Federal Standards of Review in Criminal Cases
MFR--Fifth Circuit Case Criminal Law in CY 2008 through 2017: “A”
Compiled by Attorney John M. Economidy of San Antonio
Covers: ( Substantive Law; ( Standards of Review on Appeal
( 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.
Administrative Subpoena Against Dr. under Controlled Substances Act
( United States v. Zadeh, __ F.3d __ (5th Cir. April 21, 2015)(15-10195).
DEA and TX Medical Board served administrative subpoena on doctor. He refused to comply. DEA petitioned District Court under 21 U.S.C. § 876(c) for enforcement. Dr. Z
asserted lack of probable cause. US Magistrate held hearing and filed recommendations for enforcement. District Ct ordered enforcement. Fifth Circuit granted stay pending appeal. When reviewing an administrative subpoena, federal court has “strictly limited role.” Sandsent Fin. Consultant, Ltd. v. Fed. Home Loan Bank Bd, 878 F.2d 875, 879(5th Cir. 1989). Fifth Circuit review Dist. Ct.’s conclusions of law underlying decision to enforce the subpoena de novo and its factual findings for clear error. United States v. Chevron U.S.A., Inc., 186 F.3d 644, 647 (5th Cir. 1999).(The Texas Occupation Code provides no defense to enforcement, as alleged by Dr. Z. Federal law supersedes or supplants an inconsistent state law or regulation. Gade v. Nat’l olid Wastes Mgmt. Ass’n,
505 U.S. 88, 98 (1992).(There was no requirement for Texas Atty Gen to have been given notice to intervene under 28 U.S.C. § 2403(b). SCOTUS considered predecessor
statute to § 2403 and held it did not apply when the state statute or regulation is pre-empted by or in conflict with federal law or regulation. Switft & Co. v. Wickham,
382 U.S. 111, 120, 129 (1965). Crt discusses development since Swift. Under the reasonable relevance standard, courts will enforce an administrative subpoena issued in aid of an investigation if: (1) the subpoena is within statutory authority, (2) Information sought I reasonably relevant to the inquiry, (3) the demand is not unreasonably broad
or burdensome. Apply this standard, Dist. Ct. found DEA’s subpoena was consistent with the Fourth of Amendment. Opinion discusses case applying the reasonable relevance standard.
Amendment 775
( United States v. Perez Trejo, (5th Cir. Aug. 19, 2014)(13-11106):
Perez Trejo’s second appellate claim was that the district court reversibly erred by denying him the third point for acceptance of responsibility under U.S.S.G. § 3E1.1. Sentences are reviewed for reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). This court first examines whether the district court committed any procedural errors,
such as incorrectly calculating the advisory guidelines range. 552 U.S. at 51. Next, we determine whether the sentence was substantively reasonable. 552 U.S. at 51.
Amendment 775 to the United States Sentencing Guidelines, which
became effective November 1, 2013, provides that the Government should not
withhold the additional one-level reduction under § 3E1.1(b) based on interests
not identified in the guideline, such as whether the defendant agrees to waive
the right to appeal. U.S.S.G. Manual, Supp. to App. C, Amendment 775, at 43-
46 (2013). In United States v. Villegas Palacios, __ F.3d __, No. 13-40153, 2014
WL 2119096, at *1 (5th Cir. May 21, 2014), decided after the district court’s
decision in this case, we concluded that Amendment 775 abrogated United
States v. Newsom, 515 F.3d 374 (2008), on which the district court relied, to the extent it would constrain us from applying Amendment 775 to a case on direct appeal. 2014 WL 2119096, at *2 n.1. In light of the amendment to § 3E1.1, the holding in Villegas Palacios, and the Government’s concession of error in the instant case, we conclude that procedural error occurred when Perez Trejo was not given credit for the full
three-point reduction for acceptance of responsibility. See Villegas Palacios,
2014 WL 2119096 at *1. Additionally, a review of the record shows that the
error is not harmless. See United States v. Delgado-Martinez, 564 F.3d 750,
752-53 (5th Cir. 2009); cf. United States v. Bonilla, 524 F.3d 647, 656 (5th Cir.
2008) (concluding that guidelines calculation error did not require reversal
when district court said, “‘I believe that I have calculated the guidelines
correctly, but even if I am wrong about the guidelines, this is the sentence that
I would impose in any event.’”). Accordingly, Perez Trejo’s sentence is
VACATED, and this case is REMANDED to the district court for resentencing
consistent with this opinion.
Rule 403 Review. To prevail on a Rule 403 argument, the appellant must show that the
district court’s ruling was “a clear abuse of discretion.” United States v. Curtis, 635 F.3d 704, 716 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, 132 S. Ct. 191 (2011). “‘Unfair prejudice’ as used in rule 403 is not to be equated with testimony that is merely adverse to the opposing party.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006).
404(b) Violations
( United States v. Guttierez-Mendez, __ F.3d ___ (5th Cir. 5-12-2014)(12-40709):
( First, because prior bad act evidence is only “conditionally relevant,” we have to ascertain whether the jury was presented with sufficient evidence that the putative bad act actually occurred. If not, then testimony as to it would be irrelevant under Rule 104(b), and it would have been error to admit it. See Huddleston v. United States, 485 U.S. 681, 692 (1988).
Once we have addressed conditional relevance, we apply the two-part famework of United States v. Beechum, 582 F.2d , 898,911 (5th Cir. 1978)(en banc). We ask whether the challenged evidence was relevant for any purpose other than proving defendant’s propensity to commit crimes. If so, we then assess whether the court abused its discretion under Rule 403 when it determined the unfair prejudice associated with Rule 404(b) did not substantially outweigh its prejudicial value.
If the government submitted sufficient evidence that the bad act occurred, if it is relevant to something other than character, and its probative value was not outweighed by its unfair prejudice, then the evidence was admissible, and the court did not err. If none of these three conditions is met, however, the evidence is inadmissible and we must
assess whether the substantial rights of the defendant was affected under Fed. R. Crim P. 52(a).
( United States v. Stephens, 571 F.3d 401 (5th Cir. 2009)(07-20899):
When this court finds “other acts” evidence to be extrinsic, we apply the
two-step test outlined in United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc). “First, it must be determined that the extrinsic offense evidence
is relevant to an issue other than the defendant’s character. Second, the
evidence must possess probative value that is not substantially outweighed by
its undue prejudice and must meet the other requirements of [R]ule 403.” Id.
Even under this stricter standard of relevance, we cannot conclude that the
district court plainly erred as to either defendant in admitting the evidence.
( Cross-examination is not a form of “extrinsic evidence.” United States v. Townsend, 31 F.3d 262, 269 (5th Cir. 1994) (“Rule 608(b) provides that specific acts of misconduct, though they cannot be proved by extrinsic evidence, may be elicited on cross-examination.”).
( Defense Counsel’s Opening Statements Opens 404(b) Door.
United States v. Moore¸ (5th Cir. July 22, 2011)(50855):
Defense counsel asserted during the opening statement that Moore was simply “swept up into this case.” Accordingly, the evidence of her 1990 conviction fell within Rule 404(b)’s allowance for evidence probative of “knowledge . . . or absence of mistake or accident.” FED. R. EVID. 404(b); see United States v. Jackson, 339 F.3d 349, 355 (5th Cir. 2003) (examining the defense’s theory of the case as presented in its opening statement when evaluating the admissibility of extrinsic offense evidence under Rule 404(b)). … Moore’s prior conviction for methamphetamine possession was probative of her knowledge of the drug. See United States v. Lindell, 881 F.2d 1313, 1319 (5th Cir. 1989). The age of an extrinsic offense does not serve as a per se bar to admission, see United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996), and we have upheld the introduction of a nearly 18-year-old prior conviction. United States v. Hernandez, 162 F.3d 863, 872-73 (5th Cir. 1998))
( United States v. Ndubuisi, (5th Cir. Feb. 16, 2012)(11-20237): Admission of evidence under Federal Rule of Evidence 404(b) is subject to “a ‘heightened’ abuse of discretion standard.” United States v. Templeton, 624 F.3d 215, 221 (5th Cir. 2010). We follow a two-step test to determine if extrinsic evidence is admissible: “First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the other
requirements of rule 403.” United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc).
( “Rule 404(b) is only implicated when the offered evidence is extrinsic;
evidence intrinsic to the charged offense does not implicate the rule.” United
States v. Crawley, 533 F.3d 349, 353–54 (5th Cir. 2008). Evidence of other acts
is intrinsic to the charged offense “when it is inextricably intertwined with the
charged offense, when both acts are part of the same criminal episode, or when
the ‘other act’ was a necessary preliminary step toward completion of the
charged crime.” Id. at 354. …. A nonconstitutional trial error is harmless unless it had substantial and injurious effect or influence in determining the jury’s verdict.”
Id. at 162 (internal quotation marks omitted); see also United States v. Sanchez-Sotelo,
8 F.3d 202, 210 (5th Cir. 1993) (“[T]o reverse a conviction, this court must
find a significant possibility that the testimony had a substantial impact on the
jury.” [United States v. Theall, (5th Cir. May 29, 2013)(12-1230457)(Bankruptcy fraud case where T/J admitted evidence of gambling losses.)
( 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).
Fed. R. Evid. 609
( United States v. Pruett, __ F.3d __ (5th Cir. May 15, 2012)(11-30572):
Appellants sought to impeach Smith’s testimony with evidence that he was convicted in 2004 of a larceny in violation of 18 U.S.C. § 641. The district court ruled that Appellants
could not question Smith about this conviction because larceny is not a “crime of dishonesty” under Federal Rule of Evidence 609(a)(2). Appellants now contend that they should have been permitted to cross examine Smith on this subject. We conclude that the district court properly precluded such cross examination. Rule 609(a)(2), which applies when a party seeks to “attack[ ] a witness’s character for truthfulness by evidence of a criminal conviction,” provides that “for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” FED. R. EVID. 609(a)(2). In Howard v. Gonzales, 658 F.2d 352 (5th Cir. 1981), we held that the crime of theft was not a crime of dishonesty and was
not admissible under Rule 609(a)(2) to impeach a witness’s credibility. Id. at 358-
59. Appellants recognize Howard, but contend that we are no longer bound by it in light of subsequent amendments to Rule 609, which can now be read to include larceny as a crime of dishonesty. Since Howard, Rule 609 was substantively amended in 1990 and 2006. … it in light of subsequent amendments to Rule 609, which can now be read to include larceny as a crime of dishonesty. Since Howard, Rule 609 was substantively amended in 1990 and 2006. … In light of the statutory text and jury instructions, the crime for which Smith was convicted does not have “a dishonest act or false statement” as an element. Nor do Appellants argue that the manner in which Smith carried out his offense involved dishonesty or a false statement. We therefore conclude that the amendments to Rule 609 do not warrant a departure from this court’s precedent that the crime of larceny is not admissible under Rule 609(a)(2). See, e.g., United States v. Entrekin, 624 F.2d 597, 598-99 (5th Cir. 1980) (shoplifting); Howard, 658 F.2d at 358-59. The district court thus properly ruled that Smith’s prior conviction was not admissible under Rule 609(a)(2).
Fed. R. Evid. 610—Negotiations
( The United States Court of Appeals for the Fifth Circuit held the protections of Rule 410 to be waivable in United States v. Sylvester, 583 F.3d 285, 291 (5 Cir. 2009), cert. denied, ___ U.S. __, 130 S.Ct. 1313 (5th Cir. 2010)² , the United States notes that the waiver in the instant Voluntary Confession and Plea Agreement is limited to the eight transactions contained therein. Therefore, the United States deems the Voluntary confession and Plea Agreement to be inadmissible under Rule 410, and will not seek its introduction into evidence in its case-in-chief.
² Analyzing and expanding the holding of the Supreme Court in United States v.
Mezzanatto, 513 U.S. 196, 210 (1995).
It seems an anomaly for courts to bar the use for cross of a document executed by the defendant and his counsel, yet allow illegally obtained evidence to be used for cross as was permitted in Kansas v. Ventris, ___ U.S. __, 129 S.Ct. 1841, 1847 (2009) (defendant’s statement obtained in violation of 6 Amendment right to counsel inadmissible to prove guilt but admissible for impeachment after defendant gave
inconsistent testimony at trial), and United States v. Grubbs, 776 F.2d 1281, 1286-87 (5th Cir. 1985) (suppressed recordings evidencing defendant’s illegitimate business dealings admissible to impeach statements made on cross-examination because questions were reasonably suggested by defendant’s direct testimony that business dealings were legitimate.) The United States reserves the right to request the Court to revisit the issue should the Defendant testify and that testimony is inconsistent with the statements made in the Voluntary Confession and Plea Agreement.
Rule 35 Correction of Sentence.
( United State v. Hankton, __ F.3d __ (5th Cir. Nov. 16, 2017)(16-31126)
We first examine a threshold issue in this case: what types of errors may be corrected through Federal Rule of Criminal Procedure 35(a)? Rule 35(a) is short: “Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” FED. R. CRIM. P. 35(a). For a court to invoke Rule 35(a), the original sentence must suffer from some error that is “obvious.” See United States v. Lopez, 26 F.3d 512, 519–20 (5th Cir. 1994) (per curiam).4
Note 4: 4 The advisory committee’s note and much of the case law interprets former Rule 35(c), the predecessor to present Rule 35(a). No substantive changes were made when the rule was relocated from paragraph (c) to paragraph (a), other than a 2009 amendment lengthening the amount of time a district court has to correct errors. See FED. R. CRIM. P. 35 advisory committee’s notes to 2002 and 2009 amendments.
The subdivision “is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence.” Id. at 520 (quoting FED. R. CRIM. P. 35 advisory committee’s note to 1991 amendments); see also United States v. Bridges, 116 F.3d 1110, 1112–13 (5th Cir. 1997) (reversing the district court’s modification of a sentence when it stemmed from “disagreement with the Sentencing Guidelines”); Lopez, 26 F.3d at 520 (“The judge stated at resentencing that it was a ‘mistake’ to have credited Lopez with a downward departure based on the erroneous assumption that Lopez would cooperate and testify for the government. But this is not an error within the contemplation of Rule 35[(a)].”). The rule extends to “errors which would almost certainly result in a remand of the case to the trial court for further action . . . .” Lopez, 26 F.3d at 520 (quoting FED. R. CRIM. P. 35 advisory committee’s note to 1991 amendments). Consequently, we have affirmed corrections under Rule 35(a) for only the most uncontroversial errors. See, e.g., United States v. Sanchez-Villarreal, 857 F.3d 714, 717–18 (5th Cir. 2017) (affirming because the district court’s entire pronouncement indicated the defendant would receive a sentence at the high end of the Guidelines range, but the district court “misspoke” and set a term of imprisonment significantly below the Guidelines range); United States v. Olarte-Rojas, 820 F.3d 798, 803–06 (5th Cir. 2016) (affirming a correction when a district court mistakenly used the wrong number in a Guidelines provision), cert. denied, 137 S. Ct. 232 (2016). Beyond these established but general principles, the boundaries of Rule 35(a), including whether “legal errors” even fall within its reach, are less clear. See Ross, 557 F.3d at 239 (declining “to demarcate the outer boundaries of ‘other clear error’ within the meaning of Rule 35(a)”). Various courts have suggested that the “clear error” standard should mirror the “plain error” standard,5 although no court of appeals has explicitly adopted that standard. See, e.g., Ross, 557 F.3d at 242 (“The argument could be made that since reversal of sentences on appeal for other than procedural error now rests on unreasonableness, ‘clear error’ in Rule 35(a) can now encompass essentially the equivalent of ‘plain error.’”). Given that the error correction effort occurs before the original trial court (albeit late), one could argue that only the first two prongs should apply (an error that is “obvious,” i.e., not subject to reasonable dispute).
We conclude that it is unnecessary to fully resolve the outer boundaries of Rule 35(a) in this case. Under any of the above tests, none of the Government’s justifications for the Rule 35(a) order come close to the rule’s reach.
§ 5K2.3, USSG Upward Departure for Extreme Psychological Impact on Child Pornography Victim
( From: United States v. Meyers, 330 Fed. App’x 405 (5th Cir. 2009)(08-10074).
We review a district court’s findings of fact for clear error and its interpretation of the Sentencing Guidelines de novo. United States v. Mauskar, 557 F.3d 219, 232 (5th Cir. 2009). Psychological damage is sufficiently severe for the upward departure to apply when “there exists (1) a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, (2) which is of an extended or continuous duration, and (3) which manifests itself by physical or psychological symptoms or by changes in behavior patterns.” United States v. Hefferon, 314 F.3d 211, 228 (5th Cir. 2002) (quoting United States v. Anderson, 5 F.3d 795, 804 (5th Cir. 1993)).
8 U.S.C. § 1326(b)(2)
( This is a penalty provision, not a separate criminal offense. Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
28 U.S.C. § 2255 Motion
( Hearing. A § 2255 motion can be denied without an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” § 2255(b). We review the decision not to hold an evidentiary hearing for abuse of discretion. United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006). Generally, contested factual issues in a § 2255 case may not be decided on the basis of affidavits alone unless the affidavits are supported by other evidence in the record. United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981).
( Kelly challenged the 105-month sentence that he received following his 2001 conviction of possession of a firearm by a convicted felon. Kelly’s district court motion was an attempt by Kelly to collaterally attack his sentence by raising errors that occurred at or prior to sentencing. As such, the motion should have been construed by the district court as a 28 U.S.C. § 2255 motion. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005); United States v. Santora, 711 F.2d 41, 42 and n.1 (5th Cir. 1983). Such a recharacterization of Kelly’s motion has important consequences of which Kelly should be apprised. See Castro v. United States, 540 U.S. 375, 383 (2003). Also, because Kelly’s motion was in the nature of a § 2255 motion, this court lacks jurisdiction over
Kelly’s appeal absent a certificate of appealability ruling in the district court. See Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997); United States v. Youngblood, 116 F.3d 1113, 1114-15 (5th Cir. 1997).
( The Fifth Circuit reviews factual findings in a denial of a 28 U.S.C. § 2255 motion for
clear error and its conclusions of law de novo, see United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006),
( Section 2255 Actions and Doctrine of Relation Back Pleadings. From United States v. Gonzalez, 592 F.3d 675 (5th Cir. Dec. 29, 2009)(07-40517). Defendant sought to amend his § 2255 action to add ineffective assistance of counsel. Because Gonzalez did not amend within the one-year period mandated by AEDPA, 28 U.S.C. § 2255(f)(1), he attempted to use the rule that Fed. R. Civ. P. 15 applies to federal habeas proceedings. See United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002). “An amendment to a pleading relates back to the date of the original pleading when. . . the amendment asserts a claim or defense that arose out the conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading . . . .” Fed. R. Civ. P. 15(c)(1)(B).
…But Mayle v. Felix, 545 U.S. 644, 650 (2005), held that claims raised in an amendment to a habeas petition did not automatically relate back merely because they arose out of the same trial and conviction.. …We agree with the approach adopted by our sister circuits. New claims of ineffective assistance of counsel do not automatically relate back to prior
ineffective assistance claims simply because they violate the same constitutional provision. Rather, we must look to whether Gonzalez’s new claim asserts “a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). If it does, then his proposed amendment does not relate back to his original pleading and is time-barred. We conclude that Gonzalez’s proposed amendment does raise a new ground for relief. Gonzalez’s original § 2255 motion alleged that his attorney had committed errors during the sentencing phase that resulted in Gonzalez’s disqualification for downward departures from his sentencing range under the Guidelines. The pleading also alleged that Gonzalez’s attorney had coerced him into proceeding to trial in the face of overwhelming evidence. The proposed amendment, however, asserts a claim of ineffective assistance of counsel based on the attorney’s failure to file an appeal. “Failing to file an appeal is a separate occurrence in both time and type,” from conduct that occurs at the sentencing
phase and before trial. Craycraft, 167 F.3d at 457. Gonzalez’s original claims involve “entirely distinct type[s] of attorney misfeasance” from the claim asserted in his proposed amendment. United States v. Ciampi, 419 F.3d 20, 24
( United States v. Reedy, (5th Cir. Sept. 1, 2010)(09-10009):
( Reedy seeks to supplement the record with exhibits that he did not present in the district court, comprising a June 2007 magazine article and two affidavits obtained in January 2010. “An appellate court may not consider new evidence furnished for the first time on appeal and may not consider facts which were not before the district court at the time of the challenged ruling.” Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999).
( Although a claim of miscarriage of justice may constitute an exception to the cause-and-prejudice test, the evidence presented at trial and in conjunction with Reedy’s § 2255 motion does not reflect that this is “an extraordinary case . . . in which a constitutional violation has probably resulted in the conviction of one who is actually innocent.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc) (internal quotation marks and citation omitted). Additionally, “[n]o evidentiary hearing is required” if a prisoner is unable to satisfy the cause and prejudice standard for overcoming a procedural bar. Woods v. Whitley, 933 F.2d 321, 323 (5th Cir. 1991).
( Second § 2255 motion based on newly discovered evidence must establish by clear and convincing evidence that “no reasonable fact-finder would have found the movant guilty of the offense. In re Webster, 605 F.3d 256 (5th Cir. 2010).
( Claims of Actual Innocence. McNeal v. Martin, (5th Cir. May 4, 2011)(10-41213).
“Section 2255 provides the primary means of collaterally attacking a federal sentence” based upon alleged errors that occurred at, or prior to, sentencing. Id. at 425-26 (citations and internal quotation marks omitted). McNeal’s § 2241 petition will be considered only if he establishes that § 2255 is inadequate or ineffective to test the legality of his detention. Id. at 426. McNeal bears the burden of establishing § 2255 as an inadequate or ineffective remedy. See id. This requires his showing: (1) his claim “is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense”; and (2) his claim “was foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255 motion”. Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). McNeal’s claim fails the first prong of the Reyes-Requena test because he can not establish that his conviction for escape from a federal prison camp was for a nonexistent offense. A claim of actual innocence of a career-offender enhancement is not a claim of actual innocence of the crime of conviction and, thus, not the type of claim warranting review under § 2241. E.g., Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also Padilla v. United States, 416 F.3d 424, 425. 427 (5th Cir. 2005) (contrasting claims challenging sentencing and claims challenging conviction).
( Subsequent § 2255 Action.
From United States v. Garza, (5th Cir. Aug. 9, 2011)(09-40591):
Our court affirmed, holding Garza’s second § 2255 motion was successive, because it raised issues that could have been raised in his initial § 2255 motion. United States v. Garza, 371 F. App’x 481, 482 (5th Cir. 2010). In doing so, our court relied on United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (holding § 2255 motion successive when challenge to movant’s conviction or sentence could have been raised in earlier § 2255 motion). Subsequent to our decision, the Supreme Court decided
Magwood v. Patterson, 130 S. Ct. 2788 (2010). As a result, the Court vacated our decision and remanded to our court for reconsideration in the light of Magwood. Garza v. United States, 131 S. Ct. 1469 (2011). … The Court held, inter alia, that a second or successive habeas petition must be interpreted with respect to the judgment challenged. “[W]here . . . there is a new judgment intervening between the two habeas petitions, . . . an application challenging the resulting new judgment is not second or successive at all”. Id. at 2802 (internal citation and quotation marks omitted). As noted, the new judgment in Magwood resulted from resentencing; and a new sentence was imposed, based upon “a complete and new assessment of all of the evidence, arguments of counsel, and law”. Id. at 2793 ¶ Review of the dismissal of a § 2255 motion as an unauthorized successive motion is de novo. See Orozco-Ramirez, 211 F.3d at 865. Garza contends his second § 2255 motion was not successive because the district court entered the “functional equivalent” of a new judgment in 2006, when it granted him an out-of-time appeal. As noted, however, although the district court granted Garza an out-of-time appeal after he filed his first § 2255 motion in 2005, it denied his request for his conviction to be vacated and did not reenter the judgment, as noted by our court in his direct appeal. Garza, 275 F. App’x at 378. ¶ As our court noted in deciding Garza’s permitted direct appeal in 2008, the Government did not oppose his filing an out-of-time appeal and, therefore, waived the limitation period. Garza, 275 F. App’x at 378. Accordingly, our court addressed the merits of Garza’s claims, even though no new judgment had been entered. Id. (citing Martinez, 496 F.3d at 388-89). ¶ Thus, there was not a new judgment (nor the functional equivalent of one) intervening between Garza’s two § 2255 motions; and, consistent with Magwood, Garza’s second motion is successive. Because Garza’s claims regarding that judgment entered in 2000 were available to him when he filed his initial § 2255 motion and subsequently pursued a direct appeal in our court concerning that judgment, his second § 2255 motion is foreclosed by our decision in United States v. Orozco-Ramirez, 211 F.3d 862, 869-7- (5th Cir. 2000) (holding § 2255 motion successive when challenge to movant’s conviction or sentence could have been raised in earlier § 2255 motion).
( United States v. Fulton, __ F3d __ (5th Cir. 16 Mar 2015)(12-10659): Since the question of whether a petition is in fact successive is a threshold jurisdictional matter,
Adams v. Thaler, 679 F.3d 312, 321 (5th Cir. 2012). We first address the second issue and consider the propriety of the district court’s transfer on the basis of successiveness. For the reasons explained below, we hold that Fulton’s second petition is successive, and that the district court did not err in transferring the petition on that basis. A second-in-time petition does not necessarily equate to one which is successive within the meaning of § 2255. In Re Cain, 137 F.3d 234 (5th Cir. 1998). Instead, “a later petition is successive when it: 1) raises a claim challenging the petitioner’s conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.” Id.
( United States v. Erwin, (5th Cir. Jan. 21, 2013)(12-40324):
As a general rule, a federal prisoner who seeks to collaterally challenge the
legality of his conviction or sentence must file a 28 U.S.C. § 2255 motion in the
sentencing court. Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005).
A petition for a writ of habeas corpus filed pursuant to § 2241 is usually reserved
for challenges to the manner in which a sentence is being executed.
Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001).
Insofar as Erwin contends that his claims are properly brought in a § 2241
petition because he is challenging the execution of his sentence, this argument
is unavailing. Review of his filings shows that he is primarily seeking relief
based on alleged flaws in his convictions and sentences and is thus bringing a
challenge to the sentence itself, rather than its execution. Compare GallegosHernandez v. United States, 688 F.3d 190, 192-94 (5th Cir.), cert. denied, 2012
WL 4462145 (Oct. 29, 2012) (No. 12-6450). Additionally, Erwin has failed to
show that § 2255 is inadequate or ineffective, nor has he established that the
district court’s disposition of his § 2241 petition was in any way flawed. See
Reyes-Requena, 243 F.3d at 904. Erwin likewise has not shown that the district
court erred by denying his request for counsel, as he has not demonstrated that
the interests of justice require that he receive an attorney. See United States v.
Tubwell, 37 F.3d 175, 179 (5th Cir. 1994); Schwander v. Blackburn, 750 F.2
494, 502 (5th Cir. 1985).
( We reiterate that “[a] certificate of appealability may issue,” pursuant to
28 U.S.C. § 2253(c), “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 481 (2000). Where a federal habeas corpus petition, under 28 U.S.C. § 2244, or, as here, a motion to vacate, under 28 U.S.C. § 2255, raises a constitutional claim with multiple elements, a COA may issue with respect to that claim only if the defendant makes a substantial showing as to each element. See Blue v. Thaler, 665 F.3d 647, 662 (5th Cir. 2011) (“Blue is entitled to a COA on his Atkins claim only if he can make a substantial showing that he has been denied his constitutional right to be exempt from execution due to mental retardation. To make that showing, he must satisfy all three elements of the Briseño test. .
( Appeal of 2255 Action. United States v. Grant, __ F. App’x (5th Cir. June 4, 2015)(14-20379): Grant is barred from challenging these (§ 2255) rulings unless he obtains a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(B). The district court did not rule whether Grant was entitled to a COA. Although our court has yet to decide, in the § 2255 context, whether a district court’s failure to rule on a COA application deprives us of jurisdiction, “[o]ur precedents have held, unequivocally, that . . . the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal”. Cardenas v. Thaler, 651 F.3d 442, 444–45 (5th Cir. 2011) (emphasis, citation, and internal quotation marks omitted). Because there is no COA ruling by the district court, we assume, without deciding, that we lack jurisdiction over this appeal. E.g., United States v. Ubani, 582 F. App’x 333, 333 (5th Cir. 2014) (per curiam); see also Rule 11(a), Rules Governing § 2255 Proceedings.
( Duty to Advise Client of Seeking Certiorari. United States v. Garcia, (5th Cir. June 22, 2015)(13-41149): Garcia sought 28 U.S.C. § 2255 relief arguing, inter alia, that counsel rendered ineffective assistance by failing to advise him of the disposition of his direct appeal, thereby depriving him of the opportunity to file a timely petition for a writ of certiorari with the Supreme Court. The district court granted Garcia a certificate of appealability on the ineffectiveness issue. Under this court’s Plan for Representation on Appeal Under the Criminal Justice Act (CJA Plan), “[p]romptly after the court of appeals’ decision issues, appointed counsel must advise the client in writing of the right to seek further review by filing a petition for writ of certiorari with the United States Supreme Court.” CJA Plan, § 6, ¶ 4. We have previously granted § 2255 relief on claims that appellate counsel failed to advise a defendant of his ability to seek certiorari review from the Supreme Court. See Lacaze v. United States, 457 F.2d 1075, 1076 (5th Cir. 1972); United States v. Johnson, 308 F. App’x 768, 769 (5th Cir. 2009). In light of the district court’s determination that Garcia’s counsel failed to take appropriate steps to inform Garcia of the disposition of his direct appeal and the right to seek Supreme Court review, we vacate our original judgment and recall our prior mandate in Garcia’s direct criminal appeal, and we enter a new judgment reaffirming the judgment of convictions and direct the issuance of a new mandate. Garcia is advised of his renewed right to petition the Supreme Court for certiorari to review our affirmance of his direct appeal. Further, Garcia’s request for newly appointed counsel to aid him in the preparation of his writ of certiorari to the Supreme Court is granted.
2241 Action.
( A § 2241 petition fails when it does not demonstrate actual innocence, one of the requirements of the savings clause of § 2255, as set forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Wilson v. Roy, __ F.3d __ (5th Cir. June 13, 2011)(09-40556).
( Because Wilson is proceeding under § 2241, he is not required to obtain a
COA to pursue his appeal. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). “In an appeal from the denial of habeas relief, this court reviews a district court’s findings of fact for clear error and issues of law de novo.” Id.
( A petitioner can attack the validity of his conviction and sentence in a § 2241 petition only if he can meet the requirements of the “savings clause” of § 2255(e). Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000(per curiam). The petitioner shoulders the burden of affirmatively showing that the remedy under § 2255 would be “inadequate or ineffective to test the legality of his detention.” § 2255; Reyes-Requena, 243 F.3d at 901.
Relief under § 2255 is not “inadequate or ineffective” for purposes of the savings clause merely because the prisoner has filed a prior unsuccessful § 2255 motion or is unable to meet the requirements for filing a second or successive § 2255 motion. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). . Rather, a prisoner who wishes to proceed under the savings clause must make a showing of both actual innocence and retroactivity. Reyes-Requena, 243 F.3d at 903. A prisoner can make this showing if his claim (1) “is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense” and (2) “was foreclosed by circuit
law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Id. at 904. Retroactivity of Santos. In Garland, this court held that Santos applies retroactively. 615 F.3d at 396-97.
( Zuniga-Hernandez v. Childress, (5th Cir. Dec. 4, 2013)(12-40176):
A federal prisoner may attack the validity of his conviction in a § 2241
petition if he can meet the requirements of 28 U.S.C. § 2255’s savings clause.
Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (per curiam). To do so, the
prisoner must show that the § 2255 remedy is “inadequate or ineffective to test
the legality of his detention.” Reyes-Requena v. United States, 243 F.3d 893,
901 (5th Cir. 2001) (emphasis omitted) (quoting 28 U.S.C. § 2255). This court
has interpreted § 2255 as setting forth the following three requirements for
proceeding under § 2241:
(1) the petition raises a claim that is based on a retroactively applicable Supreme Court decision;
(2) the claim was previously foreclosed by circuit law at the time when [it] should have been raised in petitioner’s trial, appeal, or first § 2255 motion; and
(3) hat retroactively applicable decision establishes that the petitioner may have been convicted of a nonexistent offense. Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010).
(quoting Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
18 U.S.C. § 3553
( § 3553 and Rule 35(b) Motions. United States v. Lightfoot, __ F.3d __ (5th Cir. July 29, 2013)(11-11232). In a Rule 35(b) motion for continued assistance, court need not
apply § 3553 criteria. Contra other circuits. The two circuits that have directly addressed whether a district court must consider the § 3553(a) factors in ruling on a Rule 35(b) motion have held that courts are not required to apply these factors. Although a number of circuits have held that a district court may consider the § 3553(a) factors in ruling on a
Rule 35(b) motion, none has held that a district court must consider the factors.
Very wishy-washy opinion. Harmless regardless of rule of law.
( Tapia v. United States, __ U.S. __(2011)(10-5400)
When imposing sentence, 18 U.S.C. § 3553(a)(2) requires a court to consider certain factors, including rehabilitative factors: the need "to provide the defendant with needed educational or vocational training, medical care, or other appropriate correctional treatment in the most effective manner." But a separate statute, § 3582(a), further provides that, "[t]he court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promiting correction and rehabilitation." (emphasis added).
These superfically contradictory commands led to a circuit split over the question presented in Tapia: "[W]hether the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant's rehabilitation."
An easy question, as it turns out. Writing for a unanimous Court, Justice Kagan answered that question "no." She began by observing that, "Our consideration of Tapia's claim starts with the text of 18 U.S.C. § 3582(a)—and given the clarity of that provision's language, could end there as well." The statute is plain: "[W]hat Congress said was that when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation—because imprisonment is not an appropriate means of pursuing that goal."
Then there's the context: a separate provision in the Sentencing Reform Act, 28 U.S.C. § 994(k), "directs the Sentencing Commission to ensure that the Guidelines 'reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.'" The take-away? "Each actor at each stage in the sentencing process receives the same message: Do not think about prison as a way to rehabilitate the offender." Moreover, "when Congress wanted sentencing courts to take account of rehabilitative needs, it gave courts the authority to direct appropriate treatment for offenders[,]" as in the case of probation and supervised release.See 18 U.S.C. §§ 3562(a), 3583(e). "If Congress had similarly meant to allow courts to base prison terms on offenders' rehabilitative needs, it would have given courts the capacity to ensure that offenders participate in prison correctional programs. But in fact, courts do not have this authority." Only BOP can do that.
Finally, there's the legislative history. "[T]he key senate report concerning the SRA" reflects Congress' skepticism "that 'rehabilitation can be induced reliably in a prison setting.'"
Which brings us to the Court's holding: "[A] court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." (Justice Sotomayor, joined by Justice Alito, wrote separately "to note my skepticism that the District Judge violated this proscription in this case." She otherwise joined the majority's opinion in full.)
Where was the Fifth Circuit on the split, you ask? In United States v. Giddings, the Fives said that, "[t]he legislative history of the Comprehensive Crime Control Act of 1984 . . . indicates that that the prohibition against considering rehabilitative needs relates to the decision of whether to impose imprisonment, not to thelength of the term of imprisonment." 37 F.3d 1091, 1096 (1994).Tapia, of course, abrogates that line of precedent.
( 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.
( 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.
u.s. SUPREME COURT REVERSED AND REMANDED BRELAND
18 U.S.C. § 3582(c)(2) Motion for Reduction of Sentence
( § 3582 and Separation of Powers. From United States v. Garcia, __ F.3d. __ (5th Cir. Sept. 12, 2011). Defendant sought re-sentencing under § 3582(c). a court is generally prohibited from reducing a sentence under § 3582(c)(2) “to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A). Such a reduction is permissible only “[i]f the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing.” § 1B1.10(b)(2)(B). In those situations, a court “may” impose “a reduction comparably less than the amended guideline range. ¶ Both the Supreme Court and this court have held that the mandatory nature of § 1B1.10 does not run afoul of United States v. Booker, 543 U.S. 220 (2005). See Dillon v. United States, 130 S. Ct. 2683, 2692-93 (2010); United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). But neither court has addressed whether § 1B1.10 raises separation-of-powers concerns. See Dillon, 130 S. Ct. at 2691 n.5; United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009). ¶ We conclude that the court did not reject Garcia’s third comparable-reduction argument that the court eliminate his recency points because it lacked the authority to do so. Instead, the court rejected that argument because it believed that further reducing Garcia’s criminal history was unnecessary because it had
already reduced that history once before. ¶ The third issue is more complicated. Garcia properly preserved his argument that, on resentencing, a district court may disregard § 1B1.10 and impose a shorter than comparably reduced sentence, because Congress did not grant the Sentencing Commission the power to limit what a district court may consider in § 3582(c) proceedings. Before we address that argument, however, we turn to whether any error was harmless. The burden of proving harmlessness is on the party defending the sentence. Williams v. United States, 503 U.S. 193, 203 (1992). If a district court is mistaken about its authority to consider some factor during sentencing, i.e., it
has misapplied the guidelines, then we must remand for resentencing unless “it is clear . . . that the district court would have imposed the same sentence had it known that it could consider” that factor. United States v. Davis, 316 F. App’x 328, 332 (5th Cir. 2009).
¶ Because of the foregoing conclusion, we reach the merits of Garcia’s
separation-of-powers argument, an issue this circuit has not yet addressed.
------
9 We have, however, refused to consider such an argument under plain-error review “[g]iven the lack of precedent suggesting a separation-of-powers problem with . . . § 1B1.10.” United States v. Evans, 587 F.3d 667, 669 (5th Cir. 2009) (internal citations and quotation marks omitted); see also United States v. Anderson, 591 F.3d 789, 791-92 (5th Cir. 2009). Both of those opinions were issued before Dillon. Other circuits to address this issue after Dillon have either determined with very little analysis that § 1B1.10 does not pose separation-ofpowers concerns, see United States v. Fox, 631 F.3d 1128, 1132 (9th Cir. 2011); United States v. McGee, 615 F.3d 1287, 1293 n.2 (10th Cir. 2010), or have declined to address the issue, see United States v. Turnley, 627 F.3d 1032, 1037-38 (6th Cir. 2010).
----------------
We turn first to the relevant statutes. In § 3582(c), Congress directed that sentence
modification proceedings apply only to a specific group of defendants, that a court must retain the discretion to determine whether a reduction is warranted, that the factors listed in § 3553(a) must be considered in reducing a sentence, and that a court may reduce a sentence “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” In § 994 (a)(2), Congress granted the Commission the authority to promulgate “general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2).” In § 994(t), Congress instructed the Commission to “describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” In § 994(u), Congress stated that “[i]f
the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” ¶ These statutory provisions are a sufficient delegation. Congress has set forth an intelligible principle: It gave the Commission the discretion to determine as we have said, “in what circumstances and by what amount” a sentence may be reduced, see § 994(u), and that reductions should further the purposes of § 3553(a), see §§ 994(2) and 3582(c). One could hardly say that there is “an absence of standards” to direct the Commission’s issuance of § 1B1.10. To be sure, there is no specific delegation to the Commission of the power to make the
guidelines binding in a limited set of circumstances or to prevent a court from considering non-§ 3553(a) factor during sentencing. ¶ Congress has set forth sufficient standards for the Commission in exercising its discretion, and § 1B1.10 does not present a separation-of-powers problem.
( United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009): a district court need not give factual findings or legal conclusions in connection with its denial of a § 3582(c) motion.
( United States v. Brooks, (5th Cir. March 17, 2016)(15-11143):District court correctly determined that Brooks was not eligible for a sentence reduction based on Amendment 782 because his sentence was not based on U.S.S.G. § 2D1.1(c). Because Brooks’s sentence was not based on a guidelines range that was subsequently lowered by the Sentencing Commission, he was ineligible for a § 3582(c)(2) sentence reduction based on Amendment 782. See United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009) (per curiam). Therefore, Brooks has not shown that the district court abused its discretion in denying his § 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (per curiam).
( A § 3582(c)(2) proceeding is not a resentencing. Dillon v. United States, 130 S. Ct. 2683, 2691-92 (2010). Sentencing courts have no authority under § 3582(c)(2) to reduce a sentence below the amended guidelines range, unless the district court originally imposed a sentence below the guidelines range, which is not the case here. See id.
( Freeman v. United States, 564 U.S. __ (U.S. June 23, 2011)(09-10245):
18 U.S.C. § 3582 can be used to reduce a sentence when USSGs change
after the defendant has plead guilty under a FRCP 11(c)(1)(C) plea agreement.
( From United States v. Henderson, __ F.3d __ (5th Cir. March24. 2-11)(08-30998):
Amendments to the Sentencing Guidelines, which took effect on November
1, 2007, reduced the base offense level by two levels for most crack cocaine
offenses. U.S. Sentencing Guidelines Manual (2007), App. C, Amend. 706. The
Sentencing Commission made the amendment retroactive as of March 3, 2008
U.S. Sentencing Guidelines Manual (2007), App. C, Amend. 713. As of that date,
defendants serving eligible crack cocaine-based sentences could file a motion for
a sentence reduction under § 3582(c)(2), which permits the district court to
“reduce the [defendant’s] term of imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2).
Standard of Review: This court reviews a district court’s decision “whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion, . . . its interpretation of the Guidelines de novo, and its findings of fact for clear error.” United
States v. v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010)
(internal citations omitted). “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Smith, 417 F.3d 483, 486–87 (5th Cir. 2005).
Discussion: As noted above, § 3582(c)(2) grants the district court discretion to modify a defendant’s sentence in certain cases where the sentencing range has been
subsequently lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 236–37 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). The Supreme Court has recently made it clear that, to determine whether to reduce a sentence pursuant to § 3582(c)(2), the district court must conduct a two-step inquiry. Dillon v. United States, __ U.S. __, 130 S. Ct. 2683, 2691 (2010). Step one of the inquiry requires the court to follow the instructions in U.S.S.G.§ 1B1.10 to determine whether the prisoner is eligible for a sentence modification and the extent of the reduction authorized. Id. Step two requires the “court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [§ 1B1.10] is warranted in whole or in part under the particular circumstances of the case.” Id. at 2692 (footnote added).
In relevant part, § 1B1.10 requires the court to begin by “determin[ing] the
amended guideline range . . . applicable to the defendant.” U.S. Sentencing
Guidelines Manual § 1B1.10(b)(1). It then specifies that the court must impose a sentence equal to or above the low end of the amended range unless the term of imprisonment imposed at sentencing was below the defendant’s original Guidelines range. Id. at § 1B1.10(b)(2)(A)–(B). If the defendant originally received a below-Guidelines sentence, in response to a § 3582(c)(2) motion, the court may grant a comparable reduction: “a reduction comparably less than the amended guideline range.” Id. at § 1B1.10(b)(2)(B); see also Dillon, 130 S. Ct. at 2691–92.
In the cases on appeal, because the defendants’ original sentences were lower than their original Guidelines ranges, it was within the district courts’ discretion to grant them each a comparable reduction. Dillon, 130 S. Ct. at 2691–92. The district courts were also free to determine that no further reduction was warranted. United States v. Smith, 595 F.3d 1322, 1323 (5th Cir. 2010) (holding that “[t]here is simply no basis” to make mandatory a sentencing reduction under § 3582(c)(2)). The defendants nevertheless request that we reverse the district courts’ denial of their motions because, they argue, the record in each case shows that the district court did not properly perform step two of the analysis. They argue that the courts misapprehended and failed to fulfill their duty to reconsider the § 3553(a) factors in connection with the § 3582(c)(2) motions. The defendants submit that this failure was particularly harmful to them because they each raised new arguments regarding the application of the § 3553(a) factors in their motions.
In response to a § 3582(c)(2) motion, the district court must conduct a contemporaneous review of the § 3553(a) factors. United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009). However, a sentencing court is not required to explain its application of those factors or its reasons for denying the motion. Id. “[T]hat the court did not mention the § 3553(a) factors . . . does not mean that it did not consider them.” Id. A court satisfies its obligation to review the § 3553(a) factors if it can be determined from the record that it “gave due consideration to the motion as a whole, and implicitly to the factors set forth in § 3553(a).” United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). Further, when a “court had those arguments in front of it when it made its
determination . . . . we can assume that it considered them.” Evans, 587 F.3d at 673 (quotation marks and citation omitted). These consolidated cases present the court with a unique question. Although we normally assume that a district court has reconsidered the
§ 3553(a) factors when it is faced with § 3553(a) arguments, these defendants raise the issue of whether we continue to make this assumption when a court implies that it is not required to and does not reconsider the factors because it considered them when imposing a below-Guidelines sentence at the original sentencing. In the consolidated cases, each district court found that the defendant had previously received a below-Guidelines sentence, “at which time the Court determined a total sentence pursuant to the 18 U.S.C. § 3553(a) factors. Accordingly, the Court will not reduce the Defendant’s sentence further.”
In contrast to United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009)(where we addressed the defendant’s contention that the district court did not understand its
authority to grant him a comparable reduction), where “we d[id] not glean from the district court’s summary order a misapprehension of its authority,” id., it is apparent in the three cases before us that the district courts did misapprehend, if not their authority to grant a comparable reduction, then their duty to reevaluate the § 3553(a) factors when
considering whether such a reduction was warranted. The district courts’ use of the word “accordingly” in their decisions indicates that they relied on the evaluation of the § 3553(a) factors undertaken at the original sentencing and declined to conduct a new evaluation of those factors. These courts did not recognize, and therefore did not satisfy, the requirement that they reconsider the § 3553(a) factors when deciding whether to reduce a sentence in response to a § 3582(c)(2) motion. See Evans, 587 F.3d at 673.
Conclusion: For these reasons, we REVERSE the district courts’ denial of the
defendants’ motions for sentence reduction.
( Ratios. United States v. Fulgencio, (5th Cir. May 10, 2011)(09-30369):
This court has not adopted a particular conversion ratio for cases involving crack cocaine. However, we have affirmed cases involving a range of conversion ratios. See United States v. Booker, 334 F.3d 406, 413-414, n. 3 (5th Cir. 2003); United States v. Rodriguez, 305 F. App’x 206, 208 (5th Cir. 2008); United States v. Britton, 225 F. App’x 219, 222 (5th Cir. 2007). Even assuming that the district court should have applied the “conservative and realistic” one-to-.5 conversion ratio used in Booker, the district court did not clearly err in determining that Fulgencio’s offense involved more than 4.5 kilograms of crack cocaine. Application of the Booker ratio would yield approximately 19.7 kilograms of crack, well above the 4.5 kilogram threshold
( Although the defendant is not entitled to a crack amendment sentence reduction if he was sentenced as a career offender, the exception to that rule is when the defendant
was sentenced under the regular guidelines which were more than the career offender
minimum. United States v. Yett, (08-50327) (5th Cir. Jan. 4, 2011).
( Although § 3582(c)(2) directs district courts to consider the sentencing factors of § 3553(a), the reasonableness standard of United States v. Booker, 543 U.S. 220 (2005), does not apply to § 3582(c)(2) proceedings. United States v. Evans, 587 F.3d 667, 671-72 (5th Cir. 2009) (citing United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009)), cert. denied, 130 S. Ct. 3462 (2010). Instead, the district court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for an abuse of discretion. See United States v. Cooley, 590 F.3d 293, 295 (5th Cir. 2009).
( Because sentence modification under § 3582(c)(2) does not constitute a complete resentencing, Booker’s “reasonableness standard does not apply to § 3582(c)(2)
proceedings.” United States v. Evans, 587 F.3d.667, (5th Cir. Nov. 5, 2009(08-41259), cert. denied, 130 S. Ct. 3462 (2010).. Thus, we review the district court’s decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion, its interpretation of the guidelines de novo, and its findings of fact for clear error. Id. at *3.
( The government contends that we may not consider Cooley’s appeal from the denial of his § 3582(c)(2) motion for a sentence modification because he signed a broadly worded waiver of his rights to appeal. Neither party denies that the waiver is valid and enforceable; rather, they disagree whether its terms extend to the appeal of a district court’s denial of a motion under § 3582(c)(2) to modify a sentence because of a change in the applicable sentencing guidelines. … We have never before addressed whether such a broadly written waiver of appeal encompasses the right to seek appellate review of a modification (or denial) of a sentence under 18 U.S.C. § 3582(c)(2). …We join those circuits which hold that a motion for sentence modification under 18 U.S.C. § 3582(c)(2) is not properly considered an “appeal” or “collateral proceeding” under the terms of a general waiver of appeal, such as the one at issue here, and, consequently, appellate review of the denial of a § 3582(c)(2) motion is not barred by such waivers.
United States v. Cooley, 590 F.3d 293 (5th Cir. Dec. 9, 2009)(08-30604).
( Pursuant to section 3582(c)(2), a defendant may have his sentence modified if he was sentenced to a term of imprisonment based upon a sentencing range that subsequently was lowered by the Sentencing Commission. The district court may grant a reduction if it is “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). We review the denial of a motion to reduce a sentence under section 3582(c)(2) for an abuse of discretion. United States v. Mueller, 168 F.3d 186, 188 (5th Cir. 1999); United States v. Doublin, 572 F.3d 235, 236–37 (5th Cir. 2009); United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1995). The court “may not modify a term of imprisonment once it has been imposed except” in certain circumstances. § 3582(c). The court is authorized to reduce a term of imprisonment if the defendant’s sentencing range
has been lowered by the Sentencing Commission’s amendment to the Sentencing
Guidelines. § 3582(c)(2); U.S.S.G. § 1B1.10(a), p.s.
( Defendant seeks to reduce his sentence imposed in 2003 following his guilty plea conviction for possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking offense. Appellant argues that he is entitled to have his sentence reduced in light of Amendment 709 to the United States Sentencing Guidelines
(U.S.S.G.), which took effect on November 1, 2007. See U.S.S.G. App. C, amend. 709.
Amendment 709 modified the instructions for computing criminal history in U.S.S.G. § 4A1.2, and Appellant contends that the amendment should be applied to his case retroactively in order to recalculate his criminal history score In this case, the applicable policy statement is U.S.S.G. § 1B1.10. United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Section 3582(c)(2) applies only to retroactive guidelines amendments, as set forth in the section 1B1.10. See U.S.S.G. §§ 1B1.10(a), (c); United States v. Drath, 89 F.3d 216, 217–18 (5th Cir. 1996). The Sentencing Commission has stated that, unless an amendment is listed in section 1B1.10(c), it is not consistent with the policy statement in section 1B1.10 and may not be relied upon to reduce a sentence pursuant to section 3582(c)(2). See U.S.S.G. § 1B1.10 cmt. n.1(A); see also Drath, 89 F.3d at 218. Amendment 709 is not listed in section 1B1.10(c), therefore it has no
retroactive effect and provides the district court with no authority to reduce
appellant’s sentence. U.S. v. Galvez, 321Fed. App’x 405 (5th Cir. 2009)(08-10553).
( United States v. Carter, 595 F.3d 575 (5th Cir. Jan. 29, 2010)(08-20235):
The mandatory minimum statute controls over guidelines reduced under 18 U.S.C. § 3582(c)(2) Motion for Reduction of Sentence.
( No right to full resentencing or to argue for departure on sentence modification under 18 USC> § 3581(c)(2). From United States v. Martin, 596 F.3d 284(5th Cir. Feb. 5, 2010)(07-30815): A district court has jurisdiction to modify a sentence during appeal if doing so does not impair the prisoner’s constitutional rights. United States v. Stafford, 29 F.3d 181, 184 (5th Cir. 1994). Martin argues that the court lacked jurisdiction, because a § 3582(c)(2) procedure, unlike a full resentencing, does not allow him to argue for a departure from the guidelines or to be present and allocute. United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009) (per curiam); United States v. Moree, 928 F.2d 654, 655-56 (5th Cir. 1991). His argument springs from the faulty premise that a retroactive guidelines change entitles a prisoner to a full resentencing. Retroactive guidelines changes entitle a prisoner only to move for sentence modification under § 3582(c)(2), not to a full resentencing.2 United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990). As he is not entitled to resentencing, the district court deprived him of no constitutional rights by modifying his sentence under § 3582(c)(2) during his appeal.
Footnote 2: To the extent that United States v. Park, 951 F.2d 634, 635-36 (5th Cir. 1992) (per curiam) conflicts with Miller, Miller is the earlier case and its holding is binding precedent. Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
(Fifth Circuit blog quotes Martin as allowing for resentencing under 3581(c)(2) even if the case is on appeal.
( From United States v. Williams, 609 F.3d 368 (5th Cir. Apr 19, 2010)(08-31081): Although Williams argues that he was eligible for such a § 3582(c)(2) reduction, this court recently held that, when a defendant is “subject to a statutory minimum sentence above the upper end of his guideline range, even if the district court departs downwardly from that minimum under a statutory exception, 18 U.S.C. § 3582(c)(2) provides no authority to the district court to later modify the sentence based on amendments to the guideline range.” United States v. Carter, 595 F.3d 575, No. 08-20235, 2010 WL 322609, at *6 (5th Cir. Jan. 28, 2010). Consequently, the district court committed no error in denying Williams relief under § 3582(c)(2).
( Cannot bring two separate 3582 actions, one for career offender provisions and then under crack cocaine guideline reduction. United States v. Banks, __ F.3d __ (5th Cir. Oct. 27, 2014)(13-30839).
( From United States v. Garcia, 606 F.3d 209 (5th Cir. May 7, 2010)(08-50458).
( A § 3582(c)(2) proceeding is not a full resentencing, United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), so Booker and its bifurcated reasonableness review do not apply. Id. at 672.
( The first question is whether the district court had jurisdiction to reduce
Garcia’s sentence at all. Congress authorized reductions of this kind only where 5
the court originally set the term of imprisonment “based on a sentencing range
that has subsequently been lowered by the Sentencing Commission.” We have
held in an unpublished opinion that when a defendant receives a Rule 11(e)(1)(C) stipulated sentence, a reduction under § 3582(c)(2) “does not apply.” United States v. Brown, 71 F. App’x 383, 384 (5th Cir. 2003) (unpublished).
( United States v. Taylor, __ Fed. App’x __ (5th Cir. Nov. 23, 2010)(08-11070): A district court “is not required to state findings of facts and conclusions of law when denying a § 3582(c)(2) motion.” United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010) (internal quotation marks omitted). Moreover, proceedings under § 3582(c)(2) are not full resentencings, and the reasonableness standard derived from United States v. Booker, 543 U.S. 220 (2005), does not apply to § 3582(c)(2) sentencing reductions. Dillon v. United States, 130 S. Ct. 2683, 2692-93 (2010); (S. Ct. Grants Certiorari on issue in Dillon v. United States
I. Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582. No
II. Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range. No
Dillon v. United States, 09-6338, 2010 WL 2400109 (2010).
( From United States v. Larry, __ F.3d __ (5th Cir. Feb. 8, 2010)(08-30368): The Supreme Court developed a two-step test for determining whether a court should reduce a defendant’s sentence under § 3582(c)(2). Dillion v. United States, 130 S. Ct. 2683, 2691-92 (2010). The court first considers whether the sentence modification is authorized. Id. at 2691. A sentence modification is authorized if it “is consistent with applicable policy statements issued by the Sentencing Commission—namely, § 1B1.10” of the United States Sentencing Guidelines Manual (U.S.S.G.). Id. at 2691 (citation and internal marks omitted). Only if the court determines that a sentence modification is authorized must the court consider whether such modification is warranted. Id. To determine whether the authorized modification is warranted, the court must consider the
applicable § 3553(a) factors and “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” United States v. Robinson, 542 F.3d 1045, 1049, 1052 (5th Cir. 2008) (quoting U.S.S.G. § 1B1.10 cmt. n.1(B) (2008)); see Dillion, 130 S. Ct. at 2692. The court may also “consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.” Robinson, 542 F.3d at 1052 (quoting U.S.S.G. § 1B1.10 cmt. n.1(B)).
( Because the district court “merely modifie[d] an existing sentence” under 3581(c)(2)
rather than imposing a new sentence after the original sentence had been set aside, Perkins was not entitled to be present. See United States v. Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994).
( A § 3582(c)(2) motion “is not a second opportunity to present mitigating factors to the sentencing judge, nor is it a challenge to the appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). The application of § 1B1.10 is mandatory, Doublin, 572 F.3d at 238, and under § 1B.1.10, the district court, when reducing a defendant’s sentence under § 3582(c)(2), “shall leave all other guideline application decisions unaffected.”
( In exercising its discretion under § 3582(c)(2), the district court is may consider the movant’s record of prison misconduct. See United States v. Smith, 595 F.3d 1322, 2010 WL 366745, *1 (5th Cir. Feb. 3, 2010).
( A § 3582(c)(2) motion may not be used to challenge a district court’s application of a career offender enhancement in its calculation of an original sentence. See United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). “The crack cocaine guideline amendments do not apply to prisoners sentenced as career offenders.” United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009).
( United States v. Banks, __ F.3d __ (5th Cir. Oct. 27, 2014 Rev. in Nov 12, 2014)
(13-30839): The issue therefore is whether the district court had authority to modify
Banks’s sentence under section 3582. Since the district court has authority under section 3582(c)(2) only where the defendant has been sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” 18 U.S.C. § 3582(c)(2), the central question is whether Banks’s sentence is “based on” the drug quantity table in § 2D1.1, used in his original sentence, or § 4B1.1, used when his sentence was first modified. We hold that under section 3582, a defendant’s sentence is “based on” the guidelines range for the sentence he is currently serving, not the guidelines range used in his original sentencing.
( No Right to Court-appointed Counsel. From United States v. Hereford,
(08-10452) 2010 WL 2782780 at *1-*2 (July 12, 2010): In United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995), this court held that a defendant does not have a statutory or constitutional right to appointed counsel in § 3582(c)(2) proceedings. The defendant argued that § 3582 reduction proceedings are “ancillary matters” under the Criminal Justice Act, id. at 1010, which provides for appointment of counsel to represent the defendant “at every stage of the proceedings from his initial appearance . . . through appeal, including ancillary matters appropriate to the proceedings,” 18 U.S.C. § 006A(c). The panel disagreed. The Supreme Court recently held that Booker does not apply to § 3582(c)(2) proceedings and therefore we are not required to treat U.S.S.G. § 1B1.10(b) as advisory. Dillon v. United States, 09-6338, 2010 WL 2400109 (2010). This holding is consistent with previous Fifth Circuit decisions on this issue. See United States v. Doublin, 572 F.3d 235 (5th Cir. 2009); United States v. Evans, 587 F.3d 667 (5th Cir. 2009).
( From United States v. Brooks, __ Fed. App’x __ (5th Cir. Sept. 24, 2010)(09-31196):
Amendment 706 modified the guidelines’ ranges applicable to crack cocaine offenses. See United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). However, where the defendant was held accountable for 4.5 kilograms or more of crack cocaine, Amendment 706 provides for no change in the guidelines’ sentencing range. See Supp. to App. C, Amend. 706; § 2D1.1, comment. (n.10(D)(ii)(I)). Accordingly, defendants who were held accountable for 4.5 kilograms or more of crack cocaine are ineligible for relief under section 3582(c)(2). Since Brooks was found to be accountable for 4.73 kilograms of crack cocaine, his offense level remains unchanged by the Amendment. Further, a section 3582(c)(2) movant is not entitled to have the district court recalculate his base offense level. See United States v. Whitebird, 55 F.3d 1007,
1011 (5th Cir. 1995) (noting that a section 3582(c)(2) motion is not a challenge
to the appropriateness of the original sentence); see also United States v. Reynolds, 2010 WL 1976573 (5th Cir. May 18, 2010) (unpublished); § 1B1.10(b)(1), p.s. (noting that a district court considering a reduction under section 3582(c)(2) “shall leave all other guideline application decisions unaffected.”).
( United States v. Jones, 596 F.3d 273 (5th Cir. 2010): Denial was based on incorrect assumption that defendant had been sentenced as career offender. This was error.
Did not affect substantial rights and thus there was no plain error.
( No Right to Reduction in Cocaine Sentence After Supervised Release Has Started.
Where a defendant has begun serving a term of supervised release, the appeal of the denial of his § 3582(c)(2) motion is moot. United States v. Boston, No. 08-10341, 2011 U.S. App. LEXIS 6036, at *4-*6 (5th Cir. Mar. 23, 2011) (per curiam) (unpublished).
United States v. Booker, __ F.3d __ (5th Cir. June 24, 2011)(08-40547).
( Downward Departure Need Not Be Credited when there is a 3582 Decrease.
United States v. Contreras, __ F. 3d __ (5th Cir. April 27, 2016)(15-40784):
Contreras argues the district court not only should have reduced his total offense level to 33 but also should have re-imposed the downward departure under § 5K2.0, leading to an offense level of 32 and a guideline range of 121 to 151 months. We reject Contreras’s argument. The Sentencing Guidelines make clear that, in granting his § 3582(c)(2) motion, the district court was not authorized to re-impose the downward departure.
(1: We review de novo the district court’s interpretation of the Sentencing Guidelines and Application Notes, applying ordinary rules of statutory construction.” United States v. Moore, 733 F.3d 161, 162 (5th Cir. 2013).) “In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is warranted, the court shall determine the amended guideline range that would have been applicable” if the amendment was in effect at the time the defendant was sentenced. U.S.S.G. § 1B1.10(b)(1). That amended guideline range is the range “that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” Id. § 1B1.10 cmt. n.1(A) (emphasis added).2 In other words, the court re-calculates the guideline range without re-applying departures or variances, and it may then reduce the defendant’s sentence within that amended guideline range. Importantly for Contreras, a court “shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under [§ 1B1.10(b)(1)].” U.S.S.G. § 1B1.10(b)(2)(A). Put differently, the district court is to determine the amended guideline range without considering departures or variances, and it cannot reduce the defendant’s sentence below that range. One exception to this rule exists: If the defendant received a below-guidelines sentence because the government moved for a reduction based on the defendant’s substantial assistance to authorities, “a reduction comparably less than the amended guideline range determined under [§ 1B1.10(b)(1)] may be appropriate.” Id. § 1B1.10(b)(2)(B). That exception does not apply here because Contreras did not receive a reduction for substantial assistance. Here, the district court determined that Contreras’s amended guideline range, which was yielded by an offense level of 33 (two levels below his original, 2 “The Guidelines commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Moore, 733 F.3d at 162-63 (internal quotation marks omitted. …Several other circuits have also reached similar conclusions. See, e.g., United States v. Taylor, No. 15-5930, --- F.3d ---, 2016 WL 860340, at *2-3 (6th Cir. Mar. 7, 2016); United States v. Hogan, 722 F.3d 55, 59-63 (1st Cir. 2013); United States v. Steele, 714 F.3d 751, 753- 57 (2d Cir. 2013) (per curiam). Contreras also contends that the district court failed to adequately consider the 18 U.S.C. § 3553(a) factors in determining his reduced sentence. But the district court sentenced him to 135 months, the lowest sentence within the authorized range. Even if it did not adequately consider the § 3553(a) factors, Contreras could not have suffered any prejudice. And our review of the record indicates that the district court did adequately consider them: The district court had before it Contreras’s arguments in favor of a sentence reduction, a synopsis of his post-sentencing conduct, his criminal and immigration history, and other relevant information. The district court specifically stated that it considered the § 3553(a) factors in determining that the reduced sentence was appropriate. The district court did not abuse its discretion. See United States v. Evans, 587 F.3d 667, 673-74 (5th Cir. 2009). Case: 15-4078.
( concurrency and 782 Reductions. United States v. Chappl3, __ F.3d __ (5th Cir.
Jan. 30, 2017)(15-20662): Chapple contends that the district court erred in denying his motion for sentence reduction under § 3582(c)(2) and that the retroactive application of Amendment 782 should reduce his previously served sentence, thereby hastening his ultimate release from prison. His argument centers on the Supreme Court’s decision in Garlotte v. Fordice, 515 U.S. 39 (1995), in which the Court held that a prisoner serving consecutive sentences could attack the earlier sentence in the context of collateral review because he was “in custody” for the purposes of filing a habeas petition. …l. In general, § 3582 limits the ability of a court to reduce a sentence term that has already been imposed. Subsection (c)(2) of § 3582, however, provides: [I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2) (2012) (emphasis added). The applicable policy statement here is § 1B1.10 of the Sentencing Guidelines. As the Supreme Court explained in Dillon v. United States, 560 U.S. 817, 826 (2010), Section 3582(c)(2) thereby articulates a two-step inquiry: “A court must first determine that a reduction is consistent with § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a).” In particular, § 1B1.10(b)(2)(C) of the Guidelines prohibits a court from reducing a term of imprisonment to a period “less than the term of imprisonment the defendant has already served.” The Commentary to § 1B1.10 reiterates: “In no case, however, shall the term of imprisonment be reduced below time served.” U.S.S.G. § 1B1.10 n.3. Amendment 782 became retroactively applicable on November 1, 2015, to defendants who were sentenced prior to the effective date for eligible offenses.2 Because Chapple had already served the sentence that was eligible for reduction under Amendment 782, his § 3582(c)(2) motion was not “consistent with § 1B1.10.” Thus, the modification was appropriately rejected, and its denial did not result in an abuse of discretion.
…Chapple, relying on habeas corpus jurisprudence and quoting language from Garlotte, 515 U.S. at 40, argues that he is serving what amounts to a “continuous stream” of imprisonment. As such, Chapple contends, the district court should have “aggregat[ed] the consecutive sentences for the purpose of a retroactive sentence reduction [that] would advance [his] release date.”3 Chapple also cites to 18 U.S.C. § 3584(c), which states that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” 18 U.S.C. § 3584(c). The Government counters that Garlotte pertains to the habeas corpus context, which is not subject to the limitation in § 1B1.10(b)(2)(C) that “[i]n no event may the reduced term of imprisonment [due to a retroactive Guidelines Amendment] be less than the term of imprisonment the defendant has already served.” U.S.S.G. § 1B1.10(b)(2)(C). The Government further responds that § 3584 only applies to aggregation “for administrative purposes” and does not impact the court’s judicial discretion under § 3582. We find the Government’s argument, based on § 1B1.10(b)(2)(C), to be more sound. Although this question has not been previously addressed in this Circuit, it has been addressed in other circuits.4 Indeed, the First Circuit’s decision in United States v. Vaughn, 806 F.3d 640 (1st Cir. 2015), contains facts that are very similar to those of the instant case.
28 U.S.C. § 221 Actions
( The district court dismissed Ford’s § 2241 petition because she did not meet the requirements for proceeding under the savings clause of 28 U.S.C. § 2255 as set forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Ford has not shown that the district court erred in its judgment. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001)
28 USC § 2255 Actions
( The Fifth Circuit has jurisdiction pursuant to 28 U.S.C. § 2253 because we previously
issued Fields (565 F.3d 290 (5th Cir. 2009) a COA in this case. “We ‘review a district court’s conclusions with regard to a petitioner’s § 2255 claim of ineffective assistance of counsel de novo.’” United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005) (quoting United States v. Conley, 349 F.3d 837, 839 (5th Cir. 2003)). We review “a district court’s refusal to grant an evidentiary hearing on a § 2255 motion for abuse of discretion.” United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
Fed. R. Civ. P. 60 Not Applicable to Criminal Cases
( Rule 60(b) provides relief only from judgments imposed in civil cases; Rule 60(b) “simply does not provide relief from a judgment in a criminal case.” United States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (Dennis, J., dissenting from grant of motion for temporary stay pending appeal); see also FED. R. CIV. P. 1 (limiting the scope of the rules of civil procedure to civil actions). Accordingly, the district court did not err in concluding that Roberts could not invoke Rule 60(b) to challenge his sentence.
Roberts’s Rule 60(b) motion is best construed as an unauthorized successive 28 U.S.C. § 2255 motion that the district court lacked jurisdiction to consider. See Gonzalez v. Crosby, 545 U.S. 524, 529-31 (2005); 28 U.S.C. § 2244(b)(3)(A), § 2255(h). Because this appeal is patently frivolous, we decline to remand this case to the district court for a decision on whether a certificate of appealability should issue and instead DISMISS this appeal for lack of jurisdiction. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
( To best understand the relationship between Rule 60 and habeas petitions, one place to start is the Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524 (2005).Rule 60(b) has an unquestionably valid role to play in habeas cases. The Rule is often used to relieve parties from the effect of a default judgment mistakenly entered against them, e. g., Klapprott, 335 U. S., at 615 (opinion of Black, J.), a function as legitimate in habeas cases as in run-of-the-mine civil cases. The Rule also preserves parties' opportunity to obtain vacatur of a judgment that is void for lack of subject-matter jurisdiction—a consideration just as valid in habeas cases as in any other, since absence of jurisdiction altogether deprives a federal court of the power to adjudicate the rights of the parties. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 94, 101 (1998).
---Nathan Phelps, Attorney at Law
( On Mon, Jul 23, 2012 at 1:19 PM, Hilary Sheard wrote: Just for clarification: Fed R Civ P. 60 does apply to federal habeas corpus cases, which are deemed civil, not criminal, even though they arise out of a criminal conviction.
( FRCP does not apply to challenges of criminal restitution. United States v. Fleming,
(5th Cir. Aug 8, 2017)(16-20732).
18 U.S.C. § 3585: See Sentencing – Credit for State Time.
Abduction Enhancement
( From United States v. Johnson, 619 F.3d 469 (5th Cir. Sept. 13, 2010)(10-10126):
( Under USSG § 2B3.1, a defendant should receive a four-level increase in his
offense level “[i]f any person was abducted to facilitate commission of the offense
or to facilitate escape.” § 2B3.1(b)(4)(A). A victim is “abducted” if he is “forced
to accompany an offender to a different location.
( This court has held that in determining whether the abduction enhancement is applicable, the term “different location” should be interpreted flexibly on a case by case basis. United States v. Hawkins, 87 F.3d 722, 726-28 (5th Cir. 1996). In Hawkins, this court considered whether the moving of a victim at gunpoint for 40 to 50 feet across a parking lot toward a van constituted an abduction, even though the victim escaped before being put into the van. This court determined that the term, “a different location,” as used in the comments to § 1B1.1, is “flexible and thus susceptible of multiple
interpretations, which are to be applied case by case to the particular facts under
scrutiny, not mechanically based on the presence or absence of doorways, lot lines, thresholds, and the like.” Id. at 727-28. Therefore, this court determined that the district court did not commit reversible error in determining that an abduction had occurred because “it would be unduly legalistic, even punctilious” to determine that the two parking locations were not separate “locations” for purposes of § 1B1.1 or that “something as coincidental and insignificant as a lot line or doorway could make or break the determination of ‘different location.’” Id.
Other cases from this circuit have similar holdings that support the district court’s conclusion that the abduction enhancement should apply to the facts of this case. In United States v. Jefferson, 258 F.3d 405, 409-12 (5th Cir. 2001), the car jacking victim was sitting in her car in a mall parking lot, when the defendant jerked open her door, grabbed her by the hair, and put a gun in her face. The victim fought with the assailant and managed to get out of her car, only to be struck in the head and forced back into the vehicle. Id. She subsequently managed to jump out of the moving vehicle. Id. The court
determined that her movement back into the vehicle after attempting to escape constituted an abduction to a different location for sentence enhancement purposes. Id. at 412.
In United States v. Hefferon, 314 F.3d 211, 225-26 (5th Cir. 2002), the court held that an abduction occurred when the defendant moved the victim from some trees near a playground where he had sexually assaulted her, to a garbage repository where he sexually assaulted her again. The court noted that “[a]bduction increases the gravity of sexual assault or other crimes because the perpetrator’s ability to isolate the victim increases the likelihood that the victim will be harmed.” Id. at 226 (internal quotations and citation omitted). The court determined that the enhancement should not be applied mechanically and that it was “not precluded merely because the different location is on the same lodging facility property.” Id.
In an unpublished case, this court affirmed the application of the abduction enhancement where the defendant pointed his weapon at two bank employees and demanded that they enter the bank. United States v. Garcia, 2001 WL 1267728 (5ir Cir. 2001). The employees had not planned to enter the bank at the time that the defendant approached them. Id. This court found that the district court did not clearly err in holding that the abduction enhancement applied. Id. In an unpublished case similar to the instant one, this court affirmed the application of the abduction enhancement where the defendant forced security guards to move around within the bank, although he argued that he did not have the intent to abduct them. United States v. Sutton, 337 F. App’x 422 (5th Cir. 2009). However, the court also affirmed on the alternative ground that the sentencing court stated it would have imposed same sentence even if enhancement were not applicable.
We think this case presents the type of situation where the abduction enhancement is proper, even though the victim remained within a single building. Johnson jumped over the teller counter to the employee section of the bank and used the teller as a hostage to force the police to retreat from the bank. He then forced the victim to accompany him to the front of the bank. When Johnson saw that the police were in front of the bank, the defendant asked the victim if there was a rear exit.
Absence of Defendant From Proceedings
( United States v. Thomas, __F.3d __ (5th Cir. Aug. 1, 2013)(12-60607)(D not in chambers during exercise of preemptory/cause challenges. Aff’d). Supreme Court has declined to extend automatic reversal of a conviction to violation of a defendant's right to be present at all critical stages of the trial, and this Circuit has consistently required a showing of prejudice to the defendant to constitute reversible error upon a defendant's absence from any part of the jury selection process. Rushen v. Spain, 464 U.S. 114, 117-21 (1983); United States v. Curtis, 635 F.3d 704, 714 (5th Cir. 2011), United States v. Wilson, 355 F.3d 358, 362 (5th Cir. 2003) (citing Fed. R. Crim. P. 52(b)), citing United States v. Olano, 507 U.S. 725, 732-36 (1993).
Abuse of Discretion
( A district court’s evidentiary rulings are typically reviewed for abuse of discretion. United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). This standard of review is “heightened in a criminal case, however, which demands that evidence . . . be strictly relevant to the particular offense charged.” United States v. Hernandez-Guevara, 162 F.3d 863, 869 (5th Cir. 1998) (citation and internal quotation marks omitted).A “‘trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.’” United States v. Garcia, 530 F.3d 348, 351 (5th Cir. 2008). Error is not reversible, however, unless it “substantially prejudiced” the defendant’s rights. United States v. Lopez, 979 F.2d 1024, 1034 (5th Cir.
1992); see Fed R. Crim. P. 52(a).
Abuse of Trust
( United States v. Valdez, __ F.3d __ (5th Cir. 12 Aug 2013)(12-50027):
Abuse of Trust/ Valdez next challenges the application of a 2-level enhancement under
§ 3B.1.3 for abusing a position of trust. This section provides an enhancement for
defendants who have “abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense.” § 3B1.3. Valdez relies on precedent from the 11th Circuit to argue that a Medicare-funded care provider, as a matter of law, does not occupy a position of trust vis-a-vis Medicare. See United States v. Mills, 138 F.3d 928, 941 (11th Cir. 1998). However, as Valdez acknowledges, this argument is foreclosed by circuit precedent. See United States v. Miller, 607 F.3d 144, 149 (5th Cir. 2010) (holding that owner of a medical supply store who fraudulently billed Medicare occupied position of trust vis-a-vis Medicare); United States v. Iloani, 143 F.3d 921, 922-23 (5th Cir. 1998) (holding that chiropractor occupies a position of trust with regard to the insurance companies that he bills). The district court did not err in applying the § 3B1.3 abuse of trust enhancement
Acceptance of Responsibility
( Allocuting to Accept Responsibility is Not Self-Incrimination. United States v.
Preciado-DelaCruz, __ F.3d __ (5th Cir. Sept. 15, 2015)(11-11023). D complains that the district court violated his Fifth Amendment right against self-incrimination by denying him a downward adjustment for acceptance of responsibility after he refused to speak openly about relevant conduct.
( Ordinarily, “[t]his court reviews a district court’s refusal to reduce a defendant’s offense level for acceptance of responsibility under USSG § 3E1.1 with a standard ‘even more deferential than a purely clearly erroneous standard.’” United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003) (citing United States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)). We will not second-guess the decision unless it is without foundation. Id. But when faced with a preserved constitutional challenge to the Guidelines’ application, our review is de novo. See United States v. Hernandez, 633 F.3d 370, 373 (5th Cir. 2011); United States v. Flores-Alejo, 531 F. App’x 422, 424 & n.1 (5th Cir. 2013).
( In United States v. Mourning, 914 F.2d 699, 706 (5th Cir. 1990)[overruled on other grounds], we faced the same claim raised here under an earlier version of the Guidelines. We held that rewarding a defendant who expresses contrition and cooperates with the government is not the same as compelling him to incriminate himself. Id. at 706–07. “To hold the acceptance of responsibility provision unconstitutional would be to say that defendants who express genuine remorse for their actions can never be rewarded at sentencing. This the Constitution does not require.” Id. at 707 (quoting United States v. Henry, 883 F.2d 1010, 1012 (11th Cir. 1989)). 3 That holding applies squarely here.4 Consequently, any inference that the district court drew from the defendant’s silence for purposes of § 3E1.1 was permissible.
(
Government Cannot Refuse to Move for Third Point of Acceptance Due to Sentencing Litigation
United States v. Castillo, 779 F.3d 318 (5th Cir. Feb. 26, 2015) (Benavides, Prado, Graves)
Castillo pled guilty to bank robbery of over $1,000. The PSR held her accountable for stealing $690,000 and added 14 levels to the base offense level. Castillo filed written objections, denying that she confessed to stealing $690,000 and arguing that the evidence showed an amount between $70,000 and $120,000, justifying only an 8-level increase. The district court held a hearing, heard testimony, and adopted the loss amount in the PSR. The Government then refused to move for the third point of acceptance, despite the representation in the PSR that it would so move at the time of sentencing. The Government argued that it had been essentially taken to the task of trial and had not saved any resources.
The panel reviewed the language of U.S.S.G. § 3E1.1(b), Amendment 775 (Government cannot refuse to move for the third point if the defendant does not waive appeal), and sister circuits’ decisions. The panel found that the Government can refuse to file a § 3E1.1(b) motion based on any interest identified in § 3E1.1(a) or (b). Those interests, however, do not include preparing for a sentencing hearing.
Despite those clear findings, the majority went on to limit this holding only to good faith disputes: “[I]f the defendant has a good faith dispute as to the accuracy of the factual findings in the PSR, it is impermissible for the government to refuse to move for a reduction under § 3E1.1(a) simply because the defendant requests a hearing to litigate the issue.” Since the district court did not find that Castillo litigated the issue in good faith, the panel vacated the sentence and remanded for determination of that fact issue.
Judge Graves concurred in part and dissented in part. He reasoned that Castillo was entitled to a resentencing regardless of a finding of good faith because the plain language of § 3E1.1 focuses on trial, not sentencing, preparation as a reason to withhold a motion for the third point. Given the plain language of the guideline, Judge Graves argued it is unnecessary to reach the constitutional issue of a defendant’s due process right to challenge PSR findings, which is the context in which the Second Circuit discussed the good faith requirement.
( United States v. Castillo, __ F.3d __ (5th Cir. Feb. 26, 2015)(13—11007):
Latest case on acceptance of responsibility. D challenges amount of financial loss to D.
Case remanded to trial court to determine if her challenge was in good faith since
she admitted the higher amount three times to investigators. Case also covers application of Amendment 775.
( Cannot deny acceptance of responsibility when D elects to appeal. United States v. Villegas-Palacious, 756 F.3d 325 (5th Cir. May 24, 2014)(12-40253). Amendment 775 to the U.S.S.G. became effective November 1, 2013, after Villegas Palacios was sentenced but while this appeal was pending. Amendment 775 provides: “The government should not withhold [a § 3E1.1(b)] motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” U.S.S.G. supp. to app.
C, amend. 775, at p. 43 (2013); accord U.S.S.G. § 3E1.1 cmt. n.6. After Amendment 775 became effective, the United States in this case conceded error. The amended Guidelines apply to this case. See United States v. Anderson, 5 F.3d 795, 802 (5th Cir. 1993) (“Amendments to the guidelines and their commentary intended only to clarify, rather than effect substantive changes, may be considered even if not effective at the time of the commission of the offense or at the time of sentencing.” (emphasis omitted)
( Failure to object is NOT plain error and sentence affirmed. United States v.
Morales-Rodriguez, __ F.3d __ (5th Cir. June 9, 2015)(13-10364).
( Accord: United States v. RamirezMata, (5th Cir. May 29, 2014)(12-41202).
( USSG § 3E1.1(b), amended 1 Nov 2013, states that a defendant should not be denied
a reduction for acceptance of responsibility for failure to waive an appeal.
( Notice of Submission to Congress of Amendments to the Sentencing Guidelines Effective November 1, 2013, 78 Fed. Reg. 26,425-02, 26,431 (May 6, 2013).
( 2 U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) app. C. amend. 775 at 43 (2013).
( United States v. Garcia-Carrillo, __ F.3d __ (5th Cir. April 15, 2014)(12-11161): Relief denied on plain error review for failure to object because D’s substantial rights were not affect.
( Fifth Circuit will affirm the denial of a downward adjustment for acceptance responsibility under U.S.S.G. § 3E1.1 unless the denial is without foundation. U.S. v. Solis, 299 F.3d 420, 458 (5th Cir. 2002); United States v. Sanchez-Ruedas, 452 F.3d 409, 414 (5th Cir. 2006). We accord “even greater deference” than under clear error review to the refusal to grant a reduction for acceptance of responsibility. United States v. Buchanan, 485 F.3d 274, 287 (5th Cir. 2007). We will not reverse a denial under § 3E.1.1 unless the decision is “without foundation.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008).
( Defendant argues that his trial counsel provided ineffective assistance by failing to tell him that he could not qualify for an acceptance of responsibility reduction. As Owhib failed to raise this issue before the district court, we decline to review it. See United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007); see also Massaro v. United States, 538 U.S. 500, 502–06 (2003) (noting that a § 2255 motion is the preferred method for raising a claim of ineffective assistance of counsel).
( Whether a defendant clearly demonstrates an acceptance of responsibility is a question of fact. United States v. Perez, 915 F.2d 947, 950 (5th Cir. 1990). A finding that a defendant has not accepted responsibility is examined under a standard of review even more deferential than a pure clearly erroneous standard. United States v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005); see also § 3E1.1, comment. (n.5). This court “will affirm a sentencing court’s decision not to award a reduction under [§ 3E1.1] unless it is without foundation.” United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002)
(internal quotation marks and citation omitted). This court has routinely upheld the denial of a reduction for acceptance of responsibility when a defendant waits until the eve of trial to enter a guilty plea. See United States v. Diaz, 39 F.3d 568, 570 (5th Cir. 1994); United States v. Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994).
( From United States v. Williamson, 598 F.3d 227 (5th Cir. Mar. 2, 2010)(09-10079). District Judge is not bound by AUSA’s recommendation for an additional point for acceptance of responsibility under USSG § 3E1.1(b).
( We review the district court’s legal conclusions de novo, see, e.g., United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009); United States v. Cisneros-Gutierrez, and its factual conclusions for clear error, see, e.g., United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008).
( Williamson contends that the 2003 amendments to the guidelines divested
the court of any role in determining whether to grant an additional one-point reduction
under § 3E1.1(b). Williamson misreads § 3E1.1(b) and its commentary. The guideline is
hardly a model of clarity, but there is no reason to conclude that, by making a government motion a prerequisite, Congress divested the sentencing court of its
independent authority to determine whether § 3E1.1(b) has been satisfied. The court can apply the reduction only “upon motion of the government stating that the defendant has assisted authorities . . . by timely notifying [it] of his intention to enter a plea of guilty.” § 3E1.1(b). But there is no additional language precluding a role for the court in determining whether the plea “thereby permitt[ed] the government to avoid preparing for trial and permitt[ed] the government and the court to allocate their resources efficiently.” Id. Moreover, the statement in the commentary that “the Government is in the best position to determine whether the defendant has assisted authorities . . . ,” § 3E1.1 cmt. 6, does not compel a different conclusion. That comment is used to support the reason, contained later in the same comment, why “an adjustment under subsection (b) may only be granted upon a formal motion by the Government . . . .” Id. It is unsurprising that Congress would include that language in the commentary, given that the 2003 amendment’s requirement of a government motion represented a change from the pre-2003 guidelines. Likewise notable is the fact that that comment uses permissive language.
It says “may only be granted.” § 3E.1.1 cmt. 6 (emphasis added). Had Congress,
as Williamson suggests, meant for the court to have only a ministerial role, we
would expect to see in the commentary a mandatory command.
( The defendant bears the burden of demonstrating that the reduction for acceptance of responsibility is warranted. United States v. Watson, 988 F.2d 544, 551 (5th Cir. 1993). “While the district court’s findings under the sentencing guidelines are generally reviewed for clear error, a determination whether a defendant is entitled to an adjustment for acceptance of responsibility is reviewed with even greater deference.” United States v.
Buchanan, 485 F.3d 274, 287 (5th Cir. 2007). “We will affirm a sentencing court’s decision not to award a reduction” pursuant to § 3E1.1 unless the decision is “without foundation.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (per curiam) (internal quotation marks and citation omitted).
( Third level Reduction. The government’s refusal to file a motion for the third-level reduction may be successfully challenged only if “the refusal was (1) animated by an
unconstitutional motive, or (2) not rationally related to a legitimate government end.” United States v. Newson, 515 F.3d 374, 378 (5th Cir.), cert. denied, 128 S. Ct. 2522 (2008).
( Trial Judge May Reject Gov’t’s Reduction for Third Level Reduction for Acceptance . United States v. Williamson, 598 F.3d 227 (5th Cir. 2010).
( United States v. Santos, (5th Cir. July 24, 2013)(12-10425): Pursuant to U.S.S.G. § 3E1.1, a defendant may receive a two- or threelevel reduction in offense level if he “clearly demonstrates acceptance of responsibility for his offense.” “If a defendant enters a guilty plea prior to trial, truthfully admits the conduct comprising the offense, and admits, or at least does not falsely deny, any additional relevant conduct for which he is accountable, the court may find significant evidence of the defendant’s
acceptance of responsibility.” United States v. Medina-Anicacio, 325 F.3d 638,
648 (5th Cir. 2003) (citation omitted). A defendant is “not required to volunteer
or affirmatively admit relevant conduct beyond the conviction offense.” United
States v. Patino-Cardenas, 85 F.3d 1133, 1135 (5th Cir. 1996).
… We have previously stated that “merely pointing out that the evidence does
not support a particular upward adjustment or other sentencing
calculation, does not strike us as a legitimate ground for ruling that the
defendant has not accepted responsibility.” United States v. Nguyen, 190 F.3d
656, 659 (5th Cir. 1999) (citation omitted), recognized as abrogated on other
grounds by United States v. Dunigen, 555 F.3d 501 (5th Cir. 2009).
Access Device Fraud
( 18 U.S.C. §§ 1030
( From United States v. John, 597 F.3d263 (5th Cir. Feb. 9, 2010)(08-010459).
( John was convicted of violating § 1030(a)(2), which proscribes exceeding authorized access. The term “exceeds authorized access” is defined in § 1030(e)(6): “the term ‘exceeds authorized access’ means to access a computer with authorization and
to us e such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter. .:.
( The statute at issue prohibits both accessing a computer “without authorization” and “exceed[ing] authorized access” to obtain specified information. The statute does not define “authorized,” or “authorization,” which is used in the definition of “exceeds authorized access.” The question before us is whether “authorized access” or “authorization” may encompass limits placed on the use of information obtained by permitted access to a computer system and data available on that system. We conclude that it may, at least when the user knows or reasonably should know that he or she is not authorized to access a computer and information obtainable from that access in furtherance of or to perpetrate a crime.
( In United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007), this court analyzed whether a criminal defendant had accessed university computers “without authorization” in violation of § 1030(a)(5)(A)(ii), as distinguished from “exceed[ing] authorized access,” and we recognized that “[c]ourts have . . . typically analyzed the scope of a user’s authorization to access a protected computer on the basis of the expected norms of intended use or the nature of the relationship established between the computer owner and the user.” We applied this “intended-use analysis” to conclude that a student who used his privilege of access to a university’s computer was not authorized to access parts of the system to which he had not been given a password. John’s situation differs from that of the student in Phillips because John was authorized to view and print all of the information that she accessed and that she provided to Riley. However, John’s use of Citigroup’s computer system to perpetrate fraud was not an intended use of that system. … Access to a computer and data that can be obtained from that access may be exceeded if the purposes for which access has been given are exceeded. In other words, John’s access to Citigroup’s data was confined. She was not authorized to access that information for any and all purposes but for limited purposes.
( We recognize that the Ninth Circuit may have a different view of how
“exceeds authorized access” should be construed. In LVRC Holdings LLC v.
Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009), a civil proceeding. … There are no such concerns in the present case. An authorized computer user “has reason to know” that he or she is not authorized to access data or information in furtherance of a criminally fraudulent scheme. Moreover, the Ninth Circuit’s reasoning at least implies that when an employee knows that the purpose for which she is accessing information in a computer is both in violation of an employer’s policies and is part of an illegal scheme, it would be “proper” to conclude that such conduct “exceeds authorized access” within the meaning of § 1030(a)(2).
( The Sentencing Guidelines applicable to fraud offenses are contained in § 2B1.1. The Guidelines’ commentary explains that under § 2B1.1, “loss serves as a measure of the seriousness of the offense and the defendant’s relative culpability and is a principal factor in determining the offense level under this guideline.” Accordingly, § 2B1.1(b)(1) creates a sliding scale that increases the defendant’s base offense level by zero to thirty points depending on the amount of loss. The Guidelines commentary explains that for purposes of that section, “loss is the greater of actual or intended loss.” In ascertaining the intended loss, the district court must determine the defendant’s actual intent. A determination of the loss amount is a factual finding reviewed for clear error. …
the Guidelines provide that in determining the amount of loss, “[t]he court need only make a reasonable estimate.” Accordingly, we give district courts “wide latitude” in this regard. “The method used to calculate the amount of loss, however, must bear some reasonable relation to the actual or intended harm of the offense.” We have held that in estimating intended loss in fraud cases, the district court may look beyond the monetary amount the defendant actually obtained or clearly attempted to obtain prior to being apprehended. … Appellant she argues that obtaining information is far more preparatory in nature than the actual possession of credit cards or checks, which allows for immediate access to the account. However, immediate access and risk of loss are not dispositive in all circumstances; rather, the critical determination is the intent of the defendant. We have expressly rejected the argument that a defendant could not be held accountable for attempted credit-card charges declined for exceeding the credit limit because the defendant never had actual access nor created any risk of loss. United States v. Ismoila, 100 F.3d 380, 396 (5th Cir. 1997). …
( John contends … the district court should have applied a three-level reduction for a “partially completed offense” based on note 17 in the Commentary to § 2B1.1. …United States v. Waskom, 179 F.3d 303, 308-09 (5th Cir. 1999). held that there are several
considerations in determining whether a reduction under § 2X1.1(b)(2) is appropriate. This Guidelines section has been amended since our decision in Waskom, and the conspirators’ subjective belief as to what was “necessary on their part for the successful completion of the substantive offense” is no longer part of the equation. However, four of the considerations set forth in Waskom remain pertinent. They are (1) a focus “on the substantive offense and the defendant’s conduct in relation to that specific offense,” (2) “§ 2X1.1(b)(2) does not require the reduction for a conspirator who has made substantial progress in his criminal endeavor simply because a significant step remains before the
commission of the substantive offense becomes inevitable,” (3) “the circumstances must demonstrate that the balance of the significant acts completed and those remaining tips toward completion of the substantive offense,” which “requires that the district court consider the quality of the completed and remaining acts, not simply the relative quantities of each,” and (4) “a sentencing court should consider the temporal frame of the scheme and the amount of time the defendant would have needed to finish his plan, had he not been interrupted.” In Waskom, we concluded that the district court had clearly
These (detailed in opinion) facts lead us to conclude that the three-level reduction under § 2X1.1(b)(2) applies. The district court found that John and her co-conspirators intended to obtain through their fraudulent scheme goods or cash equivalents worth $1,451,865. The scheme resulted in an actual loss amount of $78,750. The acts necessary to complete the intended offense had not been completed at the time John and others were apprehended. These circumstances are indistinguishable from the example in note 4 of the Commentary to § 2X1.1 ….
(Commentary of Orin Kerr in “Volokh Conspiracy” blog of 4-10-2010:
I’m not quite sure what I make of this opinion. First, I guess the goal in limiting the reasoning to furtherance of intentionally criminal acts was to be minimalist, but I find the meaning of the limitation sort of puzzling. I assume the standard is not supposed to be circular: That is, the intent to commit a crime is an intent to commit a crime other than unauthorized access. But if that’s so, then doesn’t it sort of turn the statute into the crime of using a computer to commit a crime? That would be ironic given that the prohibition on unauthorized access was originally designed to reject such an approach (see Senator Ribicoff’s 1977 proposed legislation that Congress never enacted, built on that standard). And isn’t it at least a little odd to use intent to commit a crime as important to authorization when that is also the test for the felony enhancement? It seems like triple-dipping: Intent to commit a crime triggers the misdemeanor, the felony, and the other substantive crime all at the same time.
Or perhaps the court is thinking that it wants to say that some written restrictions are recognizable under the unauthorized access statutes and others aren’t, and this is the first in what may be a case-by-case determination of which restrictions are recognized? Perhaps. I think you could build such a framework using vagueness doctrine: You could say that written restrictions are binding in circumstances when such a theory would not render the statute unconstitutionally vague, and then have a case-by-case determination of when such restrictions are permitted. You could have one set of rules for employees, for example, another for Internet use restrictions, etc. My forthcoming article on Vagueness Challenges to the Computer Fraud and Abuse Act suggests such a course. It will be interesting to see if John is eventually fit into such a framework.
More broadly, the Fifth Circuit’s lack of comfort with the analysis of both the First Circuit and the Ninth Circuit is pretty interesting. The facts of each of these cases are quite different, so at this point I see conceptual tension but not yet a formal circuit split. (The John case is also a bad vehicle because it’s a plain error case.) But I expect to see these issues leading to more disagreements among the circuits in coming years, leading to eventual Supreme Court review of just what makes computer use “without authorization” or “exceed authorized access.”
Accomplice. See Co-conspirator.
( Testimony from an accomplice along is sufficient to convict. United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008) (“Evidence consisting entirely of testimony from accomplices or conspirators is sufficient.”) (citing Turner, 319 F.3d at 721)); see United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997) (“As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a
co-conspirator, even one who has chosen to cooperate with the government in exchange for non-prosecution of leniency, may be constitutionally sufficient evidence to convict.”)
( United States v. Bowen, __ F.3d __ (5th Cir. March 29, 2016)(14-40654):
Vega argues that the evidence against him was “solely based on the codefendant testimony of one witness, Mr. Ramiro Cazares.” Vega acknowledges that a co-conspirator’s uncorroborated testimony can support a guilty verdict— even if the co-conspirator has accepted a plea bargain—unless the testimony is “incredible.” See United States v. Villegas-Rodriguez, 171 F.3d 224, 228 (5th Cir. 1999). Vega argues that Cazares’s testimony is incredible because Cazares admitted to being a deceptive person and had a motive to testify against Vega for the possibility of a reduced sentence. “Testimony is incredible as a matter of law only if it relates to facts that the witnesses could not possibly have observed or to events which could not have occurred under the laws of nature.” United States v. Valdez, 453 F.3d 252, 257 (5th 2006). Neither Cazares’s admission to having deceived someone in the past nor his possible motive to testify against Vega render Cazares’s testimony “incredible.” See id. The jurors were adequately informed about these matters, and we do not review the weight or credibility of the evidence, including witness testimony. United States v. Hayes, 342 F.3d 385, 389 (5th Cir. 2003). Instead, we view the evidence “in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict.” United States v. MorenoGonzalez, 662 F.3d 369, 372 (5th Cir. 2011).
Acquittal, Motion
( To preserve insufficiency claim, defense counsel must move for judgment of acquittal when United States rests and after both sides close. Fed. R. Crim. P. 29.
( Where a defendant has preserved a challenge to the sufficiency of evidence …
we review the denial of a judgment of acquittal de novo. United States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998). We determine whether, when viewing the evidence in the light most favorable to the verdict, “a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt.” United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).
( This court reviews the denial of a motion for acquittal de novo. United States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007).
( Gov’t Appeal of Post-Verdict Judgment of Acquittal. Permitted. United States v. Shoemaker, __ F.3d __ (5th Cir. March 25, 2014)(12-60754): The Government contends that the district court erred in granting judgments of acquittal to Garner on Counts One, Two, Four, and Five, and to Shoemaker on Counts One and Four. The district court determined that insufficient evidence supported each conviction, and on appeal, the
Government challenges these determinations. We give no deference to a district court’s post-verdict judgment of acquittal. United States v. Hanson, 161 F.3d 896, 900 (5th Cir. 1998). Rather, we “decide de novo whether the relevant evidence, viewed in a light most favorable to the government, could be accepted by a jury as adequate and
sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted). In considering the sufficiency of the evidence, we must bear in mind that the “jury is free to choose among reasonable constructions of the evidence,” even when certain evidence conflicts or suggests innocence. Id. Although a district court may re-weigh evidence and assess witness credibility in considering a motion for new trial, it has “[n]o such discretion” when deciding a motion for judgment of acquittal. United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997).
Acquitted Conduct Used at Sentencing
( Permitted. United States v. Watts, 519 U.S. 148, 156-57 (1997). In Watts, the Court
held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been
proved by a preponderance of the evidence.” Id. at 157. This court previously held that
Watts remains valid after United States v. Booker, 543 U.S. 220 (2005). See United
States v. Farias, 469 F.3d 393, 399 (5th Cir. 2006).
( In United States v. Jackson, 596 F.3d 236 (5th Cir. Feb. 3, 2010)(07-30981), Court suggested that defendant should have objected to the PSR on the grounds that the evidence was not supported by a preponderance of the evidence when jurors acquitted defendant of the indictment. Citation may be 596 F.3d 236 (5th Cir. 2009)?
( An earlier acquittal raises a bar to further prosecution if the later prosecution rests on a fact necessarily decided in defendant’s favor by the jury. United States v. Sarabia, 661 F.3 226 (5th Cir. 2011).(But U.S. could still prosecute D of substantive D offense after acquittal in drug conspiracy case).
Acquittal and Jeopardy
( A directed verdict is an acquittal for which jeopardy will lie.
Martinez v. Illinois, 134 S. Ct. 2070 (2014).
Admissions by Government Agent Not Binding
( From United States v. Martinez-Saavedra (5th Cir. March 30, 2010)(09-50206)
(unpublished): Martinez contends that the court abused its discretion by refusing to admit an out-of-court statement by a federal agent indicating that the agent believed Martinez’s story that he was transporting the cocaine under duress applied by a person named Fausto who said he would have Martinez’s family killed if Martinez did not cooperate. We review the district court’s ruling for abuse of discretion. United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005). Martinez admitted that the agent was available to be called as a defense witness but was not called by either party. There is nothing to indicate that the agent’s belief was based on anything other than his having heard Martinez so state when questioned by other agents at the Del Rio port of entry after the cocaine was found. Martinez argues that the agent’s statement was not hearsay because it was an admission by a party under FED. R. EVID. 801(d)(2)(D). We have previously declined to apply Rule 801(d)(2)(D) to a statement made by a government agent because the statements of individual agents do not bind the sovereign except in rare circumstances. See United States v. Garza, 448 F.3d 294, 298-99 & nn.14-16 (5th Cir. 2006). The district court did not abuse itsdiscretion by refusing to admit the agent’s out-of-court statement. See Ragsdale, 426 F.3d at 774. … Further, any error in excluding the statement would be harmless. Even if Martinez could overcome the hearsay hurdles, the testimony would still be inadmissible on other grounds. See Viazis v. Am. Ass’n of Orthodontists, 314 F.3d 758, 767 (5th Cir. 2002). Here, the agent’s beliefs are inadmissible opinion testimony. Lay opinions must be “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” FED. R. EVID. 701(b).
The agent’s belief was unlikely to aid the jury in making credibility determinations.
Adopting Another’s Appeal Points Prohibited
( An appellant cannot merely adopt another appellant’s brief on factual insufficiency.
United States v. Solis, 299 F.3d 420, 444 n. 70 (5th Cir. 2002).
AEDPA
Mark v. Thaler, __ F. 3d ____ (5th Cir. July 6, 2011)(09-50672)(STATUTE OF LIMITATIONS):
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state prisoner must
file his federal habeas petition before the expiration of the one-year statute of
limitations. 28 U.S.C § 2244(d)(1). A properly filed state habeas petition tolls
the statute of limitations as long as it remains pending. Id. § 2244(d)(2). The
one-year period begins to run from “the date on which the [state court] judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review.” Id. § 2244(d)(1)(A). Thus, “because it triggers the
limitations period, the date a judgment becomes final is often critical” in
assessing the timeliness of a federal habeas petition. Foreman v. Dretke, 383
F.3d 336, 338 (5th Cir. 2004).
A state conviction becomes final under AEDPA when there is no further
“‘availability of direct appeal to the state courts.’” Jimenez v. Quarterman, 555
U.S. 113, 129 S. Ct. 681, 685 (2009) (quoting Caspari v. Bohlen, 510 U.S. 383,
390 (1994)). “Until that time, the process of direct review has not come to an end
and a presumption of finality and legality cannot yet have attached to the
conviction and sentence.” Id. at 685-86 (internal quotation marks omitted).
Under Texas law, a petitioner may seek review in the Court of Criminal Appeals
by filing a petition for discretionary review (PDR) within 30 days after the
intermediate court renders judgment. Tex. R. App. P. 68.1, 68.2(a). We have
held that, when a petitioner elects not to file a PDR, his conviction becomes final
under AEDPA at the end of the 30-day period in which he could have filed the
petition—that is, “when the time for seeking further direct review expired.”
Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003).
Here, after Mark’s motion to dismiss his appeal was granted, he did not
file a PDR. Therefore, applying our well-settled rule, Mark’s conviction became
“final” within the meaning of AEDPA 30 days after the Court of Appeals entered
judgment dismissing his appeal. That well-settled rule would not apply,
however, if Mark’s direct review process immediately came to an end when the
Court of Appeals entered judgment because he was somehow prohibited from
filing a PDR. In other words, Mark’s date of finality turns on whether Texas law
would have permitted him to file a PDR in the 30 days after the Court of Appeals
granted his motion to dismiss. Our review of the Texas Rules of Appellate
Procedure suggests that he could have done so.
The Rules provide that “[o]n petition by any party, the Court of Criminal
Appeals may review a court of appeals’ decision in a criminal case.” Tex. R. Civ.
P. 68.1. Under the Rules, dismissal of an appeal constitutes a judgment, which
starts the running of the 30 days for filing a PDR to the CCA. Beneath the
heading “Types of Judgment,” Rule 43.2 lists six possible dispositions by the
Court of Appeals, including “dismiss the appeal.” Tex. R. App. P. 43.2. If a party
wishes to seek review of such a judgment in the CCA, “[t]he petition must be
filed within 30 days after . . . the day the court of appeals’ judgment was
rendered.” Tex. R. App. P. 68.2(a).
Thus, Respondent has not identified any provision of Texas law that would
have prevented Mark from filing a petition for discretionary review within the
30-day period after the court granted his motion to dismiss his appeal. Nothing
in the Texas Rules of Appellate Procedure states, or even suggests, that a
defendant who makes a motion to dismiss his appeal is foreclosed from filing a
PDR. Indeed, the language allowing review by the CCA “on petition by any
party” means that a petition may be filed even by a prevailing party—one who,
like Mark, received exactly the relief he sought in the appellate court. Tex. R.
App. P. 68.1 (emphasis added).
Agency Investigations Admissible
( EEOC: Smith v. Universal Services, Inc., 454 F.2d 154 (5th Cir. 1972).
( SEC: United States v. Gluk and Baker, __ F.3d __ (5th Cir. Jan. 25 & Feb. 17, 2016)(
14-51012).
Aggravated Felony under USSG § 2L1.2 (See also separate file created by FPD)
( Burglary as Crime of violence. United States v. Ramirez-Cantu, (5th Cir. May 26, 2017)(16-50712): Relying on Mathis v. United States, 136 S. Ct. 2243 (2016), as well as on Texas jurisprudence, Ramirez-Cantu argues that the Texas burglary statute is broader than the enumerated offense of burglary of a dwelling and that the Texas burglary statute is not divisible for purposes of applying the modified categorical approach. Ramirez-Cantu concedes, however, that the issue he raises on appeal is foreclosed by this court’s decision in United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No. 16-7969). The Government agrees that Ramirez-Cantu’s Mathis-based challenge is foreclosed by Uribe, and it has filed an unopposed motion for summary affirmance….In a pre-Mathis decision, we determined that the Texas burglary statute, TEX. PENAL CODE ANN. § 30.02 (2009), is a divisible statute that is amenable to application of the modified categorical approach. See United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014). Ramirez-Cantu’s argument, in reliance on Mathis, that § 30.02(a) is not divisible and, thus, cannot support application of the modified categorical approach, was squarely rejected in Uribe, wherein we determined that the provisions of the Texas burglary statute set forth elements, rather than means, and that Conde-Castaneda had not been disturbed by Mathis. See Uribe, 838 F.3d at 670-71.
( Person under Deportation Order who Voluntarily Leaves Is Deported for purposes of 2L2.2. United States v. Murillo-Acosta, __ F.3d ___ (5th Cir. May 16, 2014)(13-50637);
United States v. Munoz-Valencia, 59 F. App’x 483, 485-87 (3d Cir. 2003); United States v. Blaize, 959 F.2d 850, 851 (9th Cir. 1992).
( United States v. Martinez-Rodriguez, (5th Cir. May 12, 2017)(15-41688): Attacking injury to a child as a crime of violence:
The 2014 version of § 2L1.2(b)(1)(C) at issue herein, see ROA.98 (PSR ¶ 10), provides that a defendant’s offense level shall be increased by eight levels if the defendant was deported after an aggravated felony conviction, see § 2L1.2(b)(1)(C) (2014). Section 1326(b)(2) permits, inter alia, a maximum sentence of 20 years when an alien has been previously removed after an aggravated felony conviction. See 8 U.S.C. § 1326(b)(2). For purposes of both § 2L1.2 and § 1326(b)(2), the term “aggravated felony” has the meaning set forth in 8 U.S.C. § 1101(a)(43). See § 2L1.2, comment. (n.3(A)) (2014); United States v. Castaneda-Lozoya, 812 F.3d 457, 459 (5th Cir. 2016). Whether an offense qualifies as an aggravated felony is purely a legal question, reviewed by this Court de novo, Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008), as are interpretations of the Guidelines themselves. United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008).
( United States v. Hernandez-Hernandez, __ F.3d __ (5th Cir. 3-17-2016)(15-40480_:
Assaulting a federal office in violation of 18 U.S.C. § 111 is a crime of violence.
To determine whether a prior conviction constitutes a generic offense, such as a crime of violence and thus an aggravated felony, this court generally employs the categorical approach – the focus of which is on the elements of the offenses, not the underlying facts of the prior conviction. See United States v. Hinkle, 832 F.3d 569, 572 (5th Cir. 2016); see also Franco-Casasola v. Holder, 773 F.3d 33, 36 (5th Cir. 2014) (discussing “how to determine whether a prior offense qualifies as an aggravated felony,” beginning with the categorical approach). So long as the relevant statutes state a single, or indivisible, set of elements, application of the categorical approach is a rote exercise. See Mathis, 136 S. Ct. at 2248. Courts simply line up the elements of the two offenses to determine whether they match. Id. If the elements of the prior offense are the same or narrower than those of the generic offense, then it qualifies for whatever consequences under federal law attach to the generic offense. Id. However, if its elements are broader, then the prior offense is not treated as an equivalent to the generic offense. Id.; see also Gomez-Perez v. Lynch, 829 F.3d 323, 326-27 (5th Cir. 2016) (applying the categorical approach in a case involving the Immigration and Nationality Act).
If a statute sets forth elements in an alternative or disjunctive structure, it is considered divisible, and a second approach is available to the courts. See Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013). Known as the modified categorical approach, this approach allows a court to pare down a prior conviction under a divisible statute by consulting certain materials such as, in the case of a plea bargain, “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.” See Shephard v. United States, 544 U.S. 13, 16 (2005). Thus, unlike the categorical approach which concerns elements only, underlying facts are relevant to the modified categorical approach.
In Mathis v. United States, the Supreme Court provided guidance on when a statute is divisible and, thus, when the modified categorical approach is available. 136 S. Ct. 2243, 2248-54 (2016). It clarified that the approach is to be applied only to statutes that list alternative elements and not to statutes that list alternative means of satisfying elements. Id. The distinction between the elements and means is critical to the divisibility of a statute. See id. at 2256 (“The task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.”). “The test to distinguish means from elements is whether a jury must agree.” United States v. Howell, 838 F.3d 489, 497 (5th Cir. 2016). “Elements must be agreed upon by a jury. When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense not an element of the offense.” Hinkle, 832 F.3d at 575. Ultimately, “the court has no call to decide which of . . . alternative[ ] [means] was at issue in [an] earlier prosecution.” Mathis, 136 S. Ct. at 2256.
According to Mathis, a determination of means versus elements is often easy to make, as federal courts are to follow definitive state court decisions on the issue. Id. at 2256 (“When a ruling of that kind exists, a sentencing judge need only follow what it says.”). In prior opinions, this Court has recognized that “[t]he Mathis decision is controlling regarding the methodology of the modified categorical approach, and we must apply its holdings, even when they are contrary to prior precedent of this court.” See Hinkle, 832 F.3d at 574 (applying methodology addressed in Mathis to a Guidelines issue); see also Gomez-Perez v. Lynch, 829 F.3d 323, 328 n. 5 (5th Cir. 2016) (recognizing that Mathis overruled certain prior cases insofar as they found a particular “statute to be divisible and subject to the modified categorical approach”). As noted by the parties in this case, the Fifth Circuit has previously held that causing injury to a child under Texas Penal Code § 22.04(a) is not categorically a crime of violence for purposes of the aggravated felony enhancement of § 2L1.2, because such offenses may be committed by both acts and omissions. See United States v. Gracia-Cantu, 302 F.3d 308, 310, 312-13 (5th Cir. 2002). Furthermore, as noted, this court analyzed § 22.04(a) in PerezMunoz v. Keisler, applying the modified categorical approach. 507 F.3d 357, 358-59, 361-62 (5th Cir. 2007). In doing so, the Perez-Munoz court found that the Texas statute was divisible because it involved multiple offenses, specifically because it criminalized both acts and omissions causing injury to a child. Id. at 362; see also Carmona-Castillo v. Mukasey, 300 F. App’x 287, 288 (5th Cir. 2008) (observing that § 22.04(a) was divisible because it defined multiple offenses). Since the Descamps and Mathis decisions, however, it is now clear that an elements-focused analysis is the only approved method for determining the divisibility of the statute.
Now, guided by the Mathis decision in particular, the Court must revisit
Texas Penal Code § 22.04(a), to consider whether its listed items, namely committing an offense by act or by omission, are alternative elements of an offense or alternative means of commission. We find that the Texas Court of Criminal Appeals has answered this precise question by concluding that the Texas Legislature intended the “act or omission” language in § 22.04(a) to “constitute the means of committing the course of conduct element of injury to a child” rather than elements of the offense “about which a jury must be unanimous.” Jefferson v. State, 289 S.W.3d 305. 312 (Tex. Crim. App. 2006); see also Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007) (holding, for purposes of double jeopardy, that the act and omission components of Tex. Penal Code § 22.04(a) “were simply two means of alleging and/or proving the same offense . . . .”). Accordingly, our analysis must rest upon those definitive state law decisions. Therefore, we too conclude that § 22.04(a) is an indivisible statute, as a result of its alternative components being means and not elements. As such, the modified categorical approach should have played no role in the district court’s sentencing decision. Furthermore, because the offense of causing injury to a child is broader under the Texas statute than a crime of violence, the sentencing court erred when, without the benefit of Mathis, it considered more than statutory elements to discern the means by which Martinez-Rodriguez committed the offense, for purposes of enhancement under USSG § 2L1.2(b)(1)(C) (2014) and sentencing under 8 U.S.C. § 1326(b)(2).
III. CONCLUSION For the foregoing reasons, we VACATE Martinez-Rodriguez’s sentence and REMAND for resentencing in accordance with this opinion
( United States v. Ortega-Calderon, __ “F.3d __ (5th Cir. Feb. 26, 2016)(14-40889):
D given sentencing enhancement under 2L1.2. The PSR recommended a 12-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on a 2003 CA felony conviction for assault W/ a DW. D objected & requested that the PO produce a charging instrument, judgment, & any other documents relevant to the 2003 conviction. ThPO did not produce the charging instrument or a Jmt, but it did attach 2 Dmts as an addendum to the PSR: a “Disposition of Arrest and Court Action” & a 20-page docket sheet, both of which indicated that, in 2003, an individual named Juan Ortega Calderon pleaded nolo contendere to violating Cal. Penal Code § 245(a)(1) (assault W/ DW) & was convicted. At sentencing, D again objected to the enhancement, insinuating that these 2 Dmts were not sufficiently reliable to justify the enhancement.
( We must determine what standard of review applies in this case. The parties disagree on this point. Ortega-Calderon proposes that we review the district court’s reliability determination de novo, while the Government suggests a clear error standard. Finding that our precedents do not plainly answer this question, we hold that a district court’s conclusion that evidence submitted to prove the fact of a prior conviction bears “sufficient indicia of reliability,” U.S.S.G. § 6A1.3(a), is reviewed for clear error.
( We have recognized the distinction between the legal inquiry at the heart of Taylor and the factual question of whether a defendant has been convicted— period. See United States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007). When seeking only to prove the mere fact of a conviction, rather than its elements or underlying facts, the Government need not adhere to the stringent requirements of Taylor or Shepard v. United States, 544 U.S. 13 (2005). Neri-Hernandes, 504 F.3d at 591. The strict standard of review that applies in those cases is likewise inapposite here.
--In Neri-Hernandes, we affirmed a crime of violence enhancement based on a previous conviction, which the Government proved using Certificates of Disposition from New York. The Certificates bore sufficient indicia of reliability, in part because they “constitute[d] presumptive evidence of the facts stated in such certificate” in New York. Id. at 592 (quoting United States v. Green, 480 F.3d 627, 632 (2d Cir. 2007)). In reaching this conclusion, we cited the language from Zuniga-Chavez upon which Ortega-Calderon now relies. Id. at 591. But our approval of that case was a far cry from establishing a rule for determining when evidence of a prior conviction is reliable. Rather, ZunigaChavez illustrated the distinction between a Shepard inquiry, where the Government must prove the facts underlying a conviction, versus merely proving that a conviction exists. Id. at 591–92. This distinction helped the Court focus on the operative question: “whether the New York Certificates of Disposition ha[d] sufficient indicia of reliability to support their probable accuracy such that the documents c[ould] be used as evidence of [the defendant’s] prior conviction.” Id. In other words, the issue in Neri-Herndandes was whether the Certificates were reliable, and not whether they had been prepared by a clerk and obtained from a state court.
( Texas Aggravated assault with a deadly weapon is generic aggravated assault
even when there is no affirmative finding of a weapon. United States v.
Sanchez-Sanchez, (5th Cir. 2-14-2015)(14-10305)),
( United States v. Rodriguez-Salazar, __ F.3 __ (5th Cir. Sept. 30, 2014): (13-40929)
Theft without effective consent unde Texas Penal Code § 31.03(a) is an aggravated offense under USSG § 2L1.2.
( Deferred Adjudication does not Make Agg Felony: See United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009) (holding that an offense for which the defendant was sentenced to deferred adjudication probation under Texas law is not an aggravated felony).
( 16-level enhancement imposed under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his Texas conviction for possession of cocaine with intent to distribute qualifies as
as a drug trafficking offense. United States v. Teran-Salas, 767 F.3d 453, 460-62 (5th Cir. 2014). Accord: United States v. Rios-Pintado, ((5th Cir. May 21, 2015)(13-40862).:
In United States v. Teran-Salas, 767 F.3d 453 (5th Cir. 2014), decided by this Court on September 15, 2014, the defendant challenged application of the § 2L1.2 “drug trafficking offense” enhancement under the same state statute on virtually the same grounds raised here. Rios-Pintado makes no argument to distinguish his case from the holding in Teran-Salas, and there does not appear to be any. Accordingly, his argument is foreclosed by circuit precedent. In Teran-Salas, 767 F.3d at 461−62 & n.5, this Court held that a conviction under Texas Health and Safety Code § 481.112(a) of possession with intent to deliver cocaine was a drug trafficking offense for purposes of the U.S.S.G. § 2L1.2(b)(1)(A)(i) enhancement and an aggravated felony under 8 U.S.C. § 1326(b)(2). The Court engaged in a thorough analysis of the Texas statute.
The Court noted that “[u]nder the federal scheme, any administering of a controlled substance that falls under the federal definition for ‘dispense’ must be ‘by, or pursuant to the lawful order of, a practitioner,’” whereas under Texas law, “the agent can administer by applying a drug in the presence of a practitioner.” Id. at 459 (citing 21 U.S.C. § 802(10)). Accordingly, the Court found that there was a “theoretical possibility that a defendant can be convicted under Texas law for administering in a way that is not dispensing under the federal guidelines.” Id. at 459. Rios-Pintado was convicted of unlawful delivery of a controlled substance in violation of Texas Health and Safety Code § 481.112(a), which is a “divisible statute” in that it criminalized several discrete acts. See TeranSalas, 767 F.3d 453, 460−62. Therefore, the Court applies the “modified
categorical approach” for determining whether his prior conviction qualifies as a level-enhancing offense under the Guidelines, “look[ing] beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction.” Id. at 459. Looking to the 2011 Texas indictment, it shows that Rios-Pintado was convicted of “unlawfully and knowingly deliver[ing] . . . [c]ocaine in an amount by aggregate weight, including any adulterants or dilutants of less than 1 gram.” Applying the same “common sense approach” that this Court applied in Teran-Salas, Rios-Pintado has not shown that it is a realistic possibility that a person either would be prosecuted for “administering” cocaine as that term is defined under the Texas statute or could “administer” cocaine in a manner that did not also constitute “dispensing” or “distributing” under the Guidelines. 767 F.3d 453, 460−62. Moreover, he has identified no prior Texas case applying the statute in an “administering” situation. Id. at 460−61. A theoretical possibility that a statute might encompass types of conduct that would not qualify as a drug trafficking offense is insufficient. See United States v. Carrasco-Tercero, 745 F.3d 192, 197−98 (5th Cir. 2014). Accordingly, on de novo review, this Court finds that the district court correctly determined that Rios-Pintado’s 2011 Texas conviction for delivery of a controlled substance was a drug trafficking offense pursuant to U.S.S.G. § 2L1.2(b)(1)(B) and an aggravated felony pursuant to 8 U.S.C. § 1326(b)(2).
( United States v. Casteneda-Loyoza, _ F.3d __ (5th Cir. Feb. 4. 2-16)(15-0022):
No plain error when considering sexual assault with deferred adjudication as a crime of violence under 2L1.
( United States v. Pascacio-Rodriguez, __ F.3d __ (5th Cir. April 11, 2014)(121-40264):
Conspiracy to commit murder does not require an overt act for purposes of USSG 2L1.2.
( United States v. Rodriguez, 711 F.3d 541 (5th Cir. March. 15, 2013)(11-20881)(en banc). Rodriguez now challenges his sentence, arguing that it was error for the district court to apply a sixteen-level “crime of violence” enhancement based on a prior Texas conviction for sexual assault of a child. We AFFIRM Rodriguez’s sentence, and in so doing, we adopt a plain-meaning approach to the “crime of violence” enhancements of “sexual abuse of a minor” and “statutory rape” under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) [hereinafter “U.S.S.G.”]. Under this approach, we hold that for the purposes of the crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii), the meaning of “minor” in “sexual abuse of a minor” is a person under the age of majority—which we conclude to be eighteen. We also hold that the age of consent for the purposes of “statutory rape” is the age of consent as defined by statute in the jurisdiction where the prior conviction was obtained. More specifically, under this plain-meaning approach, we proceed with the following four steps: First, we identify the undefined offense category that triggers the federal sentencing enhancement. We then evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable commentary. If not, we proceed to step two, and determine whether that undefined offense category is an offense category defined at common law, or an offense category that is not defined at common law. Third, if the offense category is a non-common-law offense category, then we derive its “generic, contemporary meaning” from its common usage as stated in legal and other well accepted dictionaries. Fourth, we look to the elements of the state statute of conviction and evaluate whether those elements comport with the generic meaning of the enumerated offense category. This plain-meaning approach is faithful to the Supreme Court’s decision in Taylor v. United States, 495 U.S. 597 (1990), but does not impose a cumbersome methodological requirement on lower courts to conduct a nationwide survey and look to the majority of state codes—as well as the Model Penal Code, federal law, and criminal law treatises—when deriving the meaning of an undefined offense category enumerated in a federal sentencing enhancement.
( Under the modified categorical approach, burglary of a habitation under Texas Penal Code 30.02(a)(1) and (3) is a crime of violence for purposes of USSG 2L1.1. United States v. Conde-Castenada, 753 F.3d 172, 175–79 (2014). (The issue in this case is whether the Supreme Court’s recent decision in Mathis v. United States, 136 S. Ct. 2243 (2016) disturbs Conde-Castaneda. We hold that it does not. __ F.3 __ , (5th Cir. Oct 3, 2016)(15-51223).). The question presented is whether this predicate offense constitutes a “burglary of a dwelling” under the Sentencing Guidelines and is therefore a crime of violence. We hold that it does, and it is. We also hold that Conde’s written Texas “boiler plate” judicial confession, in
which he confessed to “each and every act alleged” in the indictment, is sufficient to establish that his prior conviction rested on every offense the indictment charged.
There are two ways we can determine whether Conde’s predicate offense qualifies as a “burglary of a dwelling,” and consequently a “crime of violence.” One is to look only to the elements of Conde’s predicate offense. If § 30.02(a)’s elements are the same as or narrower than those of the generic offense of burglary of a dwelling, Conde’s predicate offense qualifies as a “crime of violence.” See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). (Although Descamps involved the Armed Career Criminal Act (“ACCA”), the Fifth Circuit has drawn heavily on ACCA cases in its Sentencing Guidelines jurisprudence. See, e.g., United States v. Rodriguez, 711 F.3d 541, 553 (5th Cir. 2013) (en banc). ) The Supreme Court has called this test the categorical approach, as the test looks to the category of conduct the statute criminalizes rather than the facts underlying the defendant’s predicate offense.
The second way to determine whether Conde’s prior conviction qualifies as a “burglary of a dwelling” under the Sentencing Guidelines is to look beyond the elements of the statute to a limited set of documents. Under this test, called the modified categorical approach, the court can look at so-called Shepard documents, which include the charging document, written judicial confession, and judgment. United States v. Garcia-Arellano, 522 F.3d 477, 480–81 (5th Cir. 2008). The categorical approach is the default test. Cf. Descamps, 133 S. Ct. at 2281. The modified categorical approach, however, applies when the defendant’s predicate offense was violating a statute containing divisible crimes.
( United States v. Camero-Renabato, __ F.3 __ (5th Cir. Feb. 9, 2012)(11-20224):
(Camero) pleaded guilty to illegal reentry following deportation after conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2). The district court sentenced Camero to 71 months in prison. Camero argues that the district court committed a procedural error when it allegedly failed adequately to explain the chosen sentence. Camero also argues that the sentence is substantively unreasonable because it is greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).
The district court did not commit procedural error with respect to the
sufficiency of its explanation for the sentence it imposed. Almost the entire
sentencing hearing was devoted to Camero’s request for a below-guidelines
sentence. After listening to Camero’s arguments, inviting and listening to the Government’s response, and permitting the defense to respond further, the
district court noted that a within-guidelines sentence was appropriate in light
of the § 3553(a) factors. Indeed, the district court’s statements regarding the 71-
month sentence reflect that it considered the history and characteristics of
Camero, the nature and circumstances of the offense of conviction, and the need
for the sentence imposed to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense, to afford adequate
deterrence to criminal conduct, and to protect the public from further crimes of
the Camero. The district court’s failure to give additional reasons did not
constitute procedural error. See Rita v. United States, 551 U.S. 338, 358-59
(2007).
We clarify that our decision in United States v. Mondragon-Santiago, 564
F.3d 357 (5th Cir. 2009), which perceived procedural unreasonableness in the
inadequacy of sentencing reasons, involved not “giv[ing] any reasons for its
sentence beyond a bare recitation of the Guideline’s calculation.” Id. at 363
(emphasis added). As we quoted in Mondragon-Satiago, the district court in that
case offered only a single sentence about a Guidelines calculation, hence gave no
elaboration of sentencing reasons. Id. at 364. By contrast, the district court in
the instant case entertained lengthy comments from both parties and then
elaborated its particularized explanation for a within-guidelines sentence. No
more is required. Because there is no procedural error, we review “the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51. “[A] sentence within a properly calculated Guideline range is presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006); see also Rita, 551 U.S. at 347. … Camero’s alternative argument that the presumption of reasonableness should not apply because U.S.S.G. § 2L1.2 is not empirically based is, as Camero acknowledges, foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). AFFIRMED.
( United States v. Rodriguez-Juarez, __ F.3d __ (5th Cir. Jan. 10, 2011)(09-41001):
In 2008, USSG § 2L1.2 cmt n(B)(iii) was amended. USSG app. C. amend. 722.
The new Guidelines specify that the definition of “crime of violence” includes sexual offenses “where consent to the conduct . . . is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” In its reasons for the amendment, the Sentencing Commission explained that “[a]pplication of the amendment . . . would result in an outcome that is contrary to cases excluding crimes in which ‘there may be assent in fact but no legally valid consent’ from the scope of ‘forcible sex offenses’”
The effect of the revisions to the Sentencing Guidelines is to make our prior precedent inapplicable to sentences calculated under the revised version of U.S.S.G. § L1.2(b)(1)(A)(ii)., such as United States v. Luciano-Rodriguez, 442 F.3d 320, 322-23 (5th Cir. 2006) (holding that a conviction for a sexual assault was not a forcible sex offense because it could have been based on assent when, inter alia, “the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it”); United States v. Sarmiento-Funes, 374 F.3d 336, 341 (5th Cir. 2004) (holding that a conviction for sexual assault was not a forcible sex offense because it could have been based on assent that is “the product of deception or a judgment impaired by intoxication”).
( Second or subsequent simple possession offenses are not aggravated felonies under CSAA when, as here, the state conviction is not based on the fact of a prior conviction.
Carachuri-Rosendo v. Holder, 560 U.S. __ , 130 S. Ct. 2577, 2589(2010). (reversed Fifth Circuit).
( Texas Felon in Possession of Firearm is Aggravated Felony under 8 USC 1101.
Nieto Hernandez v. Holder, 592 F.3d 681, 686 (5th Cir. 2009); United States v.
Castillo-Rivera, __ F.3d ___ (5th Cir. Sept. 2, 2016)(15-10615).
( we may examine state-court documents to support an enhancement even when it appears the district court did not examine them. United States v. Martinez-Vega,
471 F. 3d 559, 561 (5th Cir. 2006).
( A conviction for sexual assault of a child under TEX. PENAL CODE § 22.011(a)(2)(A) is a crime of violence and would support a 16-level increase in a defendant’s offense level. Castro-Guevarra, 575 F.3d 550, 552-53 (5th Cir. 2009).
( A conviction for evading arrest using a motor vehicle is a crime of violence under 18 U.S.C. § 16(b), and therefore an aggravated felony. United States v. Sanchez–Ledezma, 630 F.3d 447, 451 (5th Cir. 2011), cert. denied, 131 S. Ct. 3024 (2011).
( A conviction for aggravated assault under TEX. PENAL CODE § 22.02
is a crime of violence under USSG § 2L1.1.2. United States v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007); United States v. Delgado-Salazar, 252 F. App’x 596, 597-98 (5th Cir. 2007); United States v. Peraza-Chicas, 254 F. App’x 399, 403-05 (5th Cir. 2007)
(addressing a different statute); United States v. Perez-Castro, 10-20247 (Jan. 7, 2011).
( From United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. 5-27-2009)(07-41132)
Section 2L1.2(b)(1)(C) of the Federal Sentencing Guidelines provides for an eight-level enhancement if the defendant has been convicted of an “aggravated felony.” The term “aggravated felony” in § 2L1.2(b)(1)(C) includes “any felony punishable under the Controlled Substances Act [CSA].” United States v. Cepeda-Rios, 530 F.3d 333, 334 (5th Cir. 2008) (quotation marks omitted) (emphasis omitted). Our initial point of inquiry, therefore, is whether either of Andrade’s state law convictions is punishable as a “felony” under the CSA.
The Supreme Court has adopted the “hypothetical federal felony” approach to determine whether a prior state law conviction constitutes a felony: courts look to parallel federal law to see whether the offense, if prosecuted federally (here, under the CSA), could carry a sentence exceeding one year. Lopez v. Gonzales, 549 U.S. 47, 56 & n.7, 60 (2006). The parties agree that under federal law, only Andrade’s conviction for the November offense could carry such a sentence, and only if Andrade committed that offense after “a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final.” 21 U.S.C. § 844(a) (emphasis added). Therefore, the narrow question before us is whether Andrade’s first state law conviction, judgment of which was entered July 16, 2001, was “final” for purposes of § 844(a) (and thus § 2L1.2) by the time he committed his second state law offense on November 9,
2001. Andrade preserved the issue of finality by objecting to the district court’s 1
determination of that question.
Burden of Proof. Because the Government sought the sentencing enhancement, it bore the burden to demonstrate finality. United States v. Herrera-Solorzano, 114 F.3d 48,
50 (5th Cir. 1997) (“The burden is on the party seeking to adjust the sentence level to prove by a preponderance of the relevant and sufficiently reliable evidence” that a prior conviction qualifies for the enhancement.) (quotation marks omitted).
Proving Finality. … Texas Rule of Appellate Procedure 26.2(a) provides
merely that the defendant has 30 days from the date of sentencing to file a direct
appeal. Unclear from the record, however, is whether the period for both direct
and discretionary review had expired. We have explained:
[T]he final-conviction language of § 841(b)(1)(B) applies to a
conviction which is no longer subject to examination on direct
appeal, including an application for certiorari to the United States
Supreme Court, either because of disposition on appeal and
conclusion of the appellate process, or because of the passage,
without action, of the time for seeking appellate review.
United States v. Morales, 854 F.2d 65, 69 (5th Cir. 1988). In Smith v. Gonzales,
we found the provisions requiring finality of state court convictions contained in
§ 844(a) to be analogous to that found in § 841(b)(1). 468 F.3d 272, 277 (5th Cir.
2006) (quoting the language above from Morales). Thus, to show finality, the
Government was required to show by a preponderance of the evidence both that
(1) Andrade’s July conviction was “no longer subject to examination on direct
appeal” within the meaning of Morales, and (2) that it was not subject to
discretionary review by any court.
-------------------
1. Our pre- and post-Lopez decisions agree that the finality question is one of federal 1
law. See United States v. Fazande, 487 F.3d 307, 308 (5th Cir. 2007) (post-Lopez); United
States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (pre-Lopez) (“We may examine state law, for
informational purposes, but we are not bound by its treatment of a felony conviction when we
apply the federal sentence-enhancement provisions.”).
2. This is a crucial distinction from the cases that were the focus of the letter briefs filed 2
by the parties in this case: United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008)
(noting that defendant did not contest the finality of his prior state-law conviction); United
States v. Rosales-Hurtado, 309 F. App’x 909, 911 (5th Cir. 2009) (same); United States v. Cruz-
Meza, 2009 WL 330900, at *5 (5th Cir. Feb. 11, 2009) (unpublished) (defendant failed to assert
below that he had appealed his prior state-law conviction or that it “was otherwise not final
before he committed” the subsequent federal offense) (emphasis added). Andrade challenged
the finality of his prior state-law conviction both at sentencing and on appeal.
( See UUMV.
( This court applies a “categorical approach” to determine whether a conviction qualifies as an crime of violence under § 16(b). See United States v. Medina-Anicacio, 325 F.3d 638, 644-45 (5th Cir. 2003); United States v. Diaz-Diaz, 327 F.3d 410, 413 (5th Cir. 2003); United States v. Chapa-Garza, 243 F.3d 921, 924-27 (5th Cir. 2001). Under the categorical approach, “the particular facts of the defendant’s prior conviction do not matter, e.g., whether the defendant actually did use force against the person or property of another to commit the offense.” Chapa-Garza, 243 F.3d at 924. Rather, the categorical approach involves a two-step analysis. First, the court determines whether a particular
defined offense, in the abstract, is a crime of violence under § 16(b). Second, the offense, in the abstract, must present the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the offense. Diaz-Diaz, 327 F.3d at 413; Chapa-Garza, 243 F.3d at 924, 927.
( Attempted Murder is Crime of Violence. United States v. Sanchez, 667 F.3d 555, 560, 563-66 (5th Cir. 2012); United States v. Garay-Calvillo, (5th Cir. May 23, 2012)(10-41180).
( DWI Is Not a Crime of Violence. DWI is not a crime of violence within the meaning of 18 U.S.C. 16(b) because intentional force against the person or property of another is not employed to commit the offense. United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); United states v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002).
( Intoxication Assault is Not Crime of Violence. United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004).
( DUI is Not a Crime of Violence. Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377 (2004).
( Texas Injury to Child is Not a Crime of Violence. United States v. Andino-Ortega,
608 F.3d 305 (5th Cir. 2010).
( Evading arrest with a motor vehicle is, by the logic of Harrimon, a “crime
of violence” for purposes of § 16(b), and therefore an “aggravated felony” for
purposes of § 1101(a)(43)(F). United States v. Sanchez-Ledezma, __ F.3d __ (5th Cir. 2011)(10-40451). This decision is based on Tex. Penal Code § 38.04 before it was amended in 2009 and renumbered in part. The logic of our decision in United States v. Harrimon, 568 F.3d 531 (5th Cir.), cert. denied, 130 S. Ct. 1015 (2009), compels affirmance. While Harrimon concerned the analysis of section 38.04(b)(1) as a “violent felony” under a different statute with an importantly different standard, our reasoning in that decision nevertheless governs here. We note, as do the parties, that the Supreme Court has granted certiorari in a case from the Seventh Circuit presenting a very similar issue as that decided in Harrimon. See United States v. Sykes, 598 F.3d 334 (7th Cir.), cert. granted, 131 S. Ct. 63 (2010). Our usual practice is to rule based on present law, not to wait for the Supreme Court’s decision. See United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).
( Sexual Assault. United States v. Castro-Gonzalez, (5th Cir. June 5, 2013)(
Prior to 2008, the Guidelines listed “forcible sex offenses” among the enumerated crimes of violence without the clarifying parenthetical. See, e.g., U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii) (Nov. 2007). In 2006, a panel of this court considered whether a conviction under § 22.011 justified a 16-level crime-of-violence enhancement as a forcible sex offense. See generally United States v. Luciano-Rodriguez, 442 F.3d 320 (5th Cir. 2006). The panel majority acknowledged prior Fifth Circuit case law that—in determining the applicability of the crime-of-violence sentencing enhancement—distinguished between sex offenses in which the victim neither legally consents nor factually assents to the conduct and offenses in which the victim assents but does not
legally consent, such as when the victim assents due to a mental disability. See
id. at 322-23 (citing United States v. Sarmiento-Funes, 374 F.3d 336, 339-45 (5th Cir. 2004)). Taking particular note of §§ 22.011(b)(9) and 22.011(b)(10), the panel majority concluded that § 22.011 of the Texas Penal Code “criminalizes assented-to-but-not-consented-to conduct.” Id. at 322-23. Over the dissent of Judge Owen, the panel majority found that prior case law compelled it to hold that not every violation of § 22.011 is a forcible sex offense under the Guidelines. Id. at 323. On November 1, 2008, the Guidelines were amended so that the words “forcible sex offenses” were followed by a clarifying parenthetical that reads: “(including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced).” See U.S.S.G. App. C, amend. 722 (Nov. 2008). The background commentary to the Amendment states that the revisions are meant to “result in an outcome that is contrary to cases excluding crimes in which there may be assent in fact but no legally valid consent from the scope of ‘forcible sex offenses.’” Id. (internal quotation marks omitted). Following this statement, the background commentary contains a citation identifying Luciano-Rodriguez as one of the cases reaching a result contrary to that intended by the revised Guidelines and describing the case as holding that “a conviction for a sexual assault was not a forcible sex offense because it could have been based on assent . . . when ‘the actor is a member of the clergy or is a mental health services provider who exploits the emotional dependency engendered by their position.’” Id. (quoting
Luciano-Rodriguez, 422 F.3d at 323).
( The background commentary makes clear that the post-Amendment
Guidelines yield a result different from Luciano-Rodriguez’s holding that
violations of §§ 22.011(b)(9) and 22.011(b)(10) are not forcible sex offenses. As stated by Judge Owen, “the Commission has unequivocally explained in its commentary that it intends for such sexual assault convictions under Texas law to be included within the meaning of ‘forcible sex offenses’ and the accompanying parenthetical explanation and therefore that such an assault constitutes a ‘crime of violence.’” Rodriguez, 711 F.3d at 566 (Owen, J., concurring).
( Because it is “clear from the language of the enhancement [and] its applicable commentary” that §§ 22.011(b)(9) and 22.011(b)(10) fall within the scope of forcible sex offenses under the post-2008 Guidelines, we reject Castro-Gonzalez’s arguments based on those subsections and affirm his sentence.
( Note 4: Following the 2008 Amendment, a panel of this court held that pre-Amendment Fifth Circuit case law concerning the scope of “forcible sex offenses” was not applicable to sentences imposed after the 2008 revisions. See United States v. Rodriguez-Juarez, 631 F.3d 192, 194 (5th Cir. 2011); see also Diaz-Corado, 648 F.3d at 294. Accordingly, we are not bound by Luciano-Rodriguez’s holding that § 22.011 is not a forcible sex offense under the Guidelines.
( Federal Drug Conspiracy under 21 U.S.C. § 846 Is Drug Trafficking Offense.
Even though it does not require an overt act like the Model Penal Code.
Sierra-Pesina concedes that his argument that his conspiracy conviction
United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012). There, 5 Cir.
concluded that a reasonable interpretation of the Guidelines provides that conspiring to commit a federal drug trafficking offense qualifies for the § 2L1.2(b)(1)(A)(i) enhancement. Id. at 753-54.
( Colorado Convictions for Theft: United States v. Rios-Cortes, __F.3d __ (5th Cir. Aug. 5, 2011)(10-10483): At sentencing, Rios-Cortes argued that his prior conviction was not an aggravated felony. A theft offense is an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) if the term of imprisonment is for at least one year. Rios-Cortes asserted that because his sentence was reduced to a term of less than one year,
the offense was not covered by the statute. The district court disagreed and applied the enhancement. … For purposes of enhancement, a court may consider sentences that have been suspended for probation. United States v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 1996) (per curiam). … In United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir. 2001), the defendant had a prior conviction for which he was sentenced to a term of four years. Once he successfully completed Colorado’s Regimented Inmate Training Program, however, the court reduced his sentence from imprisonment to probation. We agreed with defendant that his conviction did not qualify as an aggravated felony under § 2L1.2(b)(1)(C), because his sentence was reduced to probation, not suspended for probation. We noted that Colorado courts must sentence a defendant to either imprisonment or probation and may not probate a specific sentence, so the sentence could not have been suspended. We indicated that a suspended sentence would be treated differently, as it was in United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th Cir. 1996). In United States v. Retta-Hernandez, 106 F. App’x 879 (5th Cir. 2004) (per curiam), we distinguished Landeros-Arreola from situations in which the defendant was sentenced to more than one year, the sentence was suspended for a term of probation, and upon revocation of probation the court reduced the sentence to a term of less than one year instead of the original term. … This court reaffirmed the reasoning and holding of Retta-Hernandez in United States v. Arriola-Cardona, 184 F. App’x 373 (5th Cir. 2006) and again in United States v. Sanchez, 419 F. App’x 504 (5th Cir. 2011).
( Second or subsequent simple possession offenses are not aggravated felonies under [8 U.S.C.] § 1101(a)(43) when . . . the state conviction is not based on the fact of a prior conviction. Carachuri-Rosendo v. Holder, 556 U.S. __ (2010).
( Timing of Revocation. United States v. Bustillos-Pena,612 F.3d 863 (5th Cir. July 26, 2010)(09-20360). Bustillos contended at sentencing that this enhancement was improper, because at the time he was deported, and at the time he reentered the country, he had only received a probated sentence. It was not until after he had been present in the country illegally for two years that his probation was revoked and he was given a sentence of imprisonment that exceeded thirteen months. We find that the provision of the November 2008 United States Sentencing Commission’s Guidelines Manual (Sentencing Guidelines) under which Bustillos’s sentence was enhanced was ambiguous and thus must be read in his favor. Accordingly, we vacate and remand for resentencing.
The Government contends that its reading is compelled by our opinion in
United States v. Compian-Torres, 320 F.3d 514 (5th Cir. 2003). There, the defendant had received a probated sentence in 1994. Id. at 515. This sentence was revoked in 2000, and he was sentenced to two years’ imprisonment. Id. He was deported after he received his sentence of imprisonment, and he thereafter reentered illegally. See id. at 514–15 & n.1. He pleaded guilty to illegal reentry, and the district court applied the sixteen-level enhancement under §2L1.2 at sentencing. Id. at 514–15. On appeal, he argued that this enhancement was improper, because at the time of his conviction, he had received only a probated sentence, not a sentence of imprisonment. Id. He argued that the sentence he had received upon the revocation of his probation could not be considered under §2L1.2, because it was for a separate offense and because “sentence imposed” should be read “sentence originally imposed.” Id.
Our holding in Compian-Torres does not control this case. In Compian-Torres, the defendant’s probation was revoked before he was deported. Thus, we had no reason to address whether or not the sixteen-level enhancement applies where the revocation sentence is imposed after a defendant’s illegal reentry. Our determination in Compian-Torres that “sentence imposed” did not mean “sentence originally imposed” also has no effect on this case. Bustillos does not argue that we should imply “originally” into §2L1.2. Nor does he contest that a revocation sentence is a sentence on the same conduct and conviction as the probated sentence it supersedes. Instead, he argues that, under the plain language of §2L1.2, the sixteen-level enhancement cannot be applied unless the
defendant received a prison sentence exceeding thirteen months before he was deported.
( Term of Imprisonment Defined. USA v. Marcos Asencio-Perdomo, __ F.3d __ (5th Cir. March 8, 2012)(11-20288): As our precedent recognizes, “[t]he commentary [to U.S.S.G. § 2L1.2(b)(1)(C)] defines ‘aggravated felony’ by reference to 8 U.S.C. § 1101(a)(43).” United States v. Banda-Zamora, 178 F.3d 728, 729 (5th Cir. 1999). Section 1101, in turn, defines “aggravated felony” to include “a theft offense . . . for which the term of imprisonment [sic] at least one year.” 8 U.S.C. § 1101(a)(43)(G). The central question we must resolve is one of first impression in this circuit: whether the quoted phrase refers to an offense’s statutory minimum term of imprisonment or the actual sentence imposed on a particular defendant. …D’s interpretation is “not inconsistent” with § 1101(a)(48)(B) because that definition refers to a term of imprisonment with respect to an offense rather than with respect to a defendant. But that reading ignores the operative language of § 1101(a)(48)(B), which defines “term of
imprisonment . . . to include the period of incarceration or confinement ordered by a court of law.” Unlike defendant, we read this language straightforwardly and hold that the phrase “term of imprisonment” in § 1101(a)(43)(G) refers to the actual sentence imposed. In so holding, we agree with …sister circuits that have confronted this question. See United States v. Pacheco, 225 F.3d 148, 153–54 (2d Cir. 2000); United States v. GuzmanBera, 216 F.3d 1019, 1020 (11th Cir. 2000) (per curiam); Alberto-Gonzalez v. INS, 215 F.3d 906, 909 (9th Cir. 2000); United States v. Graham, 169 F.3d 787, 790 (3d Cir. 1999).
( Death of Alien and Risk of Life of Another under 2L1 + Consideration of
Guideline Comments Adopted after Offense.
( United States v. Michel-Muniz, __ F.3d __ (5th Cir. 10-15-25)(13-20739):
--We review a district court’s interpretation or application of the Sentencing Guidelines de novo, and its factual findings for clear error. United Sates v. Nash, 729 F.3d 400, 403 (5th Cir. 2013). Sentencing enhancements must be proven “by a preponderance of the evidence.” United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). “[I]n determining whether an enhancement applies, a district court is permitted to draw reasonable inferences from the facts, and these inferences are fact-findings reviewed for clear error as well.” United States v. Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014) (quoting United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)). A finding is not clearly erroneous unless it is implausible “in light of the record as a whole.” Id.
--In deciding whether this enhancement should be applied, courts must “look at the specifics of the situation.” United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir. 2008). As clarified by a recent amendment to the Guideline’s commentary, § 2L1.1(b)(6) covers a “wide variety of” reckless conduct, including “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(b)(6) cmt. 5 (2014).
--Note 1: This commentary was added after Muniz’s sentencing. But we may take guidance from it because “[a]mendments to the guidelines and their commentary intended only to clarify, rather than effect substantive changes, may be considered even if not effective at the time of the commission of the offense or at the time of sentencing.” United States v. Anderson, 5 F.3d 795, 802 (5th Cir. 1993) (citing U.S.S.G. § 1B1.11(b)(2) (1992)). The language quoted above was added to “clarify application of subsection (b)(6)” and “provide guidance for the
Aggravated Identify Theft (See also Identity Theft)
( United States v. Stephens, 571 F.3d 401(5th Cir. 2009)(07-20899)
: Government was required to prove that 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. § 1028A(a)(1). The phrase
“means of identification” includes another person’s name or social security
number. Id.; § 1028(d)(7)(A). Recently in Flores-Figueroa v. United States, the
Supreme Court concluded that § 1028A(a)(1) requires the Government to prove
that the defendant “knew that the ‘means of identification’ he or she unlawfully
transferred, possessed, or used, in fact, belonged to ‘another person.’” 129 S. Ct.
1886, 1888 (2009) (emphasis in the original)
( From United States v. Ogbemudia, (5th Cir. Feb. 2, 2010)(08-20416)(unreported):
Guilty plea for aggravated identity theft for insufficient factual basis because there was no fact or stipulated fact that defendant actually knew the stolen identity belonged to a real person under Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009). Because Ogbemudia did not raise this issue in district court, review is only for plain error. E.g., Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Reversible plain error exists where a clear or obvious error affects defendant’s substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett, 129 S. Ct. at 1429. Even then, we retain discretion whether to correct such an error and, generally, will do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d at 332. As noted, error existed because there was an insufficient factual basis to support Ogbemudia’s conviction. See FED. R. CRIM. P. 11(b)(3); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (“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.” (quoting United States v. Johnson, 546 F.2d 1225, 1226 (5th Cir. 1977))). The error was clear or obvious. Although the district court did not have the benefit of Flores-Figueroa when Ogbemudia pleaded guilty, it is sufficient that the error be clear at the time of appeal. See United States v. Avants, 278 F.3d 510, 521 (5th Cir. 2002). Further, this error affected Ogbemudia’s substantial rights. See United States v. Dominguez Benitez, 542 U.S. 74, 80–83 (2004). And, in the light of the Government’s request for a remand, it is
appropriate to exercise our discretion to correct this error. See Puckett, 129 S. Ct. at 1429. Accordingly, Ogbemudia’s conviction for aggravated identity theft is vacated, and this matter is remanded for entry of a new plea for his identity theft conviction. See United States v. Hall, 110 F.3d 1155, 1162 (5th Cir. 1997).
Agreement, plea
( A plea bargain must first be accepted on the record by the trial court. Once expressly accepted by the trial court, it becomes a binding contractual agreement between the State and the defendant. Cases are Santobello v. New York, 404 U.S. 257 (1971), Ortiz v. State, 933 S.W.2d 102 (Tex. Crim. App. 1996), and Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000).
Agreement on plea—breach thereof
( United States v. Williams, __ F.3d __ (5th Cir. May 9, 2016)(14-11131): When “the government breache[s] its plea agreement, [the defendant] may seek one of two remedies: (1) specific performance, requiring that the sentence be vacated and that a different judge sentence the defendant; or (2) withdrawal of the guilty plea.” United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). The Government never discusses Gonzalez in its briefing, though it was cited by Williams. Perhaps the Government would argue that having a right to “seek” one of two remedies means only that a defendant may ask for certain relief but a district judge has discretion to decide.
Additional direction comes from a case in which the Government’s knowing violation of its agreement invalidated the guilty plea. United States v. Saling, 205 F.3d 764, 767 (5th Cir. 2000). We noted that the defendant “elected to withdraw that plea rather than secure specific performance of the agreement.” Id. We then quoted a similar decision: A defendant who alleges that a plea agreement has been breached has the option of seeking one of two remedies on appeal: (1) specific performance, which requires that the sentence be vacated and that the defendant be resentenced by a different judge; or (2) withdrawal of the guilty plea, and the opportunity to plead anew, which requires vacation of both the conviction and the sentence. Id. at 768 (quoting United States v. Palomo, 998 F.2d 253, 256 (5th Cir.1993)). We will try to be clear. When the Government breaches a plea agreement, a defendant has the right (with a caveat we explain below) to have his chosen remedy accepted, either specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. The Government adds to our analysis in citing United States v. Castaneda, 162 F.3d 832 (5th Cir. 1998). That opinion requires that we assess the materiality of the breach of a plea agreement when determining if relief is warranted. Id. at 835−36. There, the Government promised not to prosecute Castaneda if he cooperated. Id. at 834. After working with Castaneda for more than a year, the Government withdrew from the deal because it determined Castaneda was not entirely forthcoming with information. Id. at 836−37. “Castaneda countered that he gave the government considerable, accurate, and incriminating information . . . and that any omissions Castaneda made were essentially inadvertent or duplicative and thus did not amount to a material breach of the agreement. In so many words, he argued substantial performance.” Id. at 837. We then analyzed whether the breach was material, determined that it was not, and concluded that the Government could not rescind the agreement. Id. at 837−40. Perhaps, then, it is necessary first to find a breach to be material before allowing the defendant to rescind the plea agreement. There is no mention of materiality in the opinions of Gonzalez, Palomo, or Saling that we earlier discussed, and Palomo predates Castaneda. Even so, it would be reasonable to interpret those three opinions as dealing with material breaches. Regardless of whether a breach must be material before a defendant is allowed to elect a remedy, we conclude the breach here was material. Indeed, under plain-error analysis, we concluded that the breach affected Williams’s substantial rights and “affect[ed] the fairness, integrity, and public reputation of judicial proceedings . . . .” See Munoz, 408 F.3d at 226.
--“An alleged breach of a plea agreement may be raised despite a waiver provision.” United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010). Though we typically review de novo an alleged breach of a plea agreement, id. at 245, but here D did not argue in the district court that the Government breached the plea agreement. Thus, review is for plain error. See Puckett v. United States, 556 U.S. 129, 135-36 (2009).
Aid and Abet
( From United States v. Moody, 564 F.3d 754 (5th Cir. 2009)(07-11222):
“To prove that a defendant aided and abetted, the Government must prove 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 make the venture succeed.” United States v. Jimenez, 509 F.3d 682, 689 (5th Cir. 2007) (citations omitted), cert. denied, 128 S. Ct. 2924 (2008). “The essential elements of a violation of Section 841(a)(1) [for cocaine distribution] include: (1) knowledge, (2) possession, and (3) intent to distribute [cocaine].” United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir.) (citation omitted), cert. denied, 129 S. Ct. 328 (2008).
( To prove the crime of aiding and abetting, the government had to establish that defendants “(1) associated with the criminal venture; (2) purposefully participated in the crime; and (3) sought by [their] actions for it to succeed.” United States v. Pando Franco, 503 F.3d 389, 394 (5th Cir. 2007), cert. denied, 128 S. Ct. 1874 (2008). We have held that evidence supporting a conspiracy conviction typically supports an aiding and abetting conviction. See, e.g., United States v. Rodriguez, 553 F.3d 380, 391 (5th Cir. 2008) (quoting United States v. Singh, 922 F.2d 1169, 1173 (5th Cir. 1991)).
( Aid and abet on drugs with gun. The U.S. Supreme Court Wednesday (3-4-3014) 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.
( Important Note: In United States v. Smith, (5th Cir. May 1, 2015)(14-30816), note 8 suggests that Fifth Circuit needs to change its jury charge for section 924©(1) in light of Rosemond.
Airline Pilot Protection for Whistleblowing
( Wendell H. Ford Investment and Reform Act for the 21st Century or “AIR-21”, 49 U.S.C. § 42121, was enacted to encourage airline employees to report FAA violations
( Continental Airlines, Inc. v. Administrative Review Board, Dept of Labor,
(5th Cir. January 7, 2015)(15-60012).
Alford Plea.
( See North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is one in which the defendant maintains his innocence but agrees to plead guilty. Id. at 37 (stating that a trial court may accept a plea of guilty “containing a protestation of innocence when . . . a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt”).
Aliens
( See Illegal Entry—Prior Conviction, Illegal Entry—Prior Removal, Immigration Consequences, and Aggravated Felony under USSG § 2L1.2. See also Endangerment Enhancement in Transportation of Aliens. See also Harboring.
( Citizenship in US is a defense, and it is IAC for counsel not to research and raise this issue as a defense. United States v. Fernando Juarez, __F.3d __ (5th Cir. Feb. 24, 2012)(09-20764). “[T]his circuit has recognized that, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” Id. (citing Bell v. Watkins, 692 F.2d 999, 1009 (5th Cir. 1982); Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir. 1979))…. Had Juarez been able to establish his derivative citizenship, it would have been a defense to his conviction because citizenship negates the alienage requirement of 8 U.S.C. §§ 911 and 1326. At the time of Juarez’s conviction, derivative citizenship claims were governed by 8 U.S.C. § 1432(a) (1999) … This statute is no longer effective as it was repealed by the Child Citizenship Act (CCA) of 2000. The CCA does not apply retroactively and thus is inapplicable to Juarez. See Nehme v. I.N.S., 252 F.3d 415, 431-32 (5th Cir. 2001). … The parties do not dispute that Juarez satisfies § 1432(a)(2) and (4). Juarez’s father died when Juarez was a child and his mother was naturalized when Juarez was sixteen. The dispute centers on the interpretation of § 1432(a)(5)…. No Fifth Circuit case law interpreted § 1432(a)(5) at the time Juarez pled guilty and today we decline to interpret the statute. Based on the legal authority available at the time Izaguirre advised Juarez on his pleas, a derivative citizenship defense was plausible. See Ashton v. Gonzales, 431 F.3d 95, 98 (2d Cir. 2005) (court declining to decide what would satisfy § 1432(a)(5) but expressing “belie[f] that there must be some objective official manifestation of the child's permanent residence.”); United States v. Diaz-Guerrero, 132 F. App’x. 739, 740-41 (9th Cir. 2005) (unpublished) (observing that in the second clause of § 1432(a)(5), Congress omitted the “lawful admission” language that
appears in the provision’s first clause and simply stated that a minor may gain citizenship if he “thereafter begins to reside permanently in the United States while under the age of eighteen years.”); Ira J. Kurzban, Immigration Law Sourcebook 1302 (11th ed. 2008-2009) (advising that “[f]or the child to be eligible based on residency [under §1432(a)(5)], s/he did not need to be an LPR but must have actually resided in the U.S. before s/he was 18”). A reasonable investigation into derivative citizenship would have led Izaguirre to any one of these legal sources. Kurzban’s interpretation of the statute reasonably suggests that Juarez may have derived citizenship as he would only need to show actual residence.
( Sentence Enhancement because of Prior Offense under 8 U.S.C. § 1326(b):
United States v. Partida-Calles, (5th Cir. Dec. 5, 2017)(17-10561):
In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that for purposes of a statutory sentencing enhancement, a prior conviction is not a fact that must be alleged in an indictment or found by a jury beyond a reasonable doubt. Subsequent Supreme Court decisions have not overruled Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014) (considering the effect of Alleyne v. United States, 570 U.S. 99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)). Thus, Partida-Calles’s argument is foreclosed.
( Padilla Progeny. Padilla v. Kentucky, 559 U.S. 356 (2010). This case is not retroactive in application. Chaidez v. United States, __U.S. __ (2013) and United States v. Amer, 681 F.3d 211 (5th Cir. 2012).
( Death of Transported Alien.
( United States v. Ramos-Delgado,763 F.3d 398 (5th Cir. June 30, 2014)(13-40367), cert. denied, 135 S. Ct. 771 (2014)(creates but-for causation test): Held that there is no causation requirement to imposing a 10-level increase in case of death of a transported alien under USSG 2L1.1(b)(7)(D). Differing from 8th and 9th Circuits that require a causation nexus and siding with the 10th and 11th Circuits that hold there is no causation requirement for increase the offense levels for death. Here, alien was thrown from back of pickup, faced critical injuries, were sent home to Honduras where he died without medical records.
( United States v. Aguirre-Nunez, (5th Cir. April 10, 2015)(13-40192):
( Rodriguez’s death during the trek through the brush was reasonably foreseeable to Aguirre-Nunez given that he was a leader of the alien-smuggling scheme and was involved in coordinating her smuggling and transport. See United States v. De Jesus-Ojeda, 515 F.3d 434, 443-44 (5th Cir. 2008).
( The Government has filed an unopposed motion for summary affirmance based on Ramos-Delgado or, alternatively, an extension of time to file a brief. While Aguirre-Nunez’s challenge would also fail under the but-for standard of Ramos-Delgado, we decline to summarily affirm the judgment solely pursuant to Ramos-Delgado, as the evidence is sufficient to show that Rodriguez’s death was directly or proximately caused by the dangerous conditions of her journey through the brush. See United States v. Garcia-Guerrero, 313 F.3d 892, 899 (5th Cir. 2002).
( Brandishing weapon in 2L1.1. United States v. Reyna-Esparza, __ F.3d __
(5th Cir. January 29, 2015)(13-41347). Excellent summary of law.
( Throwing Caltrops (highway spikes against law enforcement tires) Was Dangerous Weapon for Alients under USSG § 2L1.1(b)(5)(B): United States v. Olarte-Rios, __ F.3d )___
(5th Cir. April 29, 2016)(14-41408).
Aliens and Foreseeability of Rape—USSG Enhancement
United States v. Hueto-Aleman, (5th Cir. Dec. 11, 2015)(14-41042):
Reasonable foreseeability is a factual finding that we review for clear error. United States v. Gutierrez-Mendez, 752 F.3d 418, 429 (5th Cir. 2014). Clear error exists if, after reviewing the entire evidence, we are “left with the definite and firm conviction that a mistake has been committed.” United States v. Mata, 624 F.3d 170, 173 (5th Cir. 2010). If a factual finding is “plausible in light of the record as a whole,” it is not clearly erroneous and we cannot reverse solely because we would weigh the evidence differently. Id. At sentencing, the district court must “determine its factual findings . . . by a preponderance of the relevant and sufficiently reliable evidence.” United States v. Betancourt, 422 F.3d 240, 247 (5th Cir. 2005). The district court can consider any evidence with “sufficient indicia of reliability to support its probable accuracy,” including hearsay. Id. Our analysis is guided by a recent case in which we discussed whether a sexual assault was reasonably foreseeable. See Gutierrez-Mendez, 752 F.3d 418. There, the district court found a sexual assault in an alien trafficking conspiracy reasonably foreseeable when the female aliens were taken to a separate house for a barbeque, given alcohol, and encouraged to have consensual sex with the conspirators. Id. at 428. The defendant had instructed the female aliens to let him know if they were disrespected and was present during discussions about who was sleeping with whom. Id. The district court reasoned that because the situation was designed to encourage consensual sex, it was reasonably foreseeable to the conspirators that sexual assault could occur if the female aliens did not go along with the conspirators’ intentions when weapons were present. Id. at 428–29. The panel affirmed when defendant offered no evidence other than “his self-serving statements of innocence” to rebut the PSR. Id. at 429. Similarly, these conspirators sought out sexual contact with the female aliens in an environment where there were weapons. Hueto-Aleman made repeated sexual advances towards Martinez-Aviles. He also participated in another conspirator’s sexual advances when he asked which female alien would sleep with Garcia-Pimental. The conspirators were also aware of each other’s advances on the female aliens as is evident by Garcia’s instruction to Martinez-Aviles that he should let her know if anyone touched her. Solorzano-Garcia’s statement to the Border Patrol agent that he knew Soto-Huato intended to assault M.G.C. shows that at least one other conspirator knew of Soto-Huato’s intentions. The district court could consider the agent’s testimony about Solorzano-Garcia’s statement because a sentencing court can consider hearsay if it has “sufficient indicia of reliability.” See Betancourt, 422 F.3d at 247. This evidence supports the district court’s finding that this was a “sexually charged” conspiracy, in which all the conspirators knew of one another’s activities. A conspirator does not need knowledge of a past incident of sexual assault for a future sexual assault to be reasonably foreseeable. See GutierrezMendez, 752 F.3d at 428–29. A sexual assault is reasonably foreseeable when alien traffickers seek out sexual activity with female aliens in an environment where weapons are present. Id. The conspirators in this case did exactly that. The district court did not clearly err. AFFIRMED.
Alien Children
( Sanchez v. Sanchez, __ F.3d __ (5th Cir. June 5, 2014)(12-50783):
Almost a year after the children had been removed from Mexico, Sanchez filed this suit in district court against the children’s aunt and uncle, Miriam and Jose Sanchez, and against the director of Baptist Services, Asennet Segura. She sought access to the children, their return, and an immediate temporary restraining order preventing the children’s transfer out of Texas. She claimed entitlement to this relief under the Hague Convention on the Civil Aspects of International Child Abduction and also under the International Child AbductionRemedies Act (“ICARA”). The Hague Convention is an international treaty towhich both the United States and Mexico are signatories, see T.I.A.S. No. 11670,S. Treaty Doc. No. 99–11, and ICARA is the domestic implementing legislation. See 42 U.S.C. § 11601, et seq. Because Hague Convention petitions are intended to be addressedexpeditiously, the district court held an evidentiary hearing one month after Sanchez filed her suit. Miriam and Jose Sanchez did not participate.1
Baptist Services was represented at the hearing, but took no position on whether the
children should be returned to their mother. Instead, because it was acting at the direction of ORR in maintaining custody of the children, it argued that ORR was the proper party to the proceedings. The children’s ORR-appointed asylum attorney appeared informally at the hearing on the children’s behalf, arguing that the court should allow the children to intervene through Alex Hernandez, as next friend, or in the alternative, grant their motion for the appointment of a guardian ad litem. The district court would later deny the motion, but it allowed the children’s attorney to participate in all critical stages of the hearing. After the hearing, the court directed ORR, who was not formally a party
to the proceedings, to answer these questions: “(1) whether this Court has
jurisdiction under the Hague Convention; (2) does any procedure in the
immigration court preempt or stay this Court’s actions; and (3) whether ORR
has a position as to whether or not the children would be subject to grave risk
or harm by being returned to their mother.” ORR, through the Office of
Immigration Litigation (which has filed an amicus brief on appeal), informed the
court that it “does not take a position at this time” on the first and third question
and moved that the district court hold the petition in abeyance pending the
disposition of the children’s asylum applications.
On August 3, 2013, the district court issued findings of fact and conclusions of law. It acknowledged the difficulties presented by the parallel asylum proceedings but determined that the Hague Convention’s demands for expediency counseled against prolonging a resolution of Sanchez’s petition. The court did not indicate what bearing, if any, the children’s asylum proceedings would have on its grant of relief, though it did suggest that it would be relevant. The court also did not address whether the United States government, through ORR, was a proper party to the petition and denied the children’s request for representation. The district court concluded that the children were “wrongfully retained” within the meaning of the Convention and none of the Convention’s exceptions to return applied. Therefore, the court ordered “the minor children be returned forthwith to the custody of Petitioner,” but later stayed the
enforcement of the order pending this appeal.
Two other post-judgment developments are important to this appeal.
Shortly after the notice of appeal was filed but before briefing, the United States
Citizenship and Immigration Services (“USCIS”) granted the children asylum
pursuant to 8 U.S.C. § 1158.2 Among other things, that statute states that in the
case of aliens who are granted asylum, “the Attorney General . . . shall not remove or return the alien to the alien’s country of nationality.” § 1158(c)(1)(A). Secondly, before we held oral argument in this case, the government informed the court that it was in the process of transferring the children to the physical custody of Catholic Charities. The government informs us this transfer will also vest legal custody under Texas law in Catholic Charities. Based on the Government’s representation that transfer takes six to eight weeks, Baptist Services no longer has physical custody of the children, and Catholic Charities is now their legal and physical custodian,
* * *
On rehearing, the children ask us to reconsider whether the current legal custodian of the children, the federal Office of Refugee Resettlement, should be joined as a party. We conclude that joinder is appropriate. We WITHDRAW our prior opinion, most of which is repeated here without alteration. The district court’s order to return the children is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
Allen Charge
( Our court has consistently held that “[d]istrict courts have broad discretion
to give Allen charges when the jury indicates deadlock”. United States v. Hitt,
473 F.3d 146, 153 (5th Cir. 2006) (citing United States v. Rivas, 99 F.3d 170, 175
(5th Cir. 1996)); see also United States v. Allard, 464 F.3d 529, 536 (5th Cir. 2006) (noting the district court has “broad discretion” to evaluate whether an Allen charge is coercive). Accordingly, our court typically reviews challenged Allen charges for abuse of discretion. E.g., Fields, 483 F.3d at 338. This is not so, however, when the challenge to the Allen charge was not raised in district court; if the defendant failed to object, our review is instead only for plain error. E.g., Hitt, 473 F.3d at 153.
( United States v. Andaverde-Tinoco, __ F.3d __ (5th Cir. Dec. 17, 2013)(12-40472):
Andaverde-Tiñoco argues first that the district court abused its discretion by giving an Allen charge to the jury. The relevant inquiry on appeal is whether: (1) any semantic deviation from approved Allen-charge language was so prejudicial that it requires reversal and (2) the circumstances surrounding the use of the charge were coercive. United States v. Winters, 105 F.3d 200, 203 (5th Cir. 1997). Generally, we review the use of an Allen charge for abuse of discretion. Id. Where a defendant does not object to its use, review is for plain error. United States v. Hitt, 473 F.3d 146, 153 (5th Cir. 2006). The government argues that Andaverde-Tiñoco’s objection to the charge in the district court failed to preserve his challenge on appeal. “A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review.” United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011) (internal quotation marks and footnote omitted). “[T]he touchstone is whether the objection was specific enough to allow the trial court to take testimony, receive argument, or otherwise explore the issue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997).
Andaverde-Tiñoco objected to the Allen charge as follows:
As the Court is aware, this is a very short trial. Most of it was completely
uncontroverted. The controverted evidence is extremely short, and the
fact that the jurors already said that they couldn’t reach a verdict and
they’re divided numerically six to six, your Honor, I believe an Allen
charge would not be appropriate at this time, and we ask for a mistrial.
Andaverde-Tiñoco cites United States v. Montalvo, 495 F. App’x 391, 392 n.2 (5th Cir. 2012) (unpublished), to argue that a general objection to an Allen charge that does not mention the language itself is sufficient to preserve that issue for appeal. However, our unpublished Montalvo decision is inapposite. There, although the government argued that Montalvo had not objected to the language of the Allen charge, Montalvo himself did not make the language argument on appeal. Thus, the court looked only to the circumstances of the charge, an objection that the court found Montalvo had adequately made below. Id. at 392-93 & n.2; cf. Hitt, 473 F.3d at 153 & n.5 (reviewing for plain
error where defendant objected to charge in toto but not to language specifically); United States v. Hill, 334 F. App’x 640, 645 (5th Cir. 2009)(unpublished) (reviewing language for plain error where objection to charge did not include objection to its language). The objection does not reference the language of the charge, so the district court “could not have understood,”Gutierrez, 635 F.3d at 152, that Andaverde-Tiñoco wanted additional or adjusted language included in the charge, particularly because the district court used the language from the then-applicable Fifth Circuit Pattern Jury
Instructions. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL), § 1.45 (West 2001). However, the objection does directly address the coerciveness of
the charge under the circumstances and thus preserves that issue for appeal.
Therefore, we review the language of the charge for plain error and the use of
the charge for abuse of discretion.
A. Under the first prong of the Allen analysis, we inquire whether any semantic deviation from approved Allen-charge language was so prejudicial that it requires reversal. Winters, 105 F.3d at 203. As stated above, we review the language of the charge in this case for plain error. To prevail under plain error, an appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. In reviewing jury instructions, “plain error occurs only when the instruction, considered as a whole, was so clearly erroneous as to
result in the likelihood of a grave miscarriage of justice.” United States v.
Garcia, 567 F.3d 721, 728 (5th Cir. 2009) (internal quotation marks and
citation omitted). Here, the language of the modified Allen charge was almost identical to the charge found in the then-applicable 2001 Pattern Jury Instructions, a fact
we previously have noted in upholding Allen charges. See United States v.
Allard, 464 F.3d 529, 536 (5th Cir. 2006). The only modification was the
addition of a sentence that reminded the jury not to reveal the exact numerical
breakdown of its voting, an addition that Andaverde-Tiñoco does not challenge.
Instead, Andaverde-Tiñoco argues that the charge was unbalanced because it
focused on the government’s burden of proof on the elements of the illegal entry
offense, which Andaverde-Tiñoco had conceded, and did not address his burden
of proof on the duress defense.
The failure to include additional language about the duress defense was
not a clear or obvious error. Andaverde-Tiñoco acknowledges that the charge
was equivalent to the then-applicable pattern instruction. The cases that
Andaverde-Tiñoco cites do not stand for the proposition that failure to include
additional language in an otherwise-approved pattern instruction constitutes error.
Even if he had shown a clear or obvious error, Andaverde-Tiñoco has not
shown that the failure to include language about his duress defense affected his substantial rights. To make that showing, he must “demonstrate that the error affected the outcome of the district court proceedings.” United States v. Broussard, 669 F.3d 537, 553 (5th Cir. 2012). Because Andaverde-Tiñoco stipulated to the offense,his theory for why the jury should find him not guilty become only his affirmative duress defense. The Allen charge asked the jurors who believed Andaverde-Tiñoco was guilty to reconsider this conclusion in light of the fact that other jurors believed him to be not guilty. The Allen charge also instructed the jurors to follow their initial instructions, which included the
duress defense, and we presume that jurors follow their instructions. See, e.g., United States v. Turner, 674 F.3d 420, 430 (5th Cir. 2012). Finally, the jury deliberated for more than two hours after receiving the Allen charge, presumably on the duress defense because that was the only issue at trial. For these independent reasons, Andaverde-Tiñoco has not shown that the district court plainly erred in the language of the Allen charge. B. Under the second prong of an Allen-charge analysis, we inquire whether the circumstances surrounding the use of the charge were coercive. Winters,
105 F.3d at 203. We evaluate the “totality of the circumstances” surrounding the use of the charge in assessing its coercive effect. United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir. 1989). The district court has “broad discretion to evaluate whether an Allen charge is likely to coerce a jury into returning a verdict it would not otherwise return.” Allard, 464 F.3d at 536 (internal quotation marks and citation omitted). As stated above, we review the use of the charge in this case for abuse of discretion.
We have affirmed Allen charges in more stringent circumstances than those here. In United States v. Betancourt, 427 F.2d 851, 854 (5th Cir. 1970), we affirmed a charge where the trial had begun at 9 a.m. on the day of the verdict, the jury did not receive the case until 6:13 p.m., it reported itself deadlocked at 8:19 p.m., and it returned its verdict at 10:23 p.m. on a stormy night. In United States v. Bottom, 638 F.2d 781, 788 (5th Cir. Unit B Mar. 1981), we affirmed an Allen charge, explaining ….
( Standard of Review of Allen Charge: United States v. Eghobor, __ F.3d __ (5th Cir. Dec. 3, 2015)(14-11354): Abuse of discretion. United States v. Andaverde-Tiñoco, 741 F.3d 509, 515 (5th Cir. 2013). “The relevant inquiry on appeal is whether: (1) any semantic deviation from approved Allen-charge language was so prejudicial that it requires reversal and (2) the circumstances surrounding the use of the charge were coercive.” Id. The district court has “broad discretion to determine whether an Allen charge might coerce a jury.” United States v. Heath, 970 F.2d 1397, 1406 (5th Cir. 1992). Under the first prong of our Allen charge analysis, district courts are not required to recite verbatim the pattern Allen charge approved by this Court. The key inquiry is whether the modification was “so significant as to coerce the jury to reach its verdict.” Id. This Court has “upheld versions of [the Allen] charge so long as they avoid the pitfalls of coercive deadlines, threats of marathon deliberations, or pressure for surrender of conscientiously held minority views.” United States v. Scruggs, 583 F.2d 238, 240 (5th Cir. 1978) (quoting United States v. Skinner, 535 F.2d 325, 326 (5th Cir. 1976)).
Under the second prong of our Allen charge analysis, this Court evaluates “the ‘totality of the circumstances’ surrounding the use of the charge in assessing its coercive effect.” Andaverde-Tiñoco, 741 F.3d at 517 (quoting United States v. Lindell, 881 F.2d 1313, 1321 (5th Cir. 1989)). Factors that weigh against finding coercion include where: (1) the time lapse between the charge and the jury’s decision was not unduly short, Lindell, 881 F.2d at 1322; (2) the charge was not given “prematurely,” United States v. Garcia, 732 F.2d 1221, 1227 (5th Cir. 1984); and (3) the jurors were not “required to deliberate for an unreasonable length of time” before the charge was given. Kimmel, 777 F.2d at 295.
In addition, no other indicia of coercion were present. The jury did not rush to a decision after the charge was given, but instead continued to deliberate for roughly four hours. See Garcia, 732 F.2d at 1227 (upholding Allen charge where the jury continued to deliberate for “approximately three hours” after receiving the charge). The amount of time that the jury was kept in deliberations before the court gave the charge—here, approximately two full days—was not unreasonable. See United States v. Miles, 360 F.3d 472, 482–83 (5th Cir. 2004) (noting that issuing an Allen charge four days into the jury’s deliberations was not an abuse of discretion). Conversely, the charge was not given prematurely because the jury was on its third day of deliberations. See United States v. McClatchy, 249 F.3d 348, 353, 359 (5th Cir. 2001) (upholding Allen charge given after six hours of deliberations). We conclude the district court did not abuse its discretion by either deviating from the language of the pattern Allen charge or by deciding to give the Allen charge.
Allocution by Defendant
( A defendant’s “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Thus, a defendant ordinarily may not refute his sworn testimony at a plea hearing while under oath. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). Further, official documents, such as a written plea agreement, are “entitled to a presumption of regularity and are accorded great evidentiary weight.” Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985).
( United States v. Aguilera-DeLeon, (5th Cir. Aug. 8, 2011)(19019788). Federal Rule of Criminal Procedure 32 requires the district court to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence” before imposing sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii) (emphasis added). The district court must apply Rule 32 “quite literally” and “make a personal inquiry directed to the defendant.” United States v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006).
( United States v. Palacios, __ F.3d ___ (5th Cir. Dec. 27, 2016)(14-40279):
Failure to permit allocution by defendant was plain error.
Palacios did not object in the district court that he was denied his right to allocute, and so we review for plain error. See United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). To apply Rule 52(b)’s plain error rule in the allocution context, we first ask whether the district court (1) committed an error, (2) that is clear and obvious, and (3) that affected the defendant’s substantial rights. Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)); see also United States v. Perez, 460 F. App’x 294, 299 (5th Cir. 2012) (per curiam). We “will ‘ordinarily remand for resentencing’ if a district court commits plain error that affects a defendant’s substantial rights by denying the right of allocution.” United States v. Avila-Cortez, 582 F.3d 602, 606 (5th Cir. 2009) (quoting Reyna, 358 F.3d at 353). However, reversal is “not automatic.” Id. at 604. “In a limited class of cases, a review of the record may reveal, despite the presence of disputed sentencing issues, that the violation of a defendant’s right to allocution does not [seriously affect the fairness, integrity, or public reputation of judicial proceedings].” Id. (quoting Reyna, 358 F.3d at 352). A. Right to Allocution Palacios argues that although the district court allowed him the opportunity to speak with regard to acceptance of responsibility, the court did not allow him “the right to speak on any subject of his choosing prior to imposition of sentence.” We agree. “In order to satisfy Rule 32, the district court must communicate ‘unequivocally’ that the defendant has a right to allocute.” United States v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006) (quoting United States v. Echegollen-Barrueta, 195 F.3d 786, 790 (5th Cir. 1999)). The district court must make a direct, personal inquiry to the defendant, applying the rule “quite literally.” Id. (citation omitted); see also United States v. Legg, 439 F. App’x 312, 313 (5th Cir. 2011) (per curiam) (determining that extensive discussion between district court and defendant did not constitute a “specific and unequivocal” allocution opportunity). “[T]he court, the prosecutor, and the defendant must at the very least interact in a manner that shows clearly and convincingly that the defendant knew he had a right to speak on any subject of his choosing prior to the imposition of sentence.” Magwood, 445 F.3d at 829 (quoting Echegollen-Barrueta, 195 F.3d at 789) (alteration in original) (internal quotation omitted).
The fact that (1) the immediately preceding dialogue had been between the court and the prosecution and (2) the court never interrupted defense counsel to clarify that its question had been directed to Palacios, makes plausible the conclusion that the question was not directed at Palacios but rather to his attorney. That any such ambiguity exists demonstrates that Palacios was not given a specific and unequivocal opportunity to speak. See Magwood, 445 F.3d at 829. Thus, we conclude that the first two prongs of the plain error test have been met: the district court erred in failing to provide Palacios with an allocution opportunity, and that error was clear and obvious. See id; United States v. Perez, 460 F. App’x 294, 299–300 (5th Cir. 2012) (per curiam); Legg, 439 F. App’x at 313.
The Government urges us to consider, inter alia, (1) that the district court had a “comprehensive” view of Palacios through the substantial PSR, the experience of sentencing Palacios’s coconspirators, and its knowledge of Palacios’s ex-wife and family,3 and (2) that Palacios, a former prosecutor and defense lawyer, “would have been his own best advocate if there had been anything else to say.” We do not find these factors sufficient to outweigh the previous considerations. The existence of a voluminous PSR and the presence of other codefendants at sentencing do not per se negate the occurrence of a miscarriage of justice, and the Government cites no authority that would suggest otherwise. Additionally, even assuming that Palacios had been aware of his right to allocute based on his professional experience, mere awareness of that right is not the proper inquiry under Rule 32. Moreover, during sentencing, Palacios was not appearing as a defense attorney but rather as a criminal defendant facing severe penalties and likely under significant stress. Thus, while these considerations could perceivably carry slight weight, we do not find them dispositive.
( Contra: error to advise on allocution was harmless error! United States v. Chavez-Perez, __ F.3d ____ (Dec. 27, 2016)(16-40164)(decided same day as Palacios).
We also hold that this error affected Chavez-Perez’s substantial rights. “Ordinarily, in order to establish that an error ‘affects substantial rights’ . . . , a defendant must establish that the error was ‘prejudicial,’ i.e.[,] that it ‘affected the outcome of the district court proceedings.’” Reyna, 358 F.3d at 350. In cases involving the right to allocute, we presume that the defendant’s substantial rights were affected if “the record reveals that the district court did not sentence at the bottom of the guideline range or if the court rejected arguments by the defendant that would have resulted in a lower sentence.” Id. at 353. Because Chavez-Perez was sentenced to 85 months’ imprisonment, a mid-range sentence in the advisory Guidelines range of 77 to 96 months, we presume that the error affected his substantial rights. See Magwood, 445 F.3d at 829; Reyna, 358 F.3d at 353.. While we will ordinarily remand for resentencing if a district court commits plain error that affects a defendant’s substantial rights by denying the right of allocution, we have “decline[d] to adopt a blanket rule that once prejudice is found under the rule stated above, the error invariably requires correction.” Reyna, 358 F.3d at 352. Instead, we “conduct a thorough review of the record to determine . . . whether the error ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings,’” compelling our exercise of discretion to correct it. Id. at 353. Whether this court will exercise its discretion to correct the error is a “highly fact-specific” inquiry involving a range of factors. See Avila-Cortez, 582 F.3d at 605. In most allocution appeals, “to prevail, defendants will have to show some objective basis that would have moved the trial court to grant a lower sentence; otherwise, it can hardly be said that a miscarriage of justice has occurred.” Reyna, 358 F.3d at 356 (Jones, J., concurring). Here, Chavez-Perez does not provide mitigating evidence that, “given the entirety of the transcript,” likely would have moved the district court to grant a more lenient sentence. See United States v. Neal, 212 F. App’x 328, 332 (5th Cir. 2007) (per curiam) (declining to correct the error where the defendant “assert[ed] only conclusionally [that] he was not given an opportunity to discuss his ‘family, background, his conduct in prison, his activities during his months of successful supervised release, or other areas’” but failed “to allege any specific facts which, given the entirety of the transcript, . . . likely would’ve convinced the district court to levy a more lenient sentence”).
Alternative Holdings—Effect of
( Alternative holdings are binding precedent and not obiter dicta.” Pruitt v. Levi Strauss & Co., 932 F.2d 458, 464 (5th Cir. 1991).
Alternative Theory
( In Hedgpeth v. Pulido, 129 S. Ct. 530 (2008) (per curiam), the Supreme Court recently confirmed that an alternative-theory error—i.e., where a jury rendering a general verdict was instructed on alternative theories of guilt and may have relied on an invalid theory—is subject to harmless-error analysis “so long as the error at issue does not categorically ‘vitiat[e] all the jury’s findings.’” Id. at 532 (alteration in original) (citation omitted); see Skilling, 130 S. Ct. at 2934 n.46 (extending the holding of Pulido, which was a case on collateral review, to this case and other cases on direct appeal). The Court did not specifically identify the harmless-error standard that is applicable to alternative theory errors, but it cited to a string of cases that apply a common harmless error standard to other types of instructional errors. See Pulido, 129 S. Ct. at 532 (citing Neder v. United States, 527 U.S. 1 (1999) (omission of an element of an offense); California v. Roy, 519 U.S. 2 (1996) (per curiam) (erroneous aiderand-abetter instruction); Pope v. Illinois, 481 U.S. 497 (1987) (misstatement of an element of an offense); Rose v. Clark, 478 U.S. 570 (1986) (erroneous burdenshifting as to an element of an offense)). The Court declared that “[a]lthough these cases did not arise in the context of a jury instructed on multiple theories of guilt, one of which is improper, nothing in them suggests that a different
harmless-error analysis should govern in that particular context.” Pulido, 129
S. Ct. at 532.
Amendment to USSG—Statute requires early consideration
18 USC § 3553(a)(4)(A)(i) requires consideration of promulgated but not yet effective amendments. I am not aware of any cases or other law requiring consideration of proposed amendments.
Amendment of Indictment at Trial
( United States v. Jackson,596 F.3d 236 (5th Cir. Feb. 3, 2010)(07-30981). Court allowed AUSA to amend indictment to correct serial number of weapon found with drugs. Although we have never addressed this question directly, precedent from this circuit and others suggests that the particular attributes of a firearm are not actual elements of the offense. See, e.g., United States v. Munoz, 150 F.3d 401, 417 (5th Cir. 1998) (finding no grounds to reverse conviction when indictment charged a different gauge of shotgun than that presented during trial); United States v. Robinson, 974 F.2d 575, 578 (5th Cir. 1992) (holding that “when an indictment alleges non-essential facts, the government need not prove them in order to sustain a conviction”); United States v. Robison, 904 F.2d 365, 369 (6th Cir. 1990) (noting that “the specific type of firearm used or possessed . . . is not an essential element of [a § 924(c) violation]”); see also United States v. Morrow, 925 F.2d 779, 781 (4th Cir. 1991) (affirming district court finding that a one-digit difference between serial number of firearm as stated in indictment and the firearm presented at trial to be a typographical error that went to form, not substance, of indictment); United States v. Neff, 525 F.2d 361, 363 (8th Cir. 1975) (same). These cases support a conclusion that the change was one of form, not substance, and thus permissible.
( If the Government proves that the defendant committed the crime in a manner that was not charged, then the indictment has been constructively amended and the defendant is entitled to a new trial. United States v. Hoover, 467 F.3d 496, 502 (5th Cir. 2006); United States v. Chambers, 408 F.3d 237, 247 n.6 (5th Cir. 2005).
( Constructive Amendment. United States v. Jara-Favela, __ F.3d __ (5th Cir. June 28, 2011)(11-40142): We review constructive amendment claims de novo. United States v. McMillian, 600 F.3d 434, 450 (5th Cir.), cert. denied, 131 S. Ct. 504 (2010). In reviewing a claim of constructive amendment, however, we are mindful to distinguish between a constructive amendment, which is reversible per se, and a variance between the indictment and proof, which we examine for harmless error. See United States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985) (excerpting the discussion of Stirone v. United States, 361 U.S. 212 (1960) in Gaither v. United States, 413 F.2d 1061, 1072–74 (D.C. Cir. 1969)). If a grand jury indicts a defendant, the Fifth Amendment grants thedefendant the right to be tried solely on the grand jury’s allegations. Stirone,
361 U.S. at 215–18. Only the grand jury may broaden or alter the indictment. United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991). A constructive amendment may occur when the trial court “through its instructions and facts it permits in evidence, allows proof of an essential element of the crime on an alternative basis provided by the statute but not charged in the indictment.” United States v. Phillips, 477 F.3d 215, 222 (5th Cir. 2007) (quotation omitted). In evaluating whether a constructive amendment has occurred, we consider “whether the jury instruction, taken as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them.” United States v. Guidry, 406 F.3d 314, 321 (5th Cir. 2005) (quotation omitted). We “scrutinize any difference between an indictment and a jury instruction” and “will reverse only if that difference allows the defendant to be convicted of a separate crime from the one for which he was indicted.” United States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999). Otherwise, we review the purported amendment as a variance, and the defendant must “show how the
variance in the language between the jury charge and the indictment so severely prejudiced his defense that it requires reversal under harmless error review.” Id.; see United States v. Baker, 17 F.3d 94, 98 (5th Cir. 1994).
Animal Crush Video Statute, 18 U.S.C. § 48 Upheld
( United States v. Richards, __ F.3d ___ (5th Cir. June 13, 2014)(13-20265).
We hold that on its face § 48 is limited to unprotected obscenity and therefore is facially constitutional. We REVERSE the district court’s judgment and REMAND for proceedings consistent with this opinion.
Note 12: We do not reach the government’s alternative argument that § 48 is facially
constitutional because it proscribes only speech that is incidental to criminal conduct under the reasoning of New York v. Ferber, 458 U.S. 747, 749 (1982).
Anonymous Tips for Search
( United States v. Bustamonte, (5th Cir. July 11, 2012)(11-40944):
“An investigative vehicle stop is permissible under Terry [v. Ohio, 392 U.S. 1 (1968),] only when the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.” United States v. Martinez, 486 F.3d 855, 861 (5th Cir. 2007) (internal quotation marks omitted). The Government bears the burden of proving reasonable suspicion. United States v. Gomez, 623 F.3d 265, 269 (5th Cir. 2010). Whether an informant’s tip provides reasonable suspicion depends on various factors: (1) the credibility and reliability of the informant; (2) the specificity of the information contained in the tip or report; (3) the extent to which the information in the tip or report can be verified by officers in the field; and (4) whether the tip or report concerns active
or recent activity, or has instead gone stale. Martinez, 486 F.3d at 861 (internal quotation marks omitted).
The Supreme Court has evinced a strong distrust of anonymous tips because the police cannot assess the tipster’s reputation, nor can the police hold anonymous tipsters responsible if their allegations turn out to be fabricated. Id. at 862 (citing Florida v. J.L., 529 U.S. 266 (2000)). Nonetheless, “‘there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’” Id. at 863 (quoting Alabama v. White, 496 U.S. 325, 327 (1990)); see also Gomez, 623 F.3d at 269 (“If a tip is provided by an anonymous informant, such that the informant’s credibility and reliability cannot be determined, the Government must establish reasonable suspicion based on the remaining factors.”). We have stated before that “where instant caller identification allows the police to trace the identity of an anonymous telephone informant, the ready
ability to identify the caller increases the reliability of such tips.” Gomez, 623 F.3d at 269 (internal quotation marks omitted). Under the “collective-knowledge doctrine” the officer initiating the investigatory stop need not have personal knowledge of the facts which gave rise to a reasonable suspicion, provided the initiating officer acted in reliance upon information from other officers with such personal knowledge. See United States v. Ibarra-Sanchez, 199 F.3d 753, 759–60 (5th Cir. 1999).
Appeal—Abandoned Appeal Points
( Wilbourn, in his opening brief, does not address the district court’s
protective sweep analysis. Although he addresses the issue in his reply brief,
“[t]his court does not entertain arguments raised for the first time in a reply
brief.” United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).
This court “will not raise and discuss legal issues that [Wilbourn] has
failed to assert.” Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). Because Wilbourn has not addressed the denial of his
motion to suppress on the basis that the search was justified as a protective
sweep, he has abandoned the issue on appeal. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). Additionally, because the ruling presents an
independent, unchallenged ground for the district court’s denial of the motion
to suppress, we affirm the district court’s denial on that basis without
addressing Wilbourn’s other arguments. See United States v. Thibodeaux, 211
F.3d 910, 912 (5th Cir. 2000); see also United States v. Mitchell, 334 F. App’x
665, 665-66 (5th Cir. 2009)
Appeal-Notice of Appeal
( united States v. Wiley, (5th Cir. March 7, 2016)(14-11213): D gave handwritten notice of appeal from judgment and judge revised judgment days later, and D did not appeal from that judgement. Notice is sufficient. …“Rule 3 must be liberally construed in favor of appeals . . . .” United States v. Cantwell, 470 F.3d 1087, 1089 (5th Cir. 2006). Thus, “a mistake in designating a judgment appealed from should not bar an appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake.” Turnbull v. United States, 929 F.2d 173, 177 (5th Cir. 1991). Moreover, “[f]ailure to properly designate the order appealed from is not a jurisdictional defect, and may be cured by an indication of intent in the briefs or otherwise.” United States v. Rochester, 898 F.2d 971, 976 n.1 (5th Cir. 1990). Here, it is clear that Wiley intended to appeal her sentence, and the Government does not dispute that the amended judgment is properly before us, or assert any prejudice from the arguably insufficient notice of appeal. Indeed, the Government has fully briefed the issue arising from the amended judgment. See United States v. Winn, 948 F.2d 145, 153–56 (5th Cir. 1991) (considering the merits when a notice of appeal failed to refer to a later imposed sentence, but the government identified no prejudice from the arguable deficiency and the sentencing issues were fully briefed). Therefore, we proceed to the merits. See United States v. Cheal, 389 F.3d 35, 51–53 (1st Cir. 2004).
Animal Welfare Act, 7 U.S.C. § 2131
( Knapp v. U.S. Department of Agriculture, __ F.3d ___ (5th Cir. July 31, 2015)(14-60002). Significant decision covering
( Standards of review of act and its regulations.
( Multiple administrative law aspects of defense of such case.
( Minimum penalties under act and Federal Civil Penalties Inflation Adjustment Act, 28 U.S.C. § 2461. See 70 Fed. Reg. 29573, 29577 (May 24, 2005) (codified at 7 C.F.R. § 3.91(b)(2)(ii) (2006)).
Appeal—Anders Brief
( Latest admonishment: United States v. Garland,632 F.3d 877(5th Cir. Jan. 31, 2011)
(09-50317). Outlines what is adequate for Anders brief. If brief covers points raised in
guidelines and checklist on 5th Circuit webpage will ordinarily be found to be adequate. If counsel submits such a brief, it will be adequate.
( Appellant’s attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Flores changed the way in which the 5th Circuit reviews handles Anders brief. Court no longer independently scours record for possible non-frivolous point. Instead, Anders brief will be reviewed on its face as adequate.
( United States v. Moreno-Torres, __ F.3d __ (5th Cir. Sept. 30, 2014)(13-40245):
When advising client of Anders brief who does not speak English, you must
communicate in the client’s language: Adopts second circuit rule:
[W]here counsel moves to withdraw under Anders, due process
requires that a defendant whom counsel knows does not speak
English is entitled to more than a written statement in English of
his rights. At a minimum, counsel should make reasonable efforts
to contact the defendant in person or by telephone, with the aid of
an interpreter if necessary, to explain to the defendant the
substance of counsel’s Anders brief, the defendant’s right to oppose
it or seek new counsel, and the likelihood that the brief could result
in dismissal of the appeal. Of course, written notice of the
foregoing, in a language understood by the client, would also
suffice. Id.1
( Anders in Cases involving Appeal Waiver or Untimely Notice of Appeal.
If there is an appeal waiver, appellate counsel can file an Anders brief
if they first consult with government counsel to see if the U.S. will invoke
the appeal waiver and state that in the Anders brief. United States v. Acquaye,
452 F.3d 380, 381-82 (5th Cir. 2006). Similarly, if defendant fails to timely
file notice of appeal, appellate counsel must confer with Government counsel
to insure that the Government will raise the untimely issue and so state that fact in the Anders brief. United States v. Pesina-Rodriguez, __ F.3d __ (5th Cir. June 1`4, 2016)(15-10759).
( Ander’s Brief and Discussion of Guidelines. United States v. Montoya-Amaya, (5th Cir. Aug. 15, 2011)(10-11175): Counsel’s brief substantially complies in most respects with the standards set forth in United States v. Flores, 632 F.3d 229 (5th Cir. 2011). However, we note that counsel’s examination of whether the district court
United States Court of Appeals properly determined Montoya’s advisory sentencing range in light of the contested findings made relative to her offense level fails to include citations to relevant legal authority. Ordinarily, counsel should cite not only to the applicable Sentencing Guideline and to those portions of the record which
support the district court’s findings, but also to pertinent case law in support of
the Guideline adjustments.
Appeal after Remand Waiver Issues
( Where defendant’s conviction is reversed on appeal, he cannot on re-appeal after remand complain of restitution calculation methods on sentence that he failed to raise originally. United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008), cert. denied, 129 S. Ct. 211 (2008).
Appeal—Sentencing after Remand Can Consider Post-Judgment Rehab
( Pepper v. United States, __ U.S. __ (2011). Upon remand after a successful appeal, the sentencing court may consider an appellant’s rehabilitation successes since his original judgment in setting a new sentencing.
Appeal—Time to File Motion to Alter Judgment and Notice of Appeal
( The deadline for postjudgment motions in federal court is a potential trap for the unwary. While the notice of appeal deadline is 30 days after judgment, the deadline for many postjudgment motions is 28 days after judgment. Fed. R. App. P. 58.
A recent Fifth Circuit case illustrates the danger of an untimely postjudgment motion.See Overstreet v. Joint Facilities Mgmt., LLC (In re Crescent Resource, LLC), No. 11-51141 (5th Cir. Nov. 8, 2012). There, the appellant had filed a motion to modify the judgment under Rule 59(e). Rule 59(e) provides that a motion to modify must be filed within 28 days of the judgment. But the appellant had filed the motion on the 29th day, making the motion untimely. The Fifth Circuit held that the untimely motion could not extend the deadline for the notice of appeal, even if the appellee did not complain about the untimeliness and the district court considered the motion. Thus, the Court dismissed the appeal of the judgment for lack of jurisdiction.
In so doing, the Fifth Circuit joined the majority of its sister circuits, which have held that the notice of appeal deadline cannot be extended by an untimely motion. But there is a circuit split on the issue. See Wilburn v. Robinson, 480 F.3d 1140, 1146-47 (D.C. Cir. 2007) (holding that an untimely motion can still extend the deadline for a notice of appeal).
Appeal by United States on Evidence Suppression Voids Subsequent Trial Court Orders
( United States v. Jefferson, __ F.3d __ (5th Cir. Oct. 6, 2010)(10-10034).
( The Supreme Court addressed the “requisites of § 3731” appeals in United
States v. Helstoski, 442 U.S. 477, 487 n.6 (1979). Specifically, the Court found that § 3731 requires that “[t]here was an order of a District Court excluding evidence; a United States Attorney filed the proper certification; and the appeal was taken within 30 days.” Id. The Court also noted that “the purpose of the
section was to remove all statutory barriers to Government appeals and to allow
( This is not a close case. The statute, 18 U.S.C. § 3731, is clear—the United States Attorney’s certification that the appeal is not taken for purpose of delay and that the evidence excluded by the district court’s order is a substantial proof of a fact
material in the proceeding is the final word on materiality for the purposes of
determining whether we have jurisdiction to hear the appeal. Neither the district court nor this court can hold otherwise. As the government recognizes, the United States Attorney remains subject to this court’s general supervisory powers for discipline for frivolous or abusive interlocutory appeals. But that in an appropriate case we may potentially sanction the government for abusing its authority under § 3731 does not mean that we do not have jurisdiction to hear the appeal. Accordingly, we hold that we have jurisdiction to hear the appeal under § 3731, and that as of the time the government filed its notice of appeal and the United States Attorney filed the required certification under the statute, the district court was instantly divested of its jurisdiction to take any further action in the case pending resolution of the appeal and remand from this court.
All orders entered by the district court following the filing of the notice of appeal;.
Appeal Waiver by Defendant –Can It preclude appeal by United States?
( Yes. United States v. Guevara, 941 F.2d 1299, 1300 (4th Cir. 1991), cert. den., 503 U.S. 977 (1992). United States v. Blick, 408 F.3d 162, 168 n. 5 (4th Cir. 2005).
( No. United States v. Hammond, 742 F.3d 880 (9th Cir. 2014)(Pet. for certiorari filed June 17, 2014. (13-1512).
( Appeal Waiver Does Not Waive Lack of Compliance with Rule 11 Plea. An appeal waiver in the plea agreement does not waive the district court’s compliance with Rule 11 or the need to brief this issue adequately in an Anders brief. See United States v. Carreon-Ibarra, 673 F.3d 358, 362 n.3 (5th Cir. 2012); see also United States v. Brown, 328 F.3d 787, 789-90 (5th Cir. 2003).
Appeal: Waived Objections Waive Appeal on Issue.
When D withdrew his objection at the sentencing hearing, the waived claims are unreviewable. See United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010). H
Appeal Attorney Ineffectiveness—Failure to File Notice of Appeal
( If a defendant requests that counsel file a notice of appeal, counsel’s failure to do so constitutes ineffective assistance even without a showing that the appeal would be meritorious. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 486 (2000);
cf. United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).
( See Appeal Waiver and Sanctions Against Appellate Attorney below.
Appeal Points Not Raised by Defendant but Decided by Court’
( United States v. Delgado, __ F.3d __ (5th Cir. Jan. 16, 2011)(en banc review granted on July 7, 2011)(See conspiracy):
We consider sua sponte whether there was sufficient evidence to support Delgado’s conspiracy conviction. This court “will consider a point of error not raised on appeal when it is necessary ‘to prevent a miscarriage of justice.’” United States v. Whitfield, 590 F.3d 325, 346 (5th Cir. 2009) (quoting United States v. Montemayor, 703 F.2d 109, 114 n.7 (5th Cir. 1983)). As the Supreme Court has explained, “‘In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.’” Silber v. United States, 370 U.S. 717, 718 (1962) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). These principles apply even when the defendant has also failed to raise the point of error before the district court. See Whitfield, 590 F.3d at 347 (citing United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971)). I
( Points Raised in Reply Brief. The Fifth Circuit will not consider items raised for the first time in a reply brief. contentions raised for the first time in a reply brief. United States v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010).
Appeal—In Forma Pauperis—See In Forma Pauperis
Appeal Attorney, Release of and Self-Representation and Hybrid Representation
( Furthermore, this court may substitute one appointed counsel for another in the event of a conflict of interest, other most pressing circumstances, or in the interests of justice. Fifth Circuit Plan Under the C.J.A., § 5(B). Trowbridge has failed to meet this standard.
Accordingly, Trowbridge’s pro se motion to relieve appointed counsel and have
new counsel appointed is DENIED. United States v. Trowbridge, 2009 WL 1759653,
___ Fed. App’x ___, No. 08-10457)(June 23, 2009)(not published).
( An appellant cannot force his appellate counsel to advance issues with which counsel does not agree, and he does not have the right to new appointed counsel who necessarily agrees with him. See Vega v. Johnson, 149 F.3d 354, 361 (5th Cir. 1998). He has no constitutional right to self-representation on appeal, see Martinez v. Court of Appeal of California, 528 U.S. 152, 163 (2000), and he is not entitled to hybrid representation on appeal. See United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir. 1999). Once counsel’s brief is filed, a motion to proceed pro se is untimely. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). Further, “[b]y accepting the assistance of counsel the criminal appellant waives his right to present pro se briefs on direct appeal.”
Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996).
Appeal from U.S. Magistrate Judge Ruling
( A ruling of a U.S. Magistrate Judge may be appealed only to a federal district court. See 18 U.S.C. § 3402; FED. R. CRIM. P. 58(g)(2); see also United States v. Baxter, 19
F.3d 155, 156 (4th Cir. 1994). Thus, the Fifth Circuit lacks jurisdiction where appellant appeals denial of a request for appointed counsel. United States v. Ramirez-Alvarez,
(5th Cir. Jan. 15, 2010)(09-10702)(unreported).
( McCray consented to the magistrate judge’s resolution of these motions pursuant to 28 U.S.C. § 636(c). However, because the magistrate judge’s orders denying those motions are neither final decisions nor appealable collateral orders, this court lacks jurisdiction to consider them in this appeal. See 28 U.S.C. § 1291; Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925-26 (5th Cir. 1996). His appeal must therefore be dismissed.
Appeal, En Banc
( When the Fifth Circuit grants a rehearing en banc, the panel opinion is vacated
United States ex. rel. Marcy v. Rowan Cos., 520 F.3d 384, 389 (5th Cir. 2008)
Appeal Mooted by Deportation.
( Conflicting cases resolved in United States v. Heredia-Holguin, __ F.3d __ (5th Cir.
June 16, 2015)(14-10846)(does not resolve the conflict).
( Supervised release still pending—appeal not moot. ID. United States v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006).
( Appeal mooted—no more prison time and no SR. United States v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006)(harmless error)..
Appeal Points
( Appointed counsel is not required to raise every claim suggested by his client and may use professional judgment to select the most promising issues for review. See Jones
v. Barnes, 463 U.S. 745, 750-54 (1983).
( One Defense Attorney Cannot Adopt the Brief of Defense Attorney of Co-Defendant. United States v. Simpson, 334 F.3d 453 (5th Cir. 2003)(02-10434); FRAP 28(i); United States v. Solis, 299 F.3d 420, 447 n. 90 (5th Cir. 2002)(sentencing is fact-specific)
( Failure to Brief. From United States v. Reagan, 596 F.3d 251 (5th Cir. Feb. 4, 2010)(08-11806): This is a failure to brief and constitutes waiver. See United States v. Stalnaker, 571 F.3d 428, 439–440 (5th Cir. 2009) (holding that the defendant’s failure to explain her assertions or provide citations to the record or relevant law constituted waiver for failure to adequately brief); see also FED. R. APP. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . [the] appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”). We therefore do not address these points of error.
( Issues Raised in Reply Brief. A claim raised for the first time in a reply brief will generally not be considered. United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006). Nonetheless, the court has discretion to consider an issue raised for the first time in a reply brief if it is in response to an issue raised in an appellee’s brief.
United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).
( See also Brief Points for Appeal
Appeal Attorney Ineffectiveness—Failure to File Notice of Appeal
( If a defendant requests that counsel file a notice of appeal, counsel’s failure to do so constitutes ineffective assistance even without a showing that the appeal would be meritorious. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 486 (2000);
cf. United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).
( See Appeal Waiver and Sanctions Against Appellate Attorney below.
( Significant New Case in 2011. United States v. Narvaez, No. 10-50699, slip op. at
6 (5th Cir. Nov. 28, 2011):
A defendant’s claim that he unknowingly or involuntarily waived his right to appeal based solely upon a technical Rule 11 error falls outside of the class of appellate waiver challenges subject to de novo review. See FED. R. CRIM. P. 11(h) (harmless error) & 52(b) (plain error); United States v. Vonn, 535 U.S. 55 (2002). Deficiencies in the Rule 11 colloquy to which no contemporaneous objections are lodged are reviewed for plain error in light of the record as a whole. See Vonn, 535 U.S. at 59, 73-76; United States v. Oliver, 630 F.3d 397, 411-12 (5th Cir. 2011), petition for cert. filed, No. 11-5508 (Jun. 24, 2011) (applying plain-error review to Rule 11(b)(1)(N) challenge and citing Vonn); United States v. Reyes, 300 F.3d 555, 558-59 (5th Cir. 2002) (analyzing Rule 11 challenge under plain-error review post-Vonn).
Note 3: Our sister circuits, too, have applied Vonn to alleged Rule 11(b)(1)(N) errors. See United States v. Goodson, 544 F.3d 529, 539-41 (3d Cir. 2008); United States v. BorreroAcevedo, 533 F.3d 11, 13-18 (1st Cir. 2008); United States v. Sura, 511 F.3d 654, 660-63 (7th Cir. 2007); United States v. Murdock, 398 F.3d 491, 495-99 (6th Cir. 2005); United States v. Arellano-Gallegos, 387 F.3d 794, 796-97 (9th Cir. 2004); United States v. Edgar, 348 F.3d 867, 870-73 (10th Cir. 2003); see also Sotirion v. United States, 617 F.3d 27, 38 (1st Cir. 2010)
( It is defense counsel's obligation to ascertain and certify that the Government would rely on the defendant's appellate waiver before moving to withdraw under Anders. United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006).
( Validity of an appeal waiver is reviewed de novo. See United States v. Baymon,
312 F.3d 725, 727 (5th Cir. 2002); United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).
( Enforceable in sentencing. United States v. Walters, (5th Cir. Oct. 10, 2013)(12039571).
( United States v. Benitez-Espinoza, (5th Cir. April 8, 2013)(11-11188):
Benitez-Espinoza entered his guilty plea without the benefit of a plea
agreement. Prior to sentencing, however, he agreed in a sentencing agreement
to waive his right to appeal his conviction in return for the Government moving
pursuant to U.S.S.G. § 3E1.1(b) for an additional one-level decrease to his
offense level for acceptance of responsibility. … The district court also imposed a two-year term of supervised release. Counsel for Benitez-Espinoza objected to the term of supervised release on the ground that she did not “believe there is any reason or [has] been any showing that that would increase the likelihood that Mr. Benitez would not return to the United States.” The district court overruled the objection, stating
“I have my reservations about the whole supervised release system in these
cases, and I understand where you’re coming from, but objection is noted.”
The Government contends that this appeal is barred by the appeal waiver in the sentencing agreement. Benitez-Espinoza argues that the waiver is invalid because at sentencing the district court did not verify that he had understood the appeal waiver and instead informed him that he had the right to appeal his sentence. He also contends that the Government improperly induced the waiver by threatening to withhold a motion for the third acceptance point despite his timely guilty plea. We have not previously addressed the validity of appeal waivers in post-plea sentencing agreements nor the appropriate standard of review for challenges to those provisions, although our sister circuits have held that they are enforceable. See, e.g., United States v. Cheney, 571 F.3d 764, 766–67 (8th Cir. 2009). Nevertheless, because we conclude that BenitezEspinoza’s appellate arguments fail, we pretermit the issue of the waiver’s enforceability. See United States v. Story, 439 F.3d 226, 230–31 (5th Cir. 2006).
Effective November 1, 2011, however, U.S.S.G. § 5D1.1 was amended to provide that “[t]he court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is
a deportable alien who likely will be deported after imprisonment.” U.S.S.G.
§ 5D1.1(c). Benitez-Espinoza’s PSR was not amended after this change to the
guidelines.
( Restitution As Basis for appeal under Appeal Waiver in Plea Agreement
United States v. Sharma, __ F.3d __ (5th Cir. Dec. 21, 2012)(11-20102):
The plea agreements also contained appeal waivers. At oral argument, the
government conceded that the waivers do not bar this appeal of restitution orders that purportedly exceed the statutory maximum authorized by the Mandatory Victim Restitution Act. See United States v. Chem. & Metal Indus., Inc., 677 F.3d 750, 752 (5th Cir. 2012).
( Second Case on Restitution Barred by Appeal Waiver in Plea Agreements.
United States v. Keele, __ F.3d __ (5th Cir. Jan. 7, 2014)(12-10551), pet for certiorari filed, No. 14-256 August 29, 2014.
The original opinion of January 7, 2014, 742 F.3d.192 (5th Cir. 2014) was withdrawn and replaced by a new published opinion on June 2, 2014: -------------------------------------------------
( A plea bargain must first be accepted on the record by the trial court. Once expressly accepted by the trial court, it becomes a binding contractual agreement between the State and the defendant. Cases are Santobello v. New York, 404 U.S. 257 (1971), Ortiz v. State, 933 S.W.2d 102 (Tex. Crim. App. 1996), and Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000).
( No Appeal Waiver on Issue of Restitution. United States v. Campbell, (5th Cir. Jan. 15, 2014)(12-31172): Campbell nevertheless contends that the appeal waiver contained in her plea agreement does not bar her present appeal. The appeal waiver states that
Campbell waived the right to appeal her conviction and sentence on direct
appeal, except in the case of a sentence “in excess of the statutory maximum.”
Campbell contends that the appeal waiver does not bar her claim that the
restitution amount exceeded the statutory maximum under 18 U.S.C. § 3663(a)(2). Campbell relies on United States v. Chemical & Metal Industries,
Inc., (C&MI), 677 F.3d 750 (5th Cir. 2012). In C&MI, this Court found the
appeal waiver—which contained a similar “in excess of the statutory maximum”
exception—did not bar the defendant’s challenge to the restitution award. Id.
at 752. The Court reasoned that (1) 18 U.S.C. § 3664 does not authorize a
district court to enter a restitution order that exceeds the victim’s losses; and (2)
an appeal of such an order would be an appeal of a sentence exceeding the
statutory maximum. See id. at 752. C&MI controls Campbell’s case. Just like
in C&MI, Campbell’s appeal falls within the exception to the waiver appeal that
the parties agreed to in the plea agreement.
( We review the district court’s restitution award under an abuse of discretion standard. United States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004).
( A defendant may always avoid a waiver of appeal on the limited grounds that the
waiver or guilty plea itself was tainted by ineffective assistance of counsel. United
States v. White, 307 F.3d 336, 339, 343 (5th Cir. 2002) (citing United States v.
Henderson, 72 F.3d 463, 465 (5th Cir. 1995)). When appellant does not raise these ineffective assistance of counsel claims before the district court, the Fifth Circuit
will decline to consider them without prejudice to any right appellant may have to raise them in a subsequent proceeding. See United States v. Gulley, 526 F.3d 809, 821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008).
( Although this court generally declines to review claims of ineffective assistance of counsel on direct appeal, the record is sufficiently developed for the court to address the claim. See United States v. Gulley, 526 F.3d 808, 821 (5th Cir.), cert. denied, 129 S. Ct.
159 (2008). Because the record reflects that counsel explained the implications of the plea agreement to Armendariz, Armendariz’s ineffective assistance of counsel claim is without merit. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
( Safety value and mitigation considerations do not fall within exceptions to appeal
waivers. United States v. Armendariz, 323 Fed. App’x 336 (5th Cir. 2009)(08-50765)
(April 24, 2009).
( “[T]he best evidence of a defendant’s understanding when pleading guilty is the
colloquy closest to the moment he enters the plea.” United States v. Vonn,
535 U.S. 55, 74 (2002).
( As held recently in Puckett v. United States, 129 S. Ct. 1423, 1428 (2009),
because the breach-of-the-plea-agreement issue was raised for the first time on
appeal, review is only for plain error.
( Appeal waiver provision was valid and should be enforced. See United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992).
( For a defendant’s waiver of his right to appeal to be knowing and voluntary, the “defendant must know that he had a right to appeal his sentence and that he was giving up that right.” United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). A waiver is both knowing and voluntary if the defendant “indicated that he had read and understood the plea agreement, which includes an explicit, unambiguous waiver of appeal.” United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). As part of the plea colloquy, the district court must address the defendant in open court and determine whether the defendant understands the waiver. See FED. R. CRIM. P. 11(b)(1)(N). We review the validity of an appeal waiver de novo.
United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).
( From United States v. Trejo, 610 F.3d 308 (5th Cir. June 29, 2010)(07-40216)
Trejo waived his right to appeal as part of his plea agreement. The Government correctly does not seek to enforce the waiver because a valid waiver of appeal does not bar review of a claim that the factual basis for a guilty plea fails to establish the essential elements of the crime of conviction. United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008) (citing United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002)). Permitting appeal despite a valid waiver “protect[s] a defendant who may plead guilty with an understanding of the nature of the charge, but without realizing that his conduct does not actually fall within the definition of the charged crime.” Hildenbrand, 527 F.3d at 474 (citing Baymon, 312 F.3d at 727). Thus, we consider Trejo’s claim of factual insufficiency despite his waiver of appeal. Nonetheless, because Trejo did not present his factual sufficiency claim to the district court, we apply a plain error standard of review to his claim. United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001).\
( Sentence exceed statute and appeal was not barred by waiver. United States v. House, (5th Cir. Sept. 3, 2010)(09-40302). Felon in possession of firearm filed § 2255 action to challenge his Armed Career Criminal Act Enhancement under 18 U.S.C. § 924(e). One of the underlying felonies was a burglary other than generic form. As a result, the ACCA enhancement exceeded the statutory sentence, which is not barred by the appeal waiver.
( When the Government does not invoke the appeal waiver provision of a plea
agreement. Therefore, the waiver provision does not bar Cockerham’s appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).
( Plea agreement did not provide reasonable understanding that government could argue for career offender enhancement. United States v. Roberts, 624 F.3d 241 (5th Cir. 2011).
( United States v. Jacob, __ F.3d __ (5th Cir. Mar. 15, 2011)(10-20043):
Fifth Circuit holds that there was an upward variance, not a departure, and thus defendant waived his right to appeal under the plea agreement.
( Jacobs agreed to waive his right to appeal his sentence. In pertinent part, the waiver of appeal provides:
The defendant waives the right to appeal the sentence imposed or
the manner in which it was determined. The defendant may appeal
only (a) the sentence imposed above the statutory maximum; or (b)
an upward departure from the Sentencing Guidelines, which had
not been requested by the United States as set forth in Title 18
U.S.C. § 3642(b).
At the Rule 11 hearing, the district court specifically discussed the waiver-of -appeal provision with Jacobs.
( We determine de novo whether the waiver-of-appeal provision in Jacobs’s
plea agreement bars this appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002) A defendant may waive his statutory right to appeal as part of a valid plea agreement, “provided (1) his or her waiver is knowing and voluntary, and (2) the waiver applies to the circumstances at hand, based on the plain language of the agreement.”
United States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006).
( The waiver-of-appeal provision in Jacobs’s plea agreement only allows him to appeal an “upward departure” not requested by the Government. “‘Departure’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.” Irizarry v. United States, 553 U.S. 708, 714 (2008). The Guidelines set out a three-part framework for the imposition of sentences: the district court (1) calculates the advisory sentencing range; (2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and (3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole. The district court’s authority to impose a departure emanates from 18 U.S.C. § 3553(b)(1) and, in turn, in Chapter 5,Part K of the Guidelines. Under Federal Rule of Criminal Procedure 32(h), the district court cannot impose a departure unless it first notifies the parties that it is contemplating doing so. When the district court imposes an upward departure, it must explain its reasons for doing so in Section V of the standard form Statement of Reasons. By contrast, if after completing the Guidelines’ three-step process the district court “imposes a sentence that is outside the guidelines framework, such a sentence is considered a ‘variance’.” The district court’s authority to impose a variance is discretionary and stems from 18 U.S.C. § 3553(a).
( Jacobs’s position most closely mirrors the position advocated by the
dissenting Justices—and rejected by the majority—in Irizarry. See 553 U.S. at 718 (Breyer, J. dissenting).
Appeal—Preservation of Error
( Carlson v. Bioremedi Therapeutic Systems, Inc., __ F.3d __
(5th Cir. 5-16-2016)(14-20721). A “pre-trial objection is sufficient to preserve the error for appellate review.” Mathis v. Exxon Corp., 302 F.3d 448, 459 & n.16 (5th Cir. 2002) (citing the 2000 amendment to Federal Rule of Evidence 103).( 3 We recently acknowledged conflicting precedent in this circuit. Past opinions have applied an outdated rule requiring that pretrial objections be renewed at trial to preserve error. United States v. Lewis, 796 F.3d 543, 545 n.6 (5th Cir. 2015). “Because Mathis is the earliest of the conflicting panel opinions, it controls.” Id.) The Carlsons’ motion to exclude did not cite Rule 702 or the caselaw for analyzing admissibility of expert opinions, but it sufficiently put before the district court the issue of Dr. Durrett’s qualification to give expert testimony. The motion argued Dr. Durrett was not qualified “to provide any manner of expert medical testimony”; for support, the Carlsons cited an out-of-circuit decision considering the proper scope of a chiropractor’s expert testimony. Additionally, the Carlsons preserved the issue by twice objecting at trial when Dr. Durrett began to testify about medical causation. A party need not repeatedly object to preserve an issue where the district court has already denied the initial objection. See Douglas v. Alabama, 380 U.S. 415, 420–23 (1965).
( Appeal Waiver and MTR on SR. United States v. Higgins, __ F.3d __ (5th Cir. Jan. 10, 2014)(12-30818): Appeal of MTR of SR is dismissed. Although the waiver provision does not explicitly include the terms of
SR, this court—as well as Congress—has deemed SR to be a part of the sentence. See United States v. Benbrook, 119 F.3d 338, 341 n.10 (5th Cir. 1997); 18 U.S.C.
§ 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a
misdemeanor, may include as a part of the sentence a requirement. In fact, 18 U.S.C. § 3742—under which Higgins claims appellate jurisdiction—also includes conditions of SR as a part of the sentence. As a result, the term “sentence” unambiguously includes SR and its conditions as a matter of law.
( Appeal Waiver Affecting only Sentence. Hornbeak’s appeal waiver bars an appeal of his sentence and does not apply to this claim, which pertains to the validity of his conviction. See United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008); United States v. Palmer, 456 F.3d 484, 488-89 (5th Cir. 2006).
Appeal Waiver When Judge Rejects Plea Agreement.
( From United States v. Self, 596 F.3d 245 (5th Cir. Feb. 3, 2010)(08-10307):
When a district court rejects a plea agreement in toto, the waiver of rights in that agreement does not bar an appeal. See, e.g., United States v. Moore, 275 F. App’x 394, 395 (5th Cir. 2008)(noting that an appeal waiver is not enforceable after a district court rejects a plea agreement containing such a clause); see also In re Vasquez-Ramirez, 443 F.3d 692, 697 (9th Cir. 2006) (noting that if a plea agreement is rejected, a defendant who persists in his guilty plea is entering a “naked plea, unencumbered by the waivers of his right to appeal or collaterally challenge the proceedings”). Even assuming Self’s appeal waiver was enforceable, its terms do not apply here. The plea agreement reserved Self’s
right to appeal “the failure of the Court, after accepting the agreement, to impose a sentence in accordance with the terms of this agreement.”
Appeal Waiver Through Counsel. United States v. Andino-Artega, 608 F.3d 305
(5th Cir. June 8, 2010)(09-40498): Government contends that Andino-Ortega “knew of the sentencing guidelines issue and that he consciously chose to forego it.” Andino-Ortega contends that the statements, in fact, show that defense counsel misunderstood Perez-Munoz and failed to account for precedent indicating that the Texas offense of injury to a child is not a “crime of violence.”
Waiver is the intentional relinquishment of a known right. United States
v. Olano, 507 U.S. 725, 733 (1993). A waiver “occurs by an affirmative choice by
the defendant to forego any remedy available to him, presumably for real or
perceived benefits resulting from the waiver.” United States v. Dodson, 288 F.3d
153, 160 (5th Cir. 2002). In contrast, forfeiture is the failure to make the timely
assertion of a right. Olano, 507 U.S. at 733.
We have found only one case in this circuit that suggests that counsel’s
statements, here, might constitute a waiver. See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). In Fernandez-Cusco, the court sua sponte considered whether the defendant waived his appeal of the application of a 16-level enhancement for his prior conviction on the basis that the prior crime was not a “crime of violence.” Id. The court acknowledged that a “defendant does not waive plain-error review simply by ‘fail[ing] to object to the characterization of his prior offense as a crime of violence.’” Id. (quoting United States v. Alfaro, 408 F.3d 204, 207 n.1 (5th Cir.), cert. denied, 546 U.S.
911 (2005)) (alteration in original). But it found that the defendant “did more than fail to object . . .; he affirmatively recognized [the enhancement] was being applied and indicated it was proper.” Id. The court concluded that these statements did not rise to the level of waiver, but “arguably” constituted invited error. In an abundance of caution, the court nonetheless reviewed for plain error. Id. Although we recognize the factual similarity here—Andino-Ortega’s counsel acknowledged that the 16-level enhancement was proper—he did so on the basis of a misunderstanding of this court’s precedent. The statements regarding the propriety of the crime-of-violence enhancement do not constitute a waiver because they do not evidence an intentional and knowing
relinquishment of a right. Counsel’s failure to object below because he did not recognize the argument now being made on appeal is not a waiver. See United States v. Castaneda-Baltazar, 239 F. App’x 900, 901 (5th Cir. 2007) (unpublished); see also United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006) (finding no waiver of sentencing guidelines issue even though defense counsel stated that “other than the Blakely objection, he had no problem with the PSR”). Accordingly
Appeal Waiver and Sanctions Against Appellate Attorney
( United States v. Ellis, 323 Fed. App’x 361 (5th Cir. 2009)(08-30664). The record reflects that Ellis knowingly and voluntarily waived his right to appeal his sentence except in limited circumstances not present in the instant appeal. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Because the waiver is valid, the appeal is dismissed as frivolous. See 5TH CIR. R. 42.2.
Counsel X is warned that pursuing an appeal despite a
valid appeal waiver provision in the plea agreement and failing to address the
waiver in a reply brief after it was raised by the Government in its brief is a
needless waste of judicial resources and will invite sanctions. See United States
v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999).
( Savaging appellate attorney for lousy job: United States v. Garcia, (5th Cir. Dec. 23, 2016)(16-40124).
Armed Career Criminal 18 U.S.C. § 924(e)
( Residual clause of Armed Career Criminal Act is unconstitutionally vague.
Johnson v. United States, 576 U.S. __, ___ S. Ct. ____ (2015).
( United States v. Hornyak, __ 4.3d ___ (5th Cir. October 30, 2015)(15-50299):
A sentence imposed pursuant to the residual clause of the Armed Career Criminal Act (ACCA), which the Supreme Court recently found to be unconstitutionally vague, should be vacated on plain error review.
( Descamps v. United States, __ U.S. __ (2013)
JUSTICE KAGAN delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), increases the sentences of certain federal defendants who have three prior convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those crimes, courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.
We have previously approved a variant of this method—labeled (not very inventively) the “modified categorical approach”—when a prior conviction is for violating a so called “divisible statute.” That kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. 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.
This case presents the question whether sentencing courts may also consult those additional documents when a defendant was convicted under an “indivisible” statute— i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense. That would enable a court to decide, based on information about a case’s underlying facts, that the defendant’s prior conviction qualifies as an ACCA predicate even though the elements of the crime fail to satisfy our categorical test. Because that result would contravene our prior decisions and the principles underlying them, we hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.
( Abbott v. United States, 562 U.S. __ (2010). When a defendant faces different mandatory minimums for drug trafficking with weapon and Armed Career Criminal Act, 18 U.S.C. § 924(c)(1)(A), the defendant is subject to the highest mandatory minimum specified for his conduct.
( Standard of Review. United States v. Schmnidt, 623 F.3d 257, 260 (5th Cir. 2010):
A district court’s classification of a “violent felony” is reviewed de novo. The ACCA
states that a person who violates 18 U.S.C. § 922(g) and has three previous
violent felony convictions shall be sentenced to no less than fifteen years in
prison. … In determining whether a prior conviction qualifies as a violent felony under the ACCA, we begin with the categorical approach, which requires looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the particular underlying facts. See Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990). However, there are instances which require a variation of this approach. Id. This variation, referred to as the “modified categorical approach,” allows a court to look at other documents, limited to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant . . . . or to some comparable judicial record.” Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005). The modified categorical approach is applicable only when a divisible statute is at issue. Descamps v. United States, 133 S. Ct. 2276 (2013). The Court explained divisibility as follows: when a statute is divisible “i.e., comprises multiple, alternative versions of the crime – a later sentencing court cannot tell, without
reviewing something more” which element of the statute the defendant was convicted under. Id. at 2284.
( United States v. Sykes, 564 U.S. __ (U.S. June 9, 2011)(09-11311):
Fleeing from a policeman under Indiana law is a violent felony so as to trigger application fo Armed Career Criminal Act.
( United States v. Spann, (5th Cir. 4-14-2014)(13-10413):
Spann also argues that the Texas offense of evading arrest using a vehicle in violation of Texas Penal Code § 38.04(b)(1)(B) is not a violent felony for purposes of the ACCA. He contends that his evading arrest conviction did not constitute a violent felony because the Texas offense can be committed by fleeing in any vehicle, not just a motor vehicle. He argues that because in Sykes v. United States, 131 S. Ct. 2267 (2011), the Supreme Court emphasized the importance of the use of a motor vehicle during flight, this court should
reconsider United States v. Harrimon, 568 F.3d 531, 536 (5th Cir. 2009), which held that the Texas offense of evading arrest with a vehicle was a violent felony under the ACCA because “fleeing by vehicle poses a serious risk of injury to others.” We review de novo the district court’s “legal conclusions underlying the district court’s application of the ACCA.” United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). In Sykes, the Supreme Court held that an Indiana conviction for resisting law enforcement through felonious vehicle flight was a violent felony under § 924(e)(2)(B)(ii)’s residual clause. 131 S. Ct. at 2277. The Supreme Court noted that this decision was consistent with
decisions of various circuit courts including this court’s decision in Harrimon.
Id. at 2272. We have rejected the arguments that the Texas statute is not a
violent felony because it can be committed by fleeing in any vehicle, not just a
motor vehicle, and that Sykes overruled Harrimon because it emphasized the
use of a motor vehicle during flight. See United States v. Standberry, 546 F.
App’x 381, 382 (5th Cir. 2013). Because Sykes did not overrule Harrimon
either explicitly or implicitly, we are bound by our decision in Harrimon. Id.
As the evading arrest conviction is Spann’s third qualifying conviction for the
armed career criminal enhancement, we do not address whether Spann’s
robbery conviction is a violent felony under the ACCA. See 18 U.S.C. § 924(e).
( McNeill v. United States, 564 U.S. ___ (U.S. June 6, 2011)(10-5258):
Under the Armed Career Criminal Act (ACCA), a felon unlawfully in possession of a firearm, 18 U. S. C. §922(g)(1), is subject to a 15-year minimum prison sentence if he has three prior convictions for a “violent felony” or “serious drug offense.” As relevant here, a “serious drug offense” is defined as “an offense under State law . . . , for which
a maximum term of imprisonment of ten years or more is prescribed by law,” §924(e)(2)(A)(ii). … A federal sentencing court must determine whether “an offense
under State law” is a “serious drug offense” by consulting the “maximum term of imprisonment” applicable to a defendant’s prior state drug offense at the time of the defendant’s conviction for that offense. 18 U.S.C. §924(e)(2)(A)(ii). …
The statute’s broader context, specifically the adjacent definition of “violent felony,” confirms this interpretation. Although Congress used the present tense in defining “violent felony,” see §924(e)(2)(B), this Court has repeatedly turned to the version of state law that the defendant was actually convicted of violating in determining whether he was convicted of such a felony, see, e.g., Taylor v. United States, 495 U. S. 575, 602. The Court sees no reason to interpret “serious drug offenses” any differently. Cf. Nijhawan v. Holder, 557 U. S. ___, ___. …. (c) This natural reading of ACCA also avoids the absurd results that would follow from consulting current state law to define a previous offense.
( Shepard v. United States, 544 U.S. 13, 26 (2005) (holding that in determining if an enhancement under the Armed Career Criminal Act applied when the defendant had
pleaded guilty a prior offense, “the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or [ ] some comparable judicial record of this
information” could be used to establish the predicate offense); see also United States v.
Martinez-Paramo, 380 F.3d 799, 805 (5th Cir. 2004) (remanding to the district court to
determine, based upon the information, plea agreement, and plea colloquy, which subsection
of section 2706 applied).
( Davis contends that his Arizona convictions were not for violent felonies
under § 924(e)(2)(B)(ii), because second-degree burglary under Arizona law does
not fit within the generic, contemporary meaning of burglary as defined in Taylor
v. United States, 495 U.S. 575 (1990). “[A] person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495
U.S. at 599.
( We have suggested that generic burglary requires the defendant to have
formed an intent to commit a crime before entering the premises. See United States v. Herrera-Montes, 490 F.3d 390, 392 & n.2 (5th Cir.), cert. denied, 128 S. Ct. 410 (2007).
( See United States v. Reina-Rodriguez, 468 F.3d 1147, 1155 (9th Cir. 2006) (noting that Taylor requires only that the defendant form the intent to commit a crime while unlawfully remaining on the premises), overruled on other grounds by United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir.), cert. denied, 128 S. Ct. 425 (2007).
( Such statutes describe generic burglary where they apply to vehicles when used as residences or habitations. See United States v. Murillo-Lopez, 444 F.3d 337, 339-45 (5th Cir. 2006) (California statute); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005) (Texas); United States v. Cordoba-Posos, 295 F. App’x 651, 655 (5th Cir. 2008) (Illinois).
( Prior convictions for robbery and aggravated assault counted as two violent felony convictions under the ACCA. See United States v. Davis, 487 F.3d 282, 287 (5th Cir. 2007); United States v. Martinez, 962 F.2d 1161, 1168-69 (5th Cir. 1992). Sneed’s prior conviction for evading arrest or detention using a vehicle is also a violent felony conviction under the ACCA. See United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009). Texas aggravated robbery is a ACCA offense. United States v. Rose, 2009 WL 3683127, 587 F.3d 695 (5th Cir. 2009)( 08-10813). Texas aggravated robbery statute, Texas Penal Code § 29.03, qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Concluding that the statute is divisible, and that the crime for which appellant, Noel Lerma, was convicted previously at least three times is a “violent felony” under the ACCA, we AFFIRM. United States v. Lerma,.
__ F/3d __ (5th Cir. Dec. 14, 2017)
( United States v. Hughes, 602 F.3d 669 (5th Cir. April 5, 2010)(08-60870).
Conviction under the escape statute, 18 U.S.C. § 751(a), is a violent felony under the Armed Career Offender Act.
( United States v. House, (5th Cir. Sept. 3, 2010)(09-40302). ACCA does not apply because underlying burglary offense was not of the generic quality as mandated
in Sheppard. Texas organized crime statute was not a generic burglary either.
( United States v. Johnson (5th Cir. May 14, 2012)(11-30314):
Pursuant to the Armed Career Criminal Act, a defendant convicted under 18 U.S.C. § 922(g) who has three previous convictions for violent felonies or serious drug offenses occurring on different occasions must be imprisoned for at least 15 years. § 924(e)(1); U.S.S.G. § 4B1.4(a). Burglary is one of the violent felonies enumerated in the ACCA. § 924(e)(2)(B)(ii). The Supreme Court has limited the use of state law burglary convictions for sentence enhancements by holding that only “generic” burglary can support a § 924(e) enhancement. Taylor v. United States, 495 U.S. 575, 598-99, 110 S. Ct. 2143, 2158 (1990). Specifically, the Taylor definition of a generic burglary requires that the state statute contain, at a minimum, the following elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”
Id. at 598, 110 S. Ct. at 2158.
There is no dispute that the Mississippi statute criminalizes conduct not
covered by a generic burglary offense. … When state statutes are broader than generic burglary, courts may employ what the Court has called the “modified categorical approach,” Johnson v. United States, ___ U.S. ___ , 130 S. Ct. 1265, 1273 (2010), and consider certain adjudicative records, such as the charging document, a plea agreement, a transcript of a colloquy in which the defendant confirmed the factual basis, or other comparable judicial record, to determine whether the conviction
necessarily rested on facts equating to the generic offense, Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005). The records introduced by the government were of the type approved by the Court in Shepard, 544 U.S. at 26, 125 S. Ct. at 1263, and support the district court’s conclusion that Johnson was convicted for generic burglary.
( United States v. Custis, 511 U.S. 485 (1994), held that, with the sole exception
of convictions obtained in violation of the right to counsel, a defendant in a
federal sentencing proceeding has no right to collaterally attack the validity of
previous state convictions used to enhance his sentence under the ACCA.
Custis, 511 U.S. at 487; see also McNeill v. United States, 131 S. Ct. 2218, 2223
(2011)(an ACCA case noting that definition of “crime punishable by
imprisonment for a term exceeding one year” “creates a clear negative
implication that courts may count a conviction that has not been set
aside”)(internal citation and quotation marks omitted). His general argument
that his conviction for aggravated assault is not of the type that was intended
to be used for enhancement under the ACCA lacks merit. See United States v.
Martinez, 962 F.2d 1161, 1167-68 (5th Cir. 1992).
( In determining whether an ACCA enhancement is proper, the Government bears the initial burden of establishing the defendant’s prior convictions by a preponderance of the evidence. United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (citing United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008)). We have previously found that a pen packet from the Texas Department of Criminal Justice (TDCJ) can be sufficient to prove the existence of prior convictions. See United States v. Vidaure, 861 F.2d 1337, 1340-41 (5th Cir. 1988); United States v. Dancy, 861 F.2d 77, 79 (5th Cir. 1988).
( From United States v. Schmidt, 623 F.3d 257 (5th Cir. Oct. 7, 2010)(09-31138):
( Schmidt appeals his designation as an Armed Career Criminal (“ACC”) under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“the ACCA”). Schmidt pleaded guilty to conspiracy to possess a pipe bomb and to being a convicted felon in possession of a pipe bomb. He now challenges the district court’s sentencing determination that a prior conviction for theft of a firearm from a licensed gun dealer, in violation of 18 U.S.C. § 922(u), is a violent felony for purposes of the ACCA. We affirm
( Standard of Review. A sentencing court’s determination whether theft of firearms from a licensed dealer qualifies as a violent felony is a statutory interpretation that we review de novo. James v. United States, 550 U.S. 192, 214 (2007).We also review a sentencing court’s interpretation of the Guidelines de novo. United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004).The Supreme Court held, in a similar case, that when a court determines whether a conviction qualifies as a violent felony under the ACCA, it engages in statutory interpretation and not in judicial fact finding. Therefore, there is no Sixth Amendment issue under Apprendi v. New Jersey.
( Schmidt raises only one issue in his appeal: whether his 18 U.S.C. § 922(u)
conviction for theft of firearms from a licensed dealer qualifies as a violent felony for ACCA purposes. One of the ways a defendant is determined to be an ACC when his current conviction constitutes a violation of the pipe-bomb statute, § 922(g), and he has at least three prior convictions for violent felonies. For 8 ACCA purposes, a violent felony is one that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Thus, an offense will qualify as violent if: (1) “physical force against
the person of another” is an element of the offense; (2) the crime is burglary, arson or extortion, being the offenses enumerated in the ACCA; or (3) the crime comes under the ACCA’s residual clause, by constituting a “potential risk of physical injury to another.”
( Schmidt insists that theft of firearms from a federally licensed dealer does
not include, as a required element, the use, attempted use or threatened use of
physical force against a person. The statute specifies that:
It shall be unlawful for a person to steal or unlawfully take or carry away from the person or the premises of a person who is licensed to engaged in the business of importing, manufacturing, or dealing in firearms, any firearm in the licensee’s business inventory that has been shipped or transported in interstate or foreign commerce. 18 U.S.C.. § 922(u) (2010).
Schmidt contends that when determining whether an offense qualifies as a violent felony, the court is only allowed to look at the terms of the statute and may not consider the underlying facts of the case. Schmidt is correct that a court may only consider the elements of the conviction statute and not the specific conduct of the offender. The Supreme Court has mandated a categorical approach for deciding whether a prior
conviction is a violent felony for the purposes of the ACCA. Taylor v. United States, 495 U.S. 575, 600 (1990). This is because “the language of § 924(e) [the ACCA] generally supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not
to the facts underlying the prior convictions.” This approach is necessary 13 because, otherwise, a particular crime might be considered a violent offense and count towards enhancement on some occasions and not on others, depending on the discrete facts. In addition, anything but the categorical approach would require sentencing courts to engage in elaborate fact finding about the defendant’s prior offenses. This is why the sentencing court must “consider not how the defendant committed the crime, but how the crime is generally committed. United States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010).
( Schmidt was not convicted under the “person” prong of § 922(u) but rather under its “premises” prong, because (1) the indictment charges that he “did steal and unlawfully take and carry away from the premises and inventory of A-1 Gun Repair, a licensed dealer” and (2) his factual basis states that the defendants broke the front window of the shop, entered it, and stole 11 handguns. Stealing from such a premises does not necessarily involve the use, attempted use, or threatened use of physical force against a person because it can be completed without anyone else being present. Therefore, this offense is not a violent offense under the first prong of the ACCA.
( The government asserts that the language of § 922(u) matches the generic
crime of burglary and therefore qualifies as a violent offense under the ACCA.
This court defines the key elements of generic burglary as the “unlawful or
unprivileged entry into, or remaining in” the premises “with intent to commit a
crime.”15: United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007). The Supreme 15
Court defined burglary for the purposes of the ACCA similarly: [A] person has been convicted of burglary for the purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime. Taylor, 495 U.S. at 599.
( To determine whether an offense falls under the ACCA’s enumerated felony of burglary, we employ a “common sense approach.” United States v. Santiesteban-Hernandez, 469 F.3d 376, 378-79 (5th Cir. 2006). This involves the application of a three part test to determine whether a particular provision falls within the enumerated offenses. First, we determine the crime’s generic, contemporary, ordinary meaning. Second, we distill the definitions to identify the crime’s basic elements. Third, we compare the generic definition to the statute governing the prior conviction. Id. at 379. If the statute follows the generic definition, has only minor variations, or is narrower than the generic definition, the sentence may be enhanced. Id. … Although theft of firearms from a licensed dealer does have much in common with burglary, such theft ultimately lacks the element of unlawful or unprivileged entry that would make it identical to burglary.
Therefore, § 922(u) does not qualify as a violent felony under the enumerated crimes
prong of the ACCA.
( Residual Clause. The residual clause of the ACCA defines a violent felony as one that “involves conduct that presents a serious potential risk of physical injury to
another.” The apparent purpose of the residual clause is to include those offenses that indicate the offender is a violent person who is likely to harm others. For example, in Begay v. United States, 553 U.S. 137, 144-45 (2008), the Supreme Court held that recidivist drunk driving does not qualify as a violent crime under the ACCA’s residual-clause because the offense does not involve “purposeful, violent, and aggressive” conduct that presents a serious potential risk of physical injury to another. … Again, the proper inquiry is the categorical approach, as set forth in Taylor. In a later case, the Supreme Court summarized this approach: “The proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” James v. United States, 550 U.S. 192, at 208 (2007).
( Review of the record is “generally limited to the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented.” United States v. Gonzalez-Chavez, 432 F.3d 334, 337-38 (5th Cir. 2005). In the instant case, the factual basis of the plea to the indictment stated:
On January 9, 1996, the A-1 Gun Repair Shop on West Esplanade
Avenue in Metairie, Louisiana was burglarized. The front window
was broken, and eleven (11) handguns were stolen. The owner of
the shop would testify to the burglary and the eleven guns stolen.
This information allowed the sentencing court to identify Schmidt’s offense as stealing guns from the premises of a licensed firearms dealer. … In Begay, the Supreme Court set out a two-prong test for determining whether an offense qualifies as a violent felony under the residual clause of the ACCA. The first prong asks whether the offense inherently “present[s] a serious potential risk of physical injury to another.” We have
emphasized that such a determination should be made through a categorical approach, not on the basis of the circumstances of a particular case. Additionally, Begay does not suggest that we undertake a comparative risk analysis, but rather an inquiry to assess whether the offense must involve “purposeful, violent, and aggressive conduct.” ¶: Section 922(u) qualifies as a purposeful, violent, and aggressive offense
under the first prong of the Begay test because at least one of the elements of the offense includes the presence of a serious potential risk of physical injury to
another. The key elements of the offense are: (1) stealing or unlawfully taking
away or carrying (2) from the person or premises of a licensed firearms dealer
(3) any firearm in the licensee’s business inventory. Although the first 35
element, by itself, presents no serious potential risk of physical injury because
it can be accomplished without confrontation, the second and third elements do
present serious potential risks of physical harm to others. The second element
requires that, to constitute an offense, the firearms be stolen from an individual—the licensee—who, by definition, is likely to posses or have easy access to a firearm himself. An important factor used to determine if an offense is a crime of violence is whether the action is inherently dangerous, and that fact is well known and well documented. Persons who steal firearms from a dealer have to know that doing so is inherently dangerous because they are stealing from a person who probably either possesses or has easy access to firearms with which to defend themselves and their property. Likewise, the third element undoubtedly presents a serious potential risk of physical injury because stolen
firearms are more likely to be used in connection with illegal and inherently harmful activities than are lawfully possessed guns: persons who lawfully obtain firearms almost always do so for legitimate purposes, such as hunting or target shooting. The second prong of the Begay test asks whether an offense is “roughly similar, in kind as well as in degree of risk posed, to the [statutory] examples” of burglary, arson, extortion and offenses that involve use of explosives. The purpose of this prong is to narrow the scope of the residual clause of the ACCA by distinguishing this crime from the set of all crimes that present a serious potential risk of physical injury. Obviously, from among the crimes listed in 38 the ACCA, burglary most closely resembles theft of firearms from a licensed dealer. Even though, as discussed above, § 922(u) firearm theft is not
sufficiently close to burglary to qualify as enumerated under the ACCA, it is sufficiently similar to burglary to be deemed similar in kind and risk. In the instant case, the offense constituted a burglary, but the perpetrators were charged under a different statute because of the nature of the items stolen. It is likely that many of the crimes charged under § 922(u) could also be charged under a burglary statute. But, as noted, the theft of firearms is more dangerous than simple shoplifting or petty theft because it involves victims who are often armed themselves and loot that is likely to be used for violent purposes. We are satisfied hat theft of a firearm from a licensed federal dealer is sufficiently similar to burglary to qualify as a violent offense under the residual-clause prong of the ACCA.
( Burglary. Pursuant to Taylor v. United States, 495 U.S. 575, 599 (1990), generic burglary, which is a listed ACCA predicate offense, is the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The charging documents to which Eddins pleaded guilty state that Eddins entered a building not open to the public, without the effective consent of the owner, with the intent to commit theft. This language tracks that of § 30.02(a)(1) of the Texas Penal Code, under both the current version and the version in effect in 1985. We have held that burglary under § 30.02(a)(1) constitutes generic burglary for purposes of the ACCA. United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992); see also United States v. Constante, 544 F.3d 584, 585-86 (5th Cir. 2008) (noting that Silva held that burglary under § 30.02(a)(1) is generic burglary).
( Screwing up your Appeal. United States v. Helm, 10-40133 (Jan. 7, 2011). At trial, Helm pleaded guilty of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His defense attorney agreed he could be sentenced under Armed Career Criminal Act. Defendant objected. Helms claimed IAC because the government had not alleged under which section of Tex. Penal Code § 30.02(a)(burglary) had been convicted. At a resentencing, district court determined that the ACCA did in fact apply and imposed the same 180-month sentence. Helm appealed and argued that the government should have been barred from introducing new evidence to support the ACCA enhancement. He has never argued that his conviction does not warrant an enhancement under § 924(e). Instead, he asserts that when a sentence has been vacated because of a defect, the government may not introduce new evidence at resentencing to cure the defect unless the vacatur was appealed or the case was remanded with an order to supplement the record.
There are three lines of relevant cases. The first are cases in which a sentence was appealed, the circuit court determined that the evidence at sentencing was insufficient to warrant an enhancement, and the case was remanded for resentencing so the government could supplement the record to cure the defect. See United States v. Andrade-Aguilar, 570 F.3d 213, 218 (5th Cir. 2009); United States v.Martinez-Paramo, 380 F.3d 799, 805 (5th Cir. 2004). In Andrade-Aguilar, 570 F.3d at 218, we conclusively determined that either party may present new evidence at resentencing in those instances. The second line involves cases in which a sentence was appealed and the circuit court determined definitively that an enhancement should not apply based on the evidence presented. That situation arose in Dahler v. United States, 143 F.3d 1084 (7th Cir. 1998), in which, for an ineffective-assistance-ofcounsel claim, the defendant argued that one of his convictions was not a predicate felony under the ACCA, so his attorney should have argued that the enhancement did not apply. The court agreed but held that the government was allowed to introduce the defendant’s other convictions at resentencing to argue that the enhancement was still proper.
The third line of cases embodies the procedural posture allegedly before
us now: A sentence is appealed, the district court definitively holds that an enhancement is improper because of a defect, that decision is not appealed, and at resentencing the government wishes to introduce new evidence to cure that same defect. See United States v. Daugherty, 438 F.3d 445, 446-47 (5th Cir. 2006). In Daugherty, the defendant had four prior convictions, but the government presented evidence of only three when arguing that the sentence should be enhanced under the ACCA. As here, the defendant moved to vacate the sentence under § 2255 for ineffective assistance. The district court held that one of the three convictions did not qualify as a predicate felony under the ACCA, and
thus the defendant was entitled to resentencing. The government did not argue that it could have proven up the fourth conviction to show that the enhancement would have applied anyway (which would have shown that the defendant suffered no prejudice), nor did it appeal the § 2255 relief. Had the government properly appealed in Daugherty, we would have been presented there with the same situation the Seventh Circuit confronted in Dahler. Instead, the government in Daugherty attempted to cure the defect at resentencing. The defendant objected, arguing, as Helm does today, that once the district court determined that the sentence was defective, the government could not introduce new evidence at resentencing to cure the same defect. Because of a plea agreement, however, this court did not decide the issue. We cannot answer that question in Helm’s appeal, either. Helm explicitly requested that his sentence “be vacated for further proceedings [for] . . . a review of all state documents” to determine whether he “was actually convicted of a violent felony.
Had Helm argued in his § 2255 motion that his prior convictions could not be counted as predicate felonies under the ACCA, and if the district court had held to that effect, we would be able to address the merits of his argument. But he did not, and the district court determined only that the evidence at sentencing was insufficient to show that the ACCA enhancement applied. We may not review any error Helm invited, so his sentence must be, and is hereby, AFFIRMED.
( United States v. Gore, __ F.3d __ (5th Cir. March 25, 2011)(09-41064): Conspiracy to commit aggravated robbery is a violent felony within the meaning of the Armed Career Criminal Act (ACCA), 18 U.S.C. sect 924(e). … When a conspiracy offense is at issue, our analysis includes “an examination of the elements of the target offense of the conspiracy conviction.” United States v. Coleman, 609 F.3d 699, 705 (5th Cir. 2010) (analyzing the elements of a conspiracy offense to determine whether the business practice exception to the federal felon in possession statute applied to defendant).
( The primary question presented by this appeal is whether a conviction
under Texas law for conspiracy to commit aggravated robbery is within what
many courts have called the “residual clause” of the definition of “violent
felony,” which is the phrase “or otherwise involves conduct that presents a
serious potential risk of physical injury to another” that follows the enumerated
offenses (burglary, arson, extortion, or an offense that involves use of explosives).
( Our decision in United States v. Martinez, 954 F.2d 1050, 1054 (5th Cir. 1992). issued more than a decade before the Supreme Court’s decision in James v. United States, 550 U.S. 192, 195 (2007), in which the Supreme Court held that attempted burglary as defined by Florida law was a “violent felony” within the meaning of the ACCA’s residual clause. In James, the Court expressly rejected the argument that the ACCA categorically excludes “attempt” offenses from the residual clause.
( A Texas conviction for burglary of a habitation under § 30.02(a)(1) constitutes a crime of violence for § 4B1.2 purposes. See United States v. Silva, 957 F.2d 157, 162 (5th Cir.1992) (18 U.S.C. § 924(e) context); United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996); see also James v. United States, 550 U.S. 192, 127 (2007) (noting that the definition of “crime of violence” for a career offender enhancement “closely tracks” the definition of “violent felony” set forth at § 924(e)). But a conviction under § 30.02(a)(3) does not, because that statutory subsection does not require entry with an intent to commit a crime of violence. See United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (§ 924(e) context).
( United States v. Hinojosa, (5th Cir. Dec. 2, 2012)(12-41414): Assault on Public Servant. A conviction for assault on a public servant pursuant to Texas Penal
Code § 22.01(b)(1) constitutes a crime of violence pursuant to U.S.S.G.
§ 4B1.2(a). See United States v. Anderson, 559 F.3d 348, 355-56 (5th Cir. 2009);
see also United States v. Mohr, 554 F.3d 604, 609 n.4 (5th Cir. 2009) (noting that this court has applied case law under the residual clause of § 924(e) to analyze the definition of crime of violence under § 4B1.2, and vice versa). Moreover, we recently held that a conviction for felony assault pursuant to Texas Penal Code § 22.01 constitutes a crime of violence for purposes of the ACCA. United States v. Espinoza, ___ F.3d ___-, 2013 WL 5223494, at **4-5 (5th Cir. Sept. 17, 2013). Accordingly, applying Espinoza and the Anderson definition, Hinojosa’s conviction for assault on a public servant pursuant to Texas Penal Code § 22.01(b)(1) was a violent felony for purposes of § 924(e). Thus, he has not demonstrated that the district court wrongly determined his
base offense level under U.S.S.G. § 4B1.4
Argument.
( United States v. Stephens, 571 F.3d 401 (5th Cir. 2009)(07-20899)(June 10, 2009): “Improper prosecutorial comments constitute reversible error only where the defendant’s right to a fair trial is substantially affected.” United States v. Holmes, 406 F.3d 337, 355-56 (5th Cir. 2005) (quotations omitted). This court applies a two-step inquiry in analyzing claims of prosecutorial misconduct. “First, we assess whether ‘the prosecutor made an improper remark.’ If so, then we ask whether the defendant was prejudiced.” United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007) (citation omitted).
( United States v. Rainey, 10-20007 (5th Cir. Feb. 9, 2011): It is plain error for US Attorney to argue that cops would not risk their careers by lying. This is improper bolstering.
( United States v. Aguilar, __ F.3d __ (5th Cir. June 23, 2011)(09-40658). Conviction reversed for improper argument. Cops would not lie. Also raised in direct exam of agents. Improper bolstering.
( United States v. Massey, __ F.3d ___ (5th Cir. May 31,2017)(16-10438): Government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), which provides that a person who violates § 922(g)(1) and who “has three previous convictions” for “a violent felony or a serious drug offense . . . committed on occasions different from one another” shall be imprisoned for a minimum of fifteen years. § 924(e)(1). At the sentencing hearing, Massey objected to counting his Texas felony conviction for Tex. Penal Code § 38.14 (grabbing cop’s gun ) as a “violent felony.” He therefore argued that the normal ten-year maximum sentence for a violation of § 922(g)(1) applied to his conviction. See § 924(a)(2).
In Johnson v. United States, 559 U.S. 133, 140 (2014), the Supreme Court held that “physical force” in the statutory definition of “violent felony” means “violent force—that is, force capable of causing physical pain or injury to another person.” On appeal, Massey argues that a violation of section 38.14 of the Texas Penal Code is not a “violent felony” under the ACCA because, he asserts, under Texas law the “force” required for its commission is less than that required by Johnson.1 We review the district court’s determination that a prior offense constitutes a violent felony under the ACCA de novo. United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). The Government contends that our decision in United States v. Avalos-Martinez, 700 F.3d 148 (5th Cir. 2012), is dispositive.
In United States v. Garcia-Figueroa, 753 F.3d 179, 186 (5th Cir. 2014), we held that the Florida offense of “without authorization, tak[ing] a firearm from a law enforcement officer lawfully engaged in law enforcement duties”—even if it does not necessarily involve the use of “physical force”—“create[s] a sufficient ‘threatened use of [physical] force’ to qualify” as a crime that has as an element the use, attempted use, or threatened use of physical force” against the person of another. The Government asserts that the same logic should apply in the present case. Massey does not respond to the Government’s contention and fails to argue that section 38.14 is distinguishable from the Florida statute at issue in Garcia-Figueroa. We therefore conclude that section 38.14 has as an element the “threatened use of force” and qualifies as a violent felony under the ACCA.
( A state interpretation of a state statute controls over a federal interpretation.
United States v. Avalos-Martinez, 700 F.3d 148 (5th Cir. 2012).
( Prosecution Argument on Pre-Arrest, Pre-Miranda Silence. The U.S. Supreme Court has agreed to decide whether jurors can consider a prosecutor’s remark about a client’s pre-arrest, pre-Miranda silence. Salinas v. Texas, (12-246 January 11, 2013). Texas and the Fifth Circuit currently permit such prosecutor arguments. United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996).
( United States v. Bowen, __ F.3d ___ (5th Cir. March 29, 2016)(14-40654):
As we have repeatedly observed, “[a] prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence.” United States v. Ceballos, 789 F.3d 607, 624 (5th Cir. 2015) (quoting United States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013)). “We have repeatedly chastised federal prosecutors for making improper remarks in closing arguments—for example, for ‘bolstering’ federal agents’ credibility in closing arguments, for attacking the character of the defendant, and for attacking the character of defense counsel.” United States v. Rodriguez-Lopez, 756 F.3d 422, 433–34 (5th Cir. 2014) (citing United States v. Aguilar, 645 F.3d 319, 324 (5th Cir. 2011); United States v. Jefferson, 432 F. App’x 382, 390 (5th Cir. 2011); United States v. Murrah, 888 F.2d 24, 27 (5th Cir. 1989)). In particular, “[e]xcept to the extent the prosecutor bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses.” Ceballos, 789 F.3d at 624 (quoting United States v. Alaniz, 726 F.3d 586, 616 (5th Cir. 2013)). The prosecutor’s closing argument in this case constituted improper vouching. The prosecutor argued in closing that government witnesses should be credited because they would be “called to task” pursuant to their plea agreements for any dishonesty—dishonesty which the government was positioned to identify based on “the information that the agent has developed through his investigation that he knows, and the information he has developed by debriefing other people.” That comment “might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury,” on which the prosecutor was basing his argument as to the witnesses’ credibility. See McCann, 613 F.3d at 495. We are not persuaded by the government’s response that the challenged statement was a permissible rebuttal to Bowen’s closing argument, in which Bowen’s attorney argued that the government would have no way of knowing whether witnesses were lying so as to enforce those witnesses’ plea agreements. While we have sometimes permitted bolstering arguments that specifically respond to attacks on witness credibility, such arguments must draw only on evidence before the jury. See id. at 495–96. Here, the jury was not exposed to “the information that the agent ha[d] developed through his investigation,” and the prosecutor’s credibility argument based on that information was consequently improper. Although the challenged statement was improper, it did not “cast serious doubt on the correctness of the jury’s verdict.” United States v. Anderson, 755 F.3d 782, 797 (5th Cir. 2014). The conviction was supported by overwhelming evidence of Salazar’s guilt. See id. at 798–99; Rodriguez-Lopez, 756 F.3d at 434.
Arrest (Illegal) and Evidence that is Not Attenuated by Arrest
( Even where a defendant is subject to an illegal arrest, suppression of evidence is proper only where the evidence was “obtained ‘by exploitation of [the alleged] illegality’ rather than ‘by means sufficiently distinguishable to be purged of the primary taint.’” United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th Cir. 1999) (alteration in original) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)). Independent probable cause that develops after an illegal arrest is “a critical factor attenuating the taint of the initial illegal arrest.” United States v. Cherry, 794 F.3d 201, 206 (5th Cir. 1986).
After he got out of the truck and while the officer was attempting to handcuff him, Blackmore broke free, Blackmore pulled out a weapon, and fled and was arrested by other officers. The gun, which formed the basis of his conviction, and some marihuana were seized in conjunction with the arrest. Blackmore’s actions after he got out of the truck provided probable cause for his formal arrest and broke the causal link between any illegal arrest outside the truck and the seizure of the evidence following his capture. See United States v. Sheppard, 901 F.2d 1230, 1235-36 & n.11 (5th Cir. 1990) (holding that flight after assaulting officers broke the nexus between the challenged police conduct and the evidence seized following the arrest); United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir. 1971) (stating that illegal flight broke the nexus between the illegal arrest and the search subsequent to apprehension).
Arbitration Agreements
In in D.R. Horton, Inc., 357 N.L.R.B. 2277 (2012), enforcement denied in relevant part, 737 F.3d 344 (5th Cir. 2013), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014), and Murphy Oil USA, Inc., 361 N.L.R.B. No. 72, 2014 WL 5465454 (Oct. 28, 2014), enforcement denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), petition for reh’g en banc denied, 5th Cir. No. 14-60800 (May 13, 2016), this court upheld the enforceability of an employment clause that compelled arbitration of any grievance. Some of our sister circuits have recently disagreed. See Morris v. Ernst & Young, LLP, No. 13-16599, 2016 WL 4433080 (9th Cir. Aug. 22, 2016); Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1157-60 (7th Cir. 2016); see also Patterson v. Raymours Furniture Co., No. 15-2820-cv, 2016 WL 4598542, at *2 (2d Cir. Sep. 2, 2016) (concluding that Second Circuit precedent necessitated holding but if not writing on a clean slate could identify with the 7th and 9th circuits.
Arrest
( Mere fact of arrest is a matter of public record. Paul v. Davis, 424 U.S. 693, 713, 96 S. Ct. 1155 (1976).
Arson
( Arson under Texas Penal Code sect 28.02 is a “crime of violence” that warrants a 16-level enhancement under USSG § 2L1.2(b)(1)(A)(ii). United States v. Velez-Alderete,
569 F.3d 541, 544 (5th Cir. 2009); United States v. Gomez-Gomez, 547 F.3d 242, 244 (5th Cir. 2008) (en banc). If the statute prohibits some conduct that does not constitute arson, then a conviction under it is not for a crime of violence. Gomez-Gomez, 547 F.3d at 244-45.
Assault on Federal Officer
( United States v. Alvarado, (5th Cir. Nov. 12, 2015)(14-40635):
In United States v. Feola, 420 U.S. 671, 684 (1975), the Supreme Court held that a conviction for assault of a federal officer under 18 U.S.C. § 111 requires “an intent to assault, not an intent to assault a federal officer.” However, the Court made clear that there could be some situations in which ignorance of the officer’s status would negate criminal intent: For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent. Id. In order to warrant an acquittal under a theory of self-defense, a defendant charged under § 111 must produce evidence demonstrating that he was unaware of the federal officer’s identity and reasonably believed that the officer intended to damage his home or injure his family. United States v. Ochoa, 526 F.2d 1278, 1281 (5th Cir. 1976). In other words, the ultimate question is “whether [the defendant] believed that he needed to defend himself against an assault by a private citizen.” United States v. Kleinebreil, 966 F.2d 945, 951 (5th Cir. 1992).
Assimilative Crimes Act
( From United States v. Key, 599 F.3d 469 (5th Cir. March 5, 2010)(08-51299):
( The standard of review on assimilation is plain error. The single precedent that Key cites, United States v. Perez, 956 F.2d 1098 (11th Cir. 1992), accepts without comment the appellants’ description of the propriety of assimilation as a “jurisdictional”
issue. The Third Circuit, however, carefully addressed an assimilation issue, finding it analogous to the citation of an incorrect statute in an indictment. Such an error is not reversible unless a defendant was misled to his prejudice. See FED. R. CRIM. PROC. 7(c)(3). United States v. Hall, 979 F.2d 320, 322-23 (3rd Cir. 1992). If the error were jurisdictional, the harmless error standard could not have applied. The non-jurisdictional character of any assimilation error is reinforced, if not directly ruled on, by the Supreme Court’s disposition in Lewis, which merely reversed and remanded for resentencing after the Court found an improper assimilation. Lewis v. United States, 523 U.S. 155, 172–73,
118 S. Ct. 1135, 1145 (1998). Following these two compelling precedents, and Key’s own concession that he seeks remand for resentencing, we treat this issue under a plain error standard. 2 (2 application of the Texas Intoxication Manslaughter statute in the district court or this court, any error was waived and foreclosed from appellate review. Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc); United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000). In any event, the ACA issue yields Key no relief.)
( Key pled guilty to intoxication manslaughter. … According to the Supreme Court, the words of this statute are not to be taken literally; that is, the fact that conduct could be charged under some federal statute does not necessarily prevent assimilation of a state offense. Lewis, 523 U.S. at 159–160, 118 S. Ct. at 1139 (1998). Rather, even if conduct is punishable by some federal offense,
the court must ask the further question whether the federal statutes
that apply to the ‘act or omission’ preclude application of the state
law in question, say, because its application would interfere with
the achievement of a federal policy, because the state law would
effectively rewrite an offense definition that Congress carefully
considered, or because federal statutes reveal an intent to occupy so
much of a field as would exclude use of the particular state statute
at issue.
Id. at 164, 118 S. Ct. at 1141 (citations omitted). To defeat assimilation, this test
does not require the state and federal offenses to consist of the same “precise acts.” Id. at 163–64, 118 S. Ct. at 1141. It is more nuanced, in large part because its touchstone is congressional intent: “Does applicable federal law indicate an intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue?” Id. at 166, 118 S. Ct. at 1142. In Lewis, the defendants were charged with and convicted of first-degree murder under Louisiana law, assimilated through the ACA, for the beating and
murder of their four-year-old daughter while on an army base. The government argued that Louisiana’s first-degree murder statute and the federal murder statute covered different forms of behavior, with the state offense focused on a narrower range of conduct. Specifically, the state law elevated to first-degree status, and thus harsher punishment, murder “[w]hen the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve.” The federal law, while defining first-degree murder in specific terms, lacked any provision concerning the age of the victim. The two offenses, argued the government, did not cover the same act or omission; the state law, unlike the federal offense, was in part a child protection statute. Therefore, the state offense could be assimilated. Id. at 169, 118 S. Ct. at 1143.
The Supreme Court disagreed. It explained that, in the usual case, a state offense that “focuses upon a narrower (and different) range of conduct” than the federal offense “argues in favor of assimilation.” But certain features of the federal murder statute overcame this presumption. First, it was extremely detailed, drawing a careful distinction between first- and second-degree offenses and providing for an “extreme breadth of the possible sentences, ranging all the way from any term of years, to death.” For this reason alone, “There is no gap for Louisiana’s statute to fill.” Id. at 169, 118 S. Ct. at 1143–44.
Second, Congress had amended the federal murder statute several times, reflecting “a considered legislative judgment” about the punishment of murder in federal enclaves. And “where offenses have been specifically defined by Congress and the public has been guided by such definitions for many years, it is unusual for Congress through general legislation like the ACA to amend such definitions or the punishments prescribed for such offenses, without making clear its intent to do so.” Id. at 170, 118 S. Ct. at 1144 (internal quotation marks and citation omitted).
A third consideration was legislative history. In drafting and amending the ACA, Congress had repeatedly referred to murder as “an example of a crime covered by, not as an example of a gap in, federal law.” Id. at 170–71, 118 S. Ct. at 1144. Finally, the Court noted that it had been unable to find a single reported case in which a state murder statute was assimilated under the ACA. For these reasons, the Court held the Louisiana statute improperly assimilated and remanded the case for resentencing under the sentencing guidelines applicable to second-degree murder. The Texas statute at issue provides, in relevant portion: ….. (quotes Texas statute and federal statute [18 U.S.C. § 1112]. Unlike the Texas offense, the federal offense requires either a predicate crime or a showing of recklessness. See, e.g., United States v. Fesler, 781 F.2d 384, 393 (5th Cir. 1986).
Lewis’s first prong is met. Because Key killed Sgt. Araujo in the course of
committing the crime of driving while intoxicated, Key’s conduct falls within the
broad purview of 18 U.S.C. § 1112. But this does not end the matter under
Lewis. We must move to Lewis’s second prong and consider whether § 1112
precludes application of the Texas Intoxication Manslaughter statute. Based on
the factors discussed in Lewis as bearing on this prong, we conclude the state
statute was properly assimilated.
That the Texas statute focuses on a far narrower range of conduct than the
federal offense argues in favor of incorporation. Intoxication Manslaughter is a public safety offense, located in Title 10 (“Offenses Against Public Health, Safety, and Morals”) of the Texas Penal Code, rather than Title 9 (“Offenses against Public Order and Decency”). The offense covers a quite specific range of conduct: intoxication during the use of a conveyance that results in death. The 18 U.S.C. § 1112. Unlike the Texas offense, the federal offense, in contrast, lacks detail and is extremely broad in scope,
restating common law manslaughter. Thus, any killing that occurs while the defendant is committing a non-felonious crime, or any act committed “without due caution and circumspection” that results in a death may be charged as involuntary manslaughter. To be sure, within this range of conduct is most drunk driving that causes death, but also a near-infinite number of other acts or omissions resulting in death: grossly negligent captaining of a vessel, United States v. LaBrecque, 419 F. Supp. 430, 438 (D. N.J. 1976), driving on the wrong side of a highway, United States v. Pardee, 368 F.2d 368, 375 (4th Cir. 1966), neglect of duty by a railroad switch-tender, New Jersey v. O'Brien, 32 N.J.L. 169 (N.J. 1867), improper design of a building, New Jersey v. Ireland, 20 A.2d 69, 70
(N.J. Sup. 1941), and overcrowding of a nightclub, Massachusetts v. Welansky, 55 N.E.2d 902, 912 (Mass. 1944). It is plain that the federal and state offenses cover entirely different forms of behavior. … The second subsection of the ACA contemplates assimilation of state offenses for “operating a motor vehicle under the influence of a drug or alcohol,” clarifying the application of penalties under state law. …. Because the Texas offense of Intoxication Manslaughter was properly assimilated, no error, much less plain error, occurred.
Assuming without Deciding Does not Create Existing Law
( From United States v. Potts, __ F.3d __ (5th Cir. June 15, 2011)(10-10257):
In United States v. Zanabria, 74 F.3d 593 (5th Cir. 1996), we assumed without deciding that a defendant’s pre-arrest, pre-Miranda silence fell within the scope of the Fifth Amendment’s protection. An arguendo assumption, however, is not “existing law.”
Attempt
( United States v. Howard, __ F.3d ____ (5th Cir. Sept. 9, 2014)(13-40767):
Federal courts, including the Fifth Circuit, apply the Model Penal Code’s “substantial step” test to determine whether a defendant’s conduct manifests attempt to commit a crime. See, e.g., United States v. Hernandez–Galvan, 632 F.3d 192, 198 (5th Cir. 2011) (“[T]he ‘substantial step’ test from the Model Penal Code . . . is now the majority view among the states and federal courts, including the Fifth Circuit.”). This test has two elements: (1) the specific intent to commit the underlying crime, mens rea, and (2) conduct which constitutes a “substantial step” toward the commission of the crime, actus reus. United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009). This “‘substantial step’
approach asks whether a person ‘purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.’” Hernandez–Galvan, 632 F.3d at 198 (quoting Model Penal Code § 5.01(1)(c)). The “substantial step” must be conduct that strongly corroborates the firmness of the defendant’s criminal intent. Id. Acts which are merely preparatory are not enough. United States v. Mandujano, 499 F.2d 370, 377 (5th Cir. 1974). A “substantial step” is “more than mere preparation,” but is “less than the last act necessary before” the crime is in fact committed. United States v. Manley, 632 F.2d 978, 987–88 (2d Cir. 1980). This requirement “prevents the conviction of persons engaged in innocent acts on the basis of a mens rea proved through speculative inferences, unreliable forms of testimony,
and past criminal conduct.” United States v. Oviedo, 525 F.2d 881, 884–85 (5th
Cir. 1976).5
To determine whether Howard’s conduct crossed the line between preparation and attempt, we must first clearly define the conduct that § 2422(b) criminalizes. In Barlow and Broussard, we clarified that § 2422(b) “does not require that the sexual contact occur, but that the defendant sought to persuade the minor to engage in that contact.” United States v. Broussard, 669 F.3d 537, 548 (5th Cir. 2012) (quoting Barlow, 568 F.3d at 219 n.10) (internal quotation marks omitted). Put another way, as the First Circuit
observed, “[§] 2422(b) criminalizes an intentional attempt to achieve a mental state—a minor’s assent—regardless of the accused’s intentions vis-à-vis the actual consummation of sexual activities with the minor.” United States v. Dwinnells, 508 F.3d 63, 71 (1st Cir. 2007); see also United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000)
Attorney Advertising
( Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, __ F.3d ___ (5th Cir.
Jan. 31, 2011)(09-30925): Shortly thereafter, two challenges to the constitutionality of the new rules were filed in federal district court and were ultimately consolidated. …
U.S. States Supreme Court recognized that the First Amendment’s protections apply to commercial speech in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976). It later elaborated that this type of speech merits only “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, . . . allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” Ohralik v. Ohio State Bar Assoc., 436 U.S. 447, 456 (1978). The Court specifically applied First Amendment protections to attorney advertising in Bates v. State Bar of Arizona, “holding that advertising by attorneys may not be subjected to blanket suppression . . . [but] not . . . that advertising by attorneys may not be regulated in any way.” 433 U.S. 350, 383 (1977). It encouraged the bar to “assur[e] that advertising by attorneys flows both freely and cleanly.” Id. at 384. The Court later clarified that different types of commercial speech merit different levels of protection. Advertising that “is inherently likely to deceive or where the record indicates that a particular form or method . . . of advertising has in fact been deceptive” receives no protection and the State may prohibit it entirely. In re R.M.J., 455 U.S. 191, 202 (1982). Advertising that is potentially misleading¯because it “may be presented in a way that is not deceptive”¯may be regulated if it satisfies one of two standards. See id. at 203; see also Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985). A regulation that restricts potentially misleading commercial speech will pass constitutional muster if “the regulation directly advances a substantial government interest” and “is not more extensive than is necessary to serve that interest.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980). A regulation that imposes a disclosure obligation on a potentially misleading form of advertising will survive First Amendment review if the required disclosure is “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer, 471 U.S. at 651. LADB, as “the party seeking to uphold a restriction on commercial speech[,] carries the burden of justifying it.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n.20 (1983). Its burden is a “heavy” one, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996), that cannot be satisfied “by mere speculation or conjecture,” Edenfield v. Fane, 507 U.S. 761, 770S71 (1993).
… Because these five challenged rules all target speech that is only
potentially misleading, the First Amendment is implicated. The court must
review these Louisiana Rules under Central Hudson or Zauderer. In accordance
with these cases, we apply Central Hudson to the speech restrictions in Rules
7.2(c)(1)(D), (J), and (L) and Zauderer to the disclosure obligations set forth in
Rules 7.2(c)(1)(I) and (c)(10). Under Central Hudson, a restriction on commercial speech survives First Amendment scrutiny if: (1) “the asserted governmental interest is substantial,” (2) the regulation “directly advances” that interest, and (3) the regulation “is not more extensive than is necessary to serve that interest.” Thompson v. W. States
Med. Ctr., 535 U.S. 357, 367 (2002) (internal quotation omitted).
Attorney Disqualification
( United States v. Hernandez, __ F.3d __ (5th Cir. Aug. 8, 2012)(10-51136):
The Government requested a “Garcia hearing” to ensure a valid waiver by Hernandez of his right to representation free from any conflict of interest. See United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259, 263 & n.2 (1984). … The court then orally denied the Government’s motion to disqualify Gonzalez a second time. The next day, the district court issued a written order denying the Government’s motion. The district court
concluded that Attorney Gonzalez’s prior representation of Daniel did not present a conflict of interest because (1) Daniel’s prior case was unrelated to the current case, (2) Gonzalez’s representation of Daniel in the prior case had unambiguously ended before his representation of Hernandez began, (3) Gonzalez’s prior representation of Daniel was “extremely limited,” and (4) Gonzalez had attested that he did not learn anything in his prior representation of Daniel that he could use to harm either Hernandez or Daniel. … Daniel did not testify at the ensuing trial, and the jury found Hernandez
guilty on both counts. …First, Hernandez claims that the district court erred when it determined that Attorney Gonzalez’s prior representation of Daniel would not present an
actual conflict of interest at trial. …
( “The Sixth Amendment right to counsel includes the ‘right to
representation that is free from any conflict of interest.’” United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (quoting United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993)). “As a general rule, a conflict exists when defense counsel allows a situation to arise that tempts a division in counsel’s loyalties.” United States v. Burns, 526 F.3d 852, 856 (5th Cir. 2008) (citing Garcia-Jasso, 472 F.3d at 243). “If a defendant chooses to proceed with representation by counsel who has a conflict of interest, a district court must conduct what is commonly known as a ‘Garcia hearing’ to ensure a valid waiver by the defendant of his Sixth Amendment right.” Garcia-Jasso, 472 F.2d at 243 (citing Garcia, 517 F.2d at 278). However, a district court only needs to “conduct a Garcia hearing if there is an actual conflict of interest,” id. (citation omitted), as opposed to “‘a speculative or potential’ conflict.” Burns, 526 F.3d at 856 (quoting United States v. Infante, 404 F.3d 376, 391 (5th Cir. 2005)). A district court’s
Gonzalez’s representation, we need only decide whether the alleged conflict was
not merely hypothetical. Id. “Joint representation does not necessarily create a conflict of interest.” United States v. Rico, 51 F.3d 495, 508 (5th Cir. 1995). In such situations a nonhypothetical conflict only exists “when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by
choosing between or blending the divergent or competing interests of a former or current client.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) (citations omitted). Deciding “whether a disqualifying conflict exists is highly fact-dependent.” Burns, 526 F.3d at 856 (citation omitted). We have found that this determination depends on a number of factors, “including, . . . whether the attorney has confidential information that is helpful to one client but harmful to another; whether and how closely the subject matter of the multiple representations is related; how close in time the multiple representations are related; and whether the prior representation has been unambiguously terminated.” Infante, 404 F.3d at 392 (citing Perillo, 205 F.3d at 798–99). We hold that the conflict here remained purely hypothetical. Burns, 526
F.3d at 857.
( A Garcia hearing is only required when defense counsel has an actual conflict of interest. United States v. Hernandez, 690 F.3d 612 (5th Cir. 2012).
( Conflict of Interest. United States v. Apodaca, (5th Cir. March 30, 2015)(13-51062):
Apodaca also argues that the district court erred in not recognizing the conflict and holding a hearing pursuant to United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259, 263 & n.2 (1984). Apodaca, through his co-counsel, Ken Del Valle, could have raised the issue in a timely manner in the district court but failed to do so. See United States v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010). Indeed, mere days after Velarde was appointed to represent Apodaca, Del Valle asked the district court to consider whether Velarde’s representation of a defendant in a separate proceeding resulted in a conflict of interest. Apodaca, though, waited until after the judgment was entered and the notice of appeal was filed to bring the issue of Velarde’s potential conflict of interest based on his prior representation of Medina to the attention of the district court in a motion for a new trial, but by that time, the district court lacked jurisdiction to consider it. See United States v. Green, 882 F.2d 999, 1001 (5th Cir. 1989). Apodaca has forfeited any error, and so our review is for plain error only. See Rodriguez, 602 F.3d at 351. The Sixth Amendment guarantee of the right to counsel includes the right to legal representation free of conflicts of interest. United States v. Hernandez, 690 F.3d 613, 618 (5th Cir. 2012). A conflict exists where “counsel places himself in a position conducive to divided loyalties.” United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (internal quotation marks and citation omitted). To establish that counsel labored under a conflict of interest, a defendant must show an actual conflict that adversely affected the representation; it is insufficient to show a hypothetical, speculative, or potential conflict. Hernandez, 690 F.3d at 619; Garcia-Jasso, 472 F.3d at 243. An attorney’s performance was adversely affected by a conflict of interest where counsel could have pursued a plausible alternative defense strategy or tactic but chose not to do so because of the conflict. Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). A conflict is not automatically created where an attorney engages in joint representation. Hernandez, 690 F.3d at 619. An actual conflict exists only where the attorney must compromise his duty of loyalty or zealous advocacy to the defendant by choosing between or blending the competing interests of the defendant and the former client. Id.
( United States v. Jackson, __ F.3d __ (5th Cir. Nov. 4, 2015)(14-60928)(IRS conviction
Minister of sham church):
We review the disqualification of counsel because of conflict of interest for abuse of discretion. United States v. Sanchez Guerrero, 546 F.3d 328, 332- 33 (5th Cir. 2008). Review for abuse of discretion is deferential. United States v. Anderson, 755 F.3d 782, 800 (5th Cir. 2014). An abuse of discretion occurs if the district court: “(1) relies on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to the facts.” Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012) (internal quotation marks and citation omitted). The district court is therefore “allowed substantial latitude in refusing waivers of conflicts of interest” for an actual conflict of interest or a serious potential conflict that may arise during trial. Wheat v. United States, 486 U.S. 153, 163 (1988). I. The Sixth Amendment grants criminal defendants the right to “assistance of counsel for [their] defense.” U.S. CONST. amend VI. Assistance of counsel includes the right to select an attorney of one’s choosing. United States v. Gharbi, 510 F.3d 550, 553 (5th Cir. 2007) (citing Powell v. Alabama, 287 U.S. 45, 53 (1932)). This right, however, is not absolute. Wheat, 486 U.S. at 159. Rather, the right to counsel of choice is limited if that counsel has an actual conflict of interest or a serious potential conflict of interest that may arise during trial. United States v. Sotelo, 97 F.3d 782, 791 (5th Cir. 1996). Therefore, while we recognize a presumption that a defendant is entitled to counsel of choice, that presumption may be rebutted by a showing of actual or potential conflicts of interest. Wheat, 486 U.S. at 164; Gharbi, 510 F.3d at 553. This is so even if valid waivers are acquired by defense counsel. Gharbi, 510 F.3d at 553. A waiver is not sufficient to remedy constitutional infirmity because the courts are obligated to conduct proceedings “within the ethical standards of the profession and . . . appear fair” to the public. Wheat, 486 U.S. at 160. Therefore, “[w]hen a defendant’s selection of counsel . . . gravely imperils the prospect of a fair trial, a trial court may justifiably refuse to accede to the choice.” Id. at 166 (Marshall, J. dissenting).
Attorney Appointment and Habeas
( Williams v. Davis, (5th Cir. Dec. 30, 2016)(14-20543). Fifth circuit appoints federal
habeas counsel for D who has had an undecided state habeas pending for three years in murder case. Fed. District Court had denied counsel for failure to exhaust state habeas.
A federal court may not grant habeas relief unless the petitioner “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement will be excused “only in those rare cases where exceptional circumstances of peculiar urgency mandate federal court interference.” Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). Relevant to the instant case, such exceptional circumstances exist “when the state system inordinately and unjustifiably delays review of a petitioner’s claims so as to impinge upon his due process rights.” Id. To excuse the exhaustion requirement, this inordinate delay must be “wholly and completely the fault of the state,” and the applicant must have “clean hands.” Id. at 796.
In several published opinions predating the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court excused the exhaustion requirement where state courts delayed ruling on a state habeas application for more than a year. See, e.g., Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978) (excusing exhaustion where state habeas application had been “completely dormant for over one year, and the state has offered us no reason for its torpor”); Shelton v. Heard, 696 F.2d 1127, 1128 (5th Cir. 1983) (“unexplained 16-month hiatus between the date the record was completed . . . and filed in the Texas Court of Criminal Appeals” supported waiver of exhaustion requirement). This case law has never been overruled, and we have continued to apply it in unpublished opinions after AEDPA’s enactment. See, e.g., Henderson v. Stephens, 598 F. App’x 302, 302 (5th Cir. 2015); Taylor v. Stephens, 577 F. App’x 285, 287 (5th Cir. 2014); Burks v. Thaler, 421 F. App’x 364, 365 (5th Cir. 2011). Williams’s state habeas application has been pending for more than three years, and there is no evidence of any activity in the last 27 months. These periods exceed the range we have previously considered excessive.
A complete copy of the state court record is not before this court, and the district court has not analyzed the merits of his application. Where the district court pleadings, the record, and the COA application are unclear or incomplete, this court will grant a COA. Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). Accordingly, Williams’s request for a COA is GRANTED. Williams’s motion to proceed IFP is also GRANTED. The rule of the Fifth Circuit Plan Under the Criminal Justice Act, § 2 permits this court to appoint counsel to persons seeking relief under § 2254 where “the interests of justice so require and such person is financially unable to obtain representation.” See also 18 U.S.C. § 3006A(g). Williams is unable to afford representation; he is proceeding IFP. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985). Moreover, Williams’s appeal may require the court to decide whether our pre-AEDPA holdings—that an unexplained delay of over one year in processing an applicant’s state habeas application excuses the exhaustion requirement—remain valid precedent. The court would be more likely to reach the correct resolution of this issue if attorneys for both Williams and the Respondent argue their respective positions. See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008). Accordingly, Williams is APPOINTED COUNSEL.
Attorney Right, Right to Appointed Counsel of Choosing
( United States v. Mason, __ F.3d __ (5th Cir. Jan. 19, 2012)(10-31240):
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The Supreme Court has interpreted this provision as affording indigent defendants the right to court-appointed counsel. Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938); see also Gideon v. W+7ainwright, 372 U.S. 335, 342–45 (1963) (holding that the right of indigent defendants to appointed counsel is made obligatory on the States by the Fourteenth Amendment). The Supreme Court has also held that the Sixth Amendment generally guarantees criminal defendants the distinct right to representation by the counsel of their choice. See Powell v. Alabama, 287 U.S. 45, 53 (1932).
However, “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). This is because the right to court-appointed counsel guarantees the right to adequate representation, not representation by a particular attorney. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989).
We have not previously addressed whether a financially eligible defendant
has a Sixth Amendment right to replace his retained counsel with court-appointed counsel. We therefore must turn for guidance to our precedents governing analogous situations. Under our precedents, a defendant who is already represented by appointed counsel is not entitled to have the court appoint substitute counsel unless he can demonstrate “good cause, such as a conflict of interest, [or] a complete breakdown in communication.” United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973). We apply this good cause requirement because the only Sixth Amendment right that could entitle an indigent defendant to a new attorney is the right to effective assistance of counsel. See id. If an indigent’s current appointed counsel is constitutionally adequate, he has “no cognizable complaint.” Caplin & Drysdale, 491 U.S. at 624. By contrast, a defendant need not show good cause to replace existing counsel with new retained counsel. The Sixth Amendment guarantees such a defendant the freedom to secure representation by any lawyer he should choose, provided that none of the recognized exceptions to the right to choice of counsel applies.
See Wheat v. United States, 486 U.S. 153, 159 (1988) (listing exceptions to the right); Gonzalez-Lopez, 548 U.S. at 151–52 (same).
( United States v. Brown, (5th Cir. May 11, 2016)(15-30726): “Unless a Sixth Amendment violation is shown, whether to appoint a different lawyer for an indigent criminal defendant who expresses dissatisfaction with his court-appointed counsel is a matter committed to the sound discretion of the district court.” United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973). Accordingly, our court reviews a refusal to appoint substitute counsel only for abuse of that discretion. E.g., United States v. Simpson, 645 F.3d 300, 307 (5th Cir. 2011). Brown’s primary assertions were that his appointed counsel refused to move for his release on bond, and strongly encouraged him to plead guilty. He maintains the court did not conduct a meaningful inquiry into his allegations. Nevertheless, a review of the record shows the court’s inquiry into Brown’s complaints was sufficient to ascertain the nature of the alleged problems and to glean the relevant facts. See United States v. Fields, 483 F.3d 313, 352 (5th Cir. 2007) (stating a court must be adequately apprised of the nature of the dispute or conflict and its potential impact on counsel’s representation). Even assuming, arguendo, the court failed to conduct a proper inquiry as to any particular claim, “the record as a whole reflects that [Brown’s] claim was insubstantial and that he received vigorous and able representation”. Young, 482 F.2d at 995–96. Moreover, Brown has not shown “a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which [led] to an apparently unjust” result. Id. at 995.
Attorney Sanctions for Misconduct:
( In re Joseph Moles, __ F.3d ___ (5th Cir. May 4, 2016):
“Sanctions imposed against an attorney by a district court are reviewed for abuse of discretion.” United States v. Brown, 72 F.3d 25, 28 (5th Cir. 1995). The district court “abuses its discretion when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). Whether an attorney’s conduct is subject to sanction under a specific rule of professional responsibility is a legal issue which this court reviews de novo. Brown, 72 F.3d at 28.
--“When a court undertakes to sanction an attorney for violating court rules, it is incumbent upon the sanctioning court to observe scrupulously its own rules of disciplinary procedure.” In re Thalheim, 853 F.2d 383, 390 (5th Cir. 1988). We apply “basic principle[s] of statutory construction” to the district court’s disciplinary rules. Id. at 387.
--“When the tribunal which has promulgated a rule has interpreted and applied the rule which it has written, it is hardly for an outside person to say that the author of the rule has misinterpreted it.” In re Adams, 734 F.2d 1094, 1102 (5th Cir. 1984) (quoting Lance, Inc. v. Dewco Servs., Inc., 422 F.2d 778, 783 (9th Cir. 1970)). “We may reverse only where we are convinced that the district court has misconstrued its own rules.” Id. at 1102.
--In the context of attorney disciplinary proceedings, we have defined the “clear and convincing” evidentiary standard as that weight of proof which “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts” of the case. In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 285 n.11 (1990)). We review the district court’s factual findings for clear error. See Brown, 72 F.3d at 28 (noting that a district court abuses its discretion by imposing sanctions on the basis of a “clearly erroneous assessment of the evidence”).6 To satisfy the clear error test, the district court’s findings must be “plausible in light of the record as a whole.” United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008). “A factual finding is clearly erroneous only if, viewing the evidence in light of the record as a whole, we are left with the definite and firm conviction that a mistake has been committed.” Waste Mgmt. of Wash., Inc. v. Kattler, 776 F.3d 336, 339 (5th Cir. 2015) (internal quotation marks omitted).
( The standard of proof when a district judge sanctions an attorney for bad faith misconduct under its inherent powers is clear and convincing evidence. See In re Sealed Appellant, 194 F.3d 666, 670–71 (5th Cir. 1999); In re Thalheim, 853 F.2d 383, 389 (5th Cir. 1988). In a disciplinary proceeding such as this one, the Fifth Circuit reviews de novo whether an attorney’s actions or misconduct are subject to sanction and reviews the district court’s choice of sanctions for an abuse of discretion. In re Sealed Appellant, 194 F.3d. at 670.
( United States v. Sauter, _F.3d __ (5th Cir. March 18, 2016)(q15-10142). AUSA who was reprimanded by the US District Court for Brady, Giglio, and Napue violations may appeal the district court’s reputational findings against her under Walker v. City of Mesquite, 129 F.3d 831, 832–33 (5th Cir. 1997) (holding that an attorney’s challenge to a district court’s reprimand and finding of misconduct present a reviewable appellate issue).( We review a district court’s holding that the government violated Brady, Giglio, or Napue de novo, but in doing so, afford deference to the district court’s factual findings. See United States v. Guerrero, 768 F.3d 351, 363 (5th Cir. 2014) (citing United States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011)), cert. denied, 135 S. Ct. 1548 (2015). However, in considering a district court’s decision to (or decision not to) impose sanctions for discovery violations, “[w]e review alleged errors . . . 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) (quoting United States v. Ellender, 947 F.2d 748, 756 (5th Cir. 1991)).( To constitute suppressed evidence under Brady, the evidence must not have been discoverable through the defendant’s due diligence. Brown, 650 F.3d at 588. “[E]vidence is not suppressed if the defendant knows or should know of the essential facts that would enable him to take advantage of it.” Id. (quoting United States v. Skilling, 554 F.3d 529, 575 (5th Cir. 2009)). The Brady analysis regarding suppression focuses on the fact that the government need not “furnish a defendant with exculpatory evidence that is fully available to the defendant through the exercise of reasonable diligence.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002). Sauter does not, nor can she, contend that the plea agreement supplement was fully available to Dvorin’s counsel through the exercise of due diligence. The plea agreement supplement was sealed and in the control and possession of the government. Accordingly, the district court correctly determined that Sauter suppressed the plea agreement supplement.( “Evidence is material if there is ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Brown, 650 F.3d at 588 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Spence v. Johnson, 80 F.3d 989, 994 (5th Cir. 1996) (quoting Bagley, 473 U.S. at 682). The district court held that the plea agreement supplement was material because although the jurors might have been aware during trial that Derrington cooperated with the government in his own case, they were not aware that Derrington had motivation to testify in Dvorin’s trial. The court concluded: “[b]ecause the undisclosed evidence undermined the credibility of the Government’s most important witness, . . . it was material.” We find no abuse of discretion in the district court’s conclusion that this evidence was material.( To establish a claim under Napue, a defendant must prove that the witness’s testimony “was (1) false, (2) known to be so by the state, and (3) material.” Summers v. Dretke, 431 F.3d 861, 872 (5th Cir. 2005). Sauter contends that Derrington’s testimony was not false (and thus she could not have knowledge that it was false), and even if it was, it was not material. With respect to the first element, Sauter argues that Derrington’s testimony that he did not receive any promises from the government in exchange for his testimony was not false because the text of the plea agreement supplement is not an enforceable promise or guarantee. Regardless of whether this provision of the supplement is an enforceable guarantee, under Napue, “the key question is not whether the prosecutor and the witness entered into an effective agreement, but whether the witness might have believed that the state was in a position to implement any promise of consideration.” LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728, 735 (5th Cir. 2011) (alterations omitted) (quoting Napue, 360 U.S. at 270); see also Giglio, 405 U.S. at 155 (“[E]vidence of any understanding or agreement as to a future prosecution would be relevant to [the witness’s] credibility . . . .”). In fact, as the Supreme Court recognized in United States v. Bagley, the fact that the government’s willingness to seek leniency for a defendant is not guaranteed, but “was expressly contingent on the [g]overnment’s satisfaction with the end result, serve[s] only to strengthen any incentive to testify falsely in order to secure a conviction.” 473 U.S. at 683. The focus is “on the extent to which the testimony misled the jury[.]” Tassin v. Cain, 517 F.3d 770, 778 (5th Cir. 2008). Here, Derrington’s testimony that he had not received any promise from the government was at best misleading, and at worst false, in light of the government’s agreement to file a motion urging sentencing consideration if it determined that Derrington had substantially assisted its prosecution of Dvorin. Accordingly, we hold that the district court properly concluded that Sauter violated Napue in permitting Derrington to testify that that the government had not made any promises in exchange for his testimony.( We review a district court’s determination not to impose sanctions for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). The following factors should guide a district court’s exercise of its discretion to impose sanctions for a discovery violation: “(1) the reasons why 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. Garrett, 238 F.3d 293, 298 (5th Cir. 2000). Any sanction imposed should be the least severe penalty necessary to ensure compliance with the court’s discovery orders. Id. The district court is given wide discretion in this fact-intensive inquiry. Mercury Air Grp., Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir. 2001).
Attorney Self-Representation.
( United States v. Richardson, __ F.3d __ (5th Cir. March 20, 2015)(13-31190):
This appeal presents the question of whether the trial testimony of a government witness elicited in contravention of the defendant’s Sixth Amendment right of self-representation constitutionally may be admitted in the defendant’s retrial when the witness becomes unavailable between the first and second trials. We conclude that, if the defendant had an adequate opportunity for cross-examination at the first trial, then the witness’s prior testimony may be introduced in the second trial without offending the Confrontation Clause, at least when the defendant has not claimed that he received ineffective assistance of counsel at the first trial.
Attorney Withdrawal from Case
( United States v. Austin, __ F.3d __ (5th Cir. Feb. 4, 2016)(15-30198): 5th Cir.
affirms denial of motion for CJA when retained attorney had withdrawn. Denial of counel is review for abuse of discretion. Nottingham v. Richardson, 499 F. App’x. 368, 377 (5th Cir. 2012). To invoke the CJA, D must notify the district court of his desire
to have court-appointed counsel. United States v. Foster, 867 F.2d 838, 841 (5th Cir. 1989). Also, D must specify a “financial inability to obtain counsel.” Id. When an attorney files a motion to withdraw for good cause, attorney should explain the reasons
why he believes good cause exists for him to withdraw as counsel. United States v. Wild,
92 F.3d 304, 307 (5th Cir. 1996).
Audita Querela Writ.
( A prisoner may not seek a writ of audita querela if he “may seek redress under [28 U.S.C.] § 2255.” United States v. Banda, 1 F.3d 354, 356 (5th Cir.1993). See also Massey v. United States, 581 F.3d 172, 174 & n.2 (3d Cir. 2009). The fact that a movant cannot meet the requirements for bringing a successive § 2255 motion does not render the § 2255 remedy unavailable. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). See also Felker v. Turpin, 518 U.S. 651, 662 (1996).
( From United States v. Miller, 599 F.3d 484 (5th Cir. Mar. 8, 2010)(08-11186):
The writ of audita querela is a common law writ dating from the reign of Edward III that constitutes the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on the ground that some defense or discharge has arisen since its rendition that could not be taken advantage of otherwise. United States v. Reyes, 945 F.2d 862, 863 n.1 (5th Cir. 1991); Black’s Law Dictionary 150 (9th ed. 2009). Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself, whereas audita querela is directed against the enforcement, or further enforcement, of a judgment which, when rendered, was just and unimpeachable. 7A C.J.S. Audita Querela § 4 (2004). In other words, a writ of coram nobis attacks a judgment that was infirm at the time it was rendered for reasons that later came to light, while a writ of audita querela is used to challenge a judgment that was correct at the time it was rendered but which is made infirm by matters that arose after its rendition. Id. ( Rule 60(b) of the Federal Rules of Civil Procedure expressly abolished the application of the writ of audita querela to civil judgments in 1948. Reyes,
945 F.2d at 865. However, the reasoning of the Supreme Court’s opinion in United States v. Morgan, 74 S.Ct. 247 (1954), may allow the writ to be used to attack a criminal judgment. In Morgan, the Court held that the writ of coram nobis, which Rule 60(b) also had abolished in civil cases, was still available in criminal proceedings under the All Writs Act, 28 U.S.C. § 1651(a), where it was needed to fill a gap in the federal post-conviction remedial scheme. Morgan, 74 S.Ct. at 249–53 & n.4; United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir. 1990). Accordingly, we have, as have several other circuits,
acknowledged, with some reservation, that the writ of audita querela might also survive in criminal adjudications, if there is a gap for it to fill. United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Reyes, 945 F.2d at 865 & n.5. See also United States v. Holder, 936 F.2d 1 (1st Cir. 1991); Ayala, 894 F.2d at 429; United States v. Kimberlin, 675 F.2d 866 (7th Cir.), cert. denied, 102 S.Ct. 2044 (1982). We have yet to encounter a case that has required us to decide squarely whether or not the writ of audita querela survives in criminal cases. Nevertheless, we have held that, if the writ survives, it can only be
available where there is a legal objection to a judgment which has arisen subsequent to that judgment. Reyes, 945 F.2d at 866. Purely equitable grounds for relief do not justify the issuance of a writ of audita querela. Id. But see Ejelonu v. I.N.S., Dept. of Homeland Sec., 355 F.3d 539, 548 (6th Cir. Jan. 8, 2004), rehearing en banc granted, opinion vacated (Jul. 28, 2004), appeal dismissed (Oct. 18, 2004) (rejecting the position that a writ of audita querela cannot be based upon an equitable defense). Furthermore, the writ is only available where the legal objection raised cannot be brought pursuant to any other post-conviction remedy. Reyes, 945 F.2d at 866. See Banda, 1 F.3d at 356. This limitation follows from the reasoning of Morgan, which allows relief pursuant to a writ of audita querela only where a gap exists in the system of federal post-conviction remedies. Ayala, 894 F.2d at 428.
( From United States v. Rios-Castano (5th Cir. July 25, 2011)(10-20604):
The writ of audita querela arises under the All Writs Act. United States
v. Banda, 1 F.3d 354, 355 (5th Cir. 1993). “The All Writs Act is a residual source
of authority to issue writs that are not otherwise covered by statute.”
Pennsylvania Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).
The writ of audita querela was abolished in the civil context by Federal Rule of
Criminal Procedure 60(b). See United States v. Miller, 599 F.3d 484, 487 (5th
Cir. 2010). This court has “acknowledged, with some reservation, that the writ
of audita querela might [] survive in criminal adjudications, if there is a gap for
it to fill.” Id. at 487-88. “If it still exists, the writ of audita querela can only be
applied to rectify a judgment which, though correct when rendered, has since
become infirm.” Miller, 599 F.3d at 490. It is not available for equitable relief.
Id. at 488. The writ of audita querela also is not available if the legal objection
raised can be brought pursuant to any other postconviction remedy. Id. Thus,
a prisoner may not seek a writ of audita querela if he “may seek redress under
§ 2255.” Banda, 1 F.3d at 356. The fact that a movant cannot meet the
requirements for bringing a successive § 2255 motion does not render the § 2255
remedy unavailable. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
Because Rios may, and has, pursued relief for his ineffective assistance claim
under § 2255, the writ of audita querela is not available to him. See Miller, 599
F.3d at 488, 490; Banda, 1 F.3d at 356. Even if the writ was available, Rios has
not shown that the decision in Burdine subsequently rendered the judgment
against him infirm. See Burdine, 262 F.3d at 348-49. Rios also argues that he is barred by the gate keeping provisions of the Antiterrorism and Effective Death Penalty Act from filing another § 2255 motion and that the constitutionality of those provisions will be called into question if he may not proceed by writ of audita querela. Because Rios did not properly raise this issue before the district court, having mentioned it only in his notice of appeal, we do not address this issue for the first time on appeal. See Wiley v.
State Farm Fire & Cas. Co., 585 F.3d 206, 212-14 & n.21 (5th Cir. 2009).
Authenticity
( Shorter challenged the admission of the evidence below, and we therefore review his claim for an abuse of discretion. See United States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997). “[A] ‘break in the chain of custody simply goes to the weight of the evidence, not its admissibility.’” Id. (quoting United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993)). When the defendant questions the authenticity of evidence, the district court must determine whether there is substantial evidence from which the jury could infer that the evidence is authentic. United States v. Jardina, 747 F.2d 945, 951 (5th Cir. 1984). The record establishes that the Government set forth sufficient evidence to establish the authenticity of the disputed evidence. See id; United States v. Smith, 481 F.3d 259, 264-65 (5th Cir. 2007). Accordingly, the district court did not abuse its discretion in allowing the evidence to be admitted. See Dixon, 132 F.3d at 197.
Automatism (Crimes while in sleep, unconscious, sleepwalking, seizures).
( United States v. Torres, 74 M.J. 154 (C.A.A.F. 2015)(cases cited therein);
Annot., automatism or Unconsciousness as Defense to Criminal Charge, 27 A.L.R.4th
1067 (1984); Goverrnment of the Virgin Islands v. Smith, 278 F.2d 169, 173 (3d Cir. 1960). Not a mental disease or defect. Goes to voluntariness of act.
Autopsy Report and Confrontation
( Certiorari sought on the issue in Hardin v. Ohio, 14-1008 but not yet acted upon.
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