 S. Ct. 1615 (2013). Thompson’s suppression motion provided insufficient detail to call this general rule into question and to required an evidentiary hearing.

Drugs

( Amendment 782.. United States v. Slaughter, __ Fed. App’x ___ (5th Cir. Sept. 7, 2017)(16-11285): Slaughter contests the denial of his motion, under 18 U.S.C. § 3582(c)(2), for a reduction of sentence based upon United States Sentencing Guidelines Amendment 782. He contends the court should have granted his motion because reducing his sentence would not present a danger to the public. He further asserts the court’s findings regarding his relevant conduct went beyond the charges in the indictment and were not found beyond a reasonable doubt and therefore should not have been considered in denying his motion. More particularly, he challenges sentence enhancements he received for the quantity of the drugs for which he was convicted and his role in the conspiracy. These assertions relate to findings made at Slaughter’s original sentencing, however, and are “not cognizable under § 3582(c)(2)”. United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 561 U.S. 1011 (2010). In short, factual issues related to original sentencing are not appropriately raised in § 3582(c)(2) motions. Id.

Section 3582(c)(2) authorizes the district court to modify a sentence upon a showing that movant’s sentencing range has been reduced after his conviction. If the court determines a sentence modification is authorized, as it implicitly did here under Amendment 782, it must consider the applicable 18 U.S.C. § 3553(a) sentencing factors to decide whether a reduction “is warranted in whole or in part under the particular circumstances of the case”. Dillon v. United States, 560 U.S. 817, 827 (2010); see also United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011) (noting the district court’s implicit finding of eligibility to seek sentence modification under § 3582(c)(2)). Such a decision is reviewed for abuse of discretion. E.g., Evans, 587 F.3d at 672. Abuse of discretion occurs when a ruling is grounded in a legal error or a clearly erroneous analysis of the evidence. Larry, 632 F.3d at 936. In addition, the court abuses its discretion when, “in applying its discretion[, it] fails to consider the factors as required by law”. Id.

The record demonstrates the court gave due consideration to the

motion as a whole and considered the 18 U.S.C. § 3553(a) sentencing factors. Slaughter maintains his criminal history, offense and relevant conduct, and post-sentencing conduct weigh in favor of reducing his sentence. His disagreement with the court’s conclusion that those factors weigh against him is insufficient to demonstrate an abuse of discretion. See United States v. Henderson, 636 F.3d 713, 718–19 (5th Cir. 2011).

( Amendment 782 Does not affect Enhancements. UnitedStates v. Quintinilla, __ F.3d __

(5th Cir. Aug. 16, 2017)(16-50677): Each defendant was convicted of a drug crime, which resulted in a guideline range under § 2D1.1 based on the drug quantity. Each defendant also qualified as a career offender, resulting in a guideline range under § 4B1.1 based on that status. In each case, the § 4B1.1 career offender guideline range was higher than the § 2D1.1 drug quantity range. Under § 4B1.1(b), “if the offense level for a career offender from the table in this [career offender] subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply.” Thus, the higher § 4B1.1 guideline range was the required starting range for each defendant. The district court at each original sentencing in fact applied the higher § 4B1.1 guideline range. From that range, the district court applied various reductions that are not at issue in these cases. The final sentence was typically somewhere between the starting § 4B1.1 range and the lower § 2D1.1 range, though in some cases the final sentence, after all appropriate reductions, was within or even lower than the original § 2D1.1 range.2 Of course, if the court had started at the § 2D1.1 range and applied all of those reductions, the sentence would have been lower still. After the original sentencings, the Sentencing Commission enacted Amendment 782, effective November 1, 2014 and retroactive to earlier sentences, which amended § 2D1.1 to allow a two-level reduction to offense level based on the drug quantity. The amendment affects § 2D1.1 and a few other minor sections tied to § 2D1.1, but it does not change § 4B1.1 in any way. In Amendment 782’s “Reason for Amendment” section, the Sentencing Commission stated that “existing statutory enhancements, such as those available under 18 U.S.C. § 924(c), and guideline enhancements for offenders who possess firearms, use violence, have an aggravating role in the offense, or are repeat or career offenders, ensure that the most dangerous or serious offenders will continue to receive appropriately severe sentences.”

( Drug Quantity and Conspiracy. United States v. Randall, __ F.3d __ (5th Cir. Oct. 29, 2014)(12-31193). G plea on drugs of over 5 Kilos. The PSR found that, although the overall drug amount involved in the conspiracy was five kilograms or more of cocaine, Randall’s own “responsibility and knowledge in this case was limited to 148.8 net grams of powder cocaine, and 35.2 net grams of crack cocaine.” Based on that drug amount, the PSR calculated a Guidelines range of 70 to 87 months of imprisonment. However, the PSR concluded that the statutory mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A)(ii) was required.

At sentencing, the district court “accept[ed] the findings of the probation office.” Although the district court noted the applicable Guidelines range of 70 to 87 months, it concluded that it was required to impose the statutory minimum sentence of 120 months for Count 1. Thus, Randall was sentenced above the calculated Guidelines range to the statutory mandatory minimum of 120 months of imprisonment on Count 1 and a consecutive mandatory sentence

of 60 months of imprisonment on Count 24. He filed a timely notice of appeal. He now argues for the first time on appeal that the district court erred by imposing the statutory mandatory minimum sentence for Count 1.For the reasons set out below, we VACATE the sentence.

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,”4 or, under Blakely v. Washington, 542 U.S. 296, 303 (2004), admitted by the defendant. In Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), the Supreme Court extended this holding to facts that increase the mandatory minimum sentence, as in this case. The issue in this appeal is whether or not Randall should be sentenced based on the amount of drugs attributable to the conspiracy as a whole or only on the amount attributable to him individually.

In the wake of Alleyne, we recently addressed a drug conspiracy case

whose reasoning is helpful here. United States v. Daniels, 723 F.3d 562 (5th

Cir. 2013), modified in part on rehearing, 729 F.3d 496.

We set out the applicable standards, which apply equally to the instant case:

To prove conspiracy under 21 U.S.C. § 846, the government must establish that: “(1) an agreement existed between two or more persons to violate federal narcotics law, (2) the defendant knew of the existence of the agreement, and (3) the defendant voluntarily

participated in the conspiracy.” United States v. Ochoa, 667 F.3d 643, 648 (5th Cir. 2012).

However, “if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the [drug] quantity must be stated in the indictment and submitted to the [fact finder] for a finding of proof beyond a reasonable doubt.” United

States v. Doggett, 230 F.3d 160, 164–65 (5th Cir. 2000). In the instant case, the Government sought enhanced penalties on the conspiracy charge under § 841(b)(1)(A)(ii). In accordance with Doggett, the indictment alleged that the conspiracy involved at least five kilograms of cocaine. If an indictment alleges involvement in a conspiracy to distribute an amount of a controlled substance that triggers enhanced penalties under §§ 841(b)(1)(A) or (B), then Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000), requires the Government to prove beyond a reasonable doubt the quantity of the alleged drug as a fourth element of the offense. See United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003).

However, “if the government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the [drug] quantity must be stated in the indictment and submitted to the [fact finder] for a finding of proof beyond a reasonable doubt.” United

States v. Doggett, 230 F.3d 160, 164–65 (5th Cir. 2000).

In the instant case, the Government sought enhanced penalties on the conspiracy charge under § 841(b)(1)(A)(ii). In accordance with Doggett, the indictment alleged that the conspiracy involved at least five kilograms of cocaine. If an indictment alleges involvement in a conspiracy to distribute an amount of a controlled substance that triggers enhanced penalties under §§ 841(b)(1)(A) or (B), then Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 (2000), requires the Government to prove beyond a reasonable doubt the quantity of the alleged drug as a fourth element of the offense. See United States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003).10

( Analogues.

( Marijuna. United States v. Francis, (5t Cir. Sept. 8, 2016)(14-31434):

Daniel Paul Francis appeals the sentence imposed after he pleaded guilty to conspiring to introduce a misbranded synthetic cannabinoid, AM- 2201, into interstate commerce. See 18 U.S.C. § 371; 21 U.S.C. §§ 331, 333, 352. Francis contends that the court erred by finding AM-2201 to be most closely related to Tetrahydrocannabinol, Synthetic (THC), and by applying a 1:167 ratio of AM-2201 to marijuana to calculate the relevant drug quantity. He also argues that the district court improperly limited the degrees of his U.S.S.G. § 5K1.1 sentence reduction by considering a factor unrelated to his assistance. In a related case arising from the same criminal scheme, we recently affirmed the THC is the most closely related drug to AM-2201 and that the court did not err by applying the 1:167 ratio. Francis’s drug-quantity claims lack merit. See United States v. Malone, ___F.3d___, 2016 WL 3627319, *4-*5 (5th Cir. July 6, 2016).

( United States v. Lawrence, __ F.3d __ (5th Cir. Aug. 20, 2013)(12-20430): Conviction

affirmed for conspiring to possess aboard an aircraft with intent to distribute

five kilograms or more of cocaine, in violation of 21 U.S.C. §963. Ds Parker moved to dismiss the indictment alleging, inter alia, that: (1) Congress did not intend for §959(b), the provision of the statute that Appellants are charged with conspiring to violate, to apply extraterritorially; (2) if Congress did enact §959(b)(2) with the intent that it should apply extraterritorially, it went

beyond its Constitutional authority in doing so; and (3) the indictment was unconstitutionally vague. The district court denied their motions. O/R’d. Aff’d.

Good review on extraterritorial statutes.

( A district court’s determination of the amount of drugs for which a defendant

should be held responsible is a factual finding reviewed for clear error,. meaning the finding must be plausible in light of the record as a whole. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005); United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998). There is no clear error if the district court’s finding is plausible in light of the record as a whole. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This court recognizes that a district court may consider estimates in determining drug quantity for sentencing purposes, provided that the estimates are reasonable and based on reliable evidence. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). In arriving at a drug quantity, the district court may rely upon information provided by codefendants and other witnesses, provided the information bears the minimum indicia of reliability. See United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996); United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992). A district court may determine drug amounts for sentencing purposes provided the finding is based on reliable evidence, such as the presentence report (PSR) and information provided by codefendants and other witnesses. See United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998); United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). The defendant bears the burden of presenting rebuttal evidence to demonstrate that the information relied upon by

the district court is inaccurate or materially untrue. See United States v. Washington, 480 F.3d 309, 320 (5th Cir. 2007).

( Drug quantity from Co-conspirators without physical evidence. United States v. Gentry, (5th Cir. March 16, 2016)(15-10232): A district court’s calculation of the quantity of drugs involved in an offense is a factual finding and is “not clearly erroneous as long as it is plausible in light of the record as a whole.” United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal quotation marks and citation omitted). In this case, the statements in the witness reports produced by the government are sufficiently reliable to support the district court’s drug quantity calculation, given the similarities among them. See United States v. Zuniga, 720 F.3d 587, 591-92 (5th Cir. 2013) (affirming reliance on facts from in PSR that were based on two co-conspirators’ detailed and consistent statements). The fact that the statements were made by Gentry’s coconspirators and were not corroborated by physical evidence does not render the statements inherently unreliable, and Gentry has failed to proffer competent rebuttal evidence to demonstrate that they are materially untrue. See United States v. Gomez-Alvarez, 781 F.3d 787, 796 (5th Cir. 2015).

( Marijuana Butter Weighed as a Whole. United States v. Koss, __ F.3d __ (5th Cir. Jan. 5, 2016)(14-51173): PO’s use of entire weight of marijuana butter upheld. This is not to say that following the plain language of the Guidelines in this case does not lead to a harsh result. As Koss repeatedly urged at sentencing, we recognize the harshness that results from application of the 1:167 gram ratio, which is the stiffest penalty in the Drug Equivalency Table for Schedule I Marijuana, to homemade marijuana-edibles like the marijuana butter involved in the offenses with which Koss was charged. But, harshness without ambiguity does not require application of the rule of lenity, nor should it trigger an analysis of the Guidelines’ scientific bases and empirical precision.8 Cf. Albernaz v. United States, 450 U.S. 333, 342 (1981) (“The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” (internal quotation marks and citation omitted)). The language of § 2D1.1 and its commentary is clear and unambiguous in applying the 1:167 gram ratio to marijuana-edibles like the marijuana butter that are mixtures or substances containing a detectable amount of THC. Unless and until the Sentencing Commission finds it appropriate to punish marijuana-edibles less harshly, this unambiguous language controls regardless of the harshness of resulting sentences.

( Validity and Extraterritoriality of 21 U.S.C. §§ 959 and 963, Conspiracy to Import. United States v. Villegas – Robas, __ F. 3d __ (5th Cir. Jan. 28, 2016)(13-40998): Cabalcante and Piñeda challenge the constitutionality of 21 U.S.C. §§ 959 and 9631 and argue that these statutes do not substantively reach extraterritorial acts. In their briefs, Cabalcante and Piñeda characterize this argument as a challenge to the district court’s subject-matter jurisdiction. They also contend that, because jurisdictional issues may be raised at any time, this court should review their “jurisdictional” issue de novo. See United States v. Kaluza, 780 F.3d 647, 653 (5th Cir. 2015). But the question “whether a statute applies extraterritorially is a question on the merits rather than a question of a tribunal’s power to hear the case.” Villanueva v. U.S. Dep’t of Labor, 743 F.3d 103, 107 n.4 (5th Cir. 2014) (citing Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010)); accord United States v. Delgado–Garcia, 374 F.3d 1337, 1341–42 (D.C. Cir. 2004) (explaining that the defendants’ argument that the statute of conviction did not apply extraterritorially did not deprive the district court of subject-matter jurisdiction). So we do not automatically review de novo. The defendants did not challenge the extraterritorial application or the constitutionality of these statutes in the district court.

Cabalcante and Piñeda challenge the constitutionality of 21 U.S.C. §§ 959 and 963, arguing that Congress lacked power to enact them under either the Offences Clause or the Commerce Clause. Congress enacted both provisions as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, using its Commerce Clause power, not its Offences Clause power. See 21 U.S.C. § 801(3). The Act has been upheld several times as a valid exercise of Congress’s commerce power. See United States v. Perez–Herrera, 610 F.2d 289, 292 (5th Cir. 1980) (holding in a case challenging § 963 that “[t]he legislative history of the Act indicates a real concern on the part of Congress that the illegal importation of narcotics has a ‘substantial and direct’ effect on interstate and foreign commerce”); United States v. Martinez, 481 F.2d 214, 221 (5th Cir. 1973) (holding that a constitutional attack on the Act was “without merit”); accord United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir. 1973) (characterizing the Act as “a cohesive statutory system rooted the United States law, not just that we enforce our law anywhere.” This argument was related to the sufficiency of the evidence; it was not a challenge to the constitutionality or extraterritorial application of 21 U.S.C. §§ 959 and 963 in Congress’ powers to regulate interstate and foreign commerce”); cf. also United States v. Lawrence, 727 F.3d 386, 396-97 (5th Cir. 2013) (upholding § 959(b) as a valid exercise of Congress’s treaty-making power under the Necessary and Proper Clause and, in particular, its power to enforce the Single Convention on Narcotic Drugs, of which the United States was a party). Thus, Cabalcante and Piñeda’s constitutional challenge fails. Extraterritoriality

We turn next to whether 21 U.S.C. §§ 959 and 963 reach extraterritorial acts. This question requires us to consider the presumption against extraterritorial application of United States law, whether extraterritorial application is consistent with international law, and the demands of constitutional due process. Generally, there is a presumption against the extraterritorial application of United States law. See Kiobel v. Royal Dutch Petrol. Co., 133 S. Ct. 1659, 1664 (2013). But that presumption is overcome when “a statute gives . . . clear indication of an extraterritorial application.” Id. Here, 21 U.S.C. § 959, which concerns manufacture and distribution of cocaine with the intent to import, expressly states that the statute “is intended to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States.” 21 U.S.C. § 959(c); see United States v. Villanueva, 408 F.3d 193, 199 (5th Cir. 2005) (“Congress intended that the prohibition of attempts to import drugs should apply to attempts made wholly outside of our borders.” (quoting Perez–Herrera, 610 F.2d at 291)). In contrast, 21 U.S.C. § 963, which concerns importation of cocaine, lacks explicit language indicating that Congress intended for it to apply extraterritorially. But we have addressed the same issue in a previous case and held that Congress did so intend. Lawrence, 727 F.3d at 395. Thus, the presumption against extraterritoriality is overcome for both statutes. Extraterritorial application must also be consistent with international law. See id. at 394. “The law of nations permits the exercise of criminal jurisdiction by a nation under five general principles[:] . . . the territorial, national, protective, universality, and passive personality principles.” Id. (citation omitted). The government argues that the criminalization of the defendants’ conduct is justified under the protective and territorial principles. Under the protective principle, a country can “enforce criminal laws wherever and by whomever the act is performed that threatens the country’s security or directly interferes with its governmental operations.” Id. at 395. In Lawrence, we held that the protective principle justified the extraterritorial application of 21 U.S.C. § 959(b), which criminalizes the manufacture, distribution, or possession of a controlled substance by “any United States citizen on board any aircraft, or any person on board an aircraft owned by a United States citizen or registered in the United States,” because “Congress has demonstrated . . . that it considers the international drug trade to be a major threat to the safety of the United States.” Id. at 391, 395. Lawrence does not directly control this appeal, which concerns a different subsection of the statute—21 U.S.C. § 959(a), not § 959(b)—and which, unlike Lawrence, does not involve United States citizens.

( 404B Materials Not Limited to Matters with Same Elements—e.g. prior drug conviction is relevant for drug conspiracy. A prior convictions for drug possession or manufacturer is probative of D’s intent for conspiracy to distribute. United States v. Gadison, 8 F.3d 186 (5th Cir. 1993). The Constitution does not require prior convictions be treated like offense elements even where they raise statutory minimum. United States v. Almendarez v. Torres, 523 U.S. 224 (1998). This case was not overruled by

Alleyne v. United Staes, 133 S. Ct. 2151 (2013).

( No Longer Differences in USSG for Various Types of Meth. United States v.

Ramirez-Olvera, __ F.3d __ (5th Cir. (9-22-2015, revised October 26, 2015)(1411276):

The district court did not err by failing to distinguish between d-methamphetamine and l-methamphetamine when calculating the quantity of methamphetamine (actual) attributable to him. …

D-methamphetamine and l-methamphetamine are “stereoisomers of methamphetamine; they consist of identical molecules differently arranged.” United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). Unlike d-methamphetamine, l-methamphetamine “produces little or no physiological effect when ingested.” Id. (citation and internal quotation marks omitted). The sentencing guidelines provide a base offense level of 38 for an offense involving 4.5 kilograms or more of methamphetamine (actual); they do not explicitly distinguish between d- and l-methamphetamine. U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2014).

A 1995 amendment to § 2D1.1 indicates that courts need not distinguish between d-methamphetamine and l-methamphetamine when determining the quantity of methamphetamine (actual) attributable to a defendant. That amendment—Amendment 518—altered the drug equivalency table in § 2D1.1. Before the amendment, the table distinguished between methamphetamine, methamphetamine (actual), ice, and l-methamphetamine by assigning each substance a different marihuana-equivalent. See U.S. Sentencing Guidelines Manual, § 2D1.1, cmt. n.10 (Nov. 1995). Amendment 518 deleted the table’s reference to l-methamphetamine. See id. app. C, vol. I, amend. 518 (Nov. 1995). The Sentencing Commission explained the amendment as follows:

[T]his amendment deletes the distinction between d- and l-methamphetamine in the Drug Equivalency Tables in the Commentary to § 2D1.1. L-methamphetamine, which is a rather weak form of methamphetamine, is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-methamphetamine. Under this amendment, l-methamphetamine would be treated the same as d-methamphetamine (i.e., as if an attempt to manufacture or distribute d-methamphetamine). Currently, unless the methamphetamine is specifically tested to determine its form, litigation can result over whether the methamphetamine is l-methamphetamine or d-methamphetamine. . . . Under this amendment, all forms of methamphetamine are treated alike, thereby simplifying guideline application. Id.

In an unpublished opinion, we have relied on Amendment 518 to hold that “any distinction” between d-methamphetamine and l-methamphetamine is now “immaterial” when calculating drug quantity under the guidelines. United States v. Beltran, 91 F. App’x 349 (5th Cir. 2004). We conclude that, in light of Amendment 518, the district court did not need to distinguish between d-methamphetamine and l-methamphetamine when calculating the quantity of methamphetamine (actual) attributable to Ramirez-Olvera.

( Enhancement due to Importation of Meth. United States v. Cadena, (5th Cir. March

16, 2016)(15-10406): Cadena’s complaint about the district court’s imposition of the two guideline enhancements is a challenge to the procedural reasonableness of his sentence. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). “[The] district court’s interpretation or application of the Sentencing Guidelines is reviewed de novo, and its factual findings . . . are reviewed for clear error.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) Facts used to determine a sentence must be supported “by a preponderance of the relevant and sufficiently reliable evidence.” United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013) (internal quotation marks and citation omitted). As long as a factual finding is plausible in light of the record as a whole, it is not clearly erroneous and should be upheld. Id. at 618. Pursuant to U.S.S.G. § 2D1.1(b)(5), a two-level upward adjustment should be assessed if the offense of conviction “involved the importation of amphetamine or methamphetamine.” This enhancement applies “regardless of whether the defendant had knowledge of that importation.” United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012). Cadena advances that the enhancement may only be applied if (1) importation qualifies as relevant conduct and (2) U.S.S.G. § 1B1.3 requires his personal involvement in the importation or his reasonable foreseeability that the methamphetamine would be or was imported. He contends that such requirements cannot be satisfied in this case. That argument is foreclosed by Serfass. 684 F.3d at 552; see United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014) (defendant need not know of or participate in importation) (citing Serfass, 684 F.3d at 549-50, 553-54). r

( Drug Analogues. The controlled-substance analogue statute, 21 U.S.C. § 813, is “clearly and specifically defined, in terms readily comprehensible to the ordinary reader”

and “provides adequate notice of what conduct is prohibited” and, therefore, is not unconstitutionally vague. United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990)..

( McFadden v. United States, 135 S. Ct. 2298 (2015): held that to be convicted under the Analogue Act, 21 U.S.C. § 813, and the Controlled Substances Act, 21 U.S.C. § 841(a)(1), which the Analogue Act incorporates by reference, “the Government must prove that a defendant knew that the substance with which he was dealing” was a CSA. Thus, jury instructions that fail to incorporate that element of knowledge are error, subject to harmlessness analysis. McFadden, 135 S. Ct. at 2307. McFadden outlined two ways to prove knowledge that a substance is a CSA. First, knowledge “can be established by evidence that a defendant knew that the substance with which he was dealing is some

controlled substance—that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act—regardless of whether he knew the particular identity of the substance.” McFadden, 135 S. Ct. at 2305. In other words, if a defendant “know[s] that the white powder [he is distributing] is listed on the schedules even if he does not know precisely what substance it is,” he is “guilty of knowingly distributing ‘a controlled substance.’” Id. at 2304. Because there is little doubt that Stanford knew that the conspiracy was dealing AM-2201, this method of proof appears inapt. The second method of proof of knowledge “can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.” Id. at 2305. The Analogue Act defines a controlled substance analogue by its features, as a substance “the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II”; “which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than” the effect of a controlled substance in schedule I or II; or which is represented or intended to have that effect with respect to a particular person. Id. (quoting 21 U.S.C. § 802(32)(A)). Thus, “[a] defendant who possesses a substance with knowledge of those features knows all of the facts that make his conduct illegal . . . .” Id. He “need not know of the existence of the Analogue Act to know that he was dealing with ‘a controlled substance.’” Id. In other words, if Stanford knew that AM-2201 was substantially similar to JWH-018 in its chemical structure and produced a substantially similar “high,” he had the requisite knowledge that AM-2201 was a CSA. There is little doubt that this is a significantly greater burden of proof than just demonstrating that he knew the conspirators were distributing AM-2201 and that AM-2201 was in fact a CSA.

( United States v. Stanford, __ F.3d __ (5th Cir. 5-18-2016)(15-30127). Accord.

( Drug Analogues—Computing analogues not in USSG—Standard of Review.

( Significant Decision: United States v. Malone, __F.3d ___ (5th Cir. Dec. 11, 2015)(14-31426)( conspiracy to distribute and possess with the intent to distribute AM-2201, a controlled substance analogue, one count of conspiracy to introduce and cause to be introduced misbranded drugs into interstate commerce, and one count of conspiracy to commit money laundering):

( 1 U.S.S.G. § 2D1.1 cmt. n.6: Because AM-2201 is not listed in either the Drug Quantity Table or the Drug Equivalency Tables, the PSRs had to “determine the base offense level using the marihuana equivalency of the most closely related controlled substance” to AM-2201.1 The Sentencing Guidelines require that three factors guide this inquiry:

(A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline.

(B) Whether the controlled substance not referenced in this guideline has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline.

(C) Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the central nervous system as a controlled substance referenced in this guideline.

( Proper Standard of Scientific Evidence Review in Sentencing. Ds challenge the district court’s conclusion that THC is the “most closely related controlled substance” to AM-2201. Like Dr. Cozzi, they criticize the animal studies cited by Dr. Trecki as unreliable and incapable of providing meaningful insight into the effects of AM-2201 on human users. Moreover, Appellants argue that this Court explicitly endorsed their arguments in Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir. 1996). In Allen, this Court concluded that the animal studies relied upon by the plaintiffs were “unreliable” and incapable of “furnish[ing] a scientifically valid basis for the conclusion” that the plaintiffs wished to draw.10 In effect, Appellants ask us to do the same here. We decline to do so. Allen concerned the admission of expert testimony at trial—this is a sentencing case. “[T]he appropriate standard regarding the admissibility of evidence at sentencing is substantially lower than governing admissibility at trial.” United States v. McCaskey, 9 F.3d 368, 380 (5th Cir. 1993) (per curiam). Under the Sentencing Guidelines, evidence admitted during sentencing need not meet the Daubert standard; Id., rather it need only have “sufficient indicia of reliability to support its probable accuracy.” 3 U.S.S.G. § 6A1.3(a). “This court has interpreted subsection 6A1.3(a)’s ‘sufficient indicia of reliability’ language ‘to require that the facts used by the district court for sentencing purposes be reasonably reliable’” United States v. Cabrera, 288 F.3d 163, 170 (5th Cir. 2002) (per curiam) (quoting United States v. Rogers, 1 F.3d 341, 343-44 (5th Cir. 1993)).—a standard not intended to be onerous. “Even uncorroborated hearsay evidence,” for instance, “may be sufficiently reliable.” United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) The studies relied upon by Dr. Trecki undoubtedly meet this bar. There is no dispute that these studies were conducted by professional scientists using established methods and many were subjected to peer review. This is more than enough to qualify them as “reasonably reliable.”

( Discretion to Vary. Appellants’ next claim is that the district court did not recognize its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to vary from the 1:167 ratio for converting THC into marijuana. In Kimbrough, the Supreme Court held that district courts have discretion to vary from the Sentencing Guidelines based solely upon policy disagreement. 552 U.S. 85, 109 (2007); see also Spears v. United States, 555 U.S. 261, 264 (2009) (per curiam) (“That was indeed the point of Kimbrough: a recognition of district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them . . . .”). And a defendant “is entitled to have his sentence set by a judge aware of the discretion that Kimbrough has announced.” United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008). That is, a district judge is never required to vary under Kimbrough, but every defendant is entitled to be sentenced by a judge who knows that she could vary under Kimbrough if she was so inclined. This Court has reaffirmed this holding on several occasions. See, e.g., United States v. Clay, 787 F.3d 328, 332 (5th Cir. 2015); United States v. Garcia, 655 F.3d 426, 432-34 (5th Cir. 2011). (Court talks about it is unclear if trial court decided the sentence

Under Kimbrough discretion. We need not decide that issue.) Harmless error review applies when a district court fails to recognize its authority to vary under Kimbrough.

See, e.g., United States v. Clay, 787 F.3d 328, 332 (5th Cir. 2015); United States v. Garcia, 655 F.3d 426, 432-34 (5th Cir. 2011).

( 5K1 Departures Require Assistant Related Concerns. Appellants’ third claim is that the district court considered non-assistance-related factors in reducing the extent of their § 5K1.1 departures. In United States v. Desselle, 9 450 F.3d 179, 182 (5th Cir. 2006), this Court held “that the extent of a § 5K1.1 or § 3553(e) departure must be based solely on assistance-related concerns. …. Conceding that the district court considered non-assistance-related factors, the Government asserts that Desselle should be read as imposing a “one-way ratchet.”40 That is, the Government argues that Desselle only prohibits a district court from considering non-assistance-related factors when increasing the extent of a defendant’s § 5K1.1 departure, not when limiting the extent of a defendant’s § 5K1.1 departure. Although this argument may find support in case law from other circuits, it finds none in this Court’s case law. In Desselle, this Court reasoned that the plain language of § 5K1.1 prohibits a district court from considering non-assistance-related factors in determining the extent of a § 5K1.1 departure. There is nothing in the plain language of § 5K1.1 that hints at any distinction between increasing and decreasing the extent of a § 5K1.1 departure. The relevant portions of this provision are phrased in absolute terms—just like this Court’s holding in Desselle. Accordingly, we are bound by this Court’s previous statement of the law.

( Drug Equivalency. United States v. McClure, (5th Cir. July 27,2017)(16-50535):

Because methylone is not specifically referenced in U.S.S.G. § 2D1.1(c), in calculating the guidelines range, the district court determined that MDMA was the most closely related controlled substance and therefore applied MDMA’s 500:1 drug equivalency ratio. On appeal, McClure contends that the district court did not recognize its authority to reject the 500:1 ratio and vary below the calculated guidelines range on that basis. Although McClure objected to the court’s use of the 500:1 ratio, he did not object to the district court’s explanation for denying his objection or otherwise suggest that the court had failed to recognize its discretion to grant a variance on that specific basis. Therefore, we review the forfeited objection under the plain error standard.

( Facilitating a Drug Offense Through Communication Devices.in violation of

21 USC 843(b). United States v. Martinez-Vidana, __ F.3d __ (5th Cir. June 9, 2016)

(15-40470): argues that § 843(b) proscribes conduct that falls outside the generic definition of a drug trafficking offense and that Descamps v. United States, 133 S. Ct. 2276 (2013), forecloses the modified categorical approach of Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), because the nature of the underlying drug crime is not an element of a § 843(b) offense that a jury must find beyond a reasonable doubt. The modified categorical approach is applied only to “divisible” statutes, i.e. those that “set[] out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.” Descamps, 133 S. Ct. at 2281.. If, as Martinez-Vidana argues, the drug crime underlying a § 843(b) conviction is found by a preponderance of the evidence rather than beyond a reasonable doubt, then it is not an “element” of a § 843(b) offense, rendering the statute indivisible and prohibiting use of the modified categorical approach. See id. at 2288 (“[T]he only facts the court can be sure the jury [found beyond a reasonable doubt] are those constituting elements of the offense.”). We review Martinez-Vidana’s claim for plain error only as he did not raise it in the district court. See United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). “…. There is no error. Two prior unpublished decisions of this circuit have held, in cases substantively identical to the instant one, that the district court did not commit plain error because the appellant’s argument relies an extension of Descamps. See United States v. Madrigal-Solorio, 633 Fed. App’x 278 (5th Cir. 2016); United States v. Vilema-Esquivel, 616 Fed. App’x 169 (5th Cir. 2015). We now hold precedentially that applicable law forecloses Martinez-Vidana’s argument. Martinez-Vidana’s argument turns on the proposition that proof of the drug offense underlying a § 843(b) facilitation offense need only be established by a preponderance of the evidence. He cites United States v. Rey, 641 F. 222, 224 n.6 (5th Cir. Unit A March 1981), for this proposition. Rey and other precedent establish that the underlying drug offense is an element of the facilitation offense. See, e.g., United States v. Powell, 469 U.S. 57, 60 n.4, 105 S. Ct. 471, 474 n.4 (1984) (“The lower courts seem to agree that the Government must prove, as an element of a § 843(b) offense, the commission of the felony that the accused is charged with facilitating.”); United States v. Mankins, 135 F.3d 946, 949 (5th Cir. 1998) (facilitation element “requires proof of the underlying drug offense that the defendant is accused of facilitating, even though it is not separately charged”). The Supreme Court in Gaudin made clear, however, that all elements of a crime must be proven beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313 (1995). To that extent, Rey has been overruled. The Fifth Circuit pattern jury charge, in accord with this conclusion, instructs the jury that in order to find the defendant guilty of violating § 843(b) it “must be convinced that the government has proved . . . beyond a reasonable doubt . . . [t]hat the defendant used the ‘communication facility’ with the intent to commit [facilitate the commission of] [cause the commission of] the felony offense of ————— (describe the offense, e.g., possession with intent to distribute a controlled substance), as that offense has been defined in these instructions.” Fifth Cir. Pattern Crim. Jury Instruction § 2.94 (2015) (emphasis added). Because the underlying drug offense must be proven beyond a reasonable doubt, there is no question that it is an “element” for purposes of Descamps, rendering § 843(b) divisible and allowing the application of the modified categorical approach. Because the district court did not err legally, there is no basis for finding plain error, and the court’s sentence is AFFIRMED.

( Drug Importation. The § 2D1.1(b)(5) enhancement for imported drugs applies “regardless of whether the defendant had knowledge of that importation.” United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012). Thus, D’’s argument that she had no knowledge of the importation of the drugs is foreclosed by binding precedent which we decline to revisit herein. Id.; As for Croxton’s argument that the enhancement should only be applied if the importation qualifies as relevant conduct under § 1B1.3, this court has held that “distribution (or possession with intent to distribute) of imported methamphetamine, even without more, may subject a defendant to the § 2D1.1(b)(5) enhancement.” United States v. Foulks, 747 F.3d 914, 915 (5th Cir. 2014). Because the methamphetamine Croxton possessed was imported from Mexico, the enhancement was properly applied. See id.

( Cumulating Amount of Drugs. A defendant convicted of a drug offense is sentenced based on the amount of drugs involved in the offense, with quantities of drugs from multiple transactions added together. United States v. Culverhouse, 507 F.3d 888, 895

(5th Cir. 2007). A district court’s determination of the amount of drugs for which a defendant should be held responsible is a factual finding which we review for clear error. United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir. 1998).

( Amount of drugs intended for personal use: A district court’s calculation of the

quantity of drugs involved in an offense is a factual finding that is entitled to considerable deference, see United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.

2005), and will be reversed only if clearly erroneous. Id.; see also United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005). A factual finding is not clearly erroneous if

it is plausible in light of the record as a whole. Betancourt, 422 F.3d at 246. When

calculating the total drug amounts attributable to a defendant through his course of

conduct, direct evidence is unnecessary. Id. Drug estimates may be calculated based

on extrapolating from “any information that has sufficient indicia of reliability to support its probable accuracy . . . even hearsay.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and citation omitted). The district court may rely upon information provided by codefendants and other witnesses, provided the information bears the minimum indicia of reliability. See United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). Further, the district court may adopt the factual findings in the presentence report (PSR) if those findings bear sufficient indicia of reliability to support their probable accuracy. Valdez, 453 F.3d at 262. The defendant bears the burden of showing through rebuttal evidence that the information in the PSR is materially untrue. Id.

( No clear error in the district court’s finding that defendant was a drug dealer in

possession of trafficking proceeds. See United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).

( Drug Transactions without Renumeration Not a 2L1.2 Offense.

US v. Martinez-Lugo, No. 13-40924 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa)

At long last, the Fifth Circuit finally had to address whether a § 2L1.2 drug trafficking offense (DTO) includes giving away drugs without remuneration.  After rejecting similar arguments raised by defendants on plain error review, the panel resolved this question in Martinez-Lugo’s favor, albeit by a split panel. 

Martinez-Lugo’s conviction was under Georgia Code Annotated section 16-13-30(j)(1), the same statute at issue in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  In Moncrieffe, the Supreme Court held that the conviction was not an aggravated felony—illicit trafficking in a controlled substance, defined in part as a felony under the Controlled Substance Act (CSA)—because the CSA treats distribution of a small amount of marijuana for no remuneration as a misdemeanor.  

Section 2L1.2 does not define a DTO other than in the Application Notes, and the Application Note definition does not refer to the CSA.  So, the holding of Moncrieffe does not control. Nevertheless, the majority relies on Moncrieffe’s language that “the everyday understanding of ‘trafficking[]’ ordinarily . . . means some sort of commercial dealing.”  Since the Application Note definition of DTO, which includes “possession . . . with intent to distribute” would conflict with the common understanding of the term “trafficking” if distribution did not require remuneration, the panel only applies the language of the § 2L1.2 guideline and finds that Martinez-Lugo’s conviction for an offense that could include giving away marijuana cannot support the 16-level enhancement.

Judge Costa dissents, urging the “straightforward result” that flows from the § 2L1.2 Application Note definition of a DTO.  Since Martinez-Lugo was convicted of possession with intent to distribute, Judge Costa maintains the 16-level enhancement applies.

( Importation. Importation of a controlled substance “is a continuous crime that is not complete until the controlled substance reaches its final destination point.” United States v. Gray, 626 F.2d 494, 498 (5th Cir. 1980); United States v. Rodriguez, __ F.3d ___ (5th Cir. Jan. 5, 2012)(11-10171)( Even if we accept Rodriguez’s narrower interpretation of “importation,” it means only that she did not import the drugs, not that her possession

did not involve importation.)

( Importation USSG § 2D1.1(b)(5). United States v. Foulks¸__ F.3d ____

(5th Cir. March 10, 2014)(13-10399)(Meth Case). Court imposed a two-level enhancement pursuant to § 2D1.1(b)(5), USSG, which applies if, inter alia, the offense “involved the importation of . . . methamphetamine.” Aff’d. In United States v. Rodriguez, 666 F.3d 944, 946 (5th Cir. 2012), we explained that “[t]he scope of actions that ‘involve’ the importation of drugs is larger than the scope of those that constitute the actual importation.” We concluded that the defendant’s “proximity, familiarity, and repeated business with the importers justifie[d] the enhancement.” Id. at 946-47. Based on Rodriguez, Foulks argues that the enhancement applies only if a defendant

has “proximity, familiarity, and repeated business with the importers.” However, Rodriguez did not hold that these factors were required. More importantly, in Serfass we held that the enhancement applied to a defendant who possessed and distributed imported methamphetamine, even absent any showing that he knew it was imported. See 684 F.3d at 549-50, 553 (“[A] defendant who possesses ethamphetamine that had itself been unlawfully imported is subject to the enhancement, whether or not he knew of that importation.”). Furthermore, we applied the enhancement even though the person from whom the defendant purchased the methamphetamine had not personally imported it. See id. at 553-54. We now make explicit what was at least implied in United States v. Serfass, 684 F.3d 548, 550 (5th Cir.), cert. denied, 133 S. Ct. 623 (2012). , and what has been recognized in at least two of our subsequent unpublished opinions and by the Ninth Circuit: distribution (or possession with intent to distribute) of imported methamphetamine, even without more, may subject a defendant to the § 2D1.1(b)(5) enhancement. See United States v. Rodden, 481 F. App’x 985, 985 (5th Cir. 2012) (“The fact that the methamphetamine was imported was enough to warrant the

enhancement.”); United States v. Castillo, 536 F. App’x 500, 501 (5th Cir. 2013);

United States v. Biao Huang, 687 F.3d 1197, 1206 (9th Cir. 2012) (“[A] defendant need not be personally involved in the importation of illegal drugs to receive an enhancement under § 2D1.1(b)(5); it is enough for the government to show that the drugs were imported.”). Because the methamphetamine Foulks possessed was imported from Mexico, the enhancement was properly applied. The judgment of the district court is AFFIRMED.

( Bogus Substance as Drugs (Turkey Drugs). United States v. Ward, (5th Cir. Aug. 6, 2012)(10-60992): Defendants principally argue that the trial evidence was insufficient to support their convictions because it showed only that they intended to defraud purchasers by selling them bricks of fake cocaine made of Bisquick. Yet the trial evidence revealed that, to entice prospective buyers to purchase the fake cocaine, the defendants intended to distribute samples of real cocaine. Accordingly, we AFFIRM. … an intention to distribute a sample of real cocaine is still an intention to distribute real cocaine. Conspiracy to possess and possession with intent to distribute any amount of cocaine, however small, is punishable under 21 U.S.C. §§ 841 and 846. See United States v. Pineiro, 377 F.3d 464, 466 (5th Cir. 2004) (noting that § 841(b)(1)(C) establishes maximum sentences for any amount of cocaine less than 500 grams), vacated on other grounds by Pineiro v. United States, 543 U.S. 1101 (2005). In United States v. Gordon, for example, this court relied on a sample to uphold the defendants’ convictions for knowingly distributing cocaine, in violation of § 841(a)(1), against a sufficiency of the evidence challenge. 876 F.2d 1121, 1124–25 (5th Cir. 1989). Although the defendants in Gordon argued that they had not delivered the 500 grams of cocaine charged in the indictment, we found that they had delivered a sample of that cocaine to a special agent posing as a cocaine buyer, and we concluded that the mere provision of the sample was enough to sustain their convictions

for simple distribution. Id. at 1125 (“[Q]uantity is not an element of the crimes

proscribed by §§ 841(a)(1) and 846 and need only be proved when the

Government seeks an enhanced penalty.”)

( Law Enforcement Exception. United States v. Wright, __ F.3d __ (5th Cir. Feb. 23, 2011)(09-30763). Wright argues that he is immune from prosecution under the Controlled Substances Act (“CSA”), 21 U.S.C. § 885(d), for his attempt to buy narcotics because he was then a deputy sheriff with the East Baton Rouge Parish Sheriff’s Office (“EBRSO”) and was “lawfully engaged in the enforcement of” the controlled substance laws. Wright asserts that the district court abused its discretion when it instructed the jury that Wright could be found not guilty only if he was authorized by an appropriate official to participate in the activity charged in the indictment and when it granted the

government’s motion in limine excluding evidence of Wright’s prior assistance

with narcotics investigations. Section 885(d) does not give blanket immunity to Wright, who was not authorized to procure controlled substances outside of his role as a jailer at the parish prison, and the district court did not err in instructing the jury that Wright needed authorization to commit the conduct charged in the indictment in order to claim the defense.

( Computing Liquid Methamphetamine. United States v. Davalos-Cobian (5th Cir. Dec. 20, 2017)(16-11693).

( US Need Not Prove Specific Knowledge. Knowledge of drug type or quantity is not an element of an offense under 21 U.S.C. § 841). United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003). Upheld despite Flores-Figueroa v. United States, 556 U.S. __ (2009)(identify theft case) in United States v. Goodman, (5th

Cir. Dec. 331, 2009)(09-40210)(unreported). United States v. Betancourt, 586

F.3d 303, 308-09 (5th Cir. 2009), which reaffirmed the holding in United States

v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003), that knowledge of drug

type and quantity is not an element of the offense under 21 U.S.C. § 841

( United States v. Medeles-Cab, __ F.3d ___ (5th Cir. June 11, 2014)(13-40540):

United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), held that the knowledge element in § 841(a)(1) does not apply to the type and quantity of drugs listed in § 841(b)(1)[kilo heroin, 5 kilos cocaine, 1,000 K MJ]( subsection (b) does not make Gamez'sknowledge of drug type or quantity an element of the   841 offense." Id. (emphasis in original). Instead, the penalty is " based solely on the type and quantity involved in the unlawful act.)

( To prove possession with intent to distribute, the government was required to show that Anele knowingly possessed the cocaine with the intent to distribute it. Moreno, 185 F.3d at 471. To prove Anele’s knowledge, the government adduced evidence from which the jury could conclude that Anele claimed the luggage as his own and took responsibility for its contents. Although he was informed that he was under arrest for possession of cocaine, Anele showed no shock or surprise. These factors support an inference of knowledge. See id. In addition, evidence showing that the cocaine had a potential value of $300,000 supported an inference of Anele’s knowledge as well as an inference of an intent to distribute the cocaine. See United States v. Garcia, 567 F.3d 721, 732 (5th

Cir.) (noting that value and quantity support an inference of an intent to distribute), cert. denied 130 S. Ct. 303 (2009); United States v. Villareal, 324 F.3d 319, 324 (5th Cir. 2003) (noting that value and quantity support an inference that drugs were not entrusted to an unknowing courier). The government also adduced extensive circumstantial evidence, including travel itineraries and financial information, to support its contention that Anele and his wife earned money by carrying cocaine from Houston to London while

on their way to Nigeria. Although Anele attempted to chip away piecemeal at the government’s case, for example by arguing that there were innocent explanations for his travels, the jury was free to find the government’s evidence credible. United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).

( See United States v. Garcia, 567 F.3d 721, 732 (5th Cir.) (noting that value and quantity support an inference of an intent to distribute), cert. denied 130 S. Ct. 303 (2009); United States v. Villareal, 324 F.3d 319, 324 (5th Cir. 2003) (noting that value and quantity support an inference that drugs were not entrusted to an unknowing courier).

( Defendant contends that the government was obligated to prove that he knew the drug type and quantity he possessed. This contention is foreclosed by United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009).

( “The knowledge element in a possession case can rarely be established by direct evidence.” United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999). Knowledge may be inferred from control of a vehicle in which drugs are found, but only if “the drugs are clearly visible or readily accessible.” United States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1998). If the drugs are concealed or otherwise out of plain sight, as in this case, control of the vehicle alone is not sufficient to prove knowledge. Id. In such cases, “this Court requires other circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.” United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008) (internal quotation marks and citation omitted). Factors indicating guilty

knowledge include nervousness, inconsistent statements, implausible explanations, possession of large amounts of cash, ownership or long-term possession of the vehicle or item containing the contraband, and the value of the contraband. See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003); United States v. Moreno, 185 F.3d 465, 472 & n.3 (5th Cir. 1999); Pennington, 20 F.3d at 598.

( Drug offense guideline, U.S.S.G. § 2D1.1: We note that in response to Anders motions filed by Garrett’s appointed counsel we ordered that counsel address the impact of recent amendments to § 2D1.1(c). The federal public defender appointed in place of Garrett’s previous counsel has not briefed that issue. United States v. Garrett, 318 Fed.

App’x 394 (5th Cir. 2009)(07-50454)(March 31, 2009).

( Knowledge of Quantity/Type Drug. “Knowledge of the drug type and quantity is not an element that must be . . . proved” beyond reasonable doubt under 21 U.S.C. § 841. United States v. Gamez-Gonzales, 319 F.3d 695, 700 (5th Cir. 2003); United States v. Betancourt, 586 F.3d 303 (5th Cir. Oct. 9, 2009)(It only requires “knowingly … to possess a controlled substance.) The penalty portion of § 841(b)(1) sets forth the type

and quantity of drugs for punishment but this does not have a knowledge requirement.

United States v. Medeles-Cab, __ F.3d __ (5th Cir. June 11, 2014)(13-40375) subsection (b) does not make Gamez'sknowledge of drug type or quantity an element of the   841 offense." Id. (emphasis in original). Instead, the penalty is " based solely on the type and quantity involved in the unlawful act..

( Drug Smuggling Terms. United States v. Garcia-Martines, (5th Cir. Sept. 8, 2015)

(14-50579):

--pack, back pack, sign, cutting sign, MOCHILA (Spanish for backpack)

( Background Info of Officer. United States v. Gonzalez-Rodriguez, 621 F.3d 354 (5th Cir. 2010). It was harmless error for judge to let DEA case agent to go beyond background type testimony into impermissible drug-courier profile evidence or ultimate issue of knowledge.

( United States v. Medeles-Cab, __ F.3d __ (5th Cir. June 11, 2014)(13-40375):

Possession is Not LIO of Distribution. United States v. Ambriz, __ F.3d __ (5th Cir. Aug. 16, 2013)(12-50839): We join the Sixth, Seventh, and Tenth Circuits in

concluding that simple possession of a controlled substance in violation of

§ 844(a) is not a lesser-included offense of distribution of a controlled substance

in violation of § 841(a)(1). See United States v. Colon, 268 F.3d 367, 377 (6th Cir.

2001) (“We agree with the reasoning of [other circuit] courts and now join them

in holding that simple possession is not a lesser-included offense of distribution

of a controlled substance. . . . [I]t is possible to commit the “distribution”

element of the crime without possessing the drugs themselves.”); United States

v. Barrientos, 758 F.2d 1152, 1158 (7th Cir. 1985) (“The judge in this case found

that there was insufficient evidence on which to base an instruction on

possession. This finding accords with the general understanding that possession

is not a necessary element of a distribution charge.”); United States v. Jackson,

213 F.3d 1269, 1296–97 (10th Cir. 2000), judgment vacated on other grounds,

531 U.S. 1033 (2000) (“[I]t does not follow that simple possession is a lesser

included offense of distribution under 21 U.S.C. § 841(a)(1). . . . Although it may

be unusual for a person to distribute a controlled substance without at least momentarily possessing the controlled substance, it is not impossible.”). Accordingly, the district court did not err in denying Ambriz’s request for a lesser-included offense jury instruction

Constructive possession is the “ownership, dominion, or control over . . . contraband, or . . . dominion over the premises in which the contraband is found.” United States v. Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003) (citations omitted). “Distribution,” on the other hand, includes acts “in furtherance of transfer or sale, such as arranging or supervising the delivery.” United States v. Suarez, 155 F.3d 521, 525 (5th Cir. 1998) (citing United States v. Lechuga, 888 F.2d 1472, 1478 (5th Cir. 1989)).

We have held that distribution “is broad enough to include acts that traditionally perhaps would have been defined as mere aiding and abetting.” United States v. Oquendo, 505 F.2d 1307, 1310 n.1 (5th Cir. 1975).

( Aid and Abet on weapons under 924(c): The U.S. Supreme Court Wednesday (3-4-2014) in Rosemond v. United States, clarified what is required to obtain a conviction for aiding and abetting a violation of 18 U.S.C. 924(c), which prohibits carrying or carrying a firearm in  connection with a drug trafficking crime or violent crime. The court held that the government can prove that a defendant aided and abetted a violation of Section 924(c) with evidence that the defendant had advance knowledge that someone with whom the defendant was going to commit a violent crime or drug trafficking crime was planning to carry a gun.

( Weapons Enhancement. A § 2D1.1 enhancement is appropriate if a weapon is present “unless it is clearly improbable that the weapon was connected with the offense.”

U.S.S.G. § 2D1.1, comment 3. In United States v. McKeever, this Court affirmed a § 2D1.1 enhancement even though the weapons were not in the same room as the drugs: “While it is true that none of these weapons was discovered in the laboratory area, the judge was entitled to infer that they were still ‘present’ within the meaning of Application Note 3.”

( United States v. Zapata-Lara, __ F.3d. ___ (5th Cir. Aug. 13, 2010)(09-40627):

Because the district court failed to find either that Zapata-Lara possessed the weapon or that a co-conspirator possessed the weapon and that that possession was foreseeable to Zapata-Lara, we vacate the sentence and remand for resentencing.

“Because the decision to apply § 2D1.1(b)(1) is a factual one, we review only for clear error.” United States v. Eastland, 989 F.2d 760, 769 (5th Cir. 1993); see also United States v. Castillo, 77 F.3d 1480, 1498 (5th Cir. 1996) (same). Nonetheless, “we examine de novo the district court’s purely legal application of the sentencing guidelines.” United States v. Hooten, 942 F.2d 878, 881 (5th Cir. 1991). Zapata-Lara’s argument does not concern the specifics of the fact-finding, but, rather, whether the facts found are legally sufficient to support the enhancement. Our review, then, is de novo.

Before a sentencing court can apply § 2D1.1(b)(1), the government must prove weapon possession by a preponderance of the evidence. Id. It can do that in two ways. Id. at 882. First, it can prove that the defendant personally possessed the weapon, by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant. Id. To make that showing, the government must provide evidence that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred. Id. “Alternatively, when another individual involved in the commission of an offense possessed the weapon, the government must show that the defendant could have reasonably foreseen that possession.” Id. The guidelines hold a defendant responsible for all reasonably foreseeable acts of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). Thus, a sentencing court may often “infer foreseeability” from a coconspirator’s knowing possession of a weapon. Id. (citing United States v. Aguilera-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990)).

Cf. Castillo, 77 F.3d at 1498 (gun found in defendant’s house where drugs were 4

stored); United States v. Mitchell, 31 F.3d 271, 277 (5th Cir. 1994) (gun found in defendant’s

bedroom); U.S.S.G. § 2D1.1, cmt. 3 (deciding that unloaded hunting rifle in closet does not

support enhancement).

( United States v. Cervantes, 706 F.3d 603 (5th Cir. 2013). Where D possessed a

firearm in furtherance of a drug-trafficking crime, in violation of 18 USC § 924(c), it was plain

error for the court to also apply a 2-level USSG enhancement for possession of a firearms under USSG 2D1.1(B)(1).

(

( Career Offender. It cannot be said that because a federal conspiracy under 21

U.S.C. § 846 does not require proof of an overt act, it does not meet the generic definition of conspiracy for career offender status. United States v. Rodriguez-Escareno, 700 F.3d 751, 754 (5th Cir. 2012), cert. denied, 2013 WL 1313840 (Apr. 29, 2013).

( Drugs and Guns Proof. A defendant carries a firearm “in furtherance of a drug-trafficking offense when it furthers, advances, or helps forward that offense.” United States v. London, 568 F.3d 553, 559 (5th Cir. 2009). In determining whether this element has been proved, we consider various factors including “the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.” Id (See Aid and abet on prior page)

( United States v. Blevins, __ F.3d ___ (5th Cir. June 16, 2014)(13-30090): There are two separate drugs and weapons offenses under 18 U.S.C. § 924(c)(a)(A):

(1) using or carrying a firearm during and in relationship to a drug trafficking crime (the “use” offense”), and (2) possessing a firearm in furtherance of a drug trafficking offense. (the “possession” offense). United States v. McGilberry, 480 F.3d 326, 329 (5th Cir. 2007). The use offense occurs when a fire arm is actively employed during a drug crime; the possession occurs when a firearm furthers or advances the drug trafficking offense. Id. at 330.

( United States v. Walker, __ F.3d ___ (5th Cir. July 7, 2016)(15-50646):

Section 924(c)(1)(A) provides an additional penalty for the possession of a firearm “in furtherance” of a drug-trafficking crime.5 See United States v. Palmer, 456 F.3d 484, 489–90 (5th Cir. 2006). In United States v. CeballosTorres, 218 F.3d 409, 410–11 (5th Cir. 2000), we held that for § 924(c)(1)(A) purposes, “possession of a firearm is ‘in furtherance’ of the drug trafficking offense when it furthers, advances, or helps forward that offense.” Palmer, 456 F.3d at 489–90 (internal quotation marks omitted). The mere presence of a firearm, without more, is not enough. Id. at 490; Ceballos-Torres, 218 F.3d at 414. There are several factors that are helpful to determining whether the possession of a firearm was “in furtherance” of a drug-trafficking crime: the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to the drugs or drug profits, and the time and circumstances under which the gun is found. Palmer, 456 F.3d at 490 (citing Ceballos-Torres, 218 F.3d at 414–15). In Ceballos-Torres, we affirmed the defendant’s conviction in light of these factors, noting that: (1) the “weapon was loaded and easily accessible in Ceballos’s apartment”; (2) Ceballos confessed to ownership of the firearm; (3) the firearm was possessed illegally; and (4) the firearm “was possessed in the apartment along with a substantial amount of drugs and money.” CeballosTorres, 218 F.3d at 415. Those factors, when taken together, reasonably supported that Ceballos’s gun protected his drugs and money against robbery, which, we held, was an example of possessing a firearm “in furtherance” of a drug-trafficking crime. Id. In Palmer, we reversed the defendant’s conviction in light of these same factors, noting that (1) the gun “was locked in a safe, and was not loaded”; (2) none of the ammunition in the house matched the gun; (3) the defendant claimed he purchased the gun only to protect himself; (4) the defendant stated that he secured the gun in a safe to keep kids from accessing the gun; and (5) the defendant, on multiple occasions, denied that the gun was used in relation to drug trafficking. 456 F.3d at 490. Walker argues that the Ceballos-Torres factors do not support a finding that he possessed a firearm “in furtherance” of a drug-trafficking crime because there was no evidence of the proximity of the firearms to the drugs, the accessibility of the firearms, whether the firearms were loaded, or whether there was ammunition or any other evidence found in the house linking the firearms to the methamphetamine conspiracy. We are not persuaded. The factual basis need not provide evidence for every one of the Ceballos-Torres factors for a court to conclude that the defendant possessed a firearm in furtherance of a drug-trafficking crime. See, e.g., Ceballos-Torres, 218 F.3d at 414–15 (noting that the listed factors are examples of factors that a court “might include” in its analysis to “help” determine whether possession of a firearm was in furtherance of a drug-trafficking crime); id. at 415 (concluding that the firearm was possessed in furtherance of a drug-trafficking crime when there was evidence relevant to some, but not all, of the factors); United States v. Charles, 469 F.3d 402, 406–07 (5th Cir. 2006) (affirming jury-trial conviction for possession of firearm in furtherance of drug-trafficking offense based on some, but not all, of the factors). Here, the facts are closer to those in Ceballos-Torres than in Palmer. Like in Ceballos-Torres, Walker possessed the firearms in his residence along with a substantial amount of drugs—approximately a pound of methamphetamine that was ninety-six percent pure. See 218 F.3d at 415. The factual basis also established that, as in Ceballos-Torres, Walker’s possession of the firearms was illegal because Walker was a convicted felon at the time. See id. In light of these facts, as well as the number and type of firearms seized from Walker’s residence6 combined with the fact that Walker was a methamphetamine supplier with a large amount of methamphetamine

(Accord on the Ceballos-Torres factors: united States v. Blacklock, (5th Cir. May 3, 2017)(No. 16-51014).

( Firearm Carried by Co-Defendant. United States v. Barrientes, (5th Cir. May 31, 2017)(16-10596): A two-level enhancement for possession of a firearm was imposed pursuant to U.S.S.G. § 2D1.1(b)(1) and a two-level enhancement for importation of methamphetamine pursuant to § 2D1.1(b)(5). Barrientes argues that the district court erred in imposing the enhancement in § 2D1.1(b)(1) for possession of a firearm because he personally did not possess a firearm and he had no knowledge that his codefendants possessed a firearm. He also argues that the district court erred in imposing the enhancement in § 2D1.1(b)(5) for importation of methamphetamine because did not know that the methamphetamine was imported. He concedes that this court has previously rejected both arguments, but respectfully requests that we revisit our precedent. Barrientes’s arguments are foreclosed by United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990), and United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012), respectively. In Aguilera-Zapata, we held that the enhancement in § 2D1.1(b)(1) applies when a codefendant’s possession of a firearm during the offense was reasonably foreseeable. 901 F.2d at 1215. In Serfass, 684 F.3d at 552, we held that the enhancement in § 2D1.1(b)(5) applies when the offense involved the importation of methamphetamine regardless of whether the defendant knew of that importation.

( Amount of drugs intended for personal use: A district court’s calculation of the

quantity of drugs involved in an offense is a factual finding that is entitled to considerable deference, see United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.

2005), and will be reversed only if clearly erroneous. Id.; see also United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005). A factual finding is not clearly erroneous if

it is plausible in light of the record as a whole. Betancourt, 422 F.3d at 246. When

calculating the total drug amounts attributable to a defendant through his course of

conduct, direct evidence is unnecessary. Id. Drug estimates may be calculated based

on extrapolating from “any information that has sufficient indicia of reliability to support its probable accuracy . . . even hearsay.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and citation omitted). The district court may rely upon information provided by codefendants and other witnesses, provided the information bears the minimum indicia of reliability. See United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). Further, the district court may adopt the factual findings in the presentence report (PSR) if those findings bear sufficient indicia of reliability to support their probable accuracy. Valdez, 453 F.3d at 262. The defendant bears the burden of showing through rebuttal evidence that the information in the PSR is materially untrue. Id.

( No clear error in the district court’s finding that defendant was a drug dealer in

possession of trafficking proceeds. See United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).

( Profile Evidence. United States v. Acosta-Guerrero, (5th Cir. June 13, 2011)(09-41247): Testimony offering a profile of drug couriers is inherently prejudicial and inadmissible to prove guilt. United States v. Ibarra, 493 F.3d 526, 532 (5th Cir. 2007). The DEA agent testified about his work experience, how he determined the value of the drugs seized from Acosta’s trailer, and why the value of drugs increases as one travels north. The Government did not ask the agent to comment on Acosta’s guilt nor did the agent state whether Acosta fit the profile of a drug smuggler. The district court did not err by admitting this evidence. Our precedent permits for the Government to rely on the testimony of law enforcement officials to establish the monetary value of drugs to demonstrate a defendant’s knowledge. United States v. Sanchez-Hernandez, 507 F.3d 826, 832 (5th Cir. 2007); United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003).

( It is impermissible to establish that a defendant is a drug courier merely by

establishing “similarities between [a] defendant[] and a profile. United States v. Sanchez-Hernandez, 507 F.3d 826, 831 (5th Cir. 2007). Under Rule 702 of the Federal Rules of Evidence, a qualified expert witness may offer reliable opinion testimony in a criminal case if specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. In the drug trafficking context, “law enforcement witnesses are thus allowed to give testimony about ‘the significance of certain conduct or methods of operation unique to the drug business so long as the testimony is helpful and its relevance is not substantially outweighed by the possibility of unfair prejudice or confusion.’” Id. at 831.

( See also United States v. Montes-Salas, __ F.3d __ (5th Cir. Jan. 26, 2012)

(10-41167)(No objection at trial on these matters, reviewed under plain error; none found).

( United States v. Tostado-Becerra, (5th Cir. Dec. 5, 2013)(12-50606):

Tostado contends that the district court erred in admitting expert-opinion testimony from Wade Sparks, a special agent with the Drug Enforcement Administration (DEA), arguing that the testimony was impermissible profile evidence. A profile is “a compilation of characteristics that aid law enforcement officials in identifying persons who might be” involved in a particular type of enterprise. United States v. Sanchez-Hernandez, 507 F.3d

826, 831 (5th Cir. 2007) (internal quotation marks and citation omitted). In drug

trafficking cases, “qualified narcotics agent[s] typically may testify about the significance of certain conduct or methods of operation unique to the drug business so long as the testimony is helpful and its relevance is not substantially outweighed by the possibility of unfair prejudice or confusion.” United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010). Testimony offered for the purpose of proving the defendant’s guilt by comparing him to a generic profile, however, is pure profile evidence, which is inadmissible under Federal Rule of Evidence 702. United States v. Montes-Salas, 669 F.3d 240, 248 (5th Cir. 2012); Sanchez-Hernandez, 507 F.3d at 833.

We note, additionally, that this testimony was given on the heels of Agent Sparks’s explanation of the planning, coordination, and multiple levels of prior

approval that one required by the DEA for a government actor to bring a load of drugs through a border checkpoint. “[B]ecause the ‘overall context’ of the [challenged] testimony establishes that the statements were part of the agent’s ‘legitimate background testimony’ about how” an undercover operation works, it did not cross the “fine but critical line” into the impermissible territory of pure profile evidence. See Montes-Salas, 669 F.3d at 250. Further, to the extent that Sparks’s testimony is considered profile evidence, it was permissible because it was “used to rebut the defendant’s innocent explanation for his behavior.” See id. at 248. We conclude that the district court did not abuse its discretion in admitting the challenged testimony. See Setser, 568 F.3d at 494

( Case upholding expert under facts: United States v. Ramos-Rodriguez, __ F.3d __

(5th Cir. Dec. 5, 2016)(14-50846).

( Firearms and Drug Offenses under 18 U.S.C. § 924(c)(1)(A):

( The U.S. Supreme Court Wednesday (3-4-2014) in Rosemond v. United States, clarified what is required to obtain a conviction for aiding and abetting a violation of 18 U.S.C. 924(c), which prohibits carrying or carrying a firearm in  connection with a drug trafficking crime or violent crime. The court held that the government can prove that a defendant aided and abetted a violation of Section 924(c) with evidence that the defendant had advance knowledge that someone with whom the defendant was going to commit a violent crime or drug trafficking crime was planning to carry a gun.

( Section 924(c)(1)(A) imposes a criminal penalty upon “any person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A).

( United States v. Templeton, 624 F.3d 215 (5th Cir. 2010): No abuse of discretion in introducing evidence that defendant had previously sold large quantities

of drugs in his prosecution for using a firearm and committing murder in relationship to a drug trafficking offense.

( First Prong—In Furtherance. In United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir. 2000), this court set forth the circumstances under which a defendant’s possession of a firearm will be considered “in furtherance” of a drug trafficking crime for purposes of § 924(c)(1)(A). The court determined that “firearm possession that furthers, advances, or helps forward the drug trafficking offense violates the statute.” Id. at 415. It elaborated:

Some factors that would help determine whether a particular defendant’s possession furthers, advances, or helps forward a drug trafficking offense might include: the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. Id. at 414-15. Emphasizing that “more than ‘mere presence’ of the firearm at the scene” is required to sustain a conviction, the court required “evidence more specific to the particular defendant, showing that his or her possession actually furthered the drug trafficking offense.” Id. at 414.

Considering the circumstances of the defendant’s possession in that case, this court affirmed the conviction:

The weapon was loaded and easily accessible in Ceballos’s apartment, and he confessed to ownership of the firearm. It was possessed illegally. And it was possessed in the apartment along with a substantial amount of drugs and money. Together, these

factors reasonably support a finding that Ceballos’s gun protected his drugs and money against robbery. Possession of the [firearm] was, therefore, in furtherance of drug trafficking. Id. at 415.

( Second Prong—Using During Drug Offense. By contrast, when the government charges a defendant with using or carrying a firearm, the appropriate standard is “during and in relation to” a crime of violence or drug trafficking crime. When a defendant is charged under the possession prong of this statute, as in this case, “the appropriate standard of participation is ‘in furtherance of’ a crime.” United States v. McGilberry, 480 F.3d 326, 329 (5th Cir. 2007).

( Firearms Used in Drug Transaction as a Drug Offense for Enhancement purposes under 18 U.S.C. § 924 (c).

( The U.S. Supreme Court Wednesday (3-4-2014) in Rosemond v. United States, clarified what is required to obtain a conviction for aiding and abetting a violation of 18 U.S.C. 924(c), which prohibits carrying or carrying a firearm in  connection with a drug trafficking crime or violent crime. The court held that the government can prove that a defendant aided and abetted a violation of Section 924(c) with evidence that the defendant had advance knowledge that someone with whom the defendant was going to commit a violent crime or drug trafficking crime was planning to carry a gun.

( United States v. Campbell, __ F.3d __ (5th Cir. Dec. 30, 2014)(13-11038):

Campbell was indicted under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and

841(b)(1)(C) for knowingly possessing marijuana and ecstasy with the intent

to distribute. The indictment charged Campbell for these drug offenses under

both a theory of Campbell as the principal and a theory of accomplice liability

pursuant to 18 U.S.C. § 2. The indictment also charged Campbell with two

separate counts of the possession of a firearm in furtherance of a drug

trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i) and (c)(1)(B)(i). The firearm

counts corresponded to each of the separate drug counts. Both firearm counts

listed each of the five firearms found in the drug house as possible weapons

upon which a conviction under those counts could be found. Campbell never

raised a claim, before or during trial, that the indictment was defective.

A jury convicted Campbell on the aforementioned charges, including two

counts of the possession of a firearm in furtherance of a drug trafficking crime

corresponding to his separate convictions for the possession of marijuana and

the possession of ecstasy.

Campbell contends in this appeal that because the jury verdict did not

establish that different firearms were possessed or used in connection to each

of his two drug trafficking predicate offenses, his second conviction under

§ 924(c)(1) cannot stand. Even if the question of whether Campbell possessed

two distinct firearms should have been presented to the jury, we do not

conclude that the district court clearly or obviously erred in its instruction.3

Therefore, under our deferential plain error review, we affirm. Moreover, we

conclude there was sufficient evidence to support the jury’s verdict on the

second firearm count.

Multiple § 924(c)(1) Convictions for the Single Possession of a Firearm

Section 924(c)(1) imposes a mandatory minimum of twenty-five years for

a second or subsequent conviction of possession of a firearm in furtherance of

a drug trafficking crime. Id. In United States v. Phipps, 319 F.3d 177 (5th Cir.

2003), this court held that under the particular facts of that case,4 “18 U.S.C.

§ 924(c)(1) does not unambiguously authorize . . . multiple convictions for a

single use of a single firearm based on multiple predicate offenses.” Id. at 180

(emphasis added). In reaching that conclusion, the court was cautious to leave

room for the possibility that under a set of facts distinct from those at issue in

Phipps, the statute might authorize multiple convictions for a single use of a

firearm. See, e.g., id. at 183 (“As applied to the facts of this case, § 924(c)(1) is

ambiguous…”) (emphasis added); id. at 187–88 (“Because § 924(c)(1) is

ambiguous on the facts of this case, we must…conclude that the statute does

not unambiguously authorize multiple convictions for a single use of a single

firearm based on multiple predicate offenses.”) (emphasis added). Campbell

contends that the jury verdict in this case allows for the possible finding that

on December 12, 2011, he was in possession of one single firearm in

furtherance of his two separate drug trafficking predicate offenses.

Campbell argues that in order for the second firearm conviction to be

lawful, the jury needed to find that he possessed two or more guns. However,

the jury was not so specifically instructed, and Campbell did not object in this

regard to the jury instructions. For the § 924(c)(1) counts at issue, the district

court’s jury instructions did not require that any particular firearm be

possessed in furtherance of a particular predicate drug offense nor did it

require that a distinct firearm be possessed for the differing counts.

Held: Not plain error.

Firearms and Drugs—Bailey Fix Statute

( United States v. Ortega, 5th Cir. April 25, 2017)(16-50301):

D pleaded guilty to charges of possession with intent to distribute 500 grams or more of cocaine and possession of a firearm in furtherance of a drug trafficking crime. … Relying on Bailey v. United States, 516 U.S. 137 (1995), and United States v. Dickey, 102 F.3d 157 (5th Cir. 1996), Ortega argues that the mere proximity of the firearm to the cocaine was insufficient to prove “use” under the statute, and instead, the Government was required to show that he actively employed the firearm in relation to his drug trafficking crime. Thus, according to Ortega, the Government has failed to prove the “use” requirement of § 924(c). Given that Ortega did not raise this argument in the district court, we review for plain error. United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006). Ortega’s argument, however, relies on outdated precedent: Congress effectively overruled Bailey with an amendment to § 924(c) criminalizing the “possession” of a firearm in furtherance of a drug trafficking crime. See Abbott v. United States, 562 U.S. 8, 16–17 (2010) (“The 1998 alteration responded primarily to our decision in Bailey . . . . Congress legislated a different result; in the 1998 revision, colloquially known as the Bailey Fix Act, the Legislature brought possession within the statute’s compass.” “[P]ossession of a firearm in furtherance of [a] drug-trafficking offense is now a sufficient factual basis for a conviction under § 924(c)(1),” United States v. Ruiz, 533 F. App’x 361, 363 (5th Cir. 2013) (per curiam), and indeed, the superseding indictment charged Ortega with possession of a firearm in furtherance of a drug trafficking crime. Thus, Ortega’s reliance on Bailey is misplaced, and he has failed to show any error regarding his firearm conviction

( No Unanimity on Type Firearm Required. United States v. Correa-Ventura, 6 F.3d 1070, 1082 (5th Cir. 1993) held that the statutory and legislative history of 18 U.S.C. § 924(c) does not suggest that unanimity as to the type of firearm is necessary for a conviction of the offense. Id. at 1083-85. We also noted that the jurisprudential treatment of § 924(c) indicates that a § 924(c) violation is a single offense regardless of the number of firearms used or carried, which alleviates duplicity concerns. Id. at 1085. Finally, like Correa-Ventura, the facts of Castleberry’s case do not indicate a likelihood of juror confusion. (United States v. Castleberry, (5th Cir. May 4, 2015)(14-40568).

(United States v. Rains, __ F.3d __ (5th Cir. Aug. 23, 2010)(09-50724). Aldridge argues that a previous conviction under 18 U.S.C. § 924(c) for possession of a firearm in furtherance of a drug trafficking crime is not a “felony

drug offense,” and thus cannot serve as the basis for the enhancement. We review de novo whether a conviction under § 924(c) counts as a felony drug offense for purposes of applying the enhancement under § 841(b)(1)(B). United States v. Santos-Riviera, 183 F.3d 367, 369 (5th Cir. 1999). This is an issue of first impression in this circuit.

Section 841(b)(1) does not define “felony drug offense,” but the term is defined in 21 U.S.C. § 802(44). “Because the term ‘felony drug offense’ is specifically defined in

§ 802(44), and § 841(b)(1) . . . makes use of that precise term, the logical, commonsense way to interpret ‘felony drug offense’ in § 841(b)(1) . . . is by reference to the definition in § 802(44).” United States v. Roberson, 459 F.3d 39, 52 (1st Cir. 2006). Section 802(44) provides that a “felony drug offense” is: an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. The law under which Aldridge was punished, § 924(c), provides:

any person who, during and in relation to any crime of violence or drug

trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the punishment provided for such

crime of violence or drug trafficking crime [be subject to additional penalties for

violation of this section].

The issue is whether § 924(c) qualifies as a “law . . . that prohibits or restricts

conduct relating to [drugs].”

In the only circuit case addressing this issue, United States v. Nelson, 484

F.3d 257 (2007), a panel of the Fourth Circuit split.

We have, however, issued another decision closely analogous to this case. See United States v. Curry, 404 F.3d 316 (5th Cir. 2005) (per curiam). Just as in this case, Curry had received a life sentence under § 841(b)(1)(A) and challenged whether one of his prior convictions should have counted as a “felony drug offense” under § 802(44). Id. at 317. The disputed conviction was under a Louisiana state law criminalizing the possession of contraband in a state correctional institution. Id. at 318. Because the underlying state offense reached contraband of any kind, whether it be a weapon or crack cocaine, it was possible to be convicted under the statute without drugs being involved. Id. at 320. Acknowledging that a conviction for “the general crime of possession of

contraband in a penal institution” might not sustain the enhancement, the court nonetheless held that the conviction supported the enhancement because the

“state court Bill of Information . . . identified marijuana as the contraband.” Id.

The court cited to Shepard v. United States, 544 U.S. 13 (2005), to support its

conclusion that “not just the generic crime of possession of contraband [should

be] considered . . . , but the underlying facts, proved by the undisputed formal

conviction records.” Id.

Applying Curry to the facts of this case, we must conclude that Aldridge’s

§ 924(c) conviction should be considered a felony drug offense under § 802(44).

Aldridge does not dispute that the indictment and plea indicate his § 924(c) conviction involved a drug trafficking crime and not a crime of violence. Aldridge was charged with possession of methamphetamine with intent to distribute and possession of a firearm in furtherance of that crime. He pled guilty to the § 924(c) charge, and the predicate drug charge was dismissed. However, since Aldridge could only plead guilty to the § 924(c) charge if he engaged in the predicate drug conduct, he necessarily admitted that his conduct involved possession with intent to distribute methamphetamine. See Mankins,

135 F.3d at 949. That is, Aldridge was punished under a law that, at least in this situation, prohibited conduct relating to drugs. Aldridge argues that even if § 924(c) reaches drug conduct, it should not count as a felony drug offense because it is more appropriately considered a firearms offense than a drug offense. (Fifth Circuit rejects this argument) … In conclusion, we join the Fourth Circuit in holding that § 924(c) can be the basis for an enhancement under § 841(b)(1) when the record makes clear that the conviction involved a drug trafficking crime rather than a crime of violence. See Nelson, 484 F.3d at 261.

( Firearms and Drugs and USSG § 2K2.1. Smith argues that the district court erred by imposing a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) because a preponderance of the evidence did not establish that Smith possessed the firearm in connection with his possession of narcotics. Smith asserts that the 2006 amendments to § 2K2.1 and its application notes added a requirement that the firearm be in close proximity to the narcotics and possess a relationship with the narcotics felony. We have recently noted that the 2006 amendment to the guideline reinforces this court’s precedent. See United States v. Anderson, 559 F.3d 348, 357 & n.16 (5th Cir.), cert. denied, 129 S.Ct. 2814 (2009). Under that precedent, Smith’s firearms were readily available to protect the narcotics that Smith had hidden in a different air conditioning vent less than ten feet away, and had the potential to facilitate his drug-related activities. See United States v. Condren, 18 F.3d 1190, 1200 (5th Cir. 1994); § 2K2.1, comment. (n.14(A)). In light of Condren, in which the firearm at issue was locked in a desk drawer, the fact that Smith would have to unlatch two thumb latches to reach the firearms in the vent did not make the firearms unavailable. See Condren, 18 F.3d at 1191 n.1, 1199-1200. Moreover, it was within the district court’s province to credit the testimony of the police officer that Smith had admitted having the guns to protect the narcotics. See United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996); see also 18 U.S.C. § 3742(e). Similarly, it was within the province of the district court to find not credible Smith’s testimony he did not admit to the officer that he had the guns to protect the drugs. Smith has failed to show that the district court’s conclusion that Smith had the firearms to protect the narcotics was implausible in light of the record as a whole. See Condren, 18 F.3d at 1199. Thus, Smith failed to show that the district court clearly erred in imposing a four-level enhancement pursuant to § 2K2.1(b)(6). See id.

( Drug Slang Words. See Expert. United States v.Akins, __ F.3d__ (5th

Cir. March 25, 2014)(12-40515).

( 2K2 and 2L2 drug offenses. United States v. Ford, 509 F.3d 714, 716-18 (5th Cir. 2007). In Ford, this court held that the Texas offense of possession of a controlled substance with intent to deliver was indistinguishable from the offense of possession with intent to distribute, the latter of which is defined under U.S.S.G. § 2K2.1 as a controlled substance offense. 509 F.3d at 716-17. The definition of “drug trafficking offense” under Section 2L1.2(b)(1) is nearly identical to that of a “controlled substance offense” under Section 2K2.1. See id. at 717 n.2. Ford’s holding applies equally to a Section 2L1.2 enhancement. See id.

FORD HELD ERROR AND APPARENTLY OVERRULED: United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017) (holding that the Texas offense of possession with intent to deliver “does not qualify as a controlled substance offense under the [Sentencing] Guidelines”). Tanksley violation held plain error.

United States v. Crenshaw, (5th Cir. Aug. 7, 2017)(16-10078).

( Firearms and Drugs and Lack of Credit for Bureau of Prisons Course.

U.S. Bureau of Prisons has promulgated an administrative rule in 28 C.F.R. § 550.58(a),

aka 65 Fed. Reg. 80745 (Dec. 20, 2000) that holds that those individuals who are not eligible for release under the BOP Residential Drug Abuse Program authorized by 18 U.S.C. § 3621(e). This administrative rule excludes individuals who used, attempted to use, or threatened to use physical force against the person or property of another or a felony that involved the carrying, possession, or use of a firearms or other dangerous weapon. This rule has been applied when a defendant was indicted for possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c).

Handley v. Chapman, 587 F.3d 273 (5th Cir. 2009). See also follow-up case, Torres v. Chapman, (5th Cir. Dec. 29, 2009)(09-10024)(unreported).

( Constructive Possession. A defendant’s intent to distribute may be inferred from the possession of a large quantity of the drug. Ramos-Cardenas, 524 F.3d at 605. Possession of narcotics may be “actual or constructive, may be joint among several defendants, and may be proven by direct or circumstantial evidence.” United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008) (citation omitted). This court’s definition of constructive possession includes dominion over the premises in which the contraband is found. United States v. Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003) (citations omitted). In cases of joint occupancy, to prove constructive possession, there must be some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the illegal item. Id. at 204.

( See “Insufficiency in Constructive Possession of Drugs” for collected cases.

( Knowledge of drugs in truck. In some cases, the knowledge element in a possession case can be inferred from control of the vehicle in which the drugs are found. United States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994). However, where, as in this case, the drugs are concealed, control alone is not sufficient to prove knowledge. See

id.; United States v. Garza, 990 F.2d 171, 174 & n.10 (5th Cir. 1993). Because the drugs were hidden in the trailer, the Government is required “to have produced further evidence of knowledge.” Pennington, 20 F.3d at 598. The Government contends that the evidence of Linwood’s guilty knowledge includes his ownership of the trailer, his possession of keys that opened the trailer, the false bill of lading, and the lack of a driver’s log. False bills of lading were considered evidence of the defendant truck driver’s guilty knowledge in Garza, 990 F.2d at 175, as well as in United States v. Garcia-Flores, 246 F.3d 451, 454-55 (5th Cir. 2000).

( Quantity as Proof of Intent. Intent to distribute may be inferred when the evidence shows that a large quantity of drugs is involved. See United States v. Guanespen-Portillo, 514 F.3d 393, 396-97 (5th Cir. 2008).

( Insufficient evidence as to quantity of wpns for enhancement. United States v.

Hagman, __ F.3d __ (5th Cir. Jan. 27, 2014)(12-51093).

( Conspiracy. To prove a conspiracy to distribute a controlled substance, the Government must establish: (1) the existence of an agreement between two or more persons; (2) the defendant’s knowledge of an agreement; (3) the defendant’s voluntary

participation in the conspiracy; and (4) that the overall scope of the conspiracy

involved the drug quantity charged. United States v. Jimenez, 509 F.3d 682, 689 (5th Cir. 2007), cert. denied, 128 S. Ct. 2924 (2008). “[E]ach element of the crime may be established by circumstantial evidence.” United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005). The jury may consider that some witnesses testified pursuant to immunity or plea agreements in determining credibility. United States v. Burns, 526 F.3d 852, 860 (5th Cir. 2008).

( Drug Clean-up Implications. Subsection (b)(10)(A) of § 2D1.1 applies if the conduct involved any storage covered by, inter alia, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9603(b). § 2D1.1, comment. (n.19). Ammonia is listed in the hazardous material table of substances regulated by CERCLA. United States v. Stepan, 66 F. App’x 524, 524 (5th Cir. 2003)(citing 49 C.F.R. § 172.101, App. A (Table)). In addition, the presentence report (“PSR”) provides that anhydrous ammonia is a “toxic substance” and that

Strackbein had stored it in an “unapproved container.” Because Strackbein adduced

no evidence to rebut the PSR, the district court was free to adopt the PSR and to rely on the factual findings contained therein. See United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004). The imposition of the adjustment thus was not plain error. See Baker, 538 F.3d at 332.

( Past Drugs Held Not Relevant Conduct—United States v. Rhine, 583 F.3d 878

(5th Cir. 2009)(08-10502). We now address whether Rhine’s alleged participation in the Fish Bowl drug-trafficking ring and his offense of conviction are part of (1) a common scheme or plan, or (2) the same course of conduct.

1. Common Scheme or Plan. A separate, unadjudicated offense may be part of a common scheme or plan — and thus relevant conduct — if it is “substantially connected to [the offense of conviction] by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” Several

courts have concluded that, for two offenses to be considered part of a common scheme or plan, the acts “must be connected together by common participants.

See United States v. Hill, 79 F.3d 1477, 1482 (6th Cir. 1996) (collecting cases). See United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir. 2007) (holding that two offenses were not part of a common scheme or plan when the offenses could only “be connected by . . . the most general of purposes, in that they both involved methamphetamine”) or an overall scheme.” In United States v. Wall, we ruled that two offenses were not part of a common scheme or plan because (1) the offenses did not share any common accomplices, (2) there was no common modus operandi, as the earlier offense involved a small amount of marijuana and the later offense involved large quantities of marijuana concealed in pick-up trucks, and (3) the only common purpose between the offenses was “importing marijuana for

distribution in the United States,” which was, by itself, insufficient to establish a common scheme or plan. We conclude that Rhine’s participation in the Fish Bowl drug-trafficking ring and his offense of conviction cannot be considered part of a common scheme or plan.

We must therefore proceed to determine whether Rhine’s alleged participation in the Fish Bowl drug-trafficking ring may properly be considered part of the same course of conduct as his offense of conviction. 2. Same Course of Conduct. The Guidelines state that “[o]ffenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to [the offense of conviction] as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” Factors to consider in making this determination include “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.” A weak showing as to any one of these factors will not preclude a finding of relevant conduct; rather, “[w]hen one of the above factors is absent, a stronger presence of at least one of

the other factors is required.” Temporal Proximity. To determine whether temporal proximity is present, we begin with the interval between the defendant’s purported relevant conduct and the offense of conviction. Because there is “no separate statute of limitations beyond which relevant conduct suddenly becomes irrelevant,” a defendant’s prior conduct will not necessarily be “placed off limits simply because of a lapse of time.” Nevertheless, “various courts have found that a period of separation of over one

year negated or weighed against [a finding of] temporal proximity.” We have “generally used a year as the benchmark for determining temporal proximity.” For example, in United States v. Miller, we concluded that offenses separated by 21 months were “relatively remote in time” and held that “other factors must be authoritatively present in order to overcome this long gap.” Here, at least 17 months separate any participation by Rhine in the Fish Bowl drug-trafficking ring from his offense of conviction. Although not

dispositive, a hiatus this large suggests that temporal proximity is lacking. We aso find counter-indicative the lack of evidence that Rhine engaged in any intervening criminal activity, the presence of which might link his earlier conduct to the offense of conviction. The government urges us to overlook this.

Walll, 180 F.3d at 646; see, e.g., Hill, 79 F.3d at 1484 (6th Cir. 1996) (“[W]e find that temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse between offenses.”); United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir. 1994) (concluding that two offenses occurring more than a year apart were “temporally remote”). See United States v. Booker, 334 F.3d 406, 414 (5th Cir. 2003). Compare Culverhouse, 507 F.3d at 896 (concluding that temporal proximity was lacking when offenses were

separated by almost three years), and United States v. Miller, 179 F.3d 961, 966 (5th Cir. 1999) (holding that offenses separated by 21 months were temporally remote), with Bryant, 991 F.2d at 177 (concluding that temporal proximity of roughly two months supported district court’s finding of relevant conduct), and Moore, 927 F.2d at 826, 828 (holding that amphetamines seized five months prior to offense of conviction could be considered relevant conduct). But see United States v. Robins, 978 F.2d 881, 890 (5th Cir. 1992) (concluding that “a hiatus of approximately one and one half years” did not render prior “similar transactions” irrelevant for sentencing purposes).

s stated above, the Fish Bowl investigation culminated in a large-scale drug raid

on May 17, 2006, but the informant on whose statement the probation officer relied indicated

that he had stopped cooking crack cocaine for Rhine by approximately January 2006. Therefore, depending on which source one credits, Rhine’s participation in the Fish Bowl drug trafficking

ring ended some time between January and May 2006, meaning that at least 17 months — and as many as 22 months — separate Rhine’s earlier conduct from his offense of conviction.

See Moore, 927 F.2d at 828 (finding that intervening arrest for marijuana possession helped connect defendant’s earlier drug activity to his offense of conviction such that the earlier drug activity could be considered relevant conduct). See Culverhouse, 507 F.3d at 896 (“However, a failure in temporal proximity does not, by itself, prevent a finding of relevant conduct.”). See United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir. 1993).

The government’s shortcoming, insisting that the apparent lack of intervening criminal activity is solely the result of the informants’ imprisonment on federal drug convictions —and not Rhine’s voluntarily abstention from criminal activity. This argument is unpersuasive, as it suggests that Rhine has the burden of proving the negative fact that he did not engage in any intervening criminal activity, when in fact it is incumbent on the government to show the positive fact of Rhine’s continued drug distribution activities.

We conclude that temporal proximity is lacking, adding, however, that our

conclusion does not necessarily preclude a finding of relevant conduct.

Offenses separated by 17 months — or even longer periods of time — might still

be considered part of the same course of conduct if supported by a stronger presence of at least one of the other factors. In particular, we recognize that a lapse of time between prior conduct and the offense of conviction does not necessarily indicate that a defendant abandoned a course of conduct. In some cases, a lapse of time might merely mean that the defendant had to put a venture “on hold.” For example, in United States v. Cedano-Rojas, the Seventh Circuit concluded that a defendant’s drug transaction that occurred two years prior to his offense of conviction was not too temporally remote to be considered relevant conduct. The defendant in Cedano-Rojas had completed a large-scale

drug transaction shortly before losing his supplier, after which he faced difficulties obtaining cocaine, resulting in a two-year gap between his earlier offense and the offense of conviction. Describing the defendant’s earlier offense as “relatively stale,” the Seventh Circuit warned that courts must remain “cautious and exacting in permitting such . . . dealings to be included in the same course of conduct as the offense of conviction. Nevertheless, the Seventh Circuit affirmed the district court’s finding of relevant conduct, basing its holding largely on the overwhelming evidence in support of similarity, as both

offenses involved (1) large amounts of cocaine, (2) the same source and supplier,

and (3) a nearly identical use of “mules” to distribute the drugs. Thus, even if, arguendo, we were to adopt the reasoning of Cedano-Rojas and find that Rhine had been forced to put his venture “on hold” following the Fish Bowl arrests, we would still need to determine whether a stronger presence of either similarity or regularity compensates for the absence of temporal proximity. Therefore, we must now determine whether there is sufficient evidence of similarity or regularity to support a finding that Rhine’s earlier conduct and his offense of conviction were part of the same course of conduct, despite the attenuation between the end of the Fish Bowl ring’s operations and Rhine’s crime of conviction. b. Similarity To determine whether a defendant’s earlier conduct is sufficiently similar to the offense of conviction, we inquire whether “there are distinctive similarities between the offense of conviction and the remote conduct that signal that they are part of a course of conduct rather than isolated, unrelated events that

happen only to be similar in kind.” As we have previously cautioned, however, courts must not conduct this analysis at such a level of generality as to render it meaningless. For example, in Wall, we concluded that two offenses were not sufficiently similar because (1) there was no evidence that the marijuana involved in each of the offenses shared a common source, supplier or destination, (2) there were no common accomplices, and (3) one of the offenses involved “large loads of marijuana secreted in the wheels and gas tank[s] of two pick-up trucks driven across the border,” whereas the other offense involved only “a much smaller . . . load hidden [somewhere] in [the defendant’s car].”

Likewise, there are several material differences between Rhine’s alleged participation in the Fish Bowl drug-trafficking ring and his offense of conviction. Rhine’s instant offense involved possession of a very small quantity (1.89 grams) of crack cocaine with intent to sell some lesser portion of it to an individual buyer for five dollars; the sale took place in a vehicle; and Buchanan, the individual purchaser for her personal consumption, had just learned about Rhine from some unnamed source at a service station. In contrast, Rhine’s alleged participation in the Fish Bowl drug-trafficking ring was said to have involved his acting as a large-scale manufacturer, distributor, and supplier of kilogram

quantities of crack cocaine to numerous mid-level dealers. There are not even any allegations that Rhine sold to individual users during the Fish Bowl drug trafficking. Neither is there any suggestion that the two incidents involved any common participants or accomplices.

( Prior Drug Conviction Enhancement

( Requires a specific hearing detailed under 21 U.S.C. § 521 whereby defendant affirms or denies prior conviction. If denial, hearing is held with certain requirements.

If prior to the offense, the same individual was convicted of two or more prior felony drug offenses, he is subject to a mandatory term of life imprisonment. 21 U.S.C. § 841(b)(1)(A). After the Government files its required information, if the defendant denies the allegations of the prior convictions in written form, the district court must hold a hearing and specifically must ascertain whether the defendant affirms or denies that he

has been previously convicted. 21 U.S.C. § 851(c)(1). If the defendant denies the prior convictions at that point, the Government has the burden of proving beyond a reasonable doubt any issue of fact relating to the prior conviction. Id.

( A challenge to the sufficiency of the evidence in such hearing is de novo.

United States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001).

( United States v. Gonzalez, __ F.3d __ (5th Cir. Nov. 2, 2010)(09-40125). The statute at issue contains a provision that prohibits a defendant from challenging “the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.” 21 U.S.C. § 851(e). Other circuits have concluded that this provision does not prevent a defendant from arguing that he was not the person who was convicted of the offense. See United

States v. Dickerson, 514 F.3d 60, 65 (1st Cir. 2008); United States v. Green, 175 F.3d 822, 835 (10th Cir. 1999). We agree that Gonzalez’s challenge to his prior conviction based on identity is not barred by section 851(e). He is not challenging “the validity” of the 1988 conviction, but only that it is not a conviction of him; and, if it is not a conviction of him, he likely had no notice of it or reason to sooner challenge it.

( This court has addressed challenges to the sufficiency of the evidence

of a prior conviction under this statute twice before. In both cases, the Government produced physical evidence in the form of fingerprint exemplars to prove that the defendant was convicted of the prior offenses. See United States v. Jyles, 363 F. App’x 465, 466 (5th Cir. 2009); United States v. Lampton, 158 F.3d 251, 260 (5th Cir. 1998). In neither case did we hold that physical evidence was a requirement for proving a prior conviction beyond a reasonable doubt. Id.

( From United States v. Washington, (5th Cir. September 22, 2011)(10-31229):

Washington argues that the district court plainly erred in enhancing his sentence under U.S.S.G. § 2K2.1(a)(2). Specifically, he asserts that there was no documentation introduced to show that his two Texas convictions constituted “controlled substance offenses” as defined by U.S.S.G. § 4B1.2. He contends that his substantial rights were violated because his guideline range would have been lower than the 77 to 96 months that the presentence report (PSR) calculated. Washington did not object to the PSR or the district court’s finding that he had two prior convictions for controlled substance offenses. Accordingly, this court reviews Washington’s argument for plain error. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). The PSR was the only evidence before the district court to support a finding that Washington was convicted of two offenses that qualified as controlled substance offenses for purposes of § 2K2.1(a)(2). Thus, the district court committed a clear or obvious error in assigning Washington’s offense level under § 2K2.1(a)(2). See Garza-Lopez, 410 F.3d at 273-75. This error affected Washington’s substantial rights because it

is impossible to tell from the record if Washington’s conviction for “Delivery of

a Controlled Substance Less Than 1 Gram Namely Cocaine” qualifies as a

controlled substance offense for purposes of § 2K2.1. See United States v. Price,

516 F.3d 285, 288-89 (5th Cir. 2008); Garza-Lopez, 410 F.3d at 274-75.

Additionally, the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. McCann, 613 F.3d 486, 503

(5th Cir. 2010). Accordingly, Washington’s sentence is vacated and remanded

for resentencing

( Notice provision for enhancement of drug offense by prior drug offense.

United States v. Blevins, __ F.3d ___ (5th Cir. June 16, 2014)(13-30090):

U.S. indicted and gave information notice for increase penalty under 21 U.S.C. § 851(a).

Then U.S. dismissed without prejudice but did not give the notice prior to trial

required by § 851(a). Held: Notice should have been given a second time as first notice

applied only to first indictment. Dismissal of indictment results in new prosecution.

Court erred in holding that initial notice to first indictment applied to second indictment.

Remanded for re-sentencing.

( Enhancement under USSG § 2D1.1(a)(2) for Causing Death from Heroin.

United States v. Greenough, __ F.3d __ (5th Cir. Feb. 2, 2011)(10-50567). Appellant claims applying U.S.S.G. § 2D1.1(a)(2) was error because the death was not part of the crime to which she pled. Greenough pled guilty to both counts without a plea agreement. She did not plead guilty to death or serious bodily injury resulting from the use of these substances. The autopsy showed Reitz died of multiple drug toxicity and heroin was one of 17 drugs found in his system, and there was no proof it was the same type of heroin seized from Greenough. The government argued the highest concentration of drugs were morphine and monoacetylmorphine which are monikers for heroin. The government claimed the toxicology report and medical examiner’s report showed these were the drugs that caused or contributed to Reitz’s death

( Apprendi Issue. The Supreme Court has held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). So long as the ultimate sentence remains within the statutory range, we have held Apprendi is not violated. See United States v. Cathey, 259 F.3d 365, 368 n.12 (5th Cir. 2001). Thus, the question is whether Greenough’s penalty was “beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490. The district court did not sentence Greenough under the enhanced statutory provisions in § 841(b)(1)(C) which provide for a mandatory minimum sentence of 20 years and a maximum sentence of life “if death or serious bodily injury results from the use of such substance.” Instead, the court’s Statement of Reasons said Greenough’s offense did not carry a mandatory minimum sentence indicating that she was sentenced under the general provisions of the subsection which provide for a maximum sentence of 20 years of imprisonment.

Greenough was not subject to a mandatory minimum sentence, but rather a statutory maximum. Because the 240 month sentence was not beyond the statutory maximum, we hold that Apprendi was not violated and affirm Greenough’s sentence.

( Interpreting Guideline. We must answer two questions. First, does U.S.S.G. § 2D1.1(a)(2) apply when the indictment does not charge resulting death or serious bodily injury? Second, did Greenough properly raise her objections to the application of

U.S.S.G. § 2D1.1(a)(2) at sentencing. Greenough alleges that it was error to apply the higher Sentencing Guideline for death resulting in the absence of an indictment

alleging death. The government counters that the Sentencing Guidelines permit

a judge to consider all relevant conduct and outcomes in determining the proper

sentence regardless of the wording in the indictment. The government further

argues that evidence of death allegedly caused by a heroin overdose was relevant

to the Guideline adjustment under § 2D1.1. Greenough cites United States v. Bradford, 499 F.3d 910, 918-19 (8th Cir. 2007), and United States v. Pressler, 256 F.3d 144, 157-58 n.7 (3d Cir. 2001), to support her contention. Government further argues that evidence of death allegedly caused by a heroin overdose was relevant to the Guideline adjustment under § 2D1.1. See U.S.S.G. § 1B1.4 (“[i]n determining the sentence to impose within the Guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law”). The question for this court is whether U.S.S.G. § 2D1.1(a)(2) permits relevant conduct not intrinsic to the offense of conviction to be considered by the sentencing court in calculating the Guidelines level.

This court has not previously addressed the meaning of the phrase “the offense of conviction establishes” in § 2D1.1(a)(2), but has recognized other circuits’ attempts to clarify the phrase’s meaning. See Carbajal, 290 F.3d at 284 n.9. Relying on application note 1 to U.S.S.G. § 1B1.1, which defines “offense” as the offense of conviction and all relevant conduct, the Third Circuit has held that the definition of “‘offense of conviction’ is narrower than ‘offense.’” Pressler, 256 F.3d at 157 n.7. While this conclusion was in dicta, the Third Circuit more recently cited Pressler for the proposition that the phrase “‘offense of conviction’ includes only the substantive crime for which a particular defendant was convicted.” United States v. Aquino, 555 F.3d 124, 129 (3d Cir. 2009). The Tenth Circuit has read this phrase in a similarly narrow fashion. See United States v. Blackwell, 323 F.3d 1256, 1260 (10th Cir. 2003). Other circuits, however, have sentenced individuals in a manner that would imply a broader interpretation of the phrase. See United States v. Shah, 453 F.3d 520 (D.C. Cir. 2006) (holding that a “death resulting” Sentencing Guideline may be applied to an individual

who pled guilty to conspiracy to import, distribute, and possess with intent to distribute heroin when one of his drug courriers died from ingesting the heroin to smuggle it and the written plea agreement conceded the death); United States v. Rodriguez, 279 F.3d 947, 951 (11th Cir. 2002) (when the plea agreement admits selling drugs, concedes a purchaser died with the drugs in his system, but the defendant questions whether an intervening cause breaks the chain of causation, it was not clear error to apply § 2D1.1(a)(2)); United States v. Deeks, 303 F. App’x 507, 509 (9th Cir. 2008) (applying § 2D1.1(a)(2) to enhance a drug importation charge when a customer died using the cocaine); see also United States v. Bradford, 499 F.3d 910, 919 (8th Cir. 2007) (while § 2D1.1(a)(2) did not figure into the determination of Bradford’s base offense level, the court is permitted to consider uncharged relevant conduct to justify a departure from the Sentencing Guidelines when an individual pleads guilty to conspiracy to distribute heroin and a buyer dies from the heroin distributed).

( Counterfeit Drugs.

( Conviction for counterfeit drugs dismissed for insufficient evidence.

United States v. Xu, 599 F.3d 452 (5th Cir. March 4, 2010)(09-30111)(1st impression):

( We review de novo the denial of a Rule 29 motion for a judgment of

acquittal. United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008).

( Section 2320 punishes “[w]hoever[] intentionally traffics or attempts to

traffic in goods or services and knowingly uses a counterfeit mark on or in

connection with such goods or services.” 18 U.S.C. § 2320(a)(1). To establish a

violation, the Government must prove that: “(1) the defendant trafficked or

attempted to traffic in goods or services; (2) such trafficking, or the attempt to

traffic, was intentional; (3) the defendant used a counterfeit mark on or in

connection with such goods or services; and (4) the defendant knew that the

mark so used was counterfeit.” United States v. Hanafy, 302 F.3d 485, 487 (5th

Cir. 2002). Xu challenges only the third element—proof that he used a

“counterfeit mark.” Under the statute, a “counterfeit mark” must be “identical

with, or substantially indistinguishable from, a mark registered on the principal

register in the United States Patent and Trademark Office [“USPTO”] and in

use.” 18 U.S.C. § 2320(e)(1)(A)(ii). … proving trademark registration is usually a simple pro forma matter of offering a certified copy of the certificate of registration. Indeed, the Department of Justice’s manual on prosecuting intellectual property crimes explains that this is the preferred procedure for proving registration. UNITED STATES DEPARTMENT

OF JUSTICE, PROSECUTING INTELLECTUAL PROPERTY CRIMES 101 (3d ed. 2006),

available at .

Although offering certificates of registration may be the most straightforward

method of proof, at least two courts have found other types of evidence sufficient.

See United States v. Park, 164 F. App’x 584, 585–86 (9th Cir. 2006)

(unpublished); United States v. DeFreitas, 92 F. Supp. 2d 272, 278 (S.D.N.Y.

2000). … Here, the Government did not introduce a certificate of registration for

Zyprexa. Xu contends that the Government was, therefore, required to produce evidence from which a jury could reasonably conclude that Zyprexa was a trademark registered on the principal register, but that it failed to do so. … The closest the Government came to presenting testimony about the trademark itself was when the Eli Lilly employee was asked about the “little symbol that’s next to Zyprexa” on one of the allegedly counterfeit containers of the medication. The employee stated that it was the “registered trademark

symbol.” This too is insufficient. First, the symbol being discussed was on a package of allegedly counterfeit goods, not authentic drugs, and no effort was made to demonstrate that authentic Zyprexa carried the same symbol. … To prove that the mark was counterfeit, however, the Government was required to demonstrate that the mark was registered on the USPTO’s principal register. 18 U.S.C. § 2320(e)(1)(A)(ii); see also UNITED STATES DEPARTMENT OF JUSTICE, PROSECUTING INTELLECTUAL PROPERTY CRIMES 101 (noting that federal registration on the principal register is a “jurisdictional

element” that must be satisfied to charge a § 2320 violation).

( Rehabilitation and Drug Course. The district court imposed a 28-month sentence so Bitela could participate in a residential drug-abuse treatment program (RDAP). The court said it had received notice from the Bureau of Prisons (BOP) that a 28-month sentence would be required in order to schedule a prisoner for the RDAP. Bitela concedes that United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), forecloses his argument against imposing incarceration for the sole purpose of rehabilitation. Regardless, the record indicates that Bitela’s incarceration was intended to protect the public as well as Bitela, so rehabilitation was not the sole ground for Bitela’s imprisonment. A prisoner’s need for rehabilitation is a valid consideration in selecting the length of a sentence of imprisonment on revocation of supervised release. Id. at 1094-97. Bitela fails to show that the court committed a clear or obvious error by relying on notice from the BOP that a 28-month sentence would be necessary to schedule Bitela for the RDAP.

(JE: Case negated by Tapia.

( Enhancement for Special Skill as Pilot—Boat Driver. Defendant challenged

two level enhancement under USSG § 2D1.1(b)(2)(B) after he was caught with

several hundred pounds of marijuana on Lake Falcon by game wardens. Claimed

he was not a navigator or pilot as he lacked compass, etc. Affirmed. United States v.

Bautista-Montelongo, 618 F.3d 464 (5th Cir. Sept. 3, 2010)(09-41133). Three circuits have addressed the captain-pilot increase, and all three have refused to construe it as narrowly as Bautista urges. See United States v. Cartwright, 413 F.3d 1295, 1298 (11th Cir. 2005); United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003); United States v. Senn, 129 F.3d 886, 896-97 (7th Cir. 1997); United States v. Guerrero, 114 F.3d 332, 346 (1st Cir. 1997). In each of these cases, the defendant(s) made arguments similar to Bautista’s, and all such arguments were rejected, with the courts holding that the terms within § 2D1.1(b)(2) should be given their everyday meaning. We adopt the holdings of our sister circuits. Thus, here, where Bautista drove a boat containing contraband, the trial court properly applied the captain-pilot enhancement.

( Cannot Extend Sentence for Rehab Purposes to Get D in Drug Classes.

Tapia v. United States, 564 U.S. ____, 131 S. Ct. 2382 (June 16, 2011)(10-5400).

( Fifth Circuit Follows Tampia: United States v. Henderson, __ F.3d ___ (5th Cir. July 8, 2011)(10-30571): Lower court erred under Tapia but, because defendant did not object, error was not plain error. At the time of trial, the Supreme Court had not yet decided Tapia and, as we have just explained, we had not yet addressed the question. Where we have not previously addressed a question, any error cannot be plain. United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) (“We conclude that any error by the district court in this regard was not plain or obvious, as we have not previously addressed this issue.” (citing United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994)(en banc))).

( Tapia Does Not Extend to Supervised Release. However, Tapia does not extend to sentences on revocation of supervised released because the statute of SR gives rehabilitation as a goal. United States v. Breland, __ F.3d __ (5th Cir. July 19, 2011)(10-60610). This Court has addressed this question once before. In United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), a panel of this Court heard an appeal from a sentence of imprisonment that was imposed following mandatory revocation of supervised release pursuant to a prior version of § 3583(g). …[N]otwithstanding the language contained in § 3582(a), a district court is permitted to consider the rehabilitative factors contained in § 3553(a)(2)(D)when determining the length of the term of imprisonment imposed upon mandatory revocation. Id. at 1097. Although the Court expressly declined to address whether the same would be true under § 3583(e) (the discretionary revocation provision), id. at 1095, the reasoning in its opinion remains highly instructive.

( Cocaine Base. Depierre v. United States, 564 U.S. ___ (U.S. June 9, 2011)(09-1533):

Anti-Drug Abuse Act of 1986 (ADAA) provides a mandatory 10-year minimum sentence for certain drug offenses involving “(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of . . . (II) cocaine, its salts, optical and geometric isomers, and salts of isomers, [or] (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base.” 21 U. S. C. §841(b)(1)(A).

( Held: “[C]ocaine base,” as used in §841(b)(1), means not just “crack cocaine,” but cocaine in its chemically basic form. The most natural reading of “cocaine base” in clause (iii) is cocaine in its chemically basic form—i.e., the molecule found in crack

cocaine, freebase, and coca paste. On its plain terms, then, “cocaine base” reaches more broadly than just crack cocaine. … Congress had good reason to use “cocaine base”—to make clear that clause (iii) does not apply to offenses involving cocaine hydrochloride (i.e., powder cocaine) or other non-basic cocaine-related substances.

Drug Trafficking Offense for Immigration Purposes

( Delivery by actual transfer of marijuana is an offense that qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A). See United States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.), cert. denied, 129 S. Ct. 353 (2008); United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.), cert. denied, 127 S. Ct. 3031 (2007).

( This court reviews de novo a district court’s conclusion that a prior conviction

constitutes a drug trafficking offense. United States v. Gutierrez-Ramirez, 405 F.3d 352, 355-56 (5th Cir. 2005).

( We employ a categorical approach to determine whether a prior conviction qualifies as a drug trafficking offense under § 2L1.2. United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Under that approach, the court first “looks to the elements of [the] prior offense, rather than to the facts underlying the conviction . . . .” United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). In some instances, the judgment alone may be sufficient. See, e.g., United States v. Gonzalez, 312 F. App’x 618, 620 (5th Cir.), cert. denied, 130 S. Ct. 291 (2009). (Unpublished opinions issued on or after January 1, 1996, are not precedent. 5TH CIR. R. 47.5.4.) But, if necessary, the court may consider such reliable documents as the charging instrument, plea agreement, or jury instructions, id., but may not rely solely on the PSR, see Garza-Lopez, 410 F.3d at 274.

( From United States v. Henao-Melo, (5th Cir. Dec. 23, 2009)(08-41313)(unreported): In Pillado-Chaparro, 543 F.3d 202 (5th Cir. 2008) (per curiam), cert. denied, 129 S. Ct. 2766 (2009), we held that a § 843(b) conviction can constitute drug trafficking for purposes of enhancement under § 2L1.2(b)(1)(A)(i). For persuasive support, we relied on United States v. Orihuela, 320 F.3d 1302 (11th Cir. 2003), which analogized the § 2L1.2 definition of “drug trafficking offense” to the nearly identical § 4B1.2 definition of “controlled substance offense,” thereby importing the more extensive § 4B1.2 caselaw, to conclude that a § 843(b) conviction can fall under § 2L1.2. There is, admittedly, some broad language in Pillado-Chapparo that might seem to suggest the government’s conclusion. Language that is just as similarly broad can be found in Orihuela. Nevertheless, it would be incorrect to read Pillado-Chaparro so broadly as to say that all § 843(b) convictions for which the sentence imposed exceeded thirteen months are necessarily drug trafficking offenses, no matter the particulars of the underlying felony narcotics offense.

( United States v. Castillo, (5th Cir. Aug 4, 2011)(10-20503):

Under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990), a district court must look to the elements of a prior offense, not the facts underlying the conviction, when classifying that offense for sentence-enhancement purposes. United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). In a “narrow range of cases”, such as when determining whether a prior conviction was a “drug trafficking offense”, a district court may look beyond the elements of the offense. Id. (citation and internal quotation marks omitted). Even where the court looks beyond those elements, however, it is “not free to consider any facts, but may consider the statutory definition of the offense, the charging paper, and the jury instructions”. Id. A district court may not rely solely on the presentence investigation report’s characterization of the prior offense in applying an enhancement. Id. at 274. In United States v. Lopez-Salas, 513 F.3d 174, 180 (5th Cir. 2008), our court held: to qualify as a drug-trafficking offense under the Guidelines, the relevant statute must include “intent to distribute” as an element; and, that element must be proven and not implied. Castillo’s reliance on Lopez-Salas is misplaced, because the statute at issue includes “intent to distribute” as an element of the offense that must be proven.

Drug Rehab Programs

( Gallegos-Hernandez, __ F.3d __ (5th Cir. July 18, 2012)(10-50943):

28 U.S.C. § 2241 is the proper procedural vehicle if a prisoner “challenges the execution of his sentence rather than the validity of his conviction and sentence.” United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). Here, Gallegos maintains he is being denied benefits that could result in a one-year reduction in his sentence. As we have noted, participation in the rehabilitation program can result in a reduction in sentence of up to twelve months. A claim challenging the denial of entry into the program therefore is properly raised under § 2241 and the district court erred in concluding it lacked subject-matter jurisdiction of Gallegos’s § 2241 petition. See Cervante v. United

States, 402 F. App’x 886, 887 (5th Cir. 2010) (court had subject-matter

jurisdiction over § 2241 claim seeking admission into drug rehabilitation program); see also Rublee v. Fleming, 160 F.3d 213, 214-17 (5th Cir. 1998); Carvajal v. Tombone, 31 F. App’x 155 (5th Cir. 2001)

( Amendment 782 United States v. Leatch, __ F.3d __ (5th Cir. June 6, 2017)(16-10701). D’s 262 month sentence for cocaine trafficking was reduced to 235 months under Amendment 782 after his conviction. He now contends that he should have received a greater reduction to account. We decide whether a district court considering a motion to reduce a sentence based on a retroactive change to the Guidelines must disregard any downward departures previously granted (other than one based on substantial assistance to the government) and, if so, whether this poses any constitutional or other problems. … The district court determined that Amendment 782 reduced the applicable sentencing range to 235-293 months and imposed a new sentence of 235 months. Leatch asserted that the district court should also reapply the criminal history category departure in determining the new range. With that departure included, the new range would be 210-262 months. The district court reluctantly concluded, however, that U.S.S.G. § 1B1.10 forbade the consideration of any departures in determining the applicable guideline range for a sentencing reduction. … Chapter 4 first lists the points assigned to prior convictions that a court uses to “determine the criminal history category.” Id. § 4A1.1 (emphasis added). Only after that calculation is performed does Section 4A1.3 come into play, which discusses the procedure for “[d]epartures based on inadequate criminal history category.” A “departure” is a divergence from the norm. By definition then, the departure Leatch received at his first sentencing was something outside the originally calculated range. United States v. Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007) (“When a sentencing court found such an exception and exercised its limited discretion to sentence outside the applicable Guidelines range, the court was said to be engaging in a ‘departure’ from the Guidelines.”); United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (noting that a Presentence Report discussed the possibility that the “Court could depart from the guideline range under U.S.S.G. § 4A1.3” (emphasis added)). Indeed, the Rule of Criminal Procedure recognize that a departure like the one Leatch received is apart from, rather than part of, the “applicable sentencing range.” FED. R. CRIM. P. 32(d). The rule provides that a presentence report must, among other things: 1) “calculate the defendant’s offense level and criminal history category; 2) “calculate the resulting sentencing range;” and 3) only then, “identify any basis for departing from the applicable sentencing range.” Id.

The key term the Guidelines use as the starting point for a reduction is the “applicable” guideline range.3 U.S.S.G. 1B1.10(b)(1); United States v. Montanez, 717 F.3d 287, 292 (2d Cir. 2013) (noting that this section’s “use of the word ‘applicable’ has technical significance”). Commentary defines “applicable guideline range” as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to section 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” § 1B1.10, comment. n.1(A) (2014) (emphasis added). … /see also USSG § 1B1.10 cmt, n. 3. …. The commentary thus “lead[s] to the ineluctable conclusion that a court does not depart under § 4A1.3 when calculating a defendant’s applicable guideline range, but instead departs from the applicable guideline range under § 4A.1.3 after having calculated that range.” United States v. Montanez, 717 F.3d 287, 292 (2d Cir. 2013). And that means the post-departure range cannot be used as the starting point when calculating the amended range for a sentencing reduction. Montanez, 717 F.3d at 291–94. This is the unanimous view of the circuits that have decided the question since the Commission in 2011 added the commentary providing that the “applicable guideline range” is “the guideline range that corresponds to the offense level and criminal history category determined pursuant to section 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” U.S.S.G. app. C, amend 759 (2011). See Montanez, 717 F.3d at 294. (Case cites other circuits for the same position).

Due Process—Agency is both Investigative and Prosecutive Body

( Knapp v. U.S. Department of Agriculture, __ F.3d ___ (5th Cir. July 31, 2015)(14-60002), quoting:

( An agency’s “dual role[] of investigating and adjudicating disputes and complaints” does not alone demonstrate unconstitutional bias. Baran v. Port of Beaumont Navigation Dist. of Jefferson Cnty. Tex., 57 F.3d 436, 446 (5th Cir. 1995). Rather,“[a]dministrative officers are presumed objective and capable of judging a particular controversy fairly on the basis of its own circumstances.” Menard v. FAA, 548 F.3d 353, 361 (5th Cir. 2008) (alteration in original). “[W]e have held that we will not infer bias when no evidence is presented to indicate that a hearing officer’s mind was irrevocably closed.” Baran, 57 F.3d at 446.

Duplicity of Charges

( “Duplicity occurs when a single count in an indictment contains two or more distinct offenses. Even if an indictment is duplicitous, a defendant must be prejudiced to receive relief[.]”). United States v. Miller, 520 F.3d 504, 512 (5th Cir. 2008)

Duress

( From United States v. Montes, (5th Cir. March 26, 2010)(08-10932)(unreported):

A duress defense requires that the defendant present evidence of each of the following four elements:

(1) that the defendant or a member of his family was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious body injury;

(2) that he did not recklessly or negligently place himself in a situation in which it was probable that he would be forced to choose the criminal conduct;

(3) that he had no reasonable legal alternative to violating the law, that is, he had no chance to refuse to do the criminal act and to avoid the threatened harm; and

(4) that there was a direct causal relationship between the criminal action taken and the avoidance of the threatened harm.

--United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994).

Dying Declaration (Quasi) Upheld under Confrontation

( Michigan v. Bryant, __ U.S. ___ (2011)(09-150)(Feb. 28, 2011).

( Held: Covington’s identification and description of the shooter and the

location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an ongoing emergency ” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 5– 32.

(a) In Crawford, this Court held that in order for testimonial evidence to be admissible, the Sixth Amendment “demands . . . unavailability and a prior opportunity for cross-examination.” 541 U. S., at 68. Crawford did not “spell out a comprehensive definition of ‘testimonial,’ ” but it noted that testimonial evidence includes, among other things, “police interrogations.”

( objectively evaluate the circumstances in which the encounter between the individual and the police occurs and the parties’ statements and actions. Pp. 12–23.

(1) The primary purpose inquiry is objective. The circumstances in which an encounter occurs—e.g., at or near a crime scene versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. And the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose

of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements and actions and the circumstances in which the encounter occurred. P. 13.

(2) The existence of an “ongoing emergency” at the time of the encounter is among the most important circumstances informing the interrogation’s “primary purpose.” See, e.g., Davis, 547 U. S., at 828– 830. An emergency focuses the participants not on “prov[ing] past events potentially relevant to later criminal prosecution,” id., at 822, but on “end[ing] a threatening situation.

(3) The statements and actions of both the declarant and interrogators also provide objective evidence of the interrogation’s primary purpose. Looking to the contents of both the questions and the answers ameliorates problems that could arise from looking solely to one participant, since both interrogators and declarants may have mixed motives. Police officers’ dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. And during an ongoing emergency, victims may want the threat to end, but may not envision prosecution. Alternatively, a severely injured victim may have no purpose at all in answering questions. Taking into account such injuries does not make the inquiry subjective. The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim’s circumstances, which prominently include the victim’s physical state.

( SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SCALIA, J., and GINSBURG, J., filed dissenting opinions. KAGAN, J., took no part in the consideration or decision of the case.

( Supreme Court of Michigan …did not address whether, absent a Confrontation

Clause bar, the statements’ admission would have been otherwise consistent with Michigan’s hearsay rules or due process.1

1

The Supreme Court of Michigan held that the question whether the victim’s statements would have been admissible as “dying declarations” was not properly before it because at the preliminary examination, the prosecution, after first invoking both the dying declaration and excited utterance hearsay exceptions, established the factual foundation only for admission of the statements as excited utterances. The trial court

ruled that the statements were admissible as excited utterances and did not address their admissibility as dying declarations. … This occurred prior to our 2004

decision in Crawford v. Washington, 541 U. S. 36, where we first

suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause. Id., at 56. … Because of the State’s failure to preserve its argument with regard to dying declarations, we similarly

need not decide that question here. “Factual determinations regarding loss amount for guideline calculation purposes are reviewed for clear error.” Taylor, 582 F.3d at 564.

The Guidelines do not define “Government Benefits.” Decisions from our

sister circuits provide useful analysis. The Eighth Circuit held that a district court properly applied the government-benefits rule where a defendant used funds from a government program dedicated to asbestos removal to perform renovations unrelated to asbestos removal. United States v. Peters, 59 F.3d 732, 733 (8th Cir. 1995). The Seventh Circuit described contracts received under a municipal ordinance directing contracts to “minority- and woman-owned businesses” as a government benefit. United States v. Leahy, 464 F.3d 773, 790 (7th Cir. 2006). … The Eleventh Circuit described the Disadvantaged Business Enterprises (“DBE”) program as an “affirmative action program[] aimed at giving exclusive opportunities to certain women and minority businesses,” and as such was a government-benefit program. United States v. Maxwell, 579 F.3d 1282, 1306 (11th Cir. 2009); see also United States v. Bros. Constr. Co. of Ohio, 219 F.3d 300, 317-18 (4th Cir. 2000) (applying the government-benefits rule in a case involving contracting with a DBE). The court concluded that unlike standard construction contracts, DBE “contracts focus mainly on who is doing the work.” Maxwell, 579 F.3d at 1306. … Contracts obtained through the JWOD program can be distinguished in the same manner: the focus in the JWOD program is on providing employment opportunities for the severely disabled, not on the specific product or service provided. The district court did not err in applying the government-benefits rule

in this case and declining to use the price-variance method urged by Lopez. Although the district court did not err in applying the government-benefits rule, it failed to exclude the benefits that reached intended beneficiaries. The government-benefits rule was revised in 2001 “to clarify that loss . . . only includes amounts that were diverted from intended recipients or uses,” not amounts received by authorized persons. U.S.S.G. app. C vol. II, at 180 (2010).

Economic Losses-- Determination of Loss

From United States v. Lopez, (5th Cir. Aug. 20, 2012)(11-50326):

The district court determined that a special rule for government benefits

applied in this case. This rule provides that “loss shall be considered to be not

less than the value of the benefits obtained by unintended recipients or diverted

to unintended uses.” U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). The district court found

that because NCED did not meet the 75% threshold, it was an “unintended

recipient” of JWOD contracts. Further, the district court found that Lopez

should be accountable for the contracts from the time of the certification in

October 2005 through March 2006 when the false statement was discovered.

We review the district court’s method for determining loss de novo as an

application of the Guidelines. United States v. Harris, 597 F.3d 242, 250-51 (5th

Cri. 2010).

Eighth Amendment.

( This court reviews de novo an Eighth Amendment challenge to a sentence. See Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003). Questions of statutory interpretation are also reviewed de novo. See United States v. Clayton, 613 F.3d 592, 595 (5th Cir. 2010).

( The Eighth Amendment prohibits a sentence that is grossly disproportionate to the crime for which it is imposed. See United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997). When evaluating an Eighth Amendment proportionality challenge, this court makes a threshold comparison between the gravity of the charged offense and the severity of the sentence. SeeMcGruder v. Puckett, 954 F.2d 313, 315–16 (5th Cir. 1992). Only if the sentence is grossly disproportionate to the offense do we go on to compare the sentence at issue with (1) sentences imposed for similar crimes in the same jurisdiction, and (2) sentences imposed for the same crime in other jurisdictions. Id. at 316. If

this court concludes that the sentence is not grossly disproportionate, our inquiry is at an end. Gonzales, 121 F.3d at 942. It is “exceedingly rare” for a non-capital sentence to violate the Eighth Amendment. Rummel v. Estelle, 445 U.S. 263, 272 (1980). We have previously considered sentences imposed under § 924(c) similar in duration to those presented here and have found that such sentences do not violate the Eighth Amendment. See United States v. Looney, 532 F.3d 392, 396–97 (5th Cir. 2008) (finding 30-year sentence enhancement under § 924(c) constitutional); Gonzales, 121 F.3d at 942–44 (same). Our sister circuits have found likewise on similar facts. See, e.g., United States v. Robinson, 617 F.3d 984, 990–91 (8th Cir. 2010); United States v. Angelos, 433 F.3d 738, 750–53 (10th Cir. 2006). We adopt the reasoning employed in these cases and find, as a

threshold matter, that the Zavalas’ 55-year sentences are not grossly disproportionate to the gravity of their offenses. The Zavalas argue that their cases are distinguishable because, unlike ordinary § 924(c) convictions and sentences that hold the defendant accountable for his own criminal conduct, here, the Zavalas are being punished for the

conduct of another (i.e., Balderas). This distinction is intriguing, as it implicitly

asks us to consider the outer bounds of accomplice liability under Pinkerton as both Eighth Amendment and due process matters. See United States v. Castaneda, 9 F.3d 761, 766 (9th Cir. 1993) (“due process constrains the application of Pinkerton where the relationship between the defendant and the substantive offense is slight.”). We need not define the outer boundaries of Pinkerton liability today, however, given the central roles that Rene and Jose Zavala held in the drug trafficking conspiracy prosecuted. There is no lingering due process question after our finding that Balderas’s firearm possession was

foreseeable. See Zavala, 286 F. App’x at 174–75; see also Castaneda, 9 F.3d at 766 (“The foreseeability concept underlying Pinkerton is also the main concern underlying a possible due process violation.”).

( The Eighth Amendment prohibits a sentence that is grossly disproportionate to the severity of the crime for which it is imposed. Solem v. Helm, 463 U.S. 277, 288-90 (1983). When evaluating an Eighth Amendment proportionality challenge, the first step is to make a threshold comparison between the gravity of the charged offense and the severity of the sentence; if this comparison does not show the sentence is disproportionate, our analysis ends. E.g., McGruder v. Puckett, 954 F.2d 313, 316-17 (5th Cir. 1992). Our court looks to Rummel v. Estelle, 445 U.S. 263 (1980), as a benchmark. See McGruder, 954 F.2d at 317. Johnson’s 60-month prison sentence is not grossly disproportionate to the severity of her conspiracy offense when measured against the benchmark in Rummel, 445 U.S. at 284-85 (affirming life imprisonment for defendant convicted of obtaining $120.75 by false pretenses and sentenced under state “recidivist statute”). Accordingly, Johnson has not demonstrated the requisite

clear or obvious error. See United States v. Helm, 502 F.3d at 368-69.

( Disproportionality. United States v. Carreon-Ibarra, (5th Cir. Oct. 18, 2013)(12-41230): Because Carreon-Ibarra adequately preserved his Eighth Amendment

challenge, the court reviews this constitutional claim de novo. United States

v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). The Eighth Amendment

prohibits a sentence that is grossly disproportionate to the severity of the crime

for which it is imposed. Solem v. Helm, 463 U.S. 277, 288-90, 103 S. Ct. 3001,

3008-10 (1983); United States v. Gonzalez, 121 F.3d 928, 942 (5th Cir. 1997),

abrogated on other grounds by United States v. O’Brien, 560 U.S. 218, 130 S. Ct.

2169 (2010). When evaluating an Eighth Amendment proportionality

challenge, the court makes a threshold comparison between the gravity of the

charged offense and the severity of the sentence. McGruder v. Puckett,

954 F.2d 313, 315-16 (5th Cir. 1992). Only if the appellate court infers that

the sentence is grossly disproportionate to the offense will it then compare the

sentence received against the sentences for similar crimes in the same

jurisdiction and sentences for the same crime in other jurisdictions. Id. at 316.

The scope of review for proportionality challenges is narrow, United States v.

Thomas, 627 F.3d 146, 160 (5th Cir. 2010), and the success of such challenges

rare. United States v. Looney, 532 F.3d 392, 396 (5th Cir. 2008).

The Supreme Court has held that a sentence of imprisonment for life

without parole for the defendant’s seventh nonviolent felony—the crime of

passing a worthless check—violated the Eighth Amendment. Solem, 463 U.S.

at 284-303. In other cases, the Court has upheld a sentence under state law to

life without parole for possession of more than 650 grams of cocaine, Harmelin

v. Michigan, 501 U.S. 957, 990-96, 111 S. Ct. 2680, 2699-2702 (1991), a

sentence of 25 years to life for the theft of a few golf clubs under California’s

three-strikes law, Ewing v. California, 538 U.S. 11, 14-30, 123 S. Ct. 1179,

1182-99 (2003), and a sentence of life with the possibility of parole for a

defendant’s third nonviolent felony—the crime of obtaining money by false

pretenses, Rummel v. Estelle, 445 U.S. 263, 264-85, 100 S. Ct. 1133, 1134-45

(1980). To determine whether a sentence is “grossly disproportionate,” this

court looks to Rummel as a benchmark. Gonzales, 121 F.3d at 943.

Here, the gravity of Carreon-Ibarra’s offense is substantially greater

than were the crimes punished in Rummel. Carreon-Ibarra operated on behalf

of the infamous Zetas, and planned to execute a member of another Mexican

drug cartel in a public forum in the United States using a firearm that posed

a serious threat of causing collateral damage to innocent bystanders

Endangerment Enhancement -- Aliens--USSG § 2L1.1(b)(6).

( Use of Pickup Bed to Transport + Endangerment. United States v. Maldonado-Ochoa, ___ F.3d ___ (5th Cir. Dec. 27, 2016)(15-40424)(Slight movement of

pickup with aliens in truck bed was endangerment):

( II. We review a district court’s interpretation of the Sentencing Guidelines de novo. United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010) (per curiam). Section 2L1.1(b)(6) applies, by its terms, where “the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The application notes provide, Reckless conduct to which the adjustment . . . applies includes a wide variety of conduct (e.g., transporting persons in the trunk or engine compartment of a motor vehicle; carrying substantially more passengers than the rated capacity of a motor vehicle or vessel; harboring persons in a crowded, dangerous, or inhumane condition; or guiding persons through, or abandoning persons in, a dangerous or remote geographic area without adequate food, water, clothing, or protection from the elements). U.S.S.G. § 2L1.1, cmt. n.5. Section 2L1.1(b)(6)’s expansive language “must be given some restrictive meaning.” United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005). Moreover, in applying that subsection, courts must engage in a “fact-specific inquiry.” United States v. Mata, 624 F.3d 170, 174 (5th Cir. 2010) (per curiam). Accordingly, we have avoided creating bright-line rules for this provision.

See, e.g., United States v. Mateo Garza, 541 F.3d 290, 294–95 (5th Cir. 2008) (explaining that this circuit does not apply per se rules in Section 2L1.1(b)(6) cases); United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006) (stating that “a single, bright-line test is not necessarily appropriate for a guideline that must be applied to a wide variety of factual settings.”).

( We have repeatedly held that the Section 2L1.1(b)(6) enhancement is appropriate where the defendant transported unrestrained aliens in the bed of a pickup truck. The logic is straightforward: Transporting anyone in the bed of a pickup is inherently dangerous. The leading case is United States v. Cuyler, 298 F.3d 387 (5th Cir. 2002), in which the defendant was driving on an interstate with four illegal aliens in the bed of his pickup. We held that Section 2L1.1(b)(6) applied because the aliens “easily could have been thrown from the truck and almost certainly would have been injured in the event of an accident.” Id. at 390. Though the defendant was driving on a highway, in recent years we have interpreted the holding to apply any time a defendant transported unrestrained aliens in a pickup bed that was not covered by a camper shell. See United States v. Romero, 328 F. App’x 300, 301 (5th Cir. 2009) (per curiam) (quoting United States v. Angeles-Mendoza, 407 F.3d 742, 751 (5th Cir. 2005)) (“Cuyler ‘dictates that the [Section 2L1.1(b)(6)] adjustment is appropriate where the smuggled aliens are transported in the bed of a pickup truck.’”); United States v. Guevara-Hernandez, 251 F. App’x 859, 860 (5th Cir. 2007) (per curiam) (“Transporting aliens in the bed of a pickup truck creates a substantial risk of death or serious bodily injury.”); Angeles-Mendoza, 407 F.3d at 751 (“[T]he [Section 2L1.1(b)(6)] adjustment is appropriate where the smuggled aliens are transported in the bed of a pickup truck.”).

( Covering a truck bed with a tarp does not protect the aliens who are lying underneath it. Angeles-Mendoza, 407 F.3d 742, 751 n.16 (5th Cir. 2005).

( From U.S. v. Trujillo-Reyes, 318 Fed. App’x 286 (5th Cir. 2009)(07-11107):

In United States v. Pineda-Jimenez, 212 F. App’x 369 (5th Cir. 2007), we rev’d a sentence applying the enhancement under nearly identical factual circumstances. Importantly, we said that “[t]he government provided insufficient support for the enhancement” and noted that “[i]t is conceivable that in this case (or in other future cases) the government can make a showing as to the specific dangers facing those who are riding in the bed of a truck covered by a camper shell . . . .” Id. at 373. Here, the

government attempted to make such a showing, so we must determine whether

the specific danger justified application of the enhancement. In United States v. Cuyler, 298 F.3d 387 (5th Cir. 2002), we affirmed the enhancement where the aliens had been riding in the uncovered bed of a pickup. We noted that “[a]liens who are unrestrained easily can be thrown from the bed of the pickup in the event of an accident or other driving maneuver of the sort that is unavoidable in highway driving.” Id. at 391. Later, in United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005), we reversed the enhancement where aliens were transported unrestrained in the cargo area of a minivan, reasoning that “[t]he only dangers . . . associated with riding in the cargo area of the

minivan are generally the same dangers that arise from an individual not wearing a seatbelt in a moving vehicle.” Finally, in United States v. Zuniga-Amezquita, 468 F.3d 886 (5th Cir. 2006), we affirmed the enhancement where aliens were transported unrestrained in the cargo area of a van surrounded by boxes. We outlined five factors to consider when applying the enhancement—“the availability of oxygen, exposure to temperature extremes, the aliens’ ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurs”—and distinguished Solis-Garcia on the ground that the boxes made it difficult to exit the vehicle and created danger in case of an accident, because they “could fly around and strike or land on top of the aliens.” Id. at 889-90. The enhancement was appropriate here. To begin, the two aggravating factors described in Zuniga-Amezquita are present here: The PSR adopted by the district court determined both (1) that it would have been difficult for the aliens to exit the vehicle quickly because the camper shell did not open easily from the inside and (2) that “if there had been an automobile accident, there likely would have [been] multiple injuries to the occupants of the camper shell as none were restrained and also based on their close proximity to each other.”

( USSG § 2L1.1(b)(6) provides for an enhancement for reckless endangerment in transporting an undocumented alien in the United States. Although there is no single bright-line test for determining the applicability of this adjustment, the Fifth Circuit has provided a non-exhaustive list of five factors to consider when applying this adjustment:

“the availability of oxygen, exposure to temperature extremes, the aliens’ ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurs.” United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). Generally, carrying passengers in the cargo area of a sports utility vehicle (SUV) would not justify a reckless endangerment enhancement, see id. at 889, however, the district court found a number of aggravating factors to support the enhancement in United States v. Goodman, __ F. App’x __ (5th Cir. Dec. 31, 2009)(09-40610)( aliens who were “crammed” on their sides on the floor of the cargo area of a SUV vehicle, underneath a blanket and other objects, were placed at a substantial risk of harm). Based on the sworn statements of the aliens and the photographs introduced into evidence in Goodman, the district court found the following relevant factors: insufficient oxygen, extreme temperatures, the aliens’ inability to communicate with the driver, and their inability to extricate themselves quickly from the cargo area. Although Goodman disagreed with the statements of the aliens, the district court’s findings were plausible in light of the record presented. Cf. United States v. Angeles-Mendoza, 407 F.3d 742, 750 (5th Cir. 2005).

( Chapa is accountable for “all reasonably foreseeable acts and omissions of others in furtherance of [a] jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).

Although there is no per se rule that guiding a group of aliens through the South Texas brush in August is inherently dangerous, United States v. Mateo-Garza, 541 F.3d 290, 294 (5th Cir. 2008).at 294, there is ample evidence that, as it turned out, this August trip through the South Texas brush was dangerous (facts then recited): United States v. Chapa, (5th Cir. Jan. 22, 2010)(09-40112)(unreported).

( From United States v. Torres, (5th Cir. Mar. 23, 2010)(09-40678)(unreported):

Enhancement reversed based on small child hiding in sleeper part of tractor that

was 15 inches high by 15 inches deep by 36 inches wide.

( Section 2L1.1(b)(6) requires a case-specific analysis, United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005). In deciding whether to apply the reckless endangerment enhancement, district courts are to consider five non-exhaustive factors: (1) the availability of oxygen; (2) exposure to temperature extremes; (3) the alien’s ability to communicate with the driver of the vehicle; (4) the alien’s ability to exit the

vehicle quickly; and (5) the danger to the alien if an accident occurs. United States v. Garza, 587 F.3d 304, 310 (5th Cir. 2009); United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006). It is not per se reckless endangerment merely to transport aliens unrestrained in an area of the vehicle not normally intended for travel. United States v. McKinley, 272 F. App’x 412, 413 (5th Cir. 2008) (unpublished) (finding enhancement not warranted where one alien was found in the sleeper cab closet and three aliens were found “beneath a mattress”); United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005) (finding enhancement not warranted where four aliens were lying in the cargo area of a minivan).

( United States v. Mata, 624 F.3d 170 (5th Cir. 2010): Reckless endangerment enhancement. Hiding alien under baby stroller held endangerment.

( United States v. Ramos-Ramos, (5th Cir. May 11, 2011)(10-40895)(pregnant alien

who fled without water or food): L1.1(b)(6). Under these circumstances, and without determining whether foreseeability is required for application of § 2L1.1(b)(7), it was foreseeable that bodily injury might occur during the offense in which Ramos participated. See United States v. De Jesus-Ojeda, 515 F.3d 434, 441-44 (5th Cir. 2008). Moreover, Ramirez-Ortiz suffered bodily injury within the meaning of the Guidelines, as

her complaint of abdominal pain was serious enough to require an overnight visit in a hospital where she received IV medication and she and her unborn child were monitored for injury. See § 1B1.1, comment. (n.1(B)); United States v. Eubanks, 593 F.3d 645, 651-52 (7th Cir. 2010).

( United States v. Rodriguez, 630 F.3d 377 (5th Cir. 2011): Trial court erred in enhancing danger level for merely carrying aliens in cargo area of SUV and doing U-turn across highway.

( United States v. Gomez-Aguirre, (5th Cir. July 28, 2011)(10-20683):

The determination whether the harm experienced by the aliens rises to the level of “serious bodily injury” rather than “bodily injury” is a question of fact. See United States v. Davis, 19 F.3d 166, 171 (5th Cir. 1994) (noting that the severity of a victim’s injury is a question of fact); see also United States v. Garza-Robles, 627 F.3d 161, 169-70 (5th Cir. 2010) (affirming district court’s factual finding that defendant suffered serious bodily injury). Because the district judge’s factual finding was plausible in light of the record as a whole, Gomez-Aguirre fails to establish error, much less plain error. See United States v. Wilcox, 631 F.3d 740, 753 (5th Cir. 2011)(Even where the objection is preserved, “the court must determine whether the district court’s conclusion was plausible in light of the record as a whole” in assessing the propriety of a sentencing enhancement).

( Degree of causation is unresolved. See excellent review in United States v. Alvarado-

Casas, (5th Cir. May 14, 2013)(12-40295).

( Use of Trunk or Engine compartment Triggers Endangerment. The transportation of aliens in the trunk of a vehicle is specifically listed in the comments to § 2L1.1(b)(6) as the type of conduct contemplated by the Sentencing Commission in drafting the guideline provision. § 2L1.1, comment. (n.3); see United States v. Mateo-Garza, 541 F.3d 290, 294 (5th Cir. 2008) (stating that transporting persons in a trunk or engine compartment of a vehicle per se creates a substantial risk of serious injury or death because those areas are not designed to hold human passengers). From United States v. Muniz, (5th cir. Jan. 3, 2017)(16-40026).

Enhancement—Other

( When classifying a conviction for sentencing enhancement purposes, this court employs the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990), and looks to the elements of the prior offense, rather than to the facts underlying the conviction. See United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). However, when a defendant has violated a statute that contains multiple disjunctive sections that prohibit conduct that will support a sentence enhancement and other conduct that will not support an enhancement, courts may look to “certain conclusive records

made or used in adjudicating guilt” to determine which section applies to the defendant’s conviction. United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (internal quotation marks and citation omitted). “This court has held that the determination of whether a “drug trafficking offense” was committed falls into the narrow range of cases where the court may consider information other than the statutory definition of the offense.” Garza-Lopez, 410 F.3d at 273. A case involving the determination of whether a “controlled substance offense” occurred is treated in the same manner, since the Guidelines’ definition for “drug trafficking offense” is almost identical to the definition of “controlled substance offense.” See United States v. Ford, 509 F.3d 714, 718 n.2 (5th Cir.2007).

( Although the “‘sentence is a long one . . . . it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.’” Ewing v. California, 538 U.S. 11, 30 (2003)).

( United States v. Winkkerink, __ F.3d___ (5th Cir. Oct. 31, 2016)(15-30152):

the district court applied sentencing enhancements pursuant to § 2252A(b)(1) and U.S.S.G. § 4B1.5(a)(CHILD PHOTOGRAPHY ENHANCMENTS. On appeal, Wikkerink argues the district court erred in applying these sentencing enhancements to the calculation of his Guidelines range. Although the district court made a clear and obvious error that affected Wikkerink’s substantial rights, we hold that the error does not seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus we AFFIRM.

Generally, courts employ a categorical approach when classifying a previous conviction for sentence enhancement purposes. See Taylor v. United States, 495 U.S. 575, 602 (1990). “Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than a defendant’s specific conduct.” United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc). A court must compare the elements of the statute of conviction for the prior offense with the elements of the “generic crime” warranting a sentencing enhancement. Descamps v. United States, 133 S. Ct. 2276, 2281, 2284 (2013). The prior conviction qualifies the defendant for a sentencing enhancement “only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Id. at 2281. When the statute of conviction is “divisible”—that is, “comprises multiple, alternative versions of the crime”—a court may apply the modified categorical approach “to determine which alternative formed the basis of the defendant’s prior conviction.” Id. at 2281, 2284. In doing so, a court may review “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005). “The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Descamps, 133 S. Ct. at 2281. In the present case, the district court made a clear and obvious error when it relied solely on the PSR in concluding that Wikkerink’s previous state conviction warranted sentencing enhancements under 18 U.S.C. § 2252A(b)(1) and U.S.S.G. § 4B1.5(a). See United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006); Garza-Lopez, 410 F.3d at 274. However, we must ask “whether there is plain error at the time of appellate consideration.” Martinez-Vega, 471 F.3d at 562. Therefore, this Court can consider the statute of conviction and the record as supplemented on appeal to determine whether the Louisiana offense of aggravated incest falls within the definitions of a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(1) and a “sex offense conviction” under U.S.S.G. § 4B1.5(a). See United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008). A. Enhancement Pursuant to § 2252A(b)(1) First, Wikkerink argues that the district court erred in concluding that his aggravated incest conviction was a qualifying “prior conviction” under 18 U.S.C. § 2252A(b)(1).

Entrapment

( United States v. Theagene, 565 F. 3d. 911 (5th Cir. 2009): “The critical determination in an entrapment defense is whether criminal intent originated with the defendant or with government agents.” Bradfield, 113 F.3d 515, 521 (5th Cir. 1997). Entrapment occurs when the government causes an offense to be “committed by a person other than one ready to commit it.” Id. The government may not “implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992). Entrapment operates through a burden shifting regime. The defendant must first “make out a prima facie case that the government’s conduct created a substantial risk” of entrapment. Bradfield, 113 F.3d at 521. This requires the defendant to make a prima facie showing of (1) his lack of predisposition to commit the offense and (2) some governmental involvement and inducement more substantial than simply providing an opportunity or facilities to commit the offense. Id. at 521. He can do so “by identification or production of evidence.” Nations, 764 F.2d at 1080. A defendant who meets this burden is entitled to an entrapment instruction, whereupon the burden shifts to the government to prove beyond a reasonable doubt that the defendant was disposed to commit the offense before the government first approached him. Bradfield,

113 F.3d at 521–22; see also Jacobson, 503 U.S. at 548–49; United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995). “The question of entrapment is generally one for the jury, rather than for the court.” Matthews, 485 U.S. at 63 (citing Sherman v. United States, 356 U.S. 369, 377 (1958)). The measure of sufficiency for the prima facie showing is whether the evidence of inducement and lack of predisposition, considered together, is sufficient to permit a reasonable jury to find entrapment. Bradfield, 113 F.3d

at 521–22; Nations, 764 F.2d at 1079–80. Inducement and predisposition are “related elements.” Matthews, 485 U.S. at 63. We have also described them as “factors.” See, e.g., United States v. Mora, 994 F.2d 1129, 1137 (5th Cir. 1993).

Evidence of each factor bears on the question “whether criminal intent originated with the defendant or with government agents.” Bradfield, 113 F.3d at 521. It is therefore possible to describe the ultimate inquiry in two ways, focusing either on the defendant or the government. Compare, e.g., Nations, 764 F.2d at 1079 (“The ultimate issue in an entrapment case is proof beyond a reasonable doubt of predisposition.”) with id. at 1080 (“[T]he ultimate jury entrapment issue [is] whether criminal intent originated with the government.”). Our cases require “some showing” of each element. Id. at 1079; see also United States v. Smith, 481 F.3d 259, 263 (5th Cir. 2007) (holding entrapment instruction unnecessary where defendant “proffered no evidence of his lack of predisposition” and only complained of government misconduct); Gutierrez, 343 F.3d at 419–20 (holding entrapment instruction unnecessary, without discussion of predisposition prong, where defendant failed to show inducement). In practice, however, consideration of the two factors often overlaps.

( A defendant in federal court is entitled to see a jury charge on entrapment while still denying participation in the crime. United States v. Jones, 839 F.2d 1041 (5th Cir. [Tex.] 1988), cert. denied, 486 U.S. 1024 (1988).

( Sentencing Entrapment. United States v. Macedo-Flores, __ F.3d ___ (5th Cir. June 2, 2015)(14-10361): First, Macedo argues that the evidence warranted a sentencing entrapment defense jury instruction as to both drug trafficking counts because a “reasonable jury could have determined that [the undercover agent’s] cocaine purchases in and after March 2013 were undertaken to inflate” the drug quantity.

( Because this circuit does not recognize such a defense nor does Macedo prove true entrapment, we AFFIRM the district court’s denial to instruct the jury on sentencing entrapment. This court has never recognized sentencing entrapment as a defense,3 but we have consistently noted that, were we to accept the defense, it would only be cognizable in cases involving “true entrapment,” United States v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995) (citation omitted), or where there is proof of “overbearing and outrageous conduct” on the Government’s part. Stephens, 717 F.3d at 446.

( Note 3: Despite several sister circuits’ adoption of this defense, this circuit has yet to explicitly recognize the defense of sentence entrapment. See United States v. Stephens, 717 F.3d 440, 446 (5th Cir. 2013) (“We have never recognized sentencing entrapment as a defense.”); see also United States v. Alvarez, 575 F. App’x 522, 528 (5th Cir. 2014) (“[T]his court does not recognize . . . ‘sentencing entrapment’ in any context.”); United States v. Jones, 664 F.3d 966, 984 (5th Cir. 2011) (“[T]his Court apparently has not expressly determined whether we have accepted the concept of sentencing factor manipulation.”); United States v. Snow, 309 F.3d 294, 295 (5th Cir. 2002) (“This court has not had to determine whether sentencing entrapment is a cognizable defense to a sentence.”). Almost all of our sister circuits have opined about both sentencing entrapment and sentencing factor manipulating, reaching varied conclusions. See United States v. Sed, 601 F.3d 224, 229–30 (3d Cir. 2010) (collecting cases).

( In order to establish the defense of true entrapment, “a defendant must make a prima facie showing of (1) his lack of disposition to commit the offense and (2) some governmental involvement and inducement more substantial than simply providing an opportunity to commit the offense.” Id. at 444 (internal quotation marks and citation omitted); see also United States v. Bradfield, 113 F.3d 515, 521 (5th Cir. 1997) (“The critical determination in an entrapment defense is whether criminal intent originated with the defendant or with the government agents.” (citations omitted)). In examining a defendant’s predisposition to commit the offense, the court is to look at, inter alia, (1) the defendant’s “eagerness to participate in the transaction,” and (2) the defendant’s “ready response to the government’s inducement offer.” United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) Further, “[p]redisposition . . . focuses upon whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.” Mathews v. United States, 485 U.S. 58, 63 (1988) (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)). This court has previously held that “[a] lack of predisposition can appear from, for example, lack of prior interest or experience related to the crime, significant hesitation or unwillingness, or attempts to return discussion to lawful conduct.” United States v. Theagene, 565 F.3d 911, 920 (5th Cir. 2009). Where a defendant “promptly avail[s] himself of [a] criminal opportunity, it is unlikely that his entrapment defense . . . [warrants] a jury instruction.” Jacobson, 503 U.S. 540, 550 (1992). Only after the defendant has made a prima facie showing of entrapment by showing both elements—lack of predisposition and governmental inducement—is the defendant entitled to an entrapment instruction by the court. See Stephens, 717 F.3d at 444. If the defendant can make this prima facie showing, he shifts the burden “to the government to prove beyond a reasonable doubt that the defendant was disposed to commit the offense before the government first approached him.” Theagene, 565 F.3d at 918. Macedo has failed to make a prima facie showing of true entrapment, and as such, the district court did not abuse its discretion by denying his requested jury instruction.

( In the Fifth Circuit, under Henry, 749 F.2d 203 (5th Cir. 1984) to get the entrapment instruction, you don't have admit anything, but have to show some evidence  (from any source) that: (1) the government induced the defendant to act in a criminal manner when he otherwise would not have; and (2) there was no mens rea (knowingly in the case of 2422) to commit the crime before the contact by the government agents (i.e., the mens rea of the crime was planted into his head by the government).  You don't meet the first prong because your client suggested the meeting.  And you don't meet the second prong (or the first prong) due to the "d*** pic" (he probably had that ready before he got on the chat).  And there is a third prong not mentioned in Henry, which is that you are in front of O'Connor, who is not going to give you an instruction under these facts.

 

Equally Divided Court

( U.S. v. Seale, 2009 WL 4891190, (5th Cir. June 5, 2009) No. 07-60732 (DeMOSS, Circuit Judge, dissenting: For the reasons stated in the unanimous panel opinion previously filed in this appeal, see United States v. Seale, 542 F.3d 1033 (5th Cir. 2008), I disagree with those members of the en banc court who voted to affirm the district court’s denial of Seale’s motion to dismiss the indictment on limitations grounds. Both the Supreme Court and this circuit have held that when the appellate court is evenly divided on an issue, the judgment of the lower court is “affirmed.” See Sch. Bd. of Richmond, Va. v. State Bd. of Educ. of Va., 412 U.S. 92, 93 (1973) (per curiam); United States v. Kirk, 105 F.3d 997, 998 (5th Cir. 1997) (en banc); United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir. 1992) (en banc). The use of the term “affirmed” is somewhat misleading. The Supreme Court has described this nominal affirmance as follows: In cases of appeal or writ of error in this court, the appellant or plaintiff in error is always the moving party. It is affirmative action which he asks. The question presented is, shall the judgment, or decree, be reversed? If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is, indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed. Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868); see also Neil v. Biggers, 409 U.S. 188, 191-92 (1972); Ohio ex rel. Eaton v. Price, 364 U.S. 263, 263-64 (1960) (“[T]his case is being affirmed ex necessitate, by an equally divided Court.”). In light of the forgoing, the use of the term “affirmed” should not be construed to mean that the en banc court approves of the reasoning of the district court. See United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 n.5 (5th Cir. 2003) (“Decisions by an equally divided en banc court have no value as binding precedent.”).

( Note: 5th Circuit certified the case for review by U.S. Supreme Court under rarely used 28 U.S.C. § 1254(2), and SCOTUS refused to hear the case.

Error Preservation—Second Objections No Longer Required

( United States v. Lewis, __ F.3d ___ n. 3 (5th Cir. August 10, 2015)(14-30898):

6 We note, however, that we disagree with the government’s alternative argument that plain error review applies because Lewis did not renew his objection at trial. Rule 103(b), effective on December 1, 2000, provides that “[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” The government cites two cases that erroneously applied this Circuit’s previous rule that an objection must be renewed at trial to preserve error: United States v. Thomas, 724 F.3d 632, 641 (5th Cir. 2013), and United States v. Duffaut, 314 F.3d 203, 208–09 (5th Cir. 2002). But, in a case predating Thomas and Duffaut, we held that a “pretrial objection is sufficient to preserve . . . error for appellate review” because “[t]he 2000 amendment to rule 103(a) [now codified at Rule 103(b)] changed the law that had prevailed in this circuit.” Mathis v. Exxon Corp., 302 F.3d 448, 459 & n.16 (5th Cir. 2002). Because Mathis is the earliest of the conflicting panel opinions, it controls. See Camacho v. Tex. Workforce Comm’n, 445 F.3d 407, 410 (5th Cir. 2006).

Error, Waived and Forfeited

( From United States v. Rodriguez, (5th Cir. March 25, 2010)(09-20299)(unreported): Waived errors are unreviewable. E.g., United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006) (citing United States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir. 1995)). Review of invited errors is almost similarly precluded; such errors are reviewed only for “manifest injustice”. United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001) (quoting United States v. Pankhurst, 118 F.3d 345, 359 (5th Cir. 1997)). Forfeited errors are reviewed under the least strict standard for these three types of error: plain error, as discussed infra. E.g., Arviso-Mata, 442 F.3d at 384 (citing United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002)). “Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment of a known right.” Id. (citing United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999)). In other words, for waiver, Rodriguez’ “counsel [must have known] of the . . . issue and . . . consciously chose[n] to forego it”. Id. For the invited-error doctrine to apply, defendant (or his counsel) must have induced the error. Green, 272 F.3d at 754.

(B)ecause Rodriguez failed to object in district court on the basis of vindictiveness (forfeited error), review is only for plain error. E.g., United States v. Scott, 48 F.3d 1389, 1398 (5th Cir. 1995) (citing United States v. Vontsteen, 950 F.2d 1086, 1089 (5th Cir. 1992) (en banc)). (The Government states, and in his reply brief Rodriguez acknowledges, that such forfeited error results in plain-error review. Of course, we, not the parties, determine our standard of review. E.g., Vontsteen, 950 F.2d at 1091 (“But no party has the power to control our standard of review. A reviewing court may reject both parties’ approach to the standard.” (emphasis in original)).) To establish reversible plain error, Rodriguez must show: an error was committed; it was clear or obvious; and, it affected his substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008) (citing United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006), cert. denied, 129 S. Ct. 962 (2009)). Even if reversible plain error is established, we retain discretion

whether to correct it and, generally, will do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

Evidentiary Rulings

( The Fifth Circuit reviews a district court’s evidentiary rulings for an abuse of discretion. United States v. Yanez Sosa, 513 F.3d 194, 199 (5th Cir. 2008). A trial court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous assessment of the evidence. Id. at 200. We review unobjected to opinion testimony and prosecutorial misconduct for plain error that affects substantial rights. United States v. Hitt, 473 F.3d 146, 161 (5th Cir. 2006). The error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id.

( From United States v. Rothenberg, 328 Fed. App’x 897 (5th Cir. 2009)(08-20397): This Court reviews the district court’s evidentiary rulings, when properly objected to, under an abuse of discretion standard. United States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008). “‘A trial court abuses its discretion when its ruling is based on an erroneous review of the law or a clearly erroneous assessment of the evidence.’” Id. (quoting United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)). This Court heightens its review of evidentiary rulings in criminal trials. Id. An abuse of discretion in admitting or excluding evidence is subject to a harmless error review. Id. A properly preserved challenge to jury instructions is also reviewed under an abuse of discretion standard. United States v. Dien Duc Huynh, 246 F.3d 734, 738 (5th Cir. 2008).

( Rule 403 Violation: States v. Spletzer, 535 F.2d 950, 955-56 (5th Cir. 1976).

“The admission into evidence of facts that do not concern the defendants, that are not inextricably intertwined with the overall criminal episode is reversible error if the admission prejudices the defendants.” United States v. Dillman, 15 F.3d 384, 391 (5th Cir. 1994). …. We conclude that, overall, this irrelevant and cumulative evidence was misleading and confusing as well as highly prejudicial to Dr. Rothenberg. When combined with the irrelevant and prejudicial testimony about the Florida incident, these errors constitute harmful error and necessitate a new trial.5 See United States v. Riddle, 103 F.3d 423, 434-35 (5th Cir. 1997).

( Civilian States and Regulations in Criminal Case. Dr. Rothenberg contends that the admission of this type of evidence violates United States v. Christo, 614 F.2d 486 (5th Cir. 1980). We disagree. As explained in United States v. Ramos, 537 F.3d 439, 459-60 (5th Cir. 2008), cert. denied (U.S. Mar. 23, 2009) (Nos. 08-755 & 08-756), the problem in Christo was that the civil standards were equated with the criminal standards. The district court’s limiting instruction in this case made clear that the two are not the same. With appropriate limiting instructions, civil regulations and standards can

sometimes be relevant to the question of intent. See, e.g., United States v. Brown, 553 F.3d 768, 791-92 (5th Cir. 2008). Thus, we agree with the Government that civil regulations and standards, generally known to doctors practicing in the same or similar areas as Dr. Rothenberg, could bear upon her intent in connection with the TRI BTA. The question then becomes whether the actual evidence admitted was appropriate or strayed too far from that which is admissible. … Ms. Robinson testified about the rules and regulations governing Texas licensed doctors. The district court allowed Robinson to testify about her understanding of how the Board interprets its rules, relying on our decision in United States v. Griffin, 324 F.3d 330, 347-48 (5th Cir. 2003), and the Seventh Circuit’s decision in United States v. Davis, 471 F.3d 783, 788-89 (7th Cir. 2006). We agree with the Seventh Circuit that, in cases where it is relevant, an expert

can opine about how a board charged with administering a regulation actually

interprets that regulation, subject to the court’s conducting an appropriate Rule

403 balancing. See Davis, 471 F.3d at 789. However, we note, as Griffin stated,

that opinion testimony about “what the law is” or some expert’s “understanding”

about what the law means is impermissible. See Griffin, 324 F.3d at 348. Having reviewed Ms. Robinson’s testimony, we conclude that the district court carefully held her to the areas permitted by Griffin and Davis. We find no error in the admission of her testimony. We cannot say the same about the three doctors called by the Government on this point . …. None of these doctors were qualified as experts on Texas medical regulations.

( We now turn to Valencia’s argument that Labhart gave inadmissible summary testimony. See FED. R. EVID. 1006. We review evidentiary rulings for an abuse of discretion, and in the event of error, we will affirm provided the error is harmless. See United States v. Bishop, 264 F.3d 535, 546 (5th Cir. 2001). While “[r]eview of evidentiary rulings is heightened in a criminal case,” United States v. Gutierrez-Farias, 294 F.3d 657, 662 (5th Cir. 2002), to obtain reversal, the appellant “must demonstrate that the district court’s ruling caused [her] substantial prejudice.” Bishop, 264 F.3d at 546.

Excessive Force Claim under § 1983

( Orr v. Copeland, __ F.3d ___ (5h Cir. December 22, 2016)(16-50023):

( “An officer’s use of deadly force is presumptively reasonable when the officer has reason to believe that the suspect poses a threat of serious harm to the officer or to others.” Ontiveros v. United States, 564 F.3d579, 382 (5th Cir. 2009). The threat to the officer’s life—and therefore the reasonableness of the force used—“must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. O’Connor, 490 U.S. 386, 396-97 (1989). As such, an officer’s “underlying intent or motivation” at the time of the incident is irrelevant. Id

( To prevail on an excessive force claim, a plaintiff must show “(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009). The inquiries as to whether police conduct was clearly excessive and clearly unreasonable often are intertwined. Poole v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012). Copeland concedes that he injured Bradley during the altercation, but maintains that his actions were neither clearly excessive nor clearly unreasonable. We agree. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). “The objective-reasonableness inquiry is fact intensive, requiring consideration of circumstances such as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Galvan v. City of San Antonio, 435 F. App’x 309, 310- 11 (5th Cir. 2010) (per curiam) (internal quotation marks omitted). “Officers may consider a suspect’s refusal to comply with instructions . . . in assessing whether physical force is needed to effectuate the suspect’s compliance.” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009). When dealing with an uncooperative suspect, police act within the scope of objective reasonableness when they “react[] with measured and ascending responses.” Galvan, 435 F. App’x at 311.

( The threat to the officer’s life—and therefore the reasonableness of the force used—“must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396-97. As such, an officer’s “underlying intent or motivation” at the time of the incident is irrelevant. Id. Here, undisputed evidence demonstrates that Copeland used deadly force to protect himself. By the time Copeland drew and fired his weapon, Bradley—who was physically larger and stronger than Copeland—had already disobeyed verbal orders, put Copeland in a headlock, wrestled Copeland to the ground, and repeatedly reached for Copeland’s firearm. One eyewitness described the altercation as a “fight to the death.” Under the totality of the circumstances, a reasonable officer could have believed that his life was in danger. The heirs claim that they have proffered enough evidence to raise genuine issues of material fact and should survive summary judgment. Specifically, they claim that the testimonies of Copeland’s firearm expert Greg Karim and crime scene reconstruction expert Janice Johnson call into question the accuracy of the reenactment photos. They also claim that the lack of DNA evidence on Copeland’s radio wire challenges Copeland’s story that Bradley attempted to choke him with the chord. But the heirs have failed to provide any evidence challenging the principle dispositive “fact material to whether [Copeland] was justified in using deadly force”: that Bradley repeatedly reached for the officer’s firearm. Manis v. Lawson, 585 F.3d 839, 844 (5th Cir. 2009). This court has repeatedly found that it is objectively reasonable for an officer to use deadly force even if he merely believes—albeit reasonably—that the suspect is reaching for a weapon. See, e.g., id. at 844-45 (collecting cases and finding that officer’s use of deadly force was not excessive when undisputed evidence showed that suspect “in defiance of the officers’ contrary orders, reached under the seat of his vehicle and appeared to retrieve an object that [the officer] reasonably believed to be a weapon”); Ontiveros, 564 F.3d at 385 (finding that officer acted reasonably when he shot suspect who had refused to obey orders and reached into his boot for something); Colston v. Barnhart, 130 F.3d 96, 99-100 (5th Cir. 1997) (finding it objectively reasonable for an officer to believe unarmed suspect posed a threat of serious bodily harm when suspect walked towards shotgun after assaulting another officer); see also Johnson v. City of Phila., 837 F.3d 343, 350 (3d Cir. 2016) (“We begin with a proposition that can scarcely be disputed: once [the suspect] began reaching for [the officer’s] gun, [the officer] was justified in using deadly force to defend himself.”); Jacobs v. City of Shreveport, No. 04-2492, 2006 WL 3247095, at *11 (W.D. La. Nov. 8, 2006) (finding that officer’s actions were objectively reasonable when he used lethal force after suspect “reached for [the officer’s] gun several times” during a physical altercation). Copeland, Brenda Miller, and Zachary Rife all stated that prior to the shooting, Bradley attempted to grab Copeland’s pistol. Absent evidence to the contrary, the court is required to accept this testimony as true. See Scott, 550 U.S. at 380 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record . . . a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). The heirs have thus failed to satisfy their burden of establishing that Copeland’s use of lethal force was unreasonable. See Kovacic, 628 F.3d at 214 (finding that defendant officers are entitled to qualified immunity when plaintiffs fail to present evidence to contradict the officers’ affidavits with respect to dispositive factual matters). Because the heirs have failed to demonstrate a constitutional violation, we hold that they have failed to satisfy their burden of showing that Copeland is not entitled to qualified immunity.

( Smmary Judgment Evidence on Excessive Force and Qualified Immunity:

Typically, the movant bears the initial burden of demonstrating the absence of a material fact issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). But “[a] good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (internal quotation marks omitted). To do so, a plaintiff must “identify specific evidence in the summary judgment record demonstrating that there is a material fact issue concerning the essential elements of its case for which it will bear the burden of proof at trial.” Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). “Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation” are all insufficient to overcome immunity. See Reyes v. Hornbeck Offshore Servs., L.L.C., 383 F. App’x 442, 443-44 (5th Cir. 2010) (quoting TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002)). In denying Copeland’s motion for summary judgment, the district court disregarded the testimony of Copeland and two eyewitnesses, finding that because there was “no video evidence of the actual shooting” the “testimony of Copeland, the eyewitness, and the 9-1-1 caller . . . should not be accepted until subjected to cross examination.” This finding is erroneous for two reasons. First, the district court’s decision flips Supreme Court precedent on its head. In Scott v. Harris, 550 U.S. 372, 375 (2007), a police officer terminated a high-speed car chase by intentionally bumping a fleeing suspect’s rear bumper, causing the suspect to lose control of his vehicle and crash, rendering him a quadriplegic. The suspect brought an excessive force claim under § 1983, and the officer asserted qualified immunity. Id. at 375-76. At the summary judgment stage, the two parties presented radically different accounts of the chase. The police officer claimed that the suspect was driving so recklessly during the pursuit that it endangered human life, while the suspect “contend[ed] that he used his turn signals when passing or turning, and maintained control over his vehicle” the entire time. Harris v. Coweta Cty., No. CIVA 3:01CV148WBH, 2003 WL 25419527, at *1 (N.D. Ga. Sept. 25, 2003). A dashcam recorded the entire car chase, and confirmed the officer’s testimony. The video showed the suspect’s vehicle: rac[e] down narrow, two-lane roads in the dead of night at speeds that are shockingly fast[;] . . . swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders[;] . . . run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Scott, 550 U.S. at 379-80. Nevertheless, the district court credited the suspect’s testimony. Harris, 2003 WL 25419527, at *5. Finding that the conflicting evidence created a genuine issue of material fact, the district court denied the officer’s motion. Id. The Eleventh Circuit affirmed. Harris v. Coweta Cty., 406 F.3d 1307 (11th Cir. 2005). The Supreme Court, however, reversed, holding that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380. The decision below inverses that holding. While Scott empowers a district court to disregard testimony that is at odds with video evidence, the holding below would prevent summary judgment from being granted in the absence of video evidence, effectively stripping all officers of qualified immunity if their actions were not recorded. This fundamentally flips the burden back onto the government official. Cf. Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010) (“[O]nce a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”). Second, the district court was not permitted to disregard the testimony of the two eyewitnesses. There is no evidence to suggest that the pair was biased, and the district court specifically found that the heirs “[did] not offer any evidence to contradict the eyewitnesses’ statements.” Because their testimony was “uncontradicted and unimpeached,” the district court was required to give it credence. Failure to do so amounted to an inappropriate “credibility determination[].” See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).

( From Peterson v. City of Fort Worth, 2009 WL 3818826, __ F.3d __ (5th Cir. 2009)(08-10258).

( We face here the kind of officer-citizen encounter that is controlled by Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court recognized that “[e]ncounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute crime.” Id. at 13. Terry itself addressed the kind of informal officer-citizen encounters that arise when officers make on-the-spot observations that require immediate action. Id. at 20. In assessing the reasonableness of such actions, “there is ‘no ready test.’” Id. at 21. Instead, a court must “‘focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen.’” Id. at 20-21 (quoting Camara v. Mun. Ct., 387 U.S. 523, 536-37 (1967)). The officer must be able to point to “specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21. The court then asks: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Id. at 22. In other words, as we have previously stated: “We must attempt to put ourselves in the shoes of a reasonable police officer as he or she approaches a given situation and assesses the likelihood of danger in a particular context.” United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc).

( Our precedent requires that to establish a claim of excessive force, a plaintiff must show that, in addition to being seized, he suffered “(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable.” Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (quoting Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)). There is no dispute that Peterson suffered an injury and, for purposes of its motion for summary judgment, the City conceded that Officer Ballard delivered a knee strike to Peterson’s thigh. The question is whether that knee strike was excessive to the need and therefore objectively unreasonable. We determine whether the force was excessive “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989); see also Ballard, 444

F.3d at 402.

( We will begin with the basic principles of municipal liability for the

misconduct of its employees in § 1983 actions. It is well-established that a city is not liable under § 1983 on the theory of respondeat superior. Monell v. Dep’t of Social

Servs., 436 U.S. 658, 694 (1978)); Johnson, 379 F.3d at 308. A municipality is almost never liable for an isolated unconstitutional act on the part of an employee; it is liable only for acts directly attributable to it “through some official action or imprimatur.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). To establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right. Id.

Official policy establishes culpability, and can arise in various forms. It usually exists in the form of written policy statements, ordinances, or regulations, but it may also arise in the form of a widespread practice that is “so common and well-settled as to constitute a custom that fairly represents municipal policy.” Id. at 579 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)). A policy or custom is official only “when it results from the decision or acquiescence of the municipal officer or body with ‘final policymaking authority’ over the subject matter of the offending policy.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Thus, a plaintiff must show the policy was promulgated by the municipality’s policymaker. There is no “de facto” final policymaking authority. See Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 616 n.2 (5th Cir. 1999) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 131

(1988)). Here, the parties agree that Chief Mendoza has final policymaking authority over the Fort Worth Police Department. Finally, a plaintiff must establish that the policy was the moving force behind the violation. In other words, a plaintiff must show direct causation. See Piotrowski, 237 F.3d at 580. This means “there must be a direct causal link” between the policy and the violation. Id.; see also Johnson, 379 F.3d at 310

(quoting Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992) (“must be more than a mere ‘but for’”)).

( Griggs v. Brewer, __ F.3d ___ (5th Cir. October 28, 2016)(16-10221):

The Fourth Amendment right to be free from excessive force during a seizure is clearly established. See Poole v. City of Shreveport, 691 F.3d 624, (5th Cir. 2012). The inquiry is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 398 (1989). The use of force must be evaluated “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Poole, 691 F.3d at 627 (quoting Graham, 490 U.S. at 397). Factors to consider in determining whether the force was “objectively reasonable” include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Deville, 567 F.3d at 167 (quoting Graham, 490 U.S. at 396). Succinctly stated, a plaintiff must show (1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable. Poole, 691 F.3d at 628. Excessive force claims are necessarily fact-intensive; whether the force used is excessive or unreasonable depends on the facts and circumstances of each particular case. Deville, 567 F.3d at 167

B. In claims against state officials under 42 U.S.C. § 1983, the official may raise the affirmative defense of qualified immunity. The plaintiff has the burden to negate the defense of qualified immunity where, as here, it is properly raised. See Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Put simply, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Pratt v. Harris Cty., Tex., 822 F.3d 174, 181 (5th Cir. 2016). In determining qualified immunity, courts engage in a two-step analysis. First, they assess whether a statutory or constitutional right would have been violated on the facts alleged. Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004). Second, they determine whether the defendant’s actions violated clearly established statutory or constitutional rights of which a reasonable person would have known. Id. “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). There need not be a case directly on point, but “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. The two steps of the qualified immunity inquiry may be performed in any order. Pearson, 555 U.S. at 236. In excessive force cases, “the second prong of the analysis is better understood as two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in light of that then clearly established law.” Tarver v. City of Edna, 410 F.3d 745, 750 (5th Cir. 2005)“If officers of reasonable competence could disagree as to whether the plaintiff’s rights were violated, the officer’s qualified immunity remains intact.” Id.

IV. Griggs argues that Brewer violated his Fourth Amendment rights by using excessive force in effecting the arrest, and that the district court erred in finding that Brewer was entitled to qualified immunity. Specifically, he raises three issues: (1) whether Brewer used excessive force when he executed the “takedown” maneuver; (2) whether Brewer used excessive force by punching him while attempting to handcuff him; and (3) whether Brewer used excessive force by punching him in the face while he was in the police car.

We address each issue in turn. A. The first issue is whether the initial takedown amounted to excessive force. Recall that as Griggs was performing the one-legged stand during the sobriety test, Officer Brewer decided to arrest Griggs and told him to put his hands behind his back. As he did, Griggs lurched to one side and said “no, no.” Brewer immediately placed Griggs in a choke hold, swept his legs out from under him, and body-slammed him onto the nearby grass. Griggs claims that this “takedown” amounted to excessive force. Griggs argues that the district judge erred by failing to construe the facts in the light most favorable to him. He testified that he did not “flex” or demonstrate any intent to escape; he merely lost his balance and lurched to the side, so the use of force was not justified. In the alternative, he argues that even if he was being perceived as trying to escape, the takedown maneuver was not justified under the circumstances, as he was clearly unarmed, drunk, and unable to meaningfully resist arrest. Griggs’s first argument—that he was not resisting, but merely lost his balance—falls short. Although he is correct that, based on his testimony and the ambiguities in the video, a reasonable jury might find that he was not actually resisting arrest, that is not the proper inquiry in this appeal. A court must measure the force used under the facts as a reasonable officer would perceive them, not necessarily against the historical facts. Hill v. Carroll Cty., Miss., 587 F.3d 230, 234 (5th Cir. 2009) “For that reason, when reviewing a grant of summary judgment in the Fourth Amendment context, after first construing disputed historical facts in favor of the nonmovant, the court must then ask how a reasonable officer would have perceived those historical facts.” Id. Here, we must conclude that, under the totality of the circumstances—that is, a late-night traffic stop involving a clearly drunk and obstinate individual, lurching to the side and stating “no, no,” in the act of being handcuffed, immediately following the command to “put your hands behind your back”—Griggs’s actions would, to a reasonable police officer, amount to resistance to arrest. Griggs’s second argument, that in any event the “takedown” was an unreasonable use of force, involves much of the same analysis as resistance to arrest set out above. It is true, however, that Brewer had previously patted Griggs down and knew that he was unarmed, and knew that Griggs was drunk. So the inquiry here is whether responding to Griggs’s conduct under these circumstances with a forceful “takedown” maneuver was a clearly excessive use of force, and whether the force was clearly unreasonable under the circumstances. See Poole, 691 F.3d at 628. Because our analysis is under the defense of qualified immunity, the question is whether Brewer’s conduct was clearly unreasonable in the light of clearly established law. Griggs points to two of our cases that he argues are analogous. First, he relies on Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000), in which the court found that tackling a suspect who yanked away from an arresting officer and fled may have amounted to unreasonable force. Goodson is inapposite, however, because the case turned not on whether the force was excessive, but on whether the force was justified at all because fact issues Pat downs do not always reveal weapons, leading to tragic circumstances. See, e.g., Tamayo v. Stephens, 740 F.3d 991, 993 (5th Cir. 2011) (despite having been searched and placed in handcuffs by Officer Gaddis, Tamayo had a gun concealed on his person which he managed to maneuver in place; he then shot and killed Officer Gaddis). remained as to whether the officer had reasonable suspicion to initiate the stop. Id; see also Poole, 691 F.3d at 632 (distinguishing Goodson on similar grounds). Griggs next points us to Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013). There, a suspect pulled away from an officer who was attempting to make an arrest, and the officer immediately used a Taser on the suspect and tackled him to the ground. Id. at 372–73. After the suspect had been restrained with handcuffs, the officer tased him again. Id. The court found that the officer was not entitled to qualified immunity on the plaintiff’s excessive force claims. Id. at 377–80. Although Officer Martinez’s quick use of the Taser was arguably similar to Officer Brewer’s quick use of the takedown maneuver, Martinez’s decision to continue to tase Ramirez after he was already handcuffed was far more unreasonable than Officer Brewer’s conduct. Even so, the Martinez court did not find that the quick use of a Taser on an arrestee who is resisting arrest amounts to a clearly established violation, so that case provides Griggs with little persuasive support. Id. at 378 (citing Poole, 691 F.3d at 626). Thus we conclude that Officer Brewer’s conduct in executing the initial takedown was not constitutionally unreasonable in the light of clearly established law. Or, stated differently, our precedent does not clearly establish that this “takedown” maneuver—against a drunken, erratic suspect who is resisting arrest—is constitutionally unreasonable. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent. Brewer’s actions may not have been as restrained as we would like to expect from model police conduct, but qualified immunity “protect[s] officers from the sometimes hazy border between excessive and acceptable force.” Saucier v. Katz, 533 U.S. 194, 206 (2001) 490 U.S. at 396–97 (“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation.”). B. The second issue is whether Officer Brewer’s punching Griggs several times while he was on the ground, as Brewer attempted to handcuff him, amounted to excessive force. Briefly, recall that after Officer Brewer threw Griggs to the ground, he placed his weight on top of him, and he attempted to handcuff him. Griggs’s hands were under his stomach. Brewer then punched Griggs to gain control over his arms. After Brewer gained control, Griggs, ignoring the officers’ commands, again pulled away and again tucked his arms back under him. Brewer again punched Griggs until he was able to regain control of his hands to handcuff him. In assessing Brewer’s conduct under the defense of qualified immunity, we need not determine whether an actual constitutional violation occurred. The question for us is whether Brewer’s conduct was unreasonable in the light of clearly established law. In this instance, Griggs points to no authority establishing that it was unreasonable for an officer to use non-deadly punches to gain control of the arms of a drunken, actively resisting suspect. Griggs actively resisted and refused to comply with the officers’ clear and audible commands. Although the officers might have used less forceful conduct, there was no settled authority to put Brewer on notice that his use of force in such circumstances violated Griggs’s constitutional rights. See Poole, 691 F.3d at 627 (“We must evaluate an officer’s use of force from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”) We therefore hold that Officer Brewer is entitled to qualified immunity as to the claims stemming from his attempts to handcuff Griggs while Griggs was on the ground.

C. The third issue is whether Officer Brewer’s punch after Griggs kicked Brewer amounted to excessive force. Briefly, recall that after Officer Brewer finally handcuffed Griggs, he hoisted Griggs up, escorted him to his patrol vehicle, and pushed him in. Griggs, whose legs were still hanging out the door, delivered a kick to Officer Brewer’s chest. Brewer quickly responded by placing his weight on Griggs’s legs and delivering a swift punch to Griggs’s face. Griggs receded into the vehicle, and Brewer closed the door. Griggs argues that the punch was disproportionate to his kick and excessive because he was restrained in handcuffs. He cites case law that punching or otherwise gratuitously harming a restrained suspect constitutes excessive force. See, e.g., Ramirez, 716 F.3d at 378. The principle of law may be correct, but it has no application here. Griggs was clearly not subdued and under restraint; if he were, he would not have been able to physically assault Officer Brewer. He still posed a danger to Brewer, as evidenced by the fact that he did, in fact, kick Officer Brewer in the chest. Applying the Graham factors, some use of force to gain control of Griggs was not objectively unreasonable. Under Graham, driving while under the influence is a serious crime; the intoxicated Griggs was capable of and evinced erratic behavior; and Griggs had been and continued to demonstrate active resistance during the course of the arrest. And, as it were, the punch was effective for its purpose—Griggs immediately curled up into the back of the police car, and Brewer was able to close the door. In short, the use of force was the sort of “split-second judgment” in a difficult situation that qualified immunity is designed to protect. See Graham, 490 U.S. at 396–97.

V. Although the parties have different “spins” on the facts, the pertinent objective facts, demonstrated by testimony and the video, are undisputed. In the light of this evidence, we conclude that no material fact issue exists and that none of Officer Brewer’s conduct in effecting Griggs’s arrest was objectively unreasonable in the light of clearly established law. Accordingly, the district court did not err in holding that Brewer is entitled to qualified immunity, so the judgment is AFFIRMED.

Expectation of Privacy in Computer IP Address

( We need not reach the question of whether Orisakwe has a reasonable expectation of privacy in IP addresses because he has not convinced us that the subpoenas or warrants were unlawful. United States v. Orisakw, (5th Cir. August 5, 2015)(14-40699)

( Note 2: We note that every circuit to have addressed the issue has held that there is not a reasonable expectation of privacy in IP addresses that implicates the Fourth Amendment. See, e.g., United States v. Wheelock, 772 F.3d 825, 828 (8th Cir. 2014) (“With Comcast in possession of his subscriber data, Wheelock cannot claim a reasonable ‘expectation of privacy in [the] government’s acquisition of his subscriber information, including his IP address and name from third-party service providers.’” (alteration in original)); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007) (“Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of email messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account. We conclude that the surveillance techniques the government employed here are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith.” (footnote omitted)); see also United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information [associated with an IP address] provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”).

Expert Witnesses.

( United States v. Liu, __ F.3d __ (5th Cir. May 6, 2013)(12-30105):

We conclude that it was also error for the judge to exclude Ostermiller’s expert testimony comparing Dow CPE engineering documents to documents

generated by Pacific Richland. A lack of personal experience—the district court’s concern here—should not ordinarily disqualify an expert, so long as the expert is qualified based on some other factor provided by Rule 702: “knowledge, skill, experience, training, or education.” FED. R. EVID. 702 (emphasis added).

For example, in Exum v. General Electric Co., the D.C. Circuit found that the “rule does not require the expert to have personal familiarity with the subject of his testimony; ‘experience’ is only one among the five different ways to demonstrate an expert is qualified.” 819 F.2d 1158, 1163 (D.C. Cir. 1987). And in Dixon v. International Harvester Co., we held that an expert did not lack qualifications to testify about the design of a crawler tractor, based on his review of blueprints and photographs, despite

a lack of prior experience approving crawler tractor designs. 754 F.2d 573, 579-

80 (5th Cir.1985).

See also Martin v. Fleissner GmbH, 741 F.2d 61, 64 (4th Cir.1984) (upholding

admission of expert knowledgeable in pertinent areas of engineering design although

unfamiliar with the particular product at issue); Garrett, 705 F.2d at 724 (finding reversible error where expert was excluded “simply because he lacked one of the five qualifications, namely, prior experience with stud drivers”).

See, e.g., Whitehouse Hotel Ltd. P’ship v. C.I.R., 615 F.3d 321, 331 (5th Cir. 2010) (affirming the district court’s qualification of a licensed real estate appraiser as an expert witness when the case concerned a “specialized” appraisal issue); Quinton v. Farmland Indus. Inc., 928 F.2d 335, 337-38 (10th Cir. 1991) (finding veterinarian need not be specialist in toxicology to testify on toxic effect of substance on dairy cows).

( United States v. Lundy, __ F.3d ___ (5th Cir. 2012): Trial judge can strike defendant’s expert witness for discovery abuse when defendant failed to abide by Fed. R. Crim. P.

16(b)(1)(C), which requires the defendant to give the government a written

summary of expert testimony prior to testifying.

( From United States v. Cooks, 2009 WL 4022278, 589 F.3d 173 (5th Cir. 2009)(07-11151)

( This court reviews a trial court’s decision to admit expert testimony under

an abuse of discretion standard, subject to harmless error analysis. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); General Elec. Co. v. Joiner, 522 U.S. 136, 141–43 (1997). Accordingly, we have recognized that district courts are given “wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge . . . will not be disturbed on appeal unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (quoting Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 180 (5th Cir. 1995) (internal quotations omitted)).

( In deciding whether the district court abused its discretion in qualifying

Overby as an expert witness, we are guided by the Supreme Court’s decision in

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Federal Rule of

Evidence 702. In Daubert, the Supreme Court instructed district courts to function as

gatekeepers and permit only reliable and relevant expert testimony to be presented to the jury. See Daubert, 509 U.S. at 590–93. Before a district court may allow a witness to testify as an expert, it must be assured that the proffered witness is qualified to testify by virtue of his “knowledge, skill, experience, training, or education.” FED. R. EVID. 702. A district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject. See Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999).

( If the witness is only testifying as a lay witness, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. FED. R. EVID. 701. “[T]he distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field.” United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (internal quotations omitted). As explained by the Second Circuit, “a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.” United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). Moreover, any part of a witness’s opinion that rests on scientific, technical, or specialized knowledge must be determined by reference to Rule 702, not Rule 701. FED. R. EVID. 701 advisory committee’s note. The Government argues that Overby’s limited experience as a white collar fraud investigator and general certification as a fraud examiner qualifies him as an expert in any area of fraud. We are unconvinced by this argument. Prior to the instant case, Overby had sparse experience working on mortgage fraud cases and in fact had never been qualified as an expert in any case involving mortgage fraud. Unsurprisingly, he had no specialized training or classes in mortgage fraud and was seemingly unaware of basic statutes and literature which govern the field. Additionally, Overby had never taken any classes in appraising properties. Overby’s lack of formal training and practical experience in mortgage fraud leads us to the conclusion that the district court abused its discretion when it qualified him as an expert.

( While Overby should not have been qualified as an expert, our inquiry does not end there. An examination of Overby’s disputed testimony reveals that much of it was merely descriptive and summarized the factual information and documents gathered throughout the investigation of Cooks and thus constituted permissible lay testimony. But, some of Overby’s testimony, specifically his opinion regarding the legality of Cooks’s scheme, should not have been admitted by the district court because Overby’s opinion required specialized “knowledge, skill, experience, training, or education” in mortgage fraud which he lacked.

( However, the error was harmless because there was other extensive evidence

that the transactions were fraudulent and that Cooks was the major beneficiary. See United States v. Mendoza-Mendina, 346 F.3d 121, 127 (5th Cir. 2003) (under the harmless error doctrine, even if the district court abuses its discretion in admitting or excluding evidence, we will affirm “[u]nless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction”); see also FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).

( Expert on Drug Slang Words. Permitted. United States v. Akins, 746 F.3d 590

(5th Cir. March 25, 2014)(12-40515), cert denied, 135 S.Ct. 189, 467. 707 (2014). In United States v. Miranda, 248 F.3d 434 (5th Cir. 2001), the appellant maintained that an FBI agent, who had not been designated as an expert witness, testified about the meanings of various code words heard on intercepted phone calls and thereby “crossed the line” from lay to expert opinion testimony. In rejecting that argument under the facts presented there, we held that the agent’s testimony was permissible under Fed. R. Evid. 701 because the agent’s “extensive participation in the investigation of this conspiracy, including surveillance . . . and the monitoring and translating of intercepted telephone conversations, allowed him to form opinions concerning the meaning of certain code words used in this drug ring based on his personal perceptions.” Id. at 441. Similarly, in United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir. 2011), we acknowledged that some of the facts presented by testifying agents would not be known to an average lay person. But we held that the district court did not err by admitting the testimony because “the agents’ opinions were limited to their personal perceptions from their investigation of this case.”

( Expert Declaring False Credentials Upheld.

---Congressional Medal of Honor case. ____________________

--Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016) which more or less says that you can call yourself a psychologist if you play one on

( Agent as both Lay and Expert Witness + expert on slang words

United States v. Haines, __ F.3d ___ (5th Ci. 12 October 2015; revised October 20 & November 5)(13-31287):

--We have “recognized that in the context of drug conspiracies, ‘[d]rug traffickers’ jargon is a specialized body of knowledge, familiar only to those wise in the ways of the drug trade, and therefore a fit subject for expert testimony.’” Akins, 746 F.3d at 599 (quoting United States v. Griffith, 118 F.3d 318, 321 (5th Cir. 1997)). Our sister circuits have also “consistently upheld the use of expert testimony to explain both the operations of drug dealers and the meaning of coded conversations about drugs.” United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir. 2002); see also, e.g., United States v. Freeman, 498 F.3d 893, 901–02 (9th Cir. 2007) (holding that expert’s testimony on “interpretation of encoded drug jargon was admissible”); United States v. Ceballos, 302 F.3d 679, 686 (7th Cir. 2002) (holding that DEA agents with extensive drug investigation experience were properly qualified as experts in drug code). Because “drug dealers often camouflage their discussions” with code words, “expert testimony explaining the meanings of code words may ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’” Dukagjini, 326 F.3d at 52 (citing Fed. R. Evid. 702). The district court properly qualified Lockhart as an expert under Rule 702 based on his extensive experience as a drug investigator. Under Rule 702, a witness may be qualified as an expert based upon “knowledge, skill, experience, training, or education.” We have never required formal educational credentials to qualify a witness as an expert, and even “the advisory committee notes to Rule 702 state that experience in the field can be the predominant, if not the sole, basis for expert testimony in some cases.” Ceballos, 302 F.3d at 686.

-- Turning to the second category of testimony, Lockhart also testified about the meaning of specific words and terms used by the particular defendants in this case (but not necessarily in the drug trade generally).

--We have recognized that this type of testimony is “within the proper ambit of a lay witness with extensive involvement in the underlying investigation.” Akins, 746 F.3d at 599. Where an “agent’s ‘extensive participation in the investigation of [the] conspiracy, including surveillance . . . and the monitoring and translating of intercepted telephone conversations, allow[s] him to form opinions concerning the meaning of certain code words used in this [specific] drug ring based on his personal perceptions,” lay opinion testimony is proper. Id. (quoting United States v. Miranda, 248 F.3d 434, 441 (5th Cir. 2001)). “[E]xplaining the meanings of terms as used in the conversations and documents, as well as the relationships between the people [the agent is] investigating . . . provide[s] the jury with relevant factual information about the investigation.” Id. (quoting United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir. 2011)). In Akins, we held that where the witness decoded specific phrases and explained the basis for his opinion as to their meaning, his lay opinion testimony was proper. Id. at 600.

--In Dukagjini, the Second Circuit identified four special concerns that arise when case agents testify in a dual capacity as experts and lay witnesses. 326 F.3d at 53.

First, when a fact witness or a case agent also functions as an expert for the government, the government confers upon him the aura of special reliability and trustworthiness surrounding expert testimony, which ought to caution its use. This aura creates a risk of prejudice because the jury may infer that the agent’s opinion about the criminal nature of the defendant’s activity is based on knowledge of the defendant beyond the evidence at trial, a risk that increases when the witness has supervised the case. Simply by qualifying as an “expert,” the witness attains unmerited credibility when testifying about factual matters from first-hand knowledge. Additionally, when the expert bases his opinion on incourt testimony of fact witnesses, such testimony may improperly bolster that testimony and may suggest to the jury that a law enforcement specialist believes the government’s witness to be credible and the defendant to be guilty, suggestions we have previously condemned. 326 F.3d at 53 (internal citations, quotation marks, and modifications omitted).

“Second, expert testimony by a fact witness or case agent can inhibit cross-examination.” Id. Impeaching an expert is generally difficult because the expert usually has impressive credentials, and an expert opinion is less easily contradicted than a factual matter. Id. Because a failed effort to impeach the witness as expert may bolster his credibility as a fact witness, “a defendant may have to make the strategic choice of declining to cross-examine the witness at all.” Id

Third, “when the prosecution uses a case agent as an expert, there is an increased danger that the expert testimony will stray from applying reliable methodology and convey to the jury the witness’s ‘sweeping conclusions’ about appellants’ activities, deviating from the strictures of Rules 403 and 702.” Id. at 54 (citing United States v. Simmons, 923 F.2d 934, 946–47 n.5 (2d Cir. 1991)). The Dukagjini court noted the need for testimony interpreting drug code to be “closely monitored by the district court” to avoid letting the agent usurp the jury’s function and improperly summarize an investigation by others that is not part of the record. Id. Fourth, a failure to clearly distinguish between fact and opinion testimony is likely to confuse the jury. “Some jurors will find it difficult to discern whether the witness is relying properly on his general experience and reliable methodology, or improperly on what he has learned of the case. When the witness is a case agent who testifies about the facts of the case and states that he is basing his expert conclusions on his knowledge of the case, a juror understandably will find it difficult to navigate the tangled thicket of expert and factual testimony from the single witness, thus impairing the juror's ability to evaluate credibility.” Id.

Other circuits have likewise noted these four concerns and the need for courts and

the government to carefully distinguish between an agent’s dual roles. E.g., Freeman, 498 F.3d at 903 (“We share the concerns expressed by the Second Circuit in Dukagjini.”); United States v. Garcia, 752 F.3d 382, 391– 92 (4th Cir. 2014) (“Despite the district court’s careful attention to [a special agent’s] credentials as a decoding expert, however, we hold that the agent’s testimony was fraught with error arising from the problems the district court itself identified early in the trial: the conflation of [the agent’s] expert and fact testimony, particularly her reliance on her knowledge of the investigation to support her coding interpretations; her failure to apply her methodology reliably; and last, her failure to state on the record an adequate foundation for very many of her specific interpretations.”); York, 572 F.3d at 425 (although law enforcement officers are often permitted to testify as both fact and expert witness, “there are some inherent dangers with this kind of dual testimony,” including risk of jury confusion, undue weight being given to fact testimony because of “aura of special reliability,” and undue weight being given to opinion testimony because of perception that the officer was privy to facts not presented at trial). The district court in this case recognized the problems arising from the dual nature of Lockhart’s testimony.

Notwithstanding the court’s instruction to the jury at the outset of Lockhart’s testimony, which accurately described his dual role, the distinction largely disappeared over the course of Lockhart’s extensive direct examination. After denying multiple objections and requests for limiting instructions, the court eventually agreed that a limiting instruction was needed, noting that “very frankly, we’re going in and out [between expert and fact testimony], and it becomes very problematic.” The court then instructed the jury that: [Y]esterday, when Agent Lockhart had been called, I indicated to you that he had been offered and accepted by the Court as an expert in the field of drug code or decoding some of the terminology, and that he would be testifying as an expert witness as well as a fact witness. As to the testimony you’ve just heard regarding identification of various phone numbers, you should be informed that that was fact testimony as related to facts that he’s personally aware of but not an expert in that opinion. After another hour of testimony, the court again correctly recognized that Lockhart’s purported expert testimony had strayed from a principled application of specialized knowledge and experience. In response to an objection, the court stated: “I think the problem is using [Lockhart] now as transcript and he’s not decoding. He’s just telling us what it said.” The court then reminded the jury “that the evidence in this case is the actual tape.” These instructions were certainly helpful but may have been insufficient to mitigate the potential for confusion or prejudice caused by the government’s failure to adequately distinguish between Lockhart’s fact and opinion testimony. Safeguards sufficient to ensure that a witness’s dual role does not prejudice or confuse a jury “might include requiring the witness to testify at different times, in each capacity; giving a cautionary instruction to the jury regarding the basis of the testimony; allowing for cross-examination by defense counsel; establishing a proper foundation for the expertise; or having counsel ground the question in either fact or expertise while asking the question.” Garcia, 752 F.3d at 392 (finding that a cautionary instruction was insufficient to mitigate the potential for prejudice where the court had represented to the jury that the government would be clear in its questions whether it was asking for fact or opinion testimony, and the government failed to do so); York, 572 F.3d at 425 (“[D]istrict courts must take some precautions to ensure the jury understands its function in evaluating this evidence. The jury needs to know when an agent is testifying as an expert and when he is testifying as a fact witness.”) (internal citation omitted) (finding error where district court did not “flag for the jury when [the agent] testified as a fact witness and when he testified as an expert”; agent’s testimony switched back and forth between expert experience and knowledge of the particular investigation at issue; and the government’s framing of questions asked agent to rely on both expert opinion and knowledge of the investigation at the same time); see also Dukagjini, 326 F.3d at 56 (“Although we decline to prohibit categorically the use of case agents as experts, we note that the Federal Rules of Evidence and the Supreme Court place the responsibility upon the district courts to avoid falling into error by being vigilant gatekeepers of such expert testimony to ensure that it is reliable and not substantially more unfairly prejudicial than probative.”). The government’s questions and Lockhart’s testimony interpreting the wiretapped phone calls in this case frequently failed to distinguish between Lockhart’s opinion testimony based on his years of experience investigating drug crimes and his fact testimony based on his knowledge of the particular conspiracy at issue in the case. This “le[ft] the jury to wonder who was testifying, [Lockhart]-the-expert or [Lockhart]-the-case-agent.” York, 572 F.3d at 426. Where Lockhart offered fact testimony about the meaning of certain words or phrases used in this conspiracy but not in the broader drug trade, without explaining the basis of interpretation, the government and the court did not adequately clarify for the jury that this was lay testimony. As a result, some of Lockhart’s fact testimony, which would otherwise have been admissible based on his personal knowledge of the investigation, was admitted in error. Nonetheless, any error here was harmless5 because the record—even excluding those portions of Lockhart’s testimony in which his role was unclear—is replete with evidence that all three defendants participated in the conspiracy.

(Appointment of Expert/investigator: “[W]e review the district court’s denial of [the defendant’s] motion for expert appointment under [18 U.S.C. § 3006A(e)] for abuse of discretion.” United States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006). Our holdings do not “require in all circumstances that [the] district court hold a hearing on an ex parte

application for appointment under § 3006A(e).” Id. at 470. “Neither the statute’s plain language nor our case law interpreting it supports such a broad rule.” Id. (citing United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993); United States v. Scott, 48 F.3d 1389, 1395-96 (5th Cir. 1995)). “[T]he language of the statute requires [only] that the expert services not be authorized in the absence of an ‘appropriate inquiry in an ex parte proceeding’ and two determinations by the court: that the services are necessary for an adequate defense and that the defendant is financially unable to obtain those necessary services.” Id. (quoting 18 U.S.C. § 3006A(e)(1)). Moreover, we have explained that the burden is on the defendant “[t]o justify the authorization of investigative services under

§ 3006A(e)(1), . . . demonstrat[ing] with specificity[] the reasons why such services are required.” Gadison, 8 F.3d at 191 (citing United States v. Davis, 582 F.2d 947, 951 (5th Cir. 1978)). As explained above, the defendant did not provide any justification for why he needed an expert or investigator in either of his motions before the district court, nor does he provide such a justification in his brief before this court.

( Expert must prepare report. United States v. Bardales, (5th Cir. Nov. 19, 2015)(15-40013): Although he contends that the district court erred in excluding expert testimony concerning his diminished mental capacity, he does not brief the standards that apply in determining whether the testimony was admissible. Nor does he identify any error in the district court’s reasons for excluding the testimony―i.e., that expert opinion concerning ability to form criminal intent is inadmissible under the Federal Rules of Evidence, that the requirements of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), were not met, and that the expert failed to produce an adequate expert report. Accordingly, Bardales has waived the issue. See FED. R. APP. P. 28(a)(8)(A); United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir. 2009); Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

( Expert and Continuance. United States v. Dailey, __ F.3d __ (5th Cir. Aug. 17, 2017)(16-20517): Where a party seeks a continuance because a witness is unavailable, the movant must show that

(1) he has exercised diligence to obtain the attendance of the witness;

(2) the witness will tender substantial favorable evidence;

(3) the witness is available and willing to testify; and

(4) the denial of the continuance would materially prejudice the movant. See United States v. Scott, 48 F.3d 1389, 1394 (5th Cir. 1995). Even assuming that Dailey exercised the requisite diligence, he has failed to establish that there was a witness who was willing to tender favorable evidence.

Exportation for Firearms—18 U.S.C. § 554(a)

( United States v. Cardenas, __ F.3d ___ (5th Cir. Jan. 19, 2016)(15-50125):

Cardenas was convicted of one count of fraudulently receiving & facilitating the transportation, concealment, & sale of ammunition prior to exportation and one count of attempted exportation of ammunition in violation of 18 U.S.C. § 554(a). The district court sentenced Cardenas to two concurrent terms of 72 months of imprisonment & three years of supervised release. On appeal, Cardenas argues that the district court should have instructed the jury that, to find him guilty of violations of § 554(a) (smuggling from the United States), it must find that he violated 22 U.S.C. § 2778(c) (control of arms exports and imports), with the specific intent to violate law.

In United States v. Bernardino, 444 F. App’x 73, 74 (5th Cir. 2011), we held that, to establish an offense under § 554(a), the Government is required to prove only that the defendant knew he was dealing with ammunition that was intended for export and that the exportation was illegal. We specifically rejected the argument that the jury charge should have included an instruction requiring the Government to prove both that the defendant knew that the ammunition was an item for which an export license was required and intended to export the weapons without the license. Bernardino, 444 F. App’x at 74. We followed Bernardino in the appeal by Cardenas’s brother and codefendant, see United States v. Cardenas, ___ F. App’x ___, No. 14-50906, 2015 WL 5451335, 1 (5th Cir. Sept. 17, 2015), and in United States v. Reyes, 559 F. App’x 274 (5th Cir. 2014). Although Bernardino, Reyes, and Cardenas are unpublished and non-controlling precedent, they are persuasive. See 5TH CIR. R. 47.5.4; Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006). We hold that the district court did not commit plaint or otherwise error.

( Aid and Abet Firearm Smuggling. United States v. Lugo-Lopez (5th Cir. Aug. 17, 2016)(15-50407): An offense under 18 U.S.C. § 554(a) for aiding and abetting the exportation of munitions from the United States requires proof that “the defendant knew he was dealing with ammunition that was intended for export and that the exportation was illegal.” United States v. Cardenas, 810 F.3d 373, 374 (5th Cir. 2016) (per curiam). To establish that Lugo aided and abetted a violation of § 554(a), the Government must show that “the elements of the substantive offense occurred and that the defendant associated with the criminal venture, purposefully participated in the criminal activity, and sought by his actions to help it succeed.” United States v. Mitchell, 792 F.3d 581, 583 (5th Cir. 2015) (per curiam). Lugo contends that the Government failed to establish that he aided and abetted the attempted smuggling. His argument bears little weight. At trial, witnesses testified to being given direct instructions from Lugo to make purchases in the aid of smuggling munitions and to transport weapons from the United States to Mexico; others were threatened with violence because of their involvement with the smuggling. Indeed, one of the Government’s strongest witnesses, Julio Salazar (“Salazar”), testified at trial to Lugo’s direct involvement in smuggling guns. See United States v. Valdez, 453 F.3d 252, 257 (5th Cir. 2006) (“[A] defendant may be convicted on the uncorroborated testimony of a coconspirator who has accepted a plea bargain unless the coconspirator’s testimony is incredible.”). Salazar testified that he reported back to Lugo and that he was individually responsible for driving a Ford F-250 truck from San Antonio, Texas, to Piedras Negras, Mexico, with forty to fifty assault rifles and fifteen to twenty handguns stored in the truck. Salazar had installed an external gas tank to the exterior of the Ford truck and returned it to Lugo prior to his trip.

Ex Post Facto

( “A sentencing court must apply the version of the sentencing guidelines effective at the time of sentencing unless application of that version would violate the Ex Post Facto Clause.” United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).

( In United States v. Suarez, 911 F.2d 1016 (5th Cir. 1999), this court noted

that a sentence enhancement “based on an amendment to the guidelines effective after the offense was committed ‘would be an obvious . . . violation’ of the ex post facto clause.” Id. at 1021.

( We need not determine here whether ex post facto claims arising from the

application of evolving sentencing guidelines are viable after Booker. Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton. To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). See also United States v. Peltier, 505 F.3d 389, 391 n.3 (5th Cir. 2007) (“Plain error must be ‘error so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of [the] judicial proceedings and result in a miscarriage of justice.’”). Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain. From United States v. Castillo-Estevez, 597 F.3d 238 (5th Cir. March 10, 2010)(09-40096).

Expungement

( Doe v. United States, __ F.3d ___ (5th Cir. April 11, 2017)(16-20567):

An extraordinary case brought by Doe after criminal charges were dropped and he sought declaration that he was denied his due process rights, expunction, apology, and other equitable relief. Significant case, but plaintiff loses on limitations grounds.

( District court had jurisdiction under 28 U.S.C. § 1331 because Doe’s claims arise under the Fifth Amendment and presented a federal question.2 However, because Doe sued the United States, the district court lacked subject matter jurisdiction unless there has been a waiver of sovereign immunity.3 “A waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’”4 “[A] waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.”5 Whether the Government is entitled to sovereign immunity from suit presents a question of law that we review de novo.6

( 5 U.S.C. § 702 provides: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly o

( A court seemingly has the power to manage its records, even though the proceeding that generated those records has concluded.15 A request for expungement or sealing of court records would not appear to implicate sovereign immunity, but we are not called upon to address that question in this case. Doe has directly sued the United States, and Doe seeks relief beyond expungement, including a declaration that the Government violated his Fifth Amendment rights when it accused him of a crime in the Roe criminal prosecution.

( The Government does not contend that the Department of Justice (DOJ) is not an “agency.” We note that 5 U.S.C. § 551 defines “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency,” but it also lists a number of exclusions from the term “agency,” including the courts of the United States and Congress.17 The DOJ is not among these exclusions. A similar definition of “agency” and a similar list of exclusions appear in 5 U.S.C. § 701. The DOJ is listed as an “Executive department[]” in 5 U.S.C. § 101, and an “Executive department” is included as an “Executive agency” in 5 U.S.C. § 105. It therefore appears that the DOJ may be an agency with regard to certain acts or failures to act, though 5 U.S.C. § 701(a)(2) excludes from Chapter 7 of the APA “agency action [that] is committed to agency discretion by law.”

( Congress amended § 702 in 1976 to allow “[t]he United States [to] be named as a defendant” when nonmonetary relief is sought and the plaintiff’s

Claim is that “an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.”18 8 5 U.S.C. § 702.The intended effect of the amendment was to “broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment.”19 Bowen v. Massachusetts, 487 U.S. 879, 891-92 (1988). At least two Circuit Courts of Appeals have held that the second sentence of § 702 waives sovereign immunity for all actions seeking equitable, nonmonetary relief against an agency, even if there has been no “agency action” within the meaning of the APA.20

(20: See Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) (holding that § 702’s waiver of sovereign immunity applies even when there has been no “agency action,” reasoning that the second sentence of that section “does not use either the term ‘final agency action’ or the term ‘agency action’ . . . . [n]or does the legislative history refer to either limitation” and concluding that declarations in the legislative history “make clear that no such limitations were intended”); Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989) (holding “[w]e cannot agree with the [Immigration and Naturalization Service] that § 702’s wavier of sovereign immunity is limited to instances of ‘agency action’ as technically defined in § 551(13)”; concluding that “[n]othing in the language of the amendment [to § 702] suggests that the waiver of sovereign immunity is limited to claims challenging conduct falling in the narrow definition of ‘agency action’”; and holding that “on its face, the 1976 amendment to § 702 waives sovereign immunity in all actions seeking relief from official misconduct except for money damages”). However, our court has held that sovereign immunity is not waived by § 702 unless there has been “agency action,” as that term is defined in § 551(13).21 Agency action is statutorily defined to “include[] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”22

( Sofl: The district court observed that our court has “not addressed which statute of limitations period applies to a due process claim seeking expungement of an accusation,” and therefore “adopt[ed] the general statute of limitation provision of 28 U.S.C. § 2401(a), which provides that ‘every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.’”36 Neither party has argued that this statute is inapplicable, and we will therefore assume, without deciding, that it governs all of Doe’s claims.

( FIFTH Circuit Expungement Cases:

43 Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 701 (5th Cir. 1997).

44 United States v. Int’l Harvester Co., 720 F.2d 418, 419 (5th Cir. 1983) (“We are persuaded that the trial court did not abuse its discretion [by refusing expungement] because the base principle of our expungement cases has not been violated, in that [the party seeking relief] can defend the charge in an earlier filed and related case in which he is a charged defendant.”); cf. Powell v. Florida, 579 F.2d 324, 330 (5th Cir. 1978) (holding that a hearing that comports with due process can eliminate the availability of relief for an earlier due process violation); see generally Dailey v. Vought Aircraft Co., 141 F.3d 224, 232-33 (5th Cir. 1998) (Smith, J., dissenting) (explaining the “cure doctrine”).

Extradition. See Extradition Treaty Between the United States of America and the Argentine Republic Art. 2, U.S.-Arg., June 10, 1997, S. Treaty Doc. No. 105-18, available at (“An offense shall be an extraditable offense if it is punishable under the laws in both Parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.”). … n October 2010, the United States filed a complaint under 18 U.S.C.

§ 3184, asking a federal district court to certify Balzan as extraditable. The complaint alleged that the conduct of which Balzan was accused is punishable by over one year of imprisonment in both the United States and Argentina. After an extradition hearing, a magistrate judge found that documents Argentina submitted in support of extradition were properly certified and authenticated, in accordance with the treaty and 18 U.S.C. § 3190. Based in part on those documents, the magistrate certified Balzan as extraditable. … Balzan petitioned for a writ of habeas corpus. Note 3: A person certified as extraditable may not appeal from a magistrate’s certification decision, but may seek habeas corpus relief. See In re U.S., 713 F.2d 105, 108 (5th Cir. 1983). Note 5: A dual criminality clause may be satisfied by a violation of state law. See Wright v.

Henkel, 190 U.S. 40, 58–62 (1903). … Habeas corpus review of a magistrate’s certification order is “quite narrow.” Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir. 1980). We may inquire only “[1] whether the magistrate had jurisdiction, [2]

whether the offense charged is within the treaty, and [3] by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Id. (quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)) (internal quotation marks omitted); see also Ntakirutimana v. Reno, 184 F.3d 419, 423 (5th Cir. 1999); Gusikoff v. United States, 620 F.2d 459, 461 (5th Cir. 1980).The third inquiry focuses only on “whether there is any competent evidence tending to show probable cause;” “[t]he weight and sufficiency of that evidence” is not our concern. Gusikoff, 620 F.2d at 462 (quoting Garcia-Guillern v. United States, 450 F.2d 1189, 1192) (internal quotation marks omitted); see also Ludecke v. U.S. Marshal, 15 F.3d 496, 497, 499 (5th Cir. 1994); Escobedo, 623 F.2d at 1102.—from Balzan v. United States, __ F.3d ___ (5th Cir. Dec. 7, 2012)(11-10979).

Factual Basis

( “The factual basis cannot be implied from the fact that the defendant entered a plea, but must appear on the face of the record and ‘must be precise enough and sufficiently specific’ to demonstrate that the accused committed the charged criminal offense.” United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (quoting United States

v. Johnson, 546 F.2d 1225, 1226 (5th Cir. 1977))).

Facebook

( Facebook has taken the position that subpoenas issued to it are covered by the Stored Communications Act. See In re Facebook, 923 F. Supp.2d 1204, 1205 (N.D. Cal. 2012).

( United States v. Orisakwe, (5th Cir. August 5, 2015)(14-40699):

Orisakwe contends the different subpoenas failed to meet these requirements. First, Orisakwe argues that the Sheriff’s Lieutenant—rather than the Sheriff himself—signed the subpoenas. But the subpoenas were issued under the authority of the Sheriff

and the Lieutenant merely signed on the Sheriff’s behalf. Orisakwe also argues that no reasonable cause existed to issue any of the subpoenas, but such cause was provided by the tip the LVPD received that someone used Chelsea’s Facebook account to request explicit videos from a minor. As to the Facebook subpoena specifically, Orisakwe makes two arguments. He contends that Facebook is not a “provider of Internet service,” but that term is expansively defined in the statute to include any entity that provides “an electronic mail address,” which Facebook does.

3 See Nevada .R.S. § 193.340 (defining a “provider of Internet service” by cross-reference to N.R.S. § 205.4758); N.R.S. § 205.4758 (stating that a “‘provider of Internet service’ means any provider who provides subscribers with access to the Internet or an electronic mail address” (emphasis added)). He next argues that the Facebook subpoena was overbroad because it requested content records that can only be obtained by search warrant. Orisakwe, however, has not actually identified any information obtained from Facebook, or used at trial, that failed to comply with the statute’s restrictions on administrative subpoenas. See 18 U.S.C § 2703(c)(2) (procedure for administrative subpoena). Orisakwe has also failed to demonstrate the unlawfulness of the laterissued search warrants directing Facebook and Yahoo to turn over the contents of Chelsea’s accounts. The SCA provides that a warrant may be issued “by a court of competent jurisdiction.” 18 U.S.C. § 2703(a). At the federal level, that includes a federal district or circuit court that “has jurisdiction over the offense being investigated [or] is in or for a district in which the provider of a wire or electronic communication service is located.” 18 U.S.C. § 2711(3)(A). At the state level, it includes “a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants.” 18 U.S.C. § 2711(3)(B). Orisakwe argues that, because there are no geographical restrictions on state courts but there are on federal courts, Congress intended to deny state courts the power to issue a search warrant for out-of-state records. But the plain text of the statute permits a state to issue a search warrant if authorized by the law of that state. Here, there is no dispute that Nevada and Texas law authorized the search warrants issued to Facebook and Yahoo, despite these entities’ storing the requested information outside the issuing state. See N.R.S. § 193.340 (containing no restrictions based on a company’s data being located elsewhere); Tex. Code Crim. Proc. Ann. art. 18.01 (same). Because Orisakwe has identified no defects with the subpoenas or warrants, the district court properly denied his motion to suppress.

Facts

( We recite the facts in the light most favorable to the verdict.” United States v. Olis, 429 F.3d 540, 541 n.1 (5th Cir. 2005).

Factual Findings on § 2255 Motion.

( A district court’s factual findings relating to a § 2255 motion are reviewed for clear error and its conclusions of law are reviewed de novo. United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (citing United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999)).

Factual Insufficiency(See Insufficiency of Evidence

Failure to Brief Issue

( When an appellant does not brief issues, the issues are deemed abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999.

Failure to Protect Prisoner

( Prison officials have a duty under the Eighth Amendment to protect inmates from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994). However, not every injury inflicted by one inmate against another inmate rises to the level of a constitutional violation. Id. at 834; Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995). To establish a failure-to-protect claim, an inmate must show that the

conditions of his incarceration posed “a substantial risk of serious harm” and that prison officials were deliberately indifferent to his need for protection. Farmer, 511 U.S. at 834.

Fair Labor Standards Act and Texas Sovereign Immunity:

( From Hilda v. Texas Dept of Family and Protective Services, Child Protective Services Division (5TH Cir. Sept. 12, 2012)(12-50049):

The State of Texas appeals the denial of a motion to dismiss a lawsuit filed

against them by the United States Department of Labor under the Fair Labor

Standards Act (“FLSA”). The only issue on appeal is whether this suit is barred

by sovereign immunity. For the following reasons, we AFFIRM. ***

The single issue on appeal is whether the Department of Labor is prohibited from bringing this suit under the doctrine of sovereign immunity. We review issues of law, such as whether a state is entitled to sovereign immunity, de novo. Union Pac. R.R. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 339 (5th Cir. 2011); Severance v. Patterson, 566 F.3d 490, 495 (5th Cir. 2009).

Sovereign immunity is a pre-constitutional guarantee that states cannot be subject to suits by their own citizens without their consent. See U.S. CONST. AMEND XI; Alden v. Maine, 527 U.S. 706, 712-13 (1999) (“States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today. . .”).

Sovereign immunity, however, does not prevent a state from being subject

to suit by the United States. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 71 n.14 (1996). As Texas concedes, this court has previously held that sovereign immunity does not bar a suit by the United States on behalf of individual citizens under the FLSA. Marshall v. A&M Consol. Indep. Sch. Dist., 605 F.2d 186, 188-89 (5th Cir. 1979) (citing Dunlop v. State of N.J., 522 F.2d 504, 517 (3d Cir. 1975), vacated and remanded on other grounds by New Jersey v. Usery, 427 U.S. 909 (1976); Brennan v. State of Iowa, 494 F.2d 100, 103 (8th Cir. 1974)). See also Emps. of Dep’t. of Pub. Health & Welfare, Mo. v. Dep’t of Pub. Health & Welfare, Mo., 411 U.S. 279, 285-86 (1973) (noting that “the Secretary of Labor [has] authority to bring suit for unpaid minimum wages or unpaid overtime compensation under the FLSA . . . [and] suits by the United States against a State are not barred by the Constitution.”).

A suit by the Secretary of Labor under the FLSA is a suit in the public

interest, notwithstanding the fact that the money obtained passes to private individuals. Marshall, 605 F.2d at 188-89; Dunlop, 522 F.2d at 517 (“[T]he allocation of money damages against the States benefits not only the employees but aids substantially in the enforcement of the FLSA . . . the provision authorizing suits by the Secretary [is] based upon Congressional sensitivity to the delicacy of our federal system.”) (citation omitted). Therefore, sovereign immunity does not apply to bar this suit. Marshall, 605 F.2d at 188-89. See also Alden, 527 U.S. at 759-60 (“The difference between a suit by the United States on behalf of the employees and a suit by the employees implicates a rule that the National Government must itself deem the case of sufficient importance to take action against the State; and history, precedent, and the structure of the Constitution make clear that, under the plan of the Convention, the States have consented to suits of the first kind but not of the second.”). Under the precedent

of this circuit, Texas’s argument is foreclosed.

Fair Sentencing Act

( United States v. Coleman, (5th Cir. Nov. 28, 2012)(10-30936):

This Court previously affirmed the sentence of Appellant because

United States v. Tickles, 661 F.3d 212 (5th Cir. 2011) (per curiam), held that

the Fair Sentencing Act of 2010 (“FSA”) does not apply retroactively to a

defendant who is sentenced after the effective date of the FSA if the offense

preceded that effective date. See 661 F.3d at 214–15. However, in United

States v. Berry, No. 11-51050, 2012 WL 5906899 (5th Cir. Nov. 26, 2012) (per

curiam), this Court determined that Tickles had been overruled by Dorsey v.

United States, 132 S. Ct. 2321 (2012). In Dorsey, the Supreme Court

announced that the more lenient penalties of the FSA apply to offenders who

were sentenced after the effective date of the FSA if the underlying offense

was committed before the effective date of the FSA. 132 S. Ct. at 2326.

( At the time of Wilson’s initial sentencing, this Circuit did not apply the FSA to conduct committed before the new law became effective. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011). In Dorsey v. United States, the Supreme Court held categorically that the FSA applied to all sentences imposed after the law’s passage, regardless of when the charged conduct occurred. 132 S. Ct. 2321, 2336 (2012). Wilson

accordingly filed a motion for resentencing pursuant to 28 U.S.C. § 2255. The Government agreed that he was entitled to a new hearing but argued that he should receive the same sentence, a request the district court eventually granted. Wilson now appeals the imposition of that sentence, arguing that the Government was required to indict and prove beyond a reasonable doubt the facts determining his sentence. Apprendi v. New Jersey, 530 U.S. 466); see also Alleyne v. United States, 133 S. Ct. 2151 (2013).

Facebook

( United States v. Barnes, __ F.3d ___ (5th Cir. Sept. 30, 2015)(14-60846):

Hall argues that certain Facebook and text messages attributed to him at trial were introduced into evidence with insufficient authentication under Federal Rule of Evidence 901. This issue first arose at trial during the testimony of Holsen. Holsen testified that, although Hall is quadriplegic, he is able to operate a cell phone—including texting and using Facebook—utilizing his mouth and some limited movement in his right arm. After laying additional foundation, the Government attempted to introduce Facebook and text messages between Holsen and Hall. Hall objected to the authenticity of the evidence, and the district court overruled the objections. The introduced Facebook and text messages generally related to drug transactions between Holsen and Hall. A district court’s evidentiary decisions are reviewed for abuse of discretion and any error in admitting evidence is subject to harmless error review. United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). Authentication is a condition precedent to the admission of evidence and is satisfied when a party presents evidence sufficient “to support a finding that the item is what the proponent claims.” Fed. R. Evid. 901(a); United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009). However, “[t]he standard for authentication is not a burdensome one.” United States v. Jackson, 636 F.3d 687, 693 (5th Cir. 2011). The Government laid sufficient foundation regarding Holsen’s Facebook and text messages. Holsen testified that she had seen Hall use Facebook, she recognized his Facebook account, and the Facebook messages matched Hall’s manner of communicating. She also testified that Hall could send text messages from his cell phone, she had spoken to Hall on the phone number that was the source of the texts, and the content of the text messages indicated they were from Hall. Although she was not certain that Hall authored the messages, conclusive proof of authenticity is not required for the admission of disputed evidence. United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989).7 As the district court correctly recognized, the jury holds the ultimate responsibility for evaluating the reliability of the evidence. See Barlow, 568 F.3d at 220.8 Regardless, any potential error in admitting the text and Facebook messages was harmless. The text and Facebook messages at issue were about drug transactions, and were, therefore, relevant to all of the charged counts. However, the content of the messages was largely duplicative of what Holsen and numerous other witnesses testified to directly. Improperly admitting evidence that is duplicative of testimony at trial does not warrant reversal under harmless error review. See United States v. Bell, 367 F.3d 452, 469 (5th Cir. 2004).

False Statements

( From United States v. Garza, __ F.3d __ (5th Cir. Dec. 9, 2009)(08-51224):

Charged with false statement to border patrol about citizenship status of passengers.

Probation officer declined to recommend U.S.S.G. § 2L2.1 (the base offense level for making a false statement regarding the citizenship of another), and instead recommended that the district court apply § 2L1.1(a)(3) (the base offense level for alien smuggling). )…. Faced with a res nova issue for this circuit, viz., under what circumstances a district court may apply a cross-reference provision pursuant to U.S.S.G. § 2B1.1(c)(3), we begin our analysis at 18 U.S.C. § 1001(a)(2), the criminal statute prohibiting the making of a false statement. … As the Guideline § 2B1.1(a)(2) notes, because § 1001(a)(2) prohibits the making of any false statement within the jurisdiction of the government, a defendant’s conduct will often be “more aptly covered by another guideline. … Section 2B1.1(c)(3) sets out three criteria for determining whether another, more specific cross-reference provision should be used for sentencing the defendant on the offense of conviction. … We find persuasive the reasoning of several other circuits which, after considering this same issue, have held that a sentencing court may apply a cross-reference provision under U.S.S.G. § 2B1.1(c)(3) only if the application of that provision is supported by the conduct alleged in the indictment.

( Materiality. From United States v. Abahem, __ F.3d __ (5th Cir. Apr. 4, 2012)(1150166): The Defendant challenges only whether the Government proved that the Defendant’s false statement was “material.” The parties agree that the first step

in the analysis is to ask two “questions of purely historical fact” (1) what

statement was made, and (2) what decision the agency was trying to make. Id.

(citing United States v. Gaudin, 515 U.S. 506, 509 (1995)). The third question

is whether, under the appropriate legal standard, the statement was material to the decision the agency is trying to make. To meet the standard of materiality under § 1001, “[t]he statement must have a natural tendency to influence or be capable of influencing the decision of the decision-making body to which it was addressed.” Id. (internal citations omitted). Actual influence is not required –a statement can be ignored or never read and still be material – and the statement need not be believed. Id.

In Kungys v. United States, 485 U.S. 759 (1988), the United States sought to revoke Kungys’ citizenship under 8 U.S.C. § 1451(a) after it was discovered that during the naturalization proceedings he had misrepresented certain material facts relating to his date and place of birth, wartime occupations, and wartime residence. The question narrowed to whether the misrepresentations were material under the relevant statutes.

Justice Scalia, writing for the court, made the following points:

(1) The same materiality standard applied in this case as applies for a violation of § 1001.

(2) The question was whether the statements had “a natural tendency to influence, or [were] capable of influencing, the decision of the decisionmaking body to which [they were] addressed.” Id., at 770 (quoted in Gaudin, 515 U.S. at 510). In interpreting that phrase, Justice Scalia stated that rather than letting the “infinite variety of factual patterns that may emerge” around a statement drive the materiality question, the “safer” method is “to fix as our guide the central object of the inquiry: whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.” Id., at 771.

In U.S. v. McBane, 433 F.3d 344 (3 Cir. 2005), the question was whether

a statement the defendant made to an FBI agent, which the agent knew to be false, was material to the agent’s investigation. The court gave its interpretation of the above language from Kungys: “In other words, the [Kungys] Court judged the relevant inquiry to be whether the falsehood was of a type that one would normally predict would influence the given decision making body.” The court reasoned that:

The dispositive question on this issue is whether the test for

‘materiality’ necessarily requires that a false statement be capable

of influencing an actual, particular decision of the agency at issue,

or whether the test requires only that a statement be of a type that

would naturally tend to influence a reasonable decisionmaking

agency in the abstract.

Id. at 350. The court answered the question by referring to Justice Scalia’s opinion in Kungys, which it read as making it clear that the “natural tendency” test is an objective one focused on whether the statement is “of a type capable of influencing a reasonable decision maker.” Id., at 351 (emphasis in original). The court observed that, as it understood it, “the phrase ‘natural tendency’ connotes qualities of the statement in question that transcend the immediate circumstances in which it is offered and inhere in the statement itself.” Id. It indicated that it was joining the First and Ninth circuits in “apply[ing] an objective materiality test,” focused on “‘the intrinsic capabilities of the statement itself, rather than the possibility of the actual attainment of its end as measured by collateral circumstances.’” Id., at 352 (quoting United States v. Service Deli, Inc., 151 F.3d 938, 941 (9th Cir.1998)) (citing United States v. Edgar, 82 F.3d 499 (1st Cir.1996)).

Finally, the Defendant’s argument in this case is similar to that rejected

by this court in Najera Jimenez, 593 F.3d at 399-400.

( We articulated the test for materiality in United States v. Lichenstein, 610 F.2d 1272, 1278 (5th Cir. 1980).: “A material false statement under [§ 1001] is one that is capable of affecting or influencing the exercise of a government function.” This standard calls for “differentiat[ing] the official, authorized functions of an agency or department from matters peripheral to the business of that body.” Rodgers, 466 U.S. at 479. “The purpose of this ‘judge-made limitation of materiality’ is to ensure that the reach of § 1001 is confined to reasonable bounds and not allowed to embrace trivial falsehoods.” United States v. Elashyi, 554 F.3d 480, 497 (5th Cir. 2008) (quoting Lichenstein, 610 F.2d at 1278). From United States v. Smith, (5th Cir. March 22, 2013)(11-60828).

( False statement under § 1001 versus § 1505. United States v. Greigo, __ F.3d __,

(5th Cir. Sept 15, 2015)(15-51197): Griego was charged with aiding and abetting the making of a false statement to the United States Marshal’s Service, in violation of 18 U.S.C. §§ 1001(a)(2) and (2). Griego entered a plea of guilty without a plea agreement. The presentence report (PSR) prepared by the probation office assigned a base offense level of fourteen pursuant to U.S.S.G. § 2J1.2, Obstruction of Justice. Griego objected to the application of § 2J1.2, arguing that the facts alleged in his indictment did not satisfy the requirements of any of the statutory offenses covered by the obstruction of justice guideline. He argued that § 2B1.1(a)(2), which sets forth a base offense level of six, was the guideline that appropriately covered his criminal conduct. The probation officer responded to the objection, agreed that the guideline to be used in calculating the sentencing range should be § 2B1.1, and filed an addendum to the PSR and revised the PSR. While the probation officer agreed that § 2J1.2 did not apply on its own terms, the revised PSR still calculated the base offense level as fourteen, pursuant to the cross-reference provision in § 2B1.1(c)(3). That provision provides that if “the defendant was convicted under a statute proscribing false, fictitious, or fraudulent statements or representations generally (e.g., 18 U.S.C. § 1001 . . .)” and “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline,” that other guideline should apply. U.S.S.G. § 2B1.1(c)(3). At sentencing Griego again objected to the PSR, arguing that the facts alleged in the indictment did not warrant the application of § 2J1.2.

…The Government argues that the facts alleged in Griego’s indictment would support a conviction under 18 U.S.C. § 1505, which is covered by § 2J1.2 and prohibits, inter alia, “corruptly . . . obstruct[ing], or imped[ing] or endeavor[ing] to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” Specifically, the Government asserts that the indictment shows that Griego: knew there was a pending proceeding . . . ; being conducted by officers from the U.S. Marshal’s Service (who interviewed [Griego] more than once); and [Griego] willfully and knowingly made a false statement which impeded the investigation. Yet while the Government acknowledges that the relevant portion of 18 U.S.C. § 1505 requires proof that the defendant acted “corruptly,” it wholly fails to explain how the facts alleged in Griego’s indictment satisfy this requirement. We have explained that “corruptly” in the context of § 1505 means “knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice.” United States v. Kay, 513 F.3d 432, 454 (5th Cir. 2007). By contrast, under 18 U.S.C. § 1001, “[t]he requirement that the false representation be made ‘knowingly and willfully’ is satisfied if the defendant acts deliberately and with the knowledge that the representation is false.” United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986). The generalized mens rea required to violate § 1001 is not sufficient to prove the more specific mens rea required to violate § 1505. See United States v. Kim, 95 F. App’x 857, 862 (9th Cir. 2004). Griego’s indictment for violation of § 1001 alleged that Griego “did knowingly and willfully make a false, fraudulent and fictitious material statement and representation”; it did not allege that he specifically intended to subvert or undermine the due administration of justice. Because the facts alleged in the indictment do not support the application of U.S.S.G. § 2J1.2, the district court erred in applying the cross-reference provision under U.S.S.G. § 2.B1.1(c)(3). See Garcia, 590 F.3d at 315-16. Accordingly, we VACATE the sentence and REMAND for resentencing.

( Jurisdiction of Agency. From United States v. Smith, (5th Cir. March 22, 2013)(11-60828). Smith first asserts that his actions did not fall “within the jurisdiction” of the United States government because FMCSA has no authority to take any action with respect to data entered into a state database connected to the CDLIS, nor any power to punish persons who make fraudulent entries. … The government responds that this case is distinguishable from the cases Smith relies on and his conviction is proper under our decision in United States v. Taylor, 582 F.3d 558, 562–64 (5th Cir. 2009). We agree that this case falls within Taylor. We recognized in Taylor that a false statement may fall “within the jurisdiction” of a federal agency if it has the potential to “contravene[] the intent” of an agency program. See id. at 563–64. There, a defendant made false statements to a state disaster relief agency to wrongfully access funds that a federal agency furnished. Id. at 561. A jury found the defendant guilty under § 1001(a)(2) and he appealed, contending in part that his false statement did not

satisfy the jurisdictional element because he made the statement to a state agency with limited federal oversight. Id. at 562. We construed the defendant’s argument as “a challenge to the sufficiency of the evidence establishing a nexus between his statements to the [state agency] and the administration of the grant by [the federal agency].” Id. In upholding the defendant’s conviction, we determined that the defendant’s statements “contravened the intent” of the state program and “had the potential to divert a portion of the[] funds from an individual who was entitled to receive them.” Id. at 563–64. Therefore, even though the federal agency had no direct authority over disbursement of the funds and no power to punish individuals making fraudulent claims, the defendant’s false statements affected a “matter within the jurisdiction” of a federal agency for the purposes of § 1001. Id. at 564.

( Elements under 18 USC 1001: Section 1001(a) imposes criminal liability on

“whoever, in any matter within the jurisdiction of the executive, legislative, or

judicial branch of the Government of the United States, knowingly and willfully

makes any materially false, fictitious, or fraudulent statement or . . .

representation.” 18 U.S.C. § 1001(a)(2). Under this provision, the government

must prove five elements to obtain a conviction: “(1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5) agency jurisdiction.” United States v.

Montemayor, 712 F.2d 104, 106 (5th Cir. 1983) (quoting United States v. Baker,

626 F.2d 512, 514 (5th Cir. 1980)). From United States v. Smith, (5th Cir. March 22, 2013)(11-60828).

( Intent to Mislead “A false representation is one made with an intent to deceive or mislead.” United States v. Shah, 44 F.3d 285, 289 (5th Cir. 1995) (quotation marks and

citation omitted). A false statement is made knowingly and willingly “if the defendant acts deliberately and with the knowledge that the representation is false.” United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986). Again, we view all the evidence in the light most favorable to the verdict. United States v. Harris, 666 F.3d 905, 907 (5th Cir. 2012).

( To obtain a conviction under 18 U.S.C. § 1001, the government must prove that Lopez knowingly and willfully made a statement to a federal agency that was false and material. United States v. Taylor, 582 F.3d 558, 562 (5th Cir. 2009). A statement is material if it has “a natural tendency to influence or be capable of influencing the decision of the decisionmaking body to which it was addressed.” United States v. Abrahem, 678 F.3d 370, 374 (5th Cir. 2012)(quotation marks and citation omitted). “Actual influence is not required – a statement can be ignored or never read and still be material – and the statement need not be believed.” Id.

Social Security Numbers as False Official Statement.

( United States v. Grant, __ F.3d ___ (5th Cir. March 1, 2017)(15-10962)

(Bankruptcy fraud case where D failed to reveal all her social security #s).

False Statements—Jurisdiction v. Factual Sufficiency

( United States v. Taylor, 582 F.3d 558 (5th Cir. 2009)(08-60581). The district court held that because the Mississipppi Development Agency funds were supplied by HUD and because HUD had oversight authority over the general administration of the funds, Taylor’s false statement was made to an agency within federal jurisdiction. …Although framed as a challenge to the court’s jurisdiction, Taylor’s argument effectively constitutes a challenge to the sufficiency of the evidence establishing a nexus between his statements to the MDA and the administration of the grant by HUD. See United States v. Reynolds, 152 F. App’x 416, 417 (5th Cir. Nov. 2, 2005) (unpublished) (reviewing “whether the false statements were made ‘in any matter within the jurisdiction’ of [HUD]” for sufficiency of the evidence) (quoting § 1001(a)(2)). “This court reviews a challenge to the sufficiency of the evidence de novo.” United States v. Nguyen, 504 F.3d 561, 567

(5th Cir. 2007). … Whether a false statement is made in a “matter within the jurisdiction” of a federal agency is an issue of fact. United States v. Montemayor, 712 F.2d 104, 108 (5th Cir. 1983). … Taylor’s false statement was made to a state agency that was charged with administering a federally funded program. See id. at 107 (“[A] false statement made to a local agency administering a federal program has been held to create federal criminal

liability under § 1001 . . . .”); see also United States v. Stanford, 589 F.2d 285, 297 (5th Cir. 1978) (“[A] statement may concern a matter within the federal jurisdiction described in section 1001, even if the statement is not submitted directly to the federal department or agency involved, and the federal agency involvement is limited to reimbursement of expenditures.”).

False Testimony

( Allegedly false testimony in violation of due process right to a fair trial under Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972). We disagree. We have previously explained that reversal of a conviction based on uncorrected false testimony under Napue “is proper only if (1) the statements in question are shown to be actually false; (2) the prosecution knew that they were false; and (3) the statements were material.” United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997) (citing United States v. Blackburn, 9 F.3d 353, 357 (5th Cir. 1993)). Defendant’s claim falters on the first point, as there is nothing in the record to suggest that Favela’s testimony was actually false.

False Titles

( Medal of Honor case. United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (plurality opinion), Stolen Valor Act

( Falsely using title of psychologist when she had training. Sarafine v. Branaman,

__ F.3d __ (5th Cir. January 12, 2016)(14-51151): Candidate for state senate was using

Term psychologist in her campaign literature although she was not so licensed but

Had extensive educational training and taught at Yale.

After the Texas State Board of Examiners of Psychologists ordered her to stop using the title of “psychologist” and to desist from offering or providing psychological services, Serafine sued, alleging that the Psychologists’ Licensing Act (the “Act”), Sections 501.001 through 501.505 of the Texas Occupational Code, violates the First and Fourteenth Amendments. The district court denied her claims. Affirmed & Denied in part.

Serafine contends that Section 501.003(b)(1) (“(b)(1)”), under which “[a] person is engaged in the practice of psychology” if she represents herself “to the public by a title or description of services that includes the word ‘psychological,’ ‘psychologist,’ or ‘psychology,’” is unconstitutional as applied to speech on her political campaign website. We agree.

The Supreme Court has never formally endorsed the professional speech doctrine, though some circuits have embraced it based on Justice White’s concurrence in Lowe v. SEC, 472 U.S. 181, 230–33 (1985). --See Moore-King v. Cty. of Chesterfield, 708 F.3d 560, 568–70 (4th Cir. 2013) (applying professional speech doctrine); Pickup v. Brown, 740 F.3d 1208, 1228–29 (9th Cir.) (same), cert. denied, 134 S. Ct. 2871, and cert. denied, 134 S. Ct. 2881 (2014); Locke v. Shore, 634 F.3d 1185, 1191–92 (11th Cir. 2011) (same). --Recently, we also observed that “state regulation of the practice of a profession, even though that regulation may have an incidental impact on speech, does not violate the Constitution.-- Hines v. Alldredge, 783 F.3d 197, 201 (5th Cir. 2015), cert. denied, 2015 U.S. LEXIS 7664 (U.S. Nov. 30, 2015) (No. 14-1543). See also Kagan v. City of New Orleans, 753 F.3d 560, 562 (5th Cir. 2014), cert. denied, 135 S. Ct. 1403 (2015) (upholding licensing law for tour guides against First Amendment challenge)-- Assuming that the professional speech doctrine is valid, its application should be limited. “There is a difference, for First Amendment purposes, between . . . professionals’ speech to the public at large versus their direct, personalized speech with clients.”

--Wollschlaeger v. Governor of Fla., No. 12-14009, 2015 U.S. App. LEXIS 21573, at *69 (11th Cir. Dec. 14, 2015) (alteration in original) (quoting Locke v. Shore, 634 F.3d 1185, 1191 (11th Cir. 2011)) “While a professional may speak on a variety of topics in a variety of contexts, only some of this speech falls under the category of “professional speech.” Id. Indeed, in his concurrence in Lowe, Justice White first suggested this distinction between speech by a professional to a client (which may be restricted) and speech by a professional to the general public, which is subject to full First Amendment protection.

Any interest the government can claim in protecting clients from manipulation or exploitation by a psychotherapist fails when the psychotherapist is no longer speaking to the client in her capacity as such.6 In other words, the professional speech doctrine is properly limited to the actual practice of the profession. “[T]he state may prohibit the pursuit of medicine as an occupation without its license, but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought.”7 Outside the fiduciary relationship between client and therapist,

speech is granted ordinary First Amendment protection. Indeed, “the principle that the government may restrict entry into professions and vocations through licensing schemes has never been extended to encompass the licensing of speech per se.”8 Serafine’s speech on her campaign website was far removed from the context of professional speech. She was not providing advice to any particular client but communicating with the voters at large, so the professional speech doctrine is inapplicable. Serafine’s campaign statements are entitled to full First Amendment protection.

Serafine’s speech on her campaign website was not professional or commercial speech; it was political speech of the highest form—a candidate seeking election to public office. Indeed, “it can hardly be doubted that the constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”11 Section 501.003(b)(1) is a content-based restriction on speech—proscribing one’s ability to claim to be a psychologist. As applied to Serafine’s political speech, (b)(1) is subject to “exacting scrutiny” and must be “narrowly tailored to serve an overriding state interest.

Likewise, in United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (plurality opinion), the Court explained that “[t]ruth needs neither handcuffs nor a badge for its vindication.” The Court held that false statements about receiving the Congressional Medal of Honor made by a water-district board .See Friedman v. Rogers, 440 U.S. 1, 10 (1979) (discussing why commercial speech needs a lesser degree of protection). Brown v. Hartlage, 456 U.S. 45, 61 (1982) (quoting Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)). member at a public meeting were entitled to First Amendment protection; it struck down the Stolen Valor Act, which criminalized such statements. Id. at 2542–43. The plurality specifically noted the public ridicule and swift refutation that immediately followed the false claim. Id. at 2549–50. Indeed, the Court has long held that “erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” New York Times Co. v. Sullivan, 376 U.S. 254, 271–72 (1964) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). Thus, the “First Amendment requires that we protect some falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). Unlike the plaintiff in Alvarez, Serafine did not engage in a bald-faced lie. This case is much closer to Byrum v. Landreth, 566 F.3d 442, 447–48 (5th Cir. 2009), in which we noted the “strong argument” that calling oneself an interior designer in contravention of a state law which required a license in order to do so was “neither actually nor potentially misleading.” Serafine has taught psychology at the collegiate level and was published in psychological journals. Thus there is again a “strong argument” that calling herself a psychologist on her campaign website was not misleading. Although she may not be able to practice as a psychologist under Texas law, that does not bear on whether she is a psychologist by reputation or training. Therefore, because the state’s interest in proscribing misleading speech is limited in the political context, and because the Board’s goal of preventing deception can be served by other means—(b)(1) is unconstitutional as applied to Serafine.

Faretta Hearings. Faretta v. California, 422 U.S. 806, 807 (1975)(self-representation)

( United States v. Davis, 269 F.3d 514, 516-20 (5th Cir. 2001): Error when district judge permitted the AUSA to conduct most of the Faretta hearing.

( United States v. Fortenberry, 2009 WL 3428403, __ F. App’x __ (5th Cir. 2009)(08-20748): No error in allowing AUSA to conduct some of Faretta hearing when US District Judge conducted most of hearing.

( Waiver of counsel under Faretta in the case in chief extends to sentencing.

United States v. Goodson, __ F. App’x __ (5th Cir. Dec. 22, 2009)(08-20760), citing

United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004)(collecting cases).

( From Lefevre v. Cain, 586 F.3d 349 (5th Cir. 2009). Shackled of Louisiana state prisoner do not violate right to self-representation when only his standby counsel could

attend bench conferences—defendant acquiesced in the procedure.

( From United States v. Long, 597 F.3d 720 (5th Cir. Feb. 19, 2010)(09-10003):

Here, Long seems to have made a request to fire his appointed attorney, but not a clear and unequivocal request to represent himself. … hearing. As a result of Long’s attempts to fire his attorney, the magistrate judge made multiple attempts to have a Faretta hearing. Long thwarted each attempt until the day of trial. … Even if Long had clearly and unequivocally asserted his right to self representation, that right may be waived by his actions. Faretta recognized that the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. Faretta, 95 S. Ct. at 2541 & n.46. After Faretta, at least two circuits have held that obstructionist

behavior may waive the right to self-representation. E.g., United States v. Brock, 159 F.3d 1077, 1079 (7th Cir. 1998). … United States v. Myers, 503 F.3d 676, 681 (8th Cir. 2007).

… Like Brock, these facts tend to suggest that Long’s behavior of itself may well have resulted in the waiver of his right to self-representation. Long also argues, alternatively, that if he waived his right to self-representation, he reasserted it at the sentencing stage. Courts have held that the pro se request may be untimely and, therefore, waived. E.g., Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir. 2007) (“Wood did not move to proceed pro se until after the jury had already returned a guilty verdict against him,

immediately before the sentencing phase of his trial, and the trial court therefore

had the discretion to deny the motion.”); United States v. Edelmann, 458 F.3d

791, 808–09 (8th Cir. 2006) (request made four days before trial); Howze v. Roe,

92 F. App’x 515, 516 (9th Cir. 2004) (unpublished) (request made two days before

trial). Long relies on United States v. Cano, in which this court remanded for

re-sentencing when the district court failed conduct a Faretta hearing after the

defendant requested to represent himself eighteen days before sentencing.

Cano, 519 F.3d at 515, 517. Unlike Cano, Long requested to proceed pro se the day of the sentencing hearing. Given Long’s previous disruptive and uncooperative conduct, the trial court may have seen this as another delay tactic. Throughout trial, the district

court was concerned with Long’s “Republic of Texas ‘psychobabble,’” which,

according to the district court, was intended to intimidate the court and frustrate

the administration of justice. Like Wood, we find that Long’s assertion at

sentencing was untimely.

( An impermissible denial of self-representation cannot be harmless.

United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008).

( Many cases suggest that something more than just firing one’s attorney is required before one clearly and unequivocally requests to proceed pro se. E.g., Moreno v. Estelle, 717 F.2d 171, 174–75 (5th Cir. 1983). “[T]he right to counsel is in force until waived, [and] the right to self-representation does not attach until asserted.” Id. at 174 (quoting Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc)) (emphasis in original). Moreno found that the defendant did not waive his right to counsel because he told the court he wanted to fire counsel without explicitly informing the court that he wished to proceed pro se. Id. at 174–75. Next, in Burton v. Collins, 937 F.2d 131, 133–34 (5th Cir. 1991), this court found no clear and unequivocal wavier where a defendant informed the judge he wanted to fire his attorney and asked, “May I represent myself?” Burton, 937 F.2d at 132. The court interpreted Burton’s question as an inquiry into the possible alternatives available. Id. at 134. Finally, United States v. Ibarra is an unpublished opinion of this court the facts of which are somewhat similar to those in the instant case. No. 05-50934, 2007 WL 807038, at *2 (5th Cir. 2007).

( From United States v. Venier, June 9, 2010 (08031047): This court reviews claims concerning the right of self-representation de novo. United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). The district court’s factual findings to support its ruling are reviewed for clear error. Id. at 361. An improper denial of the right of self-representation, if established, requires reversal without further analysis for harmless error. United States v.

Majors, 328 F.3d 791, 794 (5th Cir. 2003).

A competent criminal defendant has a Sixth Amendment right to represent himself at trial if he knowingly chooses to do so and waives his right to counsel. Jones, 421 F.3d at 363; see also 28 U.S.C. § 1654. The right to self-representation, however, is not absolute. Indiana v. Edwards, 128 S. Ct. 2379, 2384 (2008). The right is forfeited by obstruction, disruptive conduct, or by abusing the dignity of the courtroom. Id.; see also Faretta v. California, 422 U.S. 806, 834 n.46 (1975). “Even at the trial level, therefore, the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” Martinez v. Court of

Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000).

Under the general principle announced by the Supreme Court in Faretta,

Edwards, and Martinez, the right of self-representation is limited by the trial court’s responsibility to maintain order and safety and to prevent disruption and delay. See United States v. Long, 597 F.3d 720, 726 (5th Cir. 2010) (upholding denial of the right to self-representation where the defendant had been disruptive in pretrial proceedings). We have noted in passing that a defendant’s request to represent himself at trial may be rejected if it is intended to cause delay or some tactical advantage. Chapman, 553 F.2d at 895. Other circuits hold that a trial court may deny the right of self-representation when evidence indicates that the defendant intends to use the right to delay or disrupt the trial.

See, e.g., United States v. Smith, 413 F.3d 1253, 1280–81 (10th Cir. 2005) (holding that the defendant’s insolent behavior showed that he was playing “cat and mouse” with the court by requesting to represent himself); Buhl v. Cooksey, 233 F.3d 783, 797 (3d Cir. 2000) (noting that determining whether a pro se defendant intends only disruption and delay is the kind of determination district courts must make routinely, but holding that the court did not make a sufficient inquiry); see also United States v. George, 56 F.3d 1078, 1084 (9th Cir. 1995) (holding that the defendant’s pre-trial conduct, including two escapes, showed that his request to represent himself was made for purposes of delay); see also United States v. Akers, 215 F.3d 1089, 1097–99 (10th Cir. 2000) (approving the

denial of self-representation where evidence, including the defendant’s pre-trial

flight, supported the district court’s conclusion that the motion for self-representation

was intended to delay the proceedings).

In this case, if the district court had based its denial of self-representation

solely on the timing of Vernier’s request, the court likely would have erred under

Chapman, where we held that a request for self-representation is timely if made

before the jury is selected. See Chapman, 553 F.2d at 887. The court arguably also would have erred had it based its ruling only on Vernier’s limited legal knowledge. See Faretta, 422 U.S. at 836 (indicating that a defendant’s technical knowledge is not relevant to his right to control his defense). But neither reason was the sole basis for the district court’s refusal to allow Vernier to represent himself. Instead, the district court based its ruling

primarily on the same evidence that convinced the court to shackle Vernier for trial. That uncontested evidence indicated that Vernier posed a risk of violence and escape, that he was defiant and troublesome, and that he boasted that he delay or some tactical advantage. Chapman, 553 F.2d at 895. Other circuits

hold that a trial court may deny the right of self-representation when evidence

indicates that the defendant intends to use the right to delay or disrupt the trial.

See, e.g., United States v. Smith, 413 F.3d 1253, 1280–81 (10th Cir. 2005)

(holding that the defendant’s insolent behavior showed that he was playing “cat

and mouse” with the court by requesting to represent himself); Buhl v. Cooksey,

233 F.3d 783, 797 (3d Cir. 2000) (noting that determining whether a pro se

defendant intends only disruption and delay is the kind of determination district

courts must make routinely, but holding that the court did not make a sufficient

inquiry); see also United States v. George, 56 F.3d 1078, 1084 (9th Cir. 1995)

(holding that the defendant’s pre-trial conduct, including two escapes, showed

that his request to represent himself was made for purposes of delay); see also

United States v. Akers, 215 F.3d 1089, 1097–99 (10th Cir. 2000) (approving the

denial of self-representation where evidence, including the defendant’s pre-trial

flight, supported the district court’s conclusion that the motion for self-representation

was intended to delay the proceedings).

In this case, if the district court had based its denial of self-representation

solely on the timing of Vernier’s request, the court likely would have erred under

Chapman, where we held that a request for self-representation is timely if made

before the jury is selected. See Chapman, 553 F.2d at 887. The court arguably

also would have erred had it based its ruling only on Vernier’s limited legal

knowledge. See Faretta, 422 U.S. at 836 (indicating that a defendant’s technical

knowledge is not relevant to his right to control his defense).

But neither reason was the sole basis for the district court’s refusal to allow Vernier to represent himself. Instead, the district court based its ruling primarily on the same evidence that convinced the court to shackle Vernier for trial. That uncontested evidence indicated that Vernier posed a risk of violence and escape, that he was defiant and troublesome, and that he boasted that he wanted to go out in a bloody confrontation, to disrupt his trial, and to make news. Moreover, the Government presented additional testimony on the day of trial that Vernier had attempted a violent escape from jail in the 48 hours preceding the trial.

( United States v. Long, 597 F.3d 720 (5th Cir. 2010). Denial of self-representation was not improperly denied as defendant did not clearly article and waive his right to counsel.

( Standby Counsel Not Enough for Cronic Violation. From United States v. Robles,

(5th Cir. March 7, 2012)(10-20344): Robles appeared at his sentencing without counsel, despite his repeated requests to the district court in the weeks preceding the sentencing that counsel be appointed. The judge’s solution was to call out to Phillip Gallagher, a federal public defender who happened to be in the courtroom, to inform him that he had

“just been drafted,” and to ask him “to just stand by perhaps to answer

questions.” Id. at 775. We made clear that “the inquiry as to whether Robles had counsel [wa]s not an inquiry as to whether Robles was prejudiced[,] . . . . [as] the [relevant] issue [wa]s exclusively a [United States v. Cronic, 466 U.S. 648 (1984),] issue.” Id. at 783 n.13. We noted that under Cronic, the complete denial of counsel at any critical stage requires no demonstration of prejudice. See Cronic, 466 U.S. at

658–61.\

( United States v. Smart, (5th Cir. Sept. 6, 2012)(11-50497):

Defendants have a constitutional right to represent themselves in federal court. Burton v. Collins, 937 F.2d 131, 133 (5th cir. 1991) (citing Faretta v. California, 422 U.S. 806, 815-21 (1975)). We review de novo Smart’s attempted invocation of the right to self-representation. United States v. Cano, 519 F.3d 512, 515-16 (5th Cir. 2008). Erroneous denial of the right to proceed pro se is not subject to harmless error review; instead, such error requires automatic reversal. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).

Assertion of the right to represent oneself is a two-step process. First, the defendant must clearly and unequivocally inform the court of his desire to represent himself. Cano, 519 F.3d at 516. Second, the court must determine, through a Faretta hearing, whether the defendant is “knowingly and intelligently” forgoing the right to counsel. Id. Notwithstanding this process, a defendant may waive his right to represent himself. See, e.g., McKaskle, 465 U.S. at 182; Cano, 519 F.3d at 516; see also Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982). Assuming without deciding that Smart’s March 2 written request was a “clear and unequivocal request” to represent himself, we conclude that Smart abandoned this request by his subsequent conduct. A defendant may waive his right to self-representation when he requests to act pro se, but later vacillates in that request or acquiesces to representation, thus indicating to the court “that defendant has abandoned his initial request to represent himself.” See, e.g., Brown, 665 F.2d at 611; McKaskle, 465 U.S. at 183 (“Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.”).

While it is true that a defendant is generally not required to re-affirm a clear and unequivocal assertion of his right of self-representation, this principle hinges on the fact that a defendant need not make repeated “fruitless” requests to the trial court simply to avoid abandoning his rights. For example, a defendant is not expected to re-invoke his right to self-representation after the trial court categorically denies his request. See, e.g., Cano, 519 F.3d at 516; Williams v. Bartlett, 44 F.3d 95, 101 (2d Cir. 1994); United States v. Arlt, 41 F.3d 516, 523-24 (9th Cir. 1994). Here, however, we do not have a district court refusing to rule or deliberately ignoring a request. Cf. United States v. Ramirez-Perez, 132 F. App’x 558, 559 (5th Cir. 2005) (unpublished)[1

oncluding that the trial court erred in failing to rule on defendant’s request to proceed pro se when the trial court was expressly on notice of the request and simply ignored it)

[1] Cited in Cano to indicate, despite its unpublished nature, the “general tenor of our jurisprudence.” 519 F.3d at 516.

2 As indicated above, Smart did not file a motion to proceed pro se, but merely docketed a letter with the court. Federal Rule of Criminal Procedure 47 requires any “party applying to the court for an order [to] do so by motion.” See also W.D. TEX., RULE CR-47 (requiring a motion accompanied by a proposed order). These procedures are not ceremonial: they serve to apprise the court of important business that needs attending. When a defendant such as Smart fails to properly notify the court of his request, he can hardly complain that it was not addressed or noted.

Federal Death Penalty Act, 18 U.S.C. § 3591-98:

( From United States v. (Tyrone) Williams, 610 F.3d 271(5th Cir. June 24, 2010)

(07-20689)(alien transport case in which 19 aliens suffocated in tractor trailer):

( Williams’s next challenge is to the jury instructions regarding the threshold intent rendering him death eligible. Under the FDPA, conviction of an offense punishable by death is followed by a separate sentencing hearing—the “selection phase,” Jones v. United States, 527 U.S. 373, 381 (1999)—at which aggravating and mitigating factors are considered. See 18 U.S.C. §§ 3592 & 3593(b)(1). At the selection phase, the jury may recommend a sentence of death, life imprisonment without possibility of release, or a lesser sentence determined by the district court. 18 U.S.C. § 3593(e). However, before

such a recommendation may be made, the jury must first address the “eligibility

phase” and unanimously find beyond a reasonable doubt at least one of four

threshold intents and at least one statutory aggravating factor rendering the 17

defendant eligible for a death sentence. See 18 U.S.C. §§ 3591(a)(2), 3592(c) &

3593(e)(2); Jones, 527 U.S. at 376, 381. In Williams’s case, the sole threshold

intent submitted to the jury during the eligibility phase was that contained in

18 U.S.C. § 3591(a)(2)(D), which provides:

A defendant who has been found guilty of any . . . offense for which

a sentence of death is provided, if the defendant, as determined

beyond a reasonable doubt at the hearing under section 3593 . . .

intentionally and specifically engaged in an act of violence, knowing

that the act created a grave risk of death to a person . . . such that

participation in the act constituted a reckless disregard for human

life and the victim died as a direct result of the act, shall be

sentenced to death if, after consideration of the factors set forth in

section 3592 in the course of a hearing held pursuant to section

3593, it is determined that imposition of a sentence of death is

justified . . . . 18 U.S.C. § 3591(a)(2)(D).

The FDPA does not contain a definition for what constitutes an act of violence. During the eligibility phase, the jury was instructed that:

An “act of violence” is an act, that by its nature, creates a

grave risk of serious bodily injury to a person or a grave risk of

death to a person. An “act of violence” is one that inherently carries

a grave risk of seriously injuring or killing a person. In deciding

whether the prosecution has met its burden of proving the threshold

intent requirement beyond a reasonable doubt, you are to base your

decision on the acts that Mr. Williams committed, and not on the

acts of any other person or persons.

Earlier, the district court had asked the parties whether the instruction should

also include the following additional language:

An act of violence is any act that involves the use, attempted use, or

threatened use of physical force against the person of another,

creating a grave risk of serious injury to a person—or to that person

or a grave risk of death to that person.

The Government objected to the additional language, and Williams objected to

its absence. Ultimately, the district court concluded that the additional

language was unnecessary. Williams argues on appeal that the act of violence instruction erroneously permitted the jury to find him death eligible without requiring that the act involve the use of physical force.

Ordinarily, we review a jury instruction for abuse of discretion, affording substantial latitude to the district court in describing the law to the jury. United States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009). (defines term) … However, when a jury instruction hinges on a question of statutory construction, our review is de novo. United States v. Guevara, 408 F.3d 252, 257 (5th Cir. 2005) (citing United States v. Ho, 311 F.3d 589, 605 (5th Cir. 2002)); United States v. Morales–Palacios, 369 F.3d 442, 445 (5th Cir. 2004) (citing Ho, 311 F.3d at 605).

FDPA itself distinguishes between an “act,” 18 U.S.C. § 3591(a)(2)(C), and an “act of violence,” 18 U.S.C. § 3591(a)(2)(D). See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

Because the FDPA does not define “act of violence,” we must “give the phrase its ordinary meaning.” Johnson v. United States, 130 S. Ct. 1265, 1270 (2010) (citing Bailey v. United States, 516 U.S. 137, 144–45 (1995), superseded by statute on other grounds as described in United States v. O’Brien, — S. Ct. —, 2010 WL 2025204 (May 24, 2010)). We are not without guidance in ascertaining the ordinary meaning of the phrase “act of violence.” The Supreme Court, in the context of the Armed Career Criminal Act (ACCA), recently examined the ordinary meaning of the word “violent”:

Even by itself, the word “violent” in § 924(e)(2)(B) connotes a

substantial degree of force. Webster’s [New International

Dictionary] 2846 [(2d ed. 1954)] (defining “violent” as “moving,

acting, or characterized, by physical force, esp. by extreme and

sudden or by unjust or improper force; furious; severe; vehement

. . .”); 19 Oxford English Dictionary 656 (2d ed. 1989) (“characterized

by the exertion of great physical force or strength”); Black’s [Law

Dictionary] 1706 [(9th ed. 2009)] (“of, relating to, or characterized by

strong physical force”). When the adjective “violent” is attached to

the noun “felony,” its connotation of strong physical force is even

clearer. See [Black’s Law Dictionary] 1188 (defining “violent felony”

as “a crime characterized by extreme physical force, such as murder,

forcible rape, and assault and battery with a dangerous weapon”);

see also United States v. Doe, 960 F.2d 221, 225 ([1st Cir.] 1992)

(Breyer, C.J.) (“The term to be defined, ‘violent felony,’ . . . calls to

mind a tradition of crimes that involve the possibility of more closely

related, active violence[.]”).

Johnson, 130 S. Ct. at 1271 (alterations omitted); see also Begay v. United States,

553 U.S. 137, 148 (2008) (construing the second clause of the ACCA’s definition

of “violent felony” as connoting “violent and aggressive crimes committed

intentionally”). The Johnson Court’s discussion indicates that physical force is

an indispensable aspect of the word “violent.”

The legislative history to 18 U.S.C. § 3591(a)(2)(D) indicates the provision’s purpose as authorizing death sentences under the circumstances of

Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137

(1987). In Enmund, the Court considered the constitutionality of imposing a 20

death sentence on a defendant who was acting as the getaway driver for two

robbers who killed their victims when the victims put up armed resistance. 458

U.S. at 784. The Court rejected the notion that the Eighth Amendment would

“permit[ ] imposition of the death penalty on one . . . who aids and abets a felony

in the course of which a murder is committed by others but who does not himself

kill, attempt to kill, or intend that a killing take place or that lethal force will be

employed.” Id. at 797. Nonetheless, the Enmund Court hedged by noting that

“[i]t would be very different if the likelihood of a killing in the course of a robbery

were so substantial that one should share the blame for the killing if he

somehow participated in the felony.” Id. at 799.

In Tison, the Court again addressed the permissibility of sentencing a defendant to death where the defendant lacked the specific intent to kill. There, three brothers amassed an arsenal and broke their father and his cellmate out of prison. 481 U.S. at 139. During their lam through the Arizona desert, they stole a vehicle and forced its occupants—a man, his wife, their two-year-old son, and fifteen-year-old niece—to drive deeper into the desert. Id. at 140. Once they stopped, the Tison father and his cellmate lined the carjacking victims up in front of their escape vehicle while the Tison brothers walked toward the victims’ vehicle; the Tison brothers then witnessed the victims being killed with repeated shotgun blasts before all five men fled in the victims’ vehicle. Id. at 140–41. The Supreme Court found that the petitioners—two of the Tison brothers—could

constitutionally be sentenced to death because “their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life.” Id. at 151. The Court explained that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement,” id. at 158, because “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state . . . that may be taken into account in making a capital sentencing judgment,” id. at 157–58.

Neither the legislative history of FDPA nor the Supreme Court precedent it references counsels against a construction of that phrase that requires the use of physical

force.

In conclusion, we hold that an “act of violence,” for purposes of 18 U.S.C.

§ 3591(a)(2)(D), must involve the use of physical force. The jury instructions during the eligibility phase defined an “act of violence” as “an act, that by its nature, creates a grave risk of death to a person” and “inherently carries a grave risk of seriously injuring or killing a person.” While this definition correctly identifies one of the qualities of the “act” prescribed by 18 U.S.C. § 3591(a)(2)(D)—that it create a grave risk of death—it failed to identify another required quality—that the act be one “of violence.” We interpret that latter Williams also argues that the doctrine of lenity requires a construction of the term “act of violence” that requires physical force. The doctrine of lenity requires courts to resolve ambiguous statutes in favor of criminal defendants. Moskal, 498 U.S. at 107–08. Lenity is not necessary to our holding in Williams’s favor, and we consequently do not rely on it. We do recognize, however, that construing the term “act of violence” to require the use of physical force is consistent with the doctrine of lenity. (Opinion by King, Weiner, and Dennis.)

Federal Tort Claims

( The Federal Tort Claims Act has a discretionary function exception that makes the United States not liable under 28 U.S.C. § 2680(a).

( Similarly, the Stafford Act precludes government liability “for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency.” 42 U.S.C. § 5148.

( This court recently held that the meaning of “discretionary function or

duty” is the same in the Stafford Act and in the Federal Tort Claims Act. St.

Tammany Parish, 556 F.3d at 319; 42 U.S.C. § 5148; 28 U.S.C. § 2680(a).

( A two-part test has been established for determining whether the discretionary function exception applies to government employee conduct. United States v. Gaubert, 499 U.S. 315 (1991). First, the conduct must involve “an element of judgment or choice.” Id. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Second, the judgment or choice must be based on considerations of public policy, for that is the kind of judgment the discretionary function exception was designed to shield. Id. at 322-23.

( Decisions about “when, where, and how to allocate limited resources within the exigencies of an emergency” are the types of policy decisions protected by the discretionary function exception. Freeman v. United States, 556 F.3d 326, 340 (5th Cir. 2009).

( Note: See the Westfall Act, 28 U.S.C. § 2679(b)(1), which provides the procedures for a federal government employee to demand that the United States to defend the employee. See Osborn v. Haley, 549 U.S. 225 (2007). See this paper “Westfall Act.”

( Discretionary function reviewed. United States v. Gaubert, 499 U.S. 315, 322 (1991).

Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988). Spotts v. United States, __ F.3d __ (5th Cir. August 2, 2010)(09-41039).

Felon in Possession of Firearm—Firearm, Felon in Possession

( For felon-in-possession offense, the Government must prove 1) the defendant has been convicted of a felony, 2) the defendant possessed a firearm in or affecting interstate commerce, and 3) the defendant knew he possessed the firearm. United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995).

( From United States v. Broadnax, 595 F.3d 565 (5th Cir. Jan. 26, 2010)(08-10494), revised, 601 F.3d 336 (5th Cir. 2010):

A criminal defendant has a Fifth Amendment right to be “tried only on charges presented in a grand jury indictment.” United States v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988). Only a grand jury has the power to amend an indictment. See id. “A jury charge constructively amends an indictment . . . if it permits the jury ‘to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.’” United States v. Daniels, 252 F.3d 411, 413-14 (5th Cir. 2001) (citing Chandler, 858 F.2d at 257). The accepted test is that a “constructive amendment occurs if the jury is permitted to convict on an alternative basis permitted by the statute but not charged in the

indictment.” Id. at 414 (internal quotation marks and citation omitted). … The issue is whether the indictment is to be read as requiring proof beyond a reasonable doubt that Broadnax possessed a “firearm,” as that term is defined under § 921(a)(3), that was “in and affecting interstate commerce,” or whether it requires proof that Broadnax possessed the specific firearm named, the “RG Industries, Model RG 31, .38 caliber revolver, serial number 019420,” and that it was “in and affecting interstate commerce.” According to Broadnax, the indictment charged “that a specific completed weapon))the RG industries, Model RG 31, .38 caliber revolver, serial number 019420))had been possessed in and affecting interstate commerce.” Broadnax contends that the jury

instructions worked a constructive amendment of the indictment because they allowed the jury to convict on the basis that a component of the firearm, specifically, the frame, was in interstate commerce, rather than requiring the government to prove beyond a reasonable doubt that the specific, completed weapon was in or affecting interstate commerce. The government contends that by pleading the weapon as a “firearm,” Broadnax was put on notice that the government sought conviction by proof that he possessed a “firearm,” as that term of art is defined, in and affecting interstate commerce.

… “Firearm” is a term of art. It means “any weapon . . . which will or is designed to or may readily be converted to expel a projectile by The jury instructions were substantially identical to the language of § 921(a)(3). the action of an explosive[;] . . . the frame or receiver of any such weapon[;] . . . any firearm muffler or firearm silencer[;] . . . or any destructive device.” 18 U.S.C. § 921(a)(3). “To establish a violation of § 922(g)(1), the government must prove three elements beyond a reasonable doubt: (1) that the defendant

previously had been convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005). … We find Broadnax’s reliance on United States v. Chambers, 408 F.3d 237 (5th Cir. 2005) and United States v. Doucet, 994 F.2d 169 (5th Cir. 1993), misplaced. … commerce.” No constructive amendment occurred here because neither the evidence at trial nor the jury instructions implied that Broadnax could be convicted of anything other than being a felon in possession of a firearm that had been in and affecting interstate commerce in violation of § 922(g)(1).

( Business Practice Exception. United States v. Coleman, __ F.3d __ (5th Cir. June 16, 2010): Coleman first asserts that the district court erred by denying his Motion to Dismiss the indictment. He claims that his § 371 conviction for conspiracy to violate § 605(e)(4) and § 506(a) falls within the “business practices exception” created by § 921(a)(20)(A) for offenses “pertaining to antitrust violations, unfair trade practices, restraint of trade, or other similar offenses relating to the regulation of business practices.” Because Coleman’s motion to dismiss the indictment was based on the interpretation of a federal statute, this court reviews the denial of the motion de novo. See United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003). … The “business practices exception” to § 922(g)(1), set out in 18 U.S.C. § 921(a)(20), excludes from the definition of a “crime punishable by imprisonment for a term exceeding one year . . . any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices . . . .” Thus, a felon in possession of a firearm who has been convicted of one of the types of violations itemized in § 921(a)(20)(A) cannot be found guilty under § 922(g)(1) on the basis of that conviction.

( In Dreher v. United States, 115 F.3d 330, 330 (5th Cir. 1997)(mail fraud as predicate offense), this court applied a framework for evaluating whether a prior felony conviction falls within the § 921(a)(20)(A) business practices exception. The court evaluated whether the elements that the Government was required to prove under 18 U.S.C. §§ 371 and 1341 depended “on whether they have an effect upon competition.”

… Although Dreher specifically rejected any examination of the facts underlying the

charged crime, it did not clearly address whether the court might examine the

violation of the law that is the target of the charged conspiracy. … Fifth Circuit rejects

categorical test suggested by the prosecution. … § 371 requires that the Government prove as an element that the conspiracy was targeted at a specific offense or “unlawful objective.” See United States v. White, 571 F.3d 365, 372 (4th Cir. 2009) (“[t]he Conspiracy Offense cannot be divorced from its . . . objective”). Consequently, if the targeted offense requires the Government to prove an effect upon competition as an element of the offense, then the conspiracy conviction falls within the business practices exception. We therefore conclude that the district court erred by evaluating only §

371; the analysis under § 921(a)(20)(A) also requires an examination of the elements of the target offense of the conspiracy conviction. As the district court correctly held in the alternative, however, even considering the target offenses. … of the conspiracy, Coleman’s prior offense qualifies as a predicate felony for purposes of § 922(g)(1). The first offense charged as the target of Coleman’s conspiracy conviction was 47 U.S.C. § 605(e)(4), the Communications Act of 1934. … These elements do not require any proof of “an effect upon competition

( Good review case on convictions and post-trial remedies (e.g. pardons) that bar/permit

one to possess firearms. United States v. Chenowirth, 459 F.3d 635 (5th Cir. 2006).

( United States v. Potts, __ F.3d __ (5th Cir. June 15, 2011)(10-10257): Defendant argued that the US was required to prove that the “knowingly” scienter applied to knowledge that the firearm had been moved in interstate commerce. Aff’d.

Argument is foreclosed by U.S. v. Rose, 587 F.3d 695 (5th Cir. 2009). There, the defendant raised the same argument as Potts does here, but we rejected it because the defendant had not been sentenced under § 924(a)(2). Id. at 705-06. Rather, he was sentenced under § 924(e)(1), which does not contain a “knowingly” requirement. We went on, however, to state that “[e]ven assuming arguendo that the ‘knowingly’ requirement in § 924(a)(2) applied throughout that section, there would be no corresponding impact on the elements of a crime listed in § 922(g)(1).” Id. at 706 n.9. That statement in Rose was not mere dictum; rather, it was an alternate holding that carries the force of precedent. Thus, Potts’s claim fails.

( United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001) rejected a Commerce Clause challenge to the felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g).

Fine

( United States v. McElwee, __ F.3d __ (5th Cir. July 12, 2011)(10-30099):

Dr. McElwee next challenges the $550,000 fine assessed by the district court. Although he leveled a general objection to his sentence, Dr. McElwee did not file a specific objection to the $550,000 fine at sentencing. [Footnote 4: McElwee claims that he had no notice that the district court was contemplating imposing such a large fine. This argument, however, is irrelevant. The Government filed a motion for a non-Guidelines sentence in this case and asked the court to impose a “substantial fine.” Even where the Government does not move for a non-Guidelines sentence, “sentencing courts are not required to give pre-sentencing notice of their sua sponte intention to impose a non-Guidelines sentence.” United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).]

We review the reasonableness of the fine for plain error. See United States v.

Brantley, 537 F.3d 347, 351 (5th Cir. 2008); United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (“To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.”). The Guidelines provide that a fine shall be imposed “in all cases,” except where the defendant establishes an inability to pay. The burden of establishing an inability to pay is on the defendant. United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999). The factors a sentencing court shall consider when imposing a fine are set forth in U.S.S.G. § 5E1.2(d).

(1) the need for the combined sentence to reflect the seriousness of the offense

(including the harm or loss to the victim and the gain to the defendant), to

promote respect for the law, to provide just punishment and to afford adequate

deterrence;

(2) any evidence presented as to the defendant’s ability to pay the fine

(including the ability to pay over a period of time) in light of his earning

capacity and financial resources;

(3) the burden that the fine places on the defendant and his dependents relative

to alternative punishments;

(4) any restitution or reparation that the defendant has made or is obligated to

make;

(5) any collateral consequences of conviction, including civil obligations arising

from the defendant’s conduct;

(6) whether the defendant previously has been fined for a similar offense;

(7) the expected costs to the government of any term of probation, or term of

imprisonment and term of supervised release imposed; and

(8) any other pertinent equitable considerations.

U.S.S.G. § 5E1.2(d) [Footnote 5 on considerations of fine from USSG § 5#1.2(d).

Furthermore, “[t]he amount of the fine should always be sufficient to

ensure that the fine, taken together with other sanctions imposed, is punitive.” Id.

( Normally, a district court does not have to express reasons for imposing a fine as long as it is shown that the judge considered the defendant’s ability to pay.” United States v. Voda, 994 F.2d 149, 155 n.14 (5th Cir. 1993).

( Ability to Pay Fine. United States v. Morin, (5th Cir. July 27, 2012)(11-41086):

Defense counsel admitted that there is no reason why Morin cannot work, and the presentence report (PSR) described him as a 21-year-old United States citizen who lives with his parents and has no physical impediments, health problems, substance abuse issues, or dependents. The finding on Morin’s ability to pay is plausible in light of the record as a whole and is not clearly erroneous. See United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994); United States v. Rogers, 1 F.3d 341, 342 (5th Cir. 1993).

Next Morin contends that the district court incorrectly assumed that he would become able to pay the fine so long as he was motivated to get a job. The burden was on Morin to prove his inability to pay, and he made “no showing that [he would] be unemployable after his prison term.” United States v. Matovsky, 935 F.2d 719, 723 (5th Cir. 1991).

Morin also contends that the district court failed to make required findings on his ability to pay. However, because the PSR did not recommend against imposing a fine, the district court was not required to make express findings on Morin’s ability to pay. See United States v. Voda, 994 F.2d 149, 155 n.14 (5th Cir. 1993); Matovsky, 935 F.2d at 722. Morin fails to show error, plain or otherwise. According to Morin, the district court relied on improper factors to determine the amount of the fine, including the court’s perception that he needed a shock or an incentive to get a job because it was time for him to grow up. The district court clearly indicated that the purpose of the sentence, including the fine, was to deter Morin from committing future crimes. The need for deterrence was a proper consideration in determining the amount of the fine. See 18 U.S.C. § 3572(a); 18 U.S.C. § 3553(a)(2)(B); U.S.S.G. § 5E1.2(d)(1). While the district court discussed its opinion that Morin needed to get a job and “grow

up,” it was in the context of encouraging him to avoid trouble in the future. Morin also notes that he has no prior convictions and contends the $1,000 fine was not required to punish him, deter him, or promote respect for the law.

The district court considered Morin’s history and characteristics and the need

for deterrence. Morin’s disagreement with the district court’s weighing of the sentencing factors does not show that the court committed error, plain or otherwise, in imposing the below-guidelines sentence. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Hernandez, 633 F.3d 370, 375-76 (5th Cir.), cert. denied, 131 S. Ct. 3006 (2011).

( Fine can be Deducted from Prison Pay. United States v. Pacheco-Alvarado, 782 F.3d 213, 217-22 (5th Cir. 2015).

Fine—Excessive

( United States v. Mora (5th Cir. March 25, 2016) (15-40765):

“[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334 (1998). Among the factors that the Court considered in Bajakajian in making the proportionality determination were: (a) the essence of the defendant’s crime and its relationship to other criminal activity; (b) whether the defendant was within the class of people for whom the statute of conviction was principally designed; (c) the maximum sentence, including the fine that could have been imposed; and (d) the nature of the harm resulting from the defendant’s conduct. See id. at 337-39; see also United States v. Wallace, 389 F.3d 483, 485-88 (5th Cir. 2004).

We review de novo the district court’s proportionality determination and for clear error the district court’s factual findings. Bajakajian, 524 U.S. at 336-37 & n.10; United States v. Wyly, 193 F.3d 289, 303 (5th Cir. 1999). With respect to the first Bajakajian factor, the essence of Angulo’s crime was bulk cash smuggling in violation of § 5332(a), not a reporting offense like the defendant in Bajakajian, and the $160,000 at issue was the instrumentality of his crime. See USA PATRIOT Act, Pub. L. No. 107―56, § 371(a)(6), 115 Stat. 272 (2001). Congress has stated that cash smuggling is related to other criminal activity, as it “is one of the most reliable warning signs of drug trafficking, terrorism, money laundering, racketeering, tax evasion and similar crimes.” PATRIOT ACT § 371(a)(3), 115 Stat. 272. As to the second Bajakajian factor, the district court found that Angulo was within the class of individuals targeted by the statute. Emphasizing the manner of Angulo’s transportation of the money, the district court stated that Angulo fit the profile of a bulk cash courier. The district court discounted Angulo’s assertion that the money was his life savings which he withdrew over time, noting that the series of $100 bills found dated back only to 1996; that Angulo’s claim of savings was somewhat fantastic given that he claimed from seven to nine dependents on his tax returns; and the fact that Angulo had a serious drinking problem. Other testimony from the forfeiture hearing supported the district court’s conclusion that the money was not Angulo’s life savings. Angulo had a negative monthly cash flow and owed medical, child support, and credit card debts. Further, in contravention of his claim that he withdrew his paychecks after they were deposited, Angulo had two receipts in his possession demonstrating that he had deposited a total of $14,300 in September 2013 and January 2014, but possessed no bank documents indicating the money was subsequently withdrawn. The district court did not clearly err in making the finding that Angulo was within the class of individuals targeted by the statute. See Wyly, 193 F.3d at 393. As to the third Bajakajian factor, the maximum statutory fine that could be imposed was $250,000, 31 U.S.C. § 5322(a), and the maximum Guidelines fine for a total offense level of 15 was $40,000, U.S.S.G. § 5E1.2(c)(3) (2014). While the $160,000 forfeited was four times the maximum guidelines fine, the amount forfeited was well within the statutory maximum fine of $250,000. See § 5E1.2(c)(3); § 5322(a). We have cited with approval an Eleventh Circuit case which stated that “if the value of the forfeited property is within the range of fines prescribed by Congress, a strong presumption arises that the forfeiture is constitutional.” Wallace, 389 F.3d at 486 (quoting United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1309 (11th Cir. 1999)). Angulo has not rebutted this presumption. See id. at 486-88. Finally, as to the fourth Bajakajian factor, the nature of the harm caused by Angulo’s conduct, Congress has emphasized the seriousness of bulk cash smuggling and its relationship to other types of criminal activity such as terrorism, tax evasion, money laundering, and drug trafficking. See PATRIOT ACT § 371(a)(5), 115 Stat. 272. The district court did not clearly err in its factual findings with respect to the proportionality determination, nor did the district court err in concluding that the forfeiture was not grossly disproportionate. See Bajakajian, 524 U.S. at 337 n.10; Wyly, 193 F.3d at 303.

Fingerprint Evidence

( From United States v. John, 597 F.3d 263 (5th Cir. Feb. 9, 2010)(08-010459).

we agree with a number of our sister circuits that have expressly held that in the context of fingerprint evidence, a Daubert hearing is not always required. As the Seventh Circuit has noted: “Those [courts] discussing the issue have not excluded fingerprint evidence; instead, they have declined to conduct a pretrial Daubert hearing on the admissibility of fingerprint evidence or have issued brief opinions asserting that the reliability of fingerprint comparison cannot be questioned.” We agree that in most cases, absent novel challenges, fingerprint evidence is sufficiently reliable to satisfy Rule 702 and Daubert. “Fingerprint identification has been admissible as reliable evidence in criminal trials in this country since at least 1911.” In terms of specific Daubert factors, the reliability of the technique has been tested in the adversarial system for over a century and has been routinely subject to peer review. Moreover, as a number of courts have noted, the error rate is low. The district court did not err in dispensing with a Daubert hearing.

( From footnotes in case: See, e.g., United States v. Mitchell, 365 F.3d 215, 246 (3d Cir. 2004) (describing the FBI “sliding scale” standard, which considers both the quality and quantity of matching points)(also holding that a district court may dispense with a Daubert hearing entirely if no novel challenge is raised to the admissibility of latent fingerprint identification evidence); United States v. Crisp, 324 F.3d 261, 268 (4th Cir. 2003) (stating, in the context of fingerprint evidence, that “[u]nder Daubert, a trial judge need not expend scarce judicial resources reexamining a familiar form of expertise every time opinion evidence is offered”)(also noting that “while different agencies may require different degrees of correlation before permitting a positive identification, fingerprint analysts are held to a consistent ‘points and characteristics’ approach to identification”); United States v. Havvard, 260 F.3d 597, 601 (7th Cir. 2001)(at 599: (stating that the expert testified that the “unique nature of fingerprints is counterintuitive to the establishment of [a numerical] standard and that through experience each examiner develops a comfort level for deciding how much of a fragmentary print is necessary to permit a comparison”).

( Fingerprint Cards Are Self-Authenticating. United States v. Ibarra, 2012 WL 5985099 (5th Cir. 2012) under Fed. R. Evid. 902(4).

Firearms Prohibition Upheld Under Commerce Clause After Statute Rewritten Post-:Lopez.

( United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996).

Firearms and Aiding and Abetting (see also Aiding and abetting, re Rosemond v. US

from US supreme court.)

Petition of the day

By Mary Dwyer on May 20, 2013 at 11:15 pm

The petition of the day is:

Rosemond v. United States

12-895

Issue: Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, See United States v. Medina-Roman, 376 F.3d 1, 6 (1st Cir. 2004); United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994); United States v. Garth, 188 F.3d 99, 113 (3d

Cir. 1999); United States v. Sorrells, 145 F.3d 744, 754 (5th Cir. 1998); United States v. Daniels, 370 F.3d 689, 691 (7th Cir. 2004) (per curiam); United States v. Rolon-Ramos, 502 F.3d 750, 758-759 (8th

Cir. 2007); United States v. Bancalari, 110 F.3d 1425, 1429-1430 (9th Cir. 1997); Bazemore v. United States,

138 F.3d 947, 950 (11th Cir. 1998). Of those eight circuits, seven appear also to require that the

defendant knowingly or intentionally facilitate or encourage the principal’s use of the firearm. MedinaRoman, 376 F.3d at 6-7; Medina, 32 F.3d at 46-47; Garth, 188 F.3d at 113; Sorrells, 145 F.3d at 753-754;

or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits. United States v.

Wiseman, 172 F.3d 1196, 1217 (10th Cir. 1999), See United States v. Vallejos, 421

F.3d 1119, 1125 (10th Cir. 2005). See, e.g., United States v. Gardner, 488 F.3d 700, 712 (6th Cir. 2007);

United States v. Franklin, 415 F.3d 537, 554-55 (6th Cir. 2005). The D.C. Circuit will sustain a conviction for aiding and abetting if “the defendant kn[ew] to a practical certainty” that a confederate would use the firearm in a manner prohibited by Section 924(c). United States v. Harrington, 108 F.3d 1460, 1471 (D.C. Cir. 1997)(quoting United States v. Powell, 929 F.2d 724, 728 (D.C. Cir. 1991)). While the D.C. Circuit requires a heightened mens rea of “practical certainty,” it does not require any intentional act of facilitation or encouragement.

Firearms and Aliens

( United States v. Portillo-Munoz, __ F.3d __ (5th Cir. June 13, 2011)(11-10086):

18 U.S.C. § 922(g)(5), which prohibits aliens from possessing firearms, is constitutional under the Second Amendment. Whatever else the term means or includes, the phrase “the people” in the Second Amendment of the Constitution does not include aliens illegally in the United States such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment. This court noted in Lynch v. Cannatella that “the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally.” 810 F.2d 1363, 1373 (5th Cir. 1987).

Scotus on Firearms Law

( The U.S. Supreme Court Monday (6-16-2914( decided in Abramski v. United States, No. 12-1493, ruliing 5-4 that a defendant who bought a gun from a firearms dealer and claimed on a federal form that he was the "actual transferee/buyer," when he was actually buying it on behalf of a relative who was eligible to purchase it for himself, was properly convicted of making false statements about "any fact material to the lawfulness of the sale" of a gun, in violation of under 18 U.S.C. § 922(a)(6), and of making a false statement "with respect to the information required ... to be kept” in the gun dealer’s records, in violation of 18 U.S.C. § 924(a)(1)(A).

( Deal v. United States, 508 U.S. 129 (1993), allowing the “stacking” of section 924(c) violations,

Firearms and False Purchase Statments 

( United States v. Reid, (5th Cir. Dec. 8, 2014)(13-20272): To esablish a violation of § 924(a)(1)(A), the government must prove that: (1) the dealer was a federally licensed firearms dealer at the time the events occurred; (2) the defendant made a false statement or representation in a record that the licensed firearms dealer was required by federal law to maintain; and (3) the defendant made the false statement with knowledge of its falsity. United States v. Pena, 541 F. App’x 453, 455 (5th Cir. 2013) (quoting United Statesv. Abramski, 706 F.3d 307, 316-17 (4th Cir. 2013), aff’d, 134 S. Ct. 2259 (2014)).

( Importantly, section 924(a)(1)(A)’s requirement that the Government

prove that the firearm dealers in question were federally licensed at the time

of the offense is jurisdictional. United States v. Prince, 647 F.3d 1257, 1267 (10th Cir. 2011) (“§ 924(a)(1)(A)'s records requirement is simply a jurisdictional hook. It provides authority for the United States to criminalize false statements made to firearms dealers.”); United States v. Green, 544 F.2d 746, 747 (4th Cir. 1976) (“The fact that the dealer was licensed serves only to establish a basis for federal jurisdiction.”).

( “The government [i]s not required to produce the license” itself “in

order to prove that the store [in question] was a licensed firearms dealer.”

United States v. Frazier, 547 F.2d 272, 273 (5th Cir. 1977)The government may instead prove that element by circumstantial evidence. See United States v. Ransom, 545 F.2d 481, 482-83 (5th Cir. 1977). Thus, we have upheld a conviction under the Act where the

Government introduced no evidence on the licensing requirement other than

an ATF agent’s testimony that he “knew that the [store in question] was a

licensed firearm dealer.” Frazier, 547 F.2d at 273 , We have also ruled that the Government satisfied its burden of proof on the licensing element where the dealer’s employee testified that the dealer “had a valid license during the relevant period.”

United States v. Ballard, 18 F.3d 935 (5th Cir. 1994). Accord Ransom, 545 F.2d at

483.Finally, we have held that a license application bearing an expiration date

but no date of issuance was by itself “sufficient to show” that the dealer “was

a ‘licensed’ dealer at the time of the firearm sales in question” because the

application “by statutory definition” was issued one year prior to the

expiration date. See United States v. Snell, 508 F.2d 21, 23 (5th Cir. 1975)

( Here, however, the prosecution only introduced the 4473s. While a jury could certainly infer from this information that Bachman Pawn and Academy Sports were licensed at some point, the Form 4473s contain no indication that the stores were licensed at the time of Reid’s offenses. They do not contain the date the license was issued or its

expiration date. Nor do the Form 4473s contain a certification that the dealer is currently licensed, or any other indication that the dealer’s license was valid on the date of the sale. We therefore conclude that the Form 4473s alone were insufficient to allow the jury to infer that Bachman Pawn and Academy Sports had valid licenses at the time of Reid’s offenses.

( Double Counting in Firearms Case: United States v. Velasquez, __ F.3d __ (5th Cir. June 8, 2015)(15-40855): guilty to one count of making a false statement or representation with regards to firearm records, in violation of 18 U.S.C. § 924(a)(1)(a).

Velasquez argues that the district court reversibly erred when it applied four-level offense enhancements under both U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6), alleging that such an action amounted to “double counting.” She explains that the trafficking offense underlying the enhancement under § 2K2.1(b)(5) was the “felony offense” underlying the enhancement under § 2K2.1(b)(6) and that, pursuant to United States v. Guzman, 623 F. App’x 151 (5th Cir. 2015), § 2K2.1, comment (n.13(D)), prohibits an enhancement under both sections when they rely on the same trafficking offense. … Guzman, 623 F. App’x at 155-56. Limiting our analysis solely to whether Application Note 13(D) prohibits the application of both enhancements, we found that the commentary indeed expressly prohibited such double counting. Id. at 155. Although our opinion in Guzman is unpublished, it is nonetheless persuasive. See 5TH CIR. R. 47.5.4. Therefore, we find that the imposition of the enhancements under § 2K2.1(b)(5) and § 2K2.1(b)(6) was clear and obvious error. See Guzman, 623 F. App’x at 155-56. (but error was harmless).

Firearms Disposition After Owner Has Been Convicted.

( May 18, 2015. After oral argument, the outcome in Henderson v. United States, __S. Ct. ____ (2015)  wasn’t really in doubt. The entire Court had expressed skepticism of the idea that a firearm owner convicted of a felony couldn’t lawfully sell his weapons on the open market, or transfer them to an independent third party. Today, in a crisp eight-pager by Justice Elena Kagan, the Court unanimously ruled in favor of the firearm owner. Along the way, the Court ironed out some significant legal wrinkles. Of special note, the Court clarified that felons can be entitled to the benefits of equity in federal court.

When an individual surrenders his firearms to police and is later convicted of a felony, what happens to the firearms? The weapons can’t go back to the felon, because federal law prohibits felons from possessing firearms. Yet the felon still owns the weapons, which could have considerable financial, sentimental, or historical value. Understandably enough, many felons in this situation would like to sell or transfer their firearms, rather than let Uncle Sam indefinitely possess them. The question before the Court in this case was whether federal law gave felons that right to transfer.

In the decision under review, the U.S. Court of Appeals for the Eleventh Circuit had ruled against transfer based on a broad view of “constructive possession” – roughly, the idea that someone can lack physical possession of an object but still exert enough control over it to count as possession for purposes of law. The court of appeals had also seemed to say that a convicted felon lacked “clean hands” and so could not take advantage of any form of equitable relief, including equitable transfers of property.

Today, however, the Supreme Court unanimously ruled in favor of the firearm owners by allowing them to transfer their weapons to independent third parties, including to have the weapons sold on the open market. As Justice Kagan succinctly explained, this is a pragmatic solution that accords with the statute’s text and purpose, and also has the benefit of fitting snugly with common sense.

The Court started off by establishing a basic but important principle – namely, that federal district courts have “equitable authority, even after a criminal proceeding has ended, to order a law enforcement agency to turn over property it has obtained during the case to the rightful owner or his designee.” This key conclusion shifted attention away from the text of the Federal Rules of Criminal Procedure and toward broader consideration of fairness and equity. In support of this point, the Court cited not one of its own precedents, but only a lower court opinion and a concession by the United States.

In a footnote, the Court quickly dispensed with the “unclean hands” reasoning adopted in the Eleventh Circuit decision below. Felons are not generally barred from invoking equity, the Court made clear. Instead, “[t]he unclean hands doctrine proscribes equitable relief when, but only when, an individual’s misconduct has ‘immediate and necessary relation to the equity that he seeks.’” Because the crime committed by Henderson, the firearm owner, “had nothing to do with his firearms,” his request for equitable transfer of his property wasn’t barred by the unclean-hands doctrine.

That left the argument that federal criminal law prohibits felons from possessing firearms either in or affecting interstate commerce. But the Court concluded that this prohibition on firearmpossession didn’t extend so far as to prohibit firearm transfers. In framing this point, the Court invoked “the proverbial sticks in the bundle of property rights.” The idea here, as any first-year property student knows, is that property rights consist of bundles of interrelated subsidiary rights. One of the “sticks” in the bundle of property rights is possession, including both actual and constructive possession. Another, separate “stick” is the right to transfer or sell. Henderson wanted to use that second stick, which the Court described as: “a naked right of alienation—the capacity to sell or transfer his guns, unaccompanied by any control over them.”

The idea of constructive possession does impose some limit, however, since the felon cannot lawfully exert control over the weapons during or after the transfer. The Court noted that this restriction wouldn’t significantly limit open-market sales conducted by firearm dealers, but might prevent some requested transfers to specified parties. When reviewing third-party transfers, a trial court “may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon.” Clearly, the Court recognizes that “a promise” is a bond, but it also acknowledged that honor has its limits: “Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer.”

The Court’s decision was no surprise. At oral argument, the attorney representing the United States made concession after concession in an attempt to correct admitted governmental overreaching in the case. (For example, the government had previously refused to return a crossbow that, under federal law, the felon had every right to possess.) Despite all that effort, however, the government still had a very hard time explaining its opposition to most transfers overseen by district courts.

The fact that the result in this case was no surprise shouldn’t diminish its significance. Courts of appeals had denied felons the right to dispose of property that they owned but could no longer possess, and in doing so, those courts had reached some troubling and broadly applicable legal conclusions. Today, the Court corrected those errors.

Plain English: When people are arrested, they often surrender their firearms to police. Once those people are convicted of felonies, they can no longer lawfully possess their weapons. In this situation, the Supreme Court unanimously concluded, the felon can ask the government to transfer his firearms to an independent third party. This includes transfers to dealers for sale on the open market, but in some circumstances can also include directed transfers to specific people.

Firearms and Drug Trafficking

( Firearms are considered “tools of the trade” in drug trafficking offenses and are relevant intrinsic proof of an ongoing conspiracy. See United States v. Garza, 118 F.3d 278, 285 (5th Cir. 1997). This court reiterated this conclusion in a drug trafficking case where the amount and street value of the drugs made the possession of firearms foreseeable in United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008).

( The Supreme Court has held that a defendant who receives a firearm in exchange for drugs does not “use” the firearm within the meaning of 18 U.S.C. § 924(c)(1). Watson v. United States, 552 U.S. 74 (2007).

( Firearms in Connections with Other Felony (Drugs). United States v. Carranza-Maldonado, (5th Cir. Dec. 28, 2015)(14-20749). Sentenced busted when D was convicted

of possessing a firearm while he was “illegally . . . in the United States.” 18 U.S.C. § 922(g)(5)(A). The passenger, Cavazo, was also arrested and later convicted in state court of misdemeanor possession of marijuana. The presentence report (PSR) concluded that Carranza possessed the firearm in connection with a state marijuana felony, which resulted in a fou- rlevel enhancement under section 2K2.1(b)(6)(B) of the Guidelines.

The “other felony offense” cited in the PSR is “delivery of marihuana,” which is a state jail felony under Texas law. Tex. Health & Safety Code § 481.120(b)(3) (providing state jail felony for delivery offense involving “five pounds or less but more than one-fourth once”). But as Carranza points out, at most the offense could be attempted delivery under state law as no marijuana was actually delivered. An attempt to commit a state jail felony is a misdemeanor. Tex. Penal Code § 15.01(d). The government tries to resuscitate the enhancement by arguing that Carranza’s conduct would have nonetheless constituted a felony under the federal “possession with intent to distribute” statute (21 U.S.C. § 841(a)(1)) or a related conspiracy or aiding and abetting offense. It contends that the same factual basis supporting the district court’s conclusion that there was a sufficient connection between Carranza and the drugs to implicate the state offense would support a similar finding for the federal offenses. But we conclude that the scant record in this case provides an insufficient basis for tying the drugs to Carranza. Although a defendant’s control of a vehicle may support an inference that he constructively possesses contraband located inside, see, e.g., United States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996) abrogated on other grounds by United States v. Vargas-Ocampo, 747 F.3d 299, 300–02 (5th Cir. 2014), all that has been established in this case is that Carranza sat in the driver’s seat of the van when officers arrived at the scene. The officer observed Carranza attempting to hide something under the driver’s seat, which supports the finding that he possessed the firearm found there. But there is no evidence indicating that he owned the van or had previously driven it that would alone support a finding that he exercised control over the contents of other areas of the vehicle not within his immediate reach. This is especially true given that, like Carranza, Cavazos had only just entered the vehicle and sat in the seat beneath which the drugs were hidden. Cf. United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994) (holding that even when a defendant made furtive movements near a locked glove box where contraband was located, the passenger was in “exclusive control” of the contraband given that the key was found where the passenger had been sitting). The odor of burnt marijuana the government emphasizes is also consistent with the inference that Cavazos had been smoking the marijuana and hid his remaining stash beneath his seat. No cash, drug ledgers, or other evidence typical of a larger drug trafficking operation that might help tie the marijuana to Carranza were found at the scene.

( Firearms and prior Texas Felony for Possession with intent to deliver a controlled substance. United States v. Hott, __ F3. __ (5th Cir. August 7, 2017)(16-11435): The district court imposed a base offense level of 22 based on its determination that Hott committed the instant offense subsequent to a Texas felony conviction for possession with intent to deliver a controlled substance. This court recently held that Texas possession with intent to deliver a controlled substance does not qualify as a controlled substance offense under the Guidelines. See United States v. Tanksley, 848 F.3d 347, 351-52 (5th Cir.), supplemented by 854 F.3d 284 (5th Cir. 2017). Based on Tanskley, the Government concedes error in calculation of the Guidelines range.

Firearms and Machine Guns and Personal Trusts as Owner of Gun

Hollis v. Lynch, __ F.3d __ (5th Cir. 2016)(15-10803):

Defendant sought to be exempt from prohibition of owning machine

guns because of Second Amendment and because owner of gun was his trust.

Defendant loses. Good review of federal law on Second amendment. Self-defense not revolution is the central component of the Second Amendment.

In Texas a trust is vested with legal title and right of possession but is held in trust with equitable title of the trust property. A trust cannot possess anything because it is not an entitled under Texas law. Thus Hollis is subject to sect 922(b)’s ban on possessing a machine gun.

Firearms Smuggling under 18 USC § 554 and the Arms Control Export Act, 22 USC § 2778.

( United States v. Gonzalez, __ F.3d __ (5th Cir. June 23, 2015)(14-40344).

Exporting empty magazines from an AK-47 violates the act.

( The smuggling statute under which he was convicted broadly prohibits exporting an item “contrary to any law or regulation of the United States.” 18 U.S.C. § 554. The underlying law cited in Gonzalez’s indictment is the Arms Control Export Act, which criminalizes the unlicensed export of items “designated by the President” as “defense articles.” 22 U.S.C. § 2778(b)(2), (c). The President’s designations of defense articles— promulgated as International Traffic in Arms Regulations (ITAR) by the State Department’s Directorate of Defense Trade Controls—are contained in the United States Munitions List. 22 C.F.R. § 121.1. The Munitions List defines defense articles to include designated firearms and their “components, parts, accessories, and attachments.” Id. at Category I(a), (b), (h).

( The Munitions List does not specifically refer to magazines. But that is because the Munitions List is a list of categories, not specific products. For example, the Munitions List does not specifically list an AK-47 or even more generally an “assault rifle” as covered articles, but no one would doubt that an AK-47 falls within the “firearms” category and requires a license to export. The question is thus whether empty AK-47 magazines fit within the regulatory definition of “component.” See United States v. Nissen, 928 F.2d 690, 693–94 (5th Cir. 1991) (“Any definition that could reasonably be given to the term ‘sophisticated weaponry’ would include the Phantom F–4 fighter aircraft”). Because Gonzalez raised this issue in a pretrial motion to dismiss the indictment, we review de novo. See United States v. Kay, 513 F.3d 432, 441 (5th Cir. 2007)

( A two-step analysis under the regulatory scheme provides a straightforward answer. The relevant State Department definitions state: (a) An end-item is a system, equipment, or an assembled article ready for its intended use. Only ammunition . . . is required to place it in an operating state. (b) A component is an item that is useful only when used in conjunction with an end-item. 22 C.F.R. § 120.45 (emphasis added). The relevant “end-item” here is the AK- 47. See id.; see also 15 C.F.R. § 772.1 (“Examples of end items include . . . firearms.”). And an AK-47 magazine is “useful” only when used in conjunction with that end-item: its sole purpose is to load cartridges into the breech so that they can be fired, increasing the firearm’s ammunition capacity and rate of fire. Indeed, the “A” in AK-47 explains why the magazine is only useful for that purpose; it “automatically” loads cartridges into the chamber with only one pull of the trigger. As such, an AK-47 magazine plainly meets the State Department’s definition of component. This comports with the common meaning of “component,” which is “a part or element of a larger whole, especially a part of a machine or vehicle.” OXFORD DICTIONARY OF ENGLISH 357 (3d ed. 2010). As for Gonzalez’s emphasis on the magazines being unloaded, ITAR’s definition of “end-item” forecloses that argument by stating that “only ammunition . . . is required to place it in operating state.” 22 C.F.R. § 120.45(a). The Munitions List thus covers articles that are not loaded at the time of export. That makes eminent sense.

( Joint Occupancy of Firearm. From United States v. McKoy, _ F.App’x _ (5th Cir. Oct. 7, 2010)(09-50359): Smith and McKoy were each sentenced as an individual who “during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). Possession of a firearm “is ‘in furtherance’ of the drug trafficking offense when it furthers, advances, or helps forward that offense.” United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir.), amended in part, 226 F.3d 651 (5th Cir. 2000). We consider several factors in determining whether firearm possession is “in furtherance” of a drug trafficking offense: the type of drug activity that is being conducted, accessibility of the firearm, the type of weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. Id. at 414-15. A firearm may advance a drug trafficking offense by providing protection in the event the transaction becomes dangerous. Id. at 412. Based on these factors, a reasonable trier of fact could conclude that the evidence established beyond a reasonable doubt that Smith’s firearm possession furthered, advanced, or helped forward the drug trafficking offense. See id. at 410-11. The firearm was found between the driver’s seat and the center console

of the truck that Smith drove to the location of the planned drug transaction. The firearm was readily accessible and in close proximity to the drugs while they were in the truck. The firearm was fully loaded with 13 rounds of ammunition and the slide was in the forward position, ready for use. Though Smith was not carrying the gun, he could have reached it relatively quickly. See United States v. Charles, 469 F.3d 402, 406-07 (5th Cir. 2006). A rational trier of fact could conclude that Smith possessed the firearm in furtherance of the drug sale. See Percel, 553 F.3d at 910; see also Ceballos-Torres, 218 F.3d at 410-11. As to McKoy, the Government’s theory at trial was that McKoy and Smith had joint possession of the gun. Gun “possession can be established by (1)

actual, physical possession of the firearm, (2) sole control and occupancy of a

place where a firearm is found, or (3) joint occupancy of a place where a firearm

is found, combined with some evidence of the defendant’s access to and knowledge of the firearm.” United States v. Anderson, 559 F.3d 348, 353 (5th Cir. 2009). The evidence must show “at least a plausible inference” that McKoy knew of and had access to the gun. United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996). The test for determining whether possession is established in joint occupancy cases is a “commonsense, fact-specific” one. United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993). Mere joint occupancy is not enough; “something else (e.g., some circumstantial indicium of possession) is required.” Id. The Government thus had to prove that besides merely occupying the vehicle, McKoy also had knowledge of and access to the firearm. The fact that the gun was in the vehicle does not support that McKoy had knowledge of it as a passenger. Viewing all inferences in the light most favorable to the verdict, we find insufficient evidence for the jury to conclude that McKoy had knowledge of and access to the firearm. The Government has thus failed to establish the possession element of this crime. … CONCLUSION: The evidence does not establish McKoy’s knowledge of and access to the firearm. Therefore, we REVERSE McKoy’s conviction for possession of a firearm in furtherance of a drug trafficking crime.

( To convict for being a felon in possession of a firearm, the Government had to prove that he was previously convicted of a felony, that he knowingly possessed a firearm, and that the firearm traveled in or affected interstate commerce. See United States v. Anderson, 559 F.3d 348, 353 (5th Cir. 2009); 18 U.S.C. §§ 922(g)(1), 924(a)(1)(B).

Firearms—Constructive Joint Possession

( United States v. Meza, __ F.3d __ (5th Cir. Nov. 9, 2012)(10-10886):

( Note 1, page 10: The fact that the gun was found in an unlocked shed located approximately twenty feet behind Meza’s house (rather than in the house itself) does not change our analysis. The shed was located on Meza’s property, and a rational jury could infer that Meza exercised dominion or control over his entire property, including the shed. See, e.g., United States v. Carter, 953 F.2d 1449, 1456 (5th Cir. 1992) (finding sufficient evidence to show constructive possession over contraband in a shed on defendant’s property and explaining, “[a] rational jury could certainly find that Carter, as the lessee of the premises . . . exercised dominion over the entire property, including the shed behind the house.”).

( To establish a violation of 18 U.S.C. § 922(g)(1) for unlawful possession of a firearm by a felon, the government must prove three elements beyond a reasonable doubt: (1) that the defendant previously had been convicted of a felony; (2) that he knowingly possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce. See United States v. Ferguson, 211 F.3d 878, 885 n.4 (5th Cir. 2000); see also 18 U.S.C. § 922(g)(1).

( Possession of a firearm may be actual or constructive, and it may be proved by circumstantial evidence. United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999). “Actual possession” means that “the defendant knowingly has direct physical control over a thing at a given time.” United States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998). The government proceeded against Meza on a constructive (not actual) possession theory. “Constructive possession” may be found if the defendant had (1) ownership, dominion or control over the item itself or (2) dominion or control over the premises in which the item is found. See DeLeon, 170 F.3d at 496; see also United States v. Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003). When a residence is jointly occupied, however, a more exacting

standard applies. Hinojosa, 349 F.3d at 203-04 (“Although a defendant’s

exclusive possession of a house may establish his dominion and control over

contraband found there, his joint occupancy of a house will not, by itself, support the same conclusion.”). In cases of joint occupancy, this court “will find constructive possession only when there is ‘some evidence supporting at least a plausible inference that the defendant had knowledge of and access to’ the illegal item.” Id. at 204 (emphasis added) (quoting United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993)). Ultimately, “[t]he determination of whether constructive possession exists is not a scientific inquiry,” and the court must “employ a common sense, fact-specific approach.” United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994) (citing Mergerson, 4 F.3d at 349).

( Dominion or control over the premises may be shown by the presence of the defendant’s personal belongings in the house, United States v. Onick, 889 F.2d 1425, 1430 (5th Cir. 1989), or by the presence of documents that are personal in nature, or by evidence that a defendant “could come and go as he pleased.” De Leon, 170 F.3d at 497. Here, the evidence establishing that Meza had dominion or control

over the property includes testimony from Officers Schulte and King that: (1)

Meza’s name appeared on a water bill for the residence; (2) Meza departed the residence while it was under surveillance; (3) Meza had paystubs in a bedroom closet; and (4) mail addressed to Meza at that location was found in a car parked

( The ammunition was found in a back bedroom closet of Meza’s house, near “a tin container that contained paycheck stubs belonging to Mr. Meza.” This court has found sufficient circumstantial evidence of constructive possession in joint occupancy cases where contraband is found among a defendant’s personal items. For example, in United States v. Hooper, 358 F. App’x 520 (5th Cir. 2009) (unpublished), the

court found sufficient evidence that Hooper possessed a firearm that was found in a bedroom. … see also De Leon, 170 F.3d at 495, 497 (finding sufficient evidence to infer constructive possession where ammunition was found near defendant’s state parole document, inside a dresser in defendant’s girlfriend’s home); United States v. Felan, 339 F. App’x 499, 499-500 (5th Cir. 2009) (unpublished) (finding sufficient evidence that a male defendant constructively possessed cocaine because “[t]rial testimony established that men’s clothing was in the closet where the cocaine was found and that personal documents bearing [the defendant’s] name were stored in the master bedroom where the closet was located.”).

Firearms and Drugs—Bailey Fix Statute

( United States v. Ortega, 5th Cir. April 25, 2017)(16-50301):

D pleaded guilty to charges of possession with intent to distribute 500 grams or more of cocaine and possession of a firearm in furtherance of a drug trafficking crime. … Relying on Bailey v. United States, 516 U.S. 137 (1995), and United States v. Dickey, 102 F.3d 157 (5th Cir. 1996), Ortega argues that the mere proximity of the firearm to the cocaine was insufficient to prove “use” under the statute, and instead, the Government was required to show that he actively employed the firearm in relation to his drug trafficking crime. Thus, according to Ortega, the Government has failed to prove the “use” requirement of § 924(c). Given that Ortega did not raise this argument in the district court, we review for plain error. United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006). Ortega’s argument, however, relies on outdated precedent: Congress effectively overruled Bailey with an amendment to § 924(c) criminalizing the “possession” of a firearm in furtherance of a drug trafficking crime. See Abbott v. United States, 562 U.S. 8, 16–17 (2010) (“The 1998 alteration responded primarily to our decision in Bailey . . . . Congress legislated a different result; in the 1998 revision, colloquially known as the Bailey Fix Act, the Legislature brought possession within the statute’s compass.” “[P]ossession of a firearm in furtherance of [a] drug-trafficking offense is now a sufficient factual basis for a conviction under § 924(c)(1),” United States v. Ruiz, 533 F. App’x 361, 363 (5th Cir. 2013) (per curiam), and indeed, the superseding indictment charged Ortega with possession of a firearm in furtherance of a drug trafficking crime. Thus, Ortega’s reliance on Bailey is misplaced, and he has failed to show any error regarding his firearm conviction

Firearms and Enhancement for Illegal Purpose.

( Perry also argues that 18 U.S.C. § 922(g)(1) unconstitutionally extends federal control to possession of a firearm that does not substantially affect interstate commerce. He concedes, however, that his constitutional argument is foreclosed by our precedent. See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999); United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996).

( In a straw man false statement to procure a gun for an ineligible purchaser,

USSG § § 2K2.1(b)(5) calls for an enhancement when the guns are bought for an illegal purpose. The district court’s application of the Sentencing Guidelines is reviewed de novo, and its factual findings are reviewed for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This court upholds a district court’s factual finding on clear error review so long as the enhancement is plausible in light of the record as a whole. United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006). The Government must prove sentencing enhancements by a preponderance of the evidence. United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). In United States v. Grinnage, 309 F. App’x 334 (11th Cir. 2009)(unpublished), the Eleventh Circuit found that the Government, through its use of indirect evidence, established by a preponderance of the evidence that Grinnage had reason to believe that he was transferring firearms to individuals who intended to dispose of them unlawfully. … In United States v. Marceau, 554 F.3d 24 (1st Cir. 2009), the First Circuit relied upon indirect evidence to hold that the defendant had reason to believe that he was transferring firearms to individuals who intended to dispose of them unlawfully. However, in United States v. Green, __ F.App’x __ (5th Cir. Jan. 6, 2009)(09-40182), Fifth Circuit found evidence insufficient that defendant knew that the guns were going to be illegally taken back into Mexico.

( Strawman buy and legal final recipient is still a violation of the law.

Abramski v. United States, __ U.S. ___ (June 16, 2014).

Firearms and Exportation

( From United States v. Flores, (5th Cir. Aug. 24, 2011)(10-10364):

Flores and Lozano conspired to export firearms and ammunition from the United States to Mexico in violation of 18 U.S.C. §§ 371, 554. … Specifically, both Flores and Lozano stipulated that Lozano received, through Flores’s arrangements, six Colt carbine rifles, a Colt .38 super pistol, 200 pistol magazines, and 25 AR-15 magazines. Both Flores and Lozano further admitted that the weapons were designated as prohibited items on the United States Munitions List (USML). … A appellants now argue that the district court erred in including firearm magazines in determining their base offense level under U.S.S.G. § 2M5.2(a)(1) because magazines are not included on the USML. They contend that, as a result, less than ten, non-fully automatic weapons were involved in the offense, thereby making them eligible for a reduced base offense level under § 2M5.2(a)(2).

there is no clear authority in this circuit on whether empty firearm magazines are components for purposes of determining a defendant’s base offense level under § 2M.5.2. See, e.g., United States v. Galvan-Revuelta, 958 F.2d 66, 69 (5th Cir. 1992) (discussing application of §2M5.2 to offenses involving only ammunition); United States v. Nissen, 928 F.3d 690, 695 (5th Cir. 1991) (finding no error in district court’s determining that the exportation of a heater designed for the F-4 Phantom aircraft warranted the application of a higher base offense level under § 2M5.2, because although not “sophisticated

weaponry,” the heater was designed for “sophisticated weaponry”). Thus, because there is no clear authority in this circuit, any error by the district court in including the magazines and applying the base offense level provided by § 2M5.2(a)(1), was not clear or obvious. See United States v. Potts, ___ F.3d ___, No. 10-10257, 2011 WL 2347687 at **2-3 (5th Cir. June 15, 2011).

( United States v. Diaz-Gomez, __ F.3d ___ (5th Cir. May 3, 2012)(11-50199):

Dispute over whether regular semi-automatics constitute sophisticated weapons which

get enhanced under USSG § base offense level of 14 pursuant to U.S.S.G.

§ 2M5.2(a)(2). Answer: Yes, they do. The then-effective the Guidelines provided:

(a) Base Offense Level:

(1) 26, except as provided in subdivision (2) below;

(2) 14, if the offense involved only non-fully automatic small

arms (rifles, handguns, or shotguns), and the number of

weapons did not exceed ten.

U.S. SENTENCING GUIDELINES MANUAL § 2M5.2 (2010) (emphasis added).

The Government objected that the plain language of § 2M5.2(a)(1) and the

facts of the case required a base offense level of 26. The probation officer revised

the PSR and assigned a base offense level of 26,

The language of § 2M5.2 forecloses Diaz’s argument. While Diaz argues

that “[b]asic ammunition, like the nine-millimeter and .38 caliber cartridges

involved in [his] case, can hardly be considered sophisticated,” the plain

language of § 2M5.2 does not support his claim that the Guideline is aimed at

distinguishing between exports of sophisticated, serious weapons from exports

of less sophisticated weapons or ammunition. The language of § 2M5.2 indicates

that the Sentencing Commission intended for the section to apply to the full

range of exports of ammunition and weapons. The application note states:

“Under 22 U.S.C. § 2778, the President is authorized . . . to control exports of

defense articles . . . . The items subject to control constitute the United States

Munitions List, which is set out in 22 C.F.R. Part 121.1.” U.S. SENTENCING

GUIDELINES MANUAL § 2M5.2, cmt. n.1. In turn, the referenced Munitions List

specifically lists:

CATEGORY III-AMMUNITION

(a) Ammunition for the arms in Category I . . . of this section.

[Nonautomatic, semi-automatic, and fully automatic firearms to

caliber .50].

22 C.F.R. § 121.1. As this court has noted previously in response to a similar

argument, the fact that the Munitions List covers a range of unsophisticated

weapons and ammunition, including nonautomatic firearms under .50 caliber,

prevents Diaz from arguing the design and purpose of § 2M5.2 was generally

intended to apply to sophisticated weaponry. See United States v.

Galvan-Revuelta, 958 F.2d 66, 68 (5th Cir. 1992) (“These items [revolvers,

pistols, and rifles up to .50 caliber] no more constitute ‘serious military or space

hardware’ than does the ammunition that goes in them.”).

Given this broad scope of intended coverage for § 2M5.2, we turn our

attention to whether the use of the word “only” in subsection (a)(2) limits the

application of the lower base offense level to an offense that truly involves only

non-fully automatic weapons and no ammunition. For reference, the exact

language of § 2M5.2(a)(2) provides for a base offense level of “14, if the offense

involved only non-fully automatic small arms (rifles, handguns, or shotguns),

and the number of weapons did not exceed ten.” (emphasis added).

We see no reason

to interpret the plain meaning of the term “only” to mean anything other than

“only.” As the district court aptly stated during the sentencing hearing, “‘only’

means ‘only.’” Diaz did not have “only” one small gun hidden in his car—he also

had more than 600 rounds of ammunition that could be used in the gun. We note that this interpretation of § 2M5.2 comports with our sister circuit’s decision in United States v. Sero, 520 F.3d 187 (2d Cir. 2008) (per curiam). “Because the language of the guideline is clear, our inquiry ends. We find that the guideline does not permit finding an exception for including ammunition, no matter how small the quantity.” Id. at 190 (citing United States v. Muthana, 60 F.3d 1217, 1224 (7th Cir. 1995), which held that § 2M5.2(a)(2) did not apply when a defendant’s offense involved thousands of rounds of small arms ammunition)). As further noted by the court in Sero, “To the extent that firearms are harmless without ammunition, this may have been an intentional omission by Congress,” id. at 190 n.3, a proposition we also find reasonable.

Firearms and Silencers.

United States v. Hott, __ F.3d ___ (5th Cir., Aug. 7, 2017)(16-11435): Hott contends that the district court erred in imposing the § 2K2.1(b)(6)(B) enhancement for using or possessing a firearm in connection with another felony offense. He raised this objection before the district court, which overruled the objection. We review the district court’s application of the enhancement de novo and its factual findings for clear error. See United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). The enhancement applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offenseU.S.S.G. § 2K2.1 cmt. n.14(A). The district court imposed the enhancement on the basis that Hott possessed silencers in connection with another felony offense, namely, manufacturing and selling silencers in violation of the National Firearms Act. See United States v. Anderson, 885 F.2d 1248, 1250-51 (5th Cir. 1989) (en banc) (a “silencer” is considered a “firearm” under the National Firearms Act). The silencers were not cited in the offense of conviction. If the firearm used to support the enhancement is not a firearm cited in the offense of conviction, the enhancement applies if the offense of conviction and “another felony offense” were “part of the same course of conduct or common scheme or plan.” See U.S.S.G. § 2K2.1 cmt. n.14(E)(ii). Hott argues that his possession of the firearm and ammunition cited in the offense of conviction did not facilitate or have the potential of facilitating his manufacture or sale of silencers. But the relevant inquiry here is whether his possession of the silencers not cited in the offense of conviction facilitated or had the potential of facilitating the unlawful manufacture or sale of silencers. See id. cmt. n.14(A) & n.14(E)(ii). The district court did not err in concluding that Hott’s conduct meets the requirements.

Firearms and Weapons Trafficking Enhancement under USSG § 2K2.1(b)(5) and (6).

( See also prior heading.

( United States v. Juarez, __ F.3d __ (5th Cir. Nov. 12, 2010)(09-40861).

( We first consider the district court’s decision to apply the § 2K2.1(b)(5)

trafficking enhancement to Juarez. “We review the district court’s interpretation or application of the Sentencing Guidelines de novo and its factual findings for clear error.”

United States v. Trujillo, 502 F.3d 353, 4 356 (5th Cir. 2007) (citing United States v.Huerta, 182 F.3d 361, 364 (5th Cir. 1999)). A district court may draw reasonable inferences from

the facts when determining whether an enhancement applies, and we review those inferences for clear error. United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010) (citing United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)). The government must prove sentencing enhancements by a preponderance of the evidence. United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). … The parties appear to dispute whether we should review the district court’s decision to apply the § 2K2.1(b)(5) enhancement under the de novo or clear error standard of review. … Juarez’s argument for de novo review is without merit. …. We have reviewed such determinations for clear error in prior cases, and nothing in the facts of this case warrants a 9 departure from that approach. … Reviewing the district court’s decision for clear error, we conclude that the district court did not clearly err when it applied the § 2K2.1(b)(5) enhancement. There is considerable evidence from which the district court could infer that Juarez knew or had reason to believe that her conduct would result in the transport, transfer, or disposal of a firearm to an individual who intended to use or dispose of the firearm unlawfully. “El Mano” was unwilling to purchase the weapons himself, and he sent Juarez alone to make the purchases, indicating

that he did not wish to be associated with the transactions. The clandestine nature of Juarez’s dealings with “El Mano” and the fact that she was paid $200 above the retail cost of each of twenty-five weapons for her role also would give Juarez reason to believe that the firearms were being purchased for an unlawful purpose. It is highly unlikely that a person who intended to use these weapons lawfully would pay a $200 premium for each of them. United States v. Caldwell, 448 F.3d 287, 291-92, 293 (5th Cir. 2006) (reviewing for clear error a district court’s finding that defendants had reason to believe that firearms would be used or possessed in connection with a felony offense under former § 2K2.1(b)(5)). … Under

such circumstances, we cannot conclude that it was clear error for the district court to infer that Juarez knew or had reason to believe that she was transferring firearms to an individual who intended to use or dispose of them in an unlawful manner. Accordingly, we affirm the district court’s application of the § 2K2.1(b)(5) enhancement to Juarez.

( We next consider Juarez’s challenge to the district court’s decision to apply

the § 2K2.1(b)(6) enhancement. Section 2K2.1(b)(6) provides for a four-level

enhancement when the defendant “possessed or transferred any firearm . . . with

knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6) (2008). A firearm is “used or possessed in connection with another felony offense” when the firearm “facilitated, or had the potential of facilitating” the felony offense. U.S.S.G. § 2K2.1 cmt. n.14(A).Thus, in order to demonstrate that the § 2K2.1(b)(6) enhancement applied to Juarez, the Government needed to establish by a preponderance of the evidence (1) another felony offense, (2) that one of the firearms that Juarez purchased facilitated, or had the potential of facilitating, that felony offense, and (3) that Juarez possessed or transferred the

firearm with knowledge, intent, or reason to believe that it would be used or

possessed in connection with that offense. See United States v. Anderson, 559 F.3d 348, 357 (5th Cir.), cert. denied, — U.S. —, 129 S. Ct. 2814 (2009). The Government argued below that the same circumstances that supported the application of the § 2K2.1(b)(5) enhancement supported an enhancement under § 2K2.1(b)(6). The district court agreed. The district court did not expressly identify a felony upon which it relied when applying the § 2K2.1(b)(6) enhancement to Juarez, but the district court observed that “these

drugs [sic] are being taken into Mexico to be used for unlawful purposes, and of course, the mere transporting them into Mexico is unlawful.” The Government, on appeal, points to illegal firearms smuggling in violation of 22 U.S.C. §§ 2778(b) and (c) and 22 C.F.R. § 121.1 as the felony offense supporting the enhancement, and Juarez refers to this offense as well. Accordingly, we consider Juarez’s appeal of the § 2K2.1(b)(6) enhancement with that offense in mind. See United States v. Condren, 18 F.3d 1190, 1194 (5th Cir. 1994) (noting that the initial step in evaluating a § 2K2.1(b)(6) enhancement is to “first identify the other felony

employed in the district court’s enhancement calculus”). … The district court did not plainly err. Although we acknowledge that several of our sister circuits have taken the position Juarez now advances—that a firearms possession or trafficking offense cannot constitute “another felony offense” for purposes of the § 2K2.1(b)(6) enhancement—each of the cases Juarez cites reached that decision after applying a version of the commentary to the guidelines that has since been amended. Our sister circuits, in categorically excluding firearms possession and trafficking offenses from the definition of “another felony offense,” relied on an application note that provided, in relevant part: “[a]s used in [former] subsection (b)(5) [now subsection (b)(6)] . . . ‘another felony offense’ . . . refer[s] to offenses other than explosives or firearms

Firearms and Filed Serial Numbers

( United States v. Perez, 2009 WL 3321506, __ F.3d ___ (5th Cir. Oct. 16, 2009)(08-40917). Fifth Circuit upholds district court’s assessing increased offense levels for altered/obliterated serial number IAW U.S.S.G. § 2K2.1(b)(4) and increased levels because the firearm was possessed in connection with committing another felony, in this case deadly conduct by discharge of a firearm, IAW U.S.S.G. § 2K2.1(b)(6). Perez asserts that the district court should not have imposed the enhancement for an altered or obliterated serial number because he was not the one who “attempted to alter or obliterate the serial number” and because the serial number on the revolver was “actually readable.” We disagree.

( The four-level enhancement in U.S.S.G. § 2K2.1(b)(4) applies “regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had an altered or obliterated serial number.” Id. app. n.8(B). This court has continually enforced the clear and unambiguous language of § 2K2.1(b)(4) and its strict liability standard. See United States v. Singleton, 946 F.2d 23, 24 (5th Cir. 1991); United States v. Dancy, 947 F.2d 1232, 1233-34 (5th Cir. 1991); United States v. Fry, 51 F.3d 543, 546 (5th Cir.1995); United States v. Hodges, 190 F.3d 537 (5th Cir. 1999); United States v. Leon-Gonzalez, 220 F.3d 386 (5th Cir. 2000); United States v. Williams, 365 F.3d 399, 407-08

(5th Cir. 2004). For example, in United States v. Singleton, we examined § 2K1.2(b)(4)’s stolen firearm prong and concluded that its language and meaning were plain and unambiguous and that knowledge was not required.

( The PSR states that the firearm’s “serial number appeared to be altered and partially obliterated, as if somebody had attempted to scratch the numbers off.” We must

determine, therefore, whether damage to a serial number that did not render it unreadable qualifies as an alteration for purposes of § 2K2.1(b)(4). Our court has not yet interpreted the meaning of “altered or obliterated.” Fifth Circuit adopts: United States v. Carter, 421 F.3d 909, 910 (9th Cir. 2005), which held that “for the purposes of Guideline §2K2.1(b)(4), a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible.”

Firearms, Felon in Possession

( Massive review of the entire law and repeated destruction of defendant’s multiple theories of defense while acting as volunteer border guard.

United States v. Massey, __ F.3 ____ (5th Cir. Feb. 22, 2017)(15-40041).

( United States v. Mudd, __ F.3d ___ (5th Cir. June 20, 2012)(10-41320):

“In order to convict one for felon in possession of a firearm, the government

must prove that the defendant (1) has been convicted of a felony; (2) possessed a firearm in or affecting interstate commerce; and (3) knew that he was in possession of the firearm.” United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995). “Possession of the firearm may be actual or constructive.” Id. “Constructive possession is ‘ownership, dominion, or control over the contraband itself, or dominion or control over the premises in which the contraband is concealed.’” Id. (quoting United States v. Smith, 930 F.2d 1081, 1085 (5th Cir. 1991)) (emphasis omitted). … “In determining what constitutes dominion and control over an illegal item, this Court considers not only the defendant’s access to the dwelling where the item is found, but also whether the defendant had knowledge that the illegal

item was present.” United States v. De Leon, 170 F.3d 494, 497 (5th Cir. 1999). “[M]ere control or dominion over the place in which contraband or an illegal item is found by itself is not enough to establish constructive possession when there is joint occupancy of a place.” United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993) (emphasis omitted). “In our previous joint occupancy cases, this court has adopted a commonsense, fact-specific approach to determining whether constructive possession was established.” Id. (internal quotation marks omitted). “We have found constructive possession in such cases only when there was some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband.” Id.

This court has likewise determined that mere proof of dominion over a

place or vehicle is insufficient to sustain a conviction, of which knowing

possession is an element, where the contraband at issue was discovered in a

hidden compartment. “[I]n order to satisfy the knowledge element in hidden

compartment cases, this Court has normally required additional ‘circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.’” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (quoting United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990)). Inconsistent statements and implausible explanations are among the behaviors previously recognized in this circuit as circumstantial evidence of guilty knowledge. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).

The present case is distinguishable from Mergerson, Onick, and Ortega

Reyna in multiple respects. First, there is testimonial and photographic

evidence that the firearm was located in reasonably plain view of Mudd’s bed.

Second, Mudd’s inconsistent statements go directly to his knowledge of the location of the weapon. Such inconsistent statements are much more probative of guilt than inconsistent statements regarding tangential matters, s

Firearms and Engaged in Business

United States v. Brenner, (11-50432)(April 30, 2012): For a conviction under 18 U.S.C. §§ 922(a)(1)(A) and 923(a), the Government must prove beyond a reasonable doubt that Brenner: “(1) engaged in the business of dealing in firearms; (2) was not a federally licensed firearms dealer; and (3) acted willfully”. United States v. Tyson, 653 F.3d 192, 200 (3d Cir. 2011). Brenner’s challenge–at trial and here–relates solely to the first element. … Since the enactment in 1986 of 18 U.S.C. § 921(a)(21), our court has not addressed what constitutes being “engaged in the business” of dealing in firearms. The above-cited Third Circuit opinion in Tyson states that defendant engages in the business of dealing in firearms when his “principal motivation is economic” and he “pursues this objective through the repetitive purchase and resale of firearms”. 653 F.3d at 200-01.

Firearms and Conviction of two or more counts of § 924(c)

United States v. Chapman, __ F.3d __ (5th Cir. April 12, 2017)(15-30538).

Where D was convicted of two counts of 18 U.S.C. § 924(c),

the minimum sentence for the first was five years and the minimum for the second count was 25 years.

Count 6 of the indictment charged Perry with knowingly discharging a firearm during and in relation to drug trafficking activity—namely, the drug conspiracy (charged in Count 1) and a carjacking incident (charged in Count 5), in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and § 924(c)(2). And Count 10 of the indictment charged Perry and Chapman each with knowingly possessing a firearm in furtherance of drug trafficking activity—namely, the drug conspiracy (charged in Count 1) and possession with intent to distribute cocaine and 28 grams or more of cocaine base (charged in Count 9)—in violation of 18 U.S.C. § 924(c)(1)(A) and § 924(c)(2).

The pre-sentence report stated that the mandatory minimum terms for these convictions were ten and five years, respectively. The Government objected, arguing that Count 10 constituted a second conviction under 18 U.S.C. § 924(c) and therefore the mandatory minimum for Count 10 should be 25 years. See 18 U.S.C. § 924(c)(1)(C)(i) (“In the case of a second or subsequent conviction under [18 U.S.C. § 924], the person shall . . . be sentenced to a term of imprisonment of not less than 25 years . . . .”); Deal v. United States, 508 U.S. 129, 131–33 (1993) (holding that § 924(c)’s enhanced penalty for a second or subsequent conviction applies when the defendant is convicted of multiple § 924(c) counts in a single proceeding).

At Perry’s sentencing, the district court recognized Deal’s holding, but explained that Deal “did not address whether . . . when there are two convictions in the same charging instrument[,] how the court is to consider which conviction came first and which conviction came second.” This issue was relevant for Perry’s sentencing because one of his § 924(c) convictions (Count 10) carried a mandatory minimum of five years since it was for mere possession of a firearm, while his other § 924(c) conviction (Count 6) carried a mandatory minimum of ten years since it was for discharge of a firearm. The district court explained that, due to the secrecy of jury deliberations, it had no way of determining which of the two convictions the jury arrived at first, and thus, it could not determine to which of these convictions the 25-year enhanced penalty should apply. Accordingly, the district court applied the rule of lenity and “decline[d]” to apply the enhanced penalty to either of Perry’s two § 924(c) convictions. The district court erred in declining to apply the 25-year enhanced penalty to Perry’s second conviction under § 924(c). Under Deal’s reasoning, Perry’s two convictions under § 924(c) necessarily included a first § 924(c) No. 15-30538 9 conviction and a second § 924(c) conviction. See Deal, 508 U.S. at 133 n.1 (“[F]indings of guilt on several counts are necessarily arrived at successively in time.”). It is true that § 924(c) is silent on how multiple convictions should be sequenced for sentencing purposes, and it is not possible for the court to know the sequence in which the jury reached the convictions. To resolve this ambiguity, we employ a well-known interpretive tool: the rule of lenity. “The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” Kaluza, 780 F.3d at 669 (quoting United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion)). The application of the rule of lenity in this context is a matter of first impression for this court. But all of our sister circuits that have considered this issue have held that the rule of lenity requires that the conviction with the lowest mandatory minimum sentence be considered the first conviction for the purposes of applying the 25-year enhanced penalty. See United States v. Pierce, 785 F.3d 832, 846–47 (2nd Cir. 2015); United States v. Washington, 714 F.3d 962, 970–71 (6th Cir. 2013); United States v. Major, 676 F.3d 803, 814–15 (9th Cir. 2012). In this way, the defendant’s aggregate statutory minimum sentence is minimized and the rule of lenity is satisfied. We agree with this approach. Applied here, this means that Count 10 should be considered Perry’s first § 924(c) conviction (carrying five years) and Count 6 should be the second § 924(c) conviction (carrying 25 years due to the enhanced penalty), for a total statutory minimum sentence on the § 924(c) counts of 30 years.6 In declining to apply the 25-year enhanced penalty, the district court stated that, lacking any precedent from this circuit, it was “persuaded by the 6 As opposed to Count 6 being considered the first conviction (carrying 10 years) and Count 10 the second (carrying 25 years), for a total statutory minimum sentence of 35 years. No. 15-30538 10 analysis” from the Ninth Circuit in United States v. Major. But the Ninth Circuit in Major did not entirely decline to apply the 25-year enhanced penalty. To the contrary, the Ninth Circuit applied the enhanced penalty by concluding that, “when the district court does not have sufficient information to determine the order in which the jury made determinations of guilt during jury deliberations on multiple counts under section 924(c),” the rule of lenity required the district court to “order the convictions so that the mandatory minimum sentence is minimized.” Major, 676 F.3d at 815. In that case, the rule of lenity required that “one of the [§ 924(c)] brandishing counts, rather than a [§ 924(c)] discharging count . . . be the first conviction” because the former carried a lower mandatory minimum sentence. Id. Thus, Major does not lend support to the district court’s decision not to apply the 25-year enhanced penalty at all. Rather, Major supports our conclusion that, for the purposes of the enhanced penalty, the § 924(c) count with the lowest mandatory minimum sentence should be considered the first conviction. On appeal, Perry does not dispute that § 924(c)’s 25-year enhanced penalty should be interpreted and applied in this manner. Rather, he argues that the district court’s failure to impose the penalty is excused by the fact that, in light of United States v. Johnson, 135 S. Ct. 2551 (2015), § 924(c)(3)(B)’s definition of “crime of violence” (“the risk of force definition”) is unconstitutionally vague, see 18 U.S.C. § 924(c)(1)(A) (providing enhanced penalties for anyone who, “in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” (emphasis added)); id. § 924(c)(3)(B) (defining “crime of violence” as any felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”). According to Perry, because this No. 15-30538 11 definition is “conceivably unconstitutional,” the district court did not err by failing to use it to enhance Perry’s sentence. Perry’s argument is unavailing for several reasons.

( Firearms and USSG 2K2.1(a)(3) and Armed Robbery. Texas robbery is a crime of violence because it meets the generic definition of the enumerated crime-of-violence offense of robbery. United States v. Santiesteban-Hernandez, 469 F.3d 376, 380-81 (5th Cir. 2006), overruled on other grounds by United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir. 2013) (en banc), in which we held that robbery in violation of Texas Penal Code § 29.02 meets the generic definition of the enumerated crime-of-violence offense of robbery. See also United States v. Sanchez-Lopez, 493 F. App’x 557, 558 (5th Cir. 2012).

Firearms Generally

( D asserts the district court read Guideline § 2M5.2(a)(2) too narrowly, and the lower base offense level of 14 is warranted because: (1) his offense involved only

ammunition and not firearms; and (2) the ammunition at issue was designed only for .357 and .38 caliber, non-fully-automatic small arms. He contends his position is supported by the 2011 amended version of Guideline § 2M5.2. Our court recently rejected materially indistinguishable arguments in United States v. Diaz-Gomez, 680 F.3d 477, 479-82 (5th Cir. 2012). United States v. Lara, (5th Cir. Oct. 1, 2012)(11-40129).

( Firearms Dealers and Records. United States v. Pena, (5th Cir. Oct. 9, 2013)(12-41356): Convicted of making a false statement in firearm-dealer records, in violation of 18 U.S.C. § 924(a)(1)(A). “To establish a violation of § 924(a)(1)(A), the government must prove that: (1) the dealer was a federally licensed firearms dealer at the time the events occurred; (2) the defendant made a false statement or representation in a record

that the licensed firearms dealer was required by federal law to maintain; and

(3) the defendant made the false statement with knowledge of its falsity.”

United States v. Abramski, 706 F.3d 307, 316-17 (4th Cir. 2013), petition for cert.

filed (U.S. 21 June 2013) (No. 12-1493). Evidence established that the Academy

store where Pena made the purchases was a federally licensed firearms dealer.

Additionally, “[t]he Alcohol, Tobacco and Firearms Division of the United States

Treasury Department requires purchasers and sellers of firearms to complete

ATF Form 4473”. United States v. Ortiz-Loya, 777 F.2d 973, 976 n.1 (5th Cir. 1985); see also 27 C.F.R. § 478.124 (forbidding sale of a firearm without a

recorded Form 4473 and requiring the licensed dealer to retain each Form 4473).

Pena’s reliance upon United States v. Polk, 118 F.3d 286, 295 (5th Cir.

1997), is misplaced. Polk was based upon the determination that a violation of

18 U.S.C. § 922(a)(6) (prohibiting any false statement “with respect to any fact

material to the lawfulness of the sale”) involves false statements regarding facts

that are material to the lawfulness of the sale. See Polk, 118 F.3d at 295. In

contrast, § 924(a)(1)(A) forbids knowingly making “any false statement or

representation with respect to the information required . . . to be kept in the

records” of a federal firearms licensee. Thus, § 924(a)(1)(A) does not require the

false statement be material to the sale. See Abramski, 706 F.3d at 315-16;

United States v. Johnson, 680 F.3d 1140, 1145-46 (9th Cir. 2012).

Firearms and Second Amendment

( District of Columbia v. Heller, 554 U.S. 570 (2008).

( The Supreme Court has held that the Second Amendment right is fully applicable to the states through the Fourteenth Amendment. McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010).

( Following Heller and McDonald v. City of Chicago, this circuit adopted a

two-step inquiry to evaluate whether a firearms regulation comports with the

Second Amendment. NRA v. Bureau of Alcohol, Tobacco,

Firearms, & Explosives, 700 F.3d 185 (5th Cir. 2012)(upholding federal prohibition

in 18 U.S.C. § 922(b)(1) on selling to youth).

( NRA v. McGraw, __ F.3d __ (5th Cir. May 20, 2013)(12-00091) upholding restriction

of 18-21 year olds from carrying a concealed weapon in TEX. GOV’T CODE § 411.172(a).

( Note that the XIV amendment § 2 applies only to persons over age 21, not 18.

Firearms and Pardon:

( A pardon will restore his rights to bear arms; if the pardon does not specifically prohibit that specific right or remains silent [see U.S. v. Chenowith, No. 05-20636, 459 F.3d 635 (5th Cir. 2006) for anti-mouse trapping]. The Feds rely on state law for the determination for restoration of rights.

Firearms—Taking Gun into Court by Attorney under State Law

( Ex parte Garland,  71 U.S. 333 (1866)

“Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character.”

( TEX PE. CODE ANN. § 46.03: PLACES WEAPONS PROHIBITED

(b) It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.

Flight

( Court did not abuse discretion in giving instruction that flight can reflect a consciousnesss of guilt. United States v. Templeton, 624 F.3d 215 (5th Cir. 2010).

Flight instruction is appropriate when the evidence supports 4 inferences: (10 D;s conduct constituted flight; (2) the D’s flight was the result of consciousness of guilt;

(3) D’s guilt related to the crime with which he was charged; and (4) D felt guilty about the crime charge because he in fact committed the crime.

FISA (Foreign Intelligence Surveillance Act)

( Searches authorized by the Foreign Intelligence Surveillance Court

(“FISC”) under 50 U.S.C. § 1805(a) and § 1824(a) are based on an ex parte showing

of probable cause to believe that Appellant was “an agent of a foreign power”

under 50 U.S.C. § 1801.

( United States v. El-Mezain, 664 F.3d 467, 568-70 (5th Cir. 2011). A court makes a

de novo decision as to the merits of Appellant’s motion to suppress evidence. To do so,

we must conduct our own in camera and ex parte review of the classified materials that were submitted to the Foreign Intelligence Surveillance Court in support of the FISA

application and subsequently reviewed by the district court.

( According to the Foreign Intelligence Surveillance Court of Review, searches conducted pursuant to FISA do not violate the Fourth Amendment as long as they are not performed with the “sole objective of criminal prosecution.” In re Sealed Case, 310 F.3d

717, 735 (Foreign Int. Surv. Ct. Rev. 2002). Rather, such search must be at least partially motivated by a purpose “to protect the nation against terrorists and espionage threats

directed by foreign powers.” Id. at 746. So long as this requirement is satisfied, according to a number of circuit courts, there is no constitutional bar to the admission of evidence collected pursuant to FISA in criminal prosecutions. United States v. Duka, 671 F.ed 329, 338-46 (3d Cir. 2011); United States v. Abu-Jihaad, 630 F.3d 102, 127-29 (2d Cir. 2010); United States v. Ning Wen, 477 F.3d 896, 898-99 (7th Cir. 2007); United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005). Although this court did not explicity address the constitutional issue in El Mezain, we did hold as a statutory matter that evidence can be collected during a FISA search where protection against terrorist threats is at least a “significant purpose” of the FISA search and that such evidence may then be introduced in a criminal prosecution.” El-Mezain, 664 F.3d at 568-70.

( FISA authorizes searches only upon a showing of probable cause to believe that the

searches’ target is “an agent o a foreign power” as defined under 50 U.S.C. § 1801.

( United States v. Al-dawsari, 740 F.3d 1015 (5th Cir. 2014) In prosecution for attempted use of weapon of mass destruction, in violation of 18 USC § 2332(a)(2), D was not entitled to suppress evidence acquired under FISA, based on its in-camera review of the classified materials, as FISA Searches were properly authorized and the evidence collected during the searches was properly admitted.

Flight Attendant—See Intimidating a Flight Attendant

Forfeitures

( Questions of standing are reviewed de novo.” Nat’l Athletic Trainers’ Ass’n, Inc. v. U.S. Dep’t of Health & Human Servs., 455 F.3d 500, 502 (5th Cir. 2006). To evaluate the prudential standing requirement at issue here, “we must identify what interest the litigant seeks to assert and then decide if that interest is arguably within the zone of interests to be protected or regulated by the statute.” Bonds v. Tandy, 457 F.3d 409, 413–14 (5th Cir. 2006). Under Title 18’s civil forfeiture scheme, see 18 U.S.C. § 983, only “innocent owner[s]” of seized property hold the right to defend against forfeiture proceedings. § 983(d)(1) (“An innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute.”).

( A claimant opposing forfeiture bears the burden of establishing standing. See

United States v. $9,041,598.68 (Nine Million Forty One Thousand Five Hundred Ninety Eight Dollars and Sixty Eight Cents), 163 F.3d 238, 245 (5th Cir. 1998).

( Defining an asserted ownership interest depends upon state law. See United States v. $47,875.00 in U.S. Currency, 746 F.2d 291, 294 (5th Cir. 1984). Texas defines a bailment as “(1) the delivery of personal property from one person to another for a specific purpose; (2) acceptance by the transferee of the delivery; (3) an agreement that the purpose will be fulfilled; and (4) an understanding that the property will be returned to the transferor.” Sears Roebuck & Co. v. Wilson, 963 S.W.2d 166, 168–69 (Tex. App—Fort Worth 1998, no pet.) (citations omitted); accord DeLaney v. Assured Self Storage, 272 S.W.3d 837, 839 (Tex. App.—Dallas 2008, no pet.); Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 635 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

Moreover, if properly asserted, a bailor’s interest in bailed property constitutes “an ownership interest in the specific property” so long as it falls within the § 983(d)(6)(B)(ii) provision for situations where “the bailor is identified and the bailee shows a colorable legitimate interest in the property seized.” See also Allright Auto Parks, Inc. v. Moore, 560 S.W.2d 129, 130 (Tex. Civ. App.—San Antonio 1977, writ ref’d n.r.e.) (“The very essence of a contract of bailment is that after its purpose has been fulfilled the bailed property shall be redelivered to the bailor.”); 8A Tex. Jur. 3d Bailments § 16 (West 2009) (“On creation of the ordinary bailment, the general property right remains in the bailor, and the bailee has only a special interest in the objects of the express or implied

bailment. A bailor with legal title to the subject property retains title if the bailment contract does nothing to change that relationship.”

( From United States v. Diaz, 09-11047 (5th Cir. Feb. 16, 2011):

“This court reviews ‘the district court’s findings of fact under the clearly

erroneous standard, and the question of whether those facts constitute legally

proper forfeiture de novo.’” United States v. Juluke, 426 F.3d 323, 326 (5th Cir.

2005) (quoting United States v. Marmolejo, 89 F.3d 1185, 1197 (5th Cir. 1996)).

For forfeiture under § 853(a), “[t]he Government must establish the requisite

nexus between the property and the offense by a preponderance of the evidence.”

Id. (citing Fed. R. Crim. P. 32.2(b)(1); United States v. Gasanova, 332 F.3d 297,

300-01 (5th Cir. 2003)). The criminal forfeiture statute at issue in this appeal, 21 U.S.C. § 853, provides, in relevant part:

(a) Property subject to criminal forfeiture

Any person convicted of a violation of this subchapter or subchapter

II of this chapter punishable by imprisonment for more than one

year shall forfeit to the United States, irrespective of any provision

of State law-- . ..

(2) any of the person’s property used, or intended to be used,

in any manner or part, to commit, or to facilitate the

commission of, such violation . . . .

The district court held that “property subject to forfeiture under § 853(a) is defined by ‘the instruments and documents that created the defendant’s interest in the property,’” quoting from the Eighth Circuit’s decision in United States v. Bieri, 21 F.3d 819, 824 (8th Cir. 1994). Accordingly, the court held that all four tracts of Diaz’s property should be forfeited because they were all conveyed in the same deed.

The Government endorses this interpretation of “property” subject to seizure under § 853(a). In addition to Bieri, the Government also relies on decisions from the Sixth and Fourth Circuits that have adopted a similar interpretation of “property” subject to forfeiture under § 853(a). See United States v. Smith, 966 F.2d 1045, 1053 (6th Cir. 1992); United States v. Reynolds, 856 F.2d 675, 676-77 (4th Cir. 1988). Diaz contends that “property” under § 853(a) should be defined on a “case-by-case analysis” and relies on … United States v. 817 NE 29th Drive, Wilton Manors, Florida (Wilton Manors), 175 F.3d 1304, 1308 (11th Cir. 1999). Diaz argues that the Eleventh Circuit’s approach—which requires “examin[ation] [of] the character of the land on which the criminal activity took place . . . [in order to] determine whether all of the land sought by the Government can be considered to be of that same character,” id. at 1308—is a better vehicle for attaining just results, because a per se rule that decides forfeiture based on the

deed of conveyance is not only arbitrary, but is subject to manipulation by sophisticated drug dealers. Diaz argues that all four tracts should not be considered the same property under the Eleventh Circuit’s approach because “[w]hile the property remains largely undeveloped (with the only development occurring on the southern tracts, where Diaz had begun constructing his tire shop), the local land records distinguish among the four tracts in a way that would make it easy to forfeit two of the four tracts.” We need not decide whether to adopt the approach endorsed in Bieri and like cases, or the approach endorsed in Wilton Manors, because under either approach, all four tracts of Diaz’s property are subject to forfeiture ….

( United States Guzman-Villa, (5th Cir. March 2, 2012)(10-20858): “Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment of a known right.” United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). Whereas forfeited errors are reviewed for plain error, waived errors are unreviewable. Id. By stating at sentencing that she could not “argue against” the four-level enhancement, Guzman’s counsel may have waived this issue. See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006) (similar circumstance). In any event, the claim fails under plain-error review. For relief under that review, there must be, inter alia, a clear or obvious error. E.g., United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

( Forfeitures in Judgment of Conviction. Plea must comply with FRCP 32.2

and failure to do so is plain error unless specifically mentioned in the plea agreement. United States v. Mire, (5th Cir. August 3, 2015)(14-50248). Unavailing are Mire’s arguments that the waiver does not cover his restitution order because the order is not part of his sentence and because he is arguing that it is illegal. See United States v. Keele, 755 F.3d 752, 756-57 (5th Cir. 2014), cert. denied, 135 S. Ct. 1174 (2015). The waiver is valid and precludes consideration of Mire’s challenge to his restitution order. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).

Foreign Relations and Power of Executive Branch

( Youngstown Sheet and Tube.

Justice Jackson’s concurrence in Youngstown is a penetrating reflection on presidential power even if it has not been easy to operationalize as constitutional doctrine. Justice Jackson’s insights about the “practical advantages and grave dangers” of executive power were deeply informed, he implied in the first sentence of the opinion, by his service “as legal adviser to a President in time of transition and public anxiety.”  As President Roosevelt’s Attorney General in the run-up to World War II, Justice Jackson wrote opinions upholding broad assertions of presidential power.  At the Youngstown oral argument, Justice Jackson acknowledged that he “claimed everything” on behalf of the President while in the executive branch, and he noted that the “custom . . . did not leave the Department of Justice when [he] did.”

( Zivotofsky v. Clinton, 566 U.S. ___ (2012), is a Supreme Court of the United States decision in which the Court held that a dispute over the regulation of passports was not a political question and thus resolvable by the courts. Specifically, Zivotofsky's parents sought to have his passport read "Israel", rather than "Jerusalem", as his place of birth.

( Zivotofsky v. Kerry

| | | | | | | |

| | | | | | | |

Holding: Because the power to recognize foreign states resides in the president alone, Section 214(d) of the Foreign Relations Authorization Act of 2003 – which directs the Secretary of State, upon request, to designate “Israel” as the place of birth on the passport of a U.S. citizen who is born in Jerusalem – infringes on the executive’s consistent decision to withhold recognition with respect to Jerusalem.

Judgment: Affirmed, 6-3, in an opinion by Justice Kennedy on June 8, 2015. Justice Breyer filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgement in part and dissenting in part. Chief Justice Roberts filed a dissenting opinion, in which Justice Alito joined. Justice Scalia filed a dissenting opinion, in which Chief Justice Roberts, and Justice Alito joined

Symposium: Justice Thomas gets it right in Zivotofsky

Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law and Director of the International & Comparative Law Programs at the University of San Diego Law School.

In Zivotofsky v. Kerry, Justice Clarence Thomas’s partial concurrence/partial dissent argues that “[t]he President is not constitutionally compelled to implement [the statute relating to Jerusalem] as it applies to passports because passport regulation falls squarely within his residual foreign affairs powers and Zivotofsky has identified no source of congressional power to require the President to list Israel as the place of birth for a citizen born in Jerusalem on that citizen’s passport.” I think this is the right approach for three reasons.

First, Thomas’s approach takes the issues in the correct order. If Congress lacks an enumerated power to pass a statute, the president need not follow it, regardless of whether it infringes an exclusive presidential power. The majority skips straight to the exclusivity question, an approach that disregards the centrality to our constitutional structure of Congress’s limited powers.Second, as Justice Thomas argues, it’s hard to find any source for Congress’s power to adopt the provision in question. Congress has no textual power specifically over passports. Congress undoubtedly has some ability to regulate the form and issuance of passports, as necessary and proper to its enumerated powers over, for example, foreign commerce. But as Thomas shows, the provision at issue is not directed toward regulating foreign commerce or facilitating individuals’ participation in foreign commerce. It is instead quite transparently an attempt to take a position (or rather to force the executive to take a position) on the status of Jerusalem. The statute in which the disputed provision appears is titled “United States Policy with Respect to Jerusalem as the capital of Israel.” Congress’s view on the status of Jerusalem has no bearing on foreign travel for commercial purposes (nor upon any question of naturalization, the other power Zivotofsky invoked in support). That Congress can regulate passports for some purposes does not mean it can regulate passports for all purposes. As Thomas quotes McCulloch v. Maryland, the “end [must] be legitimate” – in the sense of furthering an enumerated power – and here it is not.

The majority assumes its way past this problem; Justice Antonin Scalia in dissent, though usually a careful examiner of Congress’s power, somewhat surprisingly finds power here on the basis of very broad emanations from the naturalization power.

Third, the majority’s central proposition – that the provision infringes the president’s exclusive recognition power – is itself quite dubious. The president has no textual recognition power. The president’s power is to receive ambassadors. That power in turn may fairly imply that the president has authority to decide which governments’ ambassadors to receive (and hence which to recognize as legitimate). And perhaps these powers are indeed exclusive. But as Chief Justice John Roberts says most powerfully in his dissent, the provision at issue here has nothing to do with recognizing a government. The question is not about Israel’s existence but about its boundary. The majority finds an exclusive presidential power only by sliding from receiving ambassadors to recognition of governments to recognition of boundaries. At this point we are no longer talking about a textual power, exclusive or otherwise.

Justice Thomas again has the right approach. The president’s power doesn’t come from the ambassador reception clause, because receiving ambassadors has nothing to do with boundary disputes. Instead, the power at issue is diplomatic communication: who is going to communicate to the world U.S. policy with respect to Israel’s boundary? Like many foreign affairs powers, this power isn’t spelled out in the Constitution, but it is (as Justice Thomas argues at length) best understood as part of the president’s executive power over foreign affairs, conveyed by the vesting clause of Article II, Section 1. (This article discusses the same topic.). The executive foreign affairs power isn’t exclusive in the sense that it could override an enumerated congressional power; it is residual, available to the president in the absence of enumerated congressional powers. Congress can act in ways that undermine it, so long as Congress acts within its enumerated powers. For example, Congress may, for purpose of a statute regulating imports, define products made in Jerusalem as products of Israel, even if the president declines to say that Jerusalem is part of Israel. But where Congress does not have an enumerated power (as it does not, in terms of communicating U.S. foreign policy, via passports or other diplomatic instruments), the president is the sole actor.

On this point Justice Scalia’s dissent captures the Constitution’s general design well. For the most part, U.S. foreign policy is a concurrent enterprise, with the president exercising executive powers and Congress exercising legislative powers – hopefully in coordination, but sometimes in conflict. As he puts it, “[t]he President will exercise his powers on the basis of his views, Congress its powers on the basis of its views.” But a check on Congress in this process is that Congress cannot go beyond its enumerated powers, and Scalia’s opinion gives short shrift to that check. Scalia links the Jerusalem passport provision to the naturalization power, solely on the basis that “[t]he birthplace specification promotes the document’s citizenship authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government’s citizenship records.” No one could plausibly believe that this is the reason Congress enacted the Jerusalem passport provision; as noted, the statute’s title expressly says otherwise.

Interestingly, Justice Thomas goes on to say that Congress’s allowing “Israel” to appear on Zivotofsky’s consular report of a U.S. citizen’s birth abroad, unlike on his passport, is within Congress’s power over naturalization. (The majority finds that Zivotofsky waived this argument; Thomas’s opinion is a dissent on this issue.). I am less persuaded by his view here. Like the passport provision, the provision on the consular report is expressly an attempt by Congress to declare the U.S. position on the status of Jerusalem. True, it is less intrusive on the president because (as Thomas says) the report is an internal U.S. document, not a communication to a foreign power. But I think this approach mistakes the question of the infringement on the president with the antecedent question of whether Congress has an enumerated power. As with passports, Congress assuredly has some power to regulate the consular reports (under the naturalization power, to distinguish between people who do not need to be naturalized to become citizens and people who do). But taking a position on Jerusalem’s status is no more necessary to proving birth abroad to U.S parents than it is to providing a passport for foreign travel.

As a final note, although I think the majority erred in thinking that the status of Jerusalem has anything to do with the president’s power to receive ambassadors, there are reasons to celebrate the majority opinion as well. The majority opinion is written narrowly, expressly emphasizing its limits in numerous places. By linking the case to the exclusivity of the reception clause (albeit unpersuasively) the majority avoids any sweeping statements about exclusive presidential power in foreign affairs. Indeed, it goes out of its way to reject the executive branch’s reliance on the infamousCurtiss-Wright opinion and its broad dicta favoring executive exclusivity in foreign affairs. (The Chief Justice also has some harsh words for Curtiss-Wright at pages 5-6 of his dissent.) The centerpiece of the majority’s reasoning is that Congress sought to compel the president to speak on a question of formal recognition. As the Court puts it, “Here, the subject is quite narrow. The Executive’s exclusive power extends no further than his formal recognition determination.” But the majority also notes that “[t]he Executive is not free from ordinary controls and checks of Congress merely because foreign affairs are at issue … It is not for the President alone to determine the whole content of the Nation’s foreign policy.”

Fraud by Access Device. See “Access Device Fraud.”

Fraud

( From United States v. Harris, __ F.3d __ (5th Cir. Feb. 9, 2010)(08-11121)

( Under the Sentencing Guidelines, the offense level for offenses involving fraud is increased based on the amount of loss inflicted by the defendant. See USSG § 2B1.1(b)(1). The higher the offense level is, the longer the defendant’s recommended sentence will be. The commentary to the Guidelines provides that “loss is the greater of actual loss or intended loss.” USSG § 2B1.1, comment n.3(A). “Actual loss” is the reasonably foreseeable pecuniary harm that resulted from the offense. Id. at n.3(A)(i).

“Intended loss” is “the pecuniary harm that was intended to result from the offense.” Id. at n.3(A)(ii). A special rule provides that, in cases involving an “unauthorized access device,” a term that includes credit cards, “loss includes any unauthorized charges made with the . . . unauthorized access device and shall not be less than $500 per access device.” Id. at n.3(F)(I). The district court “need only make a reasonable estimate of the loss” based upon the evidence. Id. at n.3(C). … Harris’s and Williams’s cases illustrate how it can sometimes be difficult to distinguish an application of the Sentencing Guidelines from a finding of fact. … Adding the credit limits of compromised cards together to estimate intended loss is a method of determining the amount of loss. Therefore, we hold that the district courts’ use of this method in the defendants’ cases must be reviewed de novo.

( The Method of Calculating Intended Loss. The method used by the district courts in this case was not to determine the defendants’ intended loss based on direct inferences from the facts, but rather to apply Sowels as a sort of bright-line rule that allowed them to factually estimate the defendants’ intended loss as being equal to the

aggregate credit limits of the stolen cards. We have affirmed methods of determining intended loss similar to the one used by the district courts numerous times in the past (citing cases). … However, an examination of our opinions reveals that it is only proper for sentencing courts to use these methods under certain factual circumstances. 1. The Rule of Wimbish In United States v. Wimbish, 980 F.2d 312, 315–16 (5th Cir. 1992), abrogated in part by Stinson v. United States, 113 S.Ct. 1913, 1918–19 (1993)(The opinion in Stinson v. United States did not abrogate Wimbish on grounds that are relevant to the issues presented by Harris’s and Williams’s cases), the defendant forged a series of stolen checks and deposited them, requesting cash back from each deposit. Wimbish, 980 F.2d at 313. At his sentencing, the district court calculated the amount of intended loss by adding together the face values of the checks he had forged. Id. The defendant objected to this method and appealed his sentence on the ground that he had known the deposits would be detected as forgeries and voided. Id. Thus, he argued, his intent was only to steal the amount of money that he had requested as cash back when he made the deposits. Id. He concluded that this meant the district court should have found that his intended loss was the same as the actual loss he had inflicted: the amount of money that he had requested as cash back from the fraudulent deposits. Id. We rejected this argument. Id. at 312. We held that the defendant’s “conscious,” “callous indifference” to this risk placed the face values of the stolen checks within the ambit of his intended loss. Id. at 316. Our subsequent cases have interpreted Wimbish as establishing that the full value of property recklessly jeopardized by a defendant’s crime may be considered part of his intended loss. 2. The Rule of Wimbish and Third-Party Transfers In United States v. Morrow, we examined one way in which property can be recklessly jeopardized by a defendant’s crime. 177 F.3d 272, 300–01 (5th Cir. 1999) (per curiam). 3. The Rule of Wimbish and Incomplete Offenses Thus, Sowels established first, that the rule of Wimbish can be applied to credit cards, and second, that a defendant cannot easily rebut a factual finding that his intended loss was equal to the full value of property jeopardized by his crime if his fraud was never completed due to the intervention of law enforcement. 4. The Requirement of Actual, Not Constructive, IntentWe did not prohibit sentencing courts from inferring intent from a defendant’s recklessness, for to do so would have been in direct conflict with Wimbish and its progeny. See, e.g., Tedder, 81 F.3d at 551. …

5. The Aggregate Limit of Stolen Credit Cards. Under the rule of Wimbish, a sentencing court may find that a defendant intended to inflict a loss of the face value of property that was recklessly jeopardized by his crime. Wimbish, 980 F.2d at 315–16. We have consistently held that one way a defendant may jeopardize property is by transferring it to a third party whom he does not control. Morrow, 177 F.3d at 300–01. We have also held that credit cards constitute a form of property that can be recklessly jeopardized in this way. Sowels, 998 F.2d at 251… Therefore, in cases where a defendant recklessly jeopardizes the full credit limit of a card by transferring it to a third party whom he does not control, the sentencing court may reasonably find that his intended loss was equal to the limit of that card.

( Under the rule of Wimbish, a sentencing court may infer intent to inflict a loss equal to the face value of property based on the fact that the defendant recklessly jeopardized that property during the commission of his crime. See Wimbish, 980 F.2d at 315–16. That a defendant recklessly jeopardized property that he obtained fraudulently may be reasonably supported by a finding that he transferred it to a third party whom he did not control. See Morrow, 177 F.3d at 301. We find that the record in Harris’s case supports a finding that she transferred confidential credit card information to third parties whom she did not control. Therefore, we hold that the district court did not clearly err in calculating her intended loss as being equal to the credit limits in the card she compromised.

( E. Conclusion as to the District Courts’ Method. As we discussed in detail above, neither Sowels nor Wimbish allows district courts to always automatically assess intended loss as being equal to the limits of stolen credit cards. Rather, the method used in each case was contingent upon a factual background wherein the defendant evidenced his intent to cause a certain amount of loss by recklessly jeopardizing property

worth that amount.

( From United States v. Scher, __ F.3d ___ (5th Cir. March 23, 2010)(08-20269).

Court dubious of method of calculation of loss but upheld PSR calculation because defense did not present sufficient counter-evidence.

Fraud--Medical Fraud or Health Care Fraud:

( Significant and Recent Dissent. United States v. Barson, _ F.3d __ (5th Cir. Dec. 28, 2016)(J. Jones, dissenting): Urged that it was error for trial court to consider over 400 Medicare beneficiaries to be “victims” under USSG 2B1.1 Application Note 4(E).

“Victim” is not defined in the loss section of the Guidelines, § 2B1.1, but Note 1 (here inapplicable) and Note 4 of the Commentary define the term. Note 4(E) provides in relevant part:

For purposes of subsection (b)(2), in a case involving means of identification “victim” means (i) any victim as defined in Application Note 1; or (ii) any individual whose means of identification was used unlawfully or without authority.

The government argues that since the use of the 429 alleged beneficiaries’ Medicare identification information was part of an unlawful conspiracy, the enhancement was proper. The defendants contend, however, that the beneficiaries were participants in the Clinic’s kickback scheme rather than victims, and that the 2009 iteration of the Sentencing Guidelines was not intended to treat these beneficiaries as victims. Guidelines Commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915 (1993). “Application notes are given controlling weight so long as they are not plainly erroneous or inconsistent with the guidelines.” United States v. Rodriguez-Parra, 581 F.3d 227, 229 n.3 (5th Cir. 2009) (citing United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002). In my view, the government’s reading of the Guidelines is plainly erroneous for two reasons. First, that interpretation is inconsistent with the plain meaning of the term “victim.” A victim is a “person who suffers from a destructive or injurious action or agency.”

Second, the majority’s interpretation is inconsistent with the purpose of the Guideline’s definition of victims. The Guidelines were updated as part of Amendment 726 to the Identity Theft Enforcement and Restitution Act of 2008. (3 The Sentencing Commission explained its reasoning for proposing the amendment that was adopted to create Application Note 4(E): to address more fully the actual harm done by identity theft. (3 U.S.S.G. App’x C, Vol. III, Am. 726, p. 308 4 Office of General Counsel, Victim Primer (§2B1.1(b)(2))I, U.S. Sentencing Commission (2013), at 6)

Several circuits’ interpretation of the pre-2009 Guidelines had broadened the definition of victims to those “individuals who suffered considerably more than a small out-of-pocket loss and were not immediately reimbursed by any third party,” even if they were later reimbursed. Other circuit precedent held that victims were only those who suffered pecuniary loss from identity theft but were not reimbursed at all. United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005). See also United States v. Stepanian, 570 F.3d 51 (1st Cir. 2009); United States v. Abiodun, 536 F.3d 162 (2d Cir. 2008); United States v. Panice, 598 F.3d 426 (7th Cir. 2010); United States v. Pham, 545 F.3d 712 (9th Cir. 2008).

( “A defendant need not have actually submitted the fraudulent documentation to [Medicare],” however, “in order to be guilty of health care fraud.” United States v. Imo, 739 F.3d 226, 235 (5th Cir. 2014).

( United States v. Khan, (5t Cir. March 9, 2016)(15-20293):

A complaint about the multiplicity of sentences may be raised for the first time on appeal. United States v. Njoku, 737 F.3d 55, 67 (5th Cir. 2013).. We review a defendant’s contention of multiplicitous sentences raised for the first time on appeal involving an issue of double jeopardy for plain error. Njoku, 737 F.3d at 67. We have held that a conspiracy to commit health care fraud in violation of § 1349 and a conspiracy to defraud the United States by taking kickbacks in violation of § 371 are two separate offenses for purposes of double jeopardy. See Njoku, 737 F.3d at 67-68; see also Jones, 733 F.3d at 584; United States v. Ngari, 559 F. App’x 259, 269-70 (5th Cir. 2014). This case is distinguishable from United States v. Ogba, 526 F.3d 214, 234-36 (5th Cir. 2008), in which we held that the imposition of sentences under both 42 U.S.C. § 1320a-7b(b)(2)(A) (illegal remunerations) and 18 U.S.C. § 1347 (healthcare fraud) were multiplicitous. Unlike Ogba, a jury could not have found a violation of § 1349 simply by finding that Khan violated § 371, or vice versa. See Ngari, 559 F. App’x at 270. Therefore, the district court did not err, plainly or otherwise, in sentencing Khan for conspiracies under both statutes because, as charged, each offense required proof of a fact that the other did not. See Njoku, 737 F.3d at 67-68; Jones, 733 F.3d at 584; Ngari, 559 F. App’x at 270.

( United States v. Alaniz, (5th Cir. May 27, 2014)(12-41410): Alaniz contends that the loss calculation of more than $200,000 was incorrect. We review for clear error. See United States v. Njoku, 737 F.3d 55, 75 76 (5th Cir. 2013). A loss calculation is not clearly erroneous if it is plausible in light of the record as a whole. United States v. Taylor, 582 F.3d 558, 564 (5th Cir. 2009). “The district court need only make a reasonable estimate of the loss.” Njoku, 737 F.3d at 75 (internal quotation marks and citation omitted). Although Alaniz argues about “actual loss,” the district court

properly based the sentence on the greater figure of intended loss. See U.S.S.G.

§ 2B1.1, comment. (n.3(A)); Njoku, 737 F.3d at 75. The amount fraudulently

billed was prima facie evidence of intended loss. United States v. Isiwele, 635

F.3d 196, 203 (5th Cir. 2011). But the district court made a conscientious

assessment of evidence and arguments before finding that the intended loss

was equal to only 80% of the billed amount. This finding is plausible and not

clearly erroneous. See Njoku, 737 F.3d at 75 76; Taylor, 582 F.3d at 564

( Bogus Car Wreck Insurance Fraud Can Be Prosecuted as Health Care Fraud.

United States v. Collins, __ F.3d ___ (5th Cir. Dec. 12, 2014)(2-10582):

Collins contends that the defrauded insurance companies here “provided

automobile insurance,” which “by definition” are not health care benefit programs. The Second Circuit, in United States v. Lucien, rejected as “without merit” a similar argument concerning the New York State no-fault automobile insurance program. 347 F.3d 45, 52 (2d Cir. 2003). Accord United States v. Gelin, 712 F.3d 612, 617 (1st Cir. 2013) (applying § 1347 to an automobile insurer). We have no reason to differ with sister circuits. To the extent automobile insurers pay for medical treatment, they are health care benefit programs under the statute. The fraudulent claims here included, among

others, claims for medical treatment at a chiropractor, and the insurance companies paid those claims.

( United States v. Essien, (5th Cir. May 5, 2013)(12-20094).

Rose contends that there was insufficient evidence to convict her.

The gravamen of her claim is that, because there is insufficient evidence that she

personally submitted the fraudulent bills, there is necessarily insufficient

evidence to sustain a conviction.

( Rose’s argument fails for at least two reasons. Mainly, the act of billing

is not an element of Medicaid fraud. Rose does not contest that Logic World

fraudulently billed Medicaid. The Government can use circumstantial evidence

to prove that a defendant’s knowing involvement in a scheme to defraud

Medicaid. See United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996) (citing

United States v. Keller, 14 F.3d 1051, 1056 (5th Cir. 1994) (stating that intent

can be inferred from facts and circumstances)).

( A defendant commits healthcare fraud when he knowingly and willfully

executes, or attempts to execute, a scheme or artifice (1) to defraud any health

care benefit program; or (2) to obtain, by means of false or fraudulent pretenses,

representations, or promises, any of the money or property owned by, or under

the custody or control of, any health care benefit program, in connection with the

delivery of or payment for health care benefits, items, or services. 18 U.S.C. §

1347(a); see also United States v. Hickman, 331 F.3d 439, 445 (5th Cir. 2003).

( Aggravated identity theft, 18 U.S.C. § 1028A, occurs when the defendant

(1) knowingly used (2) the “means of identification” of another person (3) without

lawful authority (4) during and in relation to a violation of wire fraud. United

States v. Stephens, 571 F.3d 401, 404–05 (5th Cir. 2009). Also, the defendant

must know “that the means of identification at issue belonged to another

person.” Flores–Figueroa v. United States, 556 U.S. 646, 657 (2009).

( Restitution for Acquitted Charges. Held not plain error and aff’d because D did not object.

( The law on the scope of restitution for fraudulent schemes is not entirely settled. There is some case law indicating that restitution orders for guilty pleas differ from those for jury verdicts. See United States v. Adams, 363 F.3d 363, 367 (5th Cir. 2004). Adams involved determining the scope of restitution where the defendant had pleaded guilty. The Adams court observed that where a jury verdict is available, the indictment largely determines the scope of the underlying scheme to defraud, citing three cases in support. Id. at 366. But the court also stated, without citation, that the jury verdict defines the scope of the fraudulent scheme. Id. at 367. Adams does not provide clear guidance on the scope of restitution with a jury verdict, likely because the issue was not before it. Because the defendant accepted a plea, the court did not have occasion to

fully evaluate the correct scope of restitution for a jury verdict—making its

comments on the topic dicta. Id. at 364.

A later Fifth Circuit case more clearly supports the restitution award in this case. United States v. Maturin, 488 F.3d 657, 661–62 (5th Cir. 2007). Maturin, although dealing with a guilty plea, noted that 18 U.S.C. § 3663A provides that when a defendant has been convicted of “any offense committed by fraud or deceit” the defendant shall “make restitution to the victim of the offense.” Id. at 660 (citing 18 U.S.C. § 3663A). Restitution shall be awarded to “any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A. “[A] defendant’s conviction on one count can support a broad restitution award encompassing additional losses only if the count of conviction requires proof of a scheme, conspiracy, or pattern of criminal activity as an element.” Maturin, 488 F.3d at 661–62. The district court here awarded restitution pursuant to 18 U.S.C. § 3663A, as did the district court in Maturin. An element of an offense of which Rose was convicted is “knowingly and willfully execut[ing] . . . a scheme or artifice . . . to defraud any health care benefit program.” 18 U.S.C. § 1347. Because a count of her conviction, health care fraud, requires proof of a scheme as an element,

her conviction can support a broad restitution award encompassing the

additional losses that were apart of the scheme as indicted. Thus, the district court likely did not err, and if it did, any error was certainly not “clear” or “obvious.”

( United States v. Read, __ F.3d ____(5th Cir. Mar. 14, 2013).(11-40643):

Restitution, amount of loss, billing, many arguments shot down.

( From United States v. Usman, __ F.3d ___ (5th Cir. Feb. 14, 2012)(10-11077):

( “We review de novo the district court’s method of determining loss, while

clear error review applies to the background factual findings that determine

whether or not a particular method is appropriate.” United States v. Isiwele, 635 F.3d 196, 202 (5th Cir. 2011) (citing United States v. Harris, 597 F.3d 242, 251 n.9 (5th Cir. 2010)).The commentary to § 2B1.1 indicates that for the purposes of that Guideline, “loss” is the “greater of the actual loss or intended loss.” To establish a particular amount of “intended loss,” the government must prove by a preponderance of evidence that the defendant had the subjective intent to cause that amount of loss. The commentary to § 2B1.1 explains that intended loss may “include[] intended

pecuniary harm that would have been impossible or unlikely to occur.”

( This court has held that the amount fraudulently billed to Medicare and Medicaid is “prima facie evidence of the amount of loss [the defendant] intended to cause,” but “the amount billed does not constitute conclusive evidence of intended loss; the parties may introduce additional evidence to suggest that the amount billed either exaggerates or understates the billing party’s intent.” Isiwele, 635 F.3d at 20.

( United States v. Njoku, __ F.3d ____ (5th Cir. Dec. 2, 2013)(12-20095):

Conspiracy to Commit Health Care Fraud. A conspiracy to commit health care fraud under 18 U.S.C. § 1347 requires that the fraud be the object of the conspiracy. 18 U.S.C. § 1349. The conspirators must “knowingly and willfully” execute a scheme “to defraud any healthcare benefit program” or “to obtain, [through false pretenses] any of the money or property owned by . . . any health care benefit program.” 18 U.S.C. § 1347. Conviction requires proof “that (1) two or more persons made an agreement to commit health care fraud; (2) that the defendant knew the

unlawful purpose of the agreement; and (3) that the defendant joined in the

agreement willfully, that is, with the intent to further the unlawful purpose.”

Grant, 683 F.3d 639, 643 (5th Cir. 2012). Circumstantial evidence can prove knowledge and participation. Id.

( Conspiracy to Receive or Pay Health Care Kickbacks. It is unlawful to conspire with another to commit an offense against the United States and do an act to effect the conspiracy’s object. 18 U.S.C. § 371. The substantive offenses in this case were the knowing and willful receipt of a remuneration, namely, a kickback, in return for referring a patient for home healthcare, or payment of such remuneration in order to induce someone to make such a reference. See 42 U.S.C. § 1320a-7b(b). A conviction of conspiracy under Section 371 requires the Government to prove:

(1) an agreement between two or more persons to pursue an unlawful objective;

(2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and

(3) an overt act by one or more of the members of the conspiracy in furtherance of the objective of the conspiracy. United States v. Mauskar, 557 F.3d 219, 229 (5th Cir. 2009).

“The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense.” United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001). Thus, in addition to proving an intent to further the unlawful objective, there must also be proof that the defendant acted willfully, that is, “with the specific intent to do something the law forbids.” United States v. Garcia, 762 F.2d 1222, 1224 (5th Cir. 1985); see also United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998).

( Restitution from Known Forfeitable Assets. Ayika v. United States, __ F.3d __ (5th Cir. Sept. 14, 2016)(15-50122): Criminal forfeiture is “an aspect of punishment imposed following conviction of a substantive criminal offense,” Libretti v. United States, 516 U.S. 29, 39 (1995), and thus an “aspect of sentencing,” id. at 49. Accordingly, we review the district court’s findings of fact pertaining to a forfeiture order “under the clearly erroneous standard,” and “the question of whether those facts constitute legally proper forfeiture de novo.” United States v. Juluke, 426 F.3d 323, 326 (5th Cir. 2005). Because the Government seeks forfeiture of specific property, we “must determine whether the government has established the requisite nexus between th[at] property and the [charged] offense” under the applicable statute. See FED. R. CRIM. P. 32.2(b)(1)(A). And, “statutorily-prescribed forfeiture is warranted upon a showing of a preponderance of the evidence.” United States v. Gasanova, 332 F.3d 297, 301 (5th Cir. 2003). Here, both parties agree that the applicable statute and standard for establishing this nexus is provided by 18 U.S.C. § 982(a)(7): “The court, in imposing sentence on a person convicted of a Federal healthcare offense, shall order the person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense.” 18 U.S.C. § 982(a)(7) (emphasis added).

Under § 982(a)(7), the Government has the burden to show that the funds remaining in the Chase account were: 1) funds directly or indirectly derived from gross proceeds of his fraud; and 2) that the funds were traceable to the healthcare offense. See 18 U.S.C. § 982 (a)(7). Retracing our earlier steps, Ayika was convicted under Count One of the indictment, which alleged that Ayika executed a scheme to defraud healthcare benefit programs. Here, Ayika was convicted for submitting fraudulent claims to Medicaid, the Federal Employee Health Benefits Program (whose claims are processed by CVS/Caremark), Aetna, Humana, Medco, and Restat (the “six insurers”), claims for prescriptions never filled by his pharmacy, Continental. Thus, the Government must show that it is more likely than not that these remaining funds are proceeds of Ayika’s fraud, and that they can be traced specifically to the fraud Ayika committed against these victim insurers. We turn to the Government’s showing discussed above. Of the approximately $7,400,000 that was deposited in the Chase account over the life of the healthcare-fraud scheme,16 however, the Government has shown that only $2,482,901.93 of the deposits into the Chase account represent gross proceeds of the healthcare fraud against the six insurers ….

We must go a step further and address whether any part of the $200,000 remaining in the Chase account can be “traced,” for the purposes of § 982(a)(7), to Ayika’s crime of conviction. The few courts that have fully addressed this inquiry have noted its difficulty, if not impossibility. Neither we, nor any other circuit court, has adopted a particular standard for this specific inquiry under § 982(a)(7). But, other circuits have addressed traceability requirements in other statutes and other contexts.

In summary, we hold that the Government has failed to prove that it is, more likely than not, that the funds remaining in that account are traceable to Ayika’s healthcare fraud against the six insurers. Accordingly, the district court erred in determining that the funds remaining in the Chase account were forfeitable under § 982(a)(7). 4. But, our analysis does not end here. Instead, we turn to another statutory provision asserted in the pleadings and orders below, but not briefed in this appeal: 21 U.S.C. § 853(p) (the “substitute asset provision”)1 In relevant part, § 853(p) allows for the forfeiture of any property of the defendant, up to the value of property that is otherwise forfeitable, if, “as a result of any act or omission of the defendant,” the underlying forfeitable property “has been commingled with other property which cannot be divided without difficulty.”22 21 U.S.C. § 853(p); see United States v. Floyd, 992 F.2d 498, 501 (5th Cir. 1993).

…The Government cannot, consistent with the statutes, treat § 982(a)(7) and § 853(p) as interchangeable. Put differently, § 853(p) is supplementary in the sense that the Government must first demonstrate that, through some act of the defendant, the asset represents commingled property so that it cannot be traced under § 982(a)(7) before it may proceed under the substitute asset provision of § 853(p). See id. at 1086 (“Clearly, if funds commingled in a bank account are sufficiently identifiable as to be considered ‘traceable to’ money laundering activity, then the substitute asset provision should have no applicability

( False Statements for Use in Determining Rights. It is unlawful to “knowingly and willfully make[] . . . any false statement or representation of a material fact for use in determining rights to [any benefit or payment under a Federal health care program].” 42 U.S.C. § 1320a-7b(a)(2). The jury charge instructed that a false statement is material if it has a natural tendency to influence or is capable of influencing the recipient.

( Restitution and Medical Fraud. United States v. St. Junia, __ F.3d __ (5th Cir. Dec. 18, 2013)(11-20805): At sentencing, the Government requested that the district court impose the payment of restitution as a term of Spicer’s supervised release. The district court agreed and imposed restitution in the amount of $794.434.08. The

restitution amount was derived from a calculation of the total amount

Medicare/Medicaid paid TMS based on Spicer’s referrals; a figure that grossly

exceeded the amount Medicare/Medicaid paid with respect to the crimes for

which Spicer was convicted. Because Spicer failed to object to the restitution

order in this case, we review this claim for plain error. See United States v.

Howard, 220 F.3d 645, 657 (5th Cir. 2000).

“The general rule is that a district court can award restitution to victims

of the offense, but the restitution award can encompass only those losses that

resulted directly from the offense for which the defendant was convicted.”

United States v. Maturin 488 F.3d 657, 660–61 (5th Cir. 2007) (citing Hughey v.

United States, 495 U.S. 411, 413 (1990)). Here, the Government concedes that

the district court’s restitution orders exceed the losses derived from the conduct

for which Spicer and Ramos were convicted. Accordingly, we VACATE the

restitution orders with respect to Spicer and Ramos and REMAND for resentencing. If the district court imposes restitution, it should be limited to the

losses suffered as a result of the crimes for which Spicer and Ramos were

convicted.

( Mass-Marketing Enhancement. The district court’s factual findings with regard to the massmarketing enhancement is reviewed for clear error and the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Mauskar, 557 F.3d 219, 232 (5th Cir. 2009). The commentary to § 2B1.1(b)(2) explains that for the purposes of the subsection, “‘mass-marketing’ means a plan, program, promotion, or campaign that is conducted through solicitation by telephone, mail, the Internet, or other

means to induce a large number of persons to (i) purchase goods or services . . . .” We have emphasized that “th[is] definition of ‘mass-marketing’ is not limited to the listed mediums-it explicitly contemplates ‘other means’ of mass-marketing.” United States v. Magnuson, 307 F.3d 333, 335 (5th Cir. 2002) (per curiam). For example, “face-to-face marketing intended to reach a large number of persons for the purpose of facilitating health care fraud can constitute mass-marketing.” Mauskar, 557 F.3d at 233 For purposes of the enhancement, the mass-marketing need not be directed at victims of the fraud. Isiwele, 635 F.3d at 204-05. In addition, the enhancement may be applied even where the defendant did not actively participate in the mass-marketing activities. Mauskar, 557 F.3d at 233

( Position of Trust Enhancement. Usman next challenges the district court’s application of an enhancement based on Usman’s abuse of a position of trust with Medicare and Medicaid, arguing that as the owner of an ambulance service provider, he was not in a trust relationship with Medicare and Medicaid. As Usman acknowledges, that argument is barred by circuit precedent. See United States v. Miller, 607 F.3d 144, 150 (5th Cir. 2010).

( United States v. Brown, __ F.3d ___ (5th Cir. Sept. 13, 2017)(16-30933):

( Federal law forbids commission payments for referrals, as they greatly increase the incentive for fraud (that is, for recruiting patients who do not need the equipment). See 42 U.S.C. § 1320a-7b(b)(1)(A).

( Red flags for medicare fraud. In fall of 2007, Brown hired a consultant to show her the “right way” to bill Medicare. The consultant identified a number of the fraud indicators identified above and then some:

• Psalms did not have a physical therapist, which Medicare requires to ensure that the orthotics fit the beneficiary.

• Psalms did not collect copays from beneficiaries, something Medicare requires and that helps ensure that the equipment is needed.

• Psalms repeatedly ordered bilateral braces—one for each side of the body—meaning the patient was immobilized, which did not “make any sense” to the consultant.

• Medicare did not pay for full series of orthotics (knee brace, arm brace, back brace, and heating pad) that Psalms was billing as “arthritis kits.”

• Psalms never billed for manual wheelchairs, instead selling only the more expensive power wheelchairs.

• At least one marketer (that the consultant was aware of) was being paid on commission instead of a set salary.

• That using two doctors as the same source for just two types of equipment was “a flag,” and it was also unusual for the referral from the doctor to be on the Psalms letterhead instead of the doctor’s prescription pad.

( Deliberate Ignorance Instruction to Jurors. A deliberate ignorance instruction informs the jury that “it may consider evidence of the defendant’s charade of ignorance as circumstantial proof of guilty knowledge.” United States v. Nguyen, 493 F.3d 613, 618 (5th Cir. 2007). Such an instruction may be given even for conspiracy charges. See id.; United States v. Barrera, 444 Fed. App’x 16, 22 (5th Cir. 2011); see also United States v. Alston-Graves, 435 F.3d 331, 337–42 (D.C. Cir. 2006) (reviewing and questioning the application of the deliberate ignorance instruction to conspiracy cases). The instruction is proper “when the evidence shows that: (1) the defendant was subjectively aware of high probability of the existence of illegal conduct, and (2) the defendant purposely contrived to avoid learning of the illegal conduct.” United States v. Miller, 588 F.3d 897, 906 (5th Cir. 2009). We have repeatedly cautioned that the instruction “should rarely be given,” United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 2015), but this is the paradigmatic case. The thrust, if not the entirety of Brown’s defense, was that even if Psalms was engaged in a massive scheme to defraud Medicare, she was not aware of her underlings’ crime. But ample evidence showed that as an owner and involved operator of the company, Brown was subjectively aware of a high probability of fraudulent billing. She was paying commissions to the marketers, which is not just a separate crime but probative that she knew about the fraudulent claims. She was not asking beneficiaries for copays. She pushed marketers to only find patients who needed expensive equipment. Brown also knew her marketers were filling out prescriptions and progress reports, even though they should have been completed by a physician. And the company she owned was also making exorbitant profits due to the upcoding we have discussed. See United States v. Willett, 751 F.3d 335, 341–42 (5th Cir. 2014) (noting that high profit margins can be circumstantial evidence of fraud (citing United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007))). But what really sinks Brown’s objection to the instruction is the consultant’s visit in 2007. At that meeting, the consultant pointed out a number of these problems with the business: Psalms repeatedly waived copays, billed the same pieces of equipment for many of its patients; billed multiple pieces of equipment to a single patient that could not use all the equipment; and failed to follow the requirement that a therapist fit certain equipment for its patients. Brown was further told that she would be held responsible for Psalms’s practices if Medicare came calling. Despite these warnings, she allowed the recruiters, doctors, and employees who handled billing—the people she is now saying are responsible for the fraud rather than her—to continue operating as usual while she tried to remain above the details of the criminal conduct. A deliberate ignorance instruction is intended for this situation in which Brown knew it was highly likely that something illegal was afoot, but tried looking the other way while reaping the benefits of the likely criminal activity. See United States v. Barson, 845 F.3d 159, 166 (5th Cir. 2016) (affirming deliberate ignorance instruction when, in part, the defendant relied on his own lack of knowledge of Medicare forms to argue that he suspected no wrongdoing); see also United States v. Delgado, 668 F.3d 219, 227–28 (5th Cir. 2012). The trial court thus did not abuse its discretion in giving the instruction.

( United States v. Whitfield, (5th Cir. Aug. 9, 2012)(11-10296):

To prove health care fraud, the Government had to show that (1) Whitfield knowingly and willfully executed, or attempted to execute, a scheme or artifice (a) to defraud any health care benefit program or (b) to obtain by false or fraudulent pretenses, representations, or promises any money or property owned by or under the custody or control of a health care benefit program; and (2) the scheme or artifice was in connection with the delivery of or payment for health care benefits, items, or services. 18 U.S.C. § 1347(a). United States v. Arthur, 432 Fed.Appx. 414, 418 (5th Cir. 2011); United States v. Hickman, 331 F.3d 439, 445 (5th Cir. 2003). The Government can establish an intent to defraud by direct or circumstantial evidence. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996) (conspiracy to commit wire fraud); United States v. Garcia, 432 Fed.Appx. 318, 322 (5th Cir. 2011). A defendant need not have actual knowledge of the health care fraud statute or specific intent to commit a violation of it. § 1347(b). … To prove a conspiracy to commit health care fraud, the government had to show that (1) two or more persons made an agreement to commit health care fraud; (2) that Whitfield knew the unlawful purpose of the agreement; and (3) that Whitfield joined in the agreement willfully, that is, with the intent to further the unlawful purpose. 18 U.S.C. §§ 1347, 1349; United States v. Delgado, 668 F.3d 219, 226 (5th Cir. 2012). The agreement between conspirators may be silent and need not be formal or spoken. United States v. Williams-Hendricks, 805 F.2d 496, 502 (5th Cir. 1986). “An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009); see also Grant, 2012 WL 2054936, at *2.

( United States v. Delgado, __ F.3d __ (5th Cir. Jan. 19, 2012)(10-50726): To prove conspiracy to commit healthcare fraud, violating 18 U.S.C. § 1349, the government must establish the existence of an agreement between two or more people to pursue the offense of fraud; the defendant knew of the agreement; and the defendant voluntarily participated in the conspiracy. See United States v. Montgomery, 210 F.3d 446, 449 (5th Cir.2000). “Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence.” United States v. Garza-Robles, 627 F.3d 161, 168 (5th Cir. 2011) (quoting United States v. Mitchell, 484 F.3d 762, 768-69 (5th Cir.2007)). Delgado argues that there is insufficient evidence to convict her under each of these elements. Her strongest argument is that the three participants did not intend to run Synergy in violation of the law because Rael thought he could legitimately conduct therapy sessions. She contends they did not learn otherwise until they were confronted by investigators. Despite this claim, there is sufficient evidence for a rational jury to conclude that Delgado and Rael agreed to fraudulently bill Medicaid and Medicare. First, regardless of their allegedly benign motives for forming Synergy, the program soon began billing substantial amounts of money to Medicare and Medicaid for activities that obviously fell short of reimbursable group psychotherapy. Second, Delgado negotiated a generous cut of the profits for herself considering her allegedly limited duties. Third, she knew the applicable regulations and had to work hard to find a way to get around the billing system in order to bill up to six sessions per day per patient. As a result, she billed Medicaid and Medicare over a million dollars for ineligible “therapy” and received over $130,000 per year while the scheme existed.

* * * * *

Admission of Medicaid and Medicare Newsletters and Manuals. Delgado argues that the admission of Medicaid and Medicare newsletters, manuals, and other reference materials was harmful error because the publications were irrelevant to her state of mind and posed the risk of turning regulatory violations into a criminal offense in the minds of the jury. This court reviews evidentiary decisions by the trial court for abuse of discretion. United States v. Hicks, 389 F.3d 514, 522 (5th Cir. 2004). “Even where the district court erroneously admitted prejudicial evidence, the defendant’s conviction will not be reversed if the error was harmless.” Id. The government points to Eleventh Circuit case law where healthcare manuals were found to be relevant. In United States v. Gold, 743 F.2d 800, 815 (11th Cir. 1984), the Eleventh Circuit stated:

Under FED. R. EVID. 401 and 402, the basic test governing admissibility is

that evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

By this standard, there can be little question that the provisions of the Carrier's

Manual were admissible. In the instant case, the government had to prove that Synergy’s billing practices. … newsletters discovered in her office with were unauthorized by regulation. The manuals and newsletters were relevant to that determination. The government also established that newsletters were mailed to Delgado by introducing newsletters discovered in her office with mailing labels still attached. … Delgado’s promotional brochure boasted that she kept up with the frequent updates in government regulations. Because Delgado had access to the regulatory publications and had read at least some of them, the material was also relevant because it increased the probability that Delgado knew her billing practices were illegal.

( Health Care Fraud Statute is Constitutional. 18 U.S.C. § 1347 (2006) is constitutional. Court did not decide if “Medical Necessity” was vague and defendant said that he understood the term. Case involves angioplasties with 30% blockage or less where Dr. Patel agreed there should be medical treatment, not angioplasty. Note # 2: The Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 2 §10606(b)(2), 124 Stat. 119, modified the health care fraud statute. The statutory language “knowingly and willfully” remained, and the Act added a provision that “a person need not have actual knowledge of this section or specific intent to commit a violation of this section.” 18 U.S.C. § 1347(b). United States v. Patel, (5th Cir. Aug. 13, 2012)(09-30490).

( Elements. Patel, Id.: To prove health care fraud under Section 1347, the government must establish a scheme or artifice (1) to defraud a health care benefit program, or (2) “to obtain by means of false or fraudulent pretenses, representations or promises” money from such a program, conducted (3) “knowingly and willfully,”

that is, with a specific intent to defraud. 18 U.S.C. § 1347; United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011). Intent to defraud is typically proven with circumstantial evidence and inferences. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir. 1996)

( Anti-Kickback Provisions in Health Care Fraud. United States v. Robinson,

(5th Cir. Jan. 7, 2013)(11-20645): The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(2), “criminalizes the payment of any funds or benefits designed to encourage an individual to refer another party to a Medicare provider for services to be paid for by the Medicare program.” United States v. Miles, 360 F.3d 472, 479 (5th Cir. 2004). Under the safe-harbor provision, the statute’s criminal prohibition does not apply to “any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services.” § 1320a-7b(b)(3)(B). Although Robinson contends that the provision’s definition of “employee” is vague, the safe-harbor provision relies on 26 U.S.C. § 3121(d)(2) for the definition that an employee is “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee.” 42 C.F.R. § 1001.952(I). When a federal statute such as this one refers to the common law definition of employee, the statute incorporates the “general common law of agency.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). The hiring party’s “right to control the manner and means” of the work performed is important to determining whether there is employee status. Id. Relevant factors include the method of payment, “whether the work is part of the regular business of the hiring party,” and the hiring party’s control over work hours. Id. at 323-24. No one factor is determinative; “all of the incidents of the relationship must be assessed and weighed.” Id. at 324. (Note 1: Another panel of this court interpreted the statutory language in the same manner. See United States v. Job, 387 F. App’x 445, 455 (5th Cir. 2010) (unpublished).)

The Anti-Kickback Statute provided Robinson with fair notice that the paying of fees and commissions to Jones and Chavis for Medicare referrals was prohibited conduct and, thus, the statute was not unconstitutionally vague as applied in this case. The evidence presented does not support Robinson’s affirmative defense that Jones and Chavis were bona fide employees such that the safe-harbor provision applied to exempt his conduct. ….Evidence reflects that both Jones and Chavis were paid either a fee or a commission for each referral of a Medicare beneficiary that they provided to MMS. They did not receive regular paychecks; payments were made for referrals only. There was no evidence that Robinson provided any training or direction to either Jones or Chavis about marketing, nor was there any evidence that either Jones or Chavis ever received any payments from MMS to advertise or market MMS’s products. Moreover, the Medicare referrals were obtained from leads and sources that were not provided by MMS: Jones used her employer’s database to obtain referrals, and Chavis relied on her own personal and professional contacts to obtain referrals. There is no evidence that Robinson required Jones or Chavis to keep regular office hours. Indeed, they did not have offices at MMS. Thus, Robinson did not have sufficient control over the manner

and means of the work performed by Jones and Chavis to characterize this as a bona fide employment relationship. In light of this and the other evidence presented at trial, we cannot conclude that the district court’s denial of Robinson’s motion was erroneous ….

( United States v. Imo, __ F.3d ___ (5th Cir. Jan. 7, 2014)(11-20791):

Conspiracy to Commit Health Care Fraud

To establish a conspiracy to commit healthcare fraud, the government must prove: “the existence of an agreement between two or more people to pursue the offense of fraud; the defendant knew of the agreement; and the defendant voluntarily participated in the conspiracy.” United States v. Delgado, 668 F.3d 219, 226 (5th Cir. 2012) (citations omitted). The conspirators may have a silent and informal agreement. Grant, 683 F.3d at 643. Indeed, the “voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” Id. (internal quotation marks and citation omitted). A defendant need not have actually submitted the fraudulent documentation to Conspiracy to Commit Health Care Fraud To establish a conspiracy to commit healthcare fraud, the government must prove: “the existence of an agreement between two or more people to pursue the offense of fraud; the defendant knew of the agreement; and the defendant voluntarily participated in the conspiracy.” United States v. Delgado, 668 F.3d 219, 226 (5th Cir. 2012) (citations omitted). The conspirators may have a silent and informal agreement. Grant, 683 F.3d 39, 643 (5th Cir. 2012). Indeed, the “voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” Id. (internal quotation marks and citation omitted). A defendant need not have actually submitted the fraudulent documentation to defendant must have known that “the scheme involved false representations.” Id. (internal quotation marks and citation omitted). “The first element includes a defendant’s scheme or artifice . . . for obtaining money or property by means of false or fraudulent pretenses, representations, or promises. . . .” United States v. Ratcliff, 488 F.3d 639, 644 (5th Cir. 2007). Moreover, a defendant violates § 1341 each time the mail is used in the scheme. United States v. Akpan, 407 F.3d 360, 370 (5th Cir. 2005). A defendant “acts with the intent to defraud when he acts knowingly with the specific intent to deceive for the purpose of causing pecuniary loss to another or bringing about some financial gain to himself.” Id. We have held that the second element is satisfied when “one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen.” United States v. Ingles, 445 F.3d 830, 835 (5th Cir. 2006); see also Read, 710 F.3d at 227 (holding that the second element was satisfied when Medicare mailed the defendant checks for the fraudulent claims the defendant billed). In Akpan, we explained that the Government does not have to prove that a defendant actually used the mail or even “intended that the mails be used.” 407 F.3d at 370. Instead, the

Government has to establish “that the scheme depended for its success in some way upon the information and documents which passed through the mail.” Id.

( Conspiracy to Commit Health Care Fraud. United States v. St. John,

(5th Cir. Sept.9, 2015)(14-10406):

--Conspiracy to commit healthcare fraud consists of three elements: “(1) two or more persons made an agreement to commit health care fraud; (2) . . . the defendant knew the unlawful purpose of the agreement; and (3) . . . the defendant joined in the agreement willfully, that is, with the intent to further the unlawful purpose.” United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012).

--St. John argues that his involvement in A Medical’s scheme does not satisfy conspiracy’s plurality requirement because the intracorporate conspiracy doctrine provides “that the acts of the agent are the acts of the corporation” and that a “corporation cannot conspire with itself.” Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994) (quoting Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)). He maintains that his conviction for conspiring with his co-workers, Dale St. John and Dr. Padron, violates this precept. While our court has applied the intracorporate conspiracy doctrine in antitrust and civil rights cases, we have not expanded its application to the criminal context. We decline to do so here. As we have previously observed: The original purposes of the rule attributing agents’ acts to a corporation were to enable corporations to act, permitting the pooling of resources to achieve social benefits and, in the case of tortious acts, to require a corporation to bear the costs of its business enterprise. But extension of the rule to preclude the possibility of intracorporate [criminal] conspiracy does not serve either of these goals. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 603 (Former 5th Cir. Nov. 1981). We went on to state that “a corporation can be convicted of criminal charges of conspiracy based solely on conspiracy with its own employees” because “the action by an incorporated collection of individuals creates the ‘group danger’ at which conspiracy liability is aimed.” Id.; see also United States v. Wise, 370 U.S. 405, 417 (1962) (Harlan, J., concurring) (“[T]he fiction of corporate entity, operative to protect officers from contract liability, had never been applied as a shield against criminal prosecutions . . . .”). Jeffrey St. John gives us no reason or basis to depart from this precept. Thus, we decline to extend the doctrine to criminal cases.

(Fraud—Medical and change in USSG amendments when the fraud is conspiracy before and after change in the USSG. See United States v. Shakbazan, __ F.3d __ (5th Cir. Oct. 26, 2016)(15-20416), which is posted in US Sentencing Guidelines, More Ex Post Facto on Amendment of USSG.

( Red Flags in Medical Fraud. From United States v. Dailey, __ F.3d __ (5th Cir. Aug. 17, 2017)(16-20517).

( She (RN expert witness) also noted that there was a significant number of referrals from one physician—Dailey. Indeed, his referrals made up almost twenty-four percent of Candid’s billing. She testified that this large number of referrals from one physician is “cause for question.” Moreover, Garcia noted that many of the patients that Dailey referred were hours away from the location of Candid and Dailey’s practice, which cast doubt on whether the patient was actually being seen.

( Several of the patients for whom Dailey signed Form 485s also testified to the effect that they did not require home health care and had no knowledge of Dailey. Some of the patients’ primary care physicians also testified that their patients did not require home health care or that they had not prescribed home health care to these patients.

( No Face-to-Face Contact. Even assuming that Dailey’s understanding of the pre-2011 requirements were correct, there is no Ex Post Facto violation. Dailey was not indicted for failing to have face-to-face meetings with his alleged patients prior to certifying them for home health care. Rather, the conduct underlying his indictment was that he lied on certification forms in exchange for $400 a month. This conduct is illegal regardless of whether he was required to have a face-to-face meeting prior to certification. There is thus no Ex Post Facto violation.

--The face-to-face requirement was added as part of the Patient Protection and Affordable Care Act. Compare 42 U.S.C. § 1395f(a)(2)(C) (2010), with 42 U.S.C. § 1395f(a)(2)(C) (2011); see also Nat’l Ass’n for Home Care & Hospice, Inc. v. Burwell, 142 F. Supp. 3d 119, 122 (D.D.C. 2015) (“Whereas previously, physicians needed only to certify that a patient required home-health services, the new law requires them also to ‘document’ that they have had a ‘face-to-face encounter’ with the patient within a reasonable timeframe.”).

Franks v. Delaware, 438 U.S. 154 (1978) Errors in Search Affidavit

( Appellant was required to make a “substantial preliminary showing” that:

(1) the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in the warrant affidavit and (2) the remaining portion of the affidavit is insufficient to support a finding of probable cause. See Franks, 438 U.S. at 170-72. “The deliberate falsity or reckless disregard whose impeachment is permitted . . . is only that of the affiant, not of any nongovernmental informant.” Id. at 171. “[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” Id. at 171-72.

We have applied Franks to situations involving alleged omissions in a supporting affidavit. See United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995). “Unless the defendant makes a strong preliminary showing that the affiant excluded critical information from the affidavit with the intent to mislead the magistrate, the Fourth Amendment provides no basis for a subsequent attack on the affidavit’s integrity.” Id. We review the denial of a Franks hearing de novo. United States v. Brown, 298 F.3d 392, 396 (5th Cir. 2002).

( Franks Error Shown—Remanded to see if Willful. San Antonio Police Drug Case. United States v. Ortega, __ F.3d ___ (5th Cir. April 25, 2017).

(15-50301).

Frivolous Appeal

( If legal points are not arguable on their merits, an appeal is frivolous. See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983).

Frivolous Litigation by Inmate

Claims based solely on one’s own conclusory allegations are frivolous. See Babb v. Dorman, 33 F.3d 472, 476 (5th Cir. 1994). Appellant must show that he will raise a

nonfrivolous appellate claim. See Baugh, 117 F.3d at 202; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Consequently, his motion to proceed IFP on appeal is denied, and this appeal is dismissed as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24. The dismissal of this appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g), as does the district court’s dismissal of Edmonson’s suit as frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).\

Fugitive Disentitlement Doctrine.

United States v. Juarez, __ F.3d __ (5th Cir. Oct. 3, 2016)(16-40298):

The Government moved, against Claimants’ opposition, to dismiss the claims to the aircraft in a forfeiture action under the Fugitive Disentitlement statute, 28 U.S.C. § 2466, which prevents a claimant who is a fugitive from justice from contesting the civil forfeiture. The district court dismissed the claims under § 2466 and denied Claimants’ motion to stay the civil proceedings. We affirm. I. The “fugitive disentitlement doctrine,” dating back to the late 19th century, authorized “an appellate court to dismiss an appeal or writ in a criminal matter when the party seeking relief becomes a fugitive.” United States v. Degen, 517 U.S. 820, 823, 116 S. Ct. 1777, 1780 (1996) (Citing Ortega– Rodriguez v. United States, 507 U.S. 234, 239, 113 S. Ct. 1199, 1203, (1993); and Smith v. United States, 94 U.S. 97, 24 (1876). An issue existed as to whether this disentitlement applied to civil forfeiture cases until Congress resolved the issue by enacting 28 U.S.C. § 2466, which provides that:

(a) A judicial officer may disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action upon a finding that such person-- (1) after notice or knowledge of the fact that a warrant or process has been issued for his apprehension, in order to avoid criminal prosecution—

(A) purposely leaves the jurisdiction of the United States;

(B) declines to enter or reenter the United States to submit to its jurisdiction; or

(C) otherwise evades the jurisdiction of the court in which a criminal case is pending against the person; and 1 Zarate ultimately withdrew his individual claim after the district court ordered him to personally appear for deposition.

(2) is not confined or held in custody in any other jurisdiction for commission of criminal conduct in that jurisdiction. (b) Subsection (a) may be applied to a claim filed by a corporation if any majority shareholder, or individual filing the claim on behalf of the corporation is a person to whom subsection (a) applies. 28 U.S.C. § 2466. Our issue is whether the Government proved that Zarate declined to enter/reenter the United States to submit to its jurisdiction, or otherwise evaded the criminal court’s jurisdiction.

The Government demonstrates the court’s findings in United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1057 (9th Cir. 2013) to be consistent with the instant case in finding that a totality of the circumstances showed that Zarate deliberately remained away from the United States to avoid criminal prosecution. We agree. Zarate had previously visited the United States approximately 100 times in less than three years prior to the seizure of the aircraft. The record also established that Zarate has family residing in this country, as well as significant business interests here.

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