Padilla Not Retroactive



Fifth Circuit Criminal Case Law 2008 -- 2016 : P - R

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.

Padilla Not Retroactive

( United States v. Amer, __ F.3d __ (5th Cir. May 10, 2012)(11-60522): On March 31, 2010, the Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that the Sixth Amendment imposes on attorneys representing noncitizen criminal defendants a constitutional duty to advise the defendants about the potential removal consequences arising from a guilty plea. Relying on Padilla, Amer filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255, contending that his trial counsel rendered constitutionally ineffective assistance by failing to inform him that his guilty plea carried a risk of deportation. The district court granted Amer’s motion. That issue is whether, under the retroactivity framework established in Teague v. Lane, 489 U.S. 288 (1989), Padilla announced a rule that applies retroactively to convictions that became final before Padilla was decided. In Teague, the Supreme Court held that new constitutional rules of criminal procedure generally are inapplicable to convictions that become final before the rule was announced. 489 U.S. at 299-316…. The issue of whether Padilla’s rule may serve as the basis for Amer’s collateral challenge to his conviction that had already become final when Padilla was decided therefore turns on whether the rule announced in Padilla is “new” within the meaning of Teague. On this issue,

three circuit courts have already opined and the Supreme Court has granted

certiorari to address the matter. See United States v. Chang Hong, 671 F.3d

1147, 1155 (10th Cir. 2011); Chaidez v. United States, 655 F.3d 684, 694 (7th Cir. 2011), cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No. 11-820); United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011). … We join the 10th and 7th Circuit and hold this is a new rule of law for which retroactivity does not apply.

Parole Evidence Rule

( U.S. v. Perry, (5th Cir. July 23, 2013)(11-50900): In wire fraud case, D objects court erred by not enforcing the parole evidence rule. Held: Perry relies on Texas law, which provides that “[w]hen parties have

concluded a valid integrated agreement with respect to a particular subject matter, the [parol evidence] rule precludes the enforcement of inconsistent prior or contemporaneous agreements.” F.D.I.C. v. Wallace, 975 F.2d 227, 229 (5th Cir. 1992) (quoting Hubacek v. Ennis State

Bank, 159 Tex. 166, 170 (1958)). Although that rule is “not really a rule of

evidence but rather a substantive rule from the law of contracts,” it requires the“exclu[sion of] evidence of prior or contemporaneous negotiations and representations that are introduced to vary, add to, or contradict the terms of a valid written instrument, which the rule presumes embodies the complete agreement between the parties.” Harville Rose Serv. v. Kellogg Co., 448 F.2d 1346, 1349 (5th Cir. 1971). The parol evidence rule “is binding only between those persons who are parties to the contract or their privies, and does not apply in this case where the controversy is between the government and a party to the contract.” Shale v. United States, 388 F.2d 616, 618–19 (5th Cir. 1968); United States v. Ballis,

28 F.3d 1399, 1410 (5th Cir. 1994) (discussing plea agreements). In a

criminal fraud prosecution, the government seeks enforcement of the United

States’s criminal code—not enforcement of an “inconsistent prior or

contemporaneous agreement[].” Wallace, id., at 229. The inapplicability of the parol evidence rule in this case is sensible. The parol evidence rule aims in part to “ensur[e] that the contracting parties, whether as a result of miscommunication, poor memory, fraud, or perjury, will not vary the terms of their written undertakings, thereby reducing the potential for litigation.” 11 R. Lord, Williston on Contracts § 33:1 (4th ed. 2012)

The risk of fraud is heightened in the civil context, where parties

to a contract have a profit motive to fib—and need only convince a factfinder of their story by a preponderance of the evidence. Because the parol evidence rule is not applicable here, the district court was undoubtedly correct to deny Perry’s requested jury instruction.

Parole Board Challenges

( The district court dismissed the complaint pursuant to 28 U.S.C. § 1915A, concluding that the Board and the TDCJ have immunity from suit under the Eleventh Amendment and that Miles’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). We review the dismissal of the complaint de novo. Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Both the Board and the TDCJ are immune from suit under the Eleventh Amendment. See Littles v. Board of Pardon and Paroles Division, 68 F.3d 122, 123 (5th Cir. 1995); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989) (recognizing that the Eleventh Amendment bars suits in federal court by a citizen against agencies or departments of his state). Moreover, a challenge to a parole decision must satisfy the requirements of Heck to state a claim for relief. McGrew v. Tex. Bd. Pardons & Paroles, 47 F.3d 158, 161 (5th Cir. 1995). Under Heck, a plaintiff seeking damages for an allegedly unconstitutional imprisonment “must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87. Miles does not allege that the decision to revoke his probation has been reversed, expunged, set aside, or called into question as Heck requires. Miles has not established that the district court erred in dismissing his § 1983 lawsuit. See § 1915A(b)(1),(2) ; Ruiz, 160 F.3d at 275. The judgment of the district court is thus affirmed.

( Villegas v. Thaler, (5th Cir. May 3, 2011)(08-20822). Villegas, currently federal prisoner # 20355-179, appeals the dismissal of his 28 U.S.C. § 2254 petition, wherein he challenged the State’s revocation of his parole from a 1996 drug conviction. The district court dismissed the petition after determining that Villegas’s re-release on parole rendered it moot. Because Villegas is still subject to the State’s oversight on

parole, however, we REVERSE. ¶ although Villegas is now in federal prison, he is

simultaneously still on parole for the state offense. Due to his parole revocation

and the loss of credit for time previously served on parole, see TEX. GOV’T CODE

ANN. § 508.283(c), Villegas’s maximum parole discharge date has been extended

by nearly two years from March 2016 to February 2018. The district court dismissed the § 2254 petition as moot, reasoning that because of his release from the revocation sentence, Villegas no longer has a live case or controversy. We granted a certificate of appealability (COA) on the issue whether the case is not moot because the parole revocation extended Villegas’s maximum parole discharge date. ¶ Article III, § 2, of the Constitution requires that litigants continue to have a personal stake in the outcome of a suit throughout all stages of federal judicial proceedings. Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998). “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Id. (quoting Lewis v. Cont’l Bank

Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253 (1990)). With respect to an inmate who has been released on parole, the requirement for a live case or controversy requires the now-released inmate to demonstrate “some concrete and continuing injury other than the now-ended incarceration or parole–some ‘collateral consequence’ of the conviction[.]” Id. at 7, 118 S. Ct. at 983. Here, because of the revocation of his parole, Villegas’s maximum parole discharge date was extended by nearly two years, and his parole supervision remains in effect despite his re-release from the revocation sentence. The

extension of Villegas’s parole discharge date is a collateral, if not direct, consequence of the parole revocation. Villegas is therefore unlike the inmate in Spencer whose challenge to a parole revocation after he had completed the terms of that revocation was moot. See id. at 14–17, 110 S. Ct. at 986–88.

Parole

( Johnson v. Rodriquez, 110 F3d. 299 (5th Cir 1999) as a result of this case the parole board passed a law clearly stating that an inmate's litigation record while in prison SHALL NOT BE CONSIDERED when the board is voting a parole case

Passport Application and Passport Fraud and Aiding and Abetting It

( From United States v. Najera Jimenez, 593 F.3d 391 (5th Cir. 2010)(08-50913).

Making a false statement in a passport application, in violation of 18 U.S.C. § 1542,

does not require the false statement to be material. Accord: United States v. Hasan, __ F.3d __ 2009 WL 3737521 (2d Cir. Nov. 10, 2009); United States v. Salinas, 373 F.3d 161, 167 (1st Cir. 2004) (noting that § 1542 does not contain a materiality requirement such as that found in 18 U.S.C. § 1001); United States v. Hart, 291 F.3d 1084, 1085 (9th Cir. 2002) (finding no materiality requirement in § 1542); United States v. Ramos, 725 F.2d 1322, 1323 (11th Cir. 1984) (holding that materiality is not an element of § 1542 because “any false statement” is sufficient).

( United States v. Churchwell, __ F.3d __ (5th Cir. Nov. 18,2015)(14-20351)

--To obtain a conviction under 18 U.S.C. § 1542, the Government must prove beyond a reasonable doubt that the defendant “willfully and knowingly ma[de] any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States.” 18 U.S.C. § 1542; United States v. Reyes-Ochoa, 503 F. App’x 268, 269 (5th Cir. 2012). In order for a parent to obtain a passport for a child under age 16, both parents must apply in person at the passport agency. See 22 C.F.R. § 51.28(a)(2). Alternatively, the application may be executed by only one of the parents if that parent shows a notarized statement from the absent parent consenting to the issuance of the passport. See id. § 51.28(a)(3)(i). When a parent, or another individual, signs a passport application in place of the second parent, the signing individual has willfully and knowingly made a false statement on the face of the passport application. United States v. Baum, 380 F. Supp. 2d 187 (S.D.N.Y. 2005).

--While we have held that a defendant may be criminally liable for making a false statement on a passport application, our case law has not yet addressed the issue in this case: whether a government agent may be held criminally liable for aiding and abetting where he accepts or certifies as true another’s passport application that he knew contained false statements. Addressing an issue of first impression, we hold that the record supports the district court’s finding of Churchwell’s guilt. As a general rule, a defendant is guilty of aiding and abetting if he “knowingly associated himself with and participated in the criminal venture.” 18 U.S.C. § 2; United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996). In United States v. Aifang Ye, the Ninth Circuit upheld a conviction of aiding and abetting where the defendant assisted her brother-inlaw, Zhenyan, who signed her child’s passport application as the child’s father. See 792 F.3d 1164, 1165–67 (9th Cir. 2015). Zhenyan used his brother’s name and passport as identification. Id. at 1166. The defendant was charged with aiding and abetting passport fraud because she agreed to sign and submit a false application with knowledge of her brother-in-law’s false signature. Id. Other circuits have considered whether aiding and abetting includes certifying and accepting false statements. For example, in United States v. Dunne, the Tenth Circuit suggested that a defendant may be held criminally liable for aiding and abetting where he certified and accepted false information in an audit report and other financial statements in documents submitted to the United States government. See 324 F.3d 1158, 1162–64 (10th Cir. 2003). … A review of the record shows that a reasonable jury was free to reject Churchwell’s argument and find him guilty of aiding and abetting passport fraud.

--We must now address whether Churchwell aided and abetted the commission of this act. “[K]nowingly associat[ing] . . . with and participat[ing] in [a] criminal venture” is sufficient to find criminal liability. See 18 U.S.C. § 2; Burgos, 94 F.3d at 873. This court has expanded the definition of knowledge to include circumstances where a defendant exhibits deliberate ignorance. See United States v. Demmitt, 706 F.3d 665, 674–77 (5th Cir. 2013). Deliberate ignorance requires that a defendant (1) be subjectively aware of a high probability of the existence of the illegal conduct; and (2) purposely contrive to avoid learning of the illegal conduct. Id. at 675. In Demmitt, we concluded that a deliberate ignorance instruction to the jury was proper where the defendant turned a blind eye to several instances of suspicious conduct in a fraud conspiracy: clients directly informed the defendant of missing money from their accounts; the defendant was copied on letters sent to clients about incorrect charges on accounts; the defendant tightly controlled the business by making various business decisions; and the defendant took no actions to investigate or rectify the fraud. Id. at 673–74, 676; see also United States v. Barrera, 444 F. App’x 16, 21–23 (5th Cir. 2011)

( Defining What Is a Passport. United States v. Casillas-Casillas, __ F.3d ___ (5th Cir. Jan. 5, 2016)(16-50379): Casillas-Casillas objected in writing to the four-level upward adjustment pursuant to § 2L2.2(b)(3)(A). He claimed that the guideline in question only applied to “regular passports,” but not to passport cards. The plain language of § 2L2(b)(3)(A) does not distinguish between passport cards and “regular passports:” The guideline recommends a four-level enhancement “[i]f the defendant fraudulently obtained or used . . . a United States passport.” In addition, the Code of Federal Regulations unequivocally states that a passport card is a United States passport. It lists passport cards as one of four “[t]ypes of passports” issued by the Secretary of State. 22 C.F.R. § 51.3. In addition, the State Department’s publicly-available passport application form states that a passport card is a United States passport. See Application for a U.S. Passport (Card or Book), available at (stating that “[t]he passport card is a U.S. passport issued in card format”). Because a passport card is a United States passport within the meaning of § 2L2.2(b)(3)(A), the district court did not err.

Patient Bill of Rights Does Not Create Contract

( Singh v. Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008).

Phone Records

( A properly authenticated telephone bill can be admissible under the business records exception to the hearsay exclusion rule. See United States v. Vela, 673 F.2d 86, 89 (5th Cir. 1982) (citing FED. R. EVID. 803(6)). To the extent the exhibit was a business record for Rule 803(6), Beasley’s testimony was sufficient to authenticate the unredacted bill copy. See United States v. Wake, 948 F.2d 1422, 1434 (5th Cir. 1991); FED. R. EVID. 901(a)

( It is difficult to prove a conspiracy via phone records alone without testimony of co-conspirators. United States v. Galvan, 693 F.2d 417 (5th Cir. 1982). To prove an agreement solely on phone records requires a double inference. First, it must be inferred that phone calls were actually made between the residences of the defendants. Second, the jury must infer the content of the conversation was the alleged conspiracy. Each link

in the inferential chain must be clearly proven. United States v. Schorr, 462 F.2d 953, 959 (5th Cir. 1972).

Phone Search

United States v. Escamilla, __ F.3d __ (5th Cir. March 29, 2017)(16-40333):

Giving phone to officer on may I look at your phone was consensual, however,

subjecting phone to warrantless forensic examination through a program called Cellulite

was unconstitutional, but held harmless.

Photo Line-up

Wiggins v. Vannoy, (5th Cir. April 18, 2016):

The Supreme Court has held that the Constitution mandates exclusion of testimony regarding a photographic lineup only if “law enforcement officers use[d] an identification procedure that is both suggestive and unnecessary” and “improper police conduct created a substantial likelihood of misidentification.” Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012). The state court considered the reliability of the identification of Wiggins as the shooter in light of the factors listed by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114 (1977). “Where the indicators of [a witness’s] ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion, the identification should be suppressed.” Perry, 132 S. Ct. at 724. The state court determined that the identification was sufficiently reliable such that its use at trial was not unconstitutional. Given the kinds of suggestive identifications that the Supreme Court has concluded are constitutionally admissible, see, e.g., Brathwaite, 432 U.S. at 104-17,

( United States v. Olivares, __ F.3d ___ (5th Cir. August 18, 2016)(15-41284) Olivares has not made the requisite showing. He first contends that the photographic lineup from which the aliens identified him was unconstitutionally suggestive because his photograph was the only one in which the subject had tattoos and facial hair. Because Olivares did not provide the photographic lineup in connection with his argument, there is no evidence in the record to support his allegation. “Mere objections do not suffice as competent rebuttal evidence.” United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002)

photographing Police. See intervening intermediary.

Ping Order Suppression

( United States v. Wallace, __ F.3d __ (5th Cir. Aug. 3, 2017)(16-40701): Authorities

sought a Ping Order for authorization under both federal and state law to (among other things) obtain real-time geolocation coordinates of the cellular device linked to the number given by the confidential informant. This information is referred to as “E911” data. A state district court judge granted the requested Ping Order for a period of sixty days going forward. D argued that the Ping Order used to locate him was invalid because “1) the information provided to the State District Judge was ambiguous, overbroad and conclusory and 2) law enforcement was not engaged in an ‘ongoing criminal investigation’ of the Defendant.” He also argued that the statutes authorizing the Ping Order were unconstitutional.

But suppression is not a remedy for a violation of either the federal pen-trap statute or the Texas Code of Criminal Procedure. United States v. German, 486 F.3d 849, 654 (5th Cir. 2007) (holding that suppression is not a remedy for a violation of the federal pen-trap statute); see also United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014).2 “Where Congress has both established a right and provided exclusive remedies for its violation, we would encroach upon the prerogatives of Congress were we to authorize a remedy not provided for by the statute.” German, 486 F.3d at 853 (quoting United States v. Frazin, 780 F.2d 1461, 1466 (9th Cir. 1986)). Unlike the wire-tap statute which “specifically provides for an exclusionary remedy when the statutory requirements are not met,” the pen trap statute provides only for fines and imprisonment for knowing violations. Id. at 842. Accordingly, it is clear that “Congress has determined that the benefits of an exclusionary rule do not outweigh its substantial social costs.” Id. The same is true with the parallel state statute, Texas Code of Criminal Procedure Art. 18.21.. It specifically states that the DPS also sought the Ping Order pursuant to § 2703(d) of the federal Stored Communications Act (SCA). Like the federal pen-trap statute and the parallel state provision, the SCA requires the government to show that the “information sought, [is] relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Wallace does not argue that the government failed to comply with the requirements of the SCA. Even if he did, we have held that suppression is not a remedy for violations of the SCA. Guerrero, 768 F.3d at 358. “remedies and sanctions described” therein—namely “injunctive relief,” “a reasonable attorney’s fee and other litigation costs,” and “actual damages”— “are the exclusive judicial remedies and sanctions for a violation of this article.” Tex. Code. Crim. Proc. art. 18.21, §§ 12-13. Suppression is not an available recourse. As such, even if the Ping Order were issued in violation of federal or state law, Wallace is not entitled to suppression. The district court did not err.

Plain Error

( Plain Error on Sentencing Points: Because Olea did not raise this issue in the district court, this court reviews his contention on appeal only for plain error. United States v. Henry, 288 F.3d 657, 664 (5th Cir. 2002). To show plain error, Olea must show an error

that is clear or obvious and that affected his substantial rights. See United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If he makes that showing, this court has the discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. An error is clear or obvious only if it is clear under existing law, and an alleged error is not clear or obvious if the relevant law is unsettled. United States v. Salinas, 480 F.3d 750, 756, 759 (5th Cir. 2007).

( He contends that the district court did not provide an adequate explanation for

his sentence and that his within-guideline sentence was unreasonable.

Romero-Facio did not object to the district court’s explanation of the sentence.

We review his contention for plain error. See United States v. Lopez-Velasquez,

526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008). To preserve

the argument for further review, Romero-Facio argues that the plain error

standard should not apply; he concedes the argument is foreclosed by Lopez-

Velasquez.

( Plain error review has four steps. Puckett v. United States, 129 S. Ct. 1423, 1429, 2009 U.S. LEXIS 2330, at *11-*12 (U.S. Mar. 25, 2009). We “may reverse only if:

(1) there was error (2) that was clear and obvious and (3) that affected a defendant’s

substantial rights.” Id. If these elements are present, we have the “discretion

to correct the error if it seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotation marks and citations

omitted). If existing law is unsettled regarding an alleged error, the alleged error

is not clear or obvious. United States v. Salinas, 480 F.3d 750, 756, 759 (5th

Cir. 2007).

( To show plain error, an appellant must show an error that is clear or

obvious and that affects his substantial rights. United States v. Baker, 538 F.3d

324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009).

( Exception to Failing to Object when Magistrate Failed to Warn Defendant:

of Consequences of Failing to Object. United States v. Young, 585 F.3d 199 (5th Cir. Oct. 8, 2009)(08-51047)( Magistrate Judge did not warn Young of the consequences of failing to object. Young therefore did not have notice of the result of not objecting. We thus proceed to review de novo Young’s constitutional claim). Douglass v. USAA, 79 F.3d 1415, 1417 (5th Cir. 1996).

( United States v. Ruiz-Arriaga, 565 F.3d 280 (5th Cir. 2009)(08-40242): First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel now disavows. Trial counsel’s misstatement essentially waives the argument for any other sentencing range in this appeal. It is well established that appellate courts may correct errors of law under a plain standard where trial counsel simply stood mute at sentencing and failed to object to the PSR. United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993), cert. denied, 511 U.S. 1042, 114 S. Ct. 1565 (1994).

( United States v. Nolen, 472 F.3d 362, 382 n.52 (5th Cir. 2006) (“[A]n illegal sentence always constitutes plain error.”)

( Thursday, April 9, 2009, Fifth Circuit Blog

Has the Fifth Circuit's Approach to Plain Error Review Been Too Permissive?

United States v. Ellis, No. 07-11276 (5th Cir. Mar. 26, 2009)

We all know that plain error review is not your friend. Nevertheless, there have been more than a few cases, particularly in the COV arena, in which the Fifth Circuit has vacated sentences on a finding of plain error. But has the court been too quick to pull the plain error trigger? That's the view of the panel in Ellis. Which is all the more reason, as if any more was necessary, to properly preserve issues for appellate review.

This case involved a particularly thorny COV issue (and, to be fair, one that doesn't exactly leap off the pages of the PSR). Ellis, who was convicted of three counts of bank robbery, also had prior North Carolina convictions for common law robbery and attempted common law robbery. At sentencing, the district court found Ellis to be a career offender, based on a determination that the NC priors were COVs under guideline §4B1.2. Ellis did not object to that finding. (Or as the opinion puts it, "without any whisper of [an objection] uttered in the district court[,]" "[d]espite the fact that Ellis’ criminal history was the most salient factor in his sentence[.]" You can see where this is going.). On appeal, Ellis conceded that NC common law robbery is a §4B1.2 COV, but argued that "in North Carolina, attempted robbery is not a crime of violence because state law defines that offense—specifically the 'overt act' requirement—more broadly than most other states." And for that reason, said Ellis, his attempt conviction fell outside all three prongs of the §4B1.2 COV definition.

The court analyzed the broader-than-generic-attempt issue at length, ultimately concluding that "the question is close as to whether Ellis’ North Carolina attempted common law robbery falls within the generic, contemporary meaning of attempt in this context[,]" and that "[t]he question as to whether the attempt falls under one of the other catchall provisions of § 4B1.2 is also close[.]" But the court declined to pursue the question any further than that:

Our narrative of the decisional path this court would have to traverse to resolve the merits of defendant’s objection to his sentence, an objection never made to the trial court, makes plain beyond peradventure that any error was not plain. As Ellis would have it, all of the close calls fall his way, and that is enough. Yet, the error said to be plain was never the subject of objection by able trial counsel. Putting aside its obscurity at trial, even now after full briefing and oral argument the error is not plain or obvious, indeed it is most uncertain whether there was any error at all.

Ellis, of course, pointed to a number of other COV plain-error reversals. But the court concluded that the issue here was far less clear than in those cases, whose "brief analyses turn[ed] on the elements of the crime sustaining the conviction or upon other straightforward applications of case law to correct what would be more promising candidates for clear error." The court also found support in the Supreme Court's recent explication of plain error review in Puckett v. United States, which "reaffirmed the principle that to satisfy the second prong of plain error inquiry, 'the legal error must be clear or obvious, rather than subject to reasonable debate.'"

And here's where the court really starts calling into question its recent approach to plain error: This emphasis on the second prong of plain error analysis is particularly important given the development of this court’s case law on the third and fourth prongs of the plain error test in the sentencing context, where the court has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand, although we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem. To our eyes, the lack of any clear error here means that Ellis’ sentence should stand.

Even if we were inclined, this is no occasion to offer metrics for the severity of an increase worked by decisions later found to have been error and such a departure as to summon our discretion to correct an injustice. Not every error that increases a sentence need be corrected by a call upon plain error doctrine. It bears emphasis that all defendants’ appeals challenging a sentence rest on the practical premise that the sentence should be less. The doctrine of plain error serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance, as opposed to a body charged to make recommendations to appellate courts. And even if an increase in a sentence be seen as inevitably “substantial” in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial process and proceedings. To conclude that not correcting the error claimed here casts doubt upon the fairness, integrity, or public reputation of the proceeding drains all content from the doctrine of plain error.

There's no way to tell right now whether the Fives will crack down on plain error review going forward. We've already seen the court requiring pretty specific arguments and objections in the district court just to avoid plain error review in the first place. So yes, the plain error bar will probably get higher. Better to avoid finding out for sure.

( 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))).

( Where there is no clear authority in this circuit, any error by the district court in including the magazines and applying the base offense level provided by § 2M5.2(a)(1), was not clear or obvious. See United States v. Potts, ___ F.3d ___, No. 10-10257, 2011 WL 2347687 at **2-3 (5th Cir. June 15, 2011).

( Timing of Law—Should be at Time of Appeal for Plain Error: United States v. Escalante-Reyes, __ F.3d __ (5th Cir. En Banc)(July 25, 2012)(11-40632):

( In this case we answer the following question: whether, when the law at the time of trial or plea is unsettled, but becomes clear while the case is pending on appeal, review for the second prong of the “plain error” test properly considers the law as it stood during the district court proceedings (“time of trial”) or at the time of the appellate court’s decision (“time of appeal”). We join the majority of other circuits in answering this question as follows: “time of appeal.” A large majority of us concur that this case presents this question squarely, though perhaps not perfectly. Recognizing the intra- and inter-circuit split on this question, see United States v. Broussard, 669 F.3d 537, 554 (5th Cir. 2012), petition for reh’g filed, we determined to hear this case en banc in the first instance to resolve the issue.

Note 2: By way of background, we note that the claimed “plain error” is considering Escalante-Reyes’s need for anger management courses in prison in determining the length of his sentence. After the sentencing hearing in this case, the Supreme Court decided Tapia v. United States, 131 S. Ct. 2382 (2011), which

cleared any confusion over whether rehabilitation or correction can be considered in deciding whether to sentence a defendant to prison and for how long.

( FED. R. CRIM. P. 51(b) gives little assistance as to the question of

timing; the first clause speaks to the present: “that affects,” while the last clause uses the past tense of “was.” We conclude that the term “was” does not answer the timing question.

( We turn then to Supreme Court precedent. … Though it has had opportunities to do so, the Supreme Court has not spoken directly to the timing issue when the law is unsettled at the time of trial but becomes clear by the time of appeal. In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court noted that “plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’” Id. at 734. However, the Court specified that it “need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Id. (emphasis added). Approximately four years after Olano, the Supreme Court decided Johnson, in which it held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” 520 U.S. at 468. The Court reasoned that it would be futile for a lawyer to object to an “error” that clearly was not an error under the law as it existed at that time. Id. at 467-68. If objections were required to preserve such an error, counsel would have to make “a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Id. at 468. Both Olano and Johnson left open the question of when the “plainness” of an error would be evaluated in a situation where the law was unsettled at the time of trial, but was clear at the time of appeal. If the Supreme Court believed this issue to be determined, it would have said so in one of these cases. It did not.

( Our sister circuits also are not uniform, but the vast majority have either

implicitly or explicitly adopted the “time of appeal” rationale. The Ninth and

District of Columbia Circuits are the only circuits squarely holding that if the

law is unclear at the time of trial and later becomes clear, the error is evaluated

based on the law as it existed at the time of trial.

( Dissent: The dissenting opinion filed by Judge Smith argues that the Supreme Court’s decision in Griffith—which held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . 479 U.S. at 328—counsels in favor of evaluating the error at the time of trial. See Smith “,. . Dissenting Op. at 6-8. However, in Johnson, the Supreme Court applied Griffith to the first prong of plain error analysis, not the second prong. See Johnson, 520 U.S. at 467 (“Because petitioner is still on direct review, Griffith requires that we apply [United States v. Gaudin, 515 U.S. 506 (1995)] retroactively. Accordingly, under Gaudin there was ‘error,’ and the first prong of Olano is satisfied.”). By applying Griffith’s retroactivity principle to the first prong and not the second, the Court implies that Griffith is not relevant to the issue of when plain error should be evaluated. Further, in a Fourth Circuit opinion that supported a time of trial rule, the court reached a similar conclusion, noting that “Griffith’s holding that a defendant whose direct appeal is pending receives the benefit of a new rule for purposes of determining whether the district court erred, bears not at all on the second requirement of Olano, that the

error be ‘plain.’” United States v. David, 83 F.3d 638, 643 n.6 (4th Cir. 1996).

Additionally, even if Griffith’s retroactivity principle does apply to the second prong,

several appellate courts have reached the opposite conclusion from that of this dissenting opinion; specifically, they have held that Griffith counsels in favor of finding plain error at the time of appeal. See, e.g., United States v. Retos, 25 F.3d 1220, 1230 (3d Cir. 1994) (discussing Griffith’s retroactivity principle in choosing to apply the time of appeal rule); United States v. Baumgardner, 85 F.3d 1305, 1309 (8th Cir. 1996) (same). Thus, the argument that Griffith counsels in favor of adopting the time of trial rule is not persuasive.

( Questions of Fact. [Q]uestions of fact capable of resolution by the district court can never constitute plain error.” United States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001).

Preemption. See Trains.

Plea Agreements

( Enforcement of Agreement and remedies for breach: United States v. Chavful,

__ F.3d __ (5th Cir. March 20, 2015)(13-11173)(N.D. TX): “Whether the Government has breached a plea agreement is a question of law we review de novo. The defendant has the burden of proving the underlying facts by a preponderance of the evidence.” United States v. Harper, 643 F.3d 135, 139 (5th Cir. 2011) (citations omitted). (Note 2: 2 The Government contends that this Court’s review is for plain error because Chavful failed to preserve his objection. We disagree. “To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). After the Government made reference at sentencing to the spring 2012 marijuana transaction in order to argue the November and June deals were separate, Chavful objected: “Your Honor, I really need to object, because Mr. Tromblay keeps throwing in information using it to augment the sentencing that he got in a proffer agreement.” This objection was timely and sufficiently specific to preserve error). A defendant is entitled to relief “even if the Government’s breach did not ultimately influence [his]

sentence.” Id. If the Government has breached a plea agreement, the defendant may elect a remedy: “specific performance, [i.e.,] requiring resentencing before a different judge; or withdrawal of his guilty plea.” Id. Here, Chavful requests resentencing. Chavful contends that his sentence should be vacated and his case remanded because the Government breached the plea agreement by using protected information to increase his sentence. “In determining whether the terms of the plea bargain have been violated, the court must determine whether the government’s conduct is consistent with the parties’ reasonable understanding of the agreement.” United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994) (quoting United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993)).

…As in Gonzalez, the Government referenced the information protected by a proffer agreement in order to advocate that the defendant be held accountable for a sentencing enhancement unrelated to the specific protected conduct. United States v. Gonzalez,

309 F.3d 882, 887 (5th Cir. 2012). And as in Harper, the Government supplied the protected information to “fill the gap” between the two transactions in its narrative of the underlying facts. See 643 F.3d at 141. … As the Government’s conduct was at odds with Chavful’s reasonable expectation “that his agreements prohibited information he provided . . . from being used against him,” Gonzalez, 309 F.3d at 887, we hold that the Government breached the plea agreement, and we remand this matter for resentencing.

( Email letter re agreement attached to plea agreement considered when attached,

United States v. Melton, 930 F.2d 1096 (5th Cir. 1991), and United States v. Garcia, 956 F.2d 41 (4th Cir.1992), but not when unattached. United States v. Long, __ F.3d ___ (5th Cir. July 2, 2013)(11-20726).

( Freeman v. United States, 564 U.S. __ (U.S. June 23, 2011)(09-10245):

A Rule 11(c)(1)(C) agreement permits the defendant and the prosecutor to agree on a specific sentence, but that agreement does not discharge the court’s independent obligation to exercise its obligation. If defendant plead to a specific sentence under

Rule 11(c)(1)(C), the defendant can still seek a reduced sentence under 18 U.S.C. § 3582

when the USSG reduced the penalty for crack cocaine. Court overruled Loza-Gracia’s objection to the PSR, accepted the recommendation for a base offense level of 34, and sentenced Loza-Gracia to 188 months of imprisonment. Loza-Gracia argues that the Government breached the plea agreement when the PSR recommended a higher base level than that agreed to by the Assistant U.S. Attorney (“AUSA”)

The agreement further stated that “the Court is not bound

by these agreements” regarding the guideline recommendations and that the

“plea agreement is only binding on the United States Attorney’s Office for the

Eastern District of Texas and does not bind any other federal, state, or local

prosecuting authority.” The waiver-of-appeal provision in the agreement

provided that Loza-Gracia waived the right to appeal his conviction and sentence

and further waived the right to contest his sentence in any post-conviction

proceeding, but Loza-Gracia reserved the right to appeal a sentence in excess of

the statutory maximum or ineffective assistance of counsel that affected the

validity of the waiver. … The agreement further stated that “the Court is not bound

by these agreements” regarding the guideline recommendations and that the

“plea agreement is only binding on the United States Attorney’s Office for the

Eastern District of Texas and does not bind any other federal, state, or local

prosecuting authority.” … Based on these prior offenses, the PSR

recommended a higher base offense level of 34 because Loza-Gracia qualified as

a career offender under U.S.S.G. § 4B1.1. … The court also confirmed that Loza-Gracia’s position was that because the probation department was an agency of the Government, the probation department violated the plea agreement by recommending a new base offense level of 34 instead of the agreed level of 26, even though the probation department was not a party to the plea agreement. Defense counsel explained

that he believed that the AUSA had the authority to bind the Government as a whole, meaning both the U.S. Attorney’s Office and probation services, and did so in this case. The Government responded simply, stating: “We stand by our plea agreement.” The court denied Loza-Gracia’s objection. … Loza-Gracia’s belief was mistaken and there was no bait-and-switch. The well-established separate organizational structures of the U.S.

Attorney’s Office and the U.S. Probation Office, combined with the plain language used in the plea agreement and colloquy, make it clear why the agreement on a base offense level in a plea agreed to by the AUSA is not binding on either the Probation Office or on the district court. Unlike the U.S. Attorney’s Office, which is organized under the executive branch of the federal government, “the United States Probation Office is a branch of the federal judiciary and ‘an investigatory and supervisory arm’ of the sentencing court.” United States v. Talbert, 501 F.3d 449, 453 (5th Cir. 2007); see also United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (noting the probation office and sentencing court maintain a close working relationship and that probation officers are permitted to communicate ex parte with the court). Thus, under general

federalism principles, the U.S. Attorney’s Office, as a member of the executive branch, does not have the authority to bind the Probation Office, as a member of the judiciary branch, with respect to sentencing recommendations. … our decision here comports with a prior unpublished decision of this court, United States v. Traugott, 364 F. App’x 925 (5th Cir. 2010), which held that the Government did not breach a plea agreement under similar factual circumstances. In Traugott, the plea agreement included a stipulation

for a base offense level of 32 based on a plea for conspiracy to possess with intent to distribute methamphetamine. However, in light of information in the PSR that Traugott had prior convictions for a crime of violence and a drug trafficking crime, the district court applied the career offender enhancement which increased the offense level to 37. This court noted that the plea stipulation “merely confirms the appropriate guidelines section applicable to his offense. It does not preclude application of the career offender enhancement.” Id. Also, Traugott had acknowledged at his plea colloquy that the district court was not bound by the plea agreement and that his guideline range could be increased based on guideline adjustments.

( Nature of—Not binding—US PO adds career criminal:

United States v. Loza-Gracia, __ F.3d __ (5th Cir. Feb. 9, 2012)(11-40127):

Sentence was imposed after he pled guilty to one count of conspiracy to possess with intent to distribute cocaine pursuant to a written, non-binding plea agreement. The plea agreement included a provision that Loza-Gracia’s base offense level would be 26. The Presentence Investigation Report (“PSR”) prepared by a United States Probation Officer acknowledged the agreement for a base level of 26 but nonetheless recommended a base offense level of 34 as a career offender

( According to the unambiguous wording of the agreement, the parties’

stipulated base offense level was not binding on the district court. United States v. LozaGracia, 670 F.3d 639, 640-43 (5th Cir. 2012).. Aguilera-Sandoval received specific performance of the agreement at his resentencing when the Government stood by the plea

agreement and did not advocate for the career offender enhancement. See id. at 644.

Unconditional Plea Waives Motion to Suppress

( A defendant waives a right to challenge on appeal any non-jurisdictional defects in the criminal proceedings that occurred before the plea, including the denial of a motion to suppress. See United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007); United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999). United States v. Varela, (5th Cir. October 19, 2016)(15-50885). Latest case on issue: United States v. Olson, __ F.3d ___ (5th Cir.

Feb. 20, 2017)(16-10507). To preserve the error, you need to detail the reservation of the issue with specificity in the written plea agreement.

Plea Offers

( Upon receiving a plea offer, defense attorneys have a due to report the offer to the client. Missouri v. Frye, 132 S. Ct. 1399 (2012).

( When the State has made a plea offer and our investigation shows that the State can prove its case against the defendant, we have an obligation to tell the client exactly that so that the defendant can take steps to minimize his sentencing exposure.  In Lafler v. Cooper, 132 S.Ct. 1376 (2012), the defense lawyer communicated the plea offer, but then told the client he could not be convicted at trial. SCOTUS found that the defense lawyer ineffective.

Policeman—Firing of’

( Stem v. Gomez, __ F.3d __ (5th Cir. Jan. 9, 2016)(15-50264):

In September 2014, a Texas grand jury failed to indict Stem on any charges related to the (shooting). One month later, Stem filed this lawsuit against the city of Hearne, Texas, and its mayor in his individual and official capacities (collectively, the “defendants”). Stem alleged that Texas Government Code Section 614.023 created a “constitutionally protected property interest” in his employment as a police officer. Section 614.023 provides that where a “complaint” is filed against an officer covered by the statute1:

(a) A copy of a signed complaint . . . shall be given to the officer . . . within a reasonable time after the complaint is filed.

(b) Disciplinary action may not be taken against the officer . . . unless a copy of the signed complaint is given to the officer . . . .

(c) . . . [T]he officer . . . may not be indefinitely suspended or terminated from employment based on the subject matter of the complaint unless: (1) the complaint is investigated; and (2) there is evidence to prove the allegation of misconduct. Tex. Gov’t Code Ann. § 614.023. Stem argues that the defendants’ “prejudg[ment]” of him and failure to provide due process in connection with his termination deprived him of due process under the Fourteenth Amendment. Stem brought suit for the deprivation under 42 U.S.C. § 1983. Stem also sought a declaratory judgment that the defendants violated his constitutional rights and state law by terminating his employment without following the requirements of Section 614.023.

The defendants argue that the district court lacked subject matter jurisdiction. They contend that because Stem had no property interest in continued employment, there was no jurisdiction to consider his Section 1983 claim. The argument blurs jurisdiction with the merits. If the challenge to jurisdiction “is also a challenge to the existence of a federal cause of action,” a district court should assume jurisdiction exists and “deal with the objection as a direct attack on the merits of the plaintiff’s case.” Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. May 1981) (relying on Bell v. Hood, 327 U.S. 678, 682 (1946)). So long as a complaint is drafted “to seek recovery directly under the Constitution or laws of the United States,” a “failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Bell, 327 U.S. at 681–82. More recently, the Supreme Court explained that “the nonexistence of a cause of action [is] no proper basis for a jurisdictional dismissal.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 96 (1998). The only exceptions are where the claim was clearly made “for the purpose of obtaining jurisdiction” or is “frivolous.” Bell, 327 U.S. at 682–83. Stem stated a claim for relief under a federal statute. See 42 U.S.C. § 1983; 28 U.S.C. § 1331. It was not frivolous, and the Bell exceptions are inapplicable. The district court erred in dismissing Stem’s claims for lack of jurisdiction. The court also dismissed for failure to state a claim. We turn to whether that dismissal was valid.

… In summary, there is no authoritative decision from the Texas Supreme Court as to whether Section 614.023(c) creates a property interest. When interpreting state law, we are “guided by the decisions of state intermediate appellate courts unless other persuasive data indicate[] that the [state’s] Supreme Court would decide otherwise.” Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 646 (5th Cir. 2002). Here, there is a disagreement among the state courts of appeals. Compare Staff v. Wied, 470 S.W.3d 251, 258 (Tex. App.—Houston [1st Dist.] 2015, pet. filed), with Turner v. Perry, 278 S.W.3d 806, 821-22 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). In our view, Section 614.023 assures that an officer against whom a complaint is filed understands the allegations against him and receives a meaningful investigation into the accuracy of those allegations. A right to an investigation, though, does not create a property right. See Henderson, 761 F.2d at 1097–98; Davis v. Dallas Indep. Sch. Dist., 448 F. App’x 485, 496 (5th Cir. 2011). A city’s “‘merely conditioning an employee’s removal on compliance with certain specified procedures’ does not necessarily mean that an employee has a substantive property right in continued employment.” Irby v. Sullivan, 737 F.2d 1418, 1422 n.4 (5th Cir. 1984) (quoting Bishop v. Wood, 426 U.S. 341, 345 (1976)). We also know that the legislation was not aimed at abrogating the right to discharge at will. TEX. H. RESEARCH ORG., BILL ANALYSIS, H.B. 639, 79th Leg., Reg. Sess. (2005). Finally, it is not even clear that the statute applies here, because the statutory meaning of “complaint” is unsettled.

Pornography, of a Child

( For statute of limitations of child pornography, see limitations, state of.

Pornography on Computer

( United States v. Moreland, __ F.3d ___ (5th Cir. Dec. 14, 2011)(09-60566) The “exploitive use of children in the production of pornography has

become a serious national problem.” New York v. Ferber, 458 U.S. 747, 749

(1982). In Ferber, the Supreme Court held that child pornography is

distinguishable from other sexually explicit speech. Child pornography is not protected by the First Amendment because the State has a “compelling” interest

in safeguarding the well-being of minors. Id. at 756-57. “The prevention of sexual

exploitation and abuse of children constitutes a government objective of

surpassing importance.” Id. at 757; see also Ashcroft v. Free Speech Coalition,

535 U.S. 234, 239 (2002). Therefore, while pornography may warrant First

Amendment protection and can be banned only if it is found to be obscene, see

Miller v. California, 413 U.S. 15 (1973), pornography that depicts minors can be

proscribed whether or not the images are obscene. Ashcroft, 535 U.S. at 240.

Moreover, the Court has held that the State’s interest in protecting children

from exploitation also justifies criminalizing the possession of pornography that

is produced using children. Osborne v. Ohio, 495 U.S. 103, 110-11 (1990); see also

Ashcroft, 535 U.S. at 250 (affirming Osborne while striking down a statutory

provision that outlawed possession of virtual child pornography because real

children were not exploited in its production). “The freedom of speech has its

limits; it does not embrace certain categories of speech, including defamation,

incitement, obscenity, and pornography produced with real children.” Ashcroft,

535 U.S. at 246.

The state’s power to criminalize child pornography and to prosecute

individuals for possession of child pornography is not unlimited. See Ferber, 458

U.S. at 764 (noting that “[t]here are . . . limits on the category of child

pornography which . . . is unprotected by the First Amendment”). “As with

obscenity laws, criminal responsibility [for child pornography] may not be

imposed without some element of scienter on the part of the defendant.” Id. at

765.

plea. See United States v. Bell, 966 F.2d 914, 915-16 (5th Cir. 1992). A review of the plea colloquy reveals that the district court provided the appropriate admonitions to ensure

Keith was convicted of the knowing possession of child pornography in violation of the federal Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 252A(a)(5)(B) (2006). At the time that he was charged, the statutory provision prohibited, in pertinent part, “knowingly possess[ing] . . . any . . . material that contains an image of child pornography that has been . . . transported . . . in . . . interstate or foreign commerce by any means, including by computer.” Id. Child pornography is defined therein as “any visual depiction . involv[ing] the use of a minor engaging in sexually explicit conduct; . . . or . . . any] visual depiction [that] has been created, adapted, or modified to appear] . . that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8). Thus, to secure Keith’s conviction, the government had to prove beyond a reasonable doubt that Keith knowingly possessed digital visual images of real children engaging in sexually explicit conduct. The term “knowingly” extends both to the age of the performers and the sexually explicit nature of the material. United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).

Although the Supreme Court upheld a prohibition against both possessing

and viewing child pornography, see Osborne, 495 U.S. 103, at the time of Keith’s

offense, the federal statute and the majority of state statutes criminalized

“knowing possession,” but not mere “viewing,” of child pornography.

Note 1: In 2008, the federal statute was amended to also criminalize “knowingly access[ing child pornography] with intent to view.” Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252A(a)(5)(B) (2006). The majority of states do not criminalize viewing child pornography. See, e.g., Fla. Stat. § 827.071(4)-(6) (2010); La. Rev. Stat. Ann. § 14:81.1 (2006); Miss. Code Ann. § 97-5-33 (2003); Tex. Penal Code Ann. § 43.26 (West 2011).

Child pornography can be distributed digitally over the internet and personal computers. As child pornographers have become more tech savvy, so have law enforcement officers and prosecutors. With the assistance of forensic software, a skilled investigator can recover data from a computer that the user thought was deleted or never even knew existed. In order for investigators, prosecutors, and courts to properly analyze such evidence in the context of a criminal prosecution for the knowing possession of child pornography, they must have a basic understanding of how individual computers and the internet interrelate and work. The major parts of a computer that come into play in a typical case are its cache, its temporary internet files, and its unallocated slack space.

When a computer user views a webpage, the computer automatically stores a copy of that webpage in a folder known as the cache. Ty E. Howard, Don’t Cache Out Your Case: Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1229- 30 (2004). The copy is retained in a file called a temporary internet file. When the user revisits that webpage, the computer can load the page more quickly by retrieving the version stored in the cache. Id. at 1230. The computer automatically deletes temporary internet files when the cache — which has limited storage space — becomes full. Once full, the computer begins to delete the files on a “first in, first out” basis. Note, Child Pornography, The Internet, and the Challenge of Updating Statutory Terms, 122 Harv. L. Rev. 2206, 2212

(2009). Users also may manually delete files from the cache, or use commercial

software to remove the files. Id. Deleted files are not wholly removed from the computer. A deleted file is marked as unallocated file space, which allows that file to be overwritten by new files. See Michele C.S. Lange & Kristin M. Nimsger, Electronic Evidence and

Discovery: What Every Lawyer Should Know Now 208-09, 235-36 (2d ed. 2009). A computer’s deleted files make up what is known, in this case, as the disk slack space. A knowledgeable forensic investigator may use forensic software to search for, recall, and view the contents of the unallocated file space. This process is known as “restoring” a deleted, but not yet overwritten, file. It requires sophisticated expertise and special software to restore a deleted file. See, e.g., id. at 78, 231, 235-36 & fig. 5.8; Howard, supra, at 1234 n.22 (citing Joan E. Feldman, The Basics of Computer Forensics, 12 Practical Litig. 17, 19-20 (2001); and Richard Hardy & Susan Kreston, “Computers are like Filing Cabinets . . .”: Using Analogy to Explain Computer Forensics, 15 Nat’l Ctr. for Prosecution of Child Abuse Update Newsl. No. 9 (Nat’l Dist. Attorneys Ass’n, Alexandria, Va.), 2002).

Investigators may also utilize index.dat files in prosecuting child pornography cases. The index.dat file is a record of all visited websites, as well as the date and time that the site was last visited. Howard, supra, at 1235 n.26.

( United States v. Wright, 639 F.3d 679 (5th Cir. 2011), Rehearing en banc based on amount of restitution ordered in January 27, 2012.; United States v. Winkler, 639 F.3d 692 (5th Cir. 2011).

( Restitution As Basis for appeal under Appeal Waiver in Plea Agreement

United States v. Sharma, 703 F.3d 318 (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).

( United States v. Sharma, 703 F.3d 318 (5th Cir. Dec. 21, 2012)(11-20102):

The MVRA limits restitution to the actual loss directly and proximately

caused by the defendant’s offense of conviction. See United States v. Hinojosa, 484 F.3d 337, 343 (5th Cir. 2007) (vacating order of restitution that included losses caused by uncharged fraud that was “outside the scope of the indictment and inconsistent with the understanding of the parties to the oral plea”).An award of restitution cannot

compensate a victim for losses caused by conduct not charged in the indictment

or specified in a guilty plea, or for losses caused by conduct that falls outside

the temporal scope of the acts of conviction. See United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005) (vacating excessive restitution award that included losses falling outside the “specific temporal scope of the indictment”) (emphasis in 0riginal).Moreover, excessive restitution awards cannot be excused by harmless error; every dollar must be supported by record evidence. See United States v. Arledge, 553 F.3d 881,899 (5th Cir. 2008)(vacating restitution award because less than 1% of the

total was not supported by evidence of causation by fraud).

By thus directly incorporating the amounts from the victim impact

statements into the PSRs as actual losses, the Probation Office went astray.

Examples from three of the insurers will suffice to show how the Probation

Office failed to scrutinize those amounts and thereby recommended restitution

for more than the insurers’ actual losses. One insurer, Tricare, claimed as loss

all of its payments to the Sharmas dating back to 1997. Inasmuch as the

charged conspiracy did not begin until 1998, however, the 1997 payments plainly

do not constitute actual losses under the MVRA. A second insurer, Texas

Amerigroup, reported that it paid the Sharmas $650,775.01 for injections, out

of a total of $929,884.55 paid to them for all treatments. Yet the Probation

Office listed the larger figure, the one for total payments, as actual loss instead

of listing only the lesser amount that the insurer paid for injections. This too

overstates the insurer’s loss by including payments not caused by the specific

convictions. A third insurer, Principal Life Insurance, attached a spreadsheet

of all of its payments to the Sharmas, but expressly stated that it was “not sure

which claims relate to the guilty plea.” The Probation Office nevertheless

reported all of those payments as actual loss. We find no independent basis in

the record on which the PSRs could have concluded that the entire amount

related to the guilty pleas when the insurer itself stated that it did not know.

( Lack of Staleness in Long Delays in getting warrant in Child Pornography Cases.

United States v. Jarman, __ F.3d ___ (5th Cir. Be. 1, 2017)(16-30468).

Accord, e.g., United States v. Kleinkauf, 487 F. App’x 836, 838–39 (5th Cir. 2012) (finding that a nine-month delay did not render information stale); United States v. Allen, 625 F.3d 830, 842–43 (5th Cir. 2010) (finding that an eighteen-month delay did not render information stale); United States v. Frechette, 583 F.3d 374, 378–79 (6th Cir. 2009) (finding that a sixteen-month delay did not render information stale); United States v. Morales– Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (finding that a three-year delay did not render information stale); Syphers, 426 F.3d at 469 (finding that a five-month delay was reasonable); United States v. Riccardi, 405 F.3d 852, 863 (10th Cir. 2005) (finding that a five-year delay did not render information stale); United States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005) (“Information a year old is not necessarily stale as a matter of law.”); United States v. Gorrell, 360 F. Supp. 2d 48, 55 n.5 (D.D.C. 2004) (finding that a ten-month delay was reasonable).

Post-Conviction Conduct and Denial of Relief under 3582 Motion

( United States v. Vester, 5th Cir. August 3, 2015)(15-10736) and United States v.

Smith, 595 F.3d 1322, 1323 (5th Cir. 2010): We have previously rejected the same unwarranted-disparity argument as a contention § 3582(c)(2) essentially mandates reductions. United States v. Smith, 595 F.3d 1322, 1323 (5th Cir. 2010). A district court may consider post-conviction conduct in determining whether to grant a § 3582(c)(2) motion. Id.; U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)). Vester also argues that the district court abused its discretion by reconsidering his criminal history as a ground for denying relief. The district court did not recalculate Vester’s criminal history score; it left “[a]ll Guidelines decisions from the original sentencing . . . in place, save the sentencing range that was altered by retroactive amendment.” Freeman v. United States, 564 U.S. 522, 531 (2011). It was required to consider Vester’s history and characteristics and the amended sentencing range produced by his criminal history and total offense levels before it exercised discretion to grant or deny his motion. See § 3553(a)(1) & (4); United States v. Evans, 587 F.3d at 667, 673 (5th Cir. 2009). The instant record reflects that the district court gave due consideration to Vester’s motion as a whole and to the applicable § 3553(a) factors. Its denial of Vester’s § 3582(c)(2) motion was not an abuse of discretion. See United States v. Henderson, 636 F.3d 713, 719 (5th Cir. 2011).

PreIndictment Delay.

( Castillo did not raise the issue of pre-indictment delay prior to sentencing, nor did he manifest an intention to preserve the issue for appeal by entering a conditional guilty plea. See United States v. Bell, 966 F.2d 914, 915-16 (5th Cir. 1992). A review of the plea colloquy reveals that the district court provided the appropriate admonitions to ensure that Castillo entered a voluntary guilty plea and understood the consequences of entering the plea. See Boykin v. Alabama, 395 U.S. 238, 244 (1969); see also United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001); FED. R. CRIM. 11. Accordingly, because Castillo entered an unconditional and voluntary guilty plea, this court is precluded from considering the merits of his pre-indictment delay claim. See United States v. Sealed Appellant, 526 F.3d 241, 242 (5th Cir.), cert. denied 129 S. Ct. 521 (Nov. 2008); Bell, 966 F.2d at 915-16; United States v. Brice, 565 F.2d 336, 337 (5th Cir.

1977).

( United States v. Seale, 600 F.3d 473 (5th Cir. 2010): Prosecuting in 2007 for 1964 civil rights violation was due to investigation and not tactical.

Premature Deliberation

( United States v. York, 600 F.3d 347 (5th Cir. 2010).

Prisoner Exchange by Treaty From Gomez v. US Parole Commission, __ F.3d ___ (5th Cir. July 14, 2016)(15-60449):

( The Treaty Between the United States of America and the United Mexican States on the Execution of Penal Sentences, 25 Nov. 1976, U.S.–Mex., 28 U.S.T. 7399

( Implemented by 18 U.S.C. § 4100 et seq. (chapter 306).

( “This Court (5th Circuit) exercises review over a Transfer Treaty prisoner’s [release date] as it would over that of an ordinary federal prisoner sentenced in district court.” Bender v. United States Parole Comm’n, 802 F.3d 690, 693 (5th Cir. 2015), cert. denied, 136 S. Ct. 493 (9 Nov. 2015). In that regard, our court reviews the reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). First considered is “whether the sentencer committed significant procedural error, such as . . . failing to consider the § 3553(a) factors”. Bender, 802 F.3d at 697 (quoting Gall, 552 U.S. at 51). If there is no procedural error, next examined is “the substantive reasonableness of the sentence, taking into account the totality of the circumstances”. Id. (internal quotation marks omitted). “A sentence within the properly calculated Guidelines range is presumptively reasonable, and ‘[t]he presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors’”. Id. (alteration in original) (quoting United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)).

( As discussed supra and noted in the USPC’s 28(j) letter, our court lacks jurisdiction to review the denial of a request for a departure under the Guidelines, unless the USPC’s decision not to depart was based on a mistaken belief it lacked the authority to do so. E.g., United States v. Tuma, 738 F.3d 681, 692 (5th Cir. 2013). On the other hand, as also discussed supra, we have jurisdiction to review challenges to sentences for reasonableness, such as a decision not to impose a sentence below the Guidelines range (a downward variance) in the light of the § 3553(a) factors. E.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008).

Prison (Private) Suits:

( Doe v. United States, __ F.3d ___ (5th Cir. July 27, 2016)(15-50331): ICE housed

immigrants pending determination of their status in private CCA prison. Plaintiffs brought sect 1983 and FTCA actions. The plaintiffs filed lawsuits against the United States, Williamson County, CCA, Dunn, and Evelyn Hernandez, the former CCA facility administrator, among others.1 The suits were later consolidated into the present action. The only claims relevant to this appeal are under 42 U.S.C. § 1983 and the Federal Tort Claims Act, 28 U.S.C. § 1346(b), as well as several state law claims.2 In a series of orders in 2013 and 2014, the district court dismissed all of the plaintiffs’ federal claims pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56(a).

Dismissal for failure to state a claim is reviewed de novo. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012); see also FED. R. CIV. P. 12(b)(6). All well-pleaded facts are accepted as true and “view[ed] . . . in the light most favorable to the plaintiff.” Bowlby, 681 F.3d at 219. To survive a Rule 12(b)(6) motion, a complaint must plead sufficient “facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Summary judgment in Dunn’s favor is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See FED. R. CIV. P. 56(a). Our review is de novo. Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005). Section 1983 liability results when a “person” acting “under color of” state law, deprives another of rights “secured by the Constitution” or federal law. 42 U.S.C. § 1983. Federal officials acting under color of federal law are not subject to suit under Section 1983, nor does the statute reach purely private conduct. District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973). Where, as here, the defendants are private actors, the challenged “conduct allegedly causing the deprivation of a federal right” must be “fairly attributable to the State” for Section 1983 to apply. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). The Supreme Court has used at least four tests to determine whether private conduct is “fairly attributable to the State . . . .” See Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005). It is unclear whether these tests “are actually different in operation or [are] simply different ways of characterizing the necessarily fact-bound inquiry . . . .” See Lugar, 457 U.S. at 939. The plaintiffs rely on the “nexus” test, under which the state’s involvement is such that the private actor’s conduct can fairly be treated as that of the state itself.3 See Cornish, 402 F.3d at 550. In essence, the plaintiffs assert that CCA derived its authority to run the detention center from the subcontract with Williamson County, meaning the CCA defendants were acting under color of state law.

Note 3: The other analyses include the “public function,” “state compulsion,” and “joint action” tests. Cornish, 402 F.3d at 549–50. The first “examines whether the private entity performs a function which is ‘exclusively reserved to the State.’” Id. (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 159 (1978)). The plaintiffs, however, argue that the detention center’s function as a holding facility for detainees is irrelevant because it derives its power from the state through the subcontract. As for the “state compulsion” test, the plaintiffs do not contend that the state “exert[ed] coercive power” over the CCA defendants or “provide[d] . . . encouragement” to cause the relevant deprivation. See id. (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 170–71 (1970)). Nor do the plaintiffs assert that the CCA defendants were “jointly engaged . . . in the challenged action” with Williamson County. See Dennis v. Sparks, 449 U.S. 24, 27–28 (1980).

The plaintiffs’ argument relies in part on a case brought by a federal prisoner against a city jail in which he was temporarily housed. See Henderson v. Thrower, 497 F.2d 125 (5th Cir. 1974). There, the district court dismissed the prisoner’s Section 1983 claim, concluding that the city jail was not “acting under color of State law, but [was] providing for the . . . safekeeping of the plaintiff in accordance with [a] Federal Contract . . . .” Id. at 125. We reversed, finding that control over the facility remained with local officials whose power was “conferred on them by the city, a creature of the State of Alabama.” Id. at 126. Similarly, the plaintiffs argue here, the fact that the plaintiffs are federal detainees is irrelevant. Whether state action exists depends “on the nature of the defendant” and not the nature of the plaintiff.

Prisoner Litigation

( Land v. Gage, __ Fed. App’x __ (5th Cir. July 18, 2017)(15-20766):

Although exhaustion is mandatory under the Prison Litigation Reform Act, the Supreme Court held in Jones v. Bock, 549 U.S. 199, 211-13 (2007), that exhaustion is an affirmative defense that must be pleaded by the defendant. Courts may not require that prisoners affirmatively plead or demonstrate exhaustion. Id. at 213-14, 216. A district court may still “dismiss a case prior to service on defendants for failure to state a claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner failed to exhaust.” Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). However, courts may not sidestep Jones by local rule requiring prisoners to plead exhaustion. Id. Here, the court relied on Land’s response to a question on a form complaint, which asked whether he had exhausted all steps of the institutional grievance process. Land replied “No,” and his complaint is otherwise silent as to exhaustion, although he raised various points in his appellate brief in support of an argument that exhaustion was excused. We have held that reliance on information elicited by such a form complaint effectively put the onus on Land to affirmatively plead and demonstrate exhaustion, contrary to Jones and Carbe. See McDonald v. Cain, 426 F. App’x 332, 333-34 (5th Cir. 2011); Torns v. Miss. Dep’t of Corrs., 301 F. App’x 386, 389 (5th Cir. 2008). A prisoner’s civil rights complaint may be dismissed at any time if it fails to state a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). We review de novo the district court’s dismissal of Land’s civil rights complaint for failure to state a claim under § 1915A(b), using the same standard applicable to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).

Before dismissing a pro se litigant’s case for failure to state a claim, a district court ordinarily must give the litigant an opportunity to amend his complaint to remedy the deficiencies, which is primarily done by conducting a hearing under Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), or requesting a more definite statement through a questionnaire. Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). The district court erred by dismissing Land’s pro se complaint without doing so. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). Accordingly, we consider whether Land’s “allegations, if developed by a questionnaire or in a Spears dialog, might have presented a nonfrivolous section 1983 claim.” Eason, 14 F.3d at 9. If, “[w]ith further factual development and specificity” his “allegations may pass . . . muster,” we will remand to give him “an opportunity . . . to offer a more detailed set of factual claims.” Id. at 10. We conclude that had he been given the opportunity to properly develop his claims, Land could have alleged sufficient facts to state a claim of deliberate indifference that was at least plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); cf. Whitley v. Hanna, 726 F.3d 631, 640-41 (5th Cir. 2013); Alexander v. Tippah Cnty., Miss., 351 F.3d 626, 631 (5th Cir. 2003). Specifically, Land contends that jail officials were aware of his harassment by another inmate, against whom Land had offered to testify, and that he suffered both psychological and physical harm as a result, but officials took no steps to move him as requested. Instead, they kept Land in the neighboring cell as “bait” in the hopes of eliciting incriminatory information from the other inmate. Regardless whether Land can ultimately prevail on the merits of his claims, the facts alleged are not “fantastic or delusional,” nor are the legal theories of liability asserted “indisputably without merit.” See Eason, 14 F.3d at 9 n.5 (internal quotation marks and citation omitted).

Accordingly, the district court’s judgment dismissing Land’s complaint for failure to exhaust and failure to state a claim upon which relief could be granted is VACATED, and this case is REMANDED for further proceedings consistent with this opinion. Land’s motion for the appointment of counsel is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

Prosecutor Immunity> Absolute immune.

First, Green’s claims against prosecutors in their official capacities are barred by the Eleventh Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997). We further conclude that Green’s individual capacity claims are barred by absolute prosecutorial immunity. See Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987). Green’s allegations against Reyna, Luce, and Ramsey concern actions that fall within the scope of prosecutorial immunity. See Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994).

--Pachtman v. Imler.

Protective Order—Appeal

( United States v. Daniel Morales, __ F.3d __ (5th Cir. Nov. 30, 2015)(14-5131-4). Former Tx Atty Gen appeals affirmance of protective order on witness against him in his prosecution. Affirmed. Private Counsel and the government both contend that Morales did not timely file his notice of appeal. Whether Morales timely noticed his appeal depends on whether this appeal is criminal or civil in nature. Federal Rule of Appellate Procedure 4(a)(1)(B) provides litigants sixty days to notice an appeal in a civil case involving the United States. Rule 4(b)(1)(A), on the other hand, provides defendants only fourteen days to notice an appeal in a criminal case. The district court entered the order denying Morales’s motion on November 20, 2014. Morales filed his notice of appeal on December 9, 2014 (nineteen days later). If Morales’s appeal is civil, rather than criminal, his notice of appeal was timely under Rule 4(a)(1)(B).2 We have never considered whether Rule 4(a) or 4(b) governs an appeal from an order denying a post-conviction motion to modify a criminal protective order. Although Morales filed his motion to modify the protective order “in the same court and under the same docket number as his earlier criminal proceeding, this does not require that his [motion] be treated as a criminal action.” Miramontez, 995 F.2d at 58; see United States v. Roher, 706 F.2d 725, 727 (5th Cir. 1983). Rule 4(a) applies to civil proceedings, even those arising from earlier criminal cases; the inquiry is whether the proceedings themselves are civil. Indeed, even some appeals arising out of motions under the Federal Rules of Criminal Procedure are civil for Rule 4 purposes. Hunt v. U.S. Dep’t of Justice, 2 F.3d 96, 97 (5th Cir. 1993) (per curiam) (Rule 4(a) applies to Rule 2 The timeliness of a notice of appeal in a criminal case is not jurisdictional and can be waived, United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007), but the government did not waive timeliness. 6 41(e) motions for return of property); Roher, 706 F.2d at 727 (Rule 4(a) applies to Rule 46(f) motions to remit or set aside forfeiture of appearance bond). But we have never set out a clear test for determining whether proceedings other than direct appeals arising out of final judgments in criminal cases are civil or criminal in nature. Instead, we have often reasoned by analogy. See United States v. Truesdale, 211 F.3d 898, 903 (5th Cir. 2000). Where motions have civil analogues, that weighs in favor of the proceedings being civil. See id. at 904 (Rule 4(a) applies to appeals from orders on Hyde Amendment motions, regarding reimbursement of attorney’s fees to defendants in certain criminal cases, because those motions are analogous to motions under Equal Access to Justice Act); United States v. Cooper, 876 F.2d 1192, 1194 (5th Cir. 1989) (per curiam) (Rule 4(a) applies to appeals from orders on petitions for writs of error coram nobis because those petitions are equivalent to § 2255 motions, which are governed by Rule 4(a)), abrogated on other grounds by Smith v. Barry, 502 U.S. 244 (1992); see also Roher, 706 F.2d at 727 (Rule 4(a) applies to appeals from orders denying motions to set aside or remit forfeiture of appearance bond because those motions involve “a plainly civil subject”); Miramontez, 995 F.2d at 58 (Rule 4(a) applies to appeal from order on motion for disclosure of grand jury transcripts where district court construed petition, in part, as FOIA request, a construction that “emphasize[d] the civil aspect” of the proceedings). A motion that “deals directly with the movant’s liberty interest,” on the other hand, is likely to be criminal; such motions implicate the reasons for Rule 4(b)’s shorter time period. Truesdale, 211 F.3d at 903; see, e.g., United States v. Young, 966 F.2d 164, 165 (5th Cir. 1992) (Rule 4(b) applies to Rule 35 motions to correct sentence); cf. Roher, 706 F.2d at 727 (Rule 4(a) applies to Rule 46(f) motions to set aside bond forfeiture because the “reasons for short time periods for criminal appeal do not apply”); Truesdale, 211 F.3d at (Rule 4(a) applies to Hyde Amendment motions in part because they do not implicate movant’s liberty interest). Perhaps the most apt distillation of a rule is found in Hunt, where we suggested that motions that are “not a part of the trial and punishment process that is criminal law” should be treated as civil. 2 F.3d at 97; see also United States v. Holland, 214 F.3d 523, 526 (4th Cir. 2000) (“A proceeding is basically civil if it redresses private injuries; a criminal proceeding, by contrast, establishes guilt and punishes offenders.”). Morales’s motion to modify the protective order has a civil analogue. Protective orders are commonly entered in civil cases, and indeed the district court here analyzed Morales’s motion, in part, under the civil standard for modifying a protective order. Motions to modify protective orders in criminal cases appear to be infrequent; courts have thus drawn from the standard for modification of civil protective orders in deciding them. See, e.g., United States v. Swartz, 945 F. Supp. 2d 216, 219 (D. Mass. 2013). That we may have to look to civil law to resolve Morales’s motion weighs in favor of holding that the motion is civil. Morales, moreover, seeks to modify the protective order because he wants to file a qui tam action, a civil matter. Cf. Roher, 706 F.2d at 727. As in Miramontez (where the movant sought grand jury transcripts to support a habeas petition under § 2241), that Morales’s ultimate goal is a civil action weighs in favor of his motion being civil. 995 F.2d at 58; see United States v. Hamberg, No. 07-1527, 294 F. App’x 251, at *1 (8th Cir. Sept. 30, 2008) (relying on Miramontez and holding that appeal from post-judgment order denying motion to set aside protective order was civil). What is more, Morales’s motion does not deal with his liberty interest. Indeed, not only has Morales’s criminal conviction “long been final,” Miramontez, 995 F.2d at 58, he completed his sentence long ago as well. It is thus difficult to characterize his motion as “part of the trial and punishment process that is criminal law,” Hunt, 2 F.3d at 97; he seeks merely the “disclosure of secret information, not unlike a [FOIA] request,” In re Special Grand Jury 89-2, 450 F.3d 1159, 1168 (10th Cir. 2006). See also Holland, 214 F.3d at 526. And neither Private Counsel nor the government identifies anything implicating the policy reasons why criminal appeals are subject to shorter deadlines. See United States v. Craig, 907 F.2d 653, 656 (7th Cir. 1990) (discussing policy reasons). For all these reasons, we hold that Morales’s appeal is civil, is governed by Rule 4(a), and is thus timely.

Protective Sweep

( United States v. Garcia-Lopez, __ F.3d __ (5th Cir. January 11, 2016)(14-41392):

The scope of a valid “protective sweep” exception to the warrant requirement was the subject of the oft-quoted Supreme Court case, Maryland v. Buie, 494 U.S. 325 (1990). In Buie, the Supreme Court held that officers who are lawfully inside a residence to serve an arrest warrant may conduct a protective sweep with only reasonable suspicion. 494 U.S. at 327. It is not necessary that the officer have probable cause to believe that there might be an assailant hiding on the premises. Id. at 334. The Court noted, “[T]here must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. The Supreme Court, though, before discussing the facts in the case, outlined the restrictive scope of the protective sweep that governed its analysis. The Court stated: “[A] ‘protective sweep’ is a quick and limited search of the premises, incident to an arrest and conducted to protect the safety of police officers and others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id. at 327. Thus, evidence or contraband seen in plain view during a lawful sweep can be seized and used in evidence at trial. United States v. Jackson, 596 F.3d 236, 242 (5th Cir. 2010). This circuit has often re-emphasized Buie in its inquiries as to whether evidence discovered during a protective sweep should be suppressed. See United States v. Gould, 364 F.3d 578 (5th Cir. 2004), abrogated in other part by Kentucky v. King, 563 U.S. 452 (2011); United States v. Mata, 517 F.3d 279 (5th Cir. 2008); United States v. Roberts, 612 F.3d 306 (5th Cir. 2010). Relying on Buie, Garcia-Lopez emphasizes that (1) it is not reasonable that an attack could have been immediately launched from under his mattress; and (2) that the facts do not support a reasonably prudent officer’s belief that anyone lay hidden under his mattress. The government, in contrast, relies on Buie to support its contention that Deputy Gomez had requisite reasonable suspicion to search under the mattress for Yonari and that neither deputy spent more time than necessary to conduct the sweep. We agree.

( United States v. Keefaufer, 74 M.J. ___ (C.A.A.F 2015)( Protective Sweep Exceeded. In Maryland v. Buie, 494 U.S. 325, 334 (1990). the Supreme Court created an exception to the Fourth Amendment for a “protective sweep,” which is “a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others.” 494 U.S. at 327. Buie acknowledged two types of protective sweeps. In the first type of sweep, which may be conducted “as a precautionary matter and without probable cause or reasonable suspicion,” agents may search only “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” during or after an arrest. Id. at 334. The second, more extensive Buie exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where “articulable facts . . . taken together with the rational inferences from those facts . . . would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. “[S]uch a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.” Id. at 335. Buie analyzed the constitutional permissibility of a protective sweep in the context of arrest only, reasoning that in-home arrests create special dangers by placing agents on an “adversary’s ‘turf’” and exposing them to the unique threat of “[a]n ambush in a confined setting of unknown configuration.” Id. at 333. The Court noted, “[a] protective sweep . . . occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him.” Id. This Court has not elsewhere addressed the question whether the protective sweep doctrine applies beyond the context of an in-home arrest. Cf. United States v. Khamsouk, 57 M.J. 282, 304 (C.A.A.F. 2002). However, a majority of federal circuit courts have held that agents entering a home lawfully for an objective other than arrest may make a protective sweep so long as the Buie criteria are met. In their view, the same concerns underlying officer safety in the context of an in-home arrest may pertain in equal measure when agents lawfully enter a home for some other purpose. See, e.g., United States v. Starnes, 741 F.3d 804, 810-11 (7th Cir. 2013); United States v. Caraballo, 595 F.3d 1214, 1225 (11th Cir. 2010); United States v. Miller, 430 F.3d 93, 99-100 (2d Cir. 2005); United States v. Martins, 413 F.3d 139, 150 (1st Cir. 2005); Leaf v. Shelnutt, 400 F.3d 1070, 1086-87 (7th Cir. 2005); Gould, 364 F.3d at 584; United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991, 996-97 (D.C. Cir. 1992), abrogated on other grounds by United States v. Webb, 255 F.3d 890 (D.C. Cir. 2001). Only the Tenth Circuit and one panel of the Ninth Circuit have read Buie so narrowly as to limit the protective sweep doctrine to in-home arrests only. See United States v. Davis, 290 F.3d 1239, 1242 n.4 (10th Cir. 2002); United States v. Reid, 226 F.3d 1020, 1027 (9th Cir. 2000). These cases place great interpretive weight on Buie’s focus on in-home arrests, 494 U.S. at 333-36, and its definition of a protective sweep as “incident to an arrest.” Id. at 327. Without question, the minority view is correct that Buie specifically addressed only the facts of that case, surrounding a protective sweep incident to an in-home arrest. This does not, however, preclude application of Buie’s rationale to other circumstances when consonant with, and a consistent extension of, Buie. See Miller, 430 F.3d at 99 (“Buie’s logic therefore applies with equal force when officers are lawfully present in a home for purposes other than the in-home execution of an arrest warrant . . . .”). We agree with the majority of federal circuits that, as with an arrest, executing a search warrant in a home can present the dangers upon which the rationale of Buie was based, as it, too, places agents on the occupant’s “turf,” at a disadvantage, and is an adjunct to a “serious step,” since probable cause to conduct a search for evidence has been established and may result in arrest and prosecution. Buie, 494 U.S. at 333.

( While we thus squarely hold that, under Buie, agents entering a home lawfully may be entitled to make the second, more extensive type of protective sweep to ensure their safety, this extension of Buie to non-arrest situations should not be mistaken for a liberalization of the criteria required before such a sweep is constitutionally permissible. The fact that agents may conduct a protective sweep incident to a lawful entry under Buie so long as the sweep does not last longer “than is necessary to dispel the reasonable suspicion of danger,” id. at 336, does not answer the altogether different question whether any facts supported the belief that there were people other than present in the home in this case and, if so, that they presented a danger to the agents. We conclude that the facts here did not and that, absent such facts, the extensive protective sweep conducted of the entire home was not warranted. The circumstances under which facts warrant an extensive protective sweep are specific. Id. at 327, 334. Buie notes that this broader protective sweep exception applies only “if the searching officer ‘possess[ed] a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]” the officer in believing’ that the area swept harbored an individual posing a danger to the officer or others.”

Preserve Error—Second and Subsequent Ob jections Not Required under R. 103(b)

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

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

Preservation of Error.

( United States v. Neal, 578 F.3d 270 (5th Cir. 2009): Objections were sufficient to preserve the issue. We agree. To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). Here, Neal raised the following complaint in his written objections to the PSR: …. While Neal could certainly have been more clear and more persistent in raising an objection based on the definition of “controlled substance offense,” we conclude that his actions were sufficient to preserve error. For preservation purposes, we have never required a defendant to reiterate an objection simply because the trial court misconstrues or fails to respond to the original. The central inquiry is the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief. See Medina-Anicacio, 325 F.3d at 642:

(“[O]nce a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal.”). Here, it is sufficiently clear that Neal objected to his possession conviction being deemed a “controlled substance offense.” … Neal contends that the district court erroneously calculated his Guidelines range by relying on his mere possession of narcotics to justify the enhancements under U.S.S.G. § 4B1.4(b)(3) & (c)(2). We agree. …United States, 547 U.S. 188, 188 (2006). Here, Neal was found with “undetermined” amounts of illegal drugs in his home. The district court did not make a finding that Neal possessed the drugs

“with intent to manufacture, import, export, distribute, or dispense.” See § 4B1.2(b). Indeed, the government concedes that there is no evidence in the record to support such a finding. Accordingly, Neal did not possess the firearms in connection with a “controlled substance offense,” and application of the enhancements in § 4B1.4(b)(3) & (c)(2) was erroneous.

( United States v. Gonzales, __ F.3d ___, (5th Cir. May 26, 2011)(10-20238). However, where an appellant fails to preserve the issue in the district court, this court’s review is limited to plain error. See United States v. Alvarado-Santilano, 434 F.3d 794,

795 (5th Cir. 2005). The government urges us to apply plain error review because Gonzales’s argument was “made for the first time on appeal.” We disagree. “To preserve

error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Exacting precision is not required. Id. at 272-73. Here, the probation officer calculated Gonzales’s offense level pursuant to § 2B3.1, without mention of § 2X1.1. Gonzales objected to the one-level adjustment for the amount of loss on the ground that only actual loss is counted under § 2B3.1. In other words, Gonzales did not argue explicitly that § 2B3.1 applied, but his argument necessarily required the application of § 2B3.1. At the sentencing hearing, Gonzales reiterated this objection. The government responded, “I would ask the Court to find that 2X1.1 applies and directs us to 2B3.1.” The court then explicitly overruled Gonzales’s objection.

We believe that was sufficient for Gonzales to preserve this issue for de novo review. Even reviewing de novo, however, we find no error in the trial court’s decision to apply § 2X1.1. This circuit has held already in United States v. Villafranca, ….

Presentment Before Magistrate and Suppression of Confession.

United States v. Boche-Perez, __ F.3d __ (5th Cir. June 17, 2014)(12-40141):

Fed. R. Crim. P. 5 requires that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.” Fed. R. Crim. P. 5(a)(l)(A). Rule 5 codifies the common-law rule of “prompt presentment,” which required that an officer take an arrested person before a magistrate “as soon as he reasonably could.” Corley v. United States, 556 U.S. 303, 306 (2009). In McNabb v. United States, 318 U.S. 322 (1943) and Mallory v. United States, 354 U.S. 449 (1957),

the Supreme Court established a remedy for violations of the prompt-presentment requirement: suppression of any confession obtained during a period of unreasonable delay. Corley, 556 U.S. at 309. In 1968, Congress modified the McNabb–Mallory framework by enacting 18 U.S.C. § 3501. Section 3501(c) provides that a court may not suppress a confession made during a six-hour safe-harbor period solely due to a delay in

presentment if the confession was made voluntarily … Section 3501(c) also permits for an extension of the six-hour safe harbor in any case in which the delay in bringing such a person before a magistrate is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest magistrate. Confessions provided outside § 3501(c)’s safe-harbor, however, remain subject to the McNabb-Mallory exclusionary rule. Id.; see also United States v. Cantu-Ramirez, 669 F.3d 619, 625 (5th Cir. 2012). Because this circuit has yet to address the viability of its pre-Corley case law in cases involving presentment delays that fall outside of the safe harbor, we must first address the implications of Corley. … Our inquiry is whether Corley unequivocally overruled our existing precedent concerning McNabb-Mallory. We hold that it did.

Press—Trial Open to Press

( Hearst Newspapers L.L.C. (US. v. Cardenas-Guillen), __ F.3d __ (5th Cir. May 16, 2011)(10-40221): The Chronicle timely appealed. On appeal, the Chronicle challenges (1) the district court’s order of February 24, 2010 (as amended by the March 2, 2010 order), denying as moot the Chronicle’s request to open the sentencing proceeding; (2) the district court’s order of February 24, 2010 (as amended by the March 2, 2010 order), denying as moot the Chronicle’s request for an opportunity to be heard prior to closure; and (3) the district court’s order of February 26, 2010, denying the Chronicle’s request for public notice of all future hearings and an opportunity to be heard if the court intended to close any future proceedings. The district court designated all three orders as final and immediately appealable.

We have appellate jurisdiction over the orders under the collateral order doctrine, which “establishe[s] that certain decisions of the district court are final in effect although they do not dispose of the litigation.” Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 925 (5th Cir. 1996); see also 28 U.S.C. § 1291 (establishing the jurisdiction of the courts of appeal over final decisions of district courts). “Appealable collateral orders include ‘those district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important

questions effectively unreviewable on appeal from final judgment in the underlying action.’” Davis, 78 F.3d at 925 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)). The orders in this case certainly meet those criteria. See id. at 926 (“We have previously held on several occasions that members of the news media, although not parties to litigation, can appeal court closure orders or confidentiality orders under the collateral order doctrine.”).

STANDARD OF REVIEW

On appeal, we are asked to determine whether the press and public

have a First Amendment right of access to sentencing proceedings, and, if so,

whether they are also entitled to receive notice and an opportunity to be

heard prior to closure of sentencing proceedings. “Because this case involves

constitutional and other legal questions, we review the district court’s orders

de novo.” United States v. Brown (In re Times Picayune Publ’g. Corp.), 250

F.3d 907, 913 (5th Cir. 2001). “Specific factual findings of the district court

on the issue are, of course, entitled to review under the clearly erroneous

standard.” Id.

DISCUSSION

As an initial matter, we conclude that this court has jurisdiction over the case, because it falls within the exception to mootness for questions that are capable of repetition, yet evading review. We also conclude that the press and public, including the Chronicle, have a First Amendment right of access to sentencing proceedings. Finally, we conclude that the district court deprived the Chronicle of its First Amendment right of access, without due process, in refusing to give the press and public notice and an opportunity to

be heard before sealing the sentencing proceeding.

A. Mootness

Despite the fact that Cardenas-Guillen’s sentencing proceeding has already occurred, it is undisputed that this appeal is not moot. The issues in this case are not moot because they are “capable of repetition, yet evading review.” Press-Enterprise Co. v. Super. Ct. (Press-Enterprise II), 478 U.S. 1, 6 (1986); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 600 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980); United

States v. Edwards, 823 F.2d 111, 114 (5th Cir. 1987). The issues that arise in this case are capable of repetition because the Chronicle is a prominent newspaper that seeks to cover major cases, and it is reasonable to expect that district courts will close other criminal proceedings to the Chronicle in future cases. See United States v. Criden, 675 F.2d 550, 554 (3d Cir. 1982) (“[I]t is reasonable to expect that [Philadelphia Newspapers, Inc.], a major newspaper publisher in the Philadelphia area, will be subjected to similar closure orders entered by the district courts in this circuit.”). At the same time, these issues often evade review due to the “short duration” of criminal trials. Richmond Newspapers, Inc., 448 U.S. at 563.

B. The Chronicle’s First Amendment right of access to the sentencing proceeding

The first question in this case is whether the press and public, including the Chronicle, have a First Amendment right of access to a sentencing proceeding. We conclude that they do. The Supreme Court has developed a two-part test for determining whether there is a First Amendment right of access to a particular criminal proceeding:

(1) whether the proceeding has historically been open to the public and press; and

(2) “whether public access plays a significant positive role in the functioning of

the particular process in question.” Press-Enterprise II, 478 U.S. at 8-9; see also Press-Enterprise Co. v. Super. Ct. (Press-Enterprise I), 464 U.S. 501, 505-09 (1984).

This test has been referred to as the “experience” and “logic” test.

See Globe Newspaper Co., 457 U.S. at 606 (explaining that “the institutional

value of the open criminal trial is recognized in both logic and experience”);

see also Press-Enterprise II, 478 U.S. at 9 (summarizing the test as

“considerations of experience and logic”).

In applying this test, the Supreme Court has recognized a First

Amendment right of access to various aspects of a criminal prosecution. See

Press-Enterprise II, 478 U.S. at 10 (preliminary hearings as conducted in

California); Press-Enterprise I, 464 U.S. at 505 (jury voir dire); Globe

Newspaper Co., 457 U.S. at 604 (trial); Richmond Newspapers, Inc., 448 U.S.

at 576-77 (trial). The courts of appeals have also recognized a First Amendment right of access to various proceedings within a criminal prosecution. See, e.g., United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989) (proceeding at which guilty plea was taken); United States v. Haller, 837 F.2d 84, 86-87 (2d Cir. 1988) (plea hearings); In re Knight Publ’g Co., 743 F.2d 231, 233 (4th Cir. 1984) (trials); United States v. Klepfer (In re Herald Co.), 734 F.2d 93, 99 (2d Cir. 1984) (pretrial hearing on motion to suppress);

United States v. Chagra, 701 F.2d 354, 363-64 (5th Cir. 1983) (pretrial bond reduction hearing); United States v. Brooklier, 685 F.2d 1162, 1167-71 (9th Cir. 1982) (jury voir dire, pretrial hearing on motion to suppress, and hearing conducted during trial on motion to suppress); Criden, 675 F.2d at 557 (pretrial suppression, due process, and entrapment hearings). But see Edwards, 823 F.2d at 116-17 (First Amendment right of access does not attach to mid-trial questioning of jurors about potential misconduct).

Prior Convictions—Suppressed—are admissible

( United States v. Jefferson, __ F.3d __ (5th Cir. Oct. 6, 2010)(10-10941).

RICO case for bribery and obstruction of justice. District Judge held that defendant’s prior conviction could not be used even for impeachment if defendant took stand. US

appeals (see Appeals by State, same case). Held: Jefferson’s prior convictions for bribery are crimes involving dishonesty. “[B]ribery is a crimen falsi in that it involves dishonesty . . . . Hence, it is automatically admissible [under] FED. R. EVID. 609(a)(2).” United States v. Williams, 642 F.2d 136, 140 (5th Cir. 1981). … Jefferson’s prior convictions for obstruction of justice in violation of 18 U.S.C. § 1512(b)(3) are admissible under Rule 609(a)(2) “if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.” FED R. EVID. 609(a)(2). Because counts 6 and 7 each charge that Jefferson knowingly and corruptly attempted to persuade another to lie to the authorities, we hold that the indictment shows that “the factfinder had to find . . . an act of dishonesty or false statement in order for [Jefferson] to have been convicted.”

… “The admission of prior convictions involving dishonesty and false

statement is not within the discretion of the Court.” FED. R. EVID. 609, advisory

committee’s note to subsection (a). “Such convictions are peculiarly probative of

credibility and, under this rule, are always to be admitted. Thus, judicial

discretion granted with respect to the admissibility of other prior convictions is

not applicable to those involving dishonesty or false statement.” Id.

Prior Panel Decision is Stare Decisis

( A panel of this court may not overrule a prior panel’s decision in the absence of intervening contrary or superseding authority. United States v. Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007).

Prisons—Cross-Sex Prison Monitoring

( Mitchell v. Quarterman, (5th Cir. May 15, 2012)(10-40591)(Smith, Prado, Elrod):

Mitchell’s complaint stems from the Billy Moore Unit’s policy of permitting female guards to monitor male inmates while the inmates shower and use the restroom. Mitchell alleges that allowing female officers to view him nude violates his rights under the First, Fourth, Eighth, and Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

( Although imprisonment necessarily limits a prisoner’s constitutional

rights, the Constitution does not entirely abandon the prisoner at the prison

gate. See Turner v. Safley, 482 U.S. 78, 84 (1987). This Court has recognized

that prisoners have a minimal right to bodily privacy. Oliver v. Scott, 276 F.3d 736, 742, 744-45 (5th Cir. 2002). 744–45. We have also recognized that “prisoners must be accorded ‘reasonable opportunities’ to exercise their religious freedom guaranteed under the First Amendment.” Mumin v. Phelps, 857 F.2d 1055, 1056 (5th Cir. 1988) (citing Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972)). Inside prison walls, of course, the

Constitution may tolerate a regulation restricting a constitutional right that, outside prison walls, would be intolerable. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Still, it is well-settled that a restrictive prison regulation is permissible only if it is “reasonably related to legitimate penological interests,” see Turner, 482 U.S. at 89, and is not “an exaggerated response to those objectives,” see id. at 93. ¶ In Turner v. Safley, the Supreme Court set forth four factors “relevant in determining the reasonableness” of a restrictive prison regulation: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) “whether the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. at 89–90 (internal quotation marks omitted). ¶ This Court has consistently held that there is a reasonable relation between prison cross-sex monitoring policies and the legitimate penological interests of prison safety and equal employment opportunity. See, e.g., Oliver, 276 F.3d at 743–47. Yet, Mitchell has presented no evidence to show that prison safety and equal employment are not legitimate state interests or that they bear no rational connection to the state’s policy of allowing female guards to monitor male prisoners while showering. Nor has he shown, beyond mere allegations, that allowing only male guards to view the prisoners naked would not create “the ripple effect of forcing [TDCJ] to reassign a high percentage of its prison staff.” See Oliver, 276 F3.d at 746. Finally, Mitchell has presented no evidence to show that his proposed alternative—installing parcel doors in the showers to shield prisoners’ mid-sections—would come at only a de minimis cost. See id. Because there is no genuine dispute of material fact, summary judgment as a matter of law was appropriate. III. Mitchell also argues that the cross-sex monitoring policy is cruel and unusual punishment in violation of the Eighth Amendment. “[A]n inmate must satisfy two requirements to demonstrate that a prison official has violated the Eighth Amendment.” Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). First, the deprivation alleged must be sufficiently serious from an objective point of view. Id. That is, the defendant prison official’s act or omission must result in the denial of “the minimal civilized measure of life’s necessities.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Second, the plaintiff prisoner must show that the prison official had a sufficiently culpable state of mind—which, in a prison condition case, is one of deliberate indifference to inmate health or safety. Id. Mitchell has not met either prong. (District Judge properly granted summary judgment.)

Prisoners’ Complaints

( Spears Hearing. The magistrate judge convened a Spears hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996) (“The Spears hearing . . . aims to flesh out the allegations of a prisoner’s complaint to determine whether in forma pauperis status is warranted or whether the complaint, lacking an arguable basis in law or fact, should be dismissed summarily as malicious or frivolous . . . .”).

( By moving to proceed IFP, the prisoner challenges the magistrate judge’s

certification that the appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

( Qualified immunity was not an available defense in this action because

Daugherty asked only for declaratory and injunctive relief. See Mayfield v.

Texas Dept. Of Criminal Justice, 529 F.3d 599, 606 (5th Cir. 2008). … This court reviews de novo a ruling on a request for relief under Rule 60(b)(4). Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998). … Our dismissal of this appeal as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Proffer Agreements.

( Proffer agreements, like plea bargains, are construed under contract-law principles and, as in the case of an ordinary contract, the language of the agreement defines the rights and obligations of the parties. United States v. Melvin, 730 F.3d 29, 37 (1st Cir. 2013). Where that language is subject to conflicting interpretations, it is the intent of the parties in forming the agreement that controls. Affiliated FM Ins. Co. v. Constitution Reinsurance Corp., 416 Mass. 839, 845 (1994). There is, however, a significant caveat – “[u]nlike the normal commercial contract, it is due process that requires that the government adhere to the terms of any immunity agreement it makes.” Id. at 39, quoting United States v. Pelletier, 898 F.2d 297, 302 (2d Cir. 1990) (internal quotations and alterations omitted). As a result, a court’s regard for a defendant’s bargained-for protections is “glossed with a concern that the defendant’s consent to appear at a proffer session should not become a lever that can be used to uproot his right to fundamental fairness under the Due Process Clause.” Id. Moreover, given its overwhelming bargaining advantage, any ambiguity in the agreement is construed against the government. Id. at 37. Put simply, when executing its obligations under a proffer agreement, “the government must turn square corners ….” Id. at 38, quoting Ferrara v. United States, 456 F.3d 278, 280 (1st Cir. 2006).

Profile Evidence. See Drugs.

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

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

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

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

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

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

Property Taking

Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights: Friday, April 24, 2009. From Volkok Conspiracy

Severance v. Patterson, a recent 5th Circuit Takings Clause case, underscores the second-class status of constitutional property rights, that I have often written about in my work.

The case involved a claim by property owner Carol Severance that the state of Texas had taken her land without compensation by requiring her to allow an easement to the public after Hurricane Rita pushed back the waterline in the coastal area where the property is located, in 2005. The state even seeks to compel her to tear down her house in order to make way for the easement. Such an infringement of property rights would almost certainly be a "physical taking" requiring compensation under the Takings Clause of the Fifth Amendment. Texas, for its part, argues that the state had a preexisting right to a "rolling easement" that encompasses any "dry beach" area and moves inland any time a hurricane or other natural disaster causes a shift in the coastline.

The Fifth Circuit, however, did not address the merits of this dispute because they ruled that Severance had failed to first get a ruling on her claim in state court, as required by the Supreme Court's 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank. Williamson requires Takings Clause claims to 1) get a "final decision" from the state administrative body that they intend to displace the owner's rights, and 2) seek and be denied compensation for the loss of their property in state court. As I discuss in this article (pp. 23-24), the first prong of the Williamson test is problematic because it often allows the state to seize property rights without compensation by enabling state officials to delay making a “final” decision until the property owners run out of time and funds. The Severance case, however, illustrates a major flaw in the second prong: claimants who do go to state court might then lose the right to ever have their case reviewed by a federal court, even if the state court rules against them under standards that offer far less protection for property owners' rights than is available under federal case law.

As the Fifth Circuit opinion points out, the Supreme Court's 2005 decision in San Remo Hotel v. City and County of San Francisco holds that if a property rights claimant does take her case to state court, as Williamson requires, her case will be denied any subsequent consideration in federal court because of the Full Faith and Credit Clause. The San Remo Court took this step even though the majority recognized that "“the concern that it is unfair to give preclusive effect to state court proceedings that are not chosen, but are instead required in order to ripen federal takings claims [because of Williamson]." As I discuss in a forthcoming article (pg. 24), this creates a Catch 22 scenario for property owners seeking redress for uncompensated takings: They have to go to state court first in order to meet the Williamson "ripeness" requirement. But if they do and the state court denies their claim, they are then forbidden to go to federal court because the state court judgment has a preclusive effect under San Remo. The Fifth Circuit correctly points out that this Catch 22 applies even if the litigants have little chance of prevailing in state court because the state court in question offers far less protection for federal constitutional property rights than would be available under federal case law. As Judge Edith Jones' opinion explains, Williamson applies unless the state court "unquestionably would afford [the plaintiff] no remedy." There is no other individual constitutional right where the Supreme Court has made it virtually impossible for litigants to assert claims in federal court in this way.

Why does it matter whether a takings case is litigated in state or federal court? Often, it doesn't. Indeed, some state courts offer as much or more protection for property rights as federal courts do. However, as with other constitutional rights, the reverse is also sometimes true. For a variety of reasons, state courts might be more hostile to constitutional rights asserted against their own state governments than federal courts are. After all, many state judges owe their appointment or election to some of the same state political forces as those that seek to violate a constitutional right in a given case. For this reason, among others, the availability of federal court review of constitutional challenges to state government actions has long been considered essential. As Justice Joseph Story explained in the famous 1816 case of Martin v. Hunter's Lessee:

In respect to the powers granted to the United States, [state courts] are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co- ordinate departments of state sovereignty . . .

The constitution has presumed (whether rightly or wrongly we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might some times obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals.

This rule has generally been followed. Individuals who assert virtually any kind of constitutional rights violation are not forced to go to state court and then denied review in federal court should they lose - except in the case of violations of the compensation requirement of the Takings Clause. There is no justification for this double standard.

The Fifth Circuit correctly interpreted the relevant Supreme Court case law. But that doctrine itself reflects an indefensible refusal to treat constitutional property rights claims on par with other individual rights. ( Judge Weiner’s Dissent: Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets.

And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

Maybe I’m mistaken, but this seems a bit troubling. Appellate decisions should be about which side has the better argument, not whether some side is on a “Libertarian crusade,” or whether they are California or Texas residents, or what a law firm’s mission statement might be, or whether the party or the law firm is in the driver’s seat. Starting an opinion with a condemnation of the supposedly carpetbagging Libertarian lawyers, and then saying that this judgment about the lawyers and their plans provides a “framework” for the substantive analysis, doesn’t seem to me to be the right approach.

To be sure, a case’s being part of a broader litigation campaign might have some indirect relevance to a court decision, especially when the law isn’t clear. For instance, say a court is considering some proposed legal principle (e.g., considering whether and when the intentional infliction of emotional distress tort should be available to award damages based on the content of certain newspaper articles), and is evaluating the possible future consequences of the principle. A party’s or law firm’s long-term litigation strategy — e.g., a law firm's clear plans to bring this as a test case aimed at setting precedent for broader restrictions — might provide some useful example cases against which the rule will be tested. If a court knows that case B is coming down the pike, and that case A is just a means for trying to set a precedent supporting a certain result in B, a court might want to consider both cases A and B in figuring out the right rule now in case A.

But even there the identity and plans of a law firm are of extremely limited relevance. After all, if a court is worried about possible future consequences of the decision, those consequences could arise even in cases involving completely different law firms. And that’s true whether or not this firm is part of a “crusade,” or cares only about a particular case; the focus should be on what cases might actually be brought, not on what the law firms’ supposed agenda (or principal place of business) might be. All the more reason, I think, to focus on the parties’ arguments — even if one includes the long-term consequences of the arguments — rather than on who the lawyers are.

Prisoners Released Brown v. Plata, 564 U.S. ___ (U.S. May 23, 2011)(09-1233)

Prosecutorial Misconduct

( For purposes of determining whether there has been prosecutorial misconduct, the Supreme Court has stated that “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). A trial is fundamentally unfair “if

there is a reasonable probability that the verdict might have been different had the trial been properly conducted.” Riddle v. Cockrell , 288 F.3d 713, 720 (5th Cir. 2002).

PSR--PSI

( United States v. MacKay, __ F.3d __ (5th Cir. June 26, 2014)(13-10521):

Mackay argues the PSR is “part of the record,” and that this error is not harmless because the Bureau of Prisons (“BOP”) uses his PSR for classification and designations. The government concedes in its brief that Mackay’s PSR contains a clerical error and that “the BOP records do reflect a conviction for cocaine rather than marijuana,” but

argues the PSR is not a “part of the record” within the meaning of Rule 36, and

that the error is harmless. We reverse. … Mackay’s appeal raises a question of interpretation of Rule 36 that, the parties agree, presents an issue of first impression. Mackay contends that, as a matter of common sense, the district court should have corrected the clerical error in the PSR under Rule 36 because the PSR is a “part of the record.” … there is no conflict between Rule 32’s time limit to raise substantive objections to material information and Rule 36’s provision that clerical errors may be raised “at any time.” The relationship between Rules 32 and 36 of the criminal rules is similar in this regard to that between Federal Rules of Civil Procedure 59(e) or 60(b), which impose time limits, and Federal Rule of Civil Procedure 60(a), which allows a motion at any time. See 11 Charles A. Wright & Arthur R. Miller et al., Federal Practice and Procedure § 2854 (3d ed. 2013) (“Errors of a more substantial nature are to be corrected by a motion under [Federal] Rules [of Civil Procedure] 59(e) or 60(b)”; whereas, “[Federal Rule of Civil Procedure 60](a) deals solely with the correction of

errors that properly may be described as clerical or as arising from oversight or omission.”). Because Rule 32 and Rule 36 address two separate categories of errors, they do not conflict. Thus, Rule 32 does not bear on our interpretation of Rule 36.

We note that our conclusion is consistent with persuasive authority. In

United States v. Knockum, 881 F.2d 730 (9th Cir. 1989). … we conclude the PSR is a “part of the record” within the meaning of Rule 36. Further, we conclude this error is not harmless because it affects Mackay’s substantial rights.

( Appellant preserved error in the PSR by filing objections with the Probation Officer concerning this enhancement. United States v. Cherry, 50 F.3d 338, 342 n.8 (5th Cir. 1995).

( With respect to the factual determination of the amount of loss attributed to defendant’s offense, the district court is entitled to rely upon the information in

the PSR as long as the information bears some indicia of reliability. See United

States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992). The defendant bears the burden of presenting rebuttal evidence to demonstrate that the information in the PSR is inaccurate or materially untrue. United States v. Washington, 480 F.3d 309, 320 (5th Cir. 2007). “Mere objections do not suffice as competent rebuttal evidence.” United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). “Furthermore, if no relevant affidavits or other evidence is submitted to rebut the information contained in the PSR, the court is free to adopt its findings without further inquiry or explanation.” United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). In this case, defendant not only failed to rebut the contents of the PSR, he made no objection to the portions of the PSR calculating the amount of loss attributable to his offense of conviction, and this failure to object was noted by the district court. Leeds asserts on appeal that he was not given sufficient time to review the PSR in accordance with FED. R. CRIM. P. 32(e)(2) and that he did not waive this requirement. This assertion is false. Leeds waived all notice time periods and response opportunities in open court. Further, Leeds’s failure to make a timely objection to this factual finding forfeited his claim of error. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006); United States v. Olano, 507 U.S. 725, 733 (1993). Forfeited errors are redressable only if there is reversible plain error. Olano, 507 U.S. at 733. As a question of fact that was capable of resolution by the district court upon proper objection, this issue cannot constitute plain error. See United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).

( See also Restitution.

( “[R]eliance on a defendant’s admission of facts that are contained in the PSR is permissible.” United States v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009). The district court did not plainly err in relying on Soto-Hernandez’s admission that he was deported on December 15, 2003 in applying U.S. Sentencing Guidelines Manual (U.S.S.G.)

§ 2L1.2(b)(1)(a)(ii).

( Errors in PSR-PSI: The defendant bears the burden of presenting rebuttal evidence to demonstrate that the information in the PSR is inaccurate or materially untrue. United States v. Washington, 480 F.3d 309, 320 (5th Cir. 2007). “Mere objections do not suffice as competent rebuttal evidence.” United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). “Furthermore, if no relevant affidavits or other evidence is submitted to rebut the information contained in the PSR, the court is free to adopt its findings without further inquiry or explanation.” United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).

( PSI Not A Jencks Act Statement. United States v. Jackson, 978 F.2d 903, 909 (5th Cir. 1992).

Psychiatric Testimony Excluded when Mental Responsibility Not Involved—Diminished capacity

( From United States v. Herbst, (5th Cir. Feb. 13, 2012)(11-50165):

Herbst sought to introduce testimony of his low borderline intelligence through the expert testimony of a clinical psychologist. Because we find that the district court did not, however, abuse its discretion in excluding such testimony, we AFFIRM.

( Herbst sought to offer the testimony of clinical psychologist James

Schutte, Ph.D., as an expert to establish that Herbst had borderline intelligence and was therefore more prone to manipulation by others than the average individual. Herbst advised the district court that Schutte’s testimony would assist the trier of fact because his testimony was relevant to the issue of whether or not Herbst had knowledge that drugs were secreted in the van. Herbst did not purport to raise an insanity defense. The district court held a pretrial hearing to consider the Government’s motion to exclude Schutte’s testimony. … Schutte stated that the key indication of Herbst’s borderline intelligence was the determination that Herbst has an intelligence quotient (IQ) of 72, two points above the cutoff for mental retardation. When asked if Herbst’s low IQ would be apparent to a layperson, Schutte stated that it was his opinion that it would not be.

( The district court granted the Government’s motion to exclude Schutte’s

testimony. In doing so, the district court stated that it failed “to understand how the testimony with respect to the Defendant’s mental state ha[d] a bearing upon whether or not the Defendant formed the opinion to knowingly or intentionally participate.” The court further stated that, if Herbst were to testify at trial, the jury had the ability to listen to and appreciate “the quality of the testimony and the demeanor,” and could “form the impressions about whether or not [Herbst wa]s responding directly to questions, whether one [wa]s distracted, whether [Herbst wa]s capable of telling the truth or telling a lie.” It also concluded that Schutte’s proposed testimony “does not assist the jury in making the determinations it’s called to make,” and that “it confuses the jury and distracts the jury, to provide information that is not relevant to the elements that have

to be weighed and considered by the jury.

( We review evidentiary rulings for abuse of discretion, subject to harmless

error review.

(Footnote: Herbst argues that the exclusion of Schutte’s testimony violated his Sixth Amendment right to a fair trial and therefore should be reviewed de novo by this court. This is incorrect. See United States v. Scheffer, 523 U.S. 303, 308 (1998) (“[R]ules excluding evidence from criminal trials . . . do not abridge an accused’s right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve.” (internal quotation marks omitted)); United States v. Najera-Jimenez, 593 F.3d 391, 402 (5th Cir. 2010) (“The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” (internal quotation

marks omitted)).

United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011); see also United States v. Seale, 600 F.3d 473, 490 (5th Cir. 2010) (exclusion of expert testimony reviewed for abuse of discretion); United States v. Valencia, 600 F.3d 389, 417–18 (5th Cir. 2010) (exclusion of evidence as hearsay reviewed for abuse of discretion). “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.” Jackson, 636 F.3d at 692 (internal quotation marks omitted).

( We have previously recognized that “numerous other circuits” (See Note below) have found that so-called “diminished capacity evidence is admissible to defeat the mental state requirement of a specific intent crime.” United States v. Eff, 524 F.3d 712, 720 n.11 (5th Cir. 2008) (internal quotation marks omitted). This case does not, however, require us to weigh in on that question because even assuming that diminished-capacity evidence is admissible, Herbst cannot show that the district court abused its discretion in excluding Schutte’s testimony.

(Footnote: See, e.g., United States v. Dupre, 462 F.3d 131, 137 n.8 (2d Cir. 2006); United States v. Brown, 326 F.3d 1143, 1147 (10th Cir. 2003); United States v. Worrell, 313 F.3d 867, 874 (4th Cir. 2002); United States v. Schneider, 111 F.3d 197, 201 (1st Cir. 1997); United States v. Childress, 58 F.3d 693, 728 (D.C. Cir. 1995); United States v. Cameron, 907 F.2d 1051, 1060 (11th Cir. 1990); United States v. Twine, 853 F.2d 676, 678–79 (9th Cir. 1988); United States v. Pohlot, 827 F.2d 889, 897 (3d Cir.1987).

Public Authority Defense (e.g.Acting as Cop)

( United States v. Sariles, __ F.3d ___ (5th Cir. June 23, revised July 15, 2011)(10-50577):

the public authority defense requires a law enforcement officer who engages a defendant in covert activity to possess actual, rather than only apparent, authority to authorize the defendant’s conduct. … Many of our sister circuits have considered this question, however. The Third Circuit has summarized well the history of the public authority defense, which has its roots in the common law. See United States v. Pitt, 193 F.3d 751,

756 (3d Cir. 1999). At common law, the illegal actions of a public official or law

enforcement officer acting within the scope of his duties were not crimes. Id.; see also United States v. Fulcher, 250 F.3d 244, 254 n.4 (4th Cir. 2001). Thus, in order for the defendant to invoke the defense the official or officer had to have the actual authority to engage in the conduct at issue. Pitt, 193 F.3d at 756. Consistent with this rule, a defendant who claims he was acting on behalf of a law enforcement officer may escape culpability only because that officer had the ability to permit the conduct. A defendant may claim that he made a good faith mistake about the scope of the officer’s authority because it appeared to him that the officer was sufficiently able to permit his conduct. Our sister circuits hold that reliance on apparent authority alone is a mistake of law, which generally cannot excuse a criminal act. See Fulcher, 250 F.3d at 253 (holding that acting on an officer’s apparent authority is a mistake of law because it is a mistake

about “‘the legal prerogatives attached’” to the officer’s status and is not a defense); United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994) (“[R]eliance on the apparent authority of a government official is not a defense in this circuit, because it is deemed a mistake of law, which generally does not excuse criminal conduct.”); United States v. Duggan, 743 F.2d 59, 83 (2d Cir. 1984) (“The mistake that defendants advance here as an excuse for their criminal activities—their reliance on Hanratty’s purported authority—is an error based upon a mistaken view of legal requirements and therefore constitutes a mistake of law.”), superseded by statute on other grounds as recognized by United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010). The

majority of circuits to opine on the issue, therefore, hold that the defense of public authority requires the defendant reasonably to rely on the actual, as opposed to apparent, authority of a government official to engage him in covert activity. See Fulcher, 250 F.3d at 254; Pitt, 193 F.3d at 758; Baptista-Rodriguez, 17 F.3d at 1368 n.18.

Public Trial

( The Sixth Amendment guarantees a public trial to all criminal defendants. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). A defendant may waive his Sixth Amendment right to a public trial by failing to object to the closing of the courtroom. Peretz v. United States, 501 U.S. 923, 936 (1991); United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006) (“Where a defendant, with knowledge of the closure of the courtroom, fails to object, that defendant waives his right to a public trial.”).

( United States v. Cervantes, __ F.3d 157 (5th Cir. Jan. 30, 2013)(11-41385):

Judge allegedly erred in limiting the number of Appellants’ relatives present for voir dire. Criminal defendants are guaranteed a public trial by the Sixth Amendment. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). The right to a public trial helps ensure, inter alia, the fairness of the proceedings. Id. (citing Waller v. Georgia, 467 U.S. 39, 46 (1984)). However, the right is not absolute. Id. (citing Waller, 467 U.S. at 45). Whereas the Supreme Court has enumerated a four-part test for determining whether closed proceedings are warranted, the requisite analysis varies when, as here, the challenged closure was partial rather than complete. Id. (citing Aaron v. Capps, 507 F.2d 685, 688 (5th Cir. 1975)). When a criminal proceeding is only partially closed, the court must “look to the particular circumstances of the case to see if the defendant will still receive the safeguards of the public trial guarantee.” Osborne, 68 F.3d at 98. This is because “the partial closing of court proceedings does not raise the same constitutional concerns as a total closure because an audience remains to ensure the fairness of the proceedings.” Id. Partial closure of a courtroom during a criminal proceeding is a constitutional question reviewed de novo, and the Court will affirm so long as the lower court had a “substantial reason” for partially closing a proceeding. Id. at 98–99.

( Note 4: Additionally, Cervates cursorily claims his Sixth Amendment right to a public trial was violated when two of his relatives were removed from the courtroom during trial after their child fell asleep multiple times. This argument completely lacks merit, however, since Cervantes offers no meaningful argumentation on point and only superficially cites Presley v. Georgia, 558 U.S. 209 (2010), an inapposite case concerning the complete closure of proceedings from the public.

Qualified Immunity for Arresting officers

Allen v. McClelland, __ F.3d __ (5th Cir. March 9, 2016)(15-20264):

STANDARD OF REVIEW: An order denying summary judgment on qualified immunity “is a collateral order subject to immediate appeal.” Brauner v. Coody, 793 F.3d 493, 497 (5th Cir. 2015). However, “[t]his court has jurisdiction over such an order only ‘to the extent that the district court’s order turns on an issue of law.’” Gibson v. Kilpatrick, 773 F.3d 661, 666 (5th Cir. 2014) (quoting Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010)). Accordingly, we lack jurisdiction to review the genuineness of a fact issue but have jurisdiction insofar as the interlocutory appeal “challenges the materiality of [the] factual issues.” Bazan ex rel. Bazan v. Hidalgo Cty., 246 F.3d 481, 490 (5th Cir. 2001). We review de novo the district court’s conclusions regarding the materiality of the facts, Gibson, 773 F.3d at 666, “consider[ing] only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment,” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc). “Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts as true.” Id.

III. DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). A plaintiff can overcome a qualified immunity defense by showing “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Allen contends that Officer Montelongo and Sergeant Cisneros unlawfully seized him in retaliation for exercising his freedom of speech, in violation of the First and Fourth Amendments. However, because the genuine disputes identified by the district court are not material and Allen has failed to show that either officer violated his constitutional rights, Defendants are entitled to qualified immunity. “[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). However, a retaliation claim is only applicable “when nonretaliatory grounds are in fact insufficient to provoke the adverse consequences.” Id. As a result, even where a citizen believes that he has been subject to a retaliatory detention or arrest, if there was reasonable suspicion or probable cause for an officer to seize the citizen, “the objectives of law enforcement take primacy over the citizen’s right to avoid retaliation.” Keenan v. Tejeda, 290 F.3d 252, 261–62 (5th Cir. 2002); see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’” (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012))). Under the Fourth Amendment, “[p]olice officers may briefly detain individuals on the street, even though there is no probable cause to arrest them, if they have a reasonable suspicion that criminal activity is afoot.” United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994). Reasonable suspicion exists if there are “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [a detention].” Terry v. Ohio, 392 U.S. 1, 21 (1968). However, determining reasonableness is an objective inquiry where “[w]e ask whether ‘the circumstances, viewed objectively, justify [the challenged] action.’” Ashcroft, Case: 15-20264 Document: 00513412219 Page: 7 Date Filed: 03/09/2016 No. 15-20264 8 131 S. Ct. at 2080 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). Accordingly, “[t]he Fourth Amendment requires only some minimum level of objective justification for the officers’ actions—but more than a hunch— measured in light of the totality of the circumstances,” Michelletti, 13 F.3d at 840, considering the facts available to the officer at the time of the detention, Davila v. United States, 713 F.3d 248, 258 (5th Cir. 2013).

Qualified Immunity—Other

( Anderson v. Valdez, __ F.3d ___ (5th Cir. January 10, 2017)(13 COA briefing attorney

sues its CJ for retaliation in 1983 action):

--Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401, 406 (5th Cir. 2007) (“Denial of . . . qualified immunity grounds typically falls within the collateral order doctrine, an exception to the final judgment rule.”).

--Valdez suggests that Anderson’s claim is subject to a heightened pleading standard because Valdez’s Rule 12(b)(6) motion to dismiss asserts a defense of qualified immunity. But, as Anderson correctly notes, Valdez misconstrues this court’s precedent in Shultea v. Wood. 47 F.3d 1427 (5th Cir. 1995). We explained in Shultea that when, as here, a qualified immunity defense is asserted in an answer or motion to dismiss, “the district court must”—as always—do no more than determine whether the plaintiff has “file[d] a short and plain statement of his complaint, a statement that rests on more than conclusions alone.”13 In so doing, we expressly required the district court to apply “Rule 8(a)(2)’s ‘short and plain’ standard” to the complaint.14 After applying this general pleading standard to the complaint, “the court may [then], in its discretion, insist that a plaintiff file a reply tailored to [the defendant’s] answer [or motion to dismiss] pleading the defense of qualified immunity.

--In applying that general pleading standard, we consider whether Anderson has, in fact, stated such a claim. “To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.”1

Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007).

--Adverse employment action: [a]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (quoting Pierce v. Tex. Dep’t of Criminal Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994)).

--In Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the Supreme Court noted that “[t]he problem in any case is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the [public employer], as an employer, in promoting the efficiency of the public services it performs through its employees.” Before balancing those interests, however, it is necessary to engage in a threshold inquiry regarding whether the public employee spoke as a citizen at all. This question is resolved with reference to Garcetti v. Ceballos, 547 U.S. 410, 419 (2006), in which the Supreme Court adjured that, “when public employees [speak] pursuant to their official duties, [they] are not speaking as citizens . . . .” [Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692–93 (5th Cir. 2007) (“Pickering, however, is now inapposite. The Supreme Court’s recent pronouncement in Garcetti v. Ceballos added a threshold layer to the Pickering balancing test. Under Garcetti, we must shift our focus from the content of the speech to the role the speaker occupied when he said it.” ] Such “[j]ob-required speech is not protected,” even when it irrefutably addresses a matter of public concern. Garcetti begins by recognizing that “public employees do not surrender all their First Amendment rights by reason of their employment.” Garcetti at 117.

Qui Tam

( U.S. ex rel Barbalola v. Sharma, 746 F.3d ___ (5th Cir. Jan. 14, 2014)(13-20182):

The two relators filed the instant suit against their former employers, alleging that the

defendants had defrauded the Government by filing tens of millions of dollars

in fraudulent Medicare and Medicaid claims. Prior to the filing of this qui tam suit, the Government had criminally prosecuted the instant defendants for fraud and obtained a multi-million dollar award of restitution. The sole issue on appeal is a question of first impression in the Fifth Circuit. The question is whether the district court properly held that, because there was no qui tam complaint in existence at the time the Government pursued criminal charges against the defendants, the criminal proceeding did not constitute an “alternate remedy” under 31 U.S.C. § 3730(c)(5), and thus, the relators had no right to share in that recovery. We agree with the district court and hold that

because there was no qui tam action pending at the commencement of the restitution proceeding, the restitution proceeding does not constitute an alternate remedy under the statute. We therefore affirm the partial summary judgment and remand for further proceedings.

( After the district court issued its order, and while the Sharmas’ direct criminal appeal was pending, the two international medical graduates who reported the fraud, Samuel Babalola and Kayode Samuel Adetunmbi, filed a qui tam action under both the False Claims Act (FCA) and the Texas False Claims Act, to recover a share of the forfeiture in the Sharmas’ criminal action. The district court, interpreting the FCA, granted the government’s motion for partial summary judgment, concluding that the FCA requires filing the qui tam complaint at or before the time of the restitution order in the related criminal case. United States ex rel. Babalola v. Sharma, No. H-11-4026, 2013 WL 431821, at *3 (S.D. Tex. Feb. 1, 2013). Because the two graduates filed their FCA action after the district court issued its order, they could not share in the restitution. We affirmed. United States ex rel. Babalola v. Sharma, 746 F.3d 157, 163 (5th Cir.), cert. denied, 134 S. Ct. 2856 (2014).

Qualified Immunity—Strip Search in Field

( Hamilton v. Kindred, __ F.3d __ (5th Cir. Jan. 12, 2017)(16-40611):

(Kindred argues that excessive force does not apply to the facts of this case because “[e]xcessive force is a seizure, not a search.” This argument is meritless. The Plaintiffs were clearly seized when they were placed in handcuffs and escorted to the patrol cars. Furthermore, excessive force applies because Hamilton and Randle have alleged that they were subjected to a use of force—the insertion of Bui’s fingers into their vaginas and anuses—during the course of an investigatory stop. The Supreme Court has recognized that excessive force is unconstitutional during such a seizure. Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that the Fourth Amendment protects against the use of excessive force during an “arrest, investigatory stop, or other ‘seizure’ of [the] person”). Likewise, “Fifth Circuit precedent [has] plainly established [that] . . . [a] strip or body cavity search raises serious Fourth Amendment concerns.” Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 409 (5th Cir. 2002). See also Martin, No. SA- 05-CA-0020, 2006 WL 2062283, at *5 (W.D. Tex. 2006) (cataloguing case law and finding no reasonable officer would have found a roadside body cavity search reasonable even if they “reasonably suspected that Plaintiff was concealing contraband in a body cavity” if “there were no exigent circumstances requiring the search to be conducted on the public roadside rather than at a medical facility”). Plaintiffs have alleged facts showing they were subjected to an unreasonable use of force excessive to its need. Therefore, the district court did not err in determining that excessive force was a viable theory in this case.

( Bystander Cop Liability: Kindred argues that the district court erred in denying summary judgment because even if bystander liability applied in this case, there is no genuine issue of material fact as to the elements of bystander liability. In Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013), this Court stated that “an officer may be liable under § 1983 under a theory of bystander liability where the officer ‘(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Id. at 646 (quoting Randall v. Prince George’s Cty., 302 F.3d 188, 204 (4th Cir. 2002)). At the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and had a reasonable opportunity to prevent the harm. See Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995). And “[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Roe, 299 F.3d at 409 (quoting Hope v. Paltzer, 536 U.S. 730, 741 (2002)).

Record

( An indigent defendant has no constitutional right to acquire a free copy of his transcript or other court records for use in a collateral proceeding. See

United States v. MacCollom, 426 U.S. 317, 325-26 (1976). When Ramos-Barrera

filed his motion for court documents in the district court, he did not have a

§ 2255 motion pending before the district court. Accordingly, he is not entitled

to receive the documents in question. See 28 U.S.C. § 2250; Walker v. United

States, 424 F.2d 278, 278-79 (5th Cir. 1970).

Recordings.

( Use of wiretap evidence without an opportunity to cross-examine the speakers on the recording do not violated his confrontation rights. Such a claim is meritless because these recording were not testimonial and thus not within the Confrontation Clause’s protections. United States v. Hinojosa, (5th Cir. Mar. 6, 2012)(11-40039); United States v. King, 541 F.3d 1143, 1146 (5th Cir. 2008); United States v. Davis, 270 F. App’x 236, 247 n.9 (4th Cir. 2008).

Recusal

( See also criminal contempt.

( 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the United States 4

shall disqualify himself in any proceeding in which his impartiality might reasonably be

questioned.”).

( The federal statute governing judicial disqualification provides that disqualification

is necessary “in any proceeding in which [the judge’s] impartiality might

reasonably be questioned.” See Kinnear-Weed Corp. v. Humble Oil & Ref. Co., 441 F.2d 631, 634 (5th Cir. 1971) (holding that a trial judge did not abuse his discretion by failing to recuse himself under § 455 and noting that the judge “considered the matter of his possible disqualification and properly concluded that it was his duty and his obligation to continue to preside in this case”).

( United States v. CBS, Inc., 497 F.2d 107, 109 (5th Cir. 1974) (holding that a contempt trial had to be conducted before a different judge and stating that this was “especially [so] in view of the fact that no exigent circumstances militate otherwise”).

( The standard for disqualification is “whether a reasonable person, with full knowledge of all the circumstances, would harbor doubts about the judge’s impartiality.” Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir. 1999) (quoting Vieux Carre Prop. Owners, Residents, and Assocs., Inc. v. Brown, 948 F.2d 1436, 1448 (5th Cir. 1991) (internal quotation marks omitted)).Thus, actual bias is not required. However, as the Supreme Court has explained:

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism

as to make fair judgment impossible. Liteky v. United States, 510 U.S. 540, 555 (1994).

Red Light Traffic Infractions Captured by Camera

( Upheld in civil rights suit. Bevis v. City of New Orleans, __F.3d __ (5th Cir.

July 17, 2011)(11-30711). The features of the Ordinance’s adjudicatory scheme raised in this appeal fall comfortably within the “great leeway” given to governments in “protect[ing] public health and safety.” See Mackey, 443 U.S. at 17, 99 S. Ct. at 2620.

Refreshed Recollection under Fed. R. Evid. 612

( From United States v. Carey, 2009 WL 4066672, 189 F.3d 187 (5th Cir. Nov. 25, 2009)(08-60961):

( Under Fed. R. Evid. 612, a witness may use a writing to refresh his or her recollection only if (1) the witness requires refreshment, and (2) the writing actually refreshes the witness’s memory. See United States v. Horton, 526 F.2d 884, 888–89 (5th Cir. 1976); Thompson v. United States, 342 F.2d 137, 139 (5th Cir. 1965). A witness

may not, under the guise of Rule 612, testify directly from a writing. See Horton,

526 F.2d at 888–89; Thompson, 342 F.2d at 139. Early in DJ’s testimony, her inability to answer a question—“Do you remember what happened with you and Michael the first time he touched you?”—prompted the government to show DJ an “officer’s recollection of the interview with the witness [DJ]” that DJ had reviewed. Carey argues that the resulting testimony violated Rule 612 because the report did not actually refresh DJ’s memory. The government argues that the police report did refresh DJ’s memory, and that no part of the record indicates impermissible reliance.

( We review the district court’s decision to admit DJ’s testimony over Carey’s objection for an abuse of discretion. On appeal, Carey claims that DJ impermissibly relied on the report throughout much of her testimony, but because he only objected to one instance at trial, we apply abuse-of-discretion review to that instance alone. See, e.g., United States v. Setser, 568 F.3d 482, 493 (5th Cir. 2009). . Carey raised the failure-to-actually-refresh argument only once. When the prosecutor first presented the report to DJ, Carey objected by arguing that “[t]here is no indication that she [DJ] ever adopted that as her statement.” This did not suffice to preserve the failure-to-actually-refresh argument because Carey’s attorney did not raise the argument as the objection’s specific ground, and because that basis for an objection does not appear from the context. See Fed. R. Evid. 103(a)(1); United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998) (“A loosely formulated and imprecise objection will not preserve error.”). The only sufficient objection came later, when Carey’s attorney objected by arguing that “[h]e is reading or allowing her to read Tammy Hutchison’s statement and then asking leading questions from that.”

( Carey’s Rule 612 challenge fails for two reasons. Initially, Carey’s

proposed proof-of-refreshment requirement—that a witness relying upon a Rule

612 writing must explicitly declare that the writing has, in fact, refreshed the

witness’s memory of the subject—does not exist in this circuit, for we rejected it

long ago. United States v. Thompson, 342 F.2d 137, 139-40 (5th Cir. 1965). After the defendant in Thomspon argued that “there was no showing that . . . the typewritten statement actually refreshed his [the witness’s] recollection,” we announced principles that apply directly to this case:

[W]here there was an absence of the customary formalistic wording

to show inability to recollect without aid and the refreshing effect of

the writing, the context of the specific queries, the witness’ spoken

reaction and the trial judge’s opportunity to observe the witness’

demeanor, leave no occasion to find reversible error in his rulings on

these objections. Id. (emphasis added).

( Carey also argues that the district court erred because it allowed DJ to rely upon a document that DJ did not author, and that contained factual errors. But contrary to Carey’s argument, the admissibility of testimony accompanied by a Rule 612 refreshment does not depend upon the source of the writing, the identity of the writing’s author, or the truth of the writing’s contents, for “[i]t is hornbook law that any writing may be used to refresh the recollection of a witness.” Esperti, 406 F.2d at 150; accord Thompson, 342 F.2d at 139–40; see 4 Jack V. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 612.03[3][b] (Joseph M. McLaughlin ed. 2009); 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6184 (1993 & Supp. 2009).

Relevant Conduct

( United States v. Alfred, (5th Cir. Oct. 3, 2014)(14-30270):

The state offense could properly be treated as criminal history if the

criminal conduct was “not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1);

see also § 4A1.1(a), (d), & comment. (n.4). The critical inquiry is whether the

prior conduct is “relevant conduct” as defined by § 1B1.3 of the Guidelines.

United States v. Yerena-Magana, 478 F.3d 683, 687 88 (5th Cir. 2007); see

United States v. Thomas, 973 F.2d 1152, 1158 (5th Cir. 1992). Relevant

conduct includes conduct that was “part of the same course of conduct or

common scheme or plan as the offense of conviction.” § 1B1.3(a)(2); see United

States v. Benns, 740 F.3d 370, 373 (5th Cir. 2014).

We review the district court’s factual finding of relevant conduct for clear

error. See United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999). “A factual

finding is not clearly erroneous as long as it is plausible in light of the record

as a whole.” United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009) (internal

quotation marks and citation omitted).

Although Alfred’s state offense occurred within the alleged dates of the

federal conspiracy, the state offense was not relevant conduct because it

occurred prior to Alfred’s actual participation in the federal conspiracy. See

§ 1B1.3, comment. (n.2(B)) (“A defendant’s relevant conduct does not include

the conduct of members of a conspiracy prior to the defendant’s joining the

conspiracy, even if the defendant knows of that conduct.”). In addition, the

state offense involved an accomplice who was not part of the federal conspiracy,

and the state offense involved crack cocaine while Alfred’s federal sentence was

based only on powder cocaine. The district court’s finding that the state offense

was not part of the federal offense was at least plausible and thus not clearly

erroneous. See Rhine, 583 F.3d at 885; Wall, 180 F.3d at 644-45.

( Only conduct that is criminal may be used as “relevant conduct” to determine a defendant’s offense level. United States v. Peterson, 101 F.3d 375, 385 (5th Cir. 1996)

( United States v. Jones, (5th Cir. May 10, 2013)(12-10599 ): “In fashioning a sentence, a court may consider, as ‘relevant conduct,’ acts in addition to those underlying the offense of conviction.” United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011). “[I]n the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy),” a defendant’s relevant conduct includes “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Hammond, 201 F.3d 346, 351 (5th Cir. 1999). “[T]he scope of the criminal activity jointly undertaken by the defendant . . . is not necessarily the same as the scope of the

entire conspiracy, and hence relevant conduct is not necessarily the same for every participant.” U.S.S.G. § 1B1.3 cmt. n.2.

A sentencing court therefore “must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake.” Id. Then, to hold a defendant accountable for the number of victims affected by third parties, the court must make findings establishing that: (1) the defendant agreed to undertake criminal activities jointly with the third parties, (2) the victims were affected by the third parties within the scope of that agreement, and (3) the third parties’ misconduct was reasonably foreseeable to the defendant. Cf. Hammond, 201 F.3d at 351. “These findings need not be expressly made, but the meaning of the court’s findings must be clear.” Id. We review for clear error a court’s determination of what constitutes relevant conduct. United States v. Mann, 493 F.3d 484, 497 (5th Cir. 2007). … As the Guidelines

commentary makes clear, a defendant’s relevant conduct only includes the

conduct of others that is “in furtherance of the jointly undertaken criminal

activity,” and is “reasonably foreseeable in connection with that criminal

activity.” U.S.S.G. § 1B1.3 cmt. n.2.

Here, the district court did not state whether Jones knew or reasonably

could have foreseen that the check-cashing scheme involved mail theft. Nor, by

extension, did it enter findings explaining what evidence would support such a

conclusion. As best we can discern, the district court simply inferred that,

because Jones participated in a scheme to use fake identification cards to cash

fraudulent checks, she reasonably should have foreseen that the personal

information contained in those items might be derived from mail stolen from

USPS collection boxes.

To be sure, the Guidelines commentary certainly encourages a court

analyzing reasonable foreseeability to consider the nature of the offense. See

U.S.S.G. § 1B1.3 cmt. n.2(b)(1); see also United States v. Mergerson, 4 F.3d 337,

350 (5th Cir. 1993) (“Ordinarily, one co-conspirator’s use of a firearm will be

foreseeable because firearms are ‘tools of the trade’ in drug conspiracies.”).

Nevertheless, it simply cannot categorically be said—as the government

implies—that all, or even most, fraudulently obtained personal information is

acquired by stealing mail from collection boxes. To the contrary, experience has

shown that the means by which personal information might be obtained for

fraudulent purposes are limited only by the imaginations of those intent on

obtaining it. See, e.g., United States v. Simmons, 420 F. App’x 414, 419 (5th Cir.

2011) (per curiam) (unpublished) (personal information purchased by

businessperson from her clients and the homeless); United States v. Perkins, 287

F. App’x 342, 345 (5th Cir. 2008) (per curiam) (unpublished) (personal data

stolen from military personnel who checked out vehicles using their military

licenses); United States v. Tisdale, 264 F. App’x 403, 405 (5th Cir. 2008)

(unpublished) (personal information culled from obituaries and credit reports

obtained through defendants’ employment); United States v. Phillips, 477 F.3d

215, 217 (5th Cir. 2007) (personal data stolen via computer hacking). Indeed,

even here, we note that the PSR stated that the personal information used in Jones’s scheme was, in some instances, purchased illegally by the Moores from a check-cashing business. Given the vast array of avenues by which the personal information used

to perpetrate Jones’s scheme might have been acquired, we are unable to rely

simply on the nature of Jones’s offense to conclude that her co-conspirator’s mail

theft was reasonably foreseeable to her. Moreover, having independently

reviewed the record, we have found no evidence to substantiate the conclusion

that Jones knew or reasonably could have foreseen that the scheme in which she

was engaged involved stealing mail from USPS collection boxes. Because the

government failed to carry its burden of proving by a preponderance of the

evidence that such conduct was known or reasonably foreseeable to her, we are

left with the definite and firm conviction that, to the extent the district court

entered a finding of fact to the contrary, that finding was mistaken.

“A district court cannot impose a sentence enhancement . . . unless the government has proven any facts necessary to support the enhancement by a preponderance of the evidence.” United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per curiam).

Religion, Establishment Clause Cases

( US Pledge of Allegiance Upheld.

( Constitutionality not directly addressed by U.S. Supreme Court.. Court has indicated in dicta that pledge is constitutional. Lynch v. Donnelly, 465 U.S. 668, 676 (1984); County of Allegheny v. ACLU, 492 U.S. 602-603 (1989); Elk Grove Unified School District v. Newdow, 542 U.S. 1, 31 (2001)(resolving on standing but 3 justices upheld pledge as either as a recognition of the importance of religious believes to country’s found or as a form of ceremonial deism, and that the pledge is a public acknowledgement of the ideas that our flag symbolizes and as a patriotic exercise designed to foster national unit and pride in these principles.

( Upheld on merits by Courts of Appeal: Sherman v. Community Consol. School District 21, 980 F.2d 437, 445 (7th Cir 1992); Myers v. Loudoun Co. Public Schools, 418 F.3d 395, 407-08 (4th Cir. 2005)(pledge is a patriotic activity … poses no harm of sponsorship, financial support, or active involvement in religious activity);

Newton v. Rio Linda Union School Dist., 597 F.3d 1007, 1037 (9th Cir. 2010);

Doe v. Tangiphahoa Parkish School Brd, 473 F.3d 188, 198 (5th Cir. 2006)(Dicta);

Murray v. City of Austin, 947 F.2d 147, 154-55 (5th Cir. 1991)(dicta).

( Texas Moment of Silence upheld. Croft v. Governor of Texas, 562 F.3d 735 (5th Cir. 2009).

( Texas Statutory Pledge of Allegiance Upheld. Croft v. Perry, 624 F.3d 157 (5th Cir. Oct. 13, 2010)(09-10347).

( Facial v. Applied Challenges. Supreme Court and Fifth Circuit recognize difference between facial and as-applied Establishment Clause challenges. Bowen v. Kendrick, 487 U.S. 589, 601-02, 620-21 (1988); Henderson v. Stalder, 287 F.3d 374 (380 n. 6 (5th Cir. 2002).

( Four Separate Tests on Facial Challenges.

( No-Sect-preference Test. Larson v. Valente, 456 US. 228, 244 (1982)(law

does not establish a specific preference. Reference to a singular “god” is

not a preference for monotheistic belief. Does not establish one religion

over another.

( Three Part Test under Lemon v. Kurzman, 403 U.S. 602,612-13 (1971):

--Secular purpose.

--Principal or primary effect advances or inhibits religion.

Briggs v. Mississippi, 331 F.3d 499, 506 (5th Cir. 2003).

--Creates excessive goveerntment entanglement with religion.

( Enforcement of Particular Religion. Lynch v. Donnelly, 465 U.S. 668,

676 (1984)(similar to second prong of Lemon.)

( Coercion of Religious Beliefs. Lee v. Weisman, 505 U.S. 577 (1992).

In Fifth Circuit, Doe ex rel. Doe v. Beaumont Ind. School Dist.,

1873 F.3d 274, 285 (5th Cir. 1999), there is a three-part test in applying

Lee: (1) Gov’t directs (2) a formal religious exercise, (3) in such a way

as to oblige the participation of objectors.

( Sossaman v. Texas, 564 U.S. __ (U.S. April 20, 2011)(08-1438). After this Court held that the Religious Freedom Restoration Act of 1993 was unconstitutional as applied to state and local governments because it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority. RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a), including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A).

Religious Freedom Restoration Act

( United States v. Comrie¸__5th Cir. __ (5th Cir. Nov. 16, 2016)(15-31072). D plead guilty of

marijuana charges. On appeal, he raised for first time that drugs were part of the

Rastafari religion, and thus were protected under the Religious Freedom Restoration Act

at 42 U.S.C. Affirmed as not raised at trial level. No harmless error.

( we leave open the question of whether we could withhold appellate review altogether pursuant to our waiver doctrine. See Musacchio v. United States, 136 S. Ct. 709, 718 & n.3 (2016) (holding that a district court’s “failure to enforce” an unraised limitations defense under 18 U.S.C. § 3282(a) “cannot be a plain error,” and consequently leaving open the question of “whether the failure to raise that defense in the District Court amount[ed] to waiver . . . .”). In a case predating the Supreme Court’s Musacchio decision, this Court applied plain error review to an unraised RFRA argument. See United States v. Muhammad, 165 F.3d 327, 336 (5th Cir. 1999) (applying plain error review to First Amendment and RFRA arguments “raised for the first time on appeal”).

( “Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment.” Holt v. Hobbs, 135 S. Ct. 853, 859–60 (2015). “A person whose religious practices are burdened in violation of RFRA ‘may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.’” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb–1(c)). Notably, the statutory framework depends upon litigants to affirmatively invoke RFRA defenses. See Muhammad, 165 F.3d at 336–37 (applying plain error standard of review where appellant only raised a RFRA argument “for the first time on appeal”); see also Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) (“A party may certainly waive or forfeit a RFRA defense by failing to argue that a law or action substantially burdens the party’s religion.”). To claim RFRA’s protections, a person “must show that (1) the relevant religious exercise is ‘grounded in a sincerely held religious belief’ and (2) the government’s action or policy ‘substantially burdens that exercise by, for example, forcing the plaintiff to engage in conduct that seriously violates his or her religious beliefs.’” Ali v. Stephens, 822 F.3d 776, 782–783 (5th Cir. 2016) (quoting Holt, 135 S. Ct. at 862). Only “if the [religious person] carries this burden” does the government “bear[] the burden of proof to show that its action or policy (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that interest.” Id. at 783. In this case, even assuming for the sake of argument that Comrie’s statements recorded in the presentence report and his wife’s statements at the sentencing hearing would satisfy Comrie’s initial RFRA burdens, Comrie never “assert[ed]” a RFRA violation “as a claim or defense” below. See 42 U.S.C. § 2000bb-1(c); see also Appellant’s Br. at 7 (conceding that “Comrie did not raise this defense below . . . .”). Instead, Comrie entered a guilty plea.

Remorse

( A defendant may receive acceptance of responsibility even when he fails to admit remorse, but the defendant may receive an upward departure for lack of remorse.

United States v. Douglas, 569 F.3d 523 (5th Cir. 2009).

Removal

Merlan v. Holder, __ F.3d __ (5th Cir. Jan 17, 2010): Sixtos Merlan, a native and citizen of Mexico, appeals the district court’s dismissal for lack of subject matter jurisdiction of his 28 U.S.C. § 2241 habeas petition challenging the removal order resulting in his deportation to Mexico. Merlan argues that he is “in custody” within the meaning of § 2241 because he is being restrained from returning to the United States despite his wrongful removal. The respondent argues that Merlan is not “in custody” for habeas

jurisdictional purposes and further that the REAL ID Act precludes the district court from having jurisdiction to address a habeas petition challenging a final removal order.

Review of an order granting a dismissal under Federal Rule of Civil

Procedure 12(b)(1) is de novo. Taylor v. Acxiom Corp., 612 F.3d 325, 331 (5th

Cir. 2010). Dismissal is mandatory if the district court lacks subject matter

jurisdiction. FED. R. CIV. P. 12(h)(3). Although an applicant need not be in actual physical custody to pursue a habeas action, there must be some type of restraint on the liberty of a person. Jones v. Cunningham, 371 U.S. 236, 238-40 (1963); Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 540 (5th Cir. 2003). We have not previously determined whether an alien who has been finally removed from the United States could be considered “in custody” for habeas purposes. However, several other circuits have determined that an alien who has been deported pursuant to a final removal order is not “in custody” for habeas purposes. See Kumarasamy v. Attorney General, 453 F.3d 169, 173 (3d Cir. 2006); Patel v. U.S. Attorney General, 334 F.3d 1259, 1263 (11th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1159 (9th Cir. 2001). We agree with and adopt the reasoning in those cases.

Reply Brief.

( We generally do not consider arguments made for the first time in a reply

brief and deem those arguments waived. See Flex Frac Logistics, L.L.C. v.

NLRB, 746 F.3d 205, 208 (5th Cir. 2014). However, “we ordinarily have the

discretion to decide legal issues that are not timely raised.” United States v.

Rodriguez, 602 F.3d 346, 360–61 (5th Cir. 2010) (citing United States v.

Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)). We review these issues for

plain error. See Rodriguez, 602 F.3d at 360.

Re-sentencing

( Where “the case is remanded for resentencing without specific instructions, the district court should consider any new evidence from either party relevant to the issues raised on appeal.” United States v. Carales-Villalta, 617 F.3d 342, 345 (5th Cir. 2010).

Res Judicata

( The doctrine of res judicata applies to criminal cases as well as civil ones.

Wingate v. Wainwright, 464 F.2d 209, 211 (5th Cir. 1972). We may raise the

doctrine of res judicata sua sponte “as a means to affirm the district court decision below.” Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th Cir. 1992).

Reasonableness of Sentence

( We review the substantive reasonableness of the sentence for an abuse

of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). Arias-Ramos’s

arguments fail to rebut the presumption of reasonableness that we apply to his

within-guidelines sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th

Cir. 2009); United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.

2008). The district court, who was “in a superior position to find facts and

judge their import under § 3553(a),” acknowledged Arias-Ramos’s mitigating

arguments but concluded that a sentence near the top of the guidelines range

was appropriate in light of his criminal history. Campos-Maldonado, 531 F.3d

at 339. We have rejected the argument that U.S.S.G. § 2L1.2’s double-counting

of a prior conviction in the calculation of a defendant’s offense level and

criminal history score necessarily render a sentence unreasonable. United

States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We have also rejected

substantive reasonableness challenges based on the alleged lack of seriousness

of illegal reentry. United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.

2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).

Finally, as Arias-Ramos concedes, his argument that the presumption of

reasonableness should not be applied to his sentence because § 2L1.2 lacks an

empirical basis is foreclosed. See Duarte, 569 F.3d at 530-31; United States v.

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

Residual Hearsay

( United States v. Saguil, (5th Cir. April 30, 2015)(14-40845):

Evidentiary rulings are reviewed for abuse of discretion. E.g., United States v. Boyd, 773 F.3d 637, 643 (5th Cir. 2014), petition for cert. filed, (31 Mar. 2015) (No. 14-9121). In applying the residual exception to the hearsay rule, district courts have “considerable discretion”, and this court “will not disturb the . . . application of the exception absent a definite and firm conviction that the court made a clear error of judgment” in weighing the relevant factors, discussed infra. United States v. Loalzo-Vasquez, 735 F.2d 153, 157 (5th Cir. 1984). Under Rule 807, hearsay statements are admissible if they have circumstantial guarantees of trustworthiness similar to the other hearsay exceptions and the district court determines the statements are material, probative, and in the interests of justice. Fed. R. Evid. 807; see also United States v. El-Mezain, 664 F.3d 467, 497 (5th Cir. 2011). Although Rule 807 contemplates the consideration of multiple factors, the “lodestar of the residual hearsay exception analysis” is on the “equivalent circumstantial guarantees of trustworthiness” requirement. El-Mezain, 664 F.3d at 498 (citation and internal quotation marks omitted); see also United States v. Walker, 410 F.3d 754, 758 (5th Cir. 2005). “The determination of trustworthiness is drawn from the totality of the circumstances surrounding the making of the statement”, but “cannot stem from other corroborating evidence”. El-Mezain, 664 F.3d at 498 (citation and internal quotation marks omitted). The evidence “must be at least as reliable as evidence admitted under a firmly rooted hearsay exception” and “must similarly be so trustworthy that adversarial testing would add little to its reliability”. Id.

Restitution

( Cases where restitution was wrongfully assessed.

(United States v. Espinoza, 677 F.3d 730 (5th Cir. 2012), we held that a defendant convicted of unlawful possession of firearms could not be ordered to pay restitution to a pawn shop, where he sold the unlawfully possessed weapons, because the sale of weapons was not based on the conduct underlying the possession conviction. 677 F.3d at 732-33. This court also rejected the government’s argument, nearly identical to the argument made in this case, that the pawn shop would not have suffered harm “but for” the defendant’s possession of the firearms. Id. at 733-34. Rather, we concluded that the pawn shop’s loss was not a foreseeable result of the unlawful possession of firearms.

( In United States v. Mancillas, a defendant pleaded guilty to possession of counterfeit securities and possession of the implements to make counterfeit securities. 172 F.3d 341, 341 (5th Cir. 1999). The district court awarded restitution to five checkcashing entities where fraudulent checks, created by the defendant, were cashed. Id. at 341-42. We reversed, holding that “possession of the implements with the intent to use them in the future can in no way be said to directly and proximately have caused . . . the harm to the check-cashing companies.” Id. at 343. The restitution was unlawful because the harm suffered by the checkcashing entities was a result of the passing of counterfeit securities, not for the possession of counterfeit securities or possession of the implements to make counterfeit securities. Id

( United States v. Benn, __ F.3d ___ (5th Cir. 2016 ]1-6])(14-50127)

HUD not entitled to restitution in this mortgage fraud case where HUD paid for the loss.

( Dismissal of Restitution Cases Upheld as within Discretion of D/J: In Re Jewell Allen, (5th Cir. May 19, 2014)(14-40505). Fifth Circuit upheld as not an abuse of discretion the restitution claims of 20 named victims.

( The legality of a restitution order is reviewed de novo. United States v. Lozano, 791 F.3d 535, 537 (5th Cir. 2015); United States v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998). Since Benns objected to the award, the restitution amount is reviewed for abuse of discretion. United States v. Beacham, 774 F.3d 267, 278 (5th Cir. 2014). The MVRA requires the district court, as part of sentencing, to order restitution payments to “victims” of certain crimes. 18 U.S.C. § 3663A. A “victim” is defined as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.” Id. at 3663A(a)(2). Generally, restitution is limited to losses arising from underlying conduct of the defendant’s offense of conviction. Hughey v. United States, 495 U.S. 411, 412-13 (1990); United States v. Espinoza, 677 F.3d 730, 732 (5th Cir.

( No victim in theft where owner subsequently sold the stolen and recovered property. United States v. McMillian, (5th Cir. August 6, 2014)(13-50642):

As noted by both parties, the only element at issue is whether McMillian took the property (an indirect heater) by fraud. The jury could have reasonably inferred from

the evidence that McMillian entered into the lease-purchase agreement with McKay in order to induce McKay to release possession of the indirect heater to him.

… Regarding McMillian’s having to pay restitution to McKay as a condition

of supervised release pursuant to 18 U.S.C. § 3583(d) (inclusion of supervised

release term after imprisonment), “[a] federal court cannot order restitution

except when authorized by statute”. United States v. Espinoza, 677 F.3d 730,

732 (5th Cir. 2012) (citation and internal quotation marks omitted). Because

McKay ultimately sold the indirect heater for a profit, there was no “victim”

within the meaning of the Victim and Witness Protection Act or the Mandatory

Victims Restitution Act. Therefore, as the Government concedes, the court

could not order restitution to McKay as a condition of McMillian’s supervised

release pursuant to § 3583(d). See United States v. Maturin, 488 F.3d 657,

660–61 & n.1 (5th Cir. 2007). As the Government states, “the district court’s

reliance upon the supervised release statute as authority for the imposition of

a restitution order . . . was misplaced”.

( Restitution Limited to Offense Charged—Factual basis in plea agreement will not bind defendant; held plain error: United States v. Bagley, (5th Cir. Aug. 13, 2014)(13-10246).

( Although the count to which she was pleading guilty involved a blank

check and thus caused no loss, the factual resume Bagley signed at the plea colloquy stated that the penalty for her conviction may include “restitution to victims . . . which the defendant agrees may include restitution arising from all relevant conduct, not limited to that arising from the offense of conviction alone.” The district court also orally confirmed this understanding before Bagley entered her plea.

The Presentence Report (PSR) noted that restitution is ordinarily limited to the offense of conviction, but characterized Bagley’s acknowledgement in the factual resume as an agreement that she would “pay restitution as a result of

all relevant conduct.” The relevant conduct assessment, which was also used

to determine Bagley’s Sentencing Guidelines range, found $7,918.57 in actual loss attributable to counterfeit checks that were used during the scheme. Bagley did not object to either this calculation or the PSR’s recommendation that restitution should include relevant conduct. The district court followed the PSR and ordered Bagley to pay restitution of $7,918.57.

( “The general rule is that a district court can award restitution to victims of the offense, but the restitution award can encompass only those losses that resulted directly from the offense for which the defendant was convicted.” United States v. Maturin, 488 F.3d 657, 660–61 (5th Cir. 2007). If the offense is conspiracy or a crime such as wire fraud that includes a “scheme” as an element, harm resulting from the entire charged conspiracy or scheme may be included. 18 U.S.C. § 3663(a)(2); United States v. Cothran, 302 F.3d 279, 289 (5th Cir. 2002). The PSR describes a conspiracy and scheme in which Bagley participated, but she pleaded guilty to the discrete offense of possessing a forged and counterfeit security. The offense of conviction thus did not support awarding restitution for all relevant conduct. A court may, however, award restitution to victims of conduct beyond the

offense of conviction “if agreed to by the parties in a plea agreement.” 18 USC

§ 3663(a)(1)(A). The government contends that Bagley’s written and oral acknowledgement at the plea colloquy constituted such an agreement. But this

court rejected such an argument earlier this year, holding that a similar

statement in a factual resume was not a plea agreement. See United States v.

Benns, 740 F.3d 370, 378 (5th Cir. 2014). The government, which noted Benns in a Rule 28(j) letter, argues that Bagley’s more frequent acknowledgements that she could be subject to restitution based on relevant conduct (both at the colloquy and in failing to object to the PSR) warrants a different result here. It remains the case, however, that there was no exchange of consideration that characterizes a plea agreement. Benns thus controls, rendering the restitution order an error that was “clear and obvious.” Id. at 377.

( Because the error resulted in Bagley having to pay restitution the law

does not require, it affected her substantial rights. United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005).

( Contrary to the government’s assertion, Benns did find that the restitution

error in that case met this standard. 740 F.3d at 378 (“When a defendant is ordered to pay restitution in an amount greater than the loss caused, the error affects substantial rights as well as the fairness and integrity of the judicial proceeding.” (quoting United States v. Austin, 479 F.3d 363, 373 (5th Cir. 2007))). There is a distinction, however: Benns ordered restitution based on a relevant conduct calculation that was found to be erroneous, whereas in this case Bagley has never disputed that her relevant conduct caused loss in the amount of $7,918.57. Although the former situation has a greater impact on the fairness and integrity of the proceeding, our court has vacated restitution

orders on plain-error review that imposed restitution beyond the count of conviction even when the relevant conduct calculation was correct. See Inman, 411 F.3d at 595 (finding that a restitution order for a wire fraud conviction that included loss beyond the charged dates of the scheme warranted reversal under Olano); see also, e.g., United States v. Mason, 722 F.3d 691, 694–95 (5th Cir. 2013) (same for a mortgage fraud conviction). That precedent warrants the same result in Bagley’s case.

( See also Garnishment. See also Fraud—Medical for restitution in med fraud case.

( Because counsel did not object to the restitution schedule in the district

court, his argument is reviewed under the plain error standard. See United

States v. Arledge, 553 F.3d 881, 900 (5th Cir. 2008).

Certiorari Grantedi:

Paroline v. United States, No. 12-8561 (June 27, 2013) 

Is the Government or a victim trying to get your child porn client to pay millions in restitution pursuant to In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012)? Keep on making those objections. 

The Supreme Court granted cert to resolve the following question:

"What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259."

( 2012 En Banc Decision on Restitution. United States v. Wright, __ F.3d ___

(5th Cir. Oct. 1, 2012)(en banc)(09-31215)(opinion by Garza):

( The issue presented to the en banc court is whether 18 U.S.C. § 2259

requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied

that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.

( This en banc court holds that § 2259 only imposes a proximate result

requirement in § 2259(b)(3)(F); it does not require the Government to show

proximate cause to trigger a defendant’s restitution obligations for the categories

of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the

plain language of the statute dictates that a district court must award

restitution for the full amount of those losses. We VACATE the district courts’

judgments in both of the cases below and REMAND for further proceedings

consistent with this opinion.

( Both appeals involve restitution requests by Amy, a young adult whose uncle sexually abused her as a child, captured his acts on film, and then distributed them for others to see. The National Center for Missing and Exploited Children, which reports that it has found at least 35,000 images of Amy’s abuse among the evidence in over 3,200 child pornography cases since 1998, describes the content of these images as “extremely graphic.” The Government reports that restitution has been ordered for Amy in at least 174 child pornography cases across the United States in amounts ranging from $100 to $3,543,471. /A / In the consolidated cases In re Amy, 591 F.3d 792 (5th Cir. 2009), and In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011), a panel of this court reviewed Amy’s mandamus petition and appeal, both of which challenged the district court’s order denying Amy restitution in connection with a criminal defendant’s sentence.

--See In re Amy Unknown, 701 F. 3d 749, 759 (5th Cir. 2012), petition

for cert. filed (Jan. 31, 2013) (Nos. 12-8505 & 12-8561).

--United States v. Mark Tilford, (5th Cir. April 3, 2013)(11-40806):

Perpetrator in Amy appeals $100,000 restitution judgment against him. Held,

damages were $1,000,000, so error was in his favor. U.S. did not appeal. Aff’d.

( Pursuant to Amy’s right to restitution under the Crime Victims’ Rights

Act, 18 U.S.C. § 3771, the Government and Amy moved the district court to order restitution under § 2259. Amy supported this request with her psychiatrist’s report, which itemized her future damages for specific categories of treatment and estimated total damages nearing $3.4 million. The district court denied Amy restitution. United States v. Paroline, 672 F. Supp. 2d 781, 782 (E.D. Tex. 2009)CERT GRANTED.. The district court held that § 2259 required the Government to prove that by possessing images depicting Amy’s sexual abuse, Paroline proximately caused the injuries for which she sought restitution. Id. at 791. Concluding that the Government failed to show this causal link, the district court denied Amy restitution. Id. at 793. Amy petitioned for mandamus, asking this court to direct the district court to order Paroline to pay her the full amount of the restitution she had requested. Over one dissent, that panel denied her relief because it was not clear or indisputable that § 2259 mandates restitution irrespective of proximate cause. In re Amy, 591 F.3d at 794–95. … See In re Amy Unknown, 636 F.3d at 192–93. The panel assigned to hear Amy’s appeal granted her rehearing request. Id. at 193. That panel then granted mandamus and rejected a requirement of proof of proximate cause in § 2259 because “[i]ncorporating a proximate causation requirement where none exists is a clear and indisputable error,” but declined to reach the question of whether crime victims such as Amy have a right to an appeal. Id. at 193, 201.

( In United States v. Wright, 639 F.3d 679 (5th Cir. 2011), a separate panel of this court heard the appeal of Michael Wright (“Wright”). Like Paroline, Wright pled guilty to 18 U.S.C. § 2252 for possession of over 30,000 images of child pornography, which included images of Amy’s abuse. The Government sought restitution for Amy under § 2259, supporting its request with the same psychiatric report Amy provided in Paroline’s case. The district court awarded Amy $529,661 in restitution.

( II. In rehearing Amy and Wright en banc, we address the following issues:

(1) whether the Crime Victims’ Rights Act (“CVRA”) grants crime victims a right

to an appeal or, if not, whether this court should review Amy’s mandamus

petition under the standard this court has applied to supervisory writs; (2)

whether 18 U.S.C. § 2259 requires the Government to show a defendant’s

criminal acts proximately caused a victim’s injuries before a district court may

award restitution; and (3) whether, in light of our holding with respect to § 2259,

the district courts in Amy and Wright erred.

( Only Mandamus Available to Crime Victim—Not Direct Appeal. …

Because nothing in the CVRA suggests that Congress intended to grant crime victims the right to an appeal or otherwise vary the historical rule that crime victims do not have the right of appeal, we conclude that… CVRA grants crime victims only mandamus

review. (Fn: Six of our sister circuits generally favor a reading of the statute that allows no appeal, & no cir. has expressly granted victims the right to an appeal under CVRA.

( Next, we consider whether the CVRA nonetheless requires appellate courts to apply the standard of review governing a direct criminal appeal to mandamus petitions, and conclude it does not. When assessing the meaning of the term “mandamus” in the CVRA, we presume that this “statutory term . . . ha[s] its common-law meaning,” absent contrary indication. Taylor v. United States, 495 U.S. 575, 592 (1990). The Supreme Court has explained that “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); accord Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004). “[T]he writ has traditionally been used in the federal courts only . . . to compel it to exercise its authority when it is its duty to do so.” Kerr, 426 U.S. at 402 ... “[O]nly

exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy.” Id. … Mandamus traditionally “is not to be used as a substitute for an appeal, or to control the decision of the trial court in discretionary matters.” Plekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir. 1977). Issuance of the writ is largely a matter of discretion with the court to which the petition is addressed. See Schlagenhauf v. Holder, 379 U.S. 104, 112 n.8 (1964).

Certain aspects of the CVRA convince us that Congress intended mandamus in its traditional sense when it selected the word “mandamus.” See Taylor, 495 U.S. at 592. Reading the statute’s provisions together, the CVRA seems to intentionally limit victims’ right to review as an extraordinary remedy because it authorizes review only where a district court fails to fulfill a statutory duty; the statute does not extend victims’ right to review to situations where a district court acts on a discretionary matter. See Kerr, 426 U.S. at 402. … To explain, the CVRA lists eight rights that it ensures crime victims, including the right to restitution. 18 U.S.C. § 3771(a)(1)–(8). The restrictive statement, “A crime victim has the following rights,” precedes the list of those rights and supports the conclusion that the CVRA’s grant of rights is exclusive. Id. § 3771(a). And only where the district court denies a motion seeking to assert one of those rights does the CVRA allow a victim to seek the review of an appellate court. See id. § 3771(d)(3). This limitation suggests that in granting relief, the

district court retains discretion to select the appropriate means to ensure victims’ rights, and that victims may only properly seek appellate intervention where the district court clearly fails to “exercise its authority when it is its duty to do so.” See Kerr, 426 U.S. at 402; see also Plekowski, 557 F.2d at 1220 …Amy has failed to show that Congress intended to grant crime victims anything other than traditional mandamus relief under the CVRA. [Extensive FN with contrary authority from other CAs.]

( Our conclusion that the CVRA does not provide crime victims with

appellate review does not foreclose Amy’s somewhat different request that we apply our supervisory mandamus power of review to her mandamus petition, which would lower the hurdles to relief under mandamus. … Even so, we need not resolve this question. Our traditional inquiry suffices to afford Amy the relief she requests. … Because we hold that the CVRA entitles Amy to only mandamus relief, we dismiss her appeal. Under our traditional mandamus inquiry, we will grant Amy’s requested mandamus only if (1) she has no other adequate means to attain the desired relief; (2) she has demonstrated a clear and indisputable right to the issuance of a writ; and (3) in the exercise of our discretion, we are satisfied that the writ is appropriate. See Dean, 527 F.3d at 394.

( Wright appeals from the district court’s restitution order. This court

reviews the legality of the restitution order de novo. United States v. Arledge, 553 F.3d 881, 897 (5th Cir. 2008). If the restitution order is legally permitted, we then review the amount of the order for an abuse of discretion. Id.; United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). … The parties’ dispute turns on the interpretation and effect of the words “proximate result” in § 2259(b)(3)(F). Our analysis again begins with the text of the statute. … 18 U.S.C. § 2259(b)(1) specifies that a restitution order “shall direct the defendant to pay the victim . . . the full amount of the victim’s losses.” Section 2259(b)(3) defines the term “the full amount of the victim’s losses,”

contained in § 2259(b)(1), as

[A]ny costs incurred by the victim for–

(A) medical services relating to physical, psychiatric, or

psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and

child care expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a

proximate result of the offense.

Section 2259(b)(4) reinforces that “[t]he issuance of a restitution order

under this section is mandatory,” id. § 2259(b)(4)(A), and instructs that “[a] court

may not decline to issue an order under this section because of–(i) the economic

circumstances of the defendant; or (ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.” Id. § 2259(b)(4)(B). To guide the district courts in awarding restitution, § 2259(b)(2) instructs courts to issue and enforce restitution orders “in accordance with section 3664 and in the same manner as an order under 3663A.”

( Our plain reading of § 2259 leads us to the following conclusion: Once a

district court determines that a person is a victim, that is, an “individual harmed as a result of a commission of a crime” under the chapter that relates to the sexual exploitation and abuse of children, § 2259 requires the district court to order restitution for that victim. See 18 U.S.C. § 2259(a),(b)(4)(A),(c). The restitution order that follows must encompass “the full amount of the victim’s losses.” Id. § 2259(b)(1).

( Despite the clear terms of the statute, other courts and the parties before us raise arguments in favor of a generalized proximate cause requirement based on (a) canons of statutory construction, (b) traditional causation principles, and (c) possible absurd results. We address—and dismiss—each in turn.

( The use of joint and several liability does not mean that Amy may “recover more than her total loss: [rather,] once she collects the full amount of her losses from one defendant, she can no longer recover from any other.” Id. at *14 (Gregory, J., concurring in part, dissenting in part, & concurring in judgment) (quoting TORT LAW, supra, at 517).

( First, we are not persuaded that restitution is a punishment subject to the same Eighth Amendment limits as criminal forfeiture. Its purpose is remedial, not punitive. See United States v. Webber, 536 F.3d 584, 602–03 (7th Cir. 2008) (“Forfeiture and restitution are distinct remedies. Restitution is remedial in nature, and its goal is to restore the victim’s loss. Forfeiture, in contrast, is punitive; it seeks to disgorge any profits that the offender realized from his illegal activity.”) (citations omitted); see also United States v. Taylor, 582 F.3d 558, 566 (5th Cir. 2009) (“Restitution operates to make the victim of the crime whole.”). Even so, restricting the “proximate result” language to the catchall category in which it appears does not open the door to grossly disproportionate restitution in a way that would violate the Eighth Amendment.

( V. For the reasons above, we reject the approach of our sister circuits and

hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse.

( 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).

( No Appeal Waiver on Issue of Restitution and Restitution. United States v. Campbell, (5th Cir. Jan. 15, 2014)(12-31172)(See also appeal waiver):

C. The Restitution Award. Restitution is generally available for losses stemming from the conduct ofthe offense of conviction. Hughey, 495 U.S. at 420 (“[T]he loss caused by the conduct underlying the offense of conviction establishes the outer limits of a restitution order.”); see also United States v. St. Junius, 2013 U.S. App. LEXIS

25155, at *52–53 (5th Cir. Dec. 18, 2013) (substitute opinion on petition for rehearing) (holding, on plain-error review, that restitution is limited to losses

stemming directly from the offense of conviction).

Beyond that, the restitution statute, 18 U.S.C. § 3663, does not authorize

restitution orders compelling payment to the IRS for a Title 26 offense. See

United States v. Stout, 32 F.3d 901, 905 (5th Cir. 1994) (holding that § 3663 only

permits separate restitution orders for offenses under Title 18 or 49 and vacating

restitution award ordered for offense under Title 26). Section 3663 does,

however, allow the sentencing court to “order restitution in any criminal case to

the extent agreed to by the parties in a plea agreement.” § 3663(a)(3); see also

Stout, 32 F.3d at 905 n.5.

A sentencing court may also require restitution to the IRS for a Title 26

offense as a condition of supervised release. 18 U.S.C. § 3583(d)(3) (authorizing

a sentencing court to impose “any condition set forth as a discretionary condition

of probation in section 3563(b) and any other condition it considers to be

appropriate”); Miller, 406 F.3d at 329 (“[A]lthough . . . 18 U.S.C. § 3663 [ ] does

not expressly cover tax offenses such as that under which Miller was convicted,

§ 3583(d) authorizes such restitution as a condition of Miller’s supervised

release.”). Section 3583(d) allows the sentencing court to impose a condition of

supervised release requiring restitution to the IRS without the defendant’s agreement, but only if the restitution is “limited to losses from the crime of

conviction.” United States v. Nolen, 523 F.3d 331, 332–33 (5th Cir. 2008); see

also Stout, 32 F.3d at 904 (vacating restitution order and remanding for

resentencing where defendant never expressly agreed to pay restitution and noting that “[s]entencing courts are permitted to impose restitution as a condition of supervised release to the extent agreed to by the government and the defendant in a plea agreement.” (citations omitted)).

( Restitution under MVRA To Be Immediately Payable—Payment Plans—Std of Review. United States v. Scales, (5th Cir. March 17, 2016)(14-10725). Conflicting

standards and conflicting cases and various approaches on lump sum payments,

payment schedules, and balloon payments. Can’t be revoked on SR for inability to pay.

Review of conflicting case law.

( Trial Court Cannot Delegate Restitution to Probation(Plain Error.

United States v. Lopez, (5th Cir. July 25, 2011)(10-40366):

Restitution orders are reviewed for an abuse of discretion. United States v. Myers, 198 F.3d 160, 168 (5th Cir. 1999). Because Lopez did not object in the district court on the grounds raised in the instant appeal, our review is limited to plain error. Id. To show plain error, Lopez must show a forfeited error that is clear or obvious and affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes this 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. (internal quotation marks, citation and brackets omitted).

The district court committed clear or obvious error by delegating its authority to establish the manner of Lopez’s restitution payments. See United States v. Albro, 32 F.3d 173, 174 & n.1 (5th Cir. 1994). We hold that this error affected Lopez’s substantial rights and exercise our discretion to correct the error. See id.; see also Puckett, 129 S. Ct. at 1429. This portion of Lopez’s sentence must, therefore, be vacated and remanded to the district court for resentencing. See Albro, 32 F.3d at 175.

( Restitution under the Mandatory Victim Restitution Act is a criminal penalty and a component of the defendant’s sentence. See United States v. Chaney, 964 F.2d 437, 451 (5th Cir. 1992). This court reviews the legality of a restitution order de novo. If a restitution order is legally permitted, the order is reviewed for an abuse of discretion. Id. The MVRA authorizes a district court to order restitution to victims of certain offenses, including offense committed by fraud or deceit. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii); United States v. Cothran, 302 F.3d 279, 289-90 (5th Cir. 2002) (affirming mandatory restitution order under MVRA for mail fraud conviction).

( A challenge to the restitution or fine portion of a sentence is a nonconstitutional issue relative to sentencing that should be raised on direct appeal and not for the first time in a § 2255 proceeding. United States v. Hatten, 167 F.3d 884, 887 n.5 (5th Cir. 1999); United States v. Segler, 37 F.3d 1131, 1135 (5th Cir. 1994). A district court lacks jurisdiction to a modify restitution order under § 2255, a writ of coram nobis, or “any other federal aw.” Hatten, 167 F.3d at 886-87 & nn. 3 & 6. Further, a monetary penalty is not a sufficient restraint on liberty to meet the “in custody” requirements of § 2255 or § 2241. Hatten, 167 F.3d at 887; Segler, 37 F.3d at 1167; see Spring v. Caldwell, 692 F.2d 994, 998-99 (5th Cir. 1982); § 2241(c).

( Restittution—2 kinds. MVRA and Victim and Witness Protection Act, 18 USC 3663

United States v. Fernando Lagos, __ F.3d ___ (5th Cir. March 23, 2017)(16-20146):

D contends that the Mandatory Victims Restitution Act (“MVRA”) does not authorize restitution for the legal, expert, and consulting fees incurred by the victim-lender, General Electric Capital Corporation (“GECC”), in investigating the fraud or its legal fees from the bankruptcy proceedings caused by the fraud.

The legality of a restitution award is reviewed de novo. United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012). The MVRA instructs a sentencing court to order restitution for a victim’s “actual loss directly and proximately caused by the defendant’s offense of conviction.” United States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012); 18 U.S.C. § 3663A(a)(2). This includes “lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. § 3663A(b)(4). According to Lagos, the forensic expert fees, legal fees, and consulting fees incurred by GECC should not have been included because they are “consequential damages.” His reliance on United States v. Schinnell, 80 F.3d 1064, 1070 (5th Cir. 1996), however, is misplaced because the basis for the restitution award in that case was the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663(b)(1), not § 3663A(b)(4) and the MVRA. In our Circuit, the scope of restitution under subsection 3663A(b)(4) is controlled by United States v. Phillips, 477 F.3d 215 (5th Cir. 2007). In upholding an award of restitution to the University of Texas imposed on a computer hacker, this Court in Phillips cited § 3663A(b)(4), which authorizes restitution of expenses incurred while participating in the investigation or prosecution of the offense. 477 F.3d at 224. It concluded that the University of Texas “was a victim, and it collaborated with the investigation and incurred costs to notify other victims of [the hacker’s] data theft in order to determine whether they had suffered further damage.” Id. As the Court explained, while “consequential damages” are not properly recoverable under Schinnell, that case did not involve the application of § 3663A(b)(4). Id. In distinguishing Schinnell, this Court gave a broad reading to § 3663A(b)(4), allowing not only the cost of the investigation but also the cost of contacting those whose information was compromised to be included in the restitution award.1 In unpublished decisions following Phillips, this Court has upheld restitution awards that encompassed attorneys’ fees and other expenses stemming from the investigation and prosecution of the offense. United States v. Herrera, 606 F. App’x 748, 752–53 (5th Cir. 2015) (per curiam) (affirming investigative audit costs as part of restitution where investigative audit was a fundamental component of investigation of defendant’s theft of federal funds); United States v. Dwyer, 275 F. App’x 269, 271–72 (5th Cir. 2008) (affirming in the restitution award costs of margin calls, attorneys’ fees, and accounting fees arising from defendant’s bank fraud under plain error standard of review). Lagos admitted that for two years, he and his co-conspirators misled GECC about the value of their accounts receivable to induce GECC to increase the amount of the revolving loan and to provide him and his co-defendants with uncollateralized funds. Their wire fraud scheme caused GECC to employ forensic experts to secure and preserve electronic data as well as lawyers and consultants to investigate the full extent and magnitude of the fraud and to provide legal advice relating to the fraud. Fees incurred by GECC during the investigation of the fraud were necessary and compensable in the restitution award. See 18 U.S.C. § 3663A(b)(4).

( Restitution to Victim for Future Medical Costs Permitted. United States v. Serratta,

(5th Cir. Feb. 10, 2017)(16-40322): Here, the district court ordered Serrata to pay $5,000 in restitution for K.G.’s future psychiatric or psychological care. Under the applicable statute, if an offense results in bodily injury to a victim, a district court may order the defendant to pay “an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, psychological care.” 18 U.S.C. § 3663(b)(2)(A). The district court is to “order restitution to each victim in the full amount of each victim’s losses.” Id. § 3664(f)(1)(A). Generally, restitution is limited to losses stemming from the offense of conviction. See Hughey v. United States, 495 U.S. 411, 420 (1990). This court has not addressed whether the restitution statutes authorize payment of future medical expenses that are attributable to the defendant’s actions. However, as the Government points out, other courts have held that calculable future losses may be included in an order of restitution. See United States v. Messina, 806 F.3d 55, 67 (2d Cir. 2015) (ordering restitution for lost future income under § 3663A following a death); United States v. Serawop, 505 F.3d 1112, 1120 (10th Cir. 2007) (same); United States v. Cienfuegos, 462 F.3d 1160, 1163–64 (9th Cir. 2006) (same); United States v. Oslund, 453 F.3d 1048, 1063 (8th Cir. 2006) (same). Similarly, other circuits have upheld restitution orders including future psychiatric treatment in the context of 18 U.S.C. § 2259, which involves sexual exploitation of children. See United States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009); United States v. Doe, 488 F.3d 1154, 1160 (9th Cir. 2007); United States v. Danser, 270 F.3d 451, 455 (7th Cir. 2001); United States v. Julian, 242 F.3d 1245, 1247–48 (10th Cir. 2001); see also United States v. Guel-Perez, No. 95-30221, 1996 WL 285579, at *1 (9th Cir. May 29, 1996) (unpublished) (“[I]t was well within the district court’s discretion to order restitution for future counseling sessions” in a case involving sexual activity with a juvenile). In light of this persuasive authority, we conclude that the district court did not plainly err in ordering Serrata to pay restitution to K.G. for future psychiatric or psychological treatment.3 See Puckett, 556 U.S. at 135. B. Quantum Next, we turn to Serrata’s argument that the district court erred in calculating the amount of restitution owed. A sentencing court may not award restitution greater than a victim’s actual loss. Sharma, 703 F.3d at 322. “Moreover, excessive restitution awards cannot be excused by harmless error; every dollar must be supported by record evidence.” Id. at 323. The Government has the burden of proving the victim’s loss amount. United States v. De Leon, 728 F.3d 500, 506 (5th Cir. 2013). If the record provides an adequate basis for appellate review, the district court need not set forth a detailed analysis supporting the restitution order. Id. at 507. When sentencing a defendant, the district court may consider any relevant evidence, such as a PSR, to support the district court’s factual finding provided that the information has “sufficient indicia of reliability to support its probable accuracy.” United States v. Zuniga, 720 F.3d 587, 590–91 (5th Cir. 2013) (citation and internal quotation marks omitted). In addition, information provided by the victim may be sufficient to support the restitution order in the 3 Section 3664(d)(5) states that if a victim “subsequently discovers further losses” after the district court has made a final determination of loss, he or she “shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order.” The Ninth Circuit has rejected an argument that this subsection precludes a restitution order taking into account future losses, noting that it covers only “discovered” losses and concluding that the victim’s need for future psychiatric care was already known. United States v. Laney, 189 F.3d 954, 966–67 (9th Cir. 1999). The court concluded that “if Congress intended crime victims who required long-term psychological or physical therapy to receive restitution only after they actually paid their therapists, it created a strangely unwieldy procedure in section 3664,” given that the victims would be required to request the court to amend the restitution order “every 60 days for as long as the therapy lasted.” Id. at 967. We also find this reasoning persuasive and agree that a reasonable reading of the statute would contemplate the costs of future medical care which are not necessarily “ascertainable” at the time of sentencing. See 18 U.S.C. § 3664(d)(5). absence of rebuttal evidence from the defendant. Sharma, 703 F.3d at 324 n.21. Serrata did not object to the PSR, which detailed the violence and brutality of the assault, including the use of racial and homosexual epithets by Serrata and the other attackers against K.G. while they beat him with various items, whipped him, sodomized him with a broom handle, poured bleach on his face, and threatened to kill him. At sentencing, K.G. provided a statement reflecting the severe psychological trauma he had suffered, which included increased drug use, depression, nightmares, insomnia, discomfort in groups, revenge fantasies, loss of concentration, and flashbacks. The Government also advised the court that K.G. was receiving mental health treatment while in jail. The district court ordered that Serrata pay K.G. $5,000 in restitution for the future mental health treatment, which the court determined would cover fifty hours of treatment at $100 per hour.

( Modification of Restitution Payment Plan. United States v. Guzman, (5th Cir. May 15, 2014)(13-11417): To the extent Guzman’s motion may be liberally construed as a challenge the payment plan created by the Bureau of Prisons under the Inmate Financial

Responsibility Program (IFRP), Guzman properly invoked § 3664(k). See United States v. Diggs, 578 F.3d 318, 319-20 (5th Cir. 2009). But his cryptic assertions provide no discernible basis for relief. The judgment is AFFIRMED IN PART as it pertains to any claims concerning the district court’s existing restitution order under § 3664(k).

In all other respects, Guzman seeks modification of the IFRP plan. He must seek this relief under 28 U.S.C. § 2241 in the district of incarceration after exhausting all administrative remedies. See Diggs, 578 F.3d at 319-20. Guzman sought relief in the correct district. But the district court did not consider his request under § 2241. Moreover, there is no evidence concerning exhaustion, and the Government has not had an opportunity to address Guzman’s request. We therefore VACATE AND REMAND IN PART so that the district court can consider Guzman’s request under § 2241 and determine whether he has exhausted his administrative remedies

( Grant’s assertion that the restitution award is unconstitutional or unlawful because the court did not determine her ability to pay restitution is devoid of arguable merit. The court was not required to make such a finding. 18 U.S.C. § 3664(f)(1)(A); United States v. Powell, 354 F.3d 362, 369 (5th Cir. 2003). Grant’s fears of automatic revocation for nonpayment are unfounded. See Bearden v. Georgia, 461 U.S. 660, 672-73 (1983); United States v. Payan, 992 F.2d 1387, 1397 (5th Cir. 1993); 18 U.S.C. § 3614.

( D ordered to pay $11 million + in restitution in mail/health care fraud case. IRS provided tentative tax refund of $3.9 million + because of the restitution. D’s tax attorney sought 40% as part of his contingent fee interest in “any recovery.” US then filed declaratory judgment seeking return of erroneous refund. Held: Tax attorney could not intervene as a matter of right. An attorney’s right to compensation under an attorney fee contract is determined by state law. Marre v. United States, 117 F.3d 297, 307 (5th Cir. 1997). Texas follows Restatement (Third) of Law Governing Lawyers § 35(2) that attorney is entitled to receive contingent fee only when and to the extent client receives a payment. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006). The amount received is computed net of any offset, such as recovery by an opposing party on a counterclaim. Levin v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 94 (Tex. 2001).

Since D could not recover, his tax attorney cannot. From: United States v. Chamberlain,

(08-20743)(Aug. 20, 2009)(unpublished).

( From United States v. Livingston, 2009 WL 2873914, __ F. App’x ___ (5th Cir. Sept. 9, 2009)(08-10655):

A district court’s calculation of amount of loss is a factual finding that we review for clear error. United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008). “[I]n order to satisfy this clear error test all that is necessary is that the finding be plausible in light of the record as a whole.” Id. (internal quotations marks and citations omitted). “‘The presentence report is considered reliable evidence for sentencing purposes.’” Id. (quoting United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998)). If a defendant fails to submit evidence rebutting the PSR, the sentencing court is free to adopt its findings without additional inquiry or explanation. Id. U.S.S.G. Section 1B1.3 provides that a defendant is accountable for losses that are due to the defendant’s “relevant conduct.” United States v. Hammond, 201 F.3d 346, 351 (5th Cir. 1999). “A defendant’s relevant conduct includes ‘all reasonably foreseeable acts and omissions of others in furtherance of jointly

undertaken criminal activity.’” Id. (quoting § 1B1.3(a)(1)(B)). The commentary to the relevant conduct guideline provides that “‘a defendant is accountable for the conduct . . . of others that was both: (1) in furtherance of the jointly undertaken criminal activity; and (2) reasonably foreseeable in connection with that criminal activity.’” Id. (quoting § 1B1.3, comment. (n.2)). Additionally, the commentary explains that an individual defendant’s scope of criminal activity “is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant.” § 1B1.3, comment. (n.2). Thus, a sentencing “court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake.” Id.;

Hammond, 201 F.3d at 351. Although the above-listed “findings need not be expressly made, . . . the meaning of the court’s findings must be clear.” Hammond, 201 F.3d at 351.

( Enforcement of a restitution order pursuant to the Mandatory Victims Restitution Act (MVRA), which is distinct from a forfeiture proceeding. See United States v. Taylor, 582 F.3d 558, 565-66 (5th Cir. 2009), petition for cert. filed (Dec. 4, 2009) (No. 09-7980). Thus ,there was no requirement that the Government demonstrate that the money was traceable to Ogbemudia’s criminal offense. See United States v. Berger, 574 F.3d 1202, 1204 (9th Cir. 2009). The district court correctly determined that the restitution order gave the Government a lien against all of Ogbemudia’s property, and that the funds

seized could be used to satisfy the restitution order. See 18 U.S.C. § 3613(a), (f), (k), (n); United States v. Phillips, 303 F.3d 548, 550-51 (5th Cir. 2002).

( Cannot Re-Open Case for Restitution. United States v. Murray, 700 F.3d 241 (5th Cir. 2012). If court failed to order restitution, court may not reopen case months later and impose restitution. Dolan v. United States, 130 S.Ct. 2533 (2010) is distinguishable.

Discussion on if matter was barred by appeal waiver (no under facts).

( Order for Lump Sum Restitution. From United States v. Constante, __ F. App’x __

(5th Cir. June 7, 2010)(09-40491). Constante argues that, in light of the information in the presentence report (PSR) showing his financial inability to pay immediate restitution, the district court committed plain error by ordering him to make a single lump sum

restitution payment of $100,000 within 90 days of his release. He contends that the district court did not indicate that it had considered his financial resources and obligations in accord with 18 U.S.C. § 3664(f)(2) and, thus, abused its discretion and plainly erred in scheduling the lump sum payment. Because Constante did not raise his § 3664(f)(2) argument in the district court, this claim is reviewed for plain error only. See United States v. Howard, 220 F.3d 645, 647 (5th Cir. 2003). Section 3664(f)(2) requires the district court in setting a restitution payment to consider the defendant’s financial resources and assets, his projected earnings and income, and his financial obligations.

This court will reverse a district court’s decision concerning the scheduling of

restitution payments only if the defendant can show “that it is probable that the district court failed to consider one of the mandatory factors and the failure to consider that factor influenced the court.” United States v. Schinnell, 80 F.3d 1064, 1070 (5th Cir. 1996). ( The PSR reflected that Constante had cash assets of only $1300, a monthly

car note of $395 on a vehicle worth $18,000, and credit card debt of $600. Other than its determination that Constante could not afford to pay a fine, the district

court made no reference to Constante’s limited financial resources and merely

surmised that he had hidden the stolen funds. The record does not reflect that the district court considered Constante’s limited financial resources in ordering his immediate restitution payment of $100,000 as a condition of his supervised release. Therefore, the district court plainly erred in requiring the immediate payment of the restitution. See United States v. Myers, 198 F.3d 160, 169 (5th Cir. 1999).

Constante’s conviction and sentence are affirmed, except for the requirement that he pay the full amount of restitution immediately; that part of the sentence is vacated and remanded for reconsideration of the scheduling of the restitution payment. Id.

( Restitution for non-Party Sex Victim in Case. In re: Amy Unknown, --F.3d__

(5TH Cir. Mar. 22, 2011)(09-41238). See also United States v. Wright, 639 F.3d 679 (5th Cir. 2011), Rehearing en banc based on amount of restitution ordered in January 27, 2012. In re Unknown, No. 09-41238, 2012 WL 4477444 (5th Cir. Oct. 1, 2012) (en banc).. Also United States v. Paroline in consolidated appeal. Defendant was convicted of possessing child pornography. United States v. Paroline, 672 F. Supp. 2d 781, 792 (E.D. Tex. 2009).

Economidy Note: The en banc hearing granted rehearing, the below opinion was withdrawn and replaced by a new opinion. One must review the reh’g first before the

below withdraw opinion. The new opinion was released Nov. 19, 2012.

“Amy,” the victim of childhood sexual abuse and of a widely broadcast set

of photos depicting her abuse, has pursued restitution under the Crime Victims Rights’ Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her photos on the internet. Her appeal from the district court’s denial of relief arrives in an unusual posture. She filed both a direct appeal under 28 U.S.C. § 1291 and a petition for a writ of mandamus under 18 U.S.C. § 3771(d)(3). A panel of this court denied mandamus. In re Amy, 591 F.3d 792 (5th Cir. 2009). This panel was assigned, for ease of administration, both the direct appeal and Amy’s motion for panel rehearing of her mandamus petition. We need not reach the issue whether a crime victim has a right to a direct appeal, because the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA.

( Images of Amy were among the hundreds of images of child sexual abuse

that defendant Doyle Randall Paroline possessed. Paroline pled guilty to possession of child pornography in January 2009. At sentencing, Amy filed a victim impact statement and request for restitution. See 18 U.S.C. § 2259(a).

The latter sought $3,367,854, the cumulative cost of her lost income, attorney’s

fees, and ongoing psychological care. The government initially supported (and formally presented) Amy’s request for restitution. NCMEC also filed a brief that detailed the lasting impact of sexual assault and the victim’s additional suffering from the knowledge that people continue to view and circulate images of her abuse. Additional evidence before the district court included an expert evaluation of Amy’s psychological condition, economic report estimating her lost earnings, and scholarly articles regarding the general effects of child pornography. United States v. Paroline, 672 F. Supp. 2d 781, 792 (E.D. Tex. 2009). Notwithstanding the heartrending evidence, the district court denied Amy’s request for restitution. The court held that the CVRA required Amy and the government to prove that Paroline’s possession of Amy’s images—as distinct from the thousands of other individuals who continue to possess and view the images—proximately caused the injuries for which she sought restitution. Id. at 791-92. The government, in advancing Amy’s restitution claim, now accepts the court’s premise that proximate causation is required for all types of injury listed in § 2259. Amy immediately appealed the district court’s decision.

( We need not resolve the uncertainties [on whether third party has a right to appeal—conflicting opinions among the circuits], because our analysis leads to the conclusion that, even under the narrow standard of traditional mandamus review, the district court’s judgment cannot stand.

( The district court denied Amy’s request for restitution because the government failed to prove “what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images . . . .” United States v. Paroline, 672 F. Supp. 2d 781, 783 (E.D. Tex. 2009) (emphasis added). It reasoned that the statute, precedent, and compliance with the Eighth Amendment compel the conclusion that each category of loss in § 2259(b)(3) includes the element of proximate causation, even though the statute confines that requirement to the “catchall” provision, subsection F. This conclusion is

clearly and indisputably wrong.

The structure and language of § 2259(b)(3) impose a proximate causation

requirement only on miscellaneous “other losses” for which a victim seeks restitution.

Comparing the language of § 2259 with other restitution statutes affirms

the conclusion that proximate causation applies only to the catchall category of

harms. Under the VWPA, a victim is “a person directly and proximately harmed

as a result of the commission of an offense. . . .” 18 U.S.C. § 3663A(a)(2) (emphasis added). In contrast, § 2259, enacted 14 years later as part of the MVRA, defines a victim as “the individual harmed as a result of a commission of a crime . . . .” 18 U.S.C. § 2259(c) (emphasis added). Comparing these statutes reveals that Congress abandoned the proximate causation language that would have reached all categories of harm via the definition of a victim. This change is consistent with the reasons for enacting a second generation of restitution statutes. See, e.g., Unites States v. Ekanem, 383 F.3d 40, 44 (2d Cir. 2004) (noting “the intent and purpose of the MVRA to expand, rather than limit, the restitution remedy.”), United States v. Perry, 360 F.3d 519, 524 (6th Cir. 2004) (“The new law unquestionably reflects a dramatically more ‘pro-victim’

congressional attitude . . . .”). The evolution in victims’ rights statutes demonstrates Congress’s choice to abandon a global requirement of proximate causation.

In applying proximate causation beyond the catchall, the district court cited two Supreme Court cases interpreting statutory lists. Paroline, 672 F. Supp. 2d at 788 (citing Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 40 S. Ct. 516 (1920), Fed. Mar. Comm’n v. Seatrain Line, Inc., 411 U.S. 726, 93 S. Ct. 1773 (1973)). In Porto Rico Railway, the Supreme Court stated that “When several words are followed by a clause which is applicable as much to the The CVRA contains a definition of “crime victim” that parallels the VWPA and incorporates proximate causation: “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.” 18 U.S.C. § 3771(e). We focus on the MVRA definition, however, because Amy’s claim to restitution rests on that statute. The district court appreciated this fact and therefore turned to a provision of the MVRA to find a proximate causation requirement, viz. § 2259(b)(3). To evaluate the district court’s interpretation, we look to other sections of the same statute for guidance. The parties do not challenge whether Amy is a victim. Nevertheless, the MVRA's internal .

definition of victim is probative of the meaning of § 2259(b)(3).

( Who is a Victim under CVRA? In re Fisher, __ F.3d __ (5th Cir. May 9, 2011)(11-10452). Held: District Court affirmed that applicant was not a victim within meaning of

CVRA. In In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (per curiam) (quoting In re United States, 397 F.3d 274, 282 (5th Cir. 2005) (per curiam)) we held that a writ of mandamus may issue under the CVRA:

only if (1) the petitioner has “no other adequate means” to attain the

desired relief; (2) the petitioner has demonstrated a right to the

issuance of a writ that is “clear and indisputable;” and (3) the

issuing court, in the exercise of its discretion, is satisfied that the

writ is “appropriate under the circumstances.”

The CVRA requires us to “take up and decide” Fisher’s mandamus petition within seventy-two hours of the petition’s filing. 18 U.S.C. § 3771(d)(3). ¶ The CVRA’s “directly and proximately harmed” language imposes dual requirements of cause in fact and foreseeability. A person is directly harmed by the commission of a federal offense where that offense is a but-for cause of the harm. In re McNulty, 597 F.3d 344, 350 (6th Cir. 2010) (explaining that “[t]he requirement that the victim be ‘directly and proximately harmed’ encompasses the traditional ‘but for’ and proximate cause analyses” and that “direct harm encompasses a ‘but-for’ causation notion” (citations, internal quotation marks, and brackets omitted)). ¶ A person is proximately harmed when the harm is a reasonably foreseeable consequence of the criminal conduct. Cf. United States v. Vaknin, 112 F.3d 579, 590 (1st Cir. 1997) (explaining that restitution under the Victim and Witness Protection Act requires a showing “not only that a particular loss would not have occurred but for the conduct underlying the offense of conviction, but also that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally)”), abrogated on other grounds by United States v. Booker, 543 U.S. 220

(2005). “Under the plain language of the statute, a party may qualify as a victim, even though it may not have been the target of the crime, as long as it suffers harm as a result of the crime's commission.”

( ( United States v. Wright, 639 F.3d 679 (5th Cir. 2011), Rehearing en banc based on amount of restitution ordered in January 27, 2012.; United States v. Winkler, 639 F.3d 692 (5th Cir. 2011). (In Wright’s case, because the Government did not appeal and Amy did not seek mandamus review, we revised our opinion to affirm Wright’s sentence, in compliance with Greenlaw v. United States, 554 U.S. 237 (2008).

( United States v. Bernegger, __ (5th Cir. Oct. 20, 2011)(09-60932):

Finally, Bernegger challenges his sentence, arguing that the district court

improperly calculated the total loss caused by his fraudulent scheme as

$2,196,296 and improperly ordered restitution in that amount. See U.S.S.G.

§ 1B1.3(a)(2). A district court’s calculation of the amount of loss attributable to

a defendant is reviewed for clear error. United States v. Peterson, 101 F.3d 375,

384 (5th Cir. 1996).

Bernegger argues that, because he did not obtain the two loans criminally,

the district court improperly included them in the total loss amount. It is well

established that for “acts to constitute relevant conduct [for purposes of

calculating the total loss attributable to the defendant], the conduct must be

criminal.” United States v. Anderson, 174 F.3d 515, 526 (5th Cir. 1999) (citing

United States v. Powell, 124 F.3d 655, 665 (5th Cir. 1997)). “Before a court may

attribute losses to a defendant’s fraudulent conduct, there must be some factual

basis for the conclusion that those losses were the result of fraud.” See also

United States v. Randall, 157 F.3d 328, 331 (5th Cir. 1998).

No evidence introduced either at trial or at sentencing demonstrated that Bernegger obtained these loans in a fraudulent or otherwise criminal manner. In fact, the government never even alleged that Bernegger acted criminally in obtaining the loans. While the PSR lists Clay County and the Timber Board as victims, it fails to allege any facts to support this conclusion. Although a PSR “may be considered as evidence by the court when making sentencing determinations,” bare assertions made therein are not evidence standing alone. United States v. Ford, 558 F.3d 371, 376 (5th Cir. 2009). In the absence of evidence supporting its characterization of the loans, the PSR is inadequate to

support the inclusion of the loan amounts in the loss calculation. See Anderson, 174 F.3d at 528-30; see also Peterson, 101 F.3d at 385. As such, the district court clearly erred in treating the amounts Bernegger borrowed from Clay County and the Timber Board as losses attributable to “relevant conduct” within the meaning of section 1B1.3(a)(2) of the United States Sentencing Guidelines. Subtracting the amounts of the two government loans from the loss calculation does not affect Bernegger’s offense level, however, and therefore does not affect his sentence.

Because the district court clearly erred in calculating the total loss amount, however, the restitution amount is incorrect and must be modified. See United States v. Glinsey, 209 F.3d 386, 395-96 (5th Cir. 2000). We therefore modify the restitution amount to reflect the correct total loss amount of $1,725,000.

( Restitution is a criminal penalty and a component of the defendant’s sentence.” United States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994).

( ( 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).

( United States v. Sharma, __ F.3d __ (5th Cir. Dec. 21, 2012)(11-20102):

The MVRA limits restitution to the actual loss directly and proximately

caused by the defendant’s offense of conviction. See United States v. Hinojosa, 484 F.3d 337, 343 (5th Cir. 2007) (vacating order of restitution that included losses caused by uncharged fraud that was “outside the scope of the indictment and inconsistent with the understanding of the parties to the oral plea”).An award of restitution cannot

compensate a victim for losses caused by conduct not charged in the indictment

or specified in a guilty plea, or for losses caused by conduct that falls outside

the temporal scope of the acts of conviction. See United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005) (vacating excessive restitution award that included losses falling outside the “specific temporal scope of the indictment”) (emphasis in 0riginal).Moreover, excessive restitution awards cannot be excused by harmless error; every dollar must be supported by record evidence. See United States v. Arledge, 553 F.3d 881,899 (5th Cir. 2008)(vacating restitution award because less than 1% of the

total was not supported by evidence of causation by fraud).

By thus directly incorporating the amounts from the victim impact

statements into the PSRs as actual losses, the Probation Office went astray.

Examples from three of the insurers will suffice to show how the Probation

Office failed to scrutinize those amounts and thereby recommended restitution

for more than the insurers’ actual losses. One insurer, Tricare, claimed as loss

all of its payments to the Sharmas dating back to 1997. Inasmuch as the

charged conspiracy did not begin until 1998, however, the 1997 payments plainly

do not constitute actual losses under the MVRA. A second insurer, Texas

Amerigroup, reported that it paid the Sharmas $650,775.01 for injections, out

of a total of $929,884.55 paid to them for all treatments. Yet the Probation

Office listed the larger figure, the one for total payments, as actual loss instead

of listing only the lesser amount that the insurer paid for injections. This too

overstates the insurer’s loss by including payments not caused by the specific

convictions. A third insurer, Principal Life Insurance, attached a spreadsheet

of all of its payments to the Sharmas, but expressly stated that it was “not sure

which claims relate to the guilty plea.” The Probation Office nevertheless

reported all of those payments as actual loss. We find no independent basis in

the record on which the PSRs could have concluded that the entire amount

related to the guilty pleas when the insurer itself stated that it did not know.

( Restitution in Kiddie Porn Case. United States v. Esler, (5th Cir. June 24, 2013)

(11-30479): We review the legality of a restitution order de novo. United States v. Arledge, 553 F.3d 881, 897 (5th Cir. 2008). But, if the order is legally permitted, we

review the amount of restitution for an abuse of discretion. Id. In this case, the

district court ordered $37,750 in restitution for J.S.’s private school tuition and

the cost a new cellular phone

18 U.S.C. § 3663(a) and § 2259 were the statutory bases for the district court’s restitution order. Cf. United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005) (“A federal court cannot order restitution ‘except when authorized by statute.’” (citation omitted)). Pursuant to section 2259(a), “the court shall order restitution for any offense under this chapter.” Id. And, it is undisputed that Esler’s conviction for receipt of child pornography is covered under section 2259. Section 2259(b)(1) requires that, “The order of restitution . . . direct the defendant to pay the victim . . . the full amount of the victim’s losses.” Id. (emphasis added). Indeed, we previously have stated that section 2259 “reflects a broad restitutionary purpose,” and even when “full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography.” In re Amy Unknown, 701 F.3d 749, 760, 772 (5th Cir. 2012)(en banc), petition for cert. filed (Jan. 31, 2013) (No. 12-8505), and petition for

cert. filed (Jan. 31, 2013) (No. 12-8561).Applicable to the instant case is section 2259(b)(3)(F). Subsection (F) requires restitution for “any other losses suffered by the victim as a proximate result of the offense.” Id. (emphasis added). Thus, unlike the other provisions of section 2259(b)(3), subsection (F) requires a showing of proximate cause before restitution can be ordered.

In In re Fisher, 640 F.3d 645 (5th Cir. 2011), we addressed proximate

cause with respect to the Crime Victims’ Rights Act. See id. at 648. We stated

that, “A person is proximately harmed when the harm is a reasonably

foreseeable consequence of the criminal conduct.” Id. (citing United States v.

Vaknin, 112 F.3d 579, 590 (1st Cir. 1997), for its formulation of proximate cause

as a requirement that ensures “the causal nexus between the conduct and the

loss is not too attenuated (either factually or temporally)” (internal quotation

marks omitted)); see also Lewis v. Walston & Co., Inc., 487 F.2d 617, 622 (5th

Cir. 1973), disagreed with on other grounds by Pinter v. Dahl, 486 U.S. 622

(1988) (defining proximate cause with reference to whether the individual’s

actions “were a ‘substantial factor’ . . . and thus the ‘proximate cause’”). Esler’s primary argument is that his conduct of conviction—receipt of child pornography—was not the proximate cause of J.S.’s substantial academic decline A review of the record demonstrates clearly that Esler’s criminal conduct was causally related to, and had a substantial nexus with, J.S.’s academic decline. The government references numerous examples of J.S.’s erratic behavior that are correlated with his failings in school. For example, J.S. actively was attempting to conceal his contact with Esler from his family; he was worried about his family discovering the image of his genitalia and learning that he had sent the image to Esler; and J.S. suffered great shame when the image actually was discovered by his mother. Sufficient evidence thus exists to link

Esler’s persistent requests for J.S. to take and send a nude photograph—combined with Esler’s apparent threat to commit suicide if J.S. did not provide such a picture—with J.S.’s scholastic decline.

It is reasonably foreseeable that harassing a minor into sending a nude image of himself would cause great stress and anxiety such that his academic achievement would be impacted. We therefore find that the restitution order was legally imposed pursuant to 18 U.S.C. § 3663(a) and § 2259. AFFIRMED

N. 3 Contrary to Esler’s argument, we are not required to apportion the amount of loss between his conduct of conviction and his post-offense threats and harassment of J.S. All that we must decide is whether his receipt of child pornography was a substantial factor in causing J.S.’s harm. See Lewis, 487 F.2d at 622; see also United States v. Crandon, 173 F.3d 122, 126 n.2 (3d Cir. 1999).

( Restitution in Firearms Case. United States v. Espinoza, __ F.3d ___ (5th Cir.

Apr 17, 2012)(11-50369)(Reverses restitution to pawn shop in conviction of felon in possession of a firearm after D stole and then pawned the guns.). A federal court cannot order restitution ‘except when authorized by statute.’” Under the Victim and Witness Protection Act (VWPA), a district court may order a defendant to pay restitution to any victim of an offense under Title 18 of the United States Code as well as victims of a number of other enumerated offenses. Under the Mandatory Victims Restitution Act (MVRA), a district court is required to order a defendant to pay restitution to a victim under certain circumstances, which include those in which the victim suffered a pecuniary loss as a result of a crime of violence or an offense against property under Title 18, including any such offense committed by fraud or deceit. Under both statutes,

restitution can be awarded to a “victim,” defined as “a person directly and

proximately harmed as a result of an offense for which restitution may be

ordered including, in the case of an offense that involves as an element a scheme,

conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” Relying on the Supreme Court’s decision in Hughey v. United States, we have held that “a district court can award restitution to victims of the offense.

( United States v. Benns, __ F.3d ___ (5th Cir. Jan. 21, 2014)(12051038): The presentence report (“PSR”) described an ongoing scheme by Benns to target distressed properties (i.e. properties with little or no equity in them) that had been on the market for at least ninety days. Benns would invite the homeowner to deed the property to him without receiving any payment, and would agree to take over the mortgage payments for the property and attempt to sell it. Benns would then purport to sell the homes to rent-to-own buyers, collecting down payments and monthly mortgage payments from the buyers.

However, Benns frequently collected money from the buyers but did not use it to make the monthly mortgage payments. The PSR listed ten properties acquired by Benns that ultimately were foreclosed after mortgage payments were not made. …. According to Benns’ statements in an interview with law enforcement officers, “he did not intend for this to happen. He stated he was trying to keep up with too many properties and did not have a good tracking system.” …. Nevertheless, the property was eventually foreclosed, resulting in a loss of $54,906.59 to the Department of Housing and Urban Development (“HUD”). The other nine foreclosures resulted in total losses of $489,695.83 to the mortgage holders and/or guarantors of the properties. As the PSR explained, “[t]he loss amount from the mortgage companies is the outstanding principal balance at the time of foreclosure, plus any out-of-pocket costs related to the foreclosure, minus the resell value of the property.” Based on these losses, the PSR held Benns accountable for a total loss

amount of $544,602.42.

LOSS AMOUNT. A defendant convicted of an offense involving fraud or deceit is sentenced based on the amount of loss attributable to his conduct. See U.S.S.G. § 2B1.1(b). In addition to losses attributable to the acts underlying the offense of conviction, the loss amount may include losses attributable to other acts that constitute

“relevant conduct” as defined in the Sentencing Guidelines. See U.S.S.G.

§ 1B1.3(a)(2).3 Relevant conduct includes “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id.

We note at the outset that there is no evidence in the PSR, or elsewhere in the record, establishing that Benns’ offense of conviction – submitting a forged loan modification application and fake pay stub to Countrywide Bank – caused any loss at all. The PSR does not even state whether the application was granted, and it includes no loss suffered by Countrywide. Accordingly, Benns’ challenge to the loss amount focuses entirely on acts found to be relevant conduct – specifically, his dealings with the home buyers and sellers. …. As Benns correctly notes, he did not necessarily commit any crimes in

failing to make mortgage payments on the homes he acquired. Benns could have

entered into his house-flipping scheme fully intending to fulfill his promises to he buyers and sellers, yet found himself unable to do so due to some

combination of misfortune and ineptitude. On the other hand, if he intended to

defraud the buyers and/or sellers at the time he induced them to enter into

transactions with him, he may have committed numerous crimes.

Finally, if Benns is to be held accountable through relevant conduct for

losses to mortgage lenders caused by default and foreclosure, his criminal acts

must have actually caused these losses. See, e.g., United States v. Randall, 157

F.3d 328, 331 (5th Cir. 1998) (“Before a court may attribute losses to a

defendant’s fraudulent conduct, there must be some factual basis for the

conclusion that those losses were the result of fraud.”)

“The general rule is that a district court can award restitution to victims

of the offense, but the restitution award can encompass only those losses that

resulted directly from the offense for which the defendant was convicted.”

United States v. Maturin, 488 F.3d 657, 660-61 (5th Cir. 2007). However, “the

court may also order, if agreed to by the parties in a plea agreement, restitution

to persons other than the victim of the offense.” 18 U.S.C. § 3663(a)(1)(A); see

Maturin, 488 F.3d at 661.

We agree that the district court erred by awarding restitution based on

relevant conduct that went beyond Benns’ offense of conviction. Moreover, an

award of restitution based on losses not resulting from the offense of conviction

is an error that is clear and obvious. See United States v. Inman, 411 F.3d 591,

595 (5th Cir. 2005). The error resulted in an award of more than half a million

dollars against Benns. “When a defendant is ordered to pay restitution in an

amount greater than the loss caused, the error affects substantial rights as well

as the fairness and integrity of the judicial proceeding.” United States v. Austin,

479 F.3d 363, 373 (5th Cir. 2007).

( Review Standards. United States v. Lozano, __ F.3d __ (5th Cir. June 23, 2015)(13-40042): We ordinarily review the legality of a restitution order de novo. United States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004). Here, however, because the defendant failed to the object to the restitution calculation, we review for plain error. United States v. Maturin, 488 F.3d 657, 659–60 (5th Cir. 2007). We must determine if there was error, if it was plain, and if it affected the defendant’s substantial rights. Id. at 660. “When all three of these requirements are met, we will exercise our discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005).

( We have repeatedly found plain error where a district court awards restitution based on losses that occurred outside the proper temporal scope. See, e.g., Mason, 722 F.3d at 694; Inman, 411 F.3d at 595; see also United States v. De Leon, 728 F.3d 500, 508, n.36 (5th Cir. 2013). While none of those cases involve a plea agreement, here the factual basis unambiguously defined the temporal scope of the offense of conviction. When reciting the factual basis in court, the prosecutor twice stated the offense began on or about April 30, 2005. The district court cited that same temporal scope on the record. Moreover, we have previously found error when, after a plea agreement, the district court awarded restitution based in part on losses that occurred prior to the proper temporal scope. See Sharma, 703 F.3d at 323. The error was plain.

( Turnover Order for Payment from Inmate Trust Fund of Restitution. See Turnover order. United States v. Brewer (5th Cir. Oct. 18, 2017)(16-11707):

RICO See also Vicar

( Interstate Travel In Aid of Racketeering. Violation of 18 U.S.C. § 1952. EofO:

(1) that Tovar traveled in interstate commerce;

(2) with the specific intent to promote, manage, establish, or carry on—or distribute

the proceeds of—unlawful activity; and

(3) that Tovar committed a knowing and

willful act in furtherance of that intent, subsequent to the act of travel in

interstate commerce.

United States v. Logan, 949 F.2d 1370, 1380–83 (5th Cir. 1991); United States v. Tovar,

__ F.3d __ (5th Cir. June 7, 2013)(12-40557).

RICO (CIVIL) CLASS ACTIONS

( Torres v. SGE Management, __ F.3d __ (5th Cir. 16 Oct 2015)(14-20128):

|( On appeal, the Plaintiffs have focused their argument to contend that class certification was appropriate specifically under | |

|Rule 23(b)(3).3 “A class may be certified under Rule 23(b)(3) only if it meets the four prerequisites found in Rule 23(a) and | |

|the two additional requirements found in Rule 23(b)(3).”4 Mullen, 186 F.3d at 623. The parties do not presently dispute that the| |

|Plaintiffs meet the requirements of Rule 23(a). Instead, the arguments address whether the Plaintiffs have satisfied Rule | |

|23(b)(3), which permits class certification if “the court finds that the questions of law or fact common to class members | |

|predominate over any questions affecting only individual members, and that a class action is superior to other available methods| |

|for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Although Rule 23(b)(3) requires both | |

|“predominance” of common questions of law and fact and “superiority” of a class action as a remedy, the Defendants here focus | |

|only on the predominance requirement. “The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently | |

|cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). In short, | |

|“[w]here the plaintiff seeks to certify a class under Rule 23(b)(3), the Rules demand ‘a close look at the case before it is | |

|accepted as a class action.’” Madison v. Chalmette Ref., L.L.C., 637 F.3d 551, 554 (5th Cir. 2011) (quoting Amchem, 521 U.S. at | |

|615). B. We must consider the predominance issue under Rule 23(b)(3) in the light of the elements of the Plaintiffs’ cause of | |

|action. See Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996). | |

| | |

| | |

| | |

| | |

| | |

| | |

| | |

| | |

( The Plaintiffs alleged a pattern of racketeering activity consisting of acts of mail and wire fraud. See 18 U.S.C. § 1341 (mail fraud); 18 U.S.C. § 1343 (wire fraud). We have traditionally required a plaintiff presenting a civil RICO claim based on predicate acts of mail and wire fraud to establish proximate cause by showing that he or she relied on a defendant’s fraudulent misrepresentations. See In re Mastercard Int’l Inc., 313 F.3d 257, 263 (5th Cir. 2002) (“[A]lthough reliance is not an element of statutory mail or wire fraud, we have required its showing when mail or wire fraud is alleged as a RICO predicate.”). The Supreme Court has since held, however, “that a plaintiff asserting a RICO claim predicated on mail fraud, need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant’s alleged misrepresentations.” Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 661 (2008). Although Bridge dispenses with first party reliance, “none of this is to say that a RICO plaintiff who alleges injury ‘by reason of’ a pattern of mail fraud can prevail without showing that someone relied on the defendant’s misrepresentations.” Id. at 658. The extent to which Bridge alters the reliance requirement in RICO class actions is not at issue on appeal, however, as the Plaintiffs concede that proximate cause in their case depends on reliance. The Plaintiffs argue instead that they have set forth an adequate common theory of reliance. C. The Plaintiffs must establish that they can prove reliance through common evidence, as we have said that a class action cannot be certified if proof of reliance will depend on individualized evidence: [A] district court [considering a motion for class certification] must perform sufficient analysis to determine that class members’ fraud claims are not predicated on proving individual reliance. If the circumstances surrounding each plaintiff’s alleged reliance on 11 fraudulent representations differ, then reliance is an issue that will have to be proven by each plaintiff, and the proposed class fails Rule 23(b)(3)’s predominance requirement. Unger v. Amedisys Inc., 401 F.3d 316, 321 (5th Cir. 2005).

( Pyramid Scheme. Pyramid schemes, however, are not losing propositions for all investors. Instead, “pyramid schemes may make money for those at the top of the . . . pyramid, but ‘must end up disappointing those at the bottom who can find no recruits.’” Id. at 781 (quoting In re Koscot Interplanetary, Inc., 86 F.T.C. 1106, 1181 (1975)). Thus, an individual who participates in a pyramid scheme necessarily takes a gamble that she will be reasonably near the top of the pyramid. Although an individual may lose money if it turns out that she invested at the wrong time, this misjudgment does not, a fortiori, mean that the individual is irrational. Such an investor may have rationally assumed both that the business was a pyramid scheme and that the investment was worth the gamble of being near the top of the pyramid. So, with this background, we turn to examine some of the representations regarding Ignite in this case.

Civil RICO Survivability

( Malvino v. Delluniversita, __ F.3d ___ (5th Cir. Oct. 20, 2016)(15-41435)(also posted under Coin Collecting for further important details):

Malvino filed suit against Anthony and Paul, PCA, and PCI, asserting a substantive civil RICO violation predicated on mail fraud and wire fraud; conspiracy to violate RICO; various state common law claims including fraud, fraudulent concealment, and negligent misrepresentation; civil conspiracy to commit the state common law violations; and violations of the Texas Deceptive Trade Practices Act.

After a bench trial, the district court dismissed the Texas Deceptive Trade Practices Act claims on the ground that they did not survive Pereida’s death. The court ruled in Malvino’s favor, however, on the fraud, negligent misrepresentation, and civil conspiracy claims asserted against PCA and PCI, and held Anthony personally responsible for damages associated with the claims.3 For these common law claims, the court found economic damages of $536,934 and exemplary damages in the same amount.

The court also found Anthony and PCA liable under both the substantive and conspiracy provisions of civil RICO. It held that these claims survived Pereida’s death, reasoning that RICO is primarily a remedial statute. Under RICO’s treble damages provision, the court calculated damages in the amount of $1,610,802.4 It also noted that RICO allows a prevailing plaintiff to recover attorneys’ fees, which totaled $280,190.

3 The district court found that Paul was not individually liable on any claim and entered a judgment in his favor.

4 This amount represents three times the difference in the price Pereida paid for the coins and the Heritage appraised value.

Although it calculated damages for the common law claims and the federal statutory ones, the district court concluded that Texas’s one satisfaction rule did not allow for recovery under both. It therefore asked Malvino to elect between the two. Malvino sought to recover the RICO damages against Anthony and PCA, and damages for the common law claims against PCI, but the district court found this would impermissibly allow a double recovery. It thus entered judgment only on the RICO claims, against Anthony and PCA.

Defendants moved for a new trial, contending, among other things, that Malvino did not prove they had “engaged in illegal activity over a sufficient period of time to be considered ‘racketeering activity’ for purposes of RICO.” The district court denied that motion, and the Defendants appealed.5

II. Defendants first argue that a RICO claim does not survive the victim’s death. We have characterized survivability as an issue of standing. See Matter of Wood, 643 F.2d 188, 190 (5th Cir. 1980) (stating that a trustee would have “standing” to press a decedent’s claim under the Truth in Lending Act’s civil liability provisions only if the claim survived the plaintiff’s death). Standing comes in many different forms. Cotton v. Certain Underwriters at Lloyd’s of London, 831 F.3d 592, 594–95 (5th Cir. 2016). If survivability involves the constitutional variety of standing, then it goes to our jurisdiction and must be addressed first. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016).

Survivability does not, however, appear to be a question of Article III standing. Article III requires that a plaintiff must have suffered a concrete injury in fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The RICO violation caused such an injury to Pereida to the tune of more than $500,000. As a result, it also caused the same economic injury to her estate. Absent the alleged fraud, her estate would have more money. The existence of constitutional injury is reflected by longstanding federal statutes which provide that causes of action survive the death of a party, thus extending the right to sue to representatives of a party’s estate. See 7C CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & PROC. CIV. § 1954, § 1954 n.11 (3d ed. 2007) (citing, as an example, the Federal Employers’ Liability Act). No court has questioned Congress’s authority to extend the right to sue in this way, which it could not do if the estate otherwise lacked constitutional injury. Spokeo, Inc., 136 S. Ct. at 1547–48. Whether the RICO claim survives the injured party’s death is thus more accurately viewed as a question of statutory standing. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387, 1387 n.4 (2014) (noting that statutory standing turns on “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim”). Although RICO’s survivability therefore goes to whether Malvino has a cause of action, as opposed to whether the court has jurisdiction, id., statutory standing is often treated as a threshold issue. See United States v. All Funds on Deposit with R.J. O’Brien & Associates, 783 F.3d 607, 612–16 (7th Cir. 2015) (finding, as a “threshold issue[ ],” that plaintiffs had statutory standing to sue under the Terrorism Risk Insurance Act before finding they failed to prove a claim under the Act); Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 171–78 (3d Cir. 2015) (addressing statutory standing under the Clayton Act as a nonjurisdictional “threshold issue”). It makes sense to treat it that way here.

The general rule for the survivability of federal statutes is that penal statutes do not survive, whereas remedial statutes do. In re Wood, 643 F.2d at 190 (citing Ex parte Schreiber, 110 U.S. 76, 80 (1884)). The idea that “any obligation which is penal dies with the person; but that an obligation to restore something does not” has existed in English law since at least the thirteenth century. 3 W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW, at 577 (5th ed. 1966) (citing thirteenth century English jurist Henry de Bracton). Over time, this notion of remedial laws that survive a person’s death has expanded from contract, to real property, to a wide variety of laws. Id. at 576–585; 7C FED. PRAC. & PROC. CIV. § 1954. The reason for the different treatment of remedial and penal laws is unclear. See Note, Survival of Actions Brought Under Federal Statutes, 63 COLUM. L. REV. 290, 290–91 (1963). One possible explanation is that, when the rule developed, the administrator of an estate was obligated to make restitution for the decedent’s wrongs for the good of the decedent’s soul, and ecclesiastical courts oversaw the administration of estates, providing relief not available in common law courts, so there was no need to enforce penal law against estates in common law courts. HOLDSWORTH, A HISTORY OF ENGLISH LAW, at 582–83. This does not explain why an estate would not have a right to sue under penal statutes, and, in fact, estates’ rights to sue expanded more quickly than their liabilities to suit. Id. at 583–85. Eventually, however, those rights and liabilities became essentially coextensive. See id.; 7C FED. PRAC. & PROC. CIV. § 1954. And “the federal law of survival has clung to its common law antecedents.” Note, Survival of Actions Brought Under Federal Statutes, at 291.

Whether a statute is penal or remedial turns on “whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.” In re Wood, 643 F.2d at 191 (quoting Huntington v. Attrill, 146 U.S. 657, 668 (1892)). Factors to consider include: “(1) whether the purpose of the statute was to redress individual wrongs or more general wrongs to the public; (2) whether recovery under the statute runs to the harmed individual or to the public; and (3) whether the recovery authorized by the statute is wholly disproportionate to the harm suffered.” Id. (quoting Murphy v. Household Fin. Corp., 560 F.2d 206, 209 (6th Cir. 1977)).

Focusing on the last inquiry, Defendants argue that the availability of treble damages under RICO demonstrates the statute is punitive. But a number of statutes that provide remedies beyond actual damages have been held to be remedial and thus survive. In Wood, we recognized that the Truth in Lending Act, by affording a debtor statutory damages of twice the amount of an unauthorized charge even without a showing of actual damages, “effectively imposes a penalty on the creditor.” Id. at 190. “That a penalty [was] imposed, however, [did] not end our inquiry.” Id. Instead, recognizing that the statute’s liability did not “fall neatly within the common law categories of either a penalty or a remedial action,” we considered the primary purpose of the statute and, finding it remedial, concluded that the cause of action survived. Id. at 192 (quoting Porter v. Household Finance Corp., 385 F. Supp. 336, 342 (S.D. Ohio, 1974)). We noted that both the antitrust and patent laws authorize recoveries “substantially in excess of ‘actual’ damages but [ ] have been held not to be penalties (and thus to survive).” Id. at 193 n.12.

Likewise, the availability of treble damages under RICO does not prevent it from being classified as a remedial statute. The Supreme Court has “repeatedly acknowledged that the treble-damages provision contained in RICO itself is remedial in nature.” PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 406 (2003) (determining that civil RICO claims should be sent to arbitration although arbitration clauses in the parties’ agreements prohibited awards of “punitive damages”); see also Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 240 (1987) (explaining that RICO’s legislative history emphasizes “the remedial role of the treble-damages provision” and shows that other purposes of RICO damages are “secondary”). RICO is “designed to remedy economic injury by providing for the recovery of treble damages.” 5 9 PacifiCare, 538 U.S. at 406 (quoting Agency Holding Corp. v. Malley–Duff & Associates, Inc., 483 U.S. 143, 151 (1987)). Treble damages, which unlike traditional punitive damages are derived from actual damages, ensure the plaintiff is adequately compensated “by counter-balancing the difficulty of maintaining a private suit.” See Am. Soc. of Mech. Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 575 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 486 n.10 (1977)); see also Cook Cty., Ill. v. U.S. ex rel. Chandler, 538 U.S. 119, 131 (2003) (noting that, under the False Claims Act, multiple damages “provide elements of make-whole recovery beyond mere recoupment of the fraud”). Consistent with this remedial purpose, RICO damages are awarded to the harmed individual rather than the public.

Even before these strong pronouncements in PacifiCare, the Fourth Circuit concluded that civil RICO survives a plaintiff’s death. Faircloth v. Finesod, 938 F.2d 513 (4th Cir. 1991).6

(Note 6: District courts have split on the question of RICO’s survivability. Compare Hoffman v. Sumner, 478 F. Supp. 2d 1024, 1031 (N.D. Ill. 2007) (finding RICO penal and collecting cases), with Cty. of Oakland by Kuhn v. City of Detroit, 784 F. Supp. 1275, 1285 (E.D. Mich. 1992) (finding RICO remedial and collecting cases). Notably, however, most district courts that found the statute to be penal did so before Pacificare. But see Hoffman, 478 F. Supp. 2d at 1031 (finding RICO penal after Pacificare, without citing that decision).

Recognizing that “civil RICO is a square peg, and squeeze it as we may, it will never comfortably fit in the round holes of the remedy/penalty dichotomy,” it found a claim under the statute survived the death of the injured party because Congress “explicitly declared the purpose of RICO to be ‘remedial’ and directed that it be ‘liberally construed’ to effect this purpose.” Id. at 518 (quoting Pub. Law No. 91–452, tit. IX § 904(a), 84 Stat. 947, reprinted 18 U.S.C. foll. § 1961).

Defendants argue that our recent decision in Gil Ramirez Group v. Houston Independent School District, 786 F.3d 400 (5th Cir. 2015), rejects treating RICO as remedial. Gil Ramirez notes what the Fourth Circuit had recognized in Faircloth: that RICO serves both compensatory and punitive purposes. Id. at 412–13. As between the two, it acknowledges the Supreme Court’s view that RICO’s treble damages provision is primarily remedial. Id. at 413 (quoting Pacificare, 538 U.S. at 406). But that did not resolve the question in Gil Ramirez, which was whether RICO damages could be awarded against municipal entities. Id. at 405–13. We concluded that municipal entities are immune from damages that are at all punitive. Id. at 412–13. The dual nature of RICO damages therefore prevented any recovery against municipal entities in Gil Ramirez. But in deciding the survivability question which turns on the primary nature of the statute, we follow the Supreme Court’s guidance that RICO’s remedial purpose predominates and hold that a claim under the statute survives the victim’s death.

Right of Counsel

( United States v. Guerrero-Robledo, 585 F.3d 940 (5th Cir. 2009)(07—41151)(4-20-09): Over forty-five years ago, the Supreme Court held that the Sixth Amendment right to state-appointed counsel, which had already been established in federal court proceedings, applied to state criminal prosecutions through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963). Subsequently, the Supreme Court held that if a conviction is obtained in violation of Gideon, it cannot be used “either to support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U.S. 109, 115 (1967). In United States v. Mitchell, this Court opined that: The rule which has evolved is that when a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds, and the record shows that he was not represented by counsel or is silent regarding representation of counsel, then the party which defends the conviction has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel. 482 F.2d 289, 296 (5th Cir. 1973). In the case at bar, the government contends that the prior conviction should be afforded a presumption of regularity. The government relies on the Supreme Court’s opinion in Parke v. Raley, 506 U.S. 20 (1992). In Raley, Supreme Court addressed whether Kentucky’s burden-of-proof scheme violated due process because it presumed that a prior conviction being used for sentence enhancement was validly obtained. Id. at 22. In state trial court, the defendant, who had been charged as a persistent felony offender, contended that two of his prior convictions were invalid under Boykin v. Alabama, 395 U.S. 238 (1969), because the records did not contain transcripts of the plea proceedings demonstrating that his pleas were knowing and voluntary. Id. at 22-23. The Supreme Court ultimately held that the burden-shifting rule “easily passes constitutional muster.” Id. at 28. Although the Supreme Court recognized the language in Boykin that the “waiver of rights resulting from a guilty plea cannot be ‘presume[d] . . . from a silent record,’” it explained that Boykin involved the direct appeal of a conviction. Id. at 29 (quoting Boykin, 395 U.S. at 243). In contrast, the petitioner in Raley had never appealed his two prior convictions, which had become final years ago. Id. The Supreme Court declined to import Boykin’s presumption of invalidity in the context of a collateral challenge to a conviction, explaining that doing so would “improperly ignore another presumption deeply rooted in [its] jurisprudence: the ‘presumption of regularity’ that attaches to final judgments, even when the question is waiver of constitutional rights.” Id.

Revocation of Citizenship. United States v. Cornejo, (5th Cir. Feb. 15,2 017)(16-20547)

To revoke citizenship, the government must prove that: (1) the naturalized citizen misrepresented or concealed a fact; (2) the misrepresentation or concealment was willful; (3) the fact was material; and (4) the naturalized citizen procured citizenship as a result of the misrepresentation or concealment. See Kungys v. United States, 485 U.S. 759, 767–71 (1988). Cornejo’s appeal focuses on materiality. A fact is material if it “was predictably capable of affecting” or “had a natural tendency to affect” the determination of whether the applicant met the requirements for citizenship. Id. at 771. To become a naturalized citizen, an applicant must be “a person of good moral character” from five years prior to submitting an application for citizenship until the date of citizenship. 8 U.S.C. § 1427(a). Cornejo’s brief focuses on the provision barring an applicant from meeting that standard if he had committed a crime of moral turpitude, 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A)(i)(I), which Cornejo contends his drug offenses were not. But we need not decide that question. An applicant also does not qualify as a person of good moral character if he admits that, during the statutory time period, he committed acts which constitute a violation of “any law or regulation of a State . . . relating to a controlled substance,” other than a crime of simple possession of a small amount of marijuana. 8 U.S.C. §§ 1101(f)(3); 1182(a)(2)(A)(i)(II). This is true regardless of whether the applicant is ever arrested or convicted. See 8 U.S.C. § 1182(a)(2)(A)(i). At summary judgment, the government established that Cornejo committed such a crime while his application was pending in light of his later guilty plea to the Kansas drug offenses that occurred prior to his interview. To the extent he now alleges otherwise, he is estopped from doing so by his guilty plea. See In re Grothues, 226 F.3d 334, 339 (5th Cir.2000); United States v. Kayode Akamo, 515 F. App’x 248, 249 (5th Cir. 2012). The omitted fact of his drug crime was therefore material as a crime relating to a controlled substance.

Rooker-Feldman Doctrine(See Collateral Attack on State Judgment

( The Rooker-Feldman doctrine refers to the doctrine derived from two Supreme Court 2

cases, see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923).

Role in Offense See also Minor Participant/Minor Role

( A defendant’s base offense level may be increased three levels “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” § 3B1.1(b). An enhancement under § 3B1.1 may be warranted if the defendant managed the criminal organization’s property, assets, or activities. United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006); United States v. Lopez-Urbina, 434 F.3d 750, 767 (5th Cir. 2005).

We review the district court’s determination that a defendant was a manager or supervisor under § 3B1.1(b) for clear error. Rose, 449 F.3d at 633. A factual finding is not clearly erroneous if it is plausible in light of the entire record. Id.

( The determination that a defendant is a leader or organizer under § 3B1.1(a) is a factual finding reviewed by this court for clear error. United States v. Cabrera, 288 F.3d 163, 173 (5th Cir. 2002).

( United States v. Nava, 624 F.3d 226 (5th Cir. 2010).

Roving Patrols

( “A border patrol agent conducting a roving patrol may make a temporary investigative stop of a vehicle only if the agent is aware of specific articulable facts, together with

rational inferences from those facts, that reasonably warrant suspicion that the vehicle’s occupant is engaged in criminal activity.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). In assessing whether the stop was supported by reasonable suspicion, we consider the totality of the circumstances in light of the factors set forth in United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975). Id. The fact that the agent observed the vehicle exiting from a ranch that borders the Rio Grande “contributes significantly” to the reasonableness of the agent’s suspicion. See United States v. Nichols, 142 F.3d 857, 867 (5th Cir. 1998). The agent, who had worked in the particular area for more than four

years, also testified that the ranch was located in a “high traffic” area, that numerous seizures of aliens and narcotics had occurred in this area, and that he had made arrests in that particular area. These factors weigh in favor of reasonable suspicion. See Jacquinot, 258 F.3d at 428-30. … In reviewing the denial of a motion to suppress based on a search warrant, we first determine whether a “good-faith” exception to the exclusionary rule applies. See United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). If the good-faith exception applies, this court’s analysis concludes and the district court’s denial of

suppression will be affirmed. Id.

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