Fifth Circuit Criminal Case Law in CY 2008--2010 : S to Z



Fifth Circuit Criminal Case Law in CY 2008— 2017: S

Compiled by Attorney John M. Economidy of San Antonio

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

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

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

their Federal Appendix cite. For significance and dissent on unreported

cases, see the topic “Unreported Cases.”

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

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

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

Safety Valve

( Defendant has the burden of showing that she has truthfully provided to the Government all of the information and evidence she has concerning the offense. See United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996); see also U.S.S.G. § 5C1.2(a)(5).

( We review for clear error a district court’s decision to apply the safety

valve provision. United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).

“Under the clearly erroneous standard, [i]f the district court’s account of the

evidence is plausible in light of the record viewed in its entirety the court of

appeals may not reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.” United States v.

Davis, 76 F.3d 82, 84 (5th Cir. 1996)

Pursuant to U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), a defendant who

provides information to the Government may escape the imposition of a

statutory minimum sentence if the district court finds that he meets five criteria.

United States v. Lopez, 264 F.3d 527, 529-30 (5th Cir. 2001). The fifth criterion,

the only one at issue here, requires that by the time of sentencing “the defendant

has truthfully provided to the Government all information and evidence the

defendant has concerning the offense.” § 5C1.2(a)(5); see also § 3553(f)(5). The

defendant has the burden of showing eligibility for the safety valve reduction,

including the burden of showing that she truthfully provided the Government

with all relevant information. United States v. Flanagan, 80 F.3d 143, 146-47

(5th Cir. 1996).

Sanchez made statements at sentencing that contradicted statements

made at the time of his arrest and also contradicted information obtained by the

Government. See United States v. Edwards, 65 F.3d 430, 433 (5th Cir. 1995).

Therefore, Sanchez has not shown clear error with respect to the district court’s

denial of his request for a safety valve reduction. See id.; McCrimmon, 443 F.3d

at 457-58.

( District Court cannot conclude that defendant’s criminal history record is over-represented so as to reduce criminal history category to I and to make defendant eligible for safety valve. United States v. Jasso, __ F.3d ___ (5th Cir. Feb. 17, 2011)(10-40203).

In 1994, Congress enacted 18 U.S.C. § 3553(f), which allows certain lowlevel defendants convicted of drug crimes to avoid application of the harsh mandatory minimum prison terms otherwise directed by statute. See United States v. Rodriguez, 60 F.3d 193, 194–96 (5th Cir. 1995). Under § 3553(f), a court must impose a sentence in accordance with the Guidelines “without regard to any statutory minimum sentence” when certain conditions are met. One condition is that the defendant must “not have more than 1 criminal history

point, as determined under the sentencing guidelines.” Id. at § 3553(f)(1). This statutory safety valve was reproduced in U.S.S.G. § 5C1.2(a)(1), which was subsequently amended in 2003 to require further that the defendant not have more than one criminal history point “as determined under the sentencing guidelines before application of subsection of 4A1.3.” Id. (emphasis added). Here, the district court had no discretion to do anything other than impose a sentence at or above the statutory minimum based on Jasso’s two criminal history points. Section § 3553(f)(1) “explicitly precludes departure from the mandatory minimum provisions of 21 U.S.C. § 841 if the record shows that a defendant has more than one criminal history point.” United States v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir. 1995). Likewise, U.S.S.G. § 5C1.2(a)(1)’s

safety valve only applies to defendants with one or zero criminal history points

as calculated before application of any downward variances permitted elsewhere

by the Guidelines. See United States v. Robinson, 158 F.3d 1291, 1294 (D.C. Cir.

1998). Accordingly, Jasso’s two criminal history points rendered him ineligible

for safety valve relief under the relevant statutory and Guidelines provisions.

( Weapon Makes Defendant Ineligible for Safety Valve. Even if Obregon did not inform those he dealt with that he had the gun and did not ever display it to them, it was available and accessible to him to use as protection for himself, his drugs, and his drug proceeds. See United States v. Vasquez, 161 F.3d 909, 910-913 (5th Cir. 1998). The Government carried its burden of showing “that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.” United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). In addition, Obregon has not shown “that it was clearly improbable that the weapon was connected with the offense.” See United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010). Thus, the district court did not clearly err in applying § 2D1.1(b)(1).

( Granting of Safety Valve Reversed on Appeal. United States v. Solis, __ F.3d __ (5th Cir. March 20, 2012)(11-30390): As expressed above, 18 U.S.C. § 3553(f) requires that, in order to be eligible for the safety valve, “the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines[.]” 18 U.S.C. §

3553(f)(1). The 2002 version of § 5C1.2(a)(1) repeats this requirement verbatim.

However, its commentary notes state that § 5C1.2(a)(1) refers to criminal history

points as determined under § 4A1.1.

All circuit courts of appeal having addressed this issue have determined

that the pre-Amendment 651 sentencing guidelines are not ambiguous, but

rather are clear that downward departures pursuant to § 4A1.3 are not to be

considered under § 5C1.2(a)(1). See United States v. Valencia-Andrade, 72 F.3d

770 (9th Cir. 1995); United States v. Resto, 74 F.3d 22 (2d Cir. 1996); United

States v. Orozco, 121 F.3d 628 (11th Cir. 1997); United States v. Robinson, 158

F.3d 1291 (D.C. Cir. 1998); United States v. Owensby, 188 F.3d 1244 (10th Cir.

1999); United States v. Webb, 218 F.3d 877 (8th Cir. 2000); United States v.

Penn, 282 F.3d 879 (6th Cir. 2002). ¶ In reaching this conclusion, reviewing courts have relied on two main factors. First, the commentary to § 5C1.2 states that more than one criminal history point means more than one criminal history point as determined under § 4A1.1. “Section 4A1.1 is the schedule that specifies how a sentencing court

should calculate a defendant’s criminal history points.” Resto, 74 F.3d at 28. “The total criminal history points determine a defendant’s criminal history category, which combined with criminal offense level, determines the range of the sentence that the district court can impose.” Orozco, 121 F.3d at 630. “Section 4A1.1 is a mechanistic provision which merely instructs the sentencing court to add points for various carefully-defined criminal history occurrences.” Robinson, 158 F.3d at 1294. That “[a] court may subsequently determine under § 4A1.3 that a defendant’s criminal history point total (and thus his corresponding criminal history category) overstates the seriousness of his criminal history . . . does not alter the original assessment of the defendant’s criminal history points.” Owensby, 188 F.3d at 1246.

( Safety Valve Not Affected by Alleyne. United States v. King, __ F.3d ___ (5th Cir. Nov. 4, 2014)(14-10146). King finally contends that declining to apply the safety valve based on a judicially-determined fact is unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013).

Alleyne held that any fact that increases a statutory mandatory minimum

sentence must be found by a jury beyond a reasonable doubt. Id. at 2160. In contrast, the safety valve statute provides that a defendant who qualifies for the safety valve shall be sentenced without regard to a statutory mandatory minimum sentence. 18 U.S.C. § 3553(f). That is, the safety valve does not increase the mandatory minimum; instead, it removes it. Accordingly, Alleyne is not directly applicable.

Moreover, Alleyne specifies that “the Sixth Amendment applies where a

finding of fact both alters the legally prescribed range and does so in a way

that aggravates the penalty.” 133 S. Ct. at 2161 n.2. Indeed, throughout the

opinion, Alleyne emphasizes the aggravating nature of increasing a mandatory

minimum sentence. Id. at 2160-63. In contrast, the safety valve at issue here

mitigates the penalty.

The application of Alleyne to the safety valve is an issue of first impression in this circuit, but the four other Courts of Appeals that have considered the issue have found that Alleyne does not preclude judicial factfinding for safety valve determinations. See United States v. LizarragaCarrizales, 757 F.3d 995, 997-99 (9th Cir. 2014); United States v. Harakaly, 734 F.3d 88, 97-99 (1st Cir. 2013); United States v. Silva, 566 F. App’x 804, 807-08 (11th Cir. 2014) (unpublished); United States v. Juarez-Sanchez, 558 F. App’x 840, 843 (10th Cir. 2014) (unpublished). We join our sister circuits and

find that it is not constitutional error for a judge to find facts that render the

safety valve inapplicable. CONCLUSION. For the foregoing reasons, we AFFIRM.

( Failure to Debrief disqualifies Safety Value—No Right to Appeal

United States v. Cruz-Romero, __ F.3d __ (5th Cir. Feb. 8, 2017)(15-51181):

We review de novo whether an appeal waiver bars an appeal. United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014). In doing so, we also review de novo whether the government breached a plea agreement. United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). In examining the government’s compliance with its promises in the plea agreement, we ask “whether the Government’s conduct was consistent with the parties’ reasonable understanding of the agreement.” United States v. Harper, 643 F.3d 135, 139 (5th Cir. 2011). The defendant has the burden of proving the facts constituting a breach of the agreement by a preponderance of the evidence. Id.

The threshold issue is whether the government breached the plea agreement by opposing a safety valve adjustment. If not, then the appeal waiver must be enforced. The purpose of a safety valve adjustment is “to allow less culpable defendants who fully assisted the Government to avoid the application of the statutory mandatory minimum sentences.” United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir. 1995). There are five criteria. See U.S.S.G. § 5C1.2(a)(1)-(5); see also 18 U.S.C. § 3553(f)(1)-(5). If they are satisfied, the district court must impose a sentence without regard to a statutory minimum. U.S.S.G. § 5C1.2(a). Here, the government promised not to oppose Cruz-Romero’s eligibility for a safety valve adjustment if he satisfied the relevant criteria prior to sentencing. The parties dispute only whether Cruz-Romero met the fifth criterion. It requires that a defendant, “not later than the time of the sentencing hearing . . . truthfully provide[] to the Government all information and evidence [he] has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” U.S.S.G. § 5C2.1(a)(5). The defendant has the burden of ensuring complete disclosure of information and evidence to the government under Section 5C1.2(a)(5). See United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996). Cruz-Romero argues that his stipulation to the factual basis in the plea agreement satisfied this burden. But “[t]he plain language of the statutes and guidelines requires that [the defendant] truthfully provide all information and evidence regarding the offense to be eligible for the [safety valve] reduction.” United States v. Moreno-Gonzalez, 662 F.3d 369, 375 (5th Cir. 2011) (emphasis added); see also Rodriguez, 60 F.3d at 196 (explaining that benefit of safety valve adjustment applies only to those who “fully assisted the Government”). Cruz-Romero did not dispute, or offer any evidence to contradict, the government’s claim that he had failed to provide all relevant information known to him. Stipulating to some basic facts in the plea agreement obtained wholly from a co-defendant, without more, did not obviate Cruz-Romero’s burden of assisting the government. Cf. Rodriguez, 60 F.3d at 196 (“A defendant’s statements to a probation officer do not assist the Government.”). Cruz-Romero had ample opportunity to offer assistance to the government, including a scheduled debrief, but he declined to do so. He fails to show that the government’s conduct in opposing his eligibility for a safety valve adjustment, based on his failure to comply with Section 5C1.2(a)(5), was inconsistent with a reasonable understanding of the plea agreement. Cruz-Romero also argues that the plea agreement barred the government from challenging his eligibility for a safety valve adjustment because it reserves the government’s right to contest his eligibility only for a substantial assistance adjustment. The safety valve and substantial assistance provisions are contained in separate paragraphs of the plea agreement, and the limitation provision in question appears only in the latter. It has no bearing on the safety valve provision, the text of which explicitly reserves the government’s right to oppose an adjustment thereunder if Cruz-Romero does not satisfy Section 5C1.2(a). Lastly, Cruz-Romero argues that the appeal waiver is unenforceable because the plea agreement does not explicitly reserve the government’s right to oppose the application of Section 5C1.2 or define what constitutes “cooperation” on his part, rendering it fatally ambiguous. This argument is conclusory, and we deem it abandoned. See United States v. Charles, 469 F.3d 402, 407-08 (5th Cir. 2006).

Sanctions for Appealing When There Is Waiver of Appeal in PBA

( The record reflects that Brown knowingly and voluntarily waived his right to appeal

his conviction and sentence but reserved his right to assert on appeal or in post-conviction proceedings claims of ineffective assistance of counsel and prosecutorial misconduct. See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Although Brown is correct that it was a misstatement of the law to suggest that a downward departure is not allowed in cases involving a statutory minimum sentence, see 18 U.S.C. § 3553(e); § 5K1.1, comment. (n.1), see United States v. James, 468 F.3d 245, 247-48 (5th Cir. 2006), the magistrate judge properly admonished Brown, as required by FED. R. CRIM. P. 11, on the consequences of his guilty plea and appeal waiver. The waiver was therefore valid and bars a challenge to his sentence.1

1 Defense counsel did not specifically address the appeal waiver or respond to the

Government’s argument regarding the appeal waiver. We caution counsel that pursuing a

basis for appeal that is waived by a valid appeal waiver and failing to address the

waiver in a reply brief after it is raised by the Government may result in sanctions.

See United States v. Gaitan, 171 F.3d 222, 224 (5th Cir. 1999).

Sane Nurse

( United States v. Barker, __ F.3d ___ (5th Cir. April 13, 2016)(14-51117)(case from West. Dist. TX):

Brandon Earl Barker (“Barker”) appeals his convictions under 18 U.S.C. § 2252(a)(2) and 18 U.S.C. § 2252(a)(4) for one count of possession of child pornography and four counts of attempt to receive child pornography. He argues that the district court’s admission of the out-of-court statements of a child victim to a Texas-certified Sexual Assault Nurse Examiner (“SANE”) violated his Sixth Amendment confrontation right. Because we hold, following Ohio v. Clark, ___ U.S. ___, 135 S. Ct. 2173 (2015), that the child’s statements to the SANE were non-testimonial, we affirm the district court’s admission of the testimony and the conviction.

Government called Judy LaFrance (“LaFrance”), the director of nursing in the emergency department of Hendrick Medical Center and a Texas-certified SANE. LaFrance testified to the duties of a SANE, noting that a SANE is tasked with medically evaluating a patient referred by law enforcement for a sexual assault exam.1 The police are not present during this examination; the nurse and patient are alone in the room. The evaluation comprises obtaining an assault history from the patient, performing a head-to-toe physical examination, and preparing the patient for a discharge. The medical history is essential to proper and complete diagnosis and treatment of the patient.

The sole issue on appeal is whether the admission of A.M.’s statements through LaFrance’s testimony violated Barker’s rights under the Confrontation Clause. We review a Confrontation Clause challenge de novo, subject to harmless error analysis. United States v. Duron-Caldera, 737 F.3d 988, 992 (5th Cir. 2013).

The Confrontation Clause requires that the accused be afforded the opportunity to confront those witnesses who “bear testimony,” defined as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact,” against him unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004) (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). A statement is “testimonial” if “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2274 (2006). In evaluating the statements, courts determine “whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.” Clark, 135 S. Ct. at 2180.

Clark’s analysis guides this case. The primary purpose of the conversation between LaFrance and A.M. was to medically evaluate and treat the young girl. Moreover, the child’s statements pertaining to the circumstances of the abuse were relevant to ensuring that A.M. would not be discharged into the custody of a sexual abuser. As in Clark, this was an ongoing emergency. In short, A.M.’s well-being and health were the principal focus of this visit to the emergency room. This conclusion is buttressed by the significant fact of A.M.’s age: four and a half years. Like a three year old boy, A.M. lacked the understanding of the criminal justice system to intend her comments to function as a substitute for trial testimony. Moreover, although LaFrance questioned A.M. in a hospital emergency room, a more formal environment than a preschool lunchroom, the setting is far different from the law enforcement interrogation that has been found to raise Confrontation Clause problems in other cases. Cf. Hammon v. Indiana, 547 U.S. 813, 830, 126 S. Ct. 2266, 2278 (2006) (witness questioned by the police while isolated from others and whose replies were to be used in a police investigation); Crawford, 541 U.S. at 65–66, 124 S. Ct. at 1372–73 (statements made by a suspect in police custody in response to leading questions by the police and whose release from custody was allegedly dependent upon the progress of the investigation). To conclude otherwise would “ignore th[e] reality,” that the relationship between a nurse and patient is “very different from that between a citizen and the police.” Clark, 135 S. Ct. at 2182. A nurse, unlike a police officer, is principally tasked with providing medical care, not “uncovering and prosecuting criminal behavior.” Id. Barker attempts to distinguish Clark by emphasizing that LaFrance’s SANE certification converted the primary purpose of A.M.’s examination from medical evaluation and treatment to criminal evidence-gathering in preparation for a prosecution. In Clark, however, the teachers’ mandatory reporting obligations under Ohio law did not alter the Court’s conclusion that the primary purpose of their conversation with L.P. was to protect the child, not gather prosecution evidence. Id. at 2183. Indeed, in light of this conclusion, it was “irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution.” Id. Clark cuts the other way. LaFrance’s SANE certification did not convert the essential purpose of her conversation with A.M from medical evaluation and treatment to evidence-collection, though it may have tended to lead to Barker’s prosecution. Like all good nurses, LaFrance would have acted with the principal purpose to provide A.M. with medical care—whether or not she possessed the SANE certification. See id. Similarly, the teachers in Clark would have questioned L.P. in order to protect him whether or not they had a duty to report the assailant to law enforcement. As a result, LaFrance’s SANE certification does not alter the non-testimonial nature of A.M.’s statements.

Search and Seizure

( Fruit of Poisonous Tree. Utah v. Strife, __ S. Ct. ____ (2016)(June20, 2016)

To take advantage of the “fruit of the poisonous tree” doctrine, the officer’s conduct in violating a citizen’s constitutional right to privacy must be deliberate, culpable, and flagrant.

( Objections Not Heard at Trial Suppression Will Not Be Heard on Appeal.

“Failure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal.” United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010)

( Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014). Cannnot search

cell phones without warrant. Unanimously held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. An article in the March edition of The Army Lawyer addresses how this decision is likely to affect military justice, with a particular focus on CAAF’s interlocutory decision in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014)

Though issued first, the Wicks decision is consistent with the Supreme Court’s decision in Riley. While the CAAF analyzed the privacy doctrine exception to the warrant requirement and the Supreme Court considered the search incident to a lawful arrest exception, both came to the same conclusion: cell phones implicate a unique privacy interest that is protected under the Fourth Amendment.

The major implications of Riley are twofold. First, the opinion rejected the application of the Supreme Court’s container search jurisprudence to cell phone searches. Instead, the Court affirmed a balancing test and held that test should weigh strongly in favor of an individual’s privacy interest when it comes to cell phones. Second, Riley introduced an unprecedented perspective on the Fourth Amendment in light of modern technology and set a new standard for courts to apply when considering technological advancements that arise in Fourth Amendment cases.

( DWI Blood Draw Case. Missouri v. McNelly, No. 11-1425 (U.S. April 17, 2013)

( Area of Search. Bailey v. United States, __ U.S. __ (Feb. 19, 2013):

Michigan v. Summers, 452 U. S. 692, permitted a detention incident to the execution of a search warrant. Held: The rule in Summers is limited to the immediate vicinity of the premises to be searched and does not apply here, where Bailey was detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question. Pp. 415.

(a) The Summers rule permits officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted,” 452 U. S., at 705, even when there is no particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers, Muehler v. Mena, 544 U. S. 93. Detention is permitted “because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial.” Id., at 98. In Summers and later cases the detained occupants were found within or immediately outside the residence being searched. Here, however, petitioner left the apartment before the search began and was detained nearly a mile away. Pp. 46.

(b) In Summers, the Court recognized three important law enforcement interests that, taken together, justify detaining an occupant who is on the premises during the search warrant’s execution, 452 U. S., at 702703.

The first, officer safety, requires officers to secure the premises, which may include detaining current occupants so the officers can search without fear that the occupants will become disruptive, dangerous, or otherwise frustrate the search. If an occupant returns home during the search, officers can mitigate the risk by taking routine precautions. Here, however, Bailey posed little risk to the officers at the scene after he left the premises, apparently without knowledge of the search. Had he returned, he could have been apprehended and detained under Summers. Were police to have the authority to detain persons away from the premises, the authority to detain incident to the execution of a search warrant would reach beyond the rationale of ensuring the integrity of the search by detaining those who are on the scene. As for the Second Circuit’s additional concerns, if officers believe that it would be dangerous to detain a departing individual in front of a residence, they are not required to stop him; and if officers have reasonable suspicion of criminal activity, they can instead rely on Terry. The risk that a departing occupant might alert those still inside the residence is also an insufficient safety rationale for expanding the detention authority beyond the immediate vicinity of the premises to be searched.

The second law enforcement interest is the facilitation of the completion of the search. Unrestrained occupants can hide or destroy evidence, seek to distract the officers, or simply get in the way. But a general interest in avoiding obstruction of a search cannot justify detention beyond the vicinity of the premises. Occupants who are kept from leaving may assist the officers by opening locked doors or containers in order to avoid the use of force that can damage property or delay completion of the search. But this justification must be confined to persons on site as the search warrant is executed and so in a position to observe the progression of the search.

The third interest is the interest in preventing flight, which also serves to preserve the integrity of the search. If officers are concerned about flight in the event incriminating evidence is found, they might rush the search, causing unnecessary damage or compromising its careful execution. The need to prevent flight, however, if unbounded, might be used to argue for detention of any regular occupant regardless of his or her location at the time of the search, e.g., detaining a suspect 10 miles away, ready to board a plane. Even if the detention of a former occupant away from the premises could facilitate a later arrest if incriminating evidence is discovered, “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey v. Arizona, 437 U. S. 385, 393.

In sum, none of the three law enforcement interests identified in Summers applies with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. And each is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search. Pp. 6–12.

(c) As recognized in Summers, the detention of a current occupant “represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant,” 452 U. S., at 703, but an arrest of an individual away from his home involves an additional level of intrusiveness. A public detention, even if merely incident to a search, will resemble a full-fledged arrest and can involve the indignity of a compelled transfer back to the premises. P. 12.

(d) Limiting the rule in Summers to the area within which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Because petitioner was detained at a point beyond any reasonable understanding of immediate vicinity, there is no need to further define that term here. Since detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place. Pp. 1315.

( GPS Tracking(See GPS Tracking

( New Exigent Circumstances Test. Kentucky v. King, 563 U.S. ____ (2011):

held that the exigent circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to a premises. Court rejected several other tests adopted by lower courts generally and the Kentucky Supreme Court in this case (in his post yesterday, Orin Kerr discusses the Court’s decision-making process in more detail):  it reasoned, for example, that a “bad faith” requirement would be inappropriate because only objective reasonableness is relevant; that a “reasonable foreseeability” test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would “unjustifiably interfere[] with legitimate law enforcement strategies” and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would “fail[] to provide clear guidance for law enforcement officers”; and that a test that examines whether the police action “would cause a reasonable person to believe that entry is imminent and inevitable” turns on too many “subtleties.”

( Specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured. “It is a ‘basic principle of Fourth Amendment law,’ ” we have often said, “ ‘that searches and seizures inside a home without a warrant are presumptively un­ reasonable.’ ” Brigham City v. Stuart, 547 U. S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U. S. 551, 559 (2004)). But we have also recognized that this presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham City, supra, at 403; see also Michigan v. Fisher, 558 U. S. ___, ___ (2009) (per curiam)(slip op., at 2). Accordingly, the warrant requirement is subject to certain reasonable exceptions. Brigham City, supra, at 403.

One well-recognized exception applies when “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is

objectively reasonable under the Fourth Amendment.” Mincey v. Arizona, 437 U. S. 385, 394 (1978); see also Payton, supra, at 590 (“[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant”).

This Court has identified several exigencies that may justify a warrantless search of a home. See Brigham City, 547 U. S., at 403. Under the “emergency aid” exception, for example, “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Ibid.; see also, e.g., Fisher, supra, at ___ (slip op., at 5) (upholding warrantless home entry based on emergency aid exception). Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. See United States v. Santana, 427 U. S. 38, 42–43 (1976). And—what is relevant here—the need “to prevent the imminent destruction of evidence” has long been recognized as a sufficient justification for a warrantless search. Brigham City, supra, at 403; see also Georgia v. Randolph, 547 U. S. 103, 116, n. 6 (2006); Minnesota v. Olson, 495 U. S. 91, 100 (1990).

Note 3: Preventing the destruction of evidence may also justify dispensing with Fourth Amendment requirements in other contexts. See, e.g., Richards v. Wisconsin, 520 U. S. 385, 395–396 (1997) (failure to comply with the knock-and-announce requirement was justified because “the circumstances . . . show[ed] that the officers had a reasonable suspicion that [a suspect] might destroy evidence if given further opportunity ….

( …Lower courts have developed an exception to the exigent circumstances rule, the so-called “police-created exigency” doctrine. Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was “created” or “manufactured” by the conduct of the police. See, e.g., United States v. Chambers, 395 F. 3d 563, 566 (CA6 2005) (“[F]or a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves”); United States v. Gould, 364 F. 3d 578, 590 (CA5 2004) (en banc) (“[A]lthough exigent circumstances may justify a warrantless probable cause entry into the home, they will not do so if the exigent circumstances were manufactured by

the agents” (internal quotation marks omitted)).

( Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police

did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed

( Bad faith. Some courts, including the Kentucky Supreme Court, ask whether law enforcement officers “ ‘deliberately created the exigent circumstances with the bad

faith intent to avoid the warrant requirement.’ ” 302 S. W. 3d, at 656 (quoting Gould, 364 F. 3d, at 590); see also, e.g., Chambers, 395 F. 3d, at 566; United States v. Socey, 846 F. 2d 1439, 1448 (CADC 1988); United States v. Rengifo, 858 F. 2d 800, 804 (CA1 1988). This approach is fundamentally inconsistent with our Fourth Amendment jurisprudence. “Our cases have repeatedly rejected” a subjective approach, asking only whether “the circumstances, viewed objectively, justify the action.” ’Brigham City, 547 U. S., at 404. … The reasons for looking to objective factors, rather than subjective intent, are clear. Legal tests based on reasonableness are generally objective, and this Court has long taken the view that “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.” See Horton v. California, 496 U. S.

128, 138 (1990).

( Good Faith. The Supreme Court has “left it to the sound discretion of the lower courts to determine the order of decision” between (1) whether the Fourth Amendment

has been violated or (2) whether officers’ conduct manifested objective good faith.

Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 821 (2009). It thus will be

unnecessary for us to decide whether Flores had a reasonable expectation of

privacy in the Tajuata house, because even assuming Flores has standing to

challenge the search, the good-faith exception to the exclusionary rule applies

under these facts. ¶ We have consistently followed the Supreme Court’s directive in Leon that, “[i]n the absence of allegations of judicial misconduct, ‘suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable

cause.’” United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005) (quoting United

States v. Leon, 468 U.S. 897, 926 (1984)). In this case the district court correctly

explained that, in addition to mistaken information provided ….

( Good Faith and Dog Sniffs and Tainted Evidence. United States v. Holley¸__ F.3d __

(5th Cir. July 27, 2016)(15-40360): D urges that the dog sniffs of the Gray Wolf Trail and Winterwood Lane houses violated the Fourth Amendment under the Supreme Court’s recent decision in Florida v. Jardines. He further argues that the McShann Road warrant was fruit of the poisonous tree because it was based in part on these searches. The Government responds that the dog sniffs did not violate the Fourth Amendment. Alternatively, the Government argues that the good faith exception applies. We start with the good faith exception. For purposes of our analysis, we assume without deciding that the dog sniffs violated the Fourth Amendment. In his briefing, Holley argues that “Leon is not applicable in the instant case because the warrants were based upon the preceding unconstitutional and warrantless dog sniff searches.”2 That is, Holley urges that the Leon good faith exception is categorically inapplicable when a warrant is obtained using tainted evidence—or is fruit of the poisonous tree. This position is inconsistent with this Court’s recent decision in United States v. Massi, 761 F.3d 512 (5th Cir. 2014). In Massi, this Court held that evidence seized pursuant to a warrant is admissible—even if the warrant was the product of an illegal search—if two requirements are met: (1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be “close enough to the line of validity” that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct, and (2) the resulting search warrant must have been sought and executed by a law enforcement officer in good faith as prescribed by Leon. There is no allegation that the officers did not seek the Gray Wolf Trail and Winterwood Lane warrants in good faith. As a result, the only question is whether the dog sniffs were “close enough to the line of validity” that an objectively reasonable officer would not have realized that the resulting warrants were tainted. Although the issue is close, we are persuaded that the good faith exception applies. The disputed dog sniffs took place in 2008. At that point in time, this Court had issued only one decision, albeit an unpublished one, that addressed a similar search, United States v. Tarazon-Silva.

166 F.3d 341 (5th Cir. 1998) (unpublished table decision). In Tarazon-Silva, this Court upheld a “dog-sniff of the outer edge of the [defendant’s] garage and the dryer vent on the exterior wall of the house” because it “did not occur on protected curtilage.”6 This outcome was consistent with several other pre-Jardines decisions addressing dog sniffs of garage doors.7 Indeed, Holley does not point us to a single pre-Jardines decision that invalidated a search factually similar to those under review. Even if not binding or conclusive, this uniform case law demonstrates that the dog sniffs were “close enough to the line of validity” that an objectively reasonable officer would not have realized that the Gray Wolf Trail and Winterwood Lane warrants were tainted. In these circumstances, “[t]o suppress the evidence derived from th[ese] warrant[s] would not serve the interest of deterring future constitutional 4 Id. at 528. 5 166 F.3d 341 (5th Cir. 1998) (unpublished table decision). Id. at *1. 7 See, e.g., United States v. Vasquez, 909 F.2d 235, 238 (7th Cir. 1990); United States v. Hogan, 122 F. Supp. 2d 358, 367-69 (E.D.N.Y. 2000); Stauffer v. State, No. 14-03-00193- CR, 2004 WL 253520, at *2-3 (Tex. Ct. App. Feb. 12, 2004) (unpublished); Smith v. State, No. 01-02-00503-CR, 2004 WL 213395, at *3-4 (Tex. Ct. App. Feb. 5, 2004) (unpublished). violations.”8 We affirm the denial of the three motions to suppress. We do not hold—as the dissent suggests—that “a search is reasonable so long as no court has explicitly found a search under identical circumstances to be unreasonable.” Prior to Jardines, thirteen different federal and state judges (including three members of this Court) concluded that a dog sniff of a garage door did not violate the Fourth Amendment. Although these cases necessarily involved different facts, their uniformity refutes the dissent’s assertion that a reasonable officer should have realized that a dog sniff of a garage door was categorically unconstitutional. Indeed, even now, it is unclear whether a dog sniff of a garage door is unconstitutional. The dissent urges that Florida v. Jardines and Kyllo v. United States inexorably lead to this conclusion. But the dissent ignores cases holding that a driveway is not part of the home’s curtilage and a dog is not the type of “sense-enhancing” tool discussed in Kyllo. To deny use of the evidence here would ill serve the purposes of the exclusionary rule.

( Good Faith and Emails. United States v. Woerner, __ F.3d __ (5th Cir. Feb. 22, 2013)(11-41380): Woerner challenges the district court’s denial of his motion to suppress inculpatory emails from his fantastikaktion account. The district court ruled

that such evidence fell within the good faith exception to the exclusionary rule. We review the district court’s factual findings for clear error and its conclusions of law de novo, United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003), and will “uphold the district court’s ruling to deny the suppression motion if there is any reasonable view of the evidence to support it,” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (internal quotation marks omitted). The evidence at issue was obtained pursuant to a search warrant, so we begin by evaluating whether the good faith exception to the exclusionary rule applies. United States v. Pena-Rodriguez, 110 F.3d 1120, 1129 (5th Cir. 1997). Under the good faith exception, evidence obtained during the execution of a warrant later determined to be deficient is nonetheless admissible if the executing

officer’s reliance on the warrant was objectively reasonable and made in good faith. Payne, 341 F.3d at 399–400 (citing United States v. Leon, 468 U.S. 897, 921–25 (1984)). We have identified four situations in which the good faith exception does not apply: (1) when the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false; (2) when the issuing magistrate wholly abandoned his judicial role; (3) when the warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence unreasonable; and (4) when the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid. Id.

As the district court pointed out, this case calls upon us to answer whether the good faith exception applies in a fifth situation: when the magistrate’s probable cause finding is based on evidence that was the product of an illegal search or seizure. Statements made by Woerner during the custodial interrogation, which were later suppressed as fruits of the unlawful July 12 search, appear in paragraphs 30 and 31 of the warrant affidavit supporting the third federal search warrant. The district court found, and the government concedes, that such statements were the only evidence in the warrant affidavit specifically linking Woerner’s possession of child pornography to the fantastikaktion account.

We decline to announce a categorical rule governing this situation,

following Leon’s guidance that “suppression of evidence obtained pursuant to a

warrant should be ordered only on a case-by-case basis and only in those

unusual cases in which exclusion will further the purposes of the exclusionary

rule.” Leon, 468 U.S. at 918. We note that the purpose of the exclusionary

rule—deterring future Fourth Amendment violations—would be served, in some

cases, by suppressing evidence seized pursuant to a warrant supported by

evidence obtained through an unlawful search. See Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (“The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations.”). For example, if the officer applying for the warrant knew or had reason to know that the information was tainted and included it anyway without full disclosure and explanation, then suppressing the evidence seized pursuant to that warrant “pay[s] its way by deterring official lawlessness.” Illinois v. Gates, 462 U.S. 213, 258 (1983) (White, J., concurring); see also United States v. McGough, 412 F.3d 1232, 1240 (11th Cir. 2005); United States v. McClain, 444 F.3d 556, 565–66 (6th Cir. 2005); United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996); United States v. Wanless, 882 F.2d 1459, 1466 (9th Cir. 1989); United States v. White, 890 F.2d

1413, 1417–19 (8th Cir. 1989); United States v. Thornton, 746 F.2d 39, 49 (D.C. Cir. 1984). Suppression likewise might be justified if the officer responsible for the illegal predicate search provided information—knowing it to be tainted, but concealing that fact—to a second officer for use in a successive search warrant application.

The facts before us, however, present a far different case …Under these facts, involving

state and federal investigations that were parallels, suppression is not justified. Cf. United States v. Pope, 467 F.3d 912, 915–20 (5th Cir. 2006) (applying good faith exception where, as here, second search warrant was based on information discovered during an initial search later determined to be unlawful). Having concluded that the good faith exception applies, we end our suppression analysis at this stage. United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002).

( Abandoned Property (Thrown from Car). Warrantless seizure of abandoned property did not violate the Constitution. See Abel v. United States, 362 U.S. 217, 241 (1960); United States v. Berd, 634 F.2d 979, 987 (5th Cir. 1981). And the existence of police pursuit or investigation at the time of abandonment does not of itself render the

abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.

1973). The police “in no way compelled” Lockett to jettison the gun. Id.

( Arizona v. Gant. Fifth Circuit remands case involving Arizona v. Gant facts to determine if inevitable discovery applies. United States v. Casper, 332 F. App’x 222

(5th Cir. 2009)(06-11381).

( The Fifth Circuit reviews a motion to suppress based on live testimony at a suppression hearing for clear error, viewing evidence in the light most favorable to the prevailing party, in this case, the government. See U.S. v. Garza, 118 F.3d 278, 282 (5th Cir. 1997).

( “We engage in a two-step review of a district court’s denial of a motion to suppress evidence obtained pursuant to a warrant: (1) whether the good-faith exception to the exclusionary rule applies; and (2) whether probable cause supported the warrant.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) (citations omitted). If the good faith-exception applies, and there is no “novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates,” the probable cause issue need not be addressed. Id. (citations and internal quotation marks omitted). Even if a search warrant is determined to be unsupported by probable cause, evidence obtained by officers in “objectively reasonable good-faith reliance” on the warrant is admissible. United States v. Laury, 985 F.2d 1293, 1311 (5th Cir. 1993) (citing United States v. Leon, 468 U.S. 897, 922-23 (1984)). The good-faith exception to the exclusionary rule does not apply when a warrant is based on an affidavit that is deliberately false or made in reckless disregard of the truth. Leon, 468 U.S. at 914. Arispe has not shown that Deputy Johnson intentionally and/or with reckless disregard for the truth omitted information about Williams in his affidavit. The district court did not err in applying the good faith exception and in denying Arispe’s motion to suppress. See id. at 914.

( In considering a ruling on a motion to suppress, this court reviews findings of fact for clear error and the ultimate Fourth Amendment conclusions de novo. United States v. Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004)(en banc). We view the evidence in the light most favorable to the prevailing party, in this case the Government. See id.

( Traffic Stop Standard of Review. United States v. Anderson, (5th Cir. May 14, 2014)(13-30275): On review of the denial of a motion to suppress evidence obtained from a traffic stop, we review findings of fact for clear error, “but the ultimate question of whether those facts add up to establish an appropriate level of reasonable articulable suspicion of criminality or danger is a question of law, reviewed de novo.” United States v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010). “A finding is clearly erroneous only if the court is left with a definite and firm conviction that a mistake has been committed.” Id. at 440.

( Private Search. Because the Fourth Amendment only constrains the government, it “is wholly inapplicable to a search or seizure, even an unreasonable one, effected by

a private individual not acting as an agent of the Government or with the

participation or knowledge of any government official.” United States v. Oliver,

630 F.3d 397, 406 (5th Cir. 2011). … In contrast, a private individual becomes an

instrument of the government when he transmits additional evidence on March

26. We accept that conclusion. That means any evidence collected by Kinn after

March 15 must satisfy the requirements applicable to government agents. See

United States v. Blocker, 104 F.3d 720, 726 (5th Cir. 1997); United States v. Patel,

(5th Cir. August 13, 2012)(09-30490).

( Scope of Fourth Amendment’s Reach. From United States v. Patel,

(5th Cir. August 13, 2012)(09-30490): Since briefing and argument, the Supreme Court has given fresh guidance on how to identify the scope of the Fourth Amendment’s reach. See United States v. Jones, 132 S. Ct. 945, 949 (2012). It had long been understood that “[a] search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” Oliver, 630 F.3d at 405 (quotation marks and citation

omitted). This principle was drawn from a concurrence by Justice Harlan in Katz v. United States, 389 U.S. 347 (1967) and was applied here by the district court. See Jones, 132 S. Ct. at 950. In Jones, though, the Supreme Court explained that Katz is not the “the exclusive test.” Id. at 953. Instead, “the Katz reasonable expectation-of-privacy test has been added to, not substituted for, the common law trespassory test.” Id. at 952; see also id. at 954-55 (Sotomayor, J., concurring). The Fourth Amendment now clearly “protects against trespassory searches” concerning “those items (‘persons, houses, papers, and effects’) that it enumerates.” Id. at 953 n.8.

( Independent Source. “[I]nformation which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.” United States v. Hearn, 563 F.3d 95, 102 (5th Cir. 2009) (quotation marks and citation omitted). Evidence seized with a warrant will qualify as independent if (1) the judicial officer’s determination of probable cause did not rest on the earlier illegality, and (2) the illegal search did not “affect or motivate the officers’ decision to procure the search warrant.” Id.; United States v. Runyan, 290 F.3d 223, 235 (5th Cir. 2002).

( Good Faith. When a party challenges a seizure pursuant to a search warrant, we apply a two-part analysis. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010).

“First we ask whether the seizure falls within the good-faith exception to the exclusionary rule.” Id. That “inquiry is confined to the objectively ascertainable

question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. (quotation marks and citation omitted). If the good-faith exception is met, “this court affirms the district court’s decision denying the motion to suppress.” Id. Only when the exception does not apply, does this court go “to the second step and determine[] whether the magistrate issuing the warrant had a substantial basis for believing there was probable cause for the search.” Id. (quotation marks and citation omitted). Probable cause simply requires “a fair probability” that evidence of a crime will be found and should be a “practical, common-sense decision.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

( Standard of Review . “[W]here a police officer acts without a warrant, the [G]overnment bears the burden of proving that the search was valid.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). The district court’s findings on a motion to

suppress are reviewed for clear error, and its ultimate conclusion as to whether the Fourth Amendment was violated is reviewed de novo. United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).

( Smell of Marijuana = Probable Cause. See United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en banc) (finding that the smell of marijuana can give rise to probable cause). Ramp check can be pretexual. United States v. Zukas, 843 F.2d 179,

182 n. 1 (5th Cir. 1988).

( Airplane Ramp Check and Terry Stop of Aircrew. United States v. Massi, __ F.3d

___ (5th Cir. August 1, 2014)(12-51063). A regulatory inspection is not a detention.

( Border Search.

( United States v. Pickett, 598 F.3d 231 (5th Cir. 2010)(per curiam).

Border search doctrine applies as long as international border has been crossed, regardless of where travel originated. Here, Oil worker’s computer was searched for child pornography after he came off an off-shore oil well. Fifth Circuit rejected United States v. Garcia, 672 F.2d 1349 (11th Cir. 1982) on a flight out of the Carribean.

Under the border search doctrine, routine searches at the border are per se reasonable and do not require any level of objectively reasonable suspicion or warrant.

That is because the sovereign has inherent authority to protect its “territorial integrity,

as the U.S. Supreme Court stated in United States v. Flores-Montano, 541 U.S. 149(2004)(removal of gas tank).

( Border Search of Computer Without Warrant IAW U.S. v. v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) (“[R]easonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border”.). In the light of the following [consent], however, we need not decide whether the search was constitutionally permissible as a routine search under the border-search doctrine. ( United States v. McCauley, (5th Cir. April 1, 2011)(10-50470).

( United States v. Munoz-Martinez, (5th Cir. July 29, 2011)(10-40487):

In reviewing the denial of a motion to suppress evidence, this court reviews the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Rangel-Portillo, 586 F.3d 376, 379 (5th Cir. 2009). The denial of the motion is reviewed in the light most favorable to the prevailing party. United States v. Garcia, 604 F.3d 186, 189-90 (5th Cir. 2010). The Fourth Amendment of the United States Constitution permits roving Border Patrol agents to “stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be

illegally in the country.” United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). The following factors inform whether reasonable suspicion existed: (1) proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) agent’s previous experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal

trafficking in aliens or narcotics in the area; and (8) the number, appearance, and behavior of the passengers. United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) “No single factor is dispositive,” rather, “each case must be examined based on

the totality of the circumstances known to the agents at the time of the stop and their experience in evaluating such circumstances.” Rangel-Portillo, 586 F.3d at 380. A collection of factors that usually constitute innocent behavior may add up to reasonable suspicion in the mind of an experienced officer. Jacquinot, 258 F.3d at 427-28.

A vital element in this analysis “is whether the agents had reason to

believe that the vehicle in question recently crossed the border.” Id. at 428. We have generally viewed “a car traveling more than 50 miles from the border . . . as being too far from the border to support an inference that it originated its journey there.” Id. Munoz-Martinez was first identified by the Border Patrol agents 56 miles north of the border. The agents testified that according to a computer check of the licence plate, Munoz-Martinez had not recently passed through the border checkpoint on I-35. In light of this information, the proximity factor does not weigh in favor of reasonable suspicion. Also important is that “a road’s reputation as a smuggling route adds to

the reasonableness of the agents’ suspicion.” Id. at 429 (quotation marks, emphasis, and citation omitted). The agents testified that the area where Munoz-Martinez was stopped is notorious for drug-and alien-smuggling activity. Moreover,Munoz-Martinez’s purple, low-riding pickup-truck aroused suspicion, as it was atypical of traffic in the area, which primarily included vehicles related to the oil industry, ranching, and hunting. See United States v. MorenoChaparro, 180 F.3d 629, 632-33 (5th Cir. 1998); United States v. Inocencio, 40 F.3d 716, 723 (5th Cir. 1994).

( Extensive Review of 5th Circuit Law of Border Search and Dissent by Prado on border search 200 miles inland. United States v. Cervantes, __ F.3d ___

(5th Cir. Aug. 14, 2015)(14-50208).

( State Search JX of No Consequence to Federal Search. United States v. Castillo-Barron, __ F.3d __ (5th Cir. April 5, 2016)(15:60623): D was found in the US during the course of a traffic stop when a police officer learned that occupants of the stopped vehicle, including Del Castillo-Barron, were not United States citizens and possessed no documents authorizing their presence in the country. On appeal, D argues that the court erred in denying his MtoS evidence obtained following the traffic stop. D contends that the officer conducting the stop exceeded his JX under MS state law because the stop occurred at a location where the officer lacked authority to act. The relevant question is whether the officer, in conducting the traffic stop, violated the Fourth Amendment. See United States v. Walker, 960 F.2d 409, 415 (5th Cir. 1992). Issues regarding local law-enforcement jurisdiction do not govern in a federal criminal action. Id.; United States v. HernandezAcuna, 202 F. App’x 736, 744 (5th Cir. 2006). Del Castillo-Barron does not challenge the district court’s finding that the traffic stop conformed with the standard set forth in Terry v. Ohio, 392 U.S. 1 (1968).

( Compelling Production of Pre-indictment Search Affidavit.

United States v. Sealed Search Warrants—Justin Smith, __ F.3d ___ (5th Cir. Aug 21, 2017)(16-20562). Prosecution seeks to reverse Magistrate and District Court order to

disclosed better redacted search affidavit. … The Government asserts that the district court’s rulings on Smith’s motions were interlocutory and not final because orders “granting or denying a pre-indictment motion to suppress do[ ] not fall within any class of independent proceedings otherwise recognized by [the Supreme Court].” Di Bella v. United States, 369 U.S. 121, 129 (1962). Under Di Bella, the Government argues that Smith’s motions are functionally pre-indictment motions to suppress, and the suppression issue is interlocutory because it is subsumed by the overarching possibility of a forthcoming criminal trial. Notably, however, the general rule of Di Bella—that orders granting or denying pre-indictment motions to suppress are not a part of independent, immediately appealable proceedings—is not absolute: “Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent.” Id. at 131–32. As Smith correctly points out, numerous cases have found that similar motions to unseal documents (contrasted with suppression motions) are final and appealable. In In re Search Warrant for Secretarial Area Outside Office of Gunn, the Government executed numerous search warrants, and a newspaper publisher filed Rule 41 motions with the district court to unseal affidavits in support of these warrants. 855 F.2d 569, 571 (8th Cir. 1988).

The district court denied the motions and allowed the affidavits to remain sealed for up to thirty additional days. Id. On appeal, the Eighth Circuit squarely addressed the immediate appealability of orders such as the district court’s, concluding that they were final orders: The district court order denied appellants’ motion to unseal and thus conclusively rejected appellants’ asserted right to immediate access to these documents. Deferral of appellate review pending district court reconsideration after 30 days, or until after additional extensions of time have expired, would effectively deny appellants much of the relief they seek, that is, immediate access. Id.

After concluding that the orders were final and appealable, the court noted that the collateral order exception did not apply to make the orders immediately appealable on this basis because “there is no ‘underlying’ proceeding in this case. The district court order is not a component of another proceeding.” Id. at 572. More squarely to the Government’s position that Smith’s motions are de facto motions to suppress and unappealable under Di Bella, Smith cites United States v. Pantelidis, 335 F.3d 226 (3d Cir. 2003). There, the Third Circuit held that it had jurisdiction to hear an appeal of a district court’s denial of a Rule 41 motion to return property based on the exception set forth in Di Bella. Id. at 233–34. The court recognized that the movant sought strictly the return of the property rather than the suppression of its evidentiary value. Id. Smith cites several other cases similar to Pantelidis and Office of Gunn on the jurisdictional question. See, e.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1212 (9th Cir. 1989) (“This court’s jurisdiction to review the district courts’ orders denying access rests on 28 U.S.C. § 1291 . . . Each of the orders denying access ‘finally adjudicated the matter presented to the district court and was not a mere component of a different proceeding.’”). Finally, the cases cited by the Government in support of its application of Di Bella are distinct. (cited at length).

We hold that the qualified common law right of access can extend to an individual seeking to access pre-indictment search warrant materials, and the decision of whether access should be granted must be left to the discretion of the district court, upon the court’s consideration of “the relevant facts and circumstances of the particular case.

Footnote 1: 1 The First Amendment right of access and the common law qualified right of access differ in significant ways. The First Amendment right of access stems from the historical practice of opening criminal trials to the public. “[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–10 (1984) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982)). To guide the determination of whether a First Amendment right of access exists, the Supreme Court has established a two-part inquiry: “(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.’” In re Hearst Newspapers, LLC, 641 F.3d 168, 175 (5th Cir. 2011) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986)). Even absent a finding of a First Amendment right of access, the Supreme Court has articulated a qualified right of access to judicial documents that is born from the common law. In Nixon v. Warner Communications, Inc., 435 U.S. 589, 597–99 (1978), the Court recognized that the public has a right “to inspect and copy public records and documents, including judicial records and documents” which “is not absolute.” Further, “[a]lthough the common law right of access to judicial records is not absolute, ‘the district court’s discretion to seal the record of judicial proceedings is to be exercised charily.’” S.E.C. v. Van Waeyenberghe, 990 F.2d 845 (5th Cir. 1993) (quoting Fed. Sav. & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987)).

We have not squarely addressed the precise scope of the qualified common law right of access to judicial records as it applies to pre-indictment warrant materials. Other circuits that have addressed the question have reached conflicting conclusions. Despite not speaking to this precise issue, the Fifth Circuit has decided several cases on the qualified right of access in more general terms, and these decisions are instructive for analyzing the application of that right in this case. (discussed cases outside Fifth Circuit). This Court has, however, spoken to different questions implicating that qualified right in other situations, and substantial guidance can be gleaned from these decisions. (discusses cases).

In the Fifth Circuit, the common law right of access to judicial records has consistently been addressed on a case-by-case basis, indicating that this Court should adopt such an approach in the context of pre-indictment warrant materials. In all of the major cases discussed above, the Fifth Circuit has left the decision to seal judicial records to the discretion of the district court. And in so doing, the Fifth Circuit has consistently required the district court to explain its decisions to seal or unseal. Van Waeyenberghe, 990 F.2d at 849 (“We find no evidence in the record that the district court balanced the competing interests prior to sealing the final order. First, the district court made no mention of the presumption in favor of the public’s access to judicial records. Second, the district court did not articulate any reasons that would support sealing the final order.”); Holy Land Foundation, 624 F.3d at 690 (“Here, the district court did not explain why it chose to seal its opinion and order holding that [the Trust’s] rights were violated.”). Underscoring this conclusion, the policy justifications that concerned the Ninth Circuit in Times Mirror are not at all diluted by a case-specific approach. In any given case, the discretion of the district court protects these interests, as this Court has repeatedly emphasized; in other words, this Court has consistently trusted district courts to exercise their discretion to determine when court files “might . . . become a vehicle for improper purposes.” Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). If the unsealing of preindictment warrant materials would threaten an ongoing investigation, the district court has discretion to make redactions prior to unsealing or, where necessary, to leave the materials under seal. The same is true where unsealing such materials might endanger or discourage witnesses from providing evidence or testimony, or where the publication of a warrant could damage an unindicted target’s reputation while leaving no judicial forum to rehabilitate that reputation. The final reasons for extending the Fifth Circuit’s general approach and adopting the Fourth Circuit’s reasoning from Baltimore Sun are the affirmative policy justifications behind the common law right of access to judicial documents. This Court in Van Waeyenberghe acknowledged that the right of access promotes the trustworthiness of the judicial process, curbs judicial abuses, and provides the public with a better understanding of the judicial process, including its fairness. Id. at 849.

( Inventory search of Car. United States v. Vernon, (5th Cir. Feb. 6, 2013)(12-60105): Under the Fourth Amendment, “[w]arrantless searches and seizures are ‘per se unreasonable unless they fall within a few narrowly defined exceptions.’” United States v. Kelly, 302 F.3d 291, 293 (5th Cir. 2002) (quoting United States v. Roberts, 274 F.3d 1007, 1011 (5th Cir. 2001). Two of these exceptions include the “community caretaking exception,” United States v. McKinnon, 681 F.3d 203, 208 (5th Cir. 2012), and the inventory exception, United States v. Hahn, 922 F.2d 243, 246 (5th Cir. 1991). When a vehicle is impounded, an inventory of its contents may be conducted; however, such an inventory process must be guided by “applicable standardized criteria.”

Hahn, 922 F.2d at 246. Such standardized criteria are necessary “based on the

principle that an inventory search must not be a ruse for a general rummaging

in order to discover incriminating evidence. The policy or practice governing

inventory searches should be designed to produce an inventory.” Florida v.

Wells, 495 U.S. 1, 4 (1990). …. At the suppression hearing, US Marshall Kruse gave testimony supportive of a concept that the search was conducted by local officials with his participation being limited to “assistance.” However, the Government focused on the USMS policy, and Kruse conceded that he did not comply with this policy. The district court nonetheless found the search supported by the “independent reason” that “[t]he marshals knew that Vernon would be transported to Arizona after he was

arrested and that his vehicle could not be left at the casino.” We agree with

Vernon that the district court erred in this regard. See also: Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). United States v. Hope, 102 F.3d 114, 115 (5th Cir. 1996).

( Cavity Search and Good Faith Upholding. United States v. Gray, __ F.3d __ (5th Cir. 2-1-2012)(10-11150)( a proctoscopic examination under sedation pursuant to a warrant obtained on the police’s belief that he was concealing crack cocaine in his rectum was an unreasonable search and seizure but evidence was admitted under good faith doctrine. Opinion by Prado.

( In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court stated

that the exclusionary rule is “a judicially created remedy,” id. at 906, designed

to deter police misconduct, id. at 918. Therefore, where a police officer “acting

with objective good faith has obtained a search warrant from a judge or

magistrate and acted within its scope,” id. at 920, “the marginal or nonexistent

benefits produced by suppressing evidence obtained in objectively reasonable

reliance on a subsequently invalidated search warrant cannot justify the

substantial costs of exclusion.” Id. at 922. We have held that “[t]he good faith

exception applies unless one of the four exceptions to it is present.” United

States v. Foy, 28 F.3d 464, 473 (5th Cir. 1994). Those exceptions are: “(1) If the issuing magistrate/judge was misled by information in an affidavit that the affiant knew was false or would have known except for reckless disregard of the truth; (2)

where the issuing magistrate/judge wholly abandoned his or her judicial role; (3) where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid.”

Id. at 473 n.20 (quoting United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th

Cir. 1992).

( To effectuate the purposes of the exclusionary rule and the good faith

exception in cases where we are asked to review the constitutionality of a seizure

conducted pursuant to a search warrant, we employ a two-step inquiry. United States v.

Allen, 625 F.3d 830, 835 (5th Cir. 2010). 625 F.3d at 835 (citing United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999)). First, we determine the applicability of the good faith exception to the exclusionary rule. Id. (citing Leon, 468 U.S. at 920–21 (1984)). If the good faith exception applies, we affirm the district court’s denial of the motion to suppress. Id. If we find the good faith exception inapplicable, we “determine[] whether the magistrate issuing the warrant had a ‘substantial basis for believing there was

probable cause for the search.’” Id. (quoting United States v. Davis, 226 F.3d 346,

351 (5th Cir. 2000)).

( This case is different from Allen and the cases it cites because Gray’s

substantive challenge is not one claiming a lack of probable cause. Gray argues that the proctoscopy violated his right to “‘personal privacy and dignity,’” as delineated in Winston v. Lee, 470 U.S. 753, 760 (1985) (quoting Schmerber, 384 U.S. at 767 (1966)). There, the Supreme Court dealt with an appeal of a permanent injunction issued by the district court enjoining the enforcement of a state court search warrant that authorized surgery under general anesthesia to retrieve a bullet that lodged in a suspect’s chest during a robbery. Id. at 756–57. The Court affirmed the injunction because it found the ordering of the surgery to be unreasonable under the Fourth Amendment. Id. at 766. In so doing, it stated that “[t]he reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure.” Id. at 760. T

( Consent Search Factors: Six factors in reviewing the voluntariness of a consent to search: “1) the voluntariness of the defendant’s custodial status; 2) the presence of coercive police procedures; 3) the extent and level of the defendant’s cooperation with the police; 4) the defendant’s awareness of his right to refuse consent; 5) the defendant’s

education and intelligence; and 6) the defendant’s belief that no incriminating evidence will be found.” United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000).

( In reviewing a district court's denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law de novo. United States v. Lopez–Moreno, 420 F.3d 420, 429 (5th Cir. 2005). The Government “has the burden of proving by a preponderance of the evidence that consent was freely and voluntarily given.” United States v. Ponce, 8 F.3d 989, 997 (5th Cir.1993) (citing United States v. Hurtado, 905 F.2d 74, 76 (5th Cir.1990) (en banc)).

III.

Warrantless searches are unconstitutional unless they meet one of a

limited number of exceptions. United States v. Jenkins, 46 F.3d 447, 451 (5th

Cir. 1995). One exception is a search conducted pursuant to voluntary consent.

Id.

We examine six factors to determine the voluntariness of consent.

Jenkins, 46 F.3d at 451. The six factors include (1) the voluntariness of the

defendant's custodial status, (2) whether the police engaged in coercive conduct,

(3) the extent and degree of the defendant's cooperation with the police, (4) the

defendant's knowledge of his right to refuse consent, (5) the defendant's level of

intelligence and education, and (6) the belief of the defendant that a search will

not reveal incriminating evidence. Id. “[N]o single factor is dispositive or

controlling of the voluntariness issue.” U.S. v. Olivier–Becerril, 861 F.2d 424,

426 (5th Cir. 1988). Instead, “[c]onsent will be found voluntary if after

considering all the circumstances then obtaining, it may be established that it

was ‘the product of an essentially free and unconstrained choice by its maker.’”

Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973); see also Galberth, 846 F.2d

at 986 (considering the six factor test “[i]n view of the totality of the

circumstances.”). In most cases, as here, some of these factors will not be

seriously implicated, and only one or a subset of the factors will truly be at issue

and drive the ultimate conclusion. See, e.g., United States v. Kelley, 981 F.2d

1464, 1470 (5 Cir. 1993); United States v. Tedford, 875 F.2d 446, 451–52 (5th

th Cir. 1989); United States v. Olivier–Becerril, 861 F.2d 424, 426 (5th Cir. 1988)

( Good review of Consent Search Issues. United States v. Longoria, (5th Cir. March 15, 2010)(09-40070).

( United States v. Guzman, __ F.3d __ (5th Cir. Jan 7, 2014)(12-11279):

whether consent is voluntary following an officer’s misrepresentation is a question of fact. See Andrews, 746 F.2d at 248; Morales, 171 F.3d at 980 (noting that “the mere utilization of words by officers that would reasonably be considered to be a command or order does not preclude the possibility of a suspect validly consenting to a search,” but, instead, whether consent was given involves “a careful review of [a] fact-intensive record”). See generally Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (“[W]hether consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”). The question whether a subsequent

admission is “sufficiently an act of free will to purge the primary taint” similarly involves an evaluation of the record. See United States v. Cotton, 72 F.3d 271,

274 (5th Cir. 2013). These issues are “antecedent to the question actually decided by the district court”: whether Guzman’s admission that there was a gun in his car

could constitute probable cause to search the car. See Chacon, 330 F.3d at 329.

Thus, we vacate Guzman’s conviction and sentence and remand for the district

court to determine whether Foster asked Guzman for his consent to search and

whether Guzman’s consent was voluntary, or, in the alternative, whether

admissible evidence existed to support a finding of probable cause. If after doing

so, the court again denies Guzman’s motion to suppress, it shall reinstate the

conviction and sentence, and Guzman could then appeal. See United States v.

Chavis, 48 F.3d 871, 873 (5th Cir. 1995).

( Drug Dog. Florida v. Harris, __ U.S. ___ (Feb. 19, 2013). Drug dog alert established probable cause. Officer Wheetley pulled over respondent Harris for a routine traffic stop. Observing Harris’s nervousness and an open beer can, Wheetley sought consent to search Harris’s truck. When Harris refused, Wheetley executed a sniff test with his trained narcotics dog, Aldo. The dog alerted at the driver’s-side door handle, leading Wheetley to conclude that he had probable cause for a search. That search turned up nothing Aldo was trained to detect, but did reveal pseudoephedrine and other ingredients for manufacturing methamphetamine. Harris was arrested and charged with illegal possession of those ingredients. In a subsequent stop while Harris was out on bail, Aldo again alerted on Harris’s truck but nothing of interest was found. At a suppression hearing, Wheetley testified about his and Aldo’s extensive training in drug detection. Harris’s attorney did not contest the quality of that training, focusing instead on Aldo’s certification and performance in the field, particularly in the two stops of Harris’s truck. The trial court denied the motion to suppress, but the Florida Supreme Court reversed. It held that a wide array of evidence was always necessary to establish probable cause, including field-performance records showing how many times the dog has falsely alerted. If an officer like Wheetley failed to keep such records, he could never have probable cause to think the dog a reliable indicator of drugs.

Held: Because training and testing records supported Aldo’s reliability in detecting drugs and Harris failed to undermine that evidence, Wheetley had probable cause to search Harris’s truck. Pp. 5–11.

(a) In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.” Illinois v. Gates, 462 U. S. 213, 235. To evaluate whether the State has met this practical and common-sensical standard, this Court has consistently looked to the totality of the circumstances and rejected rigid rules, bright-line tests, and mechanistic inquiries. Ibid.

The Florida Supreme Court flouted this established approach by creating a strict evidentiary checklist to assess a drug-detection dog’s reliability. Requiring the State to introduce comprehensive documentation of the dog’s prior hits and misses in the field, and holding that absent field records will preclude a finding of probable cause no matter how much other proof the State offers, is the antithesis of a totality-of-the-circumstances approach. This is made worse by the State Supreme Court’s treatment of field-performance records as the evidentiary gold standard when, in fact, such data may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. Such inaccuracies do not taint records of a dog’s performance in standard training and certification settings, making that performance a better measure of a dog’s reliability. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.

Under the correct approach, a probable-cause hearing focusing on a dog’s alert should proceed much like any other, with the court allowing the parties to make their best case and evaluating the totality of the circumstances. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, the court should find probable cause. But a defendant must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant may contest training or testing standards as flawed or too lax, or raise an issue regarding the particular alert. The court should then consider all the evidence and apply the usual test for probable cause—whether all the facts surrounding the alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. Pp. 5–9.

(b) The record in this case amply supported the trial court’s determination that Aldo’s alert gave Wheetley probable cause to search the truck. The State introduced substantial evidence of Aldo’s training and his proficiency in finding drugs. Harris declined to challenge any aspect of that training or testing in the trial court, and the Court does not consider such arguments when they are presented for this first time in this Court. Harris principally relied below on Wheetley’s failure to find any substance that Aldo was trained to detect. That infers too much from the failure of a particular alert to lead to drugs, and did not rebut the State’s evidence from recent training and testing. Pp. 9–11.

( Illegal State Search and Federal Prosecution. Elkins v. United States, 364 U.S. 206, 223-24 rejected the “silver platter” doctrine and held that a federal agent may not prosecute a defendant by using evidence obtained by state officers in violation of the federal Constitution. The Fifth Circuit has not extended the Elkins principle to evidence

obtained in violation of a state statute or constitution. See United States v. Eastland,

989 F.2d 760, 765-66 (5th Cir. 1993). In United States v. Havens, 331 Fed. App’x 280

(5th Cir. 2009)(08-40545), defendant contended that the district court should not have applied the good faith exception to the warrant requirement because the affidavit supporting the search warrant contained deliberate or reckless misstatements regarding the issuance of a “Grand Jury subpoena.” The good-faith exception to the exclusionary rule provides that “evidence obtained by officers in objectively reasonable good-faith reliance upon a search warrant is admissible, even though the affidavit on which the warrant was based was insufficient to establish probable cause.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). If the warrant was issued in reliance on a deliberate or reckless material misstatement, the good-faith exception will not apply. United States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997).

( Standard of Review. When reviewing the denial of a suppression motion, conclusions of law are reviewed de novo; findings of fact, only for clear error. E.g., United States v. Pope, 467 F.3d 912, 915-16 (5th Cir. 2006). Whether consent to search was given is a factual issue; accordingly, the district court’s finding consent is reviewed only for clear error. E.g., United States v. Fierro, 38 F.3d 761, 771 (5th Cir. 1994). “‘A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.’” United States v. Brown, 470 F.3d 1091, 1094 (5th Cir. 2006) (quoting United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005)).

( Standard of Review in Suppression: In reviewing the denial of a motion to suppress, “‘we review the district court’s factual findings for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo.’” United States v. Reyes, 349 F.3d 219, 222 (5th Cir. 2003) (quoting United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002)). Of particular

relevance to applying this standard to this case, we have held that “[w]hether a defendant has standing to contest an allegedly illegal search is a question of law.” United States v. Ibarra, 948 F.2d 903, 906 (5th Cir. 1991) (citing United States v. Kye Soo Lee, 898 F.2d 1034, 1037 (5th Cir. 1990)).

( If appellant failed to specifically raise at trial the suppression issue on appeal, the standard of review is plain error. United States v. Smith, (5th Cir. May 2, 2011)(09-10917); See United States v. Seale, 600 F.3d 473, 487 (5th Cir.), cert denied, 131 S. Ct. 163 (2010); see also United States v. Mejia, 844 F.2d 209, 214 (5th Cir. 1988) (holding that an objection on hearsay grounds did not preserve for appeal an exception to the hearsay rule that was not specifically raised).

( In reviewing the denial of a motion to suppress, we review the district

court’s factual findings for clear error, viewing the evidence in the light most

favorable to the Government. United States v. Charles, 469 F.3d 402, 405 (5th

Cir. 2006). Conclusions of law are reviewed de novo. Id. We have held that

specific suppression arguments not raised in the district court are waived, but

in other cases we have reviewed such arguments for plain error. See United

States v. Cano, 519 F.3d 512, 515 (5th Cir. 2008) (finding waiver); United States

v. Pope, 467 F.3d 912, 917-20 & n.20 (5th Cir. 2006) (alternatively reviewing for

plain error).Even if we review the validity of his arrest for plain error, we conclude

that the police had ample probable cause to arrest Jackson based upon the

victim’s description of the assailant and his car, the bullet hole in the victim’s

car, and the officers’ prior knowledge of Jackson. See United States v. NunezSanchez, 478 F.3d 663, 666-67 (5th Cir. 2007). In addition, the search of the

vehicle was proper because under the facts of this case it was reasonable for the

officers to believe that the car might hold evidence related to the recent shooting.

See Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1721 (2009).

( From United States v. Tran, 2009 WL 2351619, ___ F. App’x ___ (July 31,2009)(07-11195)Evidence obtained by law enforcement in good faith reliance on a warrant is admissible even if the affidavit submitted in support of the warrant was insufficient to establish probable cause. See United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988) (discussing United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984)). An affidavit may rely on information reaching back over long periods if “the information of the affidavit clearly shows a long-standing, ongoing pattern of criminal activity.” United States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997) (internal quotations and citation omitted). The court is also “more tolerant of dated allegations” if “the evidence sought is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched.” Id. (internal quotations and citation omitted). The facts recounted in the affidavit supported the ongoing nature of the criminal activity at the motel, including within days of the warrant’s issuance, and the likelihood that drugs and drug-related documents of a non-ephemeral nature would be found there. As such, the affidavit “was not so lacking in indicia of probable cause as to render good-faith reliance on a warrant issued pursuant to it entirely unreasonable.”

( We review de novo a district court’s legal conclusions under the Fourth Amendment, and its factual findings for clear error. United States v. Zavala, 541 F.3d 562, 573–74 (5th Cir. 2008). A district court’s finding that a seizure has or has not occurred is a factual determination that we review for clear error. United States v. Mask, 330 F.3d 330, 334 (5th Cir. 2003). “‘A factual finding is not clearly erroneous if it is plausible in light of the record as a whole.’” Zavala, 541 F.3d at 574 (quoting United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (per curiam)). “A district court’s legal conclusions, including determinations of reasonable suspicion and probable cause, are reviewed de

novo.” Id. We consider the entire record in the light most favorable to the government, United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007), and may affirm on any basis supported by the record, United States v. Taylor, 482 F.3d 315, 318 (5th Cir. 2007).

( Strip Search for Minor Offense.

( Jimenez v. Wood County, Texas, 621 F.3d 870 (5th Cir. 2010), reh’g en banc granted, 626 F.3d 870 (5th Cir. Nov. 18, 2010)(en banc). Panel was bound by precedent holding that strip search of individual for minor offense must be premised on reasonable suspicion that detainee was carrying weapons or contraband. 1983 case.

Recent decisions en banc from 9th and 11th Circuits.

( U.S. Supreme Court granted certiorari in a case with similar facts April 2011.

( Automobile Exception and Parked Car. Applies. United States v. Ned,

637 F.3d 562 (5th Cir. 2011)(exception applies when parked outside nightclub).

( Lack of Exigent Circumstances. From United States v. Menchaca-Castruita,

587 F.3d 283 (5th Cir. Oct. 29, 2009)(08-40403).

( When we review a district court’s denial of a motion to suppress, we view

the facts in the light most favorable to the prevailing party, accepting the district

court’s factual findings unless clearly erroneous and considering all questions of law de novo. United States v. Rico, 51 F.3d 495, 500 (5th Cir. 1995). “A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). In reviewing the district court’s denial of the motion, we may consider not only evidence introduced during the suppression hearing but also any additional evidence presented during the trial. Rico, 51 F.3d at 504.

( Although presumptively unreasonable, an officer’s warrantless entry will

survive constitutional scrutiny if, inter alia, “exigent circumstances exist to

justify the intrusion.” United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).

The exigent-circumstances exception applies “where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate.” United States v. Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996) (internal quotation marks and citation omitted).

The government bears the burden of proving the existence of exigent circumstances. Id. at 1405. “Because it is essentially a factual determination, there is no set formula for determining when exigent circumstances may justify a warrantless entry.” United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997) (en banc).

( As a general rule, exigent circumstances exist when there is a genuine risk that officers or innocent bystanders will be endangered, that suspects will escape, or that evidence will be destroyed if entry is delayed until a warrant can be obtained. Id.; see United States v. Mendoza-Burciaga, 8 981 F.2d 192, 196 (5th Cir. 1992), cert. denied, 510 U.S. 937 (1993) (explaining that exigent circumstances are present in situations in which “officers reasonably fear for their safety, where firearms are present, or where there is a risk of a criminal suspect’s escaping or fear of destruction of evidence”).

( In evaluating whether exigent circumstances are present, we have 8

often referred to the following non-exhaustive list of factors:

(1) the degree of urgency involved and amount of time necessary to obtain a warrant; (2) the reasonable belief that contraband is about to be removed; (3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic. United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995).

( Cop Creating Exigency. Although a warrantless entry into a residence is presumptively unreasonable without consent, it is lawful if “probable cause and exigent

circumstances justify the encroachment,” United States v. Jones, 239 F.3d 716,

719 (5th Cir. 2001), as long as the officers did not create the exigency. United

States v. Hearn, 563 F.3d 95, 106 (5th Cir. 2009). The “knock-and-talk” is a

legitimate investigatory method, but officers cannot use the tactic knowing that

to do so will manufacture an exigent circumstance that will necessitate a

protective search of the area. Jones, 239 F.3d at 721. Exigency justifies a

warrantless entry if there is a possibility that evidence will be removed or

destroyed in the time it takes to procure a warrant. Jones, 239 F.3d at 720.

( Exigency Factors. To assess whether an exigency justifies a warrantless 9

search, we have in the past looked to the following non-exhaustive list of factors:

(1) the degree of urgency involved and the amount of time necessary to obtain

a warrant; (2) the reasonable belief that contraband will be removed; (3) the

possibility of danger to the police officers guarding the site while a search

warrant is sought; (4) information indicating that the possessors of the

contraband are aware that the police are on their trail; and (5) the ready

destructibility of the contraband. United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997).

( Supreme Court Exigency Case. Kentucky v. King, 564 U.S. __ (U.S. May 16, 2011)(09-1272). Although “ ‘searches and seizures inside a home without a warrant are presumptively unreasonable,’ ” Brigham City v. Stuart, 547 U. S. 398, 403, this presumption may be overcome when “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U. S. 385, 394. One such exigency is the need “to prevent the imminent destruction of evidence.” Brigham City, supra, at 403.

… (b) Under the “police-created exigency” doctrine, which lower courts have developed as an exception to the exigent circumstances rule, exigent circumstances do not justify a warrantless search when the exigency was “created” or “manufactured” by the conduct of the police. The lower courts have not agreed, however, on the test for determining when police impermissibly create an exigency. Pp. 7–8. (c) The proper test follows from the principle that permits warrantless searches: warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. … d) Some courts, including the Kentucky Supreme Court, have imposed additional requirements—asking whether officers “ ‘deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement. …. Such requirements are unsound and are thus rejected.

( Appeal from Denial of a Motion to Suppress. When a search has been conducted in accordance with a warrant, we use a two-part test to review the district court’s denial of a motion to suppress. United States v. Froman, 355 F.3d 882, 888 (5th Cir. 2004). If the good-faith exception applies, no further analysis is necessary unless the case involves “a ‘novel question of law,’ resolution of which is ‘necessary to guide future action by law enforcement officers and magistrates.’” United States v. Payne, 341 F.3d

393, 399 (5th Cir. 2003) (citing United States v. Pena-Rodriguez, 110 F.3d 1120,

1129-30 (5th Cir. 1997)). We review de novo whether the exception applies. Id. An officer’s reliance on a warrant is not objectively reasonable and, therefore, he is not entitled to invoke the good-faith exception if, among other things, the warrant authorizing the officer’s actions is so “facially deficient” in failing to particularize the place to be searched or the things to be seized that the executing officers “cannot reasonably presume it to be valid.” United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006) (quoting United States v. Gibbs, 421 F.3d 352, 358 (5th Cir. 2005)) (internal quotation marks omitted). Evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.” Herring v. United States, 555

U.S. 135, 143 (2009) (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987))

( Stop and Talk. In response, the government contends that the warrantless 11

search was justified pursuant to our holding in United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001).. In that case, several officers acting on a drug trafficking tip approached a residence to conduct a knock and talk. “Knock and talk” is an accepted investigatory tactic. See, e.g., United States v. Gomez-Moreno, 479 F.3d 350, 356 (5th Cir. 2007).

( Knock and Talk Negates Consent. The knock-and-talk in this case was a virtual entry without a warrant. Voluntariness of alleged consent was not the issue. Instead, the question was whether the alleged consent was an independent act of free will. Rev’d. United States v. Hernandez, 2010 U.S. App. LEXIS 18057 (5th Cir. August 26, 2010) (unpublished)*:

Our holding in Gomez-Moreno applies almost precisely to this case. The officers' conduct during their knock-and-talk—banging on doors and windows while demanding entry, attempting a forced entry by breaking the glass on Hernandez's door, then relying on her admission that an illegal alien was present as probable cause to enter—violated the Fourth Amendment.

The district court should have acknowledged that the officers' knock-and-talk conduct was an unreasonable search. Had it done so, the court then would have proceeded not to the six-factor voluntariness analysis of Hernandez's consent, but instead to the alternative analysis of whether her consent was an independent act of free will, breaking the chain of causation between the constitutional violation and the consent. United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002). Courts consider that question by weighing three factors: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct. Id.

( Good Faith Search in Child Pornography in Computer + Staleness.

From United States v. Allen, __ F.3d __ (5th Cir. Nov. 4, 2010)(09-50283).

( “A general order to explore and rummage through a person’s belongings

is not permitted.” United States v. Cook, 657 F.2d 730, 733 (5th Cir. Unit A Sept. 1981). “The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984) (internal citations omitted)). “When the Government conducts a search pursuant to a warrant that does not particularly describe the things to be seized, the

appropriate remedy is for the court to exclude from the evidence in a later criminal action the items improperly taken.” Cook, 657 F.2d at 734.

( This Court conducts a two-part inquiry to determine whether a seizure conducted pursuant to a search warrant violated the Fourth Amendment. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999). First, we ask whether the seizure falls within the good-faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897,

920-21 (1984); Cherna, 184 F.3d at 407. The good-faith inquiry is confined “to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.” Leon, 468 U.S. at 923 n.23. Thus, under the good-faith exception, if the evidence was obtained by law enforcement officers who relied on the warrant in objectively reasonable good-faith, then the evidence obtained during the search is admissible. United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000) (citing United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997)) . This is true even if the evidence in the affidavit on which the warrant was based

was not sufficient to establish probable cause. Id. If the good-faith exception applies, this court affirms the district court’s decision denying the motion to suppress. Id. If the good-faith exception does not apply, then this court goes to the second step and determines whether the magistrate issuing the warrant had a “substantial basis for believing there was probable cause for the search.” Id. (citing Cherna, 184 F.3d at 407).

( The warrant at issue clearly does not pass constitutional muster. It is undoubtedly broad because of its lack of particularity, absent the affidavit and attachments. Simply incorporating the affidavit and attachments, which stated specifically what the search entailed and what was to be seized, by reference in the warrant could have cured the deficiency of the warrant. That being said, the issue here is not the constitutional invalidity of the warrant, but whether the evidence seized pursuant to the unconstitutionally vague warrant should be suppressed. Indeed, the Supreme Court has clearly stated that suppression is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)). Even though the warrant in this case was not sufficiently particular, we conclude that the fruits of the search are admissible under the good-faith exception.

( As the Supreme Court pointed out recently in Herring v. United States, __

U.S.__, 129 S. Ct. 695, 699-700 (2009), the exclusionary rule is a judicially

fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution. Therefore, evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987)); see also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the “good-faith” rule of Leon applies.

The Herring Court identified several critical factors in deciding whether or not evidence should be excluded: whether the application of the exclusionary rule results in deterrence; whether the benefits of deterrence outweigh its costs; and whether the misconduct was flagrant or deliberate. Id. at 700-02. Then the Court stated:

An error that arises from nonrecurring and attenuated negligence

is thus far removed from the core concerns that led us to adopt the

rule in the first place. . . .

To trigger the exclusionary rule, police conduct must be

sufficiently deliberate that exclusion can meaningfully deter it, and

sufficiently culpable that such deterrence is worth the price paid by

the justice system. As laid out in our cases, the exclusionary rule

serves to deter deliberate, reckless, or grossly negligent conduct, or

in some circumstances recurring or systemic negligence.

129 S.Ct. at 702.

( Mistake of Fact and of Law: Reasonable suspicion can rest upon a mistake of law or fact if the mistake is objectively reasonable. United States v. Alvarado-Zarza, 782 F.3d 246, 249 (5th Cir. 2015) (first citing Heien v. North Carolina, 135 S. Ct. 530, 536 (2014); then citing Illinois v. Rodriguez, 497 U.S. 177, 185 (1990)).

( Warrantless Search incident to Domestic Violence Call Upheld. From United States v. Rodriguez, 601 F.3d 402 (5th Cir. March 23, 2010)(08-50989): The standard of review for a “motion to suppress based on live testimony at a suppression hearing is to accept the trial court’s factual findings unless clearly erroneous or influenced by an incorrect view of the law.” United States v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003) (quotation omitted). Evidence is considered in “the light most favorable to the prevailing party.” United States v. Shelton, 337 F.3d 529, 532 (5th Cir. 2003). The ultimate conclusion about the constitutionality of the law enforcement conduct is reviewed de novo. Id. This court “may affirm the district court’s ruling on a motion to suppress based on any rationale supported by the record,” but “where a police officer acts without a warrant, the government bears the burden of proving that the search was valid.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).

( “The protective sweep doctrine allows government agents, without a warrant, to conduct a quick and limited search of premises for the safety of the agents and others present at the scene.” United States v. Mendez, 431 F.3d 420, 428 (5th Cir. 2005). To be constitutionally valid, (1) “the police must not have entered (or remained in) the home illegally and their presence within it must be for a legitimate law enforcement purpose;” (2) “the protective sweep must be supported by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to those on the scene;” (3) “the legitimate protective sweep may not be a full search but may be no more than a cursory inspection of those spaces where a person may be found;” and (4) the protective

sweep “may last[] . . . no longer than is necessary to dispel the reasonable suspicion of danger, and . . . no longer than the police are justified in remaining on the premises.” United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004) (en banc) (alterations in original) (citations and internal quotation marks omitted). We consider the “totality of the circumstances surrounding the officers’ actions” in determining whether an officer had a reasonable, articulable suspicion sufficient to justify a protective sweep. United States v. Maldonado, 472 F.3d 388, 395 (5th Cir. 2006).

( In light of the presence of a firearm at the scene of a domestic altercation, the officers acted reasonably in securing the scene by sweeping the trailer to

determine whether other persons were present who might access that firearm. See, e.g., United States v. Virgil, 444 F.3d 447, 451 (5th Cir. 2006) (finding a protective sweep reasonable where police observed a firearm inside the front door of a house and heard noises near the back door of the house indicating that other persons might be present).

( Failure to Raise Appeal Issue at Trial. An appeal who does not object to the legality of the search prior to trial may not raise the issue on appeal. See FED. R. CRIM.

P. 12(b)(3)(C), (e); United States v. Chavez-Valencia, 116 F.3d 127, 129-30 (5th

Cir. 1997).

( Search by Private Person or Government Agent.

( United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652 (1984): the protections provided by the Fourth Amendment do not apply to a “search or seizure< even un unreasonable one, effected by a private individual not actual as an agent of the Government or with the participation or knowledge of any Governmental official. (Quoting Walter v. United States, 447 U.S. 649, 100 S. Ct. 2393 (1980)(Blackmun, J., dissenting.

( Lustig v. United States, 338 U.S. 74, 78-79 ,69 S.Ct. 1372 (1949) that “a search is a search by a federal official if he had a hand in it” and that “so long as he was in it before the object of the search was completedly

accomplished, he must be deemed to have participated in it.

( Accord: United States v. Coronna, 420 F.2d 1091, 1093 (5th Cir. 1970).

( Military: United States v. Jones,73 M.J. 357 (C.A.A.F. 2014) and its follow-on case United States v. Buford,74 M.J. 98 (C.A.A.F. 2015)(excellent dissent by J. Erdmann that security policeman acted as government agent under the facts.

( Federal Circuit Cases: United States v. Lichtenberger, 2015 U.S. App. LEXIS 8271 (6th Cir. May 20, 2015).

( Strip Search. Jails may perform suspicionless strip searches on new inmates regardless of the gravity of their alleged offenses. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012).

( Standing. From United States v. Pack, 612 F.3d 341 (5th Cir. July 15, 2010, modified on rehearing, 622 F.3d 383 (5th Cir. Sept. 30, 2010)(Modification: “The panel, on further consideration, hereby modifies its prior opinion, United States v. Pack, 612 F.3d 341 (5th Cir.2010), in the following respects. The panel now concludes that United States v. Dortch, 199 F.3d 193 (5th Cir.1999), did not hold that the reasonable suspicion requirement of a Terry stop meant that there must be particularized suspicion of a particular, specific crime, as distinguished from a particular and objective basis for suspecting the detained person or persons of some criminal activity. See, e.g., United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (" The Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot ..." ); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) ( ... officers must " have a reasonable suspicion, based on objective facts, that the individual [detained] is involved in criminal activity" ); United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Moreover, our en banc decision in United States v. Brigham, 382 F.3d 500 (5th Cir.2004), did not overrule or abrogateDortch. Dortch held that reasonable suspicion of one particular offense which admittedly was subsequently wholly dispelled, did not constitute reasonable suspicion of a distinctly different offense.  (08-41063): The exclusionary rule allows a defendant to suppress the evidentiary fruits of a violation of his Fourth Amendment rights. 6 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.1, at 4 (4th ed. 2004). Fourth Amendment rights are personal rights, which may be enforced only by the person whose rights were infringed. Rakas v. Illinois, 99 S.Ct. 421, 428 (1978). Because Fourth Amendment rights are personal, the Supreme Court has stated that there is no useful analytical purpose to be served by considering a matter of standing distinct from the merits of a defendant’s Fourth Amendment claim. See id. (“Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which evidence must be excluded.”). Despite this admonishment, for brevity’s sake, courts often refer to the question of whether or not a defendant is asserting a violation of his own Fourth Amendment rights as one of “standing.” See, e.g., United States v. Grant, 349 F.3d 192, 195–96 (5th Cir. 2003); United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001). In Rakas, the Supreme Court held that the Fourth Amendment rights of passengers were not violated when the police unlawfully searched the vehicle in which they were riding if the passengers had no ownership interest or reasonable expectation of privacy in the vehicle. Id., 99 S.Ct. at 429–33. Because the passengers had no ownership interest or reasonable expectation of privacy in the vehicle, the only Fourth Amendment rights that had been violated were those of the vehicle’s owner. See id. However, in Brendlin v. California, the Court held that a passenger with no ownership interest in a vehicle could challenge evidence discovered as a result of an allegedly illegal traffic stop of the vehicle, because the stop and the detention that followed constituted a seizure of the persons of everyone in the vehicle. 127 S.Ct. 2400, 2403–07 (2007). Since everyone in the vehicle was seized, the passenger’s challenge was directed against a purported violation of his own Fourth Amendment rights. See id.

Pack did not allege that Worley’s decision to stop Williamson’s vehicle was

a violation of his Fourth Amendment rights. He could not have made this argument successfully, because the evidence was undisputed that the vehicle was speeding. See, e.g., United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993) (“Appellants do not argue, nor could they, that the initial stop of their vehicle for speeding was improper. This is so whether or not Terry applies.”). Pack cannot validly allege that the detention that followed the stop immediately violated his Fourth Amendment rights. Any such argument is plainly untenable under our case law. See, e.g., United States v. Brigham, 382 F.3d 500, 507–508 (5th Cir. 2004) (en banc) (describing the types of inquiries and routine checks a police officer may perform automatically upon making a lawful traffic stop). This leaves Pack’s claim that his detention became illegal after Worley completed the driver’s license and criminal history checks. See generally Brigham, 382 F.3d at 510 (discussing prior cases in which evidence was suppressed because police officers completed their “computerized driver’s license and vehicle registration checks but continued to detain the drivers without reasonable suspicion . . . .”). However, Worley observed Pack’s extreme nervousness and obtained Pack’s conflicting story before the routine checks were completed. The nervousness and the conflicting story were the key facts that caused Worley to become suspicious and detain the vehicle.

We analyze the legality of traffic stops for Fourth Amendment purposes

under the standard articulated by the Supreme Court in Terry v. Ohio, 88 S.Ct. 1868 (1968). Brigham, 382 F.3d at 506. Under this standard, we make a two-part inquiry. Id. First, we examine whether or not the officer’s decision to stop the vehicle was justified at its inception. Id. Second, we determine whether or not the officer’s subsequent actions were reasonably related in scope to the circumstances that caused him to stop the vehicle in the first place. Id. An officer’s subsequent actions are not reasonably related in scope to the circumstances that caused him to stop the vehicle if he detains its occupants

beyond the time needed to investigate the circumstances that caused the stop, unless he develops reasonable suspicion of additional criminal activity in the meantime. Id. at 507. If the officer develops reasonable suspicion of additional criminal activity during his investigation of the circumstances that originally caused the stop, he may further detain its occupants for a reasonable time while appropriately attempting to dispel this reasonable suspicion. See id. We have held that an officer may examine driver’s licenses and vehicle registrations and run computer checks as part of his investigation of the

circumstances that originally caused the stop. Id. at 508. He may also ask about the purpose and itinerary of the occupants’ trip as part of this investigation, because we consider these questions to be reasonably related in scope to his investigation of the circumstances that caused the stop. See id. at 506-508.

Case also covers law on inconsistencies in story to DPS.

( Bare Bones Affidavit on Confidential Informer and Good Faith. If a search warrant is supported by more than a bare bones affidavit, the officers executing the warrant may rely in good faith on the warrant, even if it is subsequently invalidated. United States v. Leon, 468 U.S. 897, 922-23 (1984); United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). A bare bones affidavit is one that contains wholly conclusory statements and is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923; Satterwhite, 980 F.2d at 321 (internal quotation marks and citation omitted). We apply de novo review to the sufficiency of the warrant and to the reasonableness of a policeman’s reliance on

the warrant. Satterwhite, 980 F.2d at 321; see United States v. Cherna, 184 F.3d 403, 406-407 (5th Cir. 1999). Unless the defendant’s motion concerns a novel question of law, it is unnecessary to address the issue of whether there was probable cause for the search if we determine that the good faith exception to the exclusionary rule applies. Satterwhite, 980 F.2d at 320.

Whether an affidavit is a bare bones affidavit is determined under the totality of the circumstances. See United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). Such a determination examines the veracity, reliability, and basis of knowledge of a confidential informant. Id. Although we review the sufficiency of the warrant de novo, a magistrate must be allowed to draw reasonable inferences from the affidavit, and the ultimate determination of its adequacy is entitled to great deference on review. United States v. May, 819 F.2d 531, 535 (5th Cir.1987). “Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” Id (internal

quotation marks and citation omitted). Rather, the affidavit must be construed “in a common sense manner.” United States v. Jackson, 818 F.2d 345, 348 (5th Cir. 1987) (internal quotation marks and citation omitted). There is no requirement that all of an informant’s tips be corroborated by police investigation in order to be considered credible. See United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997) (en banc).

The affidavit stated in pertinent part that,

Your Affiant has received information from a Confidential Informant, referred to as a CI that the CI has personally seen SHAW in possession of two (2) handguns, described by the CI as being semi-auto handguns and possibly being .45 caliber, within the last 72 hours. Your Affiant has also received information from another CI that there is a locked box in the closet in this one

bedroom apartment that contains an additional handgun. Your

Affiant has also received information from numerous concerned

citizens that SHAW has been seen carrying a handgun on his,

SHAW’S, person. The CI’s have been proven true, correct, and

reliable in past.

This case does not concern a novel question of law, so we turn to the good faith exception to the exclusionary rule. We have upheld similar affidavits based on the personal observations of a previously reliable informant. See United States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992)

From United States v. Shaw, __ F.App’x__ (5th Cir. Sept. 29, 2010)(10—40081)

( Protective Sweep. United States v. Jones, 239 F.3d 716, 721–22 (5th Cir. 2001) (holding that police could enter apartment when they viewed a gun through an open door

after conducting a proper “knock and talk”); United States v. Maldonado, 472 F.3d 388, 394 (5th Cir. 2006) (holding that protective sweep may be reasonable to ensure officers’ safety, particularly during drug arrests where the presence of weapons is not uncommon).

( Scanning Gift Cards without a Warrant in Unauthorized Access Device Case.

United States v. Turner, __F.3d __ (5th Cir. Oct. 13-2016)(15-50788):

Turner was charged with aiding and abetting the possession of unauthorized access devices. He moved to suppress evidence of the gift cards, challenging both the roadside seizure of the cards and the subsequent examination of the magnetic stripes. The district court denied Turner’s motion, finding that, although Turner had standing to seek suppression, there was no constitutional violation because (1) Henderson provided consent for the seizure of the gift cards and (2) the later examination of the cards did not constitute a search. Turner entered a conditional guilty plea, reserving his right to appeal the suppression ruling.

II. “When examining a district court’s ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error.” United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009). We view the evidence in the light most favorable to the prevailing party, United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002), and may “affirm the district court’s ruling . . . based on any rationale supported by the record.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). As the party seeking suppression, Turner “has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133–34 (1978)). That burden includes establishing standing to contest the evidence, United States v. Iraheta, 764 F.3d 455, 460–61 (5th Cir. 2014), and showing that the challenged government conduct constitutes a Fourth Amendment search or seizure. Smith, 978 F.2d at 176.

III. We agree with the district court that Turner may challenge the seizure of the gift cards. He jointly possessed the cards with Henderson, and the bag containing them was found underneath where he was sitting. See Iraheta, 764 F.3d at 461–62 (explaining that passengers of a vehicle have standing to challenge seizure of their luggage); United States v. Miller, 608 F.2d 1089, 1101 (5th Cir. 1979) (treating a plastic portfolio as personal luggage subject to Fourth Amendment search requirements). Turner agrees that by handing the bag to the officer in response to his question about its contents, Henderson consented to the officer’s initial seizure of, and look inside, the bag. But he disagrees with the district court’s conclusion that Henderson’s consent extended to the officer’s taking permanent possession of the gift cards. We need not resolve this dispute over the scope of Henderson’s consent, because we find another lawful basis for the seizure of the gift cards. The taking of physical items like gift cards is a seizure that requires either a warrant or some other justification that renders such an intrusion reasonable under the Fourth Amendment. See United States v. Paige, 136 F.3d 1012, 1022 (5th Cir. 1998). One situation in which a warrant may not be required occurs when police “seize evidence in plain view.” Arizona v. Hicks, 480 U.S. 321, 326 (1987) (emphasis omitted) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971)). For a plain-view seizure to be lawful, the officer must have had lawful authority to be in the location from which he viewed the evidence, and the incriminating nature of the item must be “immediately apparent.” Horton v. California, 496 U.S. 128, 136 (1990) (quoting Coolidge, 403 U.S. at 466). As the officer obviously had authority to be standing on the side of the road when he observed the gift cards (the lawful authority requirement typically arises when the police observe the item while 1 The government challenges Turner’s “standing” to contest only what it views as Henderson’s consent to the seizure of the gift cards. As we find the seizure lawful under the plain-view exception rather than as a matter of consent, we need not decide this question.

inside a home), Turner contests only whether it was immediately apparent that the cards were instrumentalities of a crime. “The incriminating nature of an item is immediately apparent if the officers have probable cause to believe that the item is either evidence of a crime or contraband.” United States v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1996). To have probable cause, “it is not necessary that the officer know that the discovered res is contraband or evidence of a crime, but only that there be ‘a “practical, nontechnical” probability that incriminating evidence is involved.’” United States v. Espinoza, 826 F.2d 317, 319 (5th Cir. 1987) (quoting Texas v. Brown, 460 U.S. 730, 742–43 (1983)). When reviewing probable cause determinations, we “consider the totality of the circumstances—including the officers’ training and experience as well as their knowledge of the situation at hand.” Buchanan, 70 F.3d at 826. The circumstances here were as follows: the plastic bag contained approximately 100 gift cards and appeared to have been concealed under the front passenger seat. Henderson admitted not having receipts for the gift cards and further stated that he and Turner purchased the gift cards from an individual who sells them for a profit. The officer, upon learning this, conferred with other officers who had experience with large numbers of gift cards being associated with drug dealing, fraud, and theft. We conclude that these facts support probable cause to believe the gift cards were contraband or evidence of a crime. See United States v. Watson, 273 F.3d 599, 602 (5th Cir. 2001) (describing probable cause as a “fair probability” that a crime occurred, which is “more than a ‘bare suspicion’ but less than a preponderance of the evidence” (quoting United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999))). Turner counters that a finding of probable cause is at odds with the officer’s view that during the stop there was insufficient evidence to arrest Henderson for a gift card crime. This does not control our inquiry for a couple reasons. The existence of probable cause is an objective one that does not turn on the subjective beliefs of an officer. And even if the officer’s view was a reasonable assessment of the evidence, he could seize the gift cards so long as there was probable cause to believe they were evidence of a crime, even if that crime could not yet be tied to a particular suspect.

IV. Having concluded that the gift cards were lawfully seized, we must decide

whether it was lawful for law enforcement to scan the magnetic stripes on the cards to see the information encoded therein. Once seized, most items do not give rise to a separate Fourth Amendment search inquiry. Think of a firearm or a marijuana plant. The evidentiary value of those items is the object itself, so seizing them is all law enforcement needs to do. Some items, however, conceal other items. Even when law enforcement lawfully seizes a suitcase, for example, it still needs a warrant (or some other recognized justification) to open it. United States v. Place, 462 U.S. 696, 699–700 (1983). That is because, in addition to the Fourth Amendment possessory interest a person has in a suitcase, there is an additional Fourth Amendment privacy interest in its contents. When it comes to technology that allows law enforcement to obtain information embedded in an item, it can be more difficult to determine whether there is a separate privacy interest located within an item that already enjoys constitutional protection from unlawful seizure. Such a privacy interest exists in the electronic contents of computers and cell phones. See Riley v. California, 134 S. Ct. 2473, 2485 (2014). Yet, other applications of technology that reveal There was no dispute in Riley that reviewing the contents of a cell phone involved a search. At issue was only whether such a search was permissible without a warrant when conducted during an arrest. Riley, 134 S. Ct. at 2493 (holding that search-incident-to-arrest doctrine does not extend to search of cell phone).

information not visible to the naked eye—for example, using a special light to detect ultraviolet ink on currency or examining the metadata located within an electronic image already in the lawful possession of the government—have not been thought to constitute a search. See United States v. Post, 997 F. Supp. 2d 602, 606 (S.D. Tex. 2014); United States v. Medina, No. 09-20717-CR, 2009 WL 3669636, at *10 (S.D. Fla. Oct. 24, 2009), report and recommendation adopted in part, rejected in part sub nom. United States v. Duarte, No. 09- 20717-CR, 2009 WL 3669537 (S.D. Fla. Nov. 4, 2009). What about the information encoded in the magnetic stripe on the back of gift cards? A Fourth Amendment privacy interest is infringed when the government physically intrudes on a constitutionally protected area or when the government violates a person’s “reasonable expectation of privacy.” United States v. Jones, 132 S. Ct. 945, 949–50 (2012). Although technology can sometimes involve the former, see id. at 949 (finding that placement of a GPS tracking device on a car amounted to an unlawful trespass), it more often involves the latter. Indeed, the “reasonable expectation of privacy” approach arose from wiretapping. See Katz v. United States, 389 U.S. 347 (1967). Turner argues that scanning the gift cards amounted to a search under the “reasonable expectation of privacy” inquiry. That requires “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Katz, 389 U.S. at 361 (Harlan, J., concurring). The reasonableness of an expectation of privacy turns on “our ‘societal understanding’ about what deserves ‘protection from government invasion.’”

3 Some courts have referred to magnetic stripes as “magnetic strips.” The technical term is magnetic stripe. See Magnetic Stripe Technology, IBM, /history/ibm100/us/en/icons/magnetic/ (last visited Oct. 5, 2016) (“The magnetic stripe . . . was the catalyst that accelerated the proliferation of the global credit card industry, which now handles US$6 trillion in transactions per year.”).

Smith, 978 F.2d at 177 (quoting Oliver v. United States, 466 U.S. 170, 178 (1984)). Analogizing to the cell phones the Supreme Court discussed in Riley, Turner contends that society recognizes as reasonable an expectation of privacy in a gift card’s magnetic stripe because it is an electronic storage device that contains personal information. At this point, it is helpful to describe the electronic information encoded in the typical gift card. The record lacks much detail about this, a deficiency that hurts Turner as he bears the burden of establishing a privacy interest. Useful information can be found, however, in other cases addressing whether scanning credit or gift cards amounts to a search. One such court has explained that the typical magnetic stripe has “three data strips which hold only 79 alphanumeric characters, 40 numeric characters, and 107 numeric characters, respectively.” See United States v. Bah, 794 F.3d 617, 633 (6th Cir. 2015). For credit cards, most of which have more information than a gift card, that limited space usually contains the “account number, a bank identification number, the card’s expiration date, a three digit ‘CSC’ code, and, at times, the cardholder’s first and last name.” Id. at 630. Of course, it is the issuing institution, not card users, that initially codes and stores this information on the magnetic stripe. See United States v. Alabi, 943 F. Supp. 2d 1201, 1279 (D. N.M. 2013). Users do have the ability to re-encode the cards,4 but need an uncommon device to do so. to change at most a few lines of 4 At least for credit cards, some user agreements prohibit tampering with cards. See Alabi, 943 F. Supp. 2d at 1215–16; HSBC Credit Card Agreement Terms, HSBC BANK, k-credit-card-tcs.pdf (last visited Sept. 29, 2016). 5 See Deftun MSR606 HiCo Magnetic Stripe Card Reader Writer Encoder, , RE896K (last visited Oct. 5, 2016) (listing price at $299.99).

9 characters means it will rarely be worth doing for a lawful purpose. Id. at 1284–85; Bah, 794 F.3d at 632; United States v. DE L’Isle, 825 F.3d 426, 432– 33 (8th Cir. 2016). The incentive to re-encode exists, however, when a fraudster changes the account number encoded in a gift card to match one with a higher balance than the card he purchased or counterfeited. See Alabi, 943 F. Supp. 2d at 1284–85. A number of these features lead us to conclude that there is no reasonable expectation of privacy in the magnetic stripe of a gift card. For starters, the few lines of characters encoded in a gift card are infinitesimally smaller than the “immense storage capacity” of cell phones or computers. Riley, 134 S. Ct. at 2489. The Supreme Court described that capacity as “[o]ne of the most notable distinguishing features of modern cell phones” that had “several interrelated consequences for privacy,” including that “a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Id. Even more important is that the vast gulf in storage capacity between gift cards and cell phones reflects their different purposes. A primary purpose of modern cell phones, and certainly of computers, is to store personal information. See id. at 2489–91. The purpose of a gift card is to buy something. See Alabi, 943 F. Supp. 2d at 1279. The issuer of a gift card places the information on it, which can only be altered using a device that few Americans know about and even fewer own. As one court has put it, “[r]ather than using credit and debit cards to manipulate and store the data contained in the cards’ magnetic strips, individuals and society put to use the magnetic strips by using the data that the issuer encoded on them . . . to facilitate a financial transaction and purchase goods and services.” Id. at 1284. Case: 15-50788 Document: 00513716931 Page: 9 Date Filed: 10/13/2016 No. 15-50788 10 Another Fourth Amendment consequence flows from the commercial purpose of gift cards. Unlike cell phones and computers, whose function of storing personal information often results in access being restricted by a password, the raison d’être of gift cards means that third party cashiers will often be doing the same swiping that law enforcement did here. DE L’Isle, 825 F.3d at 430 (“[T]he purpose of a . . . gift card is to enable the holder of the card to make purchases, and to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest.”); Bah, 794 F.3d at 633 (“A credit card’s stored information . . . is intended to be read by third parties. That is the only reason for its existence.” (second emphasis added) (quoting United States v. Benjamin, No. 4:14-CR- 3089, 2014 WL 5431349, at *11 (D. Neb. Oct. 24, 2014))); see generally Smith v. Maryland, 442 U.S. 735 (1979) (discussing the third party doctrine); United States v. Miller, 425 U.S. 435 (1976) (same). We thus join the other courts that have considered this issue and conclude that society does not recognize as reasonable an expectation of privacy in the information encoded in a gift card’s magnetic stripe. See Bah, 794 F.3d at 631; DE L’Isle, 825 F.3d at 432; Alabi, 943 F. Supp. 2d at 1285; Medina, 2009 WL 3669636, at *11.

Second Chance Act (SCA) of 2009.. See Pub. L. 110-199, 122 Stat. 657.

( Permits expungement of certain non-violent offenses.

( From Broderick v. Chapman, __ F. App’x __ (5th Cir. Feb. 5, 2010)(09-10531).

Her petition was dismissed for failure to exhaust administrative remedies. A federal prisoner seeking relief pursuant to Section 2241 must first exhaust her administrative remedies through the Bureau of Prisons. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). The district court’s dismissal of a petition for failure to exhaust is reviewed for abuse of discretion. Id. “[E]xceptions to the exhaustion requirement apply only in ‘extraordinary circumstances’” with the inmate’s bearing the burden of showing administrative review would be futile. Id. (citing DCP Farms v. Yeutter, 957 F.2d 1183, 1189 (5th Cir. 1992)).

Section 8 Housing Fraud

( From United States v. Reagan, 596 F.3d 251 (5th Cir. Feb. 4, 2010)(08-11806):

( Charged as theft of public money in violation of 18 U.S.C. § 641.

( “Multiplicity claims are reviewed de novo.” United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007). “An indictment is multiplicitous if it charges a single offense in multiple counts, thus raising the potential for multiple punishment for the same offense, implicating the [F]ifth [A]mendment double jeopardy clause.” United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir. 1993) (footnotes omitted). To determine “whether separate and distinct prohibited acts, made punishable by law, have been committed,” the court looks to the “allowable unit of prosecution,” starting with the language of the statute.

Planck, 493 F.3d at 503 (internal quotation marks and citations omitted); United States v. Reedy, 304 F.3d 358, 365 (5th Cir. 2002).

( No case has been reported discussing the “allowable unit of prosecution” under 18 U.S. Code § 641. Courts interpreting similarly-worded statutes, however, have concluded that each distinct taking of funds constitutes a separate violation under the statute. We hold that the “allowable unit of prosecution” under § 641 is each individual transaction in which government money is received, even if the transaction is part of an overarching scheme. Reagan violated § 641 each time he converted a HUD check. The five counts against Reagan therefore were not multiplicitous.

( Reagan asserts that the district court erred in refusing to grant his motion

to dismiss the indictment. He contends that the indictment improperly charged

him under § 641 rather than under the HUD fraud statute, 18 U.S.C. § 1012,

and failed to set out the charges against him in a “plain and intelligible manner.”

Reagan … offers no further arguments or explanation. This is a failure to brief and constitutes waiver. See United States v. Stalnaker, 571 F.3d 428, 439–440 (5th Cir. 2009) (holding that the defendant’s failure to explain her assertions or provide citations to the record or relevant law constituted waiver for failure to adequately brief); see also FED. R. APP. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . [the] appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”). We therefore do not address these points of error.

( Terry Stop. United States v. Williams, (5th Cir. Jan. 3, 2013)(12-30427):

The use of force does not automatically convert a valid Terry stop into an arrest requiring probable cause. United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993). Rather, police officers are permitted “to take stern and swift measures when necessary to ‘discover the true facts and neutralize the threat of harm if it materialized’” during a Terry stop. United States v. Michelletti, 13 F.3d 838, 843 (5th Cir. 1994) (en banc)

Securities

( To prove an offense under § 513(a), the Government must prove that a defendant: 1) made, uttered, or possessed 2) a counterfeit or forged security 3) of an organization 4) with intent to deceive another person, organization, or government. United States v. Chappell, 6 F.3d 1095, 1098 (5th Cir. 1993). Section 513(a)(4) defines “organization” to include “a legal entity, other than a government, established or organized for any purpose . . . which operates in or the activities of which affect interstate or foreign commerce.” § 513(c)(4). In the present case, Citibank is the only potential “organization” as that term is defined by § 513(c)(4). 1

1

The purported account holders, “Eagle Trucking and Transport” and “Engaged Energy” are fictitious, and therefore cannot be organizations under § 513(c)(4). See United

States v. Wade, 266 F.3d 574, 581 (6th Cir. 2001).

( Securities Fraud. United States v. Lewis, __ F.3d ___ (Dec. 8, 2014)(14-10119):

To prove securities fraud, the Government must show: (1) the offer or sale of securities; (2) “by the use of any means or instruments of transportation or communication in interstate commerce or by use of the mails, directly or indirectly,” and (3) one of the varieties of fraudulent conduct in the statute.1 15 U.S.C. § 77q. This court has previously established that “[s]pecific reliance by the investor” on the fraudulent scheme or fraudulent statements need not be shown. United States v. Ashdown, 509 F.2d 793, 799 (5th Cir. 1975). Rather, the Government must show that the defendant’s scheme had

“some impact . . . on the investor and that the mails were used in those instances where the impact occurred.” Id. (quoting United States v. Schaefer, 299 F.2d 625, 629–30 (7th Cir. 1962)). In Ashdown, we held that the mailing of stock certificates or confirmations of purchase in the mail was sufficient evidence to show an impact of the scheme on investors. Id. However, in Ashdown, unlike here, each victim-investor testified that he or she was “influenced either by the misleading shareholder literature, including the

annual report, or by [one of the co-defendant’s] representations.” Id. …. we have never held that the testimony of all the investors is required to meet the “some impact” standard

set by Ashdown. For example, in a case involving the federal wire fraud statute, we held that there was sufficient evidence to support a conviction where the victim-investor did not testify. See United States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005).

( FDIC v. RBS Securities, __ F.3d __ (5th Cir. August 10, 2015)(14-51055):

The Federal Deposit Insurance Corporation sued the Defendants– Appellees for securities fraud, alleging that they made false and misleading statements in selling and underwriting residential mortgage backed securities. While the FDIC filed its lawsuit within three years of its appointment as receiver, and therefore within the federal limitations period in the FDIC Extender Statute, 12 U.S.C. § 1821(d)(14), it filed suit more than five years after the securities at issue were sold, running afoul of the limitations period in the Texas Securities Act. Though the FDIC argued that the FDIC Extender Statute preempts the state law limitations period, the district court granted judgment on the pleadings in favor of the Appellees, holding that the FDIC Extender Statute preempts only state statutes of limitations, not state statutes of repose. That decision was error. For the reasons set out below, we conclude that the FDIC Extender Statute preempts all limitations periods, whether characterized as statutes of limitations or as statutes of repose.

( Agency Investigations Admissible

( EEOC: Smith v. Universal Services, Inc., 454 F.2d 154 (5th Cir. 1972).

( SEC: United States v. Gluk and Baker, __ F.3d __ (5th Cir. Jan. 25 & Feb. 17, 2016)(14-51012).

( Channel Stuffing. United States v. Gluk and Baker, __ F.3d __ (5th Cir. Jan. 25 & Feb. 17, 2016)(14-51012): a fraudulent scheme companies sometimes attempt, in an effort to smooth out uneven earnings—typically to meet Wall Street earnings expectations. Specifically, a company that anticipates missing its earnings expectations will agree to sell products to a coconspirator. The company will book those sales as revenue for the current quarter, increasing reported earnings. In the following quarter, the coconspirator returns the products, decreasing the company’s reported earnings in that quarter. Effectively, the company fraudulently “borrows” earnings from the future quarter to meet earnings expectations in the present. Thus, in the second quarter, the company must have enough genuine revenue to make up for the “borrowed” earnings and to meet that quarter’s earnings expectations. If the company does not meet expectations in the second quarter, it might “borrow” ever-larger amounts of money from future quarters, until the amounts become so large that they can no longer be hidden and the fraud is revealed.

Selective Enforcement

( United States v. Armstrong, 517 U.S. 456, 464 (1996).

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

( Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2000) (holding that a selective enforcement claim requires the plaintiff to “prove that the government official’s acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right”).

Self Incrimination and Sentencing

( A defendant who has pleaded guilty retains the right against providing self-incriminatory sentencing information. Mitchell v. United States, 526 U.S. 314, 322-30

(1999).

Self-Reporting and Self-Incrimination

( Good overview at United States v. Castillo, 74 M.J. 160 (C.A.A.F. 2015)

and United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010).

( Albertson v. subversive Activity Control Board, 382 U.S. 70, 71-73, 86 S.Ct. 194 (1965).

( California v. Byers, 402 U.S. 424, 430, 91 S.Ct. 1535 (1971)(Plurality)(no Fifth Amendment violation with a reporting requirement that is “essentially regulatory, not criminal.”)

Sentencing Guideline Amendment 505

( United States v. Morgan, __ F.3d __ (5th Cir. Aug 8, 2017)(16-30591):

A district court has the authority to reduce the sentence of a defendant serving a term of imprisonment when the “range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (d)” of that section, a list that includes both Amendments 505 and 782, among several others. See U.S.S.G. § 1B1.10(a)(1) & (d). Though the next statement may seem a redundancy to what we have just stated, the key to this appeal is that a defendant must show the amendment actually lowered the applicable Guidelines range. See United States v. Bowman, 632 F.3d 906, 910 (5th Cir. 2011).

We start with determining Morgan’s base-offense level prior to the effective date of Amendment 782. Amendment 505 reduced Morgan’s baseo ffense level from 40 to 38, but the district court in 1996 refused to grant a corresponding reduction in sentence. The later Amendment 782 likewise set Morgan’s base-offense level at 38. The question is whether Morgan’s base offense level was already 38 after the adoption of Amendment 505, even though the district court had earlier denied him the benefit of such a reduction. If so, Morgan was ineligible for a sentence reduction under Amendment 782 because it had no effect on his base-offense level.

We agree with how the amendments were explained in one of our recent decisions. See United States v. Ramos, 653 F. App’x 819, 819–20 (5th Cir. 2016). Prior to Amendment 505, the base-offense level was 40 for defendants responsible for between 500 and 1,500 kilograms of cocaine. Id. at 819. Amendment 505 made the base-offense level 38 for defendants responsible for 150 kilograms or more of cocaine. Id. Morgan’s base-offense level was 38 after Amendment 505 regardless of the district court’s refusal in 1996 to alter the sentence. Amendment 782 increased to 450 kilograms the necessary amount of cocaine for a base-offense level of 38, an amount Morgan also satisfied. Morgan was responsible for more than 500 kilograms of cocaine. After Amendment 505, his base-offense level was 38. Amendment 782 left his baseoffense at 38. It therefore did “not have the effect of lowering the defendant’s applicable guideline range.” Bowman, 632 F.3d at 910 (quoting U.S.S.G. § 1B1.10(a)(2)(B)).

Sentence Disparity Among Defendants Who Can Provide Assistance to Government

( From United States v. Mondragon, 2009 WL 2482064, ___ Fed. App’x ____ (unreported)(08-20302)(5th Cir. August 14, 2009): In United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 20098), this Court held that the district court erred by considering the sentencing disparity between Duhon and his co-defendant when that disparity existed because the co-defendant received a downward departure for providing substantial assistance to the government. Here, Mondragon’s attorney recognized at sentencing that Mondragon “wasn’t in a position to provide [the government] information that would warrant a downward departure.” His co-defendant, however, was in that position and did assist the

government t. “Disparity in sentences between a defendant who provided substantial assistance and one who provided no assistance . . . is not unwarranted.” There was no plain error in calculating Mondragon’s guideline sentence. Id. (quoting U.S. v. Gallegos, 480 F.3d 856, 859 (8th Cir.2007)).

Sentencing Objections

( Ericka Culberson pled guilty to one count of unauthorized bank entries, reports, and transactions, in violation of 18 U.S.C. § 1005. She had no prior convictions, resulting in a base Sentencing Guidelines range of zero to six months. However, her pre-sentence report (“PSR”) recalculated a hypothetical sentencing range based on Culberson’s alleged involvement in a scheme to obtain over twenty fraudulent bank loans from her former employer Bank of America. The intended loss for the substantive offense was $20,000, but the intended loss for the bank loan scheme totaled over $1,000,000, resulting in a

Guideline range of 37–46 months imprisonment. Based on this alleged conduct, the district court upwardly departed from the base sentencing range and sentenced Culberson to 40 months imprisonment, below the thirty-year maximum that § 1005 permits.

Culberson argues that the district court violated her Sixth Amendment rights when it engaged in fact-finding at sentencing with regard to the alleged bank loan scheme, using these facts as a basis for its decision to depart upwardly in Culberson’s sentence. Culberson does not contend that it was improper for the district court to apply the upward departure provisions of U.S.S.G. § 5K2.0 (2001) to her sentence, nor does she contend that the district court’s factual findings with regard to the bank loan scheme were not supported by a preponderance of the evidence. Rather, her sole challenge is that her sentence would have been unreasonable without the district court’s findings in support of the upward departure, and that consequently, those findings had to be made by

a jury beyond a reasonable doubt in order for them to support the sentence. We review de novo constitutional questions of law. United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).

( Court Not Bound by Initial Pronouncement of Sentence. See United States v. Meza, 620 F.3d 505, 507 (5th Cir. 2010). In Meza, we declined to hold that a district court’s initial oral formulation of a sentence “instantaneously strips the district court of its jurisdiction” to change the initially announced sentence. 620 F.3d at 508 (declining to adopt a “draconian rule” whereby a “district court’s initial formulation of the sentence is the type which instantaneously strips the district court of its jurisdiction to

sentence criminal defendants and immediately vests such jurisdiction with this court”). As in Meza, we conclude that the district court’s initial oral announcement of Gerezano’s sentence did not constitute a binding sentence and therefore did not strip the court of jurisdiction to change its initial formulation. Although the district court did not change Gerezano’s sentence upon a request by one of the parties to alter its initial formulation, cf., id., the court changed its initial formulation before it adjourned the sentencing hearing. Accord: United State v. Gerezano-Rosales, __ F.3d __ (5th Cir. Aug. 27, 2012)(11-50185)

Sentencing Disparity

( United States v. Duque-Hernandez, __ F.3d ___ (5th Cir. Feb. 28, 2013)(11—40642):

Trial judge considered state court conviction for drugs. No trial objection. On appeal,

defendant complains of the assertion of the enhancement. Plain error review:

Because Duque-Hernandez did not object to the application of the adjustment, our review is for plain error. United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009). To demonstrate plain error, he must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.; see also United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc) (declining “to adopt a blanket rule that once prejudice is found under the [third plain error prong], the error invariably requires correction”). The Supreme Court recently reiterated the importance of this independent fourth assessment we must make before correcting an error urged on appeal for the first time. See Henderson v. United States, 568 U.S. ___, 2013 WL 610203, at *9 (Feb. 20, 2013) (emphasizing that the plain error rule “contains other screening criteria” in addition to the “error” and “plainness” requirements).

( First, although we take no position on the propriety of using a probable

cause statement attached to a charging document to ascertain whether a prior

state conviction qualifies as a “drug trafficking offense” within the meaning of

§ 2L1.2(b)(1)(B), (Note: The Fourth Circuit has held that affidavits of probable cause that are a part of the charging papers, or that are expressly incorporated into the charging papers, may be considered in determining the appropriateness of sentencing enhancements. See United States v. Kirksey, 138 F.3d 120, 126 (4th Cir. 1998).)

we perceive no error in reviewing this statement to assess hether the application of the drug trafficking adjustment seriously affected the fairness, integrity, or public reputation of the proceedings, cf. United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (“In assessing factual sufficiency under the plain error standard, we may look beyond those facts admitted by the defendant during the plea colloquy and scan the entire record for facts supporting his conviction.”)

( Sentencing Review. “Findings of fact for sentencing purposes need only be found by a preponderance of the evidence.” United States v. Simpson, 741 F.3d 539, 556 (5th Cir. 2014). On appellate review of judicial factfinding at sentencing, we will not find “clear error if the district court’s finding is plausible in light of the record as a whole.” United States v. Odom, 694 F.3d 544, 547 (5th Cir. 2012) (quoting United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)). And under clear error review, even “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

(Fair) Sentencing Act

( United States v. Alexander, (5th Cir. Mar. 10, 2011)(09-31021):

Congressed passed the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372, after Alexander had been sentenced and had filed his appeal. As a result of that act, 21 U.S.C. § 841(b)(1)(A) now requires that a defendant possess over 280 grams of crack cocaine, rather than 50 grams, for the 10-year mandatory minimum to apply. Alexander claims that the act is retroactive and that he should be resentenced under the new statute. This claim is without merit. The FSA does not apply retroactively to defendants, like Alexander, who were sentenced before its enactment. See United States v. Doggins, No. 09-40925, 2011 U.S. App. LEXIS 2413, at *10-*11 (5th Cir. Feb. 9, 2011).

( See also concurrent sentencing and consecutive sentencing.

( From Wikipedia: he Fair Sentencing Act of 2010 amended the Controlled Substances Act and the Controlled Substances Import and Export Act by increasing the amount of a controlled substance or mixture containing a cocaine base (i.e., crack cocaine) that would result in mandatory minimum prison terms for trafficking and by increasing monetary penalties for drug trafficking and for importing/exporting controlled substances. The five-year mandatory minimum for first-time possession of crack cocaine was also eliminated,[28] and sentencing may take account of accompanying violence, among other aggravating factors.[2]

The bill directed the United States Sentencing Commission to take four actions:

▪ review and amend its sentencing guidelines to increase sentences for those convicted of committing violent acts in the course a drug trafficking offense;

▪ incorporate aggravating and mitigating factors in its guidelines for drug trafficking offenses;

▪ announce all guidelines, policy statements, and amendments required by the act no later than 90 days after its enactment; and

▪ study and report to Congress on the impact of changes in sentencing law under this act.

In addition, the bill requires the Comptroller General to report to Congress with an analysis of the effectiveness of drug court programs under the Omnibus Crime Control and Safe Streets Act of 1968. This must be done within one year after the enactment of the Fair Sentencing Act.[28]

Sentencing Guidelines

( The Federal Sentencing Guidelines, including Section 4B1.2(a)'s residual clause, are not subject to vagueness challenges under the due process clause. Beckles v. United States, __ U.S. ___ (March 7, 2017)(15-8544).

( A defendant must be sentenced under the version of the Guidelines in effect at sentencing, unless doing so would violate the Ex Post Facto Clause of the Constitution. U.S.S.G. § 1B1.11.

( Molina-Martinez v. United States, __ U.S. __ (April 16, 2016)(unanimous op.)

Error on the USSG resulting in the application of the wrong guideline range to D affect’s his substantial rights under FRCrP 52(b). Crt rected the Fifth Circuit’s “additional evidence rule,” which required that a defendant whose sentence falls within what would have been he correct Guidelines range must, of appeal, identify “additional evidence “ showing that use of the incorrect Guidelines in fact affected his sentence.

( Court Cannot consider Bald Arrests. United States v. Harris, __ F.3d __ (5th Cir. Dec. 10, 2012)(11-10997): Harris argues that the district court committed procedural error by considering his “bare arrest record.” The term “bare arrest record,” in the

context of a PSR describes the reference to the mere fact of an arrest—i.e. the date, charge, jurisdiction and disposition—without corresponding information about the underlying facts or circumstances regarding the defendant’s conduct that led to the arrest. See United States v. Williams, 620 F.3d 483, 493 n.9 (5th Cir. 2010) (citing United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009)). The mere fact of an arrest, by itself, is not reliable evidence of guilt. See United States v. Robert Jones, 444 F.3d 430, 434 & n.10 (5th Cir. 2006). Thus, our precedent makes it clear that the consideration of the fact of prior arrests, without more, is prohibited. See United States v. Johnson, 648 F.3d 273, 277 (5th Cir. 2011) (“[W]ithout sufficient indicia of reliability, a court may not factor in prior arrests when imposing a sentence.”); United States v. Earnest Jones, 489

F.3d 679, 681–82 (5th Cir. 2007); Robert Jones, 444 F.3d at 434 (“[I]t was error

to take the mere fact of prior arrests into account.”); cf. U.S.S.G. § 4A1.3(a).

The question then becomes whether the district court here ran afoul of our

precedent. We note that the PSR is required to include the defendant’s arrest

history for the court’s benefit. See Fed. R. Crim. P. 32(d)(2). While the arrest

history may contain merely the fact of arrest, it may also include a specific

description of the defendant’s conduct leading to the arrest. In Johnson, we

noted that our precedent “left room for a court to consider arrests if sufficient

evidence corroborates their reliability.” 648 F.3d at 277. This rule is consistent

with the constitutional due process requirement that “sentencing facts must be

established by a preponderance of the evidence.” Id.

When making factual findings for sentencing purposes, district courts

“may consider any information which bears sufficient indicia of reliability to

support its probable accuracy.” United States v. Solis, 299 F.3d 420, 455 (5th

Cir. 2002) (internal quotation marks and citation omitted). Generally, a PSR

“bears sufficient indicia of reliability to be considered as evidence by the

sentencing judge in making factual determinations.” United States v. Nava, 624

F.3d 226, 231 (5th Cir. 2010) (quoting United States v. Trujillo, 502 F.3d 353,

357 (5th Cir. 2007)). A district court, therefore, “may adopt the facts contained

in a [PSR] without further inquiry if those facts have an adequate evidentiary

basis with sufficient indicia of reliability and the defendant does not present

rebuttal evidence or otherwise demonstrate that the information in the PSR is

unreliable.” Trujillo, 502 F.3d at 357 (citation omitted). When faced with facts contained in the PSR that are supported by an adequate evidentiary basis with sufficient indicia of reliability, a defendant must offer rebuttal evidence demonstrating that those facts are “materially untrue, inaccurate or unreliable.” United States v. Huerta, 182 F.3d 361, 364–65 (5th Cir. 1999) (internal quotation marks and citation omitted). Mere objections to such supported facts are generally insufficient. United States v. Rodriguez, 602 F.3d 346, 363 (“Because no testimony or other evidence was submitted to rebut the information in the PSR, the district court was free to adopt the PSR’s

findings without further inquiry or explanation.”). To summarize, our precedent is clear that the consideration of the mere fact of a prior arrest is prohibited. See, e.g., Johnson, 648 F.3d at 277–78 (“[W]ithout sufficient indicia of reliability, a court may not factor in prior arrests when imposing a sentence. . . . We have long recognized that ‘an arrest, without more, is quite consistent with innocence.’” (quoting United States v. Labarbera, 581 F.2d 107, 109 (5th Cir. 1978)). When the PSR also contains a factual recitation of the defendant’s conduct that gave rise to a prior unadjudicated

arrest, the district court must determine whether that factual recitation has an adequate evidentiary basis with sufficient indicia of reliability. See Trujillo, 502 F.3d at 357. If the factual recitation lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing—regardless of whether the defendant objects or offers rebuttal evidence.

Fn 2: We note, however, that mere inclusion in the PSR does not convert facts lacking an adequate evidentiary basis with sufficient indicia of reliability into facts a district court may rely upon at sentencing. See United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (“The PSR . . . cannot just include statements, in hope of converting such statements into reliable evidence, without providing any information for the basis of the statements.”); United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993) (“Bald, conclusionary statements do not acquire the patina of reliability by mere inclusion in the PSR.”).

( We review Osteen’s sentence for reasonableness, under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Osteen’s guidelines range sentence is entitled to a rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

( Harmless Error if Result would be Same. United States v. Ibarra-Luna, 628 F.3d 712, 713-14 (5th Cir. 2010) (holding that an error in the calculation of the applicable Guidelines range is subject to harmless error analysis)

( Application Notes. The application notes accompanying a Guideline generally bind federal courts unless they are inconsistent with the text of the Guideline. United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005); United States v. Ho, 311 F.3d 589, 610 (5th Cir. 2002) (citing Stinson v. United States, 508 U.S. 36 (1993)).

( Grouping of Offenses Together under USSG § 3D1.2. United States v. McLaunling, __ F.3d __ (5th Cir. June 2,2 014)(13-20350): We agree with

every other circuit court that has addressed the issue that an unlawful reentry

offense and a § 992(g) offense should not be grouped as they harm different

societal interests. … Second, with respect to McLauling’s argument that the offenses should be grouped under § 3D1.2(a) because they involve “the same act or transaction,” McLauling overlooks § 3D1.2(a)’s same victim requirement. That is, Section 3D1.2(a) only indicates that offenses should be grouped when they involve “the same victim and the same act or transaction.” U.S.S.G. § 3D1.2(a) (emphasis added). In cases such as this one, where “there are no identifiable victims” and the victim is “society at large,” the victim for the purposes of § 3D1.2(a) is “the societal interest that is harmed.” U.S.S.G. § 3D1.2 cmt. n.2. As such, our determination that unlawful reentry and § 992(g)(5) offenses protect different societal interests is determinative of the analysis here.

( Deterrence. United States v. Zalaya-Rosales, __ F.3d __ (5th Cir. Feb. 4, 2013)

(12-31021): Under § 3553(a)(2), the district court may consider the need “to afford

adequate deterrence to criminal conduct” as a factor when making sentencing

determinations. 18 U.S.C. § 3553(a)(2)(B). Moreover, § 4A1.3(a)(1) of the

Guidelines provides for an upward departure if “reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § 4A1.3(a)(1). Such information may include, but is not limited to, “[p]rior similar misconduct established by a civil adjudication” and “[p]rior similar adult criminal conduct not resulting in a criminal conviction.” Id. § 4A1.3(a)(2)(C), (E). Here, the district court gave an individualized assessment of the § 3553(a) factors and determined in light of Zelaya-Rosales’ five previous immigration encounters and four prior removals that the maximum sentence under the Guidelines range was inadequate to deter him from

reentering the United States illegally. Therefore, the district court did not abuse its discretion because it was permitted to consider the need for deterrence as a sentencing factor, and Zelaya-Rosales’ previous immigration encounters and removals in departing upward from his sentencing range

( Double Counting. Double-counting is barred only where it is prohibited by a specific Sentencing Guideline. See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). United States v. Box, 50 F.3d 345 (5th Cir. 1995).

( United States v. Rhine, __ F. 3d __ (5th Cir. 29 March 2011)(10-10037):

Following United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),

“appellate review of sentencing decisions is limited to determining whether they

are ‘reasonable’” under the “familiar abuse-of-discretion standard of review.”

Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). Reasonableness has two parts: procedural and substantive reasonableness. The former requires that the district court calculate the Guidelines range, consider the § 3553(a) factors, and explain the sentencing decision; the latter depends on “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. at 51.

( Consideration of Arrests in Sentencing is Plain Error. United States v. Johnson, (5th Cir. July 28, 2011)(09-31106): In United States v. Earnest Jones, 489 F.3d 679 (5th Cir. 2007), we reaffirmed that consideration of arrests at sentencing is error. The defendant had eleven prior arrests, three of which involved conduct similar to the offense for which he was being sentenced. As in this case, the district court considered the prior arrests when evaluating the Section 3553(a) factors, but it lacked any corroborating evidence for those charges aside from their similarity to the current conviction. We held that “[t]he district court’s consideration, at sentencing, of prior arrests was plain error.” Id. at 681 (citing Robert Jones, 444 F.3d 430, 436 (5th Cir. 2006.

( Amendment to Guidelines. United States v. Marban-Calderon, __ F.3d __ (5th Cir. Jan. 18, 2011)(09-40207): Defendant-appellant Deciderio Marban-Calderon (“Marban”) pleaded guilty in October 2008 to one count of illegal reentry following a previous

deportation. At a sentencing hearing in February 2009, Marban received a 16-level sentence enhancement for a prior felony drug trafficking offense based on his 2005 Texas state-law conviction for delivery of a controlled substance. Although we have held that this offense does not qualify for a drug trafficking enhancement under past editions of the Sentencing Guidelines, the Guidelines were amended effective November 2008 to broaden the definition of a drug trafficking offense. Applying the 2008 edition of the Sentencing Guidelines, we affirm Marban’s sentence. Our court has not yet decided whether the Ex Post Facto Clause permits retroactive application of Sentencing Guidelines that recommend a greater sentence than the Guidelines in effect at the time of the offense. (N. 7:Castillo-Estevez, 597 F.3d 238, 241 (expressly reserving this question). Our sister circuits which have considered this issue are divided. (N. 8: Compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (holding

that the Ex Post Facto Clause does not apply to the advisory Sentencing Guidelines), and

United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) (same), with United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008) (holding that the Ex Post Facto Clause prohibits retroactive application Sentencing Guidelines that would recommend a greater sentence), United States v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010) (adopting Turner), United States v. Lewis, 606 F.3d 193, 199 (4th Cir. 2010), United States v. Wood, 486 F.3d 781, 789–91 (3d Cir. 2007), and United States v. Larrabee, 436 F.3d 890, 894 (8th Cir. 2006).)

In light of this disagreement, we held in United States v. Castillo-Estevez, 597 F.3d 238, 240 (5th Cir. 2010), cert. denied, 131 S. Ct. 457 (2010), that applying an

amended version of the Sentencing Guidelines does not rise to the level of plain error. Our decision in Castillo-Estevez directly controls this case. Accordingly, we follow the district court in reviewing Marban’s sentence under the 2008 edition of the Sentencing Guidelines. II. We have held on several occasions that, under past editions of the

Sentencing Guidelines, a Texas conviction for “delivery of a controlled substance”

did not qualify as a drug trafficking offense. Applying the categorical approach

of Taylor and Shepard, we consider only the elements of the offense and those

facts essential to the conviction.

( Retroactive Application of USSG As Violation of EPF is Not Plain Error. United States v. Murray, __ F.3d ___ (5th Cir. July 27, 2011)(09-20813).

( Difference Between Guideline and Adjudged Sentence. With respect to the 52-month difference between the 188-month Guidelines range and Harrison’s 240-month sentence, we have affirmed similar and greater deviations. See, e.g., United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005) (affirming increase from guidelines maximum of 41 months to sentence of 120 months); United States v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (affirming increase from guidelines maximum of 71 months to sentence of 240 months). Harrison has not established that his sentence was

unreasonable or an abuse of discretion.

( From United States v. Douglas, No. 07-11007 (5th Cir. May 29, 2009) (Sandra Day O'Connor,* Wiener, Stewart): 2) The Fifth Circuit continues to draw a distinction between Guidelines and non-Guidelines sentences for purposes of reasonableness review. This court’s post-Booker case law recognizes three types of sentences: (1) one within a properly calculated Guideline range; (2) one that is an upward or downward departure as allowed by the Guidelines, which is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence. United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). This ostensibly matters because only Guidelines sentences get a presumption of reasonableness on appeal. But it may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review.

( pre-Booker, a district court's discretionary refusal to depart was unreviewable on appeal. And if a court of appeals continues to observe a distinction between departures and variances, then the district court's rejection of a defendant's request for a lower sentence based solely on departure grounds would not be reviewable. That's the conclusion the Sixth Circuit reached in United States v. Blue. And though I haven't found a published, post-Booker Fifth Circuit opinion reaching the same conclusion, there are some unpublished opinions that have so held (like this one, for example).

How to avoid this appellate trap? As Sumter notes:

[You can] present mitigation as grounds for both a Guidelines departure and a downward variance under § 3553(a). Given that the district courts must still consider the Guidelines, the failure to address a ground for departure under the Guidelines may very well be unreasonable on appeal. And any ground that is limited by some Guidelines factor (e.g. the §5K1.1 requirement that the government, not the defendant, must file the §5K1.1 motion), can still be considered under § 3553(a) as relevant to what sentence is sufficient, but not greater than necessary, to achieve the aims of sentencing. Even a ground that is prohibited by the Guidelines can now be considered under the § 3553(a) factors as relevant to sentencing.

One exception, at least in our circuit, is when it comes to arguing for a 3553(a) variance based on unwarranted fast-track disparities (or maybe not). In any event, you can still preserve that argument in the district court for further review in light of the circuit split.

( More Ex Post Facto on Amendment of USSG. United States v. Shakbazan, __ F.3d

__ (5th Cir. Oct. 26, 2016)(15-20416): Shakbazyan’s principal argument is that using the 2009 Guidelines definition of “victim” to enhance his sentence violates the Ex Post Facto Clause. That argument is foreclosed by our precedent. The provision that “[n]o . . . ex post facto Law shall be passed,” U.S. Const. art. I, § 9, cl. 3, includes “[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Peugh v. United States, 133 S. Ct. 2072, 2077–78 (2013) (quoting Calder v. Bull, 3 Dall. 386, 390 (1798)). The motivating concern in this category of ex post facto violations “is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham, 450 U.S. 24, 30, 101 S. Ct. 960, 965 (1981). Shakbazyan concedes, as he did below, that the 2009 definition of “victim” “can technically be applied to Count 1 which alleges conduct that occurred post November of 2009, in February of 2010.” He does not challenge the Guidelines’ one-book rule that requires one version of the Guidelines to be applied to all grouped counts, and he does not claim that the 21 counts were improperly grouped together. Nor does he allege that the post-November 1, 2009 conspiratorial conduct cannot be imputed to him. [Note 1: 1 Cf. United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005) (“This court has held that conspiracy ‘is a continuing offense’ and that ‘[s]o long as there is evidence that the conspiracy continued after the effective date of the [amendments to the] guidelines, the Ex Post Facto Clause is not violated.] His complaint, however, is that the “expanded definition of victim was not in effect during the [periods covered by] Counts 2 through 21 of the Indictment.” In his view, using the 2009 definition of “victim” to enhance his sentence constitutes “an increased retroactive punishment” and thus an Ex Post Facto Clause violation.

This court, along with eight other circuits, [Note 2: See, e.g., United States v. Pagan-Ferrer, 736 F.3d 573, 598 (1st Cir. 2013) (explaining that its decision on this point was “consistent with the findings of an overwhelming majority of our sister circuits.” (citing cases from the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits)); United States v. Kumar, 617 F.3d 612, 626–27 (2d Cir. 2010) (similarly citing cases).] has previously rejected Shakbazyan’s argument. In United States v. Kimler, 167 F.3d 889 (5th Cir. 1999), the court held that “where a sentencing court groups offenses committed before a change in the sentencing guidelines with offenses after the amendment, and then applies the amended guideline in determining a defendant’s appropriate sentence, the Ex Post Facto Clause is not implicated.” Id. at 893 (italics added). Given the Guidelines’ one-book rule and grouping rules, “a defendant has notice that the version of the sentencing guidelines in effect at the time he committed the last of a series of grouped offenses will apply to the entire group.” Id. at 894–95. That notice eliminates any Ex Post Facto Clause concerns that may have otherwise existed. Therefore, a defendant who decides to “continue his illegal activities . . . after the revisions in the sentencing guidelines” does so at his own peril because “that decision allow[s] the sentencing court to determine his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.” Id. at 893. Kimler plainly forecloses Shakbazyan’s Ex Post Facto Clause claim. The conspiracy charged in Count 1 continued well after November 1, 2009. During that period, the Guidelines gave Shakbazyan adequate notice that his preNovember 1, 2009 offenses would be grouped with the Count 1 conspiracy offense, and therefore that the 2009 Guidelines would apply. Indeed, “[i]t was [Shakbazyan’s] decision to continue his illegal activities related to his . . . [conspiracy] offense[] after the revisions in the sentencing guidelines, and that decision allowed the sentencing court to determine his appropriate sentence with reference to the guidelines in effect when the last criminal act in the grouped series was committed without running afoul of the Constitution.” Kimler, 167 F.3d at 893. Shakbazyan fails to cite Kimler, but he contends that Peugh v. United States supports his Ex Post Facto Clause claim. It does not.

( Difference Between Departure and Variance.

From Gomez v. U.S. Parole Commission, __ F.3d ___ (5th Cir. July 14, 2016)(15-60449):Prior to United States v. Booker, courts were required to impose sentences within the ranges set forth in the Guidelines, unless a specific exception applied. 543 U.S. 220, 233 (2005). Where a “court found such an exception and exercised its limited discretion to sentence outside the applicable Guidelines range, the court was said to be engaging in a ‘departure’ from the Guidelines”. United States v. Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007). Pursuant to Booker, however, the Guidelines are advisory only, resulting in our “court[’s] recogniz[ing] three types of sentences: (1) a sentence within a properly calculated Guidelines range; (2) a sentence that includes an upward or downward departure as allowed by the Guidelines; and (3) a non-Guideline[s] sentence or a variance that is outside of the relevant Guidelines range”. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks omitted).

In other words, “‘[d]eparture’ is a term of art . . . and refers only to . . . sentences imposed under the framework set out in the Guidelines”. United States v. Teel, 691 F.3d 578, 591 (5th Cir. 2012) (quoting Irizarry v. United States, 553 U.S. 708, 714 (2008)). A “variance”, conversely, is “outside the [G]uidelines framework . . . and stems from 18 U.S.C. § 3553(a)”. United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011) (in distinguishing a departure from a variance, noting that, under Federal Rule of Criminal Procedure 32(h), a “district court cannot impose a departure unless it first notifies the parties that it is contemplating doing so”, a requirement that does not apply to variances (citing Irizarry, 553 U.S. at 716)).

In his objection to the PSR, Gomez used the terms interchangeably; he requested a “variance/departure” from the Guidelines, and cited the § 3553(a) factors. 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).

( Both Upward and Downward Departures. Although it is rare for a court to grant both upward and downward departures, “a net increase [in a sentence] cannot be characterized as a misapplication of the guidelines where both upward and ownward departures are granted.” United States v. Pennington, 9 F.3d 1116, 1119 (5th Cir. 1993).

( Following United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed for reasonableness in light of the sentencing factors in § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), this court engages in a bifurcated analysis of the sentence imposed by the district court. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). The court first examines whether the district court committed any procedural errors, “such as failing to calculate (or improperly calculating) the Guidelines range . . . .”Gall, 552 U.S. at 51. If

there is no such error or the error is harmless, the reviewing court may proceed to the second step and consider the substantive reasonableness of the sentence. See Delgado-Martinez, 564 F.3d at 751-53.

( We review the district court’s interpretation and application of the Sentencing Guidelines de novo, but we review its factual findings for clear error. See United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). Whether the sentence is inside or outside of the Guidelines range, we review the reasonableness of a sentence for an abuse of discretion. United States v. Williams, 517 F. 3d 801, 807–08 (5th Cir. 2008) (citing Gall v. United States, 128 S. Ct. 586, 597 (2007)). First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 128 S. Ct. at 597. If we find no such error, we next “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. We may apply a presumption of reasonableness to sentences within the Guidelines range but may not apply a presumption of unreasonableness to sentences outside the Guidelines range. Id. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id.

( United States v. Banda (Jan. 2, 2013)(11-20840): This court has concluded that the district court’s decision to sentence a defendant within a guidelines range that includes the crime of violence enhancement is not inconsistent with legitimate sentencing goals. See, e.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 359, 366-67 (5th Cir. 2009).

Moreover, Banda’s sentence, which was at the bottom of the guidelines range,

was not constitutionally disproportionate and therefore does not constitute a

violation of his Eighth Amendment rights. See United States v.

Cardenas-Alvarez, 987 F.2d 1129, 1133-34 (5th Cir. 1993). Regarding Banda’s

equal protection challenge, application of the 16-level enhancement does not

violate equal protection because it treats all persons with qualifying serious

prior offenses who commit a § 1326 offense equally. See id. at 1134.

Additionally, the unavailability of fast-track programs in certain districts does

not created an unwarranted disparity among similarly situated persons. See

United States v. Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir. 2008).

( Sentencing Judge Cannot Consider Facts of Trial of Co-Defendant.

No notice to D. United States v. Garcia, __ F.3d ___ (5th Cir. Aug. 14, 2015)(14-40520).

( Victim in Official Status (e.g. corrections officer or guard).

United States v. Mungia, (5th Cir. Feb. 5, 2014)(13-30260): Next, Munguia contends that the district court engaged in impermissible double-counting of the victim’s status as a government officer because the victim’s status is also an element of his offense of conviction. Munguia’s reliance on United States v. John, 309 F.3d 298 (5th Cir. 2002), is misplaced. While the victim’s status as a government officer is an element of the offense

of conviction, see § 111, the base offense level for the applicable offense guideline, § 2A2.2(a), does not incorporate the official status of the victim. See United States v. Kings, 981 F.2d 790, 792-94 (5th Cir. 1993); United States v. Kleinebreil, 966 F.2d 945, 955 (5th Cir. 1992); cf. John, 309 F.3d at 306. Munguia’s double-counting argument fails for the alternative reason that double-counting is prohibited only if the relevant Guideline expressly forbids it. See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).

Neither § 2A2.2 nor § 3A1.2 expressly prohibit double-counting in the

circumstances of the instant case. See § 2A2.2 cmt. n.4, background.

( Harmless Error for Miscalculation. United States v. Ibarra-Luna, __ F.3d __ (5th Cir. 2010)(Dec. 22, 2010)(09-40768). In United States v. Morales-Sanchez, we held that a district court must always “correctly calculat[e] the applicable Guidelines range” before imposing a sentence. Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless. We hold that under the discretionary sentencing regime of Booker and progeny, the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing.

( § 2D.1.1(b)(10)(C) Enhancement for Endangerment from Meth Lab.

Enhancement extends to injury to self or fellow co-conspirators. United States v. Ivey,

2009 WL 2870099, ___ F. App’x ___ (5th Cir. Sept 9, 2009)(08-50993), adopting, similar rulings from United States v. Chamness, 435 F.3d 724, 729 (7th Cir. 2006). Compare with. United States v. Thorn, 317 F.3d 107 (2d Cir. 2003)(Enhancing the sentence for a Clean Air Act violation if the offense resulted in a substantial likelihood of death or serious bodily injury).

( Crack Cocaine Changes.

“Section 3582(c)(2) permits a district court to reduce a term of imprisonment when it is based upon a sentencing range that has subsequently been lowered by an amendment to the Guidelines, if such a reduction is consistent with the policy statements issued by the Sentencing Commission.” United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and we review the denial of a § 3582 motion for abuse of discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).

Cox has not shown that the district court abused its discretion in denying his motion for a reduction of sentence. A reduction in Cox’s base offense level under § 2D1.1 pursuant to Amendment 706 would not affect his guideline range because the range was calculated under § 4B1.1. Because Cox’s guideline range was not derived from the quantity of crack cocaine involved in the offense, he was not sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission. See § 3582(c)(2). Further, to the extent Cox argues that the district court had the discretion to reduce his sentence under § 3582(c)(2) in light of Booker, the argument is unavailing because Booker was not “based on a retroactive amendment to the Guidelines.” See United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Therefore, the district court did not abuse its discretion in denying Cox’s motion for a reduction of sentence.

( Departures. The Supreme Court has expressly rejected an appellate rule that requires extraordinary circumstances to justify a sentence outside the Guidelines range. See Gall v. United States, 128 S.Ct. 586, 595 (2007); see also United States v. Rodriguez-Rodriguez, 530 F.3d 381, 388 (5th Cir. 2008) (“We recognize that certain of our opinions have arguably supported the view, rejected in Gall, that we may, at least in certain instances, require district courts to find extraordinary circumstances before they

impose sentences outside of the guidelines range.”). On remand, the district court specifically articulated its awareness and application of this effect of Gall and expressly did take Guidry’s family circumstances into account without requiring a showing that the factor was “extraordinary.” The district court determined that Guidry’s family circumstances did not weigh in favor of imposing a below guideline sentence because ….

( We review the decision to make an upward departure for abuse of discretion. See United States v. Rodriguez, 553 F.3d 380, 396 (5th Cir. 2008). However, we review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006).

( Departures and Variances.

A departure is typically an upward or downward sentencing adjustment outside of the recommended guideline range, after a full guideline calculation, but still under guideline authority. 

 

A variance typically describes an upward or downward adjustment that is based on 18 U.S.C. Section 3553 et. al., which is considered authority that is statutory, and outside the ambit of the sentencing guidelines.  Variances, in the “proper” order, when applied, come after the court’s full consideration of the guideline range, and other sentencing guideline-based adjustments.  It is the last source of authority for a Court to consider before imposing a sentence. 

--Jorge Aristolides

( Injury to Victim. “Neither Gall, Rita v. United States, [551 U.S. 338 (2007),] nor Kimbrough v. United States, [128 S. Ct. 558 (2007),] purport to alter [this court’s] review of the district court’s construction of the Guidelines or findings of fact.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (footnotes omitted). Accordingly, “[a] district court’s interpretation or application of the Sentencing Guidelines is reviewed de novo, and its factual findings . . . are reviewed for clear error.” Id. (internal quotation marks and citation omitted). The severity of a victim’s injury is a question of fact and is reviewed for clear error. See United States v. Davis, 19 F.3d 166, 171 (5th Cir. 1994).

( Presumption of Reasonableness No Longer Valid. Prior to the Supreme Court’s decision in Gall, as long as a sentence fell within the properly calculated range, we applied a “presumption of reasonableness” to the sentence regardless of any calculation error. E.g., United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007). Under this framework, we required the party complaining of the calculation error to rebut the presumption of reasonableness, and we applied a high degree of deference to the district

court’s initial decision. Id. at 375–76. The government contends that this framework survived Gall. We disagree. Gall unequivocally established a bifurcated review process.

From United States v. Delgado-Martinez, 584 F.3d 750 (5th Cir. 2009)(08-50439).

( Rebutting presumption of reasonableness. Lucio can rebut the presumptive reasonableness of his sentence only by showing that it: does not account for a factor that should receive significant weight; gives significant weight to an irrelevant or improper factor; or represents a clear error of judgment in balancing sentencing factors. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Neither the age of the prior conviction used to enhance Lucio’s sentence nor his cultural assimilation rebuts the presumption. United States v. Rodriguez, 660 F.3d 221, 234-35 (5th Cir. 2011)

( Cultural Assimilation as Mitigating Factor. United States v. Lopez, (5th Cir. May 5, 2011)((10-20430): Although cultural assimilation can be a mitigating factor, a sentencing court is not required to accord cultural assimilation dispositive weight. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).

( Prior Conviction. Defendant may not indulge in collateral attack on prior conviction

unless he can show he was denied defense counsel in prior proceeding unless such an attack is otherwise authorized by law. United States v. Longstreet, 603 F.3d 273 (5th Cir. 2010).

( Procedural Error. We first consider whether the district court committed a

significant procedural error as defined by Gall. See Gall, 128 S. Ct 586, 597. If the

court has committed such an error, we must remand unless the proponent of the

sentence establishes that the error “did not affect the district court’s selection of the sentence imposed.” Williams, 503 U.S. at 203. If we are satisfied that the error was in fact harmless, we then (and only then) proceed to Gall’s second step and review the substantive reasonableness of the sentence imposed. See Gall, 128 S. Ct. at 597.-->From From U.S. v. -Martinez, 584 F.3d 750 (5th Cir. 2009)(08-50439).

( Tuesday, April 7, 2009: Fifth Circuit Blog:

Break Out Your Dancin' Boots: Fives Clarify That Reasonableness Review Is Two-Step Process: Review Procedure First, Then Substance

Have you found our circuit's pronouncements on post-Gall reasonableness review a little unclear? Then rejoice, for Delgado-Martinez explains cleanly and crisply just how sentences are reviewed these days. Here 'tis (with citations omitted for readability's sake):

Prior to the Supreme Court’s decision in Gall, as long as a sentence fell within the properly calculated range, we applied a “presumption of reasonableness” to the sentence regardless of any calculation error. Under this framework, we required the party complaining of the calculation error to rebut the presumption of reasonableness, and we applied a high degree of deference to the district court’s initial decision. The government contends that this framework survived Gall. We disagree.

Gall unequivocally established a bifurcated review process: At step one, the appellate court “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range . . . .” If the sentence is determined to be “procedurally sound,” then the appellate court moves on to step two—reviewing the sentence for substantive reasonableness. Our pre-Gall analysis conflates these two distinct steps. By applying a presumption of reasonableness to sentences involving acknowledged procedural errors, our prior approach contravenes Gall’s directive to treat the two steps as sequential, dispositive inquiries. In most cases, a significant procedural error will prevent our review of the sentence for substantive reasonableness.

Nonetheless, not every procedural error will require outright reversal. While Gall itself is silent on this point, we agree with several of our sister circuits that certain “harmless” errors do not warrant reversal. A procedural error during sentencing is harmless if “the error did not affect the district court’s selection of the sentence imposed.” [The familiar Williams standard.] The burden of establishing that an error is harmless rests on the party seeking to uphold the sentence: The proponent of the sentence “must point to evidence in the record that will convince us that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error made in arriving at the defendant’s guideline range.”

In summary, regardless of whether the selected sentence happens to fall within the properly calculated Guidelines range, we adhere to the following review process: We first consider whether the district court committed a significant procedural error as defined by Gall. If the court has committed such an error, we must remand unless the proponent of the sentence establishes that the error “did not affect the district court’s selection of the sentence imposed.” If we are satisfied that the error was in fact harmless, we then (and only then) proceed to Gall’s second step and review the substantive reasonableness of the sentence imposed.

The district court incorrectly calculated the advisory Guidelines range---a "significant" procedural error per Gall---as 30 to 37 months. The correct range was 24 to 30 months. Delgado was sentenced to 30 months. The Government argued that the error was harmless because that sentence falls within both the correct and incorrect ranges. Not so, said the court:

[T]he crux of the harmless-error inquiry is whether the district court would have imposed the same sentence, not whether the district court could have imposed the same sentence. While the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.

Here, the district court said a sentence at "the bottom of the guidelines" would be fair and reasonable, indicating that it "consciously selected from the low end of what it believed to be the available range." Nothing otherwise suggested that the district court would have imposed the same sentence had it been working with the correct range, so the Guideline calculation error was not harmless. Thus vacation and remand.

( Second Crack Case. From United States v. Woods, 321 Fed. App’x 344 (5th Cir. 2009)(08-31183): The recent crack cocaine amendments did not affect the guideline range of imprisonment for defendants who were sentenced as career offenders. See U.S.S.G. app. C, amends. 706, 713; § 3582(c)(2) (stating that a term of imprisonment may be reduced if it is “based upon a sentencing range that has subsequently been lowered by an amendment to the Guidelines”); § 1B1.10 cmt. n.1(A) (stating that an amendment does not lower the applicable sentencing range because of the operation of another guideline or statute). The crack The recent crack cocaine amendments did not affect the guideline range of imprisonment for defendants who were sentenced as career offenders. See U.S.S.G. app. C, amends. 706, 713; § 3582(c)(2) (stating that a term of imprisonment may be reduced if it is “based upon a sentencing range that has subsequently been lowered by an amendment to the Guidelines”); § 1B1.10 cmt. n.1(A) (stating that an amendment does not lower the applicable sentencing range because of the operation of another guideline or statute). The crack cocaine amendments did not provide the district court with the authority to lower Woods’s sentence. Booker, Kimbrough, and Gall are Supreme Court cases and not retroactive amendments to the Guidelines; they have no applicability to cases that are not otherwise based on retroactive amendments. See § 3582(c)(2). Cocaine amendments did not provide the district court with the authority to lower Woods’s sentence. Booker, Kimbrough, and Gall are Supreme Court cases are not retroactive amendments to the Guidelines; they have no applicability to cases that are not otherwise based on retroactive amendments. See § 3582(c)(2).

( State Convictions and Illegal Entry. Even after Lopez v. Gonzales, 549 U.S. 47 (2006), a second state conviction for simple possession of a controlled substance qualifies as an aggravated felony that supports the imposition of an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008).

( Departure for Age and Departure from Policy. United States v. Simmons, 568 F.3d

564 (5th Cir. 2009). Simmons argues that our Simmons I opinion misdirected the court at the sentencing conducted after remand. Such error allegedly occurred because we had referred to the need for “‘extraordinary’ circumstances to justify a sentence outside the Guidelines range,” a standard that the Supreme Court later rejected. See Gall, 128 S. Ct. at 594-95. Without any doubt, the requirement of “extraordinary circumstances” is no longer the law. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 384 n.4 (5th Cir. 2008). … That the district court waited to sentence until after the Supreme Court’s decision in Gall. That is the opinion that expressly rejected our former “extraordinary circumstances” requirement. See id. The Gall opinion was debated in detail at the resentencing hearing. The death of the “extraordinary circumstances” language from Simmons I was clear. The district court also found that his disagreement with the Guideline policy statement that refers to age in terms of old and infirm defendants was not an appropriate consideration in setting a sentence. That view is inconsistent with recent Supreme Court precedent. In one key recent decision, the district court had departed downward from the crack cocaine Guideline range and imposed the statutory minimum sentence. Kimbrough v. United States, 128 S. Ct. 558, 565 (2007). In so doing, the district court noted its disagreement with the Guidelines’ crack/powder disparity and held that the statutory minimum was “clearly long enough” to accomplish the objectives of Section 3553(a). Id. … We have had occasion to consider Kimbrough’s impact in this circuit. See United States v. Burns, 526 F.3d 852 (5th Cir. 2008). At the resentencing in this case, Simmons urged the district court to consider its earlier disagreement with the Guideline policy statement regarding age and to reimpose the 20 year sentence given at the first sentencing. When the district court stated doubts about its authority to do so, Simmons argued that Kimbrough permitted Guideline policy disagreements to be considered as sentencing factors. … Whatever else in Kimbrough might require further case development, it is evident that the Supreme Court held that a district court’s policy disagreement with the Guidelines is not an automatic ground for reversal. See id.; see also Lindsay C. Harrison, Appellate Discretion and Sentencing after Booker, 62 U. MIAMI L. REV. 1115, 1136 (2008). The Court also required a more intense review when the district court declares a properly calculated sentencing range to be inconsistent with the Guidelines’ policy factors even for an ordinary case. Kimbrough, 128 S. Ct. at 575. If the concern instead is about the suitability of the sentence under the special conditions of a particular offender, the Court did not state that “closer review” is needed. … We also find, though, that the district court thought itself restricted by our suggestion that age might be a factor to depart downward only when a defendant is elderly. Simmons I, 470 F.3d at 1131(citing U.S.S.G. § 5H1.1 (1998)). After Kimbrough, what is necessary is that a court explain its reasons for disagreeing with the Guidelines’ policy considerations. If the court believes there to be situations in which age should be considered for defendants who are not old and infirm, then an explanation of that disagreement is appropriate.

( Empirical Data Argument Rejected. He argues … the guideline provision applicable to violations of § 1326, is flawed in that it is not supported by “empirical data and national experience.” This court has consistently rejected Lopez’s “empirical data” argument, concluding that Kimbrough does not question the presumption of reasonableness and does not require district or appellate courts to independently analyze the empirical grounding behind each individual guideline. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed (June 24, 2009) (No. 08-11099). Lopez has not rebutted the presumption that the district court sentenced him to a reasonable, properly calculated within-guidelines sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).

As Lopez concedes

( Interpretation of Guidelines for Enhancement. When a sentencing issue is properly preserved, a “district court’s interpretation or application of the Sentencing Guidelines is reviewed de novo, and its factual findings . . . are reviewed for clear error.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (internal quotation marks and citation omitted). Because Ladell did not challenge the application of the enhancement in the district court, we review for plain error only. See United States v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008). Ladell must show an error that is obvious and that affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has the discretion to correct the error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id.

( Failure to Object to USSG Application. When a defendant does not raise this objection in the district court, we review only for plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th Cir. 2009), cert. denied, 2009 WL 1849974 (U.S. Oct. 5, 2009).

( Computation of Loss: Defendant has not shown that the district court erred in calculating the loss amount or in increasing his offense level based on this amount pursuant to U.S.S.G. § 2B1.1(b)(1)(D). Following Booker, the district court was entitled to find by a preponderance of the evidence all the facts relevant to the determination of a guidelines sentencing range. See United States v. Johnson, 445 F.3d 793, 797-98 (5th Cir. 2006). The district court was entitled to rely on the information in the presentence report because it had sufficient indicia of reliability, and Barreiro Medina did not present rebuttal evidence to demonstrate that this information was inaccurate or materially untrue. See United States v. Ford, 558 F.3d 371, 376-77 (5th Cir. 2009). Further, the district court did not err in determining that Barreiro Medina should be held responsible

for the full loss amount rather than the actual charges he made because he was involved in a conspiracy. See § 2B1.1, comment. (n.3(A)(i) and (ii)) (“Actual loss” is “the reasonably foreseeable pecuniary harm that resulted from the offense”); see also U.S.S.G. § 1B1.3(a)(1)(B) (defendant involved in “jointly undertaken criminal activity” should be held accountable for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity”).

( Refusal to Depart Downward from Guidelines. In general, we lack jurisdiction to review a district court’s refusal to grant a downward departure. United States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). Although an exception to the jurisdictional bar exists when the district court’s refusal to depart violates the law, “[a] refusal to depart downward is in violation of law only if the district court’s refusal is based on the mistaken belief that the court lacked the discretion to depart.” United States v. Garay, 235 F.3d 230, 232 (5th Cir. 2000).

( Computation of Loss. United States v. Murray, __ F.3d __ (5th Cir. July 27, 2011)(09-20813).

( The district court calculated Murray’s guidelines range using $84 million

as the amount of loss. Murray challenges the methodology the district court used to arrive at that amount and also argues that the amount of loss should have been adjusted downward to account for economic conditions beyond his control. We review factual determinations in determining the loss amount for clear error, United States v. Setser, 568 F.3d 482, 496 (5th Cir. 2009), but to the extent the district court’s methodology for calculating losses involves an application of the guidelines, we review such legal conclusions de novo. United States v. Goss, 549 F.3d 1013, 1016 (5th Cir. 2008).

Under U.S.S.G. § 2B1.1, the guidelines range calculation for the amount of loss is based upon the amount of financial loss to the victims, here, the investors. The amount of loss is to be the greater of actual or intended loss. U.S.S.G. § 2B1.1 app. n.2(A). In this case, we are dealing with the actual loss, which is the “reasonably foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1 app. n.2(A)(i).

1. The District Court’s Methodology

The PSR used the amount of outstanding loans at bankruptcy, $165 million, as the amount of loss. Murray objected to the PSR, arguing that he should receive credit for the value of the collateral securing the loans. He argued that, where the defendant has pledged or “otherwise provided” collateral, the guidelines advise courts to reduce the loss by “the amount the victim has recovered at the time of sentencing from disposition of the collateral, or if the collateral has not been disposed of by that time, the fair market value of the collateral at the time of sentencing.” U.S.S.G. § 2B1.1 app. n.2(E)(ii). At sentencing, the district court was originally prepared to accept the

PSR’s loss determination. However, after significant discussion between the court and Murray’s counsel, the Government suggested that the court use the loss amount of $84 million that was supported by the trial testimony of Dennis Arnie, a Certified Public Accountant who studied the Premiere accounts extensively. He testified that the losses already realized at the time of trial were $67.1 million, which accounted for the $50 million that the investors recovered from the collateral and from the loans. He testified that another $17 million would never be recovered, bringing the total loss figure to $84 million. In light of the Government’s concession, the district court decided to adopt $84 million as the amount of loss.

2. Legal Analysis of the Methodology. According to Murray, the “true losses” were only $28 million. He bases that claim on a statement in the PSR stating that the “fixed losses” were $28 million. But the PSR does not explain what is meant by this term or how the probation officer arrived at this figure. We reject this argument because no

correlation is shown between this figure and the total losses to the victims. Murray maintains his original objections to the $165 million figure, which he argues informed the court’s reasoning in reaching the $84 million figure. He also argues that the $84 million figure accounts for the value of the outstanding loans and the “amount deemed unrecoverable” but fails to account for the value of the collateral that was undisposed of at the time of sentencing. In United States v. Goss, 549 F.3d 1013, 1017-18 (5th Cir. 2008).a mortgage fraud case, we determined that the actual loss was determined by deducting the value of the collateral from the total loan amounts. Goss supports the use of the total amount of outstanding loans ($165 million) as the starting point from which the value of collateral is then deducted. See id. We do not read Arnie’s testimony as

estimating likely losses without considering the value of the unsold collateral. We understand his testimony to mean that, starting with the outstanding loan amount of $165 million, then deducting from that figure the amount actually recovered by the victims together with the amount Arnie estimated they could recover on the remaining collateral, the investors would suffer $84 million in total losses. The record makes it clear that Arnie had studied Premiere’s loans extensively, and his testimony summarizing the losses was based on voluminous exhibits explaining in detail how he arrived at his conclusion. Although these exhibits are not in the record, Murray had the right to fully cross-examine Arnie about all of them. The district court was entitled to rely on Arnie’s expert testimony, included in the PSR Addendum, that the victims’ losses amounted to $84 million. Murray presented no evidence, expert or otherwise, tending to refute Arnie’s testimony. See United States v. Rome, 207 F.3d 251, 254 (5th Cir.

2000) (“If a defendant presents no rebuttal evidence, the facts contained in the PSR may be adopted without further inquiry so long as the facts rest on an adequate evidentiary basis.”).

As we stated in Goss, a district court need only make a reasonable estimate of loss, and, “because the sentencing judge is in a unique position to assess the evidence and estimate the loss . . . the court’s loss determination is entitled to appropriate deference.” Id. at 1019 (internal quotation and citation omitted). We find that the district court made a reasonable estimate of the total loss and correctly applied the guidelines.

( Ponzi Scheme. United States v. Murray, __ F.3d __ (5th Cir. July 27, 2011)(09-20813). “The term [Ponzi scheme] has come to be used to describe a scheme whereby the swindler uses money from later victims to pay earlier victims.” Guidry v. Bank of LaPlace, 954 F.2d 278, 280 n.1 (5th Cir. 1992); see also Janvey v. Alguire, 2011 WL 2937949 (5th Cir. 2011). Therefore, the existence of assets does not prevent the conspiracy from amounting to what the district court and the PSR characterized as a Ponzi scheme. We held in United States v. Olis, a securities fraud case, that the district

court erred in computing the actual loss because it failed to consider extrinsic factors that caused some of the decline in the value of stock. 429 F.3d 540, 548- 549 (5th Cir. 2005). However, the guidelines do not require sentencing courts to consider extrinsic factors that affect the value of collateral when using the collateral to discount the amount of loss. The loss should be discounted by the fair market value of collateral, not by the value the collateral could have had in better economic conditions. See U.S.S.G. § 2B1.1 app. n.2(E)(ii). We therefore find that the district court correctly refused to estimate the collateral’s value under different market conditions.

( Calculating in Tax Case. IUnited States v. Simmons, (5th Cir. April 1, 2011)(

09-11031): The guidelines commentary specifically states that reasonable estimation

of tax loss is allowed, and other courts have approved of the use of roughly the

same method of estimation used by the district court. See U.S.S.G. § 2T1.1, cmt.

n.1 (2008); United States v. Bryant, 128 F.3d 74, 75-76 (2d Cir. 1997); United

States v. Maye, No. 99-4556, 2000 WL 223344 at *1 (4th Cir. 2000)(unpublished). The evidence in the pre-sentence report (PSR) and the testimony of IRS Agent Shannon Dawson established the method by which the estimated tax loss was calculated. While Simmons correctly states that the forty-one tax returns investigated by Agent Dawson were not a completely random sample, the record does not indicate that those returns would have a higher falsity rate than any other returns prepared by Simmons. Moreover, the PSR correctly noted that Agent Dawson’s calculation was conservative because she used the lower of two reasonable falsity percentages that she calculated from the investigated sample, and she did not include any tax loss from approximately 3,000 tax returns prepared by Simmons that did not include a Schedule C. As the method of estimating the tax loss was reasonable and Simmons did not produce evidence contradicting it, the district court did not commit error, plain or otherwise, in its tax loss calculation. See United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998).

Although Simmons’ counsel received Agent Dawson’s calculation of estimated loss the day before the hearing at which Simmons’ first plea agreement was rejected, the calculation was fully explained at that hearing, which occurred over five months before sentencing, giving Simmons more than ample time to prepare any defense she desired. Also, her contention that the district court improperly included tax returns filed in tax year 2002 in the estimated loss calculation is refuted by the record as it shows that only tax returns filed in tax years 2003-2007 were included.

Simmons’ Booker argument is without merit. By rendering the guidelines advisory only, Booker eliminated the Sixth Amendment concerns that prohibited a sentencing judge from finding all facts relevant to sentencing. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Hence, the district court’s finding “by a preponderance of the evidence all the facts relevant to the determination of a [g]uideline sentencing range” was not error. Id.

( Calculation of Loss for illegal possession of unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3). From United States v. Lige, __ F.3d __

(5th Cir. Mar. 9, 2011)(10-20029).

( Any argument that the district court’s methodology in computing the loss is reviewed only for clear error is foreclosed by our decision in United States v. Harris, 597 F.3d 242, 250-51 (5th Cir. 2010). As Harris recognized, we must defer to a factual finding as to the amount of loss, but must consider “de novo how the court calculated the loss, because that is an application of the guidelines, which is a question of law. In fact, before assessing the court’s loss estimate, we first determine[] whether the

trial court’s method of calculating the amount of loss was legally acceptable.” Id.

( The Guidelines provide for a sentencing enhancement based on the amount of loss caused by the defendant’s conduct. U.S.S.G. § 2B1.1(b)(1). The

application note clarifies that “loss is the greater of actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A). Actual loss means “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt. n.3(A)(i). Intended loss means “the pecuniary harm that was intended to result from the offense.” Id. § 2B1.1 cmt. n.3(A)(ii). Pecuniary harm is also defined: “harm that is monetary or that otherwise is readily measurable in money.” Id. § 2B1.1 cmt. n.3(A)(iii). The court “need only make a reasonable estimate of the loss,” which “shall be based on available information, taking into account, as appropriate and practicable under the circumstances,” a number of inclusive, enumerated factors. Id. § 2B1.1 cmt. n.3(C). One such factor is “[t]he fair market value of the property unlawfully taken, copied, or destroyed; or, if the fair market value is impracticable to determine or inadequately measures the harm, the cost to the victim of replacing that property.” Id. § 2B1.1 cmt. n.3(C)(i). Our precedents require that the loss inquiry focus on the “pecuniary impact on [the] victims” and utilize a “realistic, economic approach.” United States v. Olis, 429 F.3d 540, 545-46 (5th Cir. 2005) (internal quotation marks omitted). Based on this principle, Lige contends that the economically realistic pecuniary impact on Sprint and Nextel is merely the wholesale value of the phones—the price at which Sprint and Nextel can purchase the phones. Using the retail value of the phones, he contends, would essentially include lost profits.

However, Lige’s argument ignores the fact that Sprint and Nextel are not in the business of selling phones at cost. They incur overhead costs and operating expenses beyond the wholesale cost of their merchandise, and are in business to make profits—profits that they did not receive on Lige’s fraudulent orders. Moreover, a commonsense analysis confirms that the retail price is the appropriate measure of the economically realistic pecuniary impact on the victim. In this case, the harm suffered by Sprint and Nextel is the loss of the fraudulently ordered phones. The monetary value of that harm depends on what the phones were worth to the victim. Sprint and Nextel are sellers in the retail phone market. Consequently, taking a realistic, economic approach, they would value these assets based on the price at which they could sell them, not the price at which they obtained them. Thus, the fair market value is the retail price, which is a good measure of the harm inflicted on Sprint and Nextel by the

loss of the merchandise.

( Harris Followed in credit card case where there was no further fraud because

defendant had reached limit of credit cards. United States v. Harris, (5th Cir. Sept. 16, 2011)(10-10286).

( USSG § 4A1.2(k) on what is a “ Term of Imprisonment.” United States v. Jasso,

2009 WL 3222720, 587 F.3d 706 (5th Cir. Nov. 9, 2009)(08-10453): This case requires us to address the question of whether “term of imprisonment,” as it appears in § 4A1.2(k), refers only to the portion of the term of imprisonment that was not suspended–or, whether it refers to the entirety of the term of imprisonment issued upon revocation, regardless of any subsequent suspension of that term. We conclude that “term of imprisonment,” as it appears in § 4A1.2 as a whole, is synonymous with “sentence of imprisonment” and therefore “refers only to the portion that was not suspended.” § 4A1.2(b)(2). We recognize that the Commission’s supplanting of § 4A1.2(e)’s “sentence of imprisonment” with a different, undefined term (“term of imprisonment”) in § 4A1.2(k) could reasonably lead to the conclusion that the two terms share different meanings. Our review of § 4A1.2, however, leads us to conclude that attaching disparate meanings to these two terms results in irreconcilable inconsistencies in § 4A1.2 as a whole.

As a result, we write to clarify this error. Section 4A1.2(e) governs whether Jasso’s prior conviction in Texas state court counts for current criminal history purposes. Under § 4A1.2(e)(1), “[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted.” Under § 4A1.2(e)(2), “[a]ny other prior sentence that was

imposed within ten years of the defendant’s commencement of the instant offense is counted.” Under § 4A1.2(e)(3), however, “[a]ny prior sentence not within the time periods specified above is not counted.” Thus, for a district court to properly assess criminal history points for a prior conviction pursuant to § 4A1.1, the prior conviction must fit into either of § 4A1.2(e)’s first two categories. United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 2006) (holding that where a defendant’s “conviction does not fall within the time periods specified in § 4A1.2(e)(1) or (2), it should not [b]e counted.”).

Jasso’s 1995 state court sentence to felony probation, alone, cannot contribute any criminal history points since it was well-over the ten year limitation found in (e)(2) and because as a term of probation, it fails to meet the thirteen month minimum established in (e)(1).

( As noted above, for his assault conviction in Texas state court, Jasso was sentenced

to a term of ten years of probation, which for criminal history purposes, amounts to a sentence of imprisonment of “zero” years. See, e.g., United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 2006) (calculating a term of probation as “zero” years under § 4A1.2(e)).

( USSG § 2B1.2(b)(1)(B) on “Sentenced Imposed”. United States v. Rodriguez-Parra, 581 F.3d 227 (5th Cir. 2009): A completely suspended sentence does not qualify as a “sentence imposed” for purposes of USSG § 2L1.2(b)(1)(B), which applies a 12-level sentencing enhancement on the basis of a previous drug trafficking conviction “for which the sentence imposed was 13 months or less.”

( USSG § 4A1.3 Departures Based on Inadequate Criminal History Category. United States v. Gutierrez-Hernandez, 581 F.3d 251 (5th Cir. 2009): In illegal reentry case, district court erred in upward departing, pursuant to USSG §§ 4A1.3 and 5K2.0, from a Guideline range of 10 to 16 months up to a sentence of 30 months; the district court misapplied § 4A1.3, when, in making a criminal history departure, moving vertically up the offense level axis rather than horizontally up the criminal history category axis; the district court also misapplied the Guidelines in departing upward under USSG sect 5K2.0 on the basis of the facts of a prior drug conviction because (1) it could not use its departure power to circumvent the categorical approach to prior convictions mandated by Taylor v. United States, 495 U.S. 575 (1990); and (2) more fundamentally, prior offenses serve as the basis for § 4A1.3 criminal history departures, not § 5K2.0 departures, which consider the circumstances of the instant offense.

( Does Booker Negate Ex Post Facto Argument when Retroactive Guidelines Are Used? From United States v. Castillo-Estevez, 597 F.3d 238(5th Cir. Feb. 9, 2010)(09-40096): “A sentencing court must apply the version of the sentencing guidelines effective at the time of sentencing unless application of that version would violate the Ex Post Facto Clause.” United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999). A violation occurs upon the “‘imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.’” Because Castillo raises this argument for the first time on appeal, we review the district court’s application of the 2008 guidelines for plain error. United States v. Ricardo, 472 F.3d 277, 284 (5th Cir. 2006). In United States v. Suarez, 911 F.2d 1016 (5th Cir. 1999), this court noted that a sentence enhancement “based on an amendment to the guidelines effective after the offense was committed ‘would be an obvious . . . violation’ of the ex post facto clause.” Id. at 1021. … Castillo’s argument overlooks the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), which rendered the sentencing guidelines merely advisory. In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.” 488 F.3d at 325. The Seventh Circuit adopted this view of the guidelines post-Booker in United States v. Demaree, 459 F.3d 791 (7th Cir. 2006). … But cf. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008) (rejecting the Seventh Circuit’s reasoning in Demaree); United States v. Larabee, 436 F.3d 890, 894 (8th Cir. 2006) (stating post-Booker that “‘retrospective application of the Guidelines implicates the ex post facto clause’”). We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton.

( Criticized in Fifth Circuit Blog of February 11, 2010:

But the Fifth Circuit has already determined that ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. In United States v. Austin, 479 F.3d 363—a pre-Rodarte-Vasquez decision reviewing a sentence imposed post-Booker—the court began its analysis by noting that,

Post-Booker, we continue to review the district court's interpretation of the Sentencing Guidelines de novo and its fact findings for clear error, although the ultimate sentence is reviewed for unreasonableness. When calculating a Guidelines sentencing range, a district court applies the Guidelines in effect at sentencing, unless the Guidelines in effect when the offense occurred would yield a lesser penalty. In such a case, to avoid ex post facto concerns, the court uses the Guidelines yielding the lesser penalty.

Later, applying that rule, Austin stated that "the offense level under the 2004 Guidelines is higher than under the 1998 Guidelines, and the 1998 Guidelines apply." The court went on to hold that the district court had incorrectly calculated the range under the older Guidelines, and even vacated the sentence on plain error review.

Thus, in light of Austin, the district court's application of more severe post-offense 2008 Guidelines in Castillo's case was not only error, but clear and obvious error. (It might very well meet the other requirements for reversal under plain error review, too.) And that should hold true even though there's a circuit split on the ex post facto question.

The opinion in Castillo-Estevez does not discuss or attempt to distinguish Austin, so there is no way to know for sure why the court did not find it controlling. (It also is not clear whether Castillo brought up Austin. The opinion says only that he relied on United States v. Kimler, 167 F.3d 889 (5th Cir. 1999), a pre-Booker decision.) In any event, because one panel may not overrule another (absent something like a statutory change or intervening Supreme Court case law), Austin should control over Castillo-Estevez.

( Error in Calculating Criminal History Was Plain But Not Prejudicial.

From United States v. Blocker, 612 F.3d 413 (5th Cir. July 20, 2010)(09-10798).

District court added two points to Blocker’s criminal history under U.S.S.G. § 4A1.1(d) because the crime was committed while Blocker was under an active probation revocation bench warrant that related to a 1987 conviction. A violation warrant of this type is countable under § 4A1.1(d) only if the underlying criminal justice sentence is also countable. U.S.S.G. § 4A1.2(m); see also U.S.S.G. § 4A1.1, cmt., n.4. Prior sentences are countable only if they occurred within the applicable time period—10 or 15 years depending on the type of sentence. U.S.S.G. § 4A1.2(e). Here the prior sentence was over 21 years old and so was not countable under § 4A1.1(d); because the underlying sentence was not countable, neither was the active probation revocation bench warrant. Consequently, it was error for the district court to assess Blocker two criminal history points under § 4A1.1(d). As our conclusion is reached by a straightforward application of the guidelines, the error was also plain. See United States v. Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir. 2009) (explaining that error is plain where it is “clear or obvious, rather than subject to reasonable dispute”).

An error that is plain, though, is not enough. Blocker must also show that

the error affected his substantial rights by “undermin[ing] confidence in the

outcome.” Fed. R. Crim. P. 52; United States v. Dominguez Benitez, 542 U.S. 74,

83 (2004). In cases of miscalculated guidelines ranges, this requires demonstrating a “reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). Here the district court applied a guidelines range of 78 to 97 months; the

correct guidelines range was 70 to 87 months. Where, as here, the sentence—85 months—falls inside both the correct and incorrect guidelines ranges, “we have shown considerable reluctance in finding a reasonable probability that the district court would have settled on a lower sentence.” United States v. Campo-Ramirez, 2010 WL 2102276, at *3 (5th Cir. 2010) (unpublished) (collecting cases with overlapping guidelines ranges); see also United States v. Jasso, 587 F.3d 706, 714 (5th Cir. 2009); United States v. Jones, 596 F.3d 273, 277–79 (5th Cir. 2010). In some cases we have denied relief even though the district court chose a sentence at the bottom of the incorrect guidelines range, when that sentence fell at or near the top of the correct guidelines range. See Campo-Ramirez, 2010 WL 2102276, at 3–4; United States v. Cruz-Meza, 310 F. App’x. 634, 637–38 (5th Cir.2009) (unpublished). We reasoned that there was no evidence that the district court found the bottom of “any range to be appropriate.” Jasso, 587 F.3d at 714 n. 11. Put simply, where the resulting sentence falls within both the correct and incorrect guidelines, we do not assume, in the absence of additional evidence, that the sentence affects a

defendant’s substantial rights. See Jones, 596 F.3d at 279.

( Enhancement for Use of Minor in Transport of Aliens

( United States v. Mata, 624 F.3d 170 (5th Cir. 2010).

( United States v. Andres, __ F.3d __ (5th Cir. Jan. 3, 2013)(11-40783):

The district court concluded that the § 3B1.4 enhancement was justified because Andres and Gutierrez brought Gutierrez’s daughter on the drive to avoid suspicion by appearing to be on a “family outing.” Andres does not appear to challenge any factual finding by the district court; rather, he argues that because Gutierrez’s daughter was “already in the vehicle” when he received it, he did not take any affirmative action to involve her in the offense. As Andres notes, the mere presence of a minor at the scene of a crime is insufficient to support an enhancement based on § 3B1.4; a defendant must “take some affirmative action to involve the minor in the offense.” United States v. Mata, 624 F.3d 170, 176 (5th Cir. 2010). Even assuming that Gutierrez’s daughter was already in the truck when Andres received it, the district court did not err in concluding that Andres’ choosing to drive a truck containing over twenty kilograms of cocaine and a four-year-old girl from Laredo to Chicago constitutes

an “affirmative act” involving a minor in the offense. Accordingly, the district court did not err in applying the § 3B1.4 enhancement.

( Leadership Role. Defendant’s leadership position in gang translated into leadership in drug conspiracy in which the gang had been involved. United States v. Nava,

624 F.3d 226 (5th Cir. 2010).

( United States v. Simmons, (5th Cir. April 1, 2011)(09-11031).

( Misdemeanor. United States v. Hernandez. __ F.3d __ (5th Cir. Feb. 22, 2011)(10-10913): U.S. Sentencing Guidelines lists certain offenses which cannot count towards the criminal history. One of these is loitering. Obstruction of a highway or other passageway was not similar to loitering and thus could be counter in federal criminal history if there was a term of confinement of at least 30 days or a term of probation of at least one year. To determine whether a defendant’s prior crime is “similar to” one of the

offenses listed in Section 4A1.2(c)(1) or (c)(2), the Sentencing Guidelines adopt the “common sense approach” first articulated by this court in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991 The common-sense approach considers several factors, including:

(i) a comparison of punishments imposed for the listed and unlisted offenses;

(ii) the perceived seriousness of the offense as indicated by the level of punishment;

(iii) the elements of the offense;

(iv) the level of culpability involved; and

(v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.

( Obstruction. United States v. Flores, __ F.3d __ (5th Cir. May 4, 2011)(09-50863):

The court determined that both defendants intentionally provided false testimony by

giving materially false statements at trial that were not the product of confusion, mistake, or faulty memory. See United States v. Dunnigan, 507 U.S. 87, 95 (1993).

( Minor Participant: Whether a defendant is a minor participant is a “sophisticated factual determination” reviewed for clear error. United States v. Garcia, 242 F.3d 593,

597-98 (5th Cir. 2001) (citation omitted). “[I]n order to qualify as a minor

participant, a defendant must have been peripheral to the advancement of the

illicit activity.” United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001)

( USSG § 3B1.3, [1]abused a position of public or private trust, or used a special skill, [2] in a manner that significantly facilitated the commission or concealment of the offense.

( United States v. Pruett, __F.3d __ (5th Cir. May 15, 2012)(11-30572)

(Prado, J, concurring):

I write separately to discuss the court’s review of the district court’s

application of the two-level abuse-of-trust enhancement to Pruett’s sentence

under U.S.S.G. § 3B1.3.

Standard of review is frequently viewed as a cursory statement that

precedes a court’s analysis of the relevant issues on appeal. But the maxim that

“standard of review decides cases” is crucial to understanding the actual work

of an appellate court. As Childress and Davis have written in their seminal

treatise on the matter, “Although standards of review often are baldly stated

without explicit reference to the relevant degree of deference, deference is always

the underlying notion.” Stephen Alan Childress & Martha S. Davis, 2 Federal

Standards of Review § 7.02 (4th ed. 2010). Viewed from the opposite side of the

coin, “a review standard describes the positive authority the appellate court

wields in its review function.” Id. § 1.01. Given its crucial importance in the

scheme of how an appellate court works, this court’s inattention to the proper

standard for review of sentencing enhancements is troubling. Such inattention

is rendered even more troubling upon recognizing that a central goal of our

federal sentencing regime is to provide for uniformity. See Koon v. United

States, 518 U.S. 81, 113 (1996); United States v. Goncalves, 613 F.3d 601, 608

(5th Cir. 2010).

As it pertains to the enhancement challenged by Pruett in this case,

United States v. Dial acknowledged the intra-circuit split as to the appropriate

standard of review for § 3B1.3 enhancements. 542 F.3d 1059, 1060 (5th Cir.

2008).

We review for clear error the district court’s application of § 3B1.3 to the facts, including its factual determination that Dial held a position of trust. See United States v. Smith, 203 F.3d 884, 893 (5th Cir. 2000); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990). This court recently applied de novo review to whether the

defendant held a position of trust. See United States v. Kay, 513 F.3d 432, 460 (5th Cir. 2007)[, cert. denied, 129 S. Ct. 42 (2008)]. The panel in Kay, 513 F.3d at 460 & n. 125, relied on United States v. Sudeen, 434 F.3d 384, 391 n. 19 (5th Cir. 2005), which based its statement on United States v. Hussey, 254 F.3d 428, 431 (2d Cir. 2001), after observing that the standard of review would not affect its decision.

De novo review appears foreclosed, however, by this circuit’s earlier ruling that a “district court’s application of § 3B1.3 is a sophisticated factual determination that will be affirmed unless clearly erroneous.” [Ehrlich, 902 F.2d at 330.] Despite whatever

persuasiveness Kay and Sudeen may have, our rule of orderliness directs that “‘one panel of this court cannot overrule the decision of another panel.’” [Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).] Id. (footnotes omitted). Therefore, the standard of review used by the court in this case—clear error—is the correct one, see supra Per Curiam Op. at 21, based on earliest case controls, see Matter of Howard, 972 F.2d 639, 641 (5th Cir. 1992). It is not just in the context of § 3B1.3 enhancements that we have been inconsistent in our standard of review for Guidelines enhancements. I have previously written about the intra-circuit split as to “whether the determination that [U.S.S.G.] § 3C1.1’s [obstruction of justice] requirements are met is . . . a question of fact” or a question of law and what the corresponding standard of review is—a question that has also produced an inter-circuit split. See United States v. Claiborne, __ F.3d __, No. 10-51189, 2012 WL 1021274, at *5 n.1 (5th Cir. Mar. 28, 2011) (Prado, J., concurring). Broadly framed, the issue is whether adjustments under Section 3 of the Guidelines are questions of law reviewed de novo or questions of fact reviewed for clear error. The First Circuit in United States v. Sicher, 576 F.3d 64 (1st Cir. 2009), nicely summarizes the uncertainty (and split amongst the circuits) in this area of sentencing law, with specific reference to § 3B1.3 enhancements (this summary omitted here).

…The hybrid nature of this process is reflected in the standard of review for

convictions by a jury. In reviewing the sufficiency of the evidence supporting a jury’s verdict, we apply a deferential variant of de novo review. Our review is de novo, but we view all of the evidence, resolve all credibility determinations, and make all reasonable inferences in favor of the jury verdict. United States v. Winkler, 639 F.3d 692, 696 (5th Cir. 2011). The deference is accorded because of the jury’s fundamental role in our criminal justice system. See Apprendi v. New Jersey, 530 U.S. 466, 477 (2000).

Similar to the jury, the sentencing judge holds a special position in our criminal justice system. See Booker v. United States, 543 U.S. 220, 249–55, 265 (2005).

( Ability to Drive Tractor Tailor as Special Skill. United States v. Villafranca,

__ F.3d ____ (5th Cir. Dec. 1, 2016)(16-40022): the ability to drive a tractor trailer truck as evidenced by the possession of a commercial driver’s license constitutes a special skill for purposes of § 3B1.3. See United States v. Gonzalez, 627 F. App’x 381, 382 (5th Cir 2015); United States v. Ordonez, 334 F. App’x 619, 624 (5th Cir. 2009).1 While merely persuasive, see Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006), our unpublished decisions are consistent with the decisions of other circuits on this issue. See, e.g., United States v. Berry, 717 F.3d 823, 834-35 (10th Cir. 2013); United States v. Martinez, 509 F. App’x 889, 894 (11th Cir. 2013); United States v. Vasallo, 518 F. App’x 147, 149 (4th Cir. 2013); United States v. Smith, 332 F.3d 455, 458-59 (7th Cir. 2003); United States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996). Furthermore, in Gonzalez, 627 F. App’x at 382, we concluded that the defendant’s commercial driver’s license and years of truck-driving experience significantly facilitated his commission of the offense of transporting undocumented aliens because, without those special skills, he would have been unable to tow the tractors in which the aliens were hidden. As we explained in United States v. Gill, 642 F. App’x 323, 326 (5th Cir. 2016), by carrying the aliens in the truck’s trailer, the defendant “gave the appearance that he was hauling a legitimate load and made it much more difficult to identify the aliens.” Accordingly, the district court did not clearly err in determining that Villafranca’s special skill of driving a tractor trailer truck significantly facilitated the commission of the offenses. See § 3B1.3; United States v. Pruett, 681 F.3d 232, 248 (5th Cir. 2012).

( Assertions of one’s management role for sentencing purposes are not categorically unreliable because they are from co-conspirators. United States v. Cantu–Ramirez, 669 F.3d 619, 629 (5th Cir. 2012); United States v. Zuniga, __ F.3d __ (5th Cir. June 20, 2013)(11-20778).

( Not relevant as to Position of Trust: policeman, prosecutor, economic status, judge: “[a] defendant’s socio-economic status is never relevant to

sentencing.” United States v. Burch, 873 F.2d 765, 769 (5th Cir.1989); see

United States v. Harrington, 82 F.3d 83, 87-88 (5th Cir. 1996) (holding that

defendant’s status as a prosecutor was an element of socioeconomic status);

United States v. Stout, 32 F.3d 901, 903-04 (5th Cir. 1994) (holding that the

defendant’s position as a judge was an unacceptable reason for departure).

“Under the guidelines, sentencing is to be based upon the crime committed, not

the offender. While certain characteristics of the offender, such as prior

criminal conduct, are relevant to sentencing under the guidelines, it is because

such characteristics are directly relevant to the crime committed.” Burch, 873

If a defendant police officer abuses his position by using it to facilitate the

offense, his position is an appropriate sentencing factor. Wade, 931 F.2d at 307;

see also United States v. Esquival, 407 F. App’x 781, 784 (5th Cir. 2011)

(affirming within-Guidelines sentence above the statutory minimum where

border patrol agent, inter alia, abused position of trust by providing information

to drug traffickers). Further, when law enforcement experience is one factor

among many relied on by a district court in judging the seriousness of an

offense, it may be a relevant consideration. See United States v. Pridgen, 898

F.2d 1003, 1004-05 (5th Cir. 1990) (affirming upward departure where former

law enforcement officer abducted a bank employee during a robbery for an

extended period); but see Wade, 931 F.2d at 307 (noting that “Pridgen does not

give approval for an upward departure each time a law enforcement officer is

sentenced”). Accord: United States v. Chandler, __ F.3d __ (5th Cir. Oct. 4, 2013)(12-30410)(pornography by cop not related to his duties).

( Position of Trust and Lack of Supervision. United States v. Vinalay, (5th Cir. July 26, 2017)(15-41749)(Postal clerk was not in a position of trust because his money aspects

were not supervised because of lax auditing) Sentencing reversed.

Lack of supervision is a necessary, but not sufficient, basis for imposing the position of trust enhancement. See id.; United States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (“[L]ax supervision alone does not convert one’s job into a ‘position of trust’ under § 3B1.3.” (quoting United States v. Helton, 953 F.2d 867, 870 (4th Cir. 1992)). And trusting that an employee will carry out his ministerial duties as required is not the same as endowing him with professional or managerial discretion. See Ollison, 555 F.3d 152, 166 (5th Cir. 2009) (“Opportunity and access do not equate to authority, or to the kind of substantial discretionary judgment that is ordinarily given considerable deference.” (quoting United States v. Edwards, 325 F.3d 1184, 1187 (10th Cir. 2003)) (internal quotation marks omitted)). Cf. United States v. Smith, 203 F.3d 884, 893 (5th Cir. 2000) (“[G]enerally a bank teller engaged in the activity of taking cash from the till and putting it in is not utilizing a position of trust.”). Thus, while we do not hold that a postal window clerk could never occupy a position of trust, there is nothing in this record that permits a conclusion that Vinalay’s position “involved the type of complex, situation-specific decision-making that is given considerable deference precisely because it cannot be dictated entirely by, or monitored against, established protocol.” United States v. St. Junius, 739 F.3d 193, 209 (5th Cir. 2013). We therefore hold that the scope of Vinalay’s duties as a postal window clerk clearly do not justify an enhancement under U.S.S.G. § 3B1.3

( Offense Committed While Under Sentence.

( USSG § 4A1.1(d) (“[a]dds 2 [criminal-history] points if the defendant committed the instant offense while under any criminal justice sentence”),

( United States v. Brown, (5th Cir. Nov. 4, 2015)(15-20255): Brown contends his failure to appear occurred in 2010, when he was not under his 6 June 2014 state-court sentence. He further asserts that, even if the failure-to-appear offense is a continuing one, it ceased to continue when he was taken into state custody in January 2013. Although he concedes the court would have still departed upward, he contends, without those two points, he would have received a lower Guidelines sentencing range and a lesser sentence. Our court and other circuits have concluded a failure-to-appear offense is a continuing one. See United States v. Szucko, No. 92-2698, 1993 WL 481583, at 2 n.5 (5th Cir. 3 Nov. 1993) (unpublished); see also United States v. McIntosh, 702 F.3d 381, 387 (7th Cir. 2012); United States v. Alcarez Camacho, 340 F.3d 794, 796–97 (9th Cir. 2003); United States v. Green, 305 F.3d 422, 432–33 (6th Cir. 2002); United States v. Lopez, 961 F.2d 1058, 1059–60 (2d Cir. 1992); United States v. Martinez, 890 F.2d 1088, 1092 (10th Cir. 1989). But, our court has not yet addressed whether failure to appear ceases to continue when a defendant is taken into state custody on an unrelated state criminal matter. In any event, “[w]e ordinarily do not find plain [(clear or obvious)] error when we have not previously addressed an issue[;] [e]ven where the argument requires only extending authoritative precedent, the failure of the district court to do so cannot be plain error”. United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (internal quotation marks and citations omitted). Accordingly, given the absence of clear authority that Brown’s failure-to-appear offense ceased to continue when he was arrested by state authorities, he fails to show the district court committed the requisite clear-or-obvious error. See United States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011).

( Drug Analogues—>Computing analogues not in USSG—Standard of Review of Scientific Evidence in Sentencing---discretion to vary under Kimbrough—

5K1 Departures Require Assistance Related Concerns

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

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

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

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

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

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

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

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

Sentencing Decisions

( We review a sentencing decision for reasonableness, applying the abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). This standard applies whether the sentence is inside or outside the guidelines range. Id. We must first ensure that the district court did not commit procedural error. Id. This review includes an assessment of whether the district court improperly calculated the guidelines range. Id. A district court’s interpretation or application of the Guidelines is reviewed de novo, and its factual findings are reviewed for clear error. Id.

( Reasonableness review, in the context of a guidelines departure, requires this court to evaluate both “the district court’s decision to depart upwardly and the extent of that departure for abuse of discretion.” United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and citation omitted). However, when, as here, a defendant fails to object to the district court’s decision to depart upwardly in the district court, review is for plain error. See United States v. Hernandez, 485 F.3d 270, 272-73 (5th Cir. 2007).

( Stating Reasons. While recommending that a district court state its reasons “explicitly on the record,” we held that there is no error when “[e]xamining the full sentencing record reveals the district court’s reasons for the chosen sentence and allows for effective review by this court.” United States v. Bonilla, 524 F.3d 647, 658 (5th Cir. 2008). Because the § 3553(a) factors were fully addressed at sentencing and in briefing, the district court’s reference to “arguments made earlier” and “information in the [pre-sentence] report” was “adequa[te] as a matter of law.” Id. at 659.

( When making factual findings for sentencing purposes, a district court “may consider any information which bears sufficient indicia of reliability to support its probable accuracy.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal quotation marks and citation omitted). “Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual determinations.” Id. (internal quotation marks and citation omitted). However, “[b]ald, conclusionary statements” in a PSR are not sufficiently reliable. See id. at 230 n.2 (quoting United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993)). “If the factual recitation [in the

PSR] lacks sufficient indicia of reliability, then it is error for the district court to consider it at sentencing—regardless of whether the defendant objects or offers rebuttal evidence.” See id. at 231. But if the factual recitation in the PSR bears sufficient indicia of reliability, then the “defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (citation and internal quotation marks omitted); see also United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (confirming that “in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it”). Rebuttal evidence must consist of more than a defendant’s objection; it requires a demonstration that the information is “materially untrue, inaccurate or unreliable.” Harris, 702 F.3d at 230.

( Sentencing Enhancements Standard of Review. United States v. Accituno, (5th Cir. Nov. 3, 2015)(14-40442):

Sentencing enhancements must be proven “by a preponderance of the evidence.” United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). In determining whether an enhancement applies, “a district court is permitted to draw reasonable inferences from the facts, and these inferences are factfindings reviewed for clear error as well.” United States v. Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014) (quoting United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)). A finding is not clearly erroneous unless it is implausible “in light of the record as a whole.” United States v. Wilcox, 631 F.3d 740, 753 (5th Cir. 2011), cert. denied, 135 S. Ct. 771 (2014). We review a sentence imposed by the district court first for procedural error and then for substantive reasonableness. See United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). For properly preserved claims, the district court’s interpretation or application of the Guidelines is reviewed de novo, and its factual findings are reviewed for clear error. See United States v. Hinojosa, 484 F.3d 337, 340 (5th Cir. 2007). Where the defendant fails to preserve an error, however, we generally apply a plain error standard. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). We review preserved constitutional claims de novo. See United States v. Hernandez, 633 F.3d 370, 373 (5th Cir. 2011). However, we apply a plain error standard of review to constitutional challenges not raised in the district court. See United States v. Ebron, 683 F.3d 105, 155 (5th Cir. 2012).

Sentencing—Credit for State Time

( United States v. Hankton, __ F.3d ___ (5th Cir. Nov. 16, 2017)(16-31126):

We begin by explaining when a district court has authority to reduce a defendant’s sentence for previous time served. The Attorney General and the BOP are primarily responsible for ensuring that defendants receive credit for previous time served. Under 18 U.S.C. § 3585(b), in some instances a defendant receives “credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences.” The Supreme Court has held that administration of § 3585(b) rests with the Executive Branch, essentially the BOP. See Wilson, 503 U.S. at 334–35. Thus, after a court sentences a defendant, the BOP receives the sentence and calculates a release date, incorporating factors like time previously served. See BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, CPD 5880.28 CN-06, SENTENCE COMPUTATION MANUAL (CCA OF 1984) at 1-14A (1999). These calculations administer the sentence, not alter it. Sentencing courts, however, retain residual authority to reduce defendants’ sentences based on previous time served related to their offenses. U.S.S.G. § 5G1.3(b) permits a court to adjust a sentence if a defendant has served time on an undischarged term. For the adjustment to apply, two criteria must be met: (1) the time previously served must have “resulted from another offense that is relevant conduct to the instant offense of conviction,” and (2) the court must “determine[ ] that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.” U.S.S.G. § 5G1.3(b). The commentary to § 5G1.3(b) also cross-references § 5K2.23, which recommends nearly identical protection for discharged terms. See U.S.S.G. § 5G1.3 cmt. n.5; see also U.S.S.G. § 5K2.23 (advising that a downward departure may be appropriate when the defendant (1) has completed serving a term of imprisonment and (2) if subsection (b) of § 5G1.3 would have been otherwise satisfied). The primary difference is that § 5K2.23 permits a court to downwardly depart, rather than adjust, the defendant’s sentence. See United States v. Gonzalez-Murillo, 852 F.3d 1329, 1338–39 (11th Cir. 2017) (per curiam) (identifying differences).7 But between §§ 5G1.3 and 5K2.23, courts have the authority to reduce a defendant’s sentence for any previous time served on related charges whenever the BOP will not grant that credit.

Sentencing Modification or Reformation

( This court reviews de novo whether the district court had authority to issue the sentence reformulation, pursuant to Rule 35(a) of the Federal Rules of Criminal

Procedure. United States v. Ross, 557 F.3d 237, 239 (5th Cir. 2009).

( United States v. Meza,620 F.3d 505 (5th Cir. Sept. 20, 2010)( 08-10453):

“[A] district court’s authority to correct or modify a sentence is limited to those specific circumstances enumerated by Congress in 18 U.S.C. §3582([c]).” United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997). See also United States v. Lopez, 26 F.3d 512, 515 (5th Cir. 1994) (district court is authorized to modify term of imprisonment only if one or more bases permitted by § 3582(c) is applicable). “The only portion of § 3582(c) [relevant here] is the component of subsection (c)(1)(B) that authorizes a sentencing court to act pursuant to FED. R. CRIM. P. 35.” Lopez, 26 F.3d at 515. Under the version of Rule 35 in place at the time of sentencing, the district court was authorized to modify a sentence (1) to reflect a defendant’s subsequent, substantial assistance or (2) “[w]ithin 7 days after sentencing” to “correct a sentence that resulted from arithmetical,

technical, or other clear error.” FED. R. CRIM. P. 35.

( Meza rests the thrust of her legal argument on Ross, yet that case is distinguishable. Here, unlike Ross, not only was the application for a modification made by a party, but it was also made within the same hearing, on the same day, within moments of the original pronouncement. The unbroken sequence of actions in this case is a compelling factor in our consideration of Federal Rule of Criminal Procedure 35. This counsels in favor of affirming the judgment and sentence of the district court and construing the totality of the events as one sentence.

( Meza next contends that this court’s unpublished opinion in United States

v. Cross supports her position. 211 F.3d 593, 2000 WL 329247 (5th Cir. 2000).

Meza’s position is problematic. In Cross, the defendant, upon that court’s

revocation of supervised release and imposition of a sentence, lodged a profanity-laden diatribe aimed at the sentencing judge. 2000 WL 329247, at *1. Subsequent to the defendant’s outburst, the sentencing judge reconvened the hearing and increased the defendant’s sentence. On appeal, this court, citing the sentencing court’s want of authority in modifying the sentence, reversed and remanded with instructions to reinstate the original sentence. Id. As is the case with Ross, Meza’s reliance on Cross is misplaced. True, like Cross, any purported modification here happened within the same day and, in that respect, Cross avoids the temporal pitfalls inherent in Ross. Yet, the modification in Cross happened after that sentencing judge gaveled the hearing adjourned. Cross, 2000 WL 329247, at *1. A modification in Cross required the sentencing judge to perform the affirmative act of reconvening the hearing and entering onto the record a sentence different than the one previously entered. Id. The conclusion of the original sentencing hearing, and that court’s renewal of the sentencing proceeding, make Cross readily distinguishable from this case.

Sentencing Remand

( When case is reversed on appeal and remanded only for resentencing without instructions, the trial court can consider may consider any new evidence from either party. United States v. Carales-Villalta, 617 F.3d 342, 345 (5th Cir. 2010). (09-40468).

Severance

( From United States v. Tran, 2009 WL 351619, ___ F. App’x ___ (July 31,2009)

(07-11195): Court did not abuse its discretion by denying Tran’s motion for severance. See, e.g., United States v. Booker, 334 F.3d 406, 415 (5th Cir. 2003) (standard of review). “As a general rule, persons indicted together should be tried together, particularly when the offense is conspiracy.” United States v. Simmons, 374 F.3d 313, 317 (5th Cir. 2004). For denial of severance to amount to reversible error, the defendant must show that “(1) the joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) the prejudice outweighed the government’s interest in economy of judicial administration.” United States v. Valdez, 453 F.3d 252, 261 (5th Cir. 2006) (internal quotation marks and citation omitted). Tran’s contentions regarding the volume of evidence relating to the separate drug-trafficking conspiracy of his co-defendants and its spillover effect are insufficient to warrant reversal. Cf. United States v. Lewis, 476 F.3d 369, 384 (5th Cir. 2007).

( United States v. Mudekunye, __ F.3d ___ (5th Cir. July 11, 2011)(09-10968):

Standard of Review: Because this severance issue is raised for the

first time on appeal, review is only for plain error. E.g., United States v. Misher,

99 F.3d 664, 669 (5th Cir. 1996).

Severance vel non is within the discretion of the district court: it should be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants”, and limiting instructions to the jury will often cure any prejudice resulting from a joint trial. Zafiro v. United States, 506 U.S. 534, 539 (1993). Mudekunye must show “specific and compelling prejudice against which the district court could not provide adequate protection, and that this prejudice resulted in an unfair trial”. United States v. Stouffer, 986 F.2d 916, 924 (5th Cir. 1993). Mudekunye fails to do so; instead, he complains generally. As discussed, a generalized showing of prejudice is insufficient. E.g., United States v. Solis, 299 F.3d 420, 441 n.46 (5th Cir. 2002) (“severance issues are fact-specific, requiring a showing of specific compelling prejudice” (citation and internal quotation marks omitted)); Stouffer, 986 F.2d at 924. In addition, substantial evidence directly implicating Mudekunye in the conspiracy removes any concern that not severing subjected him to “manifest Injustice”. United States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994). Last, the instructions alleviated any risk of prejudice arising from a joint trial. See United States v. Bernard, 299 F.3d 467, 476 (5th Cir. 2002). The jury was instructed to consider each defendant’s charges separately, and this court must presume that it heard, understood, and followed those instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987). Defendants’ being acquitted on some charges reflects the jury was able to consider, and weigh separately, each of the charges. United States v. Ellender, 947 F.2d 748, 755 (5th Cir. 1991).

( United States v. Owens, __ F.3d __ (5th Cir. May 30, 2012)(10-40707):

This court reviews a denial of a motion for severance for abuse of

discretion. United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007) (citing

United States v. Sudeen, 434 F.3d 384, 387 (5th Cir. 2005)). “Historically, this

court has been reluctant to vacate a conviction because the district court refused

to sever a trial. The defendant must ‘isolate events occurring in the course of the

trial and then . . . demonstrate that such events caused substantial prejudice.’”

Lewis, 476 F.3d at 384 (citations omitted). To reverse the denial of a motion to

sever, an appellant must show “specific compelling prejudice.” Id. at 383 (citing

Sudeen, 434 F.3d at 387). “To prevail, the defendant must show that: (1) the

joint trial prejudiced him to such an extent that the district court could not

provide adequate protection; and (2) the prejudice outweighed the government’s

interest in economy of judicial administration.” United States v. Peterson, 244

F.3d 385, 393 (5th Cir. 2001) (citations and internal quotation marks omitted).

The defendant also must show that the district court’s instructions to the jury

did not adequately protect him or her from any prejudice resulting from the joint

trial. United States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir. 1998) (citing

United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994)).

( Error on severance can usually be avoided by giving an instruction that jurors

must consider each count and each defendant separatedly. United States v. Bernnegger,

661 F.3d 232 (5th Cir. 2011).

Sexual Contact on Federal Jurisdiction: 18 U.S.C. § 2244(b)

Hawkins’s appeal thus raises two questions: Does a conviction under Section 2244(b) require proof that the defendant knew the sexual contact took place without the victim’s permission? If so, did that proof exist in Hawkins’s case?

No court of appeals has addressed whether the knowledge element of Section 2244(b) applies to the victim’s lack of permission. As a grammatical matter, Hawkins concedes that “knowingly” modifies “engages in sexual contact” rather than the phrase “without that person’s permission.” But Hawkins asks us to follow the approach of United States v. X-Citement Video, Inc., 513 U.S. 64 (1994). In that case, the Supreme Court found a mens rea requirement that lacked grammatical support in a child pornography statute because of the presumption that “a scienter requirement . . . appl[ies] to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 71–72. The government responds that legislative history supports the plain language of Section 2244(b), see United States v. Chatman, 2008 WL 2127947, at *2 (D. Or. May 20, 2008), as do comparable state sexual assault statutes that do not require knowledge as to consent in similar circumstances. The Second Circuit faced similar arguments in a Section 2244(b) case, but found it unnecessary to resolve the statutory question because sufficient evidence supported the conviction even assuming a mens rea requirement applied to the “without that person’s permission” element. See United States v. Cohen, 2008 WL 5120669, at *2 (2d Cir. Dec. 8, 2008). The same is true in Hawkins’s case. Substantial evidence exists from which the trier of fact could have found beyond a reasonable doubt that Hawkins knew he did not have his niece’s permission to engage in sexual contact. And contrary to Hawkins’s argument that any such holding is speculative because a finding on this issue was not made below, the district court reached this exact conclusion when it denied the motion for bond pending appeal, stating that “the trial record clearly established that the Defendant knew that he did not have permission to engage in sexual contact with victim.” We agree. For starters, his niece never gave Hawkins permission to touch her in a sexual way, strong evidence that Hawkins knew he lacked permission to do so. See, e.g., Cohen, 2008 WL 5120669, at *2 (finding the lack of permission probative of the defendant’s knowledge that he lacked permission). Second, his niece immediately said “I don’t think you should be doing that,” conveying to Hawkins that he did not have permission to touch her sexually. Third, his niece jumped up and ran away shocked and crying, providing evidence that she had a nonpermissive demeanor during the encounter. Hawkins counters these points by parsing his niece’s words and proof of her demeanor, arguing that she equivocated by saying “should” and pointing to physical evidence that allegedly undercuts her testimony. But the district court did not credit Hawkins’s interpretation of the evidence, and given that we must view all evidence to favor the verdict, we will not either. In many cases, establishing any one of the aforementioned facts may be enough to support a finding beyond a reasonable doubt that the defendant knew the sexual contact took place without the victim’s permission, but here there is even more. The familial relationship and vast age difference between Hawkins and his niece cast serious doubt on his claim that he thought he had her permission to engage in sexual contact. See, e.g., Cohen, 2008 WL 5120669, at *2 (holding that the circumstances surrounding the defendant and victim’s relationship were probative of knowledge). And Hawkins’s deceptive plan—tricking his niece into going to an isolated area early in the morning by lying about the gym being closed—indicates that he knew his behavior would not meet with approval. That he apologized right after the incident further establishes his guilty state of mind. So does the fact that he initially denied any sexual contact took place, only to change his story at trial by admitting that it did occur but he thought it was consensual. All this evidence more than establishes Hawkins’s guilt beyond a reasonable doubt even assuming the statute includes the mens rea requirement he advocates. The conviction therefore is AFFIRMED.

Sex Exploitation of Child

( Sadism Enhancement under USSG § 2G2.1(b)(4). United States v. Cloud,

(5th Cir. Nov. 6, 2015)(14-41316)(Mother videotaped performing fellatio on her

7 y-o son, having intercourse with him, placing his fist in her vagina, etc.)

Cloud objected on the ground that humiliation “was not the purpose behind the material being made the way it was made.” She also argued that her conduct lacked the traditional hallmarks of sadism, and that her conduct didn’t “rise to a level of humiliation” under the guidelines. The government agreed with Cloud and added that in this case, unlike others in which the enhancement had been applied, it was the mother rather than the child who was penetrated. In response to Cloud’s objections, the probation office stated that the sadism enhancement was appropriate because “the victim was debased, causing mental pain, for the purpose of sexually gratifying the defendant.” The district court rejected Cloud’s objection and the government’s concurrence.

Whether the district court correctly interpreted the Sentencing Guidelines is a question of law that we review de novo. United States v. Lyckman, 235 F.3d 234, 237 (5th Cir. 2000). But the district court’s application of the Sentencing Guidelines to the facts of the case are reviewed only for clear error. Id. … § 2G2.1(b)(4) applies when the “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” U.S.S.G. § 2G2.1(b)(4). The Guidelines do not define the term “sadistic.” We thus have interpreted “sadistic conduct” by looking to Webster’s definition of sadism — “the infliction of pain upon a love object as a means of obtaining sexual release,” the “delight in physical or mental cruelty,” and the use of “excessive cruelty.” Lyckman, 235 F.3d at 238 n.19. We have also noted that application of the enhancement is warranted when the “sexual act depicted is likely to cause pain in one so young.” Id. at 238. And we have not limited pain to the physical type. See id. at 239 (“[T]he conduct depicted by the photographs caused the children pain, physical or emotional or both, and therefore constitutes sadism or violence within the meaning of the guideline.”); United States v. Comeaux, 445 F. App'x 743, 745 (5th Cir. 2011) (“[A]n absence of physical pain is not per se outside the ambit of the enhancement for sadistic acts under § 2G2.1(b)(4)”). … see also United States v. Maurer, 639 F.3d 72, 80 (3d Cir. 2011) (finding that the enhancement should apply “whenever an image depicts sexual activity involving a prepubescent minor that would have caused pain”); United States v. Delmarle, 99 F.3d 80, 83 (2d Cir. 1996) (“whatever might be inferred as to the purpose of the act depicted or the reaction of the actor, it was within the court's discretion to conclude that the subjection of a young child to a sexual act that would have to be painful is excessively cruel and hence is sadistic”). And the Guideline itself does not require a “purposeful” finding. U.S.S.G. § 2G2.1(b)(4). Because the district court was not required to separately find that Cloud “purposefully” intended to humiliate or degrade John Doe through her conduct, we only need review for clear error its finding that the conduct portrayed was in fact “humiliating and degrading” for the seven-year-old victim. That is not a difficult determination.

( United States v. Nesmith, __ F.3d ___ (5th Cir. August 8, 2017)(16-40196):

18 U.S.C. § 2251

( Proper Standard for Review: Objective, not subjective. Consistent with other circuits: See United States v. Johnson, No. 16-4005, 2017 WL 775856, at *4 (4th Cir. Feb. 28, 2017) (per curiam) (“Whether a particular image portrays sadistic conduct under the Sentencing Guidelines is, indeed, ‘an objective determination.’” (quoting United States v. Corp, 668 F.3d 379, 389 (6th Cir. 2012))); United States v. Johnson, 784 F.3d 1070, 1074 (7th Cir. 2015) (“[T]he proper question is whether the image itself would be objectively considered sadistic.”); United States v. Corp, 668 F.3d 379, 389 (6th Cir. 2012) (“[W]hether a particular image can be classified as portraying sadistic or masochistic conduct under § 2G2.1(b)(4) is an objective determination.”); United States v. Maurer, 639 F.3d 72, 80 (3d Cir. 2011) (holding that “this factual inquiry is an objective one”); United States v. Freeman, 578 F.3d 142, 146 (2d Cir. 2009) (“[T]he determination of whether an image is sadistic . . . is an objective one.”); United States v. Raplinger, 555 F.3d 687, 694 (8th Cir. 2009) (“The enhancement . . . applies to material depicting sadistic, masochistic, or violent conduct even if those pictured were not truly engaging in painful activities.”). Because Nesmith has not provided a compelling reason to create a circuit split, we likewise hold that an objective standard governs the assessment of whether an image portrays sadistic conduct under § 2G2.1(b)(4).

( Contemporaneous Requirement. We conclude that a contemporaneity requirement is appropriate. Accordingly, we hold that an image portrays sadistic conduct where it depicts conduct that an objective observer would perceive as causing the victim in the image physical or emotional pain contemporaneously with the image’s creation. Because the victim in this case was asleep when the image was taken, no objective observer would conclude that the image portrayed sadistic conduct—namely, the defendant obtaining sexual release through the infliction of physical or emotional pain on another. … This Court has never faced application of the sadism enhancement in a scenario like this one—where the minor victim is completely unconscious and unaware of the sexual exploitation occurring at his or her expense. But in all the cases where we have found the sadism enhancement appropriate, the infliction of emotional or physical pain that was the basis for the enhancement has been contemporaneous with the creation of the image. See, e.g., United States v. Cloud, 630 F. App’x 236, 237–39 (5th Cir. 2015) (per curiam); United States v. Comeaux, 445 F. App’x 743, 745–46 (5th Cir. 2011) (per curiam); United States v. Hewitt, 326 F. App’x 756, 759 (5th Cir. 2009) (per curiam); Lyckman, 235 F.3d at 238–40. Even aside from the guidance provided by our case law, it would be unwise to expand the sadism enhancement to apply in all situations where it is reasonably foreseeable that the conduct depicted in the image will later manifest itself in pain. As an initial matter, without a contemporaneousness requirement, § 2G2.1(b)(4) would apply in every child pornography case regardless of the content of the images in question. After all, it is foreseeable that any child who discovers that he or she was depicted in pornography would feel humiliated and debased. Like the plaintiff here, all child victims would likely find it “nerve-wracking” not knowing who had seen the images or if they would become public later and not knowing what effect that would have on their lives. Moreover, without requiring the pain inflicted on the victim to be contemporaneous with creation of the image in question, the sadism enhancement could apply even where a victim never becomes aware that he or she is the subject of child pornography. Any connection between the victim and the defendant would make it foreseeable that the victim would later learn of the conduct depicted in the images and consequently experience emotional pain. In our view, it is inappropriate to apply an enhancement in such a broad manner that it essentially becomes part of the base offense level. Under the Government’s reasoning, even if § 2G2.1(b)(4) were only to apply where the victim actually became aware of the sexual exploitation depicted in the image, application of the enhancement would then turn on the conduct of individuals other than the defendant. If, as was the case here, the Government tells the victim that the image exists and describes its content, that victim will most likely testify to feeling humiliated and debased, and the sadism enhancement would apply. On the other hand, where the victim remains totally unaware of the image, a court could find that such humiliation and debasement are unlikely to happen in the future. Again, this is true regardless of the actual content of the image. In either situation, application of the enhancement would inappropriately be predicated on the conduct of individuals other than the defendant.

Sex Offender Registration See Also SORNA

( Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) (Coleman I), reh’g and en banc denied, 409 F.3d 665 (5th Cir. 2005) (Coleman II), held that if a defendant is not convicted of a sex offense, the defendant’s parole may only be conditioned on sex offender registration and therapy if the defendant is “afforded a hearing meeting the

requirements of due process” in which it is determined that the defendant “constitute[s] a threat to society by reason of his lack of sexual control.” Id. at 225. At the time Coleman I was decided, Meza was required to register as a sex offender and attend sex offender therapy.

( Accord: Renchenski v. Williams, 2010 WL 3835217 (3d Cir. 2010).

( Jennings v. Owens, 602 F.3d 652 (5th Cir. 2010): District court erred in striking

sex offender conditions of parolee’s parole in § 1983 case. Unlike Coleman, defendant

had been convicted of a sex offense and had an opportunity to contest the sex offense charge.

( From Meza v. Livingston, 607 F.3d 392 (5th Cir. May 20, 2010)(09-50367)(opinion by Davis). In light of Coleman I, the Texas Board developed a procedure for providing due process to individuals who were not convicted of a sex offense but could have sex offender conditions attached to their parole or mandatory supervision under Texas law. Counsel for the Board developed the following process. First, the Board provides written notice to the parolee that his parole or mandatory supervision may be conditioned on sex offender registration and treatment. The parolee has thirty days to respond with any written statements or documents to contest imposition of this condition. Upon the parolee’s response (or lack thereof), the Department puts together a packet on the parolee. The packet includes the parolee’s complete parole file, psychological evaluations, polygraph tests, and social, education, employment, and medical histories, etc. Neither the parolee nor any attorney he retains is allowed to see the packet. The

Department sends the packet to a panel of the Board. A representative from the Department offers a short presentation (ten to thirty minutes) of the packet and the parolee’s background to the Board. Neither the parolee nor his attorney is allowed to attend the panel’s hearing or present facts or arguments on behalf of the parolee to the panel. After hearing the Department’s presentation and reviewing the packet, the Board votes on whether the parolee’s parole or mandatory supervision should be conditioned on sex offender registration or therapy. The parolee is then notified of whether sex offender registration or therapy is required. The panel does not produce any written findings or inform the parolee of the facts on which the Board based its decision. The parolee may

not appeal the Board’s decision.

Procedural due process under the Fourteenth Amendment of the United States Constitution is implicated where an individual is deprived of life, liberty, or property, without due process of law. U.S. CONST. amend. XIV, § 1, cl. 3. The Supreme Court has adopted a two-step analysis to examine whether an individual’s procedural due process rights have been violated. The first question “asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted).

The district court held that an individual has a liberty interest such that due process is implicated when there is “any State sex-offender condition imposed on a parolee who has not been convicted of a sex crime.” Meza v. Livingston, 623 F. Supp. 2d 782, 792 (W.D. Tex. 2009). The defendants do not dispute that Meza has a liberty interest

in being free from sex offender registration and therapy, but they maintain that Meza does not have a liberty interest in being free from the other conditions that the Board may attach to his mandatory supervision under Special Condition X. Additionally, the defendants argue that sex offender registration is not at issue in this case because Meza was only required to register as a sex offender from 2002 to 2005; he is no longer required to register as a sex offender.

… we agree with Meza that sex offender registration is a condition at issue in this case. We reach this conclusion for two reasons. First, it is impossible for the defendants to un-ring the bell that was rung when Meza was required to register as a sex offender. The stigma that attached to Meza when he was required to register remains, regardless of whether his name is currently on a sex offender registry. See Coleman II, 409 F.3d at 668 (“The stigma aspect of the case is thus not mooted by the state’s decision to remove

Coleman from its sex offender registry.”). The stigmatizing effects of registering as a sex offender still follow Meza and are reinforced by the Department when it continues to tell Meza’s potential employers that he is a sex offender. Second, sex offender registration is of concern in this case because “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,” even in cases in which injunctive relief is sought. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982); accord Northeastern Fla. Chapter of Assoc. Gen

Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 661–62 (1993); Cooper v. McBeath, 11 F.3d 547, 550–51 (5th Cir. 1994); Resident Council of Allen Parkway Village v. United States Dep’t of Housing & Urban Dev., 980 F.2d 1043, 1048 (5th Cir. 1993). It is clear that the alleged wrongful behavior of the Board—requiring Meza to register as a sex offender without due process of law—could recur to Meza if his mandatory supervision is revoked again. Moreover, at trial, an Administrator for the Board testified that as many as 6,900 current inmates are subject to have sex offender conditions, including sex offender registration, imposed upon them in the future, despite the fact that they have not been convicted of a sex crime.

Having determined that sex offender registration and therapy are at issue in this case, we find it is unnecessary to examine whether Meza has a liberty interest in any of the other sex offender conditions. Meza alleges he has a liberty interest in being required to (1) participate in a sex offender treatment program, (2) be evaluated for sex offender counseling, (3) submit to polygraph examinations, and (4) be labeled as a sex offender. Based on the Department’s Policy and Operating Procedure entitled “Sex Offender Treatment and Polygraph Examination Guidelines” that was submitted into evidence, as well as the Coleman I court’s description of sex offender therapy, see 395 F.3d at 224,

being evaluated for sex offender counseling and submitting to polygraph examinations may be considered part of sex offender treatment. Thus, the conditions complained of by Meza fall into two categories: sex offender registration and sex offender counseling. As these are the only sex offender conditions that Meza asserts he may have a liberty interest in, we find it unnecessary to determine what, if any, liberty interest Meza may have in the

other conditions attached to his mandatory supervision.

This court’s ruling in Coleman I guides our decision of whether Meza has a liberty interest in sex offender registration and therapy. … Based on Coleman I, it is clear that Meza had a liberty interest in being free from being required to register as a sex offender and participate in sex offender therapy. Other circuits have reached this same conclusion. E.g., Gwinn v. Awmiller, 354 F.3d 1211, 1217 (10th Cir. 2004); Kirby v. Siegleman, 195 F.3d 1285, 1291–92 (11th Cir. 1999); Neal v. Shimoda, 131 F.3d 818, 829–30 (9th Cir. 1997).

B. When an individual is convicted of a sex offense, no further process is due

before imposing sex offender conditions. See Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7–8 (2003); Jennings v. Owens, 602 F.3d 652, 2010 WL 1267163 (5th Cir. 2010). The individual “convicted of a sex crime in a prior adversarial setting, whether as the result of a bench trial, jury trial, or plea agreement, has received the minimum protections required by due process.” Neal, 131 F.3d at 831. Meza, however, was not convicted of a sex offense, and he neither stipulated nor judicially admitted that he sexually assaulted his murder victim in 1982. Thus, under our cases, he is owed procedural due process before sex offender conditions may attach. See Coleman I, 395 F.3d at 221.

To determine whether this process meets constitutional muster, we rely on the balancing test in Mathews v. Eldridge, 424 U.S. 319 (1976). The Mathews v. Eldridge balancing test offers three distinct factors for a court to weigh in considering whether the procedural due process provided is adequate:

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

the procedure used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail. Id. at 335 (citation omitted).

The first factor is the private interest affected. “Courts are in agreement that imposing a sex offender registration requirement and treatment affects a substantial right, because it compels a serious deprivation of liberty and creates stigmatizing consequences.” United States v. Jimenez, 275 F. App’x 433, 442 (5th Cir. 2008) (citing Coleman II, 409 F.3d at 668; Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) “We can hardly conceive of a state’s action bearing more ‘stigmatizing consequences’ than the labeling of a prison inmate as a sex offender.” Neal, 131 F.3d at 829 (9th Cir. 1997). Based on cases from this court and other circuits, we are convinced that Meza has a significant interest in being

free from sex offender registration.

The second factor is the risk of erroneous deprivation. Under the current Texas system there is a high risk that the Board will make erroneous findings because the parolee is kept in the dark about the evidence being considered by the Board in reaching its decision. Critically, the parolee has no opportunity to correct errors in the packet provided to the Board.

The third factor that we must weigh in the balancing test is the Government’s interest. Undoubtedly the State has a significant interest in rehabilitating sex offenders prior to their reentry into society, as well as monitoring sex offenders while on parole. See McKune v. Lile, 536 U.S. 24, 32–33 (2002). Also, the State certainly has an interest in keeping the costs of providing notice to individuals like Meza as low as constitutionally permissible.

Taking the Mathews v. Eldridge factors into consideration, we conclude

that the current procedure provided to parolees who have never been convicted

of a sex offense and who face possible sex offender registration and therapy is

constitutionally insufficient. While the State has a significant interest in avoiding additional costs, Meza’s liberty interest in being free from the stigma of registering as a sex offender and avoiding highly invasive sex offender therapy is palpable. When balancing these significant interests with the likelihood of erroneous decision-making, we are convinced that the current procedure is unconstitutional. The grave risk of error that envelops the procedures used by the Board is most troubling.

III. … Because fewer security concerns are at issue and the liberty deprivations are more immediate and certain, the Court generally finds that parolees are owed more process than inmates. See id. at 560; Morrissey, 408 U.S. at 489. … We are persuaded that Meza is owed at least these protections because

under the Mathews v. Eldridge balancing test, these additional procedural protections help create a constitutionally-permissible system. Disclosing to Meza the evidence to be used against him greatly decreases the possibility that the Board will rely on incorrect information inadvertently placed in Meza’s packet. Allowing Meza to be heard in person decreases the possibility that the Board will misinterpret any information provided in the packet. Further, it provides the Board with the opportunity to evaluate Meza’s credibility in resolving any factual disputes and allows an exchange between the Board and Meza such that the Board can consider mitigating information and evaluate Meza as a person. Providing a written statement as to the evidence relied upon by the Board promotes fairness in the process; “the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials

( United States v. Kroft, (5th Cir. July 12, 2013)(12-60609): Pursuant to United States v. Windless, --- F.3d ----, 2013 WL 2627768 (5th Cir. 2013),the district court plainly erred in imposing the substantively unreasonable “no direct or indirect contact” condition four (4. The defendant shall have no direct or indirect contact with any children under the age of 18, unless accompanied and supervised by an adult, who has been approved in advance by the probation officer. The defendant shall immediately report any unauthorized contact with children to the probation officer).

Sex Trafficking of Minor

( United States v. Copeland, __ F.3d __ 5th Cir. May 2, 2016)(15-50208)(Economidy’s case): 18 USC § 1591 is constitutional when it permits satisfaction of knowledge of age based on reasonable ability to observe a child under age 18.

( Sex Trafficking of Minor and Prior & Subsequent Prostitution by Victim.

United States v. Lockhart, __ F.3d ___ (5th Cir. December 23, 2016)(15-50596):

TRE 412 prohibited defendants in sex trafficking of minor charge from introducing

past and subsequent prostitution by victims in case.

( In a “criminal proceeding involving alleged sexual misconduct,” Rule 412 prohibits evidence offered “to prove that a victim engaged in other sexual behavior,” as well as evidence offered “to prove a victim’s sexual predisposition.” Fed. R. Evid. 412(a). Further, Rule 412(a) prohibits a defendant from introducing or eliciting evidence of the victim’s “other sexual behavior,” even if it is offered “as substantive evidence or for impeachment.” Fed. R. Evid. 412 (1994 Advisory Committee Notes). Forced prostitution undoubtedly involves sexual misconduct. Moreover, Appellants offer evidence of the victims’ preand post-indictment acts of prostitution to prove their predisposition and to impeach their credibility. Thus, Rule 412 applies here. One exception to Rule 412, however, allows a defendant to introduce otherwise inadmissible evidence if the “exclusion would violate the defendant’s constitutional rights.” Fed. R. Evid. 412(b)(1)(C). In this case, Appellants allege that the district court’s refusal to admit evidence of the victims’ prior and subsequent prostitution violated their Fifth Amendment right to present a defense and their Sixth Amendment right to confront the witnesses against them.

( The Fifth Amendment’s Due Process Clause guarantees a defendant’s right “to present evidence favorable to himself on an element that must be proven to convict him.” Clark v. Arizona, 548 U.S. 735, 769 (2006) (emphasis added). In this case, the Government must prove, inter alia, that recruited, enticed, harbored, transported, provided, obtained, advertised, maintained, patronized, or solicited each of the victims, while knowing or recklessly disregarding the fact “that means of force, threats of force, fraud, coercion . . . or any combination of such means [would] be used to cause” the victims “to engage in a commercial sex act.” 18 U.S.C. § 1591(a). Section 1591 defines “coercion” as, inter alia, “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person.” Id. § 1591(e)(2)(B). The statute further defines “serious harm” as “any harm . . . that is sufficiently serious . . . to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm.” Id. § 1591(e)(4) (emphasis added). Thus, evidence of the victims’ pre- and postindictment acts of prostitution would be irrelevant to this case as it does not “make . . . more or less probable” the fact that Appellants caused their victims to engage in a commercial sex act during the time period alleged in the indictment. Fed. R. Evid. 401; see United States v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009) (finding evidence of the victims’ prior prostitution “would only prove other people may be guilty of similar offenses of . . . causing the[] victims to engage in a commercial sex act”); United States v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012) (finding that prior prostitution evidence is irrelevant, as “the fact that [the victim had] been a prostitute before does not suggest that [the defendant] didn’t beat and threaten her”). Thus, evidence of the victims’ pre- and post-indictment prostitution is not relevant to prove an element necessary to convict Appellants, see Clark, 548 U.S. at 769, and therefore, the district court did not violate the Fifth Amendment when it excluded such evidence pursuant to Rule 412. See Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not have an unfettered right to offer 8 testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”)

( The Confrontation Clause guarantees a defendant the opportunity for effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 19–20 (1985) (per curiam). That right, however, is not without limitations, and cross examination limited on the basis of a Federal Rule of Evidence “do[es] not abridge an accused’s right to present a defense so long as [the rule is] not ‘arbitrary’ or ‘disproportionate to the purposes [it is] designed to serve.’” United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)); see Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005). The Advisory Committee has noted that, although prior convictions are normally admissible to impeach a witness under Rule 609, Rule 412 trumps that rule to the extent that the witness has previous convictions for prostitution. Fed. R. Evid. 412 (1994 Advisory Committee Notes). A defendant may, however, impeach victim-witnesses with other inculpatory evidence. In the instant case, Appellants questioned the victims about their prior drug use, their possible bias against Appellants, whether they consented to prostitute for Appellants during the timeframe alleged in the indictment, and whether they were coerced into prostitution or motivated by money. Because Appellants were permitted to impeach the victims with this other inculpatory evidence, Rule 412’s application to this case was “not ‘arbitrary’ or ‘disproportionate to the purposes [it is] designed to serve.’” Scheffer, 523 U.S. at 308 (quoting Rock, 483 U.S. at 56). Finally, because the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish,” Fensterer, 474 U.S. at 20, the district court’s refusal to admit evidence of the victims’ prior and subsequent prostitution under Rule 412 did “not abridge [Appellants’] right to present a defense.” Scheffer, 523 U.S. at 308 (quoting Rock, 483 U.S. at 56). Accordingly, the district court did not err in excluding the evidence.

Shackeling Prisoner

( Shackling v. Escort: United States v. Figueroa, (5th Cir. May 30, 2017)(16-41126):

The Supreme Court has held that noticeable use of security personnel in a courtroom during trial is not an inherently prejudicial practice, which, like shackling, is permissible only when justified by an essential state interest. See Holbrook v. Flynn, 475 U.S. 560, 568-72, 106 S. Ct. 1340 (1986). In that case, the Court upheld the district court’s use of four uniformed and armed state troopers and other officers seated in the first row of the spectator section behind the defendant throughout trial as not inherently prejudicial because the officers were “unlikely to be taken as a sign of anything other than a normal official concern for the safety and order of the proceedings.” Id. at 571. In the instant case, the fact that Figueroa was brought into the courtroom followed by two officers, who it appears were neither uniformed nor armed, on a single occasion at the beginning of the proceedings was likewise not inherently prejudicial as the jurors were unlikely to assume anything other than that the officers’ presence was reflective of the normal official concern for the safety and order of the proceedings. See id. at 571-72. Furthermore, Figueroa cannot show any actual prejudice resulting from the procedure given the overwhelming evidence of his guilt. See id. at 572.

( Robinson asserts on appeal that the district court violated his due process rights by having him appear in shackles throughout his jury trial. See Deck v. Missouri, 544 U.S. 622 (2005); United States v. Joseph, 333 F.3d 587, 590-91 (5th Cir. 2003); United States v. Hope, 102 F.3d 114, 117 (5th Cir. 1996). In Deck, the Supreme Court held that “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Id. at 629. The Court explained that visible shackling of a criminal defendant during trial “undermines the presumption of innocence and the related fairness of the fact finding process,” “can interfere with a defendant’s ability to participate in his own defense, say by freely choosing whether to take the witness stand on his own behalf,” and “‘affront[s]’ the ‘dignity and decorum of judicial proceedings that the judge is seeking to uphold.’” Id. at 630-31 (alteration in original) (quoting Illinois v. Allen, 397 U.S. 337, 344 (1970)). Even before Deck was decided by the Supreme Court, this court held that “[s]hackling is an inherently prejudicial practice, permitted only when justified by an essential state interest specific to each trial.” Joseph, 333 F.3d at 590-91; see also Hope, 102 F.3d at 117. Inexplicably, the Government fails to cite Deck, Joseph, or Hope in its brief to this court. 3

3 Attorneys are reminded of their ongoing duty of candor to the court. Misciting cases

and failing to cite controlling precedent while arguing a clearly inapplicable standard are

not consistent with compliance with this duty.

Of course, shackling is not always prohibited. There may be an essential

interest justifying shackling where there is a danger of escape or injury to trial

participants. Joseph, 333 F.3d at 591; Hope, 102 F.3d at 117. But the district court must state the reasons for which it has chosen to shackle the defendant on the record outside of the presence of the jury or exceptional circumstances justifying shackling must be apparent on the record. Joseph, 333 F.3d at 591; Hope, 102 F.3d at 117-18.

The Government contends that the conviction should be affirmed because Robinson has failed to offer any evidence of prejudice, relying on this court’s opinion in United States v. Diecidue, 603 F.2d 535, 549 (5th Cir. 1979). Again, the Government fails to cite the correct cases. Its reliance on Diecidue is incorrect because that case did not involve “situations of unusual restraint such as shackling of defendants during trial.” Id. Where unjustified shackling is imposed by a district court, as in the present case, “the

defendant need not demonstrate actual prejudice to make out a due process violation.” Deck, 544 U.S. at 635. Rather, “[t]he State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.’” Id. (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). The Government makes no attempt to meet its burden in the present case, and we hold that the record does not establish beyond a reasonable doubt that the district court’s error did not contribute to the verdict.

( Jail Clothes. Our faith in the adversary system and in jurors' capacity to adhere to the trial judge's instructions has never been absolute, however. We have recognized that certain practices pose such a threat to the "fairness of the factfinding process" that they must be subjected to "close judicial scrutiny." Estelle v. Williams, 425 U.S. 501, 503-504 (1976). Thus, in Estelle v. Williams, we noted that where a defendant is forced to wear prison clothes when appearing before the jury, "the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment." Id., at 504-505. Since no "essential state policy" is served by compelling a defendant to dress in this manner, id., at 505, this Court went no further and concluded that the practice is unconstitutional. This close scrutiny of inherently prejudicial practices has not always been fatal, however. In Illinois v. Allen, 397 U.S. 337 (1970), the Court emphasized that a defendant may be prejudiced if he appears before the jury bound and gagged. "Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." Id., at 344. Yet the Court nonetheless observed that in certain extreme situations, "binding and gagging might possibly be the fairest and most reasonable way to handle" a particularly obstreperous and disruptive defendant. Ibid.

( From United States v. Banegas, 600 F.3d 342 (5th Cir. March 9, 2010)(08-10915).

Pro se defendant has objected to being shackled in Northern District of Texas.

The threshold question in our inquiry is whether the district court adequately articulated specific reasons for shackling Banegas. If we conclude that it did, we then review the decision to shackle for abuse of discretion. Deck v. Missouri, 544 U.S. 622, 629 (2005) at 629; See also Joseph, 333 F.3d at 590 (decision to restrain “obstreperous” defendant reviewed for abuse of discretion). As the trial court did not state particular reasons for shackling Banegas, the government on appeal must show “beyond a reasonable doubt” that the error of unjustified shackling did not contribute to the jury verdict. Deck, at 635. We first address the initial prong of the government’s contention, viz., that Banegas has not shown that the leg irons were visible. For his part, Banegas acknowledges that it is at least unclear whether the leg irons were visible to the jury. If it were ineluctably clear from the record that Banegas’s leg irons were not visible to the jury, the government’s argument might have some merit. The threshold question here, though, is which party has the burden of proving or disproving this fact and whether that party has borne that burden. Here, the government has the burden of proving whether the leg irons were visible because, under these facts, placing the burden of proof of this question on the defendant would contravene the Supreme Court’s reasoning in Deck. The correct rule is that – when the district court does not adequately articulate individualized reasons for shackling a particular defendant, and there is a question whether the defendant’s leg irons were visible to the jury – the government has the burden of proving beyond a reasonable doubt that the leg irons could not be seen by the jury as part of its general burden to show, beyond a reasonable doubt, that the shackles did not contribute to the jury verdict.

Significant Departures from Advisory Guideline Range.

( After Gall v. United States, 128 S. Ct. 586, 596-97 (2007), this court has affirmed non-guideline sentences that involved significant departures from the advisory guideline range. See, e.g., United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United States v. Mejia-Huerta, 480 F.3d 713, 723-24 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008); United States v. Saldana, 427 F.3d 298, 315-16 (5th Cir. 2005). The district court did not abuse its discretion in determining that a guideline sentence would not properly reflect the § 3553(a) considerations. See Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007); see also United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008).

( The sentence imposed by the court was a “‘non-Guideline sentence’” or

“‘variance’” from the applicable guidelines range. See United States v. Brantley,

537 F.3d 347, 349 (5th Cir. 2008). A district court is not precluded, however, from imposing a departure or variance based on factors that the Guidelines had already taken it into account. See Brantley, 537 F.3d at 350; United States v. Williams, 517 F.3d 801, 810-11 & n.55 (5th Cir. 2008).

( If an appellant does not object to sentenced enhancement in the district court,

review is for plain error, see United States v. Garza-Lopez, 410 F.3d 268, 272

(5th Cir. 2005), under which “standard[] a defendant must establish error that

is plain and affects substantial rights,” United States v. Gonzalez-Ramirez, 477

F.3d 310, 311 (5th Cir. 2007). The court then has discretion to correct the error

if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 311-12.

( following the procedures outlined in § 3582(c)(2). Id. After United States v. Booker,

543 U.S. 220 (2005), which rendered the previously mandatory Sentencing Guidelines

advisory, this court reviews sentences for reasonableness. United States v. Cisneros-

Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). In Gall v. United States, 128 S.Ct. 586

(2007), the Supreme Court bifurcated the process for reviewing a sentence:

(1) appellate courts must ensure that the district court did not commit a significant

procedural error, such as treating the Guidelines as mandatory or failing to properly

calculate the guidelines range; and (2) if the sentence is procedurally sound, the appellate court must then consider the “substantive reasonableness” of the sentence

under an abuse-of-discretion standard. Id. (citing Gall, 128 S. Ct. at 597). This court continues to review a district court’s interpretation or application of the Guidelines de novo and its factual findings for clear error. Id. In United States v. Burns, this court addressed the impact of Kimbrough and the cocaine base guidelines amendments on pre-amendment sentences. United States v. Burns, 526 F.3d 852 (2008). Burns was convicted of one count of conspiracy to possess with intent to distribute cocaine base and two counts of aiding and abetting the distribution of cocaine base. Id. at 855-56. Burns sought a downward departure based on the cocaine base/powder disparity before and at his sentencing hearing, which was held before the opinion issued in Kimbrough and before the guidelines amendment. Id. at 860. On appeal, this court determined that the Supreme Court’s decision in Kimbrough and the cocaine base/powder amendments to the Guidelines made relevant the district court’s specific statements about its discretion at sentencing. Id. This court concluded, “[W]e cannot tell from the record whether, if the judge had known that he could consider the policy disagreement as an additional factor in the ‘array of factors warranting consideration’ in his analysis under 8 U.S.C. § 3553(a), it would have affected the ultimate sentence imposed on Burns.” Id. at 861-62. Therefore, this court vacated and remanded for the district court to “analyze the Section 3553(a)

factors in light of Kimbrough.” Id. at 862. In three unpublished cases, this court

has similarly remanded for resentencing in light of Kimbrough. See United

States v. Jones, 283 Fed. Appx. 254 (5th Cir. 2008) (unpublished); United States

v. Howard, 280 Fed. Appx. 440 (5th Cir. 2008) (unpublished); United States v.

Ramirez, No. 06-31118 (5th Cir. May 27, 2008) (unpublished).

( Guidelines is reviewed de novo, and its factual findings . . . are reviewed for clear

error.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)

(quoting United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (per

curiam)). “There is no clear error if the district court’s finding is plausible in

light of the record as a whole.” Id. (quoting Juarez-Duarte, 513 F.3d at 208).

( When a party properly objects, we review the district court’s sentence enhancement

de novo. United States v. Ocana, 204 F. 3d 585, 588-89 (5th Cir. 2000). Under this

standard, we will vacate a sentence if the district court incorrectly applied the

sentencing guidelines. 18 U.S.C. § 3742(e)(2).

( We review the interpretation of a sentence enhancement provision de

novo. United States v. Montgomery, 402 F.3d 482, 485 (5th Cir. 2005).

Simmons Cases Avoiding Self-Incrimination to Establish Standing to Content

U.S. v. Dohm, 618 F.2d 1169 (5th Cir. 1980) en banc   Holds that Simmons doesn't apply to a defendant's testimony at a bail hearing but warnings required

Social Security Attorney Fees

( Attorney fees recoverable at both administrative and court stages.

42 U.S.C. § 406(a) and Jackson v. Astrue, __ F.3d __ (5th Cir. Jan. 25, 2013)(12-10255).

Social Security Numbers as False Official Statement.

( United States v. Grant, __ F.3d ___ (5th Cir. March 1, 2017)(15-10962)

(Bankruptcy fraud case where D failed to reveal all her social security #s).

SORNA—Sex Offender Registration & Notification Act

( SORNA does not apply to sex offender whose interstate travel occurred before the statute’s effective date, as plain language of SORNA and legislative history shows statute does not apply to conduct that predates its enactment. Carr v. United States,

560 U.S. __ (2010).

( United States v. Arnold, 740 F.3d 1031 (5th Cir. 2014): SORNA registration requirements do not violate First Amendment.

( See latest case under SORNA, United States v. Johnson, 585 F.3d 199, 206 (5th Cir. 2009)

( Reynolds v. United States, __ U.S. ___, 132 S. Ct. 975, 984 (2012): The Act’s registration requirements do not apply to pre-Act offenders united the Attorney General so specifies.

( United States v. Hoang, __ F.3d __ (5th Cir. Feb. 23, 2011)(09-30484)(Op by Jolly):

Hoang was convicted of a sex offense and registered as a sex offender under state law prior to the enactment of SORNA, which requires a sex offender to register in each jurisdiction where he resides and to keep his registration current. Section 2250 of Title 18 prohibits sex offenders who are required to register under SORNA from traveling in interstate commerce and knowingly failing to register. Hoang’s interstate travel took place after SORNA’s enactment but before the Attorney General issued an Interim Rule declaring SORNA applicable to all sex offenders whose underlying sex-offense convictions predate SORNA’s enactment. There is a split of authority among the courts of appeals as to whether SORNA’s registration requirements became effective to already-registered, pre-SORNA sex offenders (1) on the date SORNA was enacted, or (2) when the Attorney General issued the Interim Rule declaring SORNA retroactive. We hold that Hoang did not become subject to SORNA’s registration requirements until the Attorney General issued the Interim Rule.

( In Carr v. United States, 130 S.Ct. 2229 (2010), the Supreme Court held

that SORNA does not apply to persons with pre-SORNA sex-offense convictions

whose interstate travel occurred prior to the enactment of SORNA. However,

the Court explicitly declined to rule upon whether a sex offender whose interstate travel occurred in the gap between SORNA’s enactment and the Attorney General’s promulgation of the Interim Rule falls within the ambit of SORNA’s criminal prohibition on failure to register. See id. at 2234 n.2. The courts of appeals have divided on this question, and this panel is the first to consider it since Carr was decided.

( Constitutionality vice ex post facto upheld. United States v. Young, 585 F.3d 199 (5th Cir. 2009)(08-51047).

( United States v. Whaley, 577 F.3d 254 (5th Cir. 2009):

( Whaley puts forth several constitutional challenges to his conviction. We review these challenges de novo. See United State v. Luna, 165 F.3d 316, 319 (5th Cir. 1999).

( We first consider Whaley’s argument that the registration, 42 U.S.C. §

16913, and penalty, 18 U.S.C. § 2250, provisions of SORNA exceed Congress’s

authority under the Commerce Clause. The Commerce Clause of the U.S. Constitution gives Congress the power “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” U.S. Const. art. I, § 8. The Supreme Court has identified three general categories of activity that Congress may regulate under the Commerce Clause: First, Congress may regulate the use of the channels of interstate

commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority

includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 548, 558–59 (1995) (citations omitted); see also Gonzales v. Raich, 545 U.S. 1, 16–17 (2005); United States v. Morrison, 529 U.S. 598, 608–09 (2000). Whaley asserts that the penalty provision can only be justified under the

third Lopez prong as it does not regulate the channels of interstate commerce nor concern the regulation of persons or things in interstate commerce. We disagree. Because § 2250 applies only to those failing to register or update a registration after traveling in interstate commerce—in this case, Whaley traveled from Kansas to Texas—it falls squarely under the first Lopez prong. See United States v. Kung-Shou Ho, 311 F.3d 589, 597 (5th Cir. 2002), cert. denied, 539 U.S. 914 (2003) (“[The first Lopez] category includes the regulation of highways, railroads, air routes, navigable rivers, and telecommunications networks. The category also reaches the misuse of the channels of interstate commerce.” (citations and quotation omitted)). As we have previously observed, “[i]t has long been held that Congress may forbid or punish the use of channels of interstate commerce ‘to promote immorality, dishonesty, or the spread of any

evil or harm to the people of other states from the state of origin.’” United States v. Lankford, 196 F.3d 563, 571 (5th Cir. 1999) (quoting Brooks v. United States, 267 U.S. 432, 436 (1925)) … Through § 2250, Congress has forbidden sex offenders from using the channels of interstate commerce to evade their registration requirements, and we have no doubt that it was within its power under the Commerce Clause to do so.

N. 3” Our decision is consistent with other circuits to have considered the issue. SeeUnited States v. Gould, 568 F.3d 459, 470–72 (4th Cir. 2009) (concluding that § 2250 is valid under the first two Lopez prongs); United States v. Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009) (“Section 2250 is a proper regulation falling under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce.”); United States v. Hinckley, 550 F.3d 926, 940 (10th Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009) (“Clearly, [the defendant’s] travel across state lines to and from Oklahoma falls under the first or second of the Lopez prongs. Whether such an activity has a substantial effect on interstate commerce is irrelevant, since the first and second prongs of Lopez confirm Congress’s authority to regulate this type of activity.”); United States v. May, 535 F.3d 912, 921 (8th Cir. 2008), cert. denied, 129 S. Ct. 2431 (2009) (“[Section 2250] thus derives its authority from each prong of Lopez--and most specifically, the ability to regulate

‘persons or things in interstate commerce’ and ‘the use of the channels of interstate commerce.’”

); see also United States v. Dixon, 551 F.3d 578, 583 (7th Cir. 2008), petition for cert. filed, 77 U.S.L.W. 3610 (U.S. Apr. 22, 2009) (No. 08-1301), (rejecting defendant’s Commerce Clause argument).

( Whaley similarly asserts that § 16913 can only be justified under the third Lopez prong—and indeed, § 16913 plainly applies to sex offenders not in interstate commerce. In making this argument, however, Whaley treats § 16913 as if it were a stand alone statute. We think that it must instead be analyzed in connection with § 2250. Both provisions were enacted as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, and are clearly complementary: without § 2250, § 16913 lacks federal criminal enforcement, and without § 16913, § 2250 has no substance. Section 2250 is plainly aimed at ensuring that sex offenders register and update previous registrations when moving among jurisdictions. See, e.g., United States

v. Dixon, 551 F.3d 578, 582 (7th Cir. 2008), petition for cert. filed, 77 U.S.L.W. 3610 (U.S. Apr 22, 2009) (No. 08-1301) (“[T]he statutory aim is to prevent a convicted sex offender from circumventing registration by leaving the state in which he is registered . . . .”).

( Moreover, SORNA’s focus on the problem of sex offenders escaping their registration requirements through interstate travel—rather than on requiring sex offender registration generally—is indicated by the fact that although “[b]y the time that SORNA was enacted in 2006, every State and the District of Columbia had enacted a sex offender registration law,” United States v. Gould, 568 F.3d 459, 464 (4th Cir. 2009), Congress stated that SORNA’s purpose is “to protect the public from sex offenders and offenders against children” by “establish[ing] a comprehensive national system for the registration of those

offenders,” 42 U.S.C. § 16901 (emphasis added), i.e., one which cannot be eluded by moving around the country. And perhaps most significantly, neither § 16913 nor any other provision of SORNA creates any federal penalty for failing to register while remaining within a state: a sex offender who does not travel in interstate commerce may ignore SORNA’s registration requirements without fear of federal criminal consequences. See Howell, 552 F.3d at 716 (“[T]he statutory scheme Congress created to enforce § 16913 demonstrates Congress was focused on the interstate movement of sex offenders, not the intrastate activity of sex offenders.”).

( See also Gould, 568 F.3d at 472–74 (collecting legislative history showing that 2

Congress created the SORNA registration system “to prevent sex offenders from traveling

among the States to avoid state registration”).

(Subsequent Case: United States v. Letourneau, 2009 WL 2391526 (5th Cir. August 4,.2009)(08-40919).

( Government’s motion for rehearing denied. ___ F.3d ___ (March 25, 2011):

In denying this petition, we should observe that shortly before our opinion

in this case issued , another panel decided United States v. Johnson, 632 F.3d 912,

2011 WL 338802 (5th Cir. Feb. 4, 2011). Because the cases were decided virtually simultaneously, our opinion failed to note Johnson, in which the panel addressed whether the Sex Offender Registration and Notification Act (“SORNA”) applied to pre-enactment sex offender s at the time of enactment, or whether the statute delegated to the Attorney General the decision to apply SORNA to pre-enactment offender s . The panel held that “SORNA delegated authority to the Attorney General to determine the applicability of SORNA to pre-enactment offenders.” Id . at *6. Although our opinion failed to cite Johnson, our reasoning and holding in this case are not inconsistent with it.

To be sure, we reached an alternative holding—that is , that to whatever extent SORNA may be characte ized as ambiguous , the rule of lenity precludes us from

applying it to Hoang—b u t this alternative h old in g yield s no in consistency

between our opinion and Johnson. Furthermore, although Johnson additionally held that the Attorney General did not have good cause for failing to comply with the Administrative Procedures Act in promulgating the Interim Rule that declared SORNA retroactive, our panel was not presented with that issue. The fact that we said Hoang, a pre-enactment sex offender, “did not become subject to SORNA’s Regis tration requirements until the Attorney General is sued the Interim Rule,” should not be construed otherwise. Finally, although our opinion did not refer to three additional recently-decided cases from other circuits—one consistent with our holding and

two conflicting— nothing in those cases alters the reasoning applied or the outcom e reached in this appeal. DENIED.

( United States v. Johnson, 632 F.3d 912 (5th Cir. 2011). Tenth Amendment does not forbid conditioning federal funding on a state’s implementation of a federal program, which is what SORNA does; the sex offender registered bargained for is a valid exercise of Congress’ spending power. Disagreeing with other circuits (2d, 3d, 8th, & 10th), 5th Circuit held that that Congress delegated to the AG the decision whether to appy SORNA to pre-enactment offenders and that SORNA did not apply to offenders with pre-enactment convictions until the AG issued its interim rule.

( ------------------------------------------------------------------------------------

United States v. Reynolds,

REYNOLDS v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 10–6549. Argued October 3, 2011—Decided January 23, 2012

The federal Sex Offender Registration and Notification Act (Act) requires convicted sex offenders to provide state governments with, and

to update, information, e.g., names and current addresses, for state

and federal sex offender registries. It is a crime if a person who is

“required to register under [the Act]” and who “travels in interstate

“.commerce” knowingly “fails to register or update a registration . . .

18 U. S. C. §2250(a). The Act defines “sex offender” to include offenders who were convicted before the Act’s effective date, 42 U. S. C.

§16911(1), and says that “the Attorney General shall have the authority to specify the applicability of the [registration] requirements”

to pre-Act offenders, §16913(d). The Act, which seeks to make more

uniform and effective a patchwork of pre-Act federal and 50 state registration systems, became law in July 2006. In February 2007, the

Attorney General promulgated an Interim Rule specifying that the

Act applies to all pre-Act offenders. He has since promulgated further rules, regulations, and specifications.

Petitioner Reynolds, a pre-Act offender, registered in Missouri in

2005 but moved to Pennsylvania in September 2007 without updating the Missouri registration or registering in Pennsylvania. He was

indicted for failing to meet the Act’s registration requirements between September 16 and October 16, 2007. He moved to dismiss the

indictment on the ground that the Act was not applicable to pre-Act

offenders during that time, arguing that the Attorney General’s February 2007 Interim Rule was invalid because it violated the Constitution’s “nondelegation” doctrine and the Administrative Procedure

Act’s notice and comment requirements. The District Court rejected

on the merits of Reynolds’ legal attack on the Interim Rule, but the

Third Circuit rejected his argument without reaching the merits, concluding that the Act’s registration requirements applied to pre-Act

offenders even in the absence of a rule by the Attorney General.

Thus, it found, the Interim Rule’s validity made no legal difference in

the outcome.

Held: The Act does not require pre-Act offenders to register before the

Attorney General validly specifies that the Act’s registration provisions apply to them. Pp. 6–13.

(a) This conclusion is supported by a natural reading of the Act’s

text, which consists of four statements. Statement One says that “[a]

sex offender shall register, and keep the registration current.”

Statement Two says that, generally, the offender must initially register before completing his “sentence of imprisonment.” Statement

Three says that the sex offender must update a registration within

three business days of any change of “name, residence, employment,

or student status.” Statement Four says that “[t]he Attorney General

shall have the authority to specify the applicability of the requirements . . . to sex offenders convicted before the enactment of” the Act.

§16913. Read naturally, the Fourth Statement modifies the First. It

deals specifically with a subset (pre-Act offenders) of the First Statement’s broad general class (all sex offenders) and thus should control

the Act’s application to that subset. See Gozlon-Peretz v. United

States, 498 U. S. 395, 407. Also, by giving the Attorney General authority to specify the Act’s “applicability,” not its “nonapplicability,”

the Fourth Statement is more naturally read to confer authority to

apply the Act, not authority to make exceptions. This reading efficiently resolves what may have been Congress’ concern about the

practical problems of applying the new registration requirements to a

large number of pre-Act offenders, which could have been expensive

and might not have proved feasible to do immediately. It might have

thought that such concerns warranted different treatment for different categories of pre-Act offenders. And it could have concluded that

it was efficient and desirable to ask the Justice Department, charged

with responsibility for implementation, to examine pre-Act offender

problems and to apply the new requirements accordingly. This reading also takes Congress to have filled potential lacunae (created by

related Act provisions) in a manner consistent with basic criminal

law principles. The Second Statement, e.g., requires a sex offender to

register before completing his prison term, but says nothing about

when a pre-Act offender who has left prison is to register. An Attorney General ruling could diminish such uncertainties, helping to

eliminate the kind of vagueness and uncertainty that criminal law

must seek to avoid. Pp. 6–9.

( Interim AG Order. For best review and tnorough analysis of validity of interim order and for its application to armed forces, see United States v. Newton, 74 M.H. 69 (2015).

( Upheld. United States v. Torres, __ F.3d ___ (5th Cir. Sept. 8, 2014)(09-50204). Narrowly drawn decision on facts. SORNA requires sex offenders to register with state-run sex-offender registries and to keep their registrations current. However, persons who were convicted of sex offenses before SORNA’s enactment on July 27, 2006 (“pre-enactment sex offenders”) are only required to comply with the statute’s registration requirements if and when the Attorney General so specifies in a “valid” regulation. See Reynolds v. United States, 132 S. Ct. 975, 979, 984 (2012) (construing 42 U.S.C. § 16913(a), (d)). The single question in this case is whether the Attorney General’s “interim rule” of February 28, 2007, which required pre-enactment

sex offenders to comply with SORNA, was such a “valid” promulgation. For

the reasons that follow, the answer, which is controlled in this circuit by United

States v. Johnson, 632 F.3d 912 (5th Cir. 2011), is yes, at least with respect to

the defendant here, Francisco Torres. We therefore affirm his conviction.

( Noting split circuits: The circuit courts are divided on whether the interim rule of February 28, 2007 is valid. Compare United States v. Reynolds, 710 F.3d 498, 524 (3d Cir. 2013) (invalid), United States v. Cain, 583 F.3d 408, 419-20 (6th Cir. 2009)

(same), and United States v. Valverde, 628 F.3d 1159, 1166-69 (9th Cir. 2010)

(same), with United States v. Gould, 568 F.3d 459, 470 (4th Cir. 2009) (valid),

and United States v. Dean, 604 F.3d 1275, 1282 (11th Cir. 2010) (same).

( Argument that Texas had not adopted SORNA. From United States v. Heth, 596 F.3d 255 (5th Cir. Feb. 4, 2010)(09-50119): We also reject Knezek’s contention that, because SORNA has not been implemented by any state, his conviction violates due process. See United States v. Heth, 596 F.3d 255, 258-60 & n.3 (5th Cir. 2010).

( SORNA imposes a registration requirement on sex offenders, 42 U.S.C. § 16913, and a criminal penalty for failure to comply with the registration. requirement, 18 U.S.C. § 2250(a). Specifically, a sex offender is required to “register, and keep the registration current, in each jurisdiction where the offender resides, . . . is an employee, [or] is a student.” 42 U.S.C. § 16913(a). To maintain the currentness of registration, sex offenders must update their registration within three business days of a “change of name, residence,

employment, or student status.” Id. § 16913(c). A sex offender who does not comply with SORNA’s obligations faces criminal punishment: “Whoever . . . is required to register under the . . . Act; . . . travels in interstate or foreign commerce . . . ; and . . . knowingly fails to register or update a registration as required by the . . . Act; shall be fined under this title or imprisoned not more than 10 years, or both.” 18 U.S.C. § 2250(a). These requirements apply to sex offenders whose sex offense convictions predate SORNA’s enactment. 42 U.S.C. § 16913(d) (delegating to the Attorney General the authority to specify SORNA’s applicability to sex offenders convicted before SORNA’s enactment on July 27, 2006); 28 C.F.R. § 72.3 (“The requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.”). SORNA imposes a separate and distinct requirement on the states to implement SORNA-compliant sex offender

registries within a specified time after the Act’s enactment, 42 U.S.C. § 16924, or suffer the loss of a portion of their federal funding, id. § 16925(a). Heth contends that it was impossible for him to register under SORNA while in El Paso, Texas, because Colorado and Texas had not implemented the Act; he argues that his resulting conviction deprived him of his rights under the Due Process Clause. We disagree. Unlike SORNA’s imposition of administrative requirements on states, which includes a delayed effective start date, SORNA’s obligations on individual sex offenders—the registration requirements and corresponding criminal penalty—did not specify a delayed effective date, see 42 U.S.C. § 16924(a), and they therefore took effect on the date of enactment, July 27, 2006. Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894–01, 8895 (Feb. 28, 2007) (“In contrast to SORNA’s provision of a three-year grace period for jurisdictions to implement its requirements, SORNA’s direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration.”); see also Gozlon–Peretz v. United States, 498 U.S. 395, 404 (1991) (“It is well established that, absent a clear direction by Congress to the contrary,

a law takes effect on the date of its enactment.”). As other courts addressing this issue have noted, nothing in SORNA’s statutory scheme indicates that an individual’s registration obligations are contingent upon a state’s implementation of SORNA’s administrative requirements. See United States v. Hester, 589 F.3d 86, 93 (2d Cir. 2009).

( Inmate would be allowed to challenge constitutionality of Sex Offender Registration and Notification Act. Pearson v. Holder, 624 F.3d 682 (5th Cir. 2010).

( Definition of “Residence.” United States v. Wampler, __ F.3d __ (5th Cir. Jan. 3, 2013)(11-51028): Wampler objected to the definition in the charge because the statute defines “residence” differently. The district court explained that the Fifth Circuit Pattern Jury Instructions have no standardized SORNA instruction. Therefore, the district court formulated an instruction based on its review of instructions from other jurisdictions. Relevant here, the district court’s instruction included the following definition:

(detailed in opinion) “Resides” means the location of an individual’s home or other place

where that individual habitually lives, even if the person has no home or fixed address in that state or no home anywhere. Places where a person “habitually lives” include places in which that person lives with some regularity, not just the place that the person

calls his home address or place of residence. A person may reside in more than one place and must include in his registration each place where he resides. Wampler’s attorney objected to this definition. He argued that the district court should instruct the jury using SORNA’s more limited definition of the term “resides.” The government responded that the district court’s instruction “add[ed] a little bit of gloss” to the definition in SORNA but argued that it was “absolutely appropriate in this case.” The district court overruled Wampler’s objection and used the definition set out above.

Generally, we review preserved error in a district court’s instruction for abuse of discretion, affording substantial latitude to the court in describing the law to the jury. United States v. Williams, 610 F.3d 271, 285 (5th Cir. 2010)(citing United States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009)). Under this standard, we consider “whether the court’s charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them.” United States v. Brooks, 681 F.3d 678, 697 (5th Cir. 2012) (quoting United States v. Kay, 513 F.3d 432, 446 (5th Cir. 2007)). But we review de novo an instruction that hinges on a question of statutory construction. United States v. Wright, 634 F.3d 770, 774 (5th Cir. 2011) (citing United States v. Guevara, 408 F.3d 252, 257 (5th Cir. 2005).

B. Congress enacted SORNA to establish a “comprehensive national system

for the registration of [sex] offenders.” 42 U.S.C. § 16901. To that end, SORNA requires sex offenders to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” § 16913(a). For the purposes of this registration requirement, “[t]he term ‘resides’ means, with respect to an individual, the location of the individual’s home or other place where the individual habitually lives.” § 16911(13). If a sex offender changes his residence—or his name, employment, or student status—he must within three business days after the change “appear in person in at least 1 jurisdiction involved . . . and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.” § 16913(c). SORNA’s registration obligations are criminally enforceable: A sex offender who “travels in interstate or foreign commerce” and then “knowingly fails to register or

update a registration as required by [SORNA] shall be fined . . . or imprisoned

not more than 10 years, or both.” 18 U.S.C. § 2250(a); see Carr v. United States,

130 S. Ct. 2229, 2236 (2010) (“Once a person becomes subject to SORNA’s

registration requirements . . . that person can be convicted under § 2250 if he

thereafter travels and then fails to register.”).

Congress specified that “[t]he Attorney General shall issue guidelines and

regulations to interpret and implement [SORNA].” 42 U.S.C. § 16912(b). Pursuant to this directive, the Department of Justice published comprehensive SORNA guidelines. See The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030 (July 2, 2008) (“the Guidelines”). Regarding SORNA’s definition of “resides,” the Guidelines explain that “a sex offender must register: [1] In any jurisdiction in which he has his home; and [2] In any jurisdiction in which he habitually lives (even if he has no home or fixed address in the jurisdiction, or no home anywhere).” 73 Fed. Reg. at 38,061. The Attorney General recognized that “[t]he scope of ‘habitually lives’ in this context is not self-explanatory and requires further definition”; therefore, the Guidelines expound upon the proper interpretation of the term: (detailed in opinion).

As an initial matter, we disagree with Wampler’s contention that the district court erred by including a definition of “resides” in its instruction. We recognize that the Eighth Circuit held that a jury instruction omitting a definition of “resides” was not plain error. United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). Moreover, Wampler is correct that a district court “need not define specific statutory terms unless they are outside the common understanding of a juror or are so technical or specific as to require a definition.” United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988). But at least three considerations support the district court’s decision to include a definition of “resides” in its instructions. First, the text and structure of SORNA suggest that a court should include in its jury instructions at least the statutory definition of the term. … Second, the Guidelines recognize that “[t]he notion of ‘residence’ requires definition” for the purposes of SORNA. 73 Fed. Reg. at 38,061. Finally, in this particular case, including a definition of “resides” clarified the law as it relates to the factual issues that confronted the jury. See Brooks, 681 F.3d at 697–98. The charges

against Wampler focused on where he “resided,” and it was appropriate for the district court to provide the jury with some direction regarding the meaning of the term in this context.

( Categorical Approach. Fifth Circuit rejects categorical approach and instead applies a circumstance specific approach when the law of the state permits an exception to sex crime based on close age of the sex partners who are teens. United States v. Gonzalez-Medina, 757 F.3d 425, 428-32 (5th Cir. 2014), Accord: United States v. Kleinfelter (5th Cir. Oct. 24, 2014)(N0. 14-40345). SORNA has a statutory exception on age defenses in state statutes. 42 U.S.C. § 16911(5)(C).

( See also Necessary and Proper Clause

( Applying SORNA Registration for a Non-Specific Federal Sex Crime (Masturbation). United States v. Scholfield, ___ F.3d ___ (5th Cir. October 8, 2015)(14-11293). Schofield admitted to sending eight pictures of his penis, three videos of himself masturbating, and messages describing himself masturbating and instructing the girl how to masturbate. Schofield also admitted to soliciting and receiving nude images of the girl. On May 14, 2014, a grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470. Prior to and at sentencing, Schofield objected to the district court’s requirement that he register as a sex offender under SORNA, arguing that the crime of attempted transfer of obscene material to a minor was not a sex offense within the meaning of SORNA and therefore did not require registration. Schofield contended that, because his offense is neither an enumerated federal offense nor a “specified offense against a minor” under 42 U.S.C. § 16911(5)(A), it is not a sex offense and therefore he is not required to register as a sex offender under SORNA. Schofield also argued that SORNA’s definition of “sex offense” under 42 U.S.C. § 16911(5)(A) and (7)(I) is unconstitutionally vague. The district court overruled Schofield’s objections and required him to register under SORNA upon release from prison. While Schofield waived the right to appeal his conviction as part of his plea agreement, he reserved the right to appeal the requirement to register as a sex offender. Schofield exercised that right and timely appealed. AFFIRMED.

( Standard of Review. Because Schofield preserved the issues he now raises in this court and because he only challenges the district court’s legal conclusions (not its factual findings), we review whether he is required to register under SORNA de novo. United States v. Gonzalez-Medina, 757 F.3d 425, 427 (5th Cir. 2014), cert. denied, 135 S. Ct. 1529 (2015); United States v. Morgan, 311 F.3d 611, 613 (5th Cir. 2002) (“We review the district court's legal conclusions, however, de novo.”).

( Discussion. Our analysis of whether Schofield’s attempted transfer of obscene material to a minor constitutes a sex offense proceeds in three parts. First, we consider whether a violation of 18 U.S.C. § 1470 can qualify as a sex offense under SORNA when it is not listed among the federal offenses SORNA defines as sex offenses. Because we conclude that it can qualify as a sex offense, we next consider whether Schofield’s offense is a “specified offense against a minor” under the SORNA residual clause. (Under United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (en banc), “[n]othing in the plain language of 42 U.S.C. § 16911(5)(A)(iii), when read together with the rest of the statute, prohibits an unenumerated federal offense such as 18 U.S.C. § 1470 from qualifying as a ‘specified offense against a minor’ [under subsection (ii)].”2 Id. at 1353. We agree.) Finally, we address whether the SORNA residual clause is ambiguous or unconstitutionally vague. We conclude that because the attempted transfer of obscene material to a minor is a “specified offense against a minor” and because SORNA is neither ambiguous nor vague, Schofield’s offense is a sex offense, requiring SORNA registration.

Special Assessment

( United States v. Pineda, 594 F.3d 892 (5th Cir. Jan. 22, 2010)(08-41301):

“The obligation to pay an assessment ceases five years after the date of the judgment.”

18 U.S.C. § 3013(c). Thus, where defendant was convicted and deported but did not pay

his special assessment, a U.S. District Court cannot re-impose the special assessment when defendant is illegally caught in the U.S. and convicted on a new charge.

( Accord: United States v. Dominguez-Garcia, (5th Cir. April 12, 2017)(16-40964):

Although a special assessment is a mandatory component of a sentence, see 18 U.S.C. § 3013(a)(2)(A), the obligation to pay it “ceases five years after the date of the judgment,” § 3013(c). More than five years elapsed between the initial imposition of the special assessment and the revocation of probation. Because neither § 3013 nor 18 U.S.C. § 3565 sanctions the imposition of a special assessment for revocation of a term of probation, the court lacked authority to impose or reimpose a special assessment. See United States v. Carlos Pineda, 594 F.3d 892, 893 (5th Cir. 2010).

Speedy Trial

( Betterman v. Montana, cert granted to determine if speedy trial includes sentencing.

 Betterman too has some “plain language”: the Sixth Amendment says “speedy and public trial,” and Betterman says that the Court has ruled previously that the right to a “public” trial includes sentencing (In Re Oliver, 1948). Surely that is the dominant view today. But the state and federal government argue that this is an over-reading of Oliver; and that in any case the functions of the two concepts (public versus speedy) are different and should be construed differently for constitutional purposes, just as the jury trial right in the Sixth Amendment has been construed differently for trials versus sentencings.

Further (and undoubtedly oversimplifying), Betterman argues that many of the purposes served by the speedy trial right apply to sentencings as well, and he argues that “the criminal system known to the Framers” involved “fixed penalties” for conviction, so that sentencings were always speedy. (On this last point, however, I invoke the author’s privilege: as I have previously written, the penalties that the Framers actually wrote for federal crimes they enacted in 1790 while the Sixth Amendment was pending were, in fact, not fixed but rather indeterminate, requiring further judicial consideration.) The state counters that some purposes served by a speedy trial are very different than those served by sentencing. And both the state and the federal government provide detailed historical arguments counterposed to Betterman’s.

( United States v. Tinklenberg, 564 U.S. __ (U.S. May 26, 2011)(09-1498).

Speed trial acct, 18 U.S.C. § 3161(c)(1). Filing motion stops the clock even if the motion has no impact on when trial starts.

( To preserve error under the Speedy Trial Act, a defendant must move for dismissal of the indictment prior to trial and object to the Speedy Trial violation prior to verdict.

Failure to do constitutes a waiver of the claim. See United States v. Hernandez, 457 F.3d 416, 420 (5th Cir. 2006).

( A defendant may also assert a speedy trial claim under the Sixth Amendment under the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1970). In the absence of “extreme prejudice or a showing of willfulness by the prosecution to delay the trial in order to hamper the defense, . . . a delay of less than one year is not sufficient to trigger an examination of the Barker factors.” Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir.

1994).

( United States v. Harris, 566 F. 3d 422 (5th Cir. 2009)(April 21)(08-40137): Harris contends that the district court erred in denying his motion to dismiss the indictment under the Speedy Trial Act. “We review the factual findings supporting a Speedy Trial Act ruling for clear error and the legal conclusions de novo.” United States v. Parker, 505 F.3d 323, 326 (5th Cir. 2007) (internal quotation omitted). “The Speedy Trial Act, which is designed to protect a criminal defendant’s constitutional right to a speedy trial and to serve the public interest in bringing prompt criminal proceedings, requires that a defendant’s trial commence within seventy days from his indictment or initial appearance, whichever is later.” United States v. Stephens, 489 F.3d 647, 652

(5th Cir. 2007); see also 18 U.S.C. § 3161(c)(1).

In this case, over three years passed between Harris’s first appearance in court with counsel in November 2003 and the commencement of his trial in April 2007. Harris concedes that this time period contains several periods of delay that are excludable from speedy trial calculations under § 3161(h). Nevertheless, he claims that, because more than seventy non-excludable days elapsed from his initial appearance until his trial, the Speedy Trial Act was violated.

First, the parties disagree as to the appropriate starting point for the speedy trial clock. The government argues that the statutory exclusion for “[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted” tolls the seventy-day period until January 9, 2004—the date of the arraignment on the first superseding indictment joining Kubin as a co-defendant. 18 U.S.C. § 3161(h)(6). Indeed, under this exclusion, “the speedy trial clock does not begin to run in a multi-defendant prosecution until the last codefendant makes his initial appearance in court.” United States v. Franklin, 148 F.3d 451, 455 (5th Cir. 1998). According to Harris, however, the speedy trial clock began ticking as early as November 20, 2003—the day he first appeared in court with counsel.

* * *

“The fundamental fear we identified in United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994), was the government’s ‘circumventing the speedy trial guarantee through the simple expedient of obtaining superseding indictments with minor corrections.’” Parker, 505 F.3d at 327 (quoting Bermea, 30 F.3d at 1567). This court has recognized that the

“case presents a different profile” when the government seeks to “widen the scope of the criminal investigation so as to try [other] conspirators” and is not “merely correcting the indictment.” Id. In that case, “[t]here is no abuse of the superseding indictment system;” the starting point for the speedy trial clock is thus reset to the date of the arraignment on the superceding indictment. Id. In the instant case, the first superceding indictment added conspiracy charges against Harris and charged a new party, Kubin, with conspiracy and possession with intent to distribute cocaine base. As in Parker, the scope of the investigation was changed to try other conspirators, and we therefore see no risk of circumvention of the speedy trial guarantee. Accordingly, the speedy trial clock did not begin to run until Harris’s arraignment on the first superseding indictment on January 9, 2004.

We follow the approach set forth in United States v. Long, 900 F.2d 1270, 1275 (8th Cir. 1990) and United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991), and recently adopted by the Second Circuit in United States v. Oberoi, 547 F.3d 436, 453 (2d Cir. 2008). Once a report and recommendation is issued, the speedy trial clock is tolled under § 3161(h)(1)(D) for a period of ten days or until objections are filed, whichever is earlier. At that point, the motion is deemed “under advisement” for another thirty-day period of excludable delay under § 3161(h)(1)(H). This framework is consistent with the purpose of the Speedy Trial Act because it subjects both the magistrate judge and the district court to specific time periods within which to rule. Yet, by providing a full thirty days for the district court to issue its ruling after all materials are filed, it also affords sufficient time for a de novo review of the issues to which a party objects, as required under 28 U.S.C. § 636(b)(1).

( From United States v. Clark, 577 F.3d 273 (5th Cir. 2009):

We “review a district court’s decision to dismiss an indictment without prejudice for noncompliance with the Speedy Trial Act for an abuse of discretion.” United States v. Blevins, 142 F.3d 223, 225 (5th Cir. 1998) (citing United States v. Taylor, 487 U.S. 326, 342-43 (1988)). “[W]hen the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court’s judgment of how opposing considerations balance should not lightly be disturbed.” Taylor, 487 U.S. at 337; United States v. Cobb, 975 F.2d 152, 157 (5th Cir. 1992). “The defendant has the burden of proving that dismissal of his case pursuant to [a balancing of the statutory factors] is

appropriate.” Blevins, 142 F.2d at 225.

( From United States v. Molina-Solario, 577 F.3d 300, 303 (5th Cir. 2009)(577 F.3d 273):

( In evaluating the district court’s conclusion that there was no violation of

Molina-Solorio’s constitutional right to a speedy trial, we review findings of fact for clear error. United States v. Frye, 372 F.3d 729, 735 (5th Cir. 2004). Surprisingly, still unsettled in this circuit is the proper standard for reviewing the district court’s application of the four-factor balancing test from Barker v. Wingo, 407 U.S. 514 (1972). See, e.g., United States v. Parker, 505 F.3d 323, 328 (5th Cir. 2007) (“The Barker factors are reviewed either de novo or for clear error.”). Because we conclude that, unlike in prior cases, the standard of review affects the outcome of this appeal, we must decide which one applies. Although it is the court, and not the parties, that determines the appropriate standard of review, United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc), we note that neither party provides a strong argument regarding what deference, if any, the district court’s balancing of the Barker factors merits.

( We agree with the Frye court that application of the Barker test is at least a mixed question of fact and law, and we hold that the appropriate standard of review of the district court’s application of the Barker factors is de novo. Accord United States v. Knight, 562 F.3d 1314, 1321 (11th Cir. 2009) (“We review de novo the denial of a motion to dismiss for a violation of the right to a speedy trial under the Sixth Amendment.”); United States v. Arceo, 535 F.3d 679, 684 (7th Cir. 2008) (reviewing a constitutional speedy trial claim de novo and the district court’s factual findings for clear error); United States v. Sutcliffe, 505 F.3d 944, 956 (9th Cir. 2007) (same); United States v. Brown, 498 F.3d 523, 530 (6th Cir. 2007) (same); United States v. Aldaco, 477 F.3d 1008, 1016 (8th Cir. 2007)(same).

( The fourth factor is the prejudice suffered by the defendant due to the delay, and ordinarily the burden is on the defendant to demonstrate actual prejudice. Serna-Villarreal, 352 F.3d at 230–31. But where the first three factors together weigh heavily in the defendant’s favor, we may conclude that they warrant a presumption of prejudice, relieving the defendant of his burden. Id. Although factor three does not weigh as heavily as it did in prior cases that have found a constitutional speedy trial right violation, the lengthy delay caused by the Government’s negligence weighs more heavily than that factor has in our prior cases. The reason for the delay, Government negligence, also weighs heavily in Molina’s favor due to the “protractedness of the delay.”

( Speedy Trial Applies to Sentencing.

Although many cases implicating the Sixth Amendment’s Speedy Trial Clause arise in the context of a delay before trial, we have held that “[t]he constitutionally guaranteed right to a speedy trial [also] applies to sentencing.”2 United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996); see United States v. Campbell, 531 F.2d 1333, 1335 (5th Cir. 1976). Accordingly, we have granted relief to a defendant who “has demonstrated extreme and unreasonable delay in sentencing, and has demonstrated that he has been prejudiced by the delay.” Juarez-Casares v. United States, 496 F.2d 190, 193 (5th Cir. 1974).

( “Whether sentencing proceedings are within the ambit of the Speedy Trial Clause is a question that has not been resolved by the Supreme Court.” United States v. Ray, 578 F.3d 184, 191–92 (2d Cir. 2009). In Pollard v. United States, the Supreme Court “assume[d] arguendo that sentence is part of the trial for purposes of the Sixth Amendment,” but then denied the petitioner’s claim on the merits. 352 U.S. 354, 361 (1957). The circuits are split on the question. Compare, e.g., Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir. 1987) (holding that the Speedy Trial Clause of the Sixth Amendment protects the right to speedy sentencing), with Ray, 578 F.3d at 199 (holding that the Speedy Trial Clause of the Sixth Amendment does not apply to sentencing proceedings).

( Good Review from United States v. Bishop, __ F.3d __ (5th Cir. Dec. 29, 2010)(09-20750):

( A defendant’s Sixth Amendment speedy trial claim is evaluated pursuant to a four-factor balancing test considering: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s diligence in asserting her Sixth Amendment right; and (4) any

prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530-33 (1972); see also United States v. Frye, 489 F.3d 201, 209 (5th Cir. 2007). Once a speedy trial analysis is triggered, the court “determines whether the first three Barker factors weigh so heavily in favor of the defendant that prejudice is presumed.” Frye, 489 F.3d at 209 (internal quotations and citation omitted). If the first three factors do not justify a presumption of prejudice, “then the defendant bears the burden of establishing actual prejudice and demonstrating that such prejudice is sufficient to outweigh the other three factors.” Frye, 489 F.3d at 209. We review the trial court’s weighing of the Barker factors de novo. United States v. Molina-Solario, 577 F.3d 300, 304 (5th Cir. 2009). We review its underlying findings of facts, however, for clear error. Id. at 303 (citing United States v. Frye, 372 F.3d 729, 735 (5th Cir.2004)).

( This court has generally held that delays of less than five years are insufficient, by duration alone, to give rise to a presumption of prejudice and relieve the defendant of satisfying Barker’s fourth prong. See United States v. Parker, 505 F.3d 323, 328 29 (5th Cir. 2007) (delay of 17 months insufficient to presume prejudice); see also United States v. Serna-Villarreal, 352 F.3d 225, 233 (5th Cir. 2003) (delay of three years and nine months insufficient).

( Claims of pre-indictment delay are considered under the Fifth Amendment, while claims of post-indictment delay are considered under the Sixth Amendment. United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994). To the extent that the pre-indictment delay is relevant to this factor at all, we must consider it in light of the fact that Bishop had an adequate, independent constitutional protection through which to protect herself from pre-indictment delay, and she did not avail herself of it.

( The length of delay, like the other criteria, is to be considered on a case-by-case basis. See United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 565 (1983).

( We will not presume prejudice “[i]f the government diligently pursues a defendant from indictment to arrest.” United States v. Bergfeld, 280 F.3d 486, 489 (5th Cir. 2002) (quoting Doggett v. United States, 505 U.S. 647, 656 (1992)). In contrast, deliberate, bad-faith delays made to hamper the defense and gain some impermissible trial advantage do weigh against the Government. Doggett, 505 U.S. at 656.

( Speedy Trial and Sentencing. In Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir. 1974), this court stated that a trial judge is bound by both Rule 32 and the Sixth Amendment’s Speedy Trial Clause in sentencing a defendant in a timely manner. We review a Speedy Trial Clause claim de novo. United States v. Green, 508 F.3d 195, 202 (5th Cir. 2007). The parties differ as to whether the relevant period for Speedy Trial Clause purposes should be measured cumulatively or only from the last remand. Even if the period is measured cumulatively, thereby triggering the full four-step analysis, Klein’s claim fails because he has not shown that the first three factors weigh in his favor or that he has suffered actual prejudice. See United States v. Parker,

505 F.3d 323, 330 (5th Cir. 2007). Similarly, his Rule 32(a)(1) claim also fails

because he has not shown actual prejudice. See United States v. James, 459 F.2d

443, 444-45 (5th Cir. 1972)

( United States v. Dignam, __ F.3d __ (5th Cir. May 28, 2013)(12-30262):

B. Plea Negotiations and Other Pre-Trial Proceedings

The government filed a “notice of intent to enter guilty plea” on February

16, 2011. The notice stated that Dignam and the government

propose to enter into a Plea Agreement to be tendered to this

Honorable Court pursuant to Rule 11 of the Federal Rules of

Criminal Procedure. This Notice is entered in order to interrupt the

Speedy Trial Clock pursuant to 18 U.S.C. § 3161(h)(1)(G).

( Test for Violation of Speedy Trial Act. United States v. Blevins, __ F.3d __

(5th Cir. June 16, 2014)(13-30090). Sets for criteria for speedy trial act that differs from

Sixth Amendment analysis. Dismissal under speedy trial act is entrusted to the sound

discretion of the district judge and it matters not whether dismissal is with or without

prejudice. United States v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987). Three factors

on dismissal for Speedy Trial Act: (a) seriousness of the offense, (2) facts and circumstances of the case which led to the dismissal, and (3) impact of a reprosecution on the administration of the speedy trial act and on the administration of justice. 18 USC

§ 3162(a)(1). Third factor has three concerns: (1) D’s right to a timely trial; (2) potential

deterrent effect of a prejudicial dismissal on repeated violations of the Speedy Trial Act; and (3) public’s interest in bringing the D to trial. United States v. Blank, 701 F.3d 1084, 1090 (5th Cir. 2012).

Spoliation.

( United States v. Valas, __ F.3d __ (5th Cir. May 20, 2016)(15-50176). Encrypted data was destroyed by gov’t when FBI attempted entry even though D originally gave FBI the password. Denying instruction on spoliation not abuse of discretion.

Standard of Proof.

( Microsoft Corp. v. 141 Ltd Partnership, 564 U.S. __ (U.S. June 9, 2011)(10-290)

In patent infringement suit, concurrence by Justices Breyer and Alito emphasize that evidentiary standards of proof applies to questions of fact only and not to questions of law.

Standing, Constitutional—Case or Controversy

--Cruz v. Abbott, __ F.3d ___ (5th Cir. Feb. 23, 2017)(16-30217):

The Constitution limits the jurisdiction of the federal courts to “Cases” and “Controversies.” U.S. CONST., Art III, § 2. “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). Defendants’ brief claims appellate jurisdiction under 28 U.S.C. § 1291(a)(1), but there is no such subsection. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “To establish standing, a plaintiff must show: (1) it has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is fairly traceable to the defendant’s conduct; and (3) a favorable judgment is likely to redress the injury.” Hous. Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007). To satisfy the injury-in-fact requirement, a plaintiff must allege an injury that is “actual or imminent, not conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (citation and internal quotation marks omitted). “An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List, 134 S. Ct. at 2341 (citation and internal quotation marks omitted). But where a plaintiff “has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest . . . and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). Here, standing is reduced to a question of statutory interpretation. The statute says that a person cannot “knowingly . . . encourage[] or induce[] a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection” in exchange for a “pecuniary benefit.” HB 11 § 14(a)(2). Plaintiffs urge us to read “harboring . . . from detection” to mean “house” or “shelter” and claim that the provision applies to anyone who “knowingly provid[es] shelter to undocumented immigrants” and receives a “pecuniary benefit” in return. Because the plaintiffs shelter persons without regard to immigration status (and therefore could well be illegal aliens) in return for either money (in the case of the landlords) or labor (in the case of the social-service providers), they say that Section 14(a)(2) applies to them. The defendants counter that plaintiffs are not violating the statute and therefore face no credible threat of prosecution. Defendants maintain that the statute applies to persons or entities that hide illegal aliens from authorities, not to those who merely shelter them. We begin with the plain meaning of the statutory text.8 It is obvious from the structure that “harboring” and “from detection” must be read together. As used in the statute, “harboring” is a transitive verb—it requires an object, and its object is “that person.” The phrase “from detection” modifies “that person.” Therefore, “from detection” modifies and is an element of the offense of “harboring that person.” Although the definition of “harbor” may be ambiguous in isolation, when paired with “from detection” it requires some level of covertness well beyond merely renting or providing a place to live.

State Law Interpretation

( United States v. Bernel-Aveja, __ F.3d ___ (5th Cir. Dec. 13, 2016)(15-20308):

The elements of a suspected state offense is determined by consulting the statute, as construed by the highest appellate court of the state. See, e.g., Johnson v. United States, 559 U.S. 133, 136-38 (2010) (relying on a Florida Supreme Court decision which post-dated the conviction at issue to define the elements of a Florida offense); see also Mathis v. United States, 136 S. Ct. 2243, 2256 (2016); cf. Johnson v. Fankell, 520 U.S. 911, 916 (1997) (“Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State.”).

Stipulations

( Evidentiary stipulations are binding on the parties, United States v. Cantu, 510 F.2d 1003, 1004 (5th Cir. 1975); cf. Jackson v. Louisiana, 980 F.2d 1009, 1011 n.7 (5th Cir. 1993) (noting in a civil case that a defendant cannot renounce a stipulation on appeal). Moreover, they may provide sufficient evidence of the elements of a charged offense. United States v. Kleinschmidt, 596 F.2d 133, 136 (5th Cir. 1979).

( The district court is not bound by the stipulations of the parties in sentencing and may determine the relevant sentencing facts with the assistance of the presentence report. United States v. Rodriguez, 62 F.3d 723, 725 (5th Cir. 1995) (concluding that the district court was not bound by the parties’ stipulation as to drug quantity). United States v. Mouton (5th Cir. June 23, 2011)(10-30971)(Stipulation on not to use one of several prior convictions).

Stop and Frisk

The salient issue on appeal is whether there was reasonable suspicion for

Officer Ibarra’s stop and frisk of Roberson, as required by the Fourth

Amendment and Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). Reasonable

suspicion is measured in light of the totality of the circumstances and must be

supported by particular, articulable, and objective facts. United States v. Arvizu,

534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002); United States v. Michelletti, 13

F.3d 838, 840 (5th Cir. 1994) (en banc). The officer must have reasonable

suspicion that a suspect “has been, is, or is about to be engaged in criminal

activity.” United States v. Vickers, 540 F.3d 356, 361 (5th Cir. 2008) (citing

United States v. Hensley, 469 U.S. 221, 227, 105 S. Ct. 675, 679 (1985)). Whether

an officer has reasonable suspicion is based on facts known to the officer at the

time of the search or seizure. Id.; Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct.

1375, 1379 (2000). In the course of a search or seizure, officers are permitted “to

draw on their own experience and specialized training to make inferences from

and deductions about the cumulative information available to them that ‘might

well elude an untrained person.’” Arvizu, 534 U.S. at 273, 122 S. Ct. at 750–51

(citation omitted). In a reasonable suspicion analysis, a court examines

“whether the officer’s action was justified at its inception” and “whether the

officer’s subsequent actions were reasonably related in scope to the

circumstances that justified the stop.” United States v. Brigham, 382 F.3d 500,

506 (5th Cir. 2004) (en banc) (citing Terry, 392 U.S. at 19–20, 188 S. Ct. at 1879).

(  U.S. v. Stevens, 487 F.3d 232 (5th Cir. 2007)is the most recent thorough Fifth Circuit case applying Terry v. Ohio.   

.

Stored Communications Act. 2 18 U.S.C. §§ 2701-2712 (2006). Practitioners in this area of the law routinely refer to United States Code, Title 18, Chapter 121, which is formally titled “Stored Wire And Electronic Communications And Transactional Records Access” as the Stored Communications Act or the SCA

( See good law review article stored in computer at Criminal—Military Law

( Garcia v. City of Laredo, __ F.3d __ (5th Cir. 12-12-2012)(11-41118)(See Cell Phone):

Prior to 1986, the United States Code provided no protection for stored communications in remote computing operations and large data banks that stored e-mails. United States v. Councilman, 418 F.3d 67, 80-81 (1st Cir. 2005) (en banc). In response, Congress passed the SCA as part of the Electronic Communications Privacy Act to protect potential intrusions on individual privacy that the Fourth Amendment did not address. Id. at 81 (citing S. REP. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557); Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). The SCA prohibits unauthorized access to wire and electronic communications in temporary and back-up storage and provides in relevant part:

[W]hoever–

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 2701(a) (2006) (emphasis added). Accordingly, for Defendants to be

liable under the SCA, they must have gained unauthorized access to a facility through which electronic communication services are provided (or the access must have exceeded the scope of authority given) and must thereby have accessed electronic communications while in storage. Garcia argues that her personal cell phone is a “facility” in which electronic communication is kept in electronic storage in the form of text messages and pictures stored on the cell phone.

While the SCA does not define the term “facility,” it does define the terms

“electronic communication service” and “electronic storage.” The statute defines an “electronic communication service” (“ECS ”) as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. §2510(15) (incorporated by reference in 18 U.S.C. §2711(1) of the SCA). “Electronic storage” is defined as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” Id. §2510(17). Courts have interpreted the statute to apply to providers of a communication service such as telephone companies, Internet or e-mail service providers, and bulletin board services. For example, in Steve Jackson Games, Inc. v. United States Secret Service, we found that the SCA applied to cover the seizure of a computer used to operate an electronic bulletin board system. F.3d 457, 462-63 (5th Cir. 1994). Other circuits have applied the SCA to

Internet service providers. See, e.g., Councilman, 418 F.3d at 81-82; Theofel v.

Farey-Jones, 359 F.3d 1066, 1075 (9th Cir. 2004). These cases, however, are not helpful to Garcia in establishing that an individual’s computer, laptop, or mobile device fits the statutory definition of a “facility through which an electronic communication service is provided.” The Eleventh Circuit’s decision in United States v. Steiger provides useful guidance. 318 F.3d 1039, 1049 (11th Cir. 2003). In Steiger, when a hacker accessed an individual’s computer and obtained information saved to his hard drive, the court held such conduct was beyond the reach of the SCA. Id. The court found that “the SCA clearly applies . . . to information stored with a phone company, Internet Service Provider (ISP), or electronic bulletin board system,” but does not, however, “appear to apply to the source’s hacking into Steiger’s computer to download images and identifying information stored on his hard-drive.” Id. It noted that “the SCA may apply to the extent the source accessed and retrieved any information stored with Steiger’s Internet service provider.” Id. (emphasis added). A number of district courts that have considered this question have also concluded that “the relevant ‘facilities’ that the SCA is designed to protect are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage.” Freedom Banc

Mortg. Servs., Inc. v. O’Harra, No. 2:11-cv-01073, 2012 WL 3862209, at *9 (S. D. Ohio Sept. 5, 2012) (emphasis added). Recently, the Northern District of California held that a class of iPhone plaintiffs had no claim under the SCA because their iPhones did not “constitute ‘facilit[ies] through which an electronic communication service is provided.’” In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1057-58 (N.D. Cal. 2012).

Thus these courts agree that a “home computer of an end user is not protected by the SCA.” Kerr, supra, at 1215 (footnote omitted). As explained by Orin Kerr in his widely cited law review article, the words of the statute were carefully chosen: “[T]he statute envisions a provider (the ISP or other network service provider) and a user (the individual with an account with the provider), with the user’s communications in the possession of the provider.” Id. at 1215 n.47 (emphasis added) (citation omitted).

This reading of the statute is consistent with legislative history, as “Sen. Rep. No. 99-541 (1986)’s entire discussion of [the SCA] deals only with facilities operated by electronic communications services such as ‘electronic bulletin boards’ and ‘computer mail facilit[ies],’ and the risk that communications temporarily stored in these facilities could be accessed by hackers. It makes no mention of individual users’ computers . . . .” In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 512 (S.D.N.Y. 2001) (quoting S. REP. No. 99-541, at 36, reprinted in 1986 U.S.C.C.A.N. 3555, 3590).

… But information that an individual stores to his hard drive or cell phone is not in electronic storage under the statute. Freedom Banc, 2012 WL 3862209, at *8-9; see Hilderman v. Enea TekSci, Inc., 551 F. Supp. 2d 1183, 1205 (S.D. Cal. 2008) (“E-mails stored on the laptop computer are not in ‘temporary, intermediate storage’ [as required by §2510(17)(A)]. Furthermore, the e-mails on the laptop are not stored ‘by an electronic communication service for purposes of backup protection’ as required by subsection (B).”); Bailey v. Bailey, No. 07-11672, 2008 WL 324156, at *6 (E.D. Mich. Feb. 6, 2008) (unpublished) (“Stored Communications Act protection does

not extend to emails and messages stored only on Plaintiff’s personal computer.”).

( In re application of the United States for Historical Cell Site Data, 724 F.3d. 600 (5th Cir. 2013): It was constitutional for court to order disclosure of historical cell site information based upon the Stored Communications Act’s lower “specific and articulable facts” standard rather than probable cause standard. CONTRA: In re United States for an Order Directing Provider of Elec. Comun. Serv. to Disclose Records to Gov’t,

620 F.3d 304 (3d Cir. 2004).

Substantial Assistance under USSG 5K1

( District courts have “almost complete discretion to deny” a § 5K1.1 motion. United States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001). We lack discretion to review the denial of a motion for downward departure unless the denial was due to the district court’s mistaken belief that it could not grant the motion. Cooper, 274 F.3d at 248; see also United States v. Tuma, 738 F.3d 681, 691 (5th Cir. 2013), cert. denied, 134 S. Ct. 2875 (2014). United States v. Moreno, (5th Cir. October 12, 2015)(15-10005).

( Absent a contrary agreement, the decision whether to file a § 5K1.1 motion is discretionary. Wade v. United States, 504 U.S. 181, 185 (1992). The Government may, however, bargain away its discretion in a plea agreement. United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir. 1993). However, when the plea agreement expressly states that the Government retains discretion over the decision, the Government’s refusal to file the motion is reviewable only for unconstitutional motive, United States v. Aderholt, 87 F.3d 740, 742 (5th Cir.1996), or on the ground that the refusal to file the motion was not rationally related to a legitimate government end, Wade, 504 U.S. at 186.

Sufficiency of Evidence

( Abolition of Equipoise Rule. United States v. Vargas-Ocampa, __ F.3d __

(5th Cir. March 27, 2014)(En Banc)(11-41363):

According to appellant, the “equipoise rule” states that the court “must reverse a conviction if the evidence construed in favor of the verdict ‘gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of innocence of the crime charged.’” United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995).2 A majority of the court now holds that the “equipoise rule” is not helpful in applying the Supreme Court’s standard prescribed in Jackson v. Virginia, whereby reviewing courts must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 443 U.S. 307, 319, 90 S. Ct. 2781, 2789 (1979) (emphasis in original). We abandon use of the “equipoise rule” and

affirm Vargas-Ocampo’s conviction.

In any event, when appellate courts are authorized to review verdicts of

conviction for evidentiary “equipoise,” they must do so on a cold appellate record without the benefit of the dramatic insights gained from watching the trial. The potential to usurp the jury’s function in such circumstances is inescapable. Jackson’s “deferential standard” of review, however, “does not permit the type of fine-grained factual parsing” necessary to determine that the evidence presented to the factfinder was in “equipoise.” Compare Coleman v. Johnson, __ U.S. ___, 132 S. Ct. 2060, 2064 (2012). Jackson also

“unambiguously instructs that a reviewing court, ‘faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’” Cavazos v. Smith, __ U.S.___, 132 S. Ct. 2, 6 (2011) (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2781). This court’s decisions citing the “equipoise rule” have done little to resolve its inherent definitional problems and its tension, in practical if not theoretical terms, with the Jackson standard. In abandoning use of the “equipoise rule” in this circuit, we do not render the Jackson standard toothless. On the contrary, courts remain empowered to consider, for instance, whether the inferences drawn by a jury were rational, as opposed to being speculative or insupportable, and whether the evidence is sufficient to establish every element of the crime. See United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (en banc). We reject no other formulations conscientiously applying the Jackson standard except the “equipoise.’

( United States v. Malone, __ F.3d __ (5th Cir. Dec. 11, 2015)(14-31426): Unlike United States v. Hagman, 740 F.3d 1044, 1052 (5th Cir. 2014), this is not a case where “the evidence appears to be equally balanced, or we cannot say upon which side it weighs heavier.” We also note that Hagman may no longer be good law in the wake of this Court’s decision in United States v. Vargas-Ocampo, which rejected the applicability of the “equipoise rule” in the related context of sufficiency of the evidence to support a conviction. See 747 F.3d 299, 301 (5th Cir. 2014) (en banc).

( Specific v. General Objection. United States v. Brown, __ F.3d __ (5th Cir. July 16, 2013)(12-10592): Kenneth Brown specifically preserved his sufficiency challenge to the knowledge element by filing a timely motion for judgment of acquittal, and,

accordingly, our review of that challenge is de novo. Read, 710 F.3d 219. 226 (5th Cir. 2012). But because he asserted “specific grounds for a specific element of a specific count for a Rule 29 motion,” Kenneth Brown failed to preserve sufficiency challenges to

the “federal funds” and “nexus” elements, United States v. Herrera, 313 F.3d 882,

884 (5th Cir. 2002) (en banc) (per curiam); accordingly, our sufficiency review of

those elements is for “manifest miscarriage of justice,” United States v.

McDowell, 498 F.3d 308, 312 (5th Cir. 2007). Leah Brown, by contrast, objected

that the government failed to establish all of the elements of the conspiracy

offense. Because a general challenge to the sufficiency of the evidence preserves

de novo review as to all potential sufficiency issues, our review of her challenge

to each of the elements of the offense is de novo. See Herrera, 313 F.3d at 885 n.*

(ruling that a defendant who “chose to make a quite specific, not a general,

motion for judgment of acquittal” did not preserve his sufficiency objection as to

all elements of the crime). In reviewing de novo the sufficiency of the evidence, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Cooper, 714 F.3d 873, 880 (5th Cir. 2013).

( Because appellant objected to the sufficiency of the evidence at the trial level,

we evaluate whether a reasonable jury could have found that the evidence

established the guilt of the defendant beyond a reasonable doubt. United States

v. Lewis, 476 F.3d 369, 377 (5th Cir. 2007). Due to the jury verdict of guilt, the

evidence is viewed in the light most favorable to the government, which receives

all reasonable inferences and credibility choices. Id.

( Our review of the sufficiency of the evidence is “‘highly deferential to the verdict.’” United States v. Elashyi, 554 F.3d 480, 491 (5th Cir. 2008) (quoting United States v. Gulley, 526 F.3d 809, 816 (5th Cir.), cert. denied, 29 S.Ct. 159 (2008). We will reverse for insufficient evidence only when the evidence, when reviewed in the light most favorable to the government, would not allow a rational fact finder to find every element of the offense beyond a reasonable doubt. Id. at 492. To prove an offense under § 513(a), the Government

( From United States v. Molina, __ F. App’x __ (5th Cir. Jan. 27, 2010)(09-50400): When the defendant preserves the issue, review for sufficiency of the evidence is de novo. See United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007).

( When challenges to the sufficiency of the evidence are preserved, they are reviewed de novo. United States v. Hale, 685 F.3d 522, 543 (5th Cir. 2012). When unpreserved, they are reviewed for plain error. United States v. Delgado, 672 F.3d 320, 328-32 (5th Cir. 2012) (en banc).

( United States v. Vargas-Ocampo, __ F.3 ____ (5th Cir. Feb. 13, 2013)(11=41363).

Case adheres to Jackson v. Virginia test on legal sufficiency of evidence and disavows

contrary Fifth Circuit cases with loose language to the contrary. The Appellant adds to this standard, however, a caveat, gleaned from a few Fifth Circuit cases, that this court “must reverse a conviction if the evidence construed in favor of the verdict ‘gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.’ ” United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995)(citations omitted). This court has embroidered the Jackson standard further by stating that “[w]hen the evidence is essentially in balance, a reasonable jury must necessarily entertain a reasonable doubt." United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). Rarely have these glosses, founded on a concept of equipoise, led

to reversal of a conviction on appeal, but they have been so frequently cited as to suggest confusion in our understanding of Jackson. See, e.g., United States v. Mudd, 685 F.3d 473, 479–80 (5th Cir. 2012) (upholding conviction); United States v. Viscarra, 494 F.3d 490, 493–94 (5th Cir. 2007) (upholding conviction); United States v. Mireles, 471 F.3d 551, 555–57 (5th Cir. 2006) (upholding conviction); United States v. Valdez, 453 F.3d 252, 256–61 (5th Cir. 2006) (upholding conviction); United States v. Rose, 449 F.3d 627, 630–32 (5th Cir. 2006) (upholding conviction); United States v. Dean, 59 F.3d 1479, 1484–90 (5th Cir. 1995) (upholding conviction). It is time to dispel the confusion.

The Supreme Court has never departed from the Jackson standard, which preserves the fact-finder’s role as weigher of the evidence.

Supervised Release

( See separate Law Primer on Federal Supervised Release.

( Standard of Review for Revocation. United States v. Miller, __ F.3d __ (5th Cir. 2011)(09-11063). We review the revocation of sentences under a “plainly unreasonable” standard.

( Prior to United States v. Booker, 543 U.S. 220 (2005), we reviewed the revocation of sentences under a “plainly unreasonable” standard as described in

18 U.S.C. §§ 3742(a)(4) and (e)(4). See United States v. Stiefel, 207 F.3d 256, 259

(5th Cir. 2000). Booker rendered the Sentencing Guidelines advisory, and directed courts to review sentences under a reasonableness standard. 543 U.S. at 259–62. Because Booker considered a Guidelines sentence imposed pursuant to a conviction, it was unclear whether Booker’s reasonableness standard applied to the appellate review of supervised release terms. This question has resulted in a split among circuits

( We have not reached a definitive position, although we have indicated our preference for the “plainly unreasonable” standard. United States v. Hernandez-Martinez, 485 F.3d 270 (5th Cir. 2007). We now adopt the standard discussed in Hernandez-Martinez, in which we agreed with the Fourth Circuit’s holding that Booker had not abrogated § 3742(a)(4). Hernandez-Martinez, 485 F.3d at 273; Crudup, 461 F.3d at 437.

Under the terms of § 3742, it would be illogical to allow the appeal of a sentence as “unreasonable,” when § 3742(a)(4) permits for an appeal only if a sentence is

“plainly unreasonable.” § 3742(a)(4); see also Hernandez-Martinez, 485 F.3d at 273; Crudup, 461 F.3d at 437. The “plainly unreasonable” standard is also proper given that the goal of revocation is to punish a defendant for violating the terms of the supervised release. Under the Guideline’s commentary and statutory provisions, this aim differs from the objectives outlined for the imposition of an original sentence. Due to these distinctly different goals, the use of different reviewing standards is appropriate. Hernandez-Martinez, 485 F.3d at 274.

( Under the plainly unreasonable standard, we evaluate whether the district

court procedurally erred before we consider “the substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard.” United States v.

Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotations omitted). If a

sentence is unreasonable, then we consider whether the error was obvious under

existing law. United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009).

( We agree with the Fourth and Ninth Circuits and hold that it is improper

for a district court to rely on § 3553(a)(2)(A) for the modification or revocation of

a supervised release term. See Crudup, 461 F.3d at 438–39; Miqbel, 444 F.3d at

1181–1183. When sentencing a defendant under § 3583(e), a district court may not consider § 3553(a)(2)(A) because Congress deliberately omitted that factor from the permissible factors enumerated in the statute. Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (“Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or inclusion.”); see also Miqbel, 444 F.3d at 1182.

( Conditions Must be Imposed by Court, Not Probation. United States v. Turpin (Mar. 1, 2011)(09-40642): Although our circuit has not yet decided whether a sentencing court may permit a probation officer to determine whether a defendant is required to

undergo mental health treatment, such a delegation may be inappropriate. As our prior opinion in this case noted, this issue has split our sister circuits. The Third, Fourth, and Eleventh Circuits have held that imposing a sentence—including all conditions of probation—is a strictly judicial function, which the district court may not delegate. See United States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005); United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995) (“[T]he imposition of a sentence, including any terms for probation or supervised release, is a core judicial function.”); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (“[D]elegating to the probation office the authority to decide whether a defendant will participate in a treatment program is a violation of Article III.”).

( Turpin argued that the district court impermissibly delegated its judicial authority by giving the probation officer the power to decide whether Turpin would be required to participate in mental health and anger management programs as a condition of his supervised release. … Because we are satisfied that the sentence as clarified delegates to the probation officer only the authority to implement, rather than impose, these special conditions, we now AFFIRM.

Suppression Motion

( The Fifth Circuit reviews a motion to suppress evidence according to a bifurcated standard: we review findings of fact for clear error and conclusions of law de novo. United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994). “A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole. Further, the evidence presented at a pre-trial hearing on a motion to suppress is viewed in the light most favorable to the prevailing party.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (citations, quotation marks, and punctuation omitted). The district court’s overall finding that reasonable suspicion existed for the stop is a conclusion of law that we review de novo. Inocencio, 40 F.3d at 721.

Plea Errors

( To show a FRCP 11 error during a plea, defendant must object and, in the absence of

an objection, review is for plain error. See United States v. Vonn, 535 U.S. 55, 59

(2002). To show plain error, appellant must show an error that is clear or obvious

and that affects his substantial rights. See United States v. Baker, 538 F.3d 324,

332 (5th Cir. 2008), cert. denied, 2009 WL 56591 (Jan. 12, 2009) (No. 08-7559).

If he makes such a showing, we have the discretion to correct the error but will do so only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. In order to show that error at re-arraignment affects his substantial rights, appellant “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). We “may consult the whole record when considering the effect of any error on substantial rights.” Vonn, 535 U.S. at 59.

Presentencing Report-- Alleged Errors in

( Alleged errors in the presentencing report that are not raised under FRCP 32

are reviewed for plain error. See United States v. Baker, 538 F.3d 324, 332 (5th Cir.

2008), cert. denied, 129 S. Ct. 962 (2009). The district court’s adoption of the

presentence report is an implicit resolution of the disputed matter at sentencing.

Accordingly, the district court made the required Rule 32 finding. See United States v.

Duncan, 191 F.3d 569, 575 (5th Cir. 1999). Additionally, when appellant has not

demonstrated any plain error with respect to the district court’s implicit finding that his

sworn testimony at the sentencing hearing was not credible and, thus, that he had not

rebutted the information provided by the presentence report. See United States v.

Sotelo, 97 F.3d 782, 799 (5th Cir. 1996); United States v. Edwards, 65 F.3d 430, 432

(5th Cir. 1995); see also 18 U.S.C. § 3742(e). Appellant also has not shown plain error

with respect to his Sixth Amendment claim. In United States v. Booker, 543 U.S. 220

(2005), the Supreme Court eliminated any Sixth Amendment error caused by judicial

fact-finding with respect to sentencing determinations by rendering the Sentencing

Guidelines advisory rather than mandatory. See United States v. Mares, 402 F.3d 511,

519 (5th Cir. 2005). Moreover, this court has held that the Confrontation Clause

does not apply at sentencing. United States v. Mitchell, 484 F.3d 762, 776 (5th

Cir. 2007), cert. denied, 128 S. Ct. 869 (2008); United States v. Beydoun, 469 F.3d

102, 108 (5th Cir. 2006).

Reasonable Suspicion. From United States v. Rodriguez, 564 F.3d 735 (5th Cir. 2009)

( Temporary, warrantless detentions of individuals constitute seizures for Fourth Amendment purposes and must be justified by reasonable suspicion that illegal activity has or is taking place; otherwise, evidence obtained through such a detention may be excluded. Terry v. Ohio, 392 U.S. 1 (1968). “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21; see United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Reasonable suspicion “requires more than merely an unparticularized hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999). Courts determine whether the stop was reasonable by conducting a fact-intensive, totality-of-the circumstances inquiry. Jacquinot, 258 F.3d at 427. A “divide-and conquer” approach to this analysis is not permitted. United States v. Arvizu, 534 U.S. 266, 274 (2002) (finding that “[a]lthough each of the series of acts was

‘perhaps innocent in itself,’ we held [in Terry] that, taken together, they ‘warranted further investigation.’”).

Factors that may be considered in an analysis of reasonable suspicion

include: (1) proximity to the border; (2) characteristics of the area; (3) usual

traffic patterns; (4) agent’s previous experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking in aliens or narcotics in the area; and (8) the number,

appearance, and behavior of the passengers. Jacquinot, 258 F.3d at 427.

No single factor is dispositive, and each case must be examined based on the totality of the circumstances known to the agents at the time of the stop and their experience in evaluating such circumstances. United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001).

Restitution under Inmate Financial Responsibility Program.

( United States v. Diggs, 578 F.3d 318 (5th Cir. 2009. Diggs challenges his scheduled restitution payments under the Inmate Financial Responsibility Program (“IFRP”). Because the district court lacked subject matter jurisdiction, we vacate and remand for dismissal. … The government is correct that Diggs erred in filing under § 3664(k). He is not challenging a payment schedule made by the court, but instead is opposing his scheduled payment amount under the IFRP. That program is administered by the BOP, and a challenge to BOP administrative programs must be filed under 28 U.S.C. § 2241 and in the district of incarceration. See United States v. Lott, 227 F. App’x 414 (5th Cir. 2007). All other circuits to look at this issue agree that prisoners challenging their IFRP payment plans must do so under § 2241 (habeas corpus).

( District Judge could impose restitution after 90-day deadline in statute if judge said

he was going to consider imposition of restitution at a later date. Dolan v. United States, 560 U.S. ___ (2010).

Sex Trafficking of Minor. 18 U.S.C. § 1591.

( United States v. Phea, __ F.3d ____ (5th Cir. June 13, 2014)(12-51031).

United States v. Phea, 12-51031, 2014 WL 2694223 (5th Cir. June 13, 2014),

( United States v. Pringler, __ F.3d ___ (th Cir. August 26, 2014)(12-10029(aiding and abetting; insufficient evidence, conflict in guidelines on sentencing)

( United States v. Copeland, __ F.3d __ (5th Cir. May 2, 2016)(15-50208):

section 1591(c) is constitutional.

Silence—Comment on Silence of Accused + Failing to Preserve Error

( From United States v. Potts, __ F.3d __ (5th Cir. June 15, 2011)(10-10257):

( Dallas cop sees car race at 65 mph. Stops it at parking lot and tells driver to

turn off car and exit. Handcuffed. Officer sees gun protrude from under seat and asks D

if gun is his. D does not answer. D charged as felon in possession of firearm. D objected over this testimony and judge gave curative instruction that D had no legal duty to answer but D was not under arrest at that point. The government again referenced Potts’s silence during its closing argument. Potts objected, not on any Fifth Amendment ground but on the ground that the prosecution was attempting to shift the burden of proof. The court instructed the jury that the government had the burden of proof and denied Potts’s subsequent motion for a mistrial on that basis. Affirmed.

( Potts argues that he preserved his constitutional claim when he lodged an

objection to James’s testimony. His mere objection, however, does not suffice. In United

States v. Salinas, 480 F.3d 750, 755 (5th Cir. 2007), we held that plain-error review was appropriate for a Fifth Amendment claim even though defense counsel “timely objected to each of the prosecutor’s references to [the defendant’s] post-arrest silence,” because “the trial court sustained all of those objections, and the trial court’s instructions to the jury made it clear that the jury was not to consider any of the challenged remarks.” Furthermore, we remarked that the defense “never took exception to the district court’s handling of his objections and, significantly, . . . never requested that the district court declare a mistrial.” Id. at 755-56.

( Plain error review was appropriate, because the defendant “effectively received all of the relief that he requested from the district court.” Id. at 756.

Salinas is not directly controlling, because the court did not explicitly sustain Potts’s objections, but the principles of Salinas inform us. As with the defendant in Salinas, Potts never raised any concerns with how the district court chose to handle his objection, and Potts explicitly agreed to the court’s proffered

curative statement.

( By accepting the instruction, Potts failed to obtain a definitive ruling on his objection—there was no implicit overruling, but rather no ruling at all. Following that failure to obtain a ruling, Potts accepted the court’s curative instruction without objection, thus failing to preserve error.

( “We find plain error when (1) there was an error or defect; (2) the legal error was clear or obvious, rather than subject to reasonable dispute; and (3) the error affected the defendant’s substantial rights.” United States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010). Once those three elements have been satisfied, we may exercise our discretion to correct the error. Id. Regarding the second element, “[a]n error is considered plain, or obvious, only if the error is clear under existing law.” Salinas, 480 F.3d at 756.

Potts cannot satisfy the second element, because the error he claims was not clear under existing Fifth Circuit law. This court has yet to address conclusively whether the use of pre-Miranda silence as substantive evidence of guilt is a Fifth Amendment violation. See id. at 758 (“No published decision of this court has addressed whether the prosecution can, at trial, introduce substantive evidence that the defendant remained silent after he was arrested and taken into custody, but before he was given the Miranda warnings.”). In United States v. Zanabria, 74 F.3d 593 (5th Cir. 1996), we assumed

without deciding that a defendant’s pre-arrest, pre-Miranda silence fell within the scope of the Fifth Amendment’s protection. An arguendo assumption, however, is not “existing law.” Post-Zanabria cases have also held that “a prosecutor’s reference to a non-testifying defendant’s pre-arrest silence does not violate the privilege against self-incrimination if the defendant’s silence is not induced by, or a response to, the actions of the government.” United States v. Elashyi, 554 F.3d 480, 506 (5th Cir. 2008). Potts argues that his silence was in response to actions of the officer, so his privilege against self-incrimination was violated. But that is not a necessary conclusion from our caselaw. Thus, even assuming arguendo that it was error to allow testimony regarding Potts’s pre-Miranda silence, the decision to allow that testimony does not constitute reversible error, because the error was not plain.

Silence of Accused Argument—Capital Conviction Reversed

( Gongora v. Thaler, __ F.3d ___ (5th Cir. Feb. 27, 2012)(07-70031):

IV: We now turn to Gongora’s Fifth Amendment claim. In Griffin v.

California, 380 U.S. 609, 615 (1965). the Supreme Court held that “the Fifth Amendment . . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” The Court has since clarified that comment on a defendant’s silence is permissible in some instances, as where “the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel.” United States v. Robinson, 485 U.S. 25, 32 (1988). But the rule is unchanged that a prosecutor “may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt.”

Id. at 34. A Griffin error is subject to harmless error analysis. Chapman v. California, 386 U.S. 18, 23–25 (1967). On direct appeal, a state court cannot hold harmless a Griffin

error unless the court is “able to declare a belief that [the violation] was

harmless beyond a reasonable doubt.” See Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

Our evaluation of a Fifth Amendment claim like Gongora’s proceeds in two

steps. First, we must decide under 28 U.S.C. § 2254(d)(1) whether fair-minded jurists could disagree that a Griffin error occurred. Richter, 131 S. Ct. at 786. We must then decide whether the Fifth Amendment violation was harmless.

See Fry, 551 U.S. at 120. When a state court on direct appeal has determined under Chapman that a Griffin error was harmless beyond a reasonable doubt, a petitioner cannot obtain federal habeas relief based merely on a finding, per AEDPA, that no jurist could reasonably conclude that the Fifth Amendment violation was harmless beyond a reasonable doubt. Rather, applying the standard set forth by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619 (1993), the federal court must determine whether the Fifth Amendment violation “had substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 631. In this circuit, the assessment of harmless error under Brecht is a mixed question of fact and law, and we thus review the district court’s determination de novo. See, e.g., Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006).

Here it appears the CCA did not apply Chapman and made no finding that any Fifth Amendment violation was harmless beyond a reasonable doubt. Regardless, Gongora must still clear the hurdle of Brecht: We “assess the prejudicial impact of [the prosecutor’s comments on Gongora’s silence] under the ‘substantial and injurious effect’ standard set forth in Brecht, whether or not the state appellate court recognized the error and reviewed it for harmlessness under . . . Chapman.” Fry, 551 U.S. at 121–22. The Supreme Court has explained: “[I]t is implausible that, without saying so, AEDPA replaced the Brecht standard of ‘actual prejudice’ . . . with the more liberal AEDPA/Chapman standard which requires only that the state court’s harmless-beyond a-reasonable-doubt determination be unreasonable.” Id. at 119–20 (citation omitted).

Silence—Pre-Miranda Warnings

( United States v. Ashley, __ F.3d __ (5th Cir. Dec. 13, 2011)(10-50717)

Need not decide issue because error, if any, was harmless.

There is a split among the circuit courts regarding whether and when prearrest,

pre-Miranda silence can be used in the government’s case-in-chief. The

Fourth, Ninth, and Eleventh Circuits permit the government to use such evidence,

reasoning that the protections against self-incrimination do not apply

before a suspect is arrested and has been given Miranda warnings. Those circuits hold that because the government had not yet implicitly assured the defendant that his silence would not be used against him, it was admissible.

On the other side, the First, Sixth, Seventh, and Tenth Circuits hold the

Fifth Amendment’s privilege against self-incrimination prohibits the use of prearrest, pre-Miranda silence as substantive evidence. Overall, those decisions stem from the premise that a defendant has a right to remain silent, subject to recognized exceptions such as impeachment in certain situations. Principally, these circuits rely on Griffin v. California, 380 U.S. 609 (1965), which held that the Fifth Amendment forbids prosecutors from commenting at trial on the accused’s refusal to testify, because it would impermissibly burden the exercise of the privilege against self-incrimination, “cut[ting] down on the privilege by making its assertion costly.” Id. at 614. These courts apply this right even before arrest. They reason that the right to remain silent is a constitutional right to say nothing about the allegations against oneself, and though Miranda warnings can provide additional protection, they are not necessary to the existence of the right.

6 Note: This court has taken the position that the prosecution can use a non-testifying defendant’s pre-arrest silence as long as the silence “is not induced by, or a response to, the actions of a government agent.” United States v. Salinas, 480 F.3d 750, 758 (5th Cir. 2007) (construing United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996)). Other circuits have interpreted Zanabria as our fully endorsing use of pre-arrest, pre-Miranda silence. See Combs, 205 F.3d at 283; Oplinger, 150 F.3d at 1067, but the issue is unresolved until this court is faced with a case in which silence is induced by, or is a response to, government action.

Silence and Refusal to Testify by Taking Fifth Amendment

( After a witness asserts a Fifth Amendment privilege not to testify, the trial judge should inquire “into the legitimacy and scope of the witness’s assertion” of the privilege. United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980). “A blanket refusal to testify is unacceptable.” United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Instead, the district court should “make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-founded.” Id. In a case where the district court relied only on

the witness’ “bald assurance that he has a proper Fifth Amendment right” to refuse to answer any questions, we directed the district court on remand to hold a hearing on whether the witness’ “fear of self-incrimination [was] well founded” and to determine “the parameters of his Fifth Amendment rights [. . “.in the context of the testimony [the defendant] wishe[d] to obtain from him [.See United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975). These requirements can be satisfied in different ways. We permitted a witness to invoke the Fifth Amendment and not be subject to further

questioning when the district court said “it was satisfied, based on the evidence already presented in the case, that [the witness] had a legitimate basis for invoking his Fifth Amendment privilege” as to all questions. United States v. Mares, 402 F.3d 511, 514-15 (2005). The district court had already, prior to the assertion of the privilege, been “presented with sufficient evidence with which to understand the likely implications of [the witness’s] testimony and, thus, the scope of his privilege.” Id. at 515. Consequently, the inquiry into the legitimacy and scope” of the assertion did not require more questioning of the witness. If the district court fails to acquire the relevant information, “we look to the materiality and relevancy of the excluded testimony.” Melchor Moreno,

536 F.2d at 1050. We concluded in Melchor Moreno that “the jury might have

given greater credence to the [defendants’] story if [the witness’s] testimony

had corroborated it to some extent.” Id. In the present case, there was no “particularized inquiry” into the areas that the defendant wanted to explore with the allegedly privileged witnesses. There also, though, was no argument by counsel that the inquiry was needed.

Generally, we review a district court’s decision to excuse a witness from testifying based on the invocation of the Fifth Amendment testimonial privilege for abuse of discretion. Mares, 402 F.3d at 514.

SORNA 18 U.S.C. § 2250(a)

( See separate article on SORNA. See sex offender.

( SORNA applied to UCMJ offense. United States v. Diaz, __ F. App’x __ (5th Cir. Sept. 3, 2010)(09-60689).

( From United States v. Byrd, (09-51108)(5th Cir. Mar. 22, 2011):

On June 1, 2010, after briefing in this appeal was substantially complete,

the Supreme Court issued Carr v. United States, 130 S. Ct. 2229 (2010). In Carr,

the Court held that liability under § 2250 “cannot be predicated on pre-SORNA

travel.” Id. at 2232. The Court also stated, in dicta, that “[a] sequential reading

[of the statute’s elements] . . . helps to assure a nexus between a defendant’s

interstate travel and his failure to register as a sex offender.” Id. at 2235. In

dissent, Justice Alito agreed “with the Court that there is a good argument that

§ 2250(a) should not be read to apply to . . . a case, where there is little if any

connection between the offender’s prior interstate movement and his subsequent

failure to register.” Id. at 2248 (Alito, J. dissenting).

We solicited additional briefing from the parties on whether, in light of

Carr, § 2250 requires the nexus alluded to by the Court and whether § 2250

requires the government to prove that the purpose of a defendant’s interstate

travel was to avoid, evade, or elude a state’s registration requirements. We hold

that Carr requires that the elements of the SORNA statute must be satisfied in sequence: an offender must (1) be required by SORNA to register; then (2) travel

in interstate or foreign commerce; and then (3) knowingly fail to register or

update a registration as required by SORNA. We decline to read into the statute

a requirement that the government must prove that the purpose of an offender’s

interstate travel is to avoid, evade, or elude a state’s registration requirement.

( United States v. Johnson, __ F.3d __ (5th Cir. Feb. 4, 2011)(09-50474)

( For standing issue in SORNA, see Standing.

( Johnson asserts he never received notice that he was required to register under SORNA, a denial of due process under the Fifth Amendment. Johnson knew of his obligation to register as a sex offender in Mississippi but was not directly notified of the SORNA requirements or increased federal penalties. Johnson further argues both that SORNA exceeds Congress’s authority under the Commerce Clause and that by directing the Attorney General to decide if SORNA applies retroactively, SORNA violates the nondelegation doctrine. In United States v. Whaley, 577 F.3d 254, 260–64 (5th Cir. 2009) (finding that due process was satisfied through the defendant’s knowledge of his duty to register under state law; SORNA is a valid exercise under the Commerce Clause; and delegation to the Attorney General was permissible), we rejected nearly identical claims. We conclude that Johnson’s prosecution did not violate due process. Further, SORNA is valid under both the Commerce Clause and the principles of

non-delegation.

( Johnson claims that the retroactive application of SORNA violates

the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to

criminal prosecution for non-compliance. We previously addressed this issue in

United States v. Young, 585 F.3d 199, 206 (5th Cir. 2009) and rejected the appellant’s challenge to SORNA under the ex post facto prohibitions of the Constitution.

( Applying our holding to Johnson, we again find that SORNA does not violate the Ex Post Facto Clause. Lastly, Johnson argues that SORNA does not apply to him because Mississippi has not yet implemented SORNA. In United States v. Heth, 596 F.3d 255, 259 (5th Cir. 2010 we found that the defendant was required to register under SORNA regardless of whether the state had implemented SORNA’s administrative requirements.

( We now address two matters of first impression for this court: (1) whether SORNA violates the Tenth Amendment by requiring state officials to administer federal law; and (2) whether the regulations issued by the Attorney General violated the Administrative Procedures Act.

( While SORNA orders sex offenders traveling interstate to register and keep their registration current, SORNA does not require the States to comply with its directives. Instead, the statute allows jurisdictions to decide whether to implement its provisions or lose ten percent of their federal funding otherwise allocated for criminal justice assistance. Of course the Tenth Amendment does not forbid conditioning of federal funding on a state’s implementation of a federal program. It follows that the sex offender registry bargained for here is a valid exercise of Congress’s spending power.

( Turning to the regulations issued by the Attorney General and the

requirements of the Administrative Procedure Act, we again first consider whether Johnson has standing. … Johnson’s standing to contest the rulemaking requires that the statute on its face did not order him to comply with the registration requirements. Our sister courts of appeals differ in their conclusions about SORNA’s reach and its corresponding delegation of authority to the Attorney General. Five circuits have held that the Act did not apply to offenders with preenactment convictions until the Attorney General issued the regulation. In addition, our own court has previously endorsed this position with little pause. Yet four other circuits have held that the language of the statute itself applied the provisions to persons with pre-SORNA sex-offense convictions. The

Supreme Court acknowledged this conflict but had no occasion to decide the issue in Carr v. United States, 130 S. Ct. 2229, 2234 n.2 (2010).. However, Justice Alito’s dissent in Carr, joined by Justices Thomas and Ginsburg, endorsed the delegation interpretation: … We agree with the views expressed in Justice Alito’s dissent and with the Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits—SORNA delegated authority to the Attorney General to determine the applicability of SORNA to pre-enactment offenders. The Supreme Court has repeatedly counseled that in statutory interpretation, “courts must presume that a legislature says in a statute what it means and means in a statute what it says.” Further, “[w]hen the statutory language is plain, the sole function of courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Here, § 16913(d) states “[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before [enactment] . . . .” This language is not ambiguous. Following the plain meaning rule, this phrase delegates to the Attorney General the decision of whether and how the SORNA registration requirements apply to offenders with pre-enactment convictions.

( The courts of appeals are divided over whether the Attorney General properly complied with the APA. The Fourth and Eleventh Circuits did not find an APA violation, while the Sixth and Ninth Circuits held that the Attorney General lacked good cause. The Supreme Court has acknowledged the conflict but “express[ed] no view” on the matter.

… Here, we do not find the Attorney General’s reasons for bypassing the APA’s notice-and-comment and thirty day provisions persuasive. …Here, the Attorney General has not sufficiently stated that following APA procedures would have been “impracticable, unnecessary, or contrary to the public interest.” He did not have good cause for failing to publish the rule thirty days before its effective date nor did good cause exist to bypass the notice-and-comment requirements. … Because the Attorney General’s rulemaking process addressed the same issues raised by Johnson and because Johnson “makes no showing that the outcome of the process would have differed . . . had notice been at its meticulous best,” we find it is clear that the Attorney General’s APA

violations were harmless error.

( United States v. Kebodeaux, __ F.3d ___ (5th Cir. July 8, 2012)(en banc)((08-51185), cert. granted,  (12-418)(January 11, 2013). While in the military, Kebodeaux had consensual sex with a fifteen-yearold when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government when Congress enacted a statute that, as interpreted by the Attorney General, required Kebodeaux to register as a sex offender. When he failed to update his state registration within three days of moving from San Antonio to El Paso, he was convicted under 18 U.S.C. § 2250(a) (also enacted in 2006) and sentenced to a year and a day in prison.

Kebodeaux argues that § 2250(a)(2)(A) and the registration requirements

that it enforces are unconstitutional as applied to him, because they exceed the

constitutional powers of the United States. He is correct: Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military.

The federal requirement that sex offenders register their address is unconstitutional on narrow grounds. We do not call into question Congress’s ability

to impose conditions on a prisoner’s release from custody, including requirements that sex offenders register intrastate changes of address after release. After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution. Some other jurisdictional ground, such as interstate travel, is required.

This finding of unconstitutionality therefore does not affect the registration requirements for (1) any federal sex offender who was in prison or on supervised release when the statute was enacted in 2006 or (2) any federal sex offender convicted since then. Instead, it applies only to those federal sex offenders whom the government deemed capable of being unconditionally released from its jurisdiction before SORNA’s passage in 2006. Moreover, even as to those sex offenders, it means only that Congress could treat them exactly as all state sex offenders already are treated under federal law. It also has no impact on state regulation of sex offenders.

Sovereign Immunity

( Machete Productions, LLC v. Page, __F.3d __ (5th Cir. Dece. 28, 2015)(15-50120)”

Acting in her official capacity for the state of Texas as the director of the Commission, Page concedes that the removal of the case from state to federal court was a voluntary waiver of sovereign immunity. See Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 250 (5th Cir. 2005). However, even if a state waives its sovereign immunity, claims seeking monetary relief under “§ 1983 . . . do not lie against a [s]tate.” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 (1997) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). As a result, Machete’s claims against Page in her official capacity seeking economic damages and retrospective injunctive relief for an Incentive Program grant are barred. Machete’s claims against Page in her official capacity are thus limited to prospective injunctive and declaratory relief. See Will, 491 U.S. at 71 n.10 (“[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the [s]tate.” (citation omitted)). Machete contends that the district court erred in holding that Machete lacked standing to prevent Page and the Commission from continuing to enforce the Incentive Program’s statute and regulations. In the context of prospective injunctive and declaratory relief, past exposure to illegal conduct, by itself, does not evince a present case or controversy and thus cannot establish standing. See O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). “[T]o obtain injunctive relief, the plaintiff must establish a real and immediate threat that [it] w[ill] again suffer similar injury in the future.” In re Stewart, 647 F.3d 553, 557 (5th Cir. 2011) (citation omitted). “[E]specially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.” Henschen v. City of Houston, 959 F.2d 584, 588 (5th Cir. 1992) (quoting Eccles v. Peoples Bank, 333 U.S. 426, 431 (1948)).

A government funding provision will not compromise First Amendment values as long as it “[does] not silence speakers by expressly threaten[ing] censorship of ideas,” or “introduce considerations that, in practice, would effectively preclude or punish the expression of particular views.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 572, 583 (1998) (upholding a federal grant program requiring the responsible agency to fund artistic pieces only after “taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public”). “[A]lthough the First Amendment certainly has application in the subsidy context . . . the [g]overnment may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty stake.” Id. at 587–88. Government funding provisions can become unconstitutional conditions if they “effectively prohibit[] the recipient from engaging in the protected conduct outside the scope of the [government] funded program,” Rust, 500 U.S. at 197, or if the subsidy is “manipulated to have a coercive effect,” Finley, 524 U.S. at 587 (citation omitted).

Special Assessment

( United States v. Salem, __ F.3d __ (5th Cir. June 12, 2015)(14-10751):

( Husband fails to pay $2,900 of a special assessment, and US files

a writ of garnishment for the funds against the co-owned property of spouse to collect.

Upheld. This court reviews a garnishment order for abuse of discretion. United States v. Clayton, 613 F.3d 592, 595 (5th Cir. 2010). We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. See United States v. Branham, 690 F.3d 633, 634–35 (5th Cir. 2012) (per curiam) (holding that only a final order of garnishment, but not an order denying a motion to dissolve a writ of garnishment, is a final appealable order under 28 U.S.C. § 1291).

( Special assessments are collected in the same manner as criminal fines and are therefore treated in the same manner as federal tax liens. See 18 U.S.C. §§ 3013(b), 3613(c). The Department of Justice filed a Notice of Lien in the public records in Dallas County to perfect the lien on Elashi’s property. Although federal law creates the lien on Elashi’s property, state law defines the property interests to which the lien attaches. See United States v. Rodgers, 461 U.S. 677, 683 (1983) (“[I]t has long been an axiom of our tax collection scheme that, although the definition of underlying property interests is left to state law, the consequences that attach to those interests is a matter left to federal law.”). Texas is a community property state. The Texas Family Code defines community property as “property, other than separate property, acquired by either spouse during marriage.” Tex. Fam. Code Ann. § 3.002. All property that the spouses possess during their marriage is presumed to be community property, id. § 3.003, and each spouse has an undivided, one-half interest in all community assets, Medaris v. United States, 884 F.2d 832, 833 (5th Cir. 1989). Community property is further classified as either solely managed community property or jointly managed community property. Solely managed community property is “the community property that the spouse would have owned if single, including . . . personal earnings” and three other categories that are not relevant to this appeal. Tex. Fam. Code Ann. § 3.102(a)(1). All other property is generally jointly managed community property. Id. § 3.102(c). Ordinarily, Texas law does not allow the creditor of one spouse to garnish the non-debtor spouse’s solely managed community property. See id. § 3.202(b). With two exceptions that are not relevant here, the Texas Constitution also states that “[n]o current wages for personal service shall ever be subject to garnishment.” Tex. Const. art. XVI, § 28. The question on appeal is whether these state-law exemptions apply to the federal government when it is collecting special assessments. The district court held that they do not. We agree with the district court.

( A comparison of the relevant federal provisions—the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3613, and the Federal Debt Collection Practices Act (“FDCPA”), 28 U.S.C. §§ 3001–3308—helps to resolve this issue. The MVRA authorizes the United States to collect federal criminal debts “in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.” 18 U.S.C. § 3613(a). The MVRA also broadly permits the United States, “[n]otwithstanding any other Federal law,” to enforce a special-assessment order “against all property or rights to property of the person fined.” Id. (emphasis added). Section 3613 further states that the only property exempt from garnishment is property that the United States cannot seize to satisfy the payment of federal income taxes. See id. Finally, the MVRA likewise explains that federal criminal debts are to be treated in the same manner as federal tax liens. See id. § 3613(c). Thus, under the MVRA, the Government could garnish Salem’s wages.

( A comparison of the relevant federal provisions—the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3613, and the Federal Debt Collection Practices Act (“FDCPA”), 28 U.S.C. §§ 3001–3308—helps to resolve this issue. The MVRA authorizes the United States to collect federal criminal debts “in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.” 18 U.S.C. § 3613(a). The MVRA also broadly permits the United States, “[n]otwithstanding any other Federal law,” to enforce a special-assessment order “against all property or rights to property of the person fined.” Id. (emphasis added). Section 3613 further states that the only property exempt from garnishment is property that the United States cannot seize to satisfy the payment of federal income taxes. See id. Finally, the MVRA likewise explains that federal criminal debts are to be treated in the same manner as federal tax liens. See id. § 3613(c). Thus, under the MVRA, the Government could garnish Salem’s wages.

Special Conditions of Supervised Release

( United States v. Rouland, __ F.3d __ (5th Cir. Aug. 13, 2013)(12-50517).

Cases discusses that special conditions were not known until after sentencing

and that conditions in Jmt were not pronounced in court.

( Where there is a conflict between the written judgment and oral pronouncement, our review of special conditions is for abuse of discretion. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). Notably, as argued by the Government, the premise supporting such review is that the defendant could not raise this issue in the

district court because the defendant “had no opportunity at sentencing to consider, comment on, or object to the special conditions later included in the written judgment.” Id. Importantly, “a defendant has a constitutional right to be present at sentencing.” United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003) (citation omitted). “Th[is] constitutional right . . . is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but . . . is [also] protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” Bigelow, 462 F.3d at 381 (alterations in original) (quoting United States v. Gagnon, 470 U.S. 522, 526 (1985)). “Therefore, if the written judgment conflicts with the sentence pronounced at sentencing, that pronouncement controls.

( Although there is a conflict between the oral sentence and the written judgment in this case, we are persuaded by the Government’s argument that the present matter is factually distinguishable from previous cases requiring us to conform the written judgment to the oral pronouncement. The sentencing colloquy unequivocally demonstrates that Rouland’s counsel had an opportunity in open court to object to the admission of the Exhibit, which included the special conditions.

( Assessing Rouland’s claim under plain error review, we conclude that his

argument is unavailing. Assuming arguendo that Rouland can demonstrate that the district court committed an “error” that was “plain,” Rouland has failed to make a showing under the substantial rights prong, as his counsel conceded this point at oral argument. Because Rouland cannot demonstrate that any error affected his substantial rights, we reject his challenge to the district court’s imposition of the special conditions.

( We have discussed special conditions above. However, as to standard conditions, our review of the challenged standard conditions is for abuse of discretion because—unlike the special conditions discussed supra

in Part II.C—Rouland did not have an opportunity to object to these conditions

at the sentencing hearing. See United States v. Warden, 291 F.3d 363, 364–65

n.1 (5th Cir. 2002). … “[E]xplicit reference to each and every standard condition of supervision is not essential to the defendant’s right to be present at sentencing.” United States v. Torres-Aguilar, 352 F.3d 934, 936 (5th Cir. 2003). Therefore, the district court’s omission of such a condition from the oral pronouncement at sentencing does not create a conflict, as the written judgment clarifies that the standard conditions apply to the defendant’s supervised release term. Id. (citation omitted). However, “if the district court fails to mention a special condition at sentencing, its subsequent inclusion in the written judgment creates a conflict that requires amendment of the written judgment to conform with the oral pronouncement.” Id. (quoting Vega, 332 F.3d at 852–53). Despite this distinction, special conditions may be tantamount to standard conditions under the appropriate circumstances, thereby precluding the need for an oral pronouncement. Id. at 937 (citing United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002) (“The fact that the condition . . . is labeled ‘special’ by the Guidelines is irrevelant.”)).

( “Thus, unlike in Torres-Aguilar, factors supporting imposition of the

special conditions for drug-treatment and mental-health programs were not so

clear as to transform these special, into standard, conditions.” Id. We further

distinguished Bigelow from Torres-Aguilar by noting that the Southern District

of Texas’s form judgment listed the condition at issue in Torres-Aguilar as either

mandatory or standard, whereas the form judgment designated mental-health and substance-abuse treatment under the heading of “SPECIAL CONDITIONS OF SUPERVISION” in Bigelow. Id. Finally, we noted that our prior decision in United States v. Martinez, which held that “district court’s failure to mention

mandatory drug treatment in its oral pronouncement constitutes a conflict, not

an ambiguity” was binding. Id. at 383 (quoting Martinez, 250 F.3d 941, 942 (5th

Cir. 2001)).

Special Issues

Covered in the confusing case of United States v. Gonzales, __ F.3d __ (5th Cir. Nov. 2, 2016)(15-50762)(with strong dissent) (anticipate en banc hearing or cert.

Specialized Skill

( Commercial Driver’s License. Ordonez … also objected to the two-level adjustment on the grounds that possession of a commercial driver’s license (CDL) is not a special skill and that, even assuming possession of a CDL is a special skill, the facts did not support the conclusion that the use of such skill significantly facilitated the commission of the instant offense.

Ordonez argues that the district court erred in determining that he used a special skill, namely the possession of a CDL, to significantly facilitate the commission of the offense. Ordonez argues that his possession of a CDL does not constitute a “special skill” and that it did not significantly facilitate the commission of the offense as required by the Guideline. In support of his argument, he relies on United States v. Gallardo, 266 F. App’x 468 (7th Cir. 2008) (unpublished).

The Guidelines permit a two-level enhancement “[i]f the defendant . . . used a special skill[] in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. A “special skill” is one “not possessed by members of the general public and usually requiring substantial education, training or licensing.” § 3B1.3 cmt. n.4. “Because ‘the application of § 3B1.3 is a sophisticated factual determination,’ we review a § 3B1.3 sentencing enhancement under a clearly erroneous standard.” United States v. Deville, 278 F.3d 500, 508 (5th Cir. 2002) (quoting United States v. Fisher, 7 F.3d 69, 70 (5th Cir. 1993)). We have never directly addressed the issue of whether a CDL may constitute a “special skill,” but other courts have determined that a special skill enhancement based on the ability to drive a tractor trailer truck may be

appropriate. See United States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996) (determining that “ the driving of an 18-wheeler without any reported mishap over several years is a skill well beyond that possessed by the general public” and is sufficient to constitute a “special skill”); United States v. Lewis, 41 F.3d 1209, 1214 (7th Cir. 1994) (“Truck driving requires technical knowledge or ability that the average citizen does not possess.”). We agree that possession of a CDL is a special skill. That does not end our inquiry. Though possession of a CDL is a “special skill,” it triggers the sentencing enhancement under § 3B1.3 only if it “significantly facilitated” the underlying offense. Ordonez cites Gallardo for the proposition that possession of a CDL does not significantly facilitate the concealment or transport of a relatively small amount of drugs. 266 F. App’x at 468. There, the defendant hid 50 kilograms of cocaine in his truck’s sleeper bunk, which the court analogized to hiding the drugs “in the trunk of an ordinary sedan.” Id. at 469. The Seventh Circuit concluded that possessing the CDL did not significantly facilitate hiding the drugs and that the district court clearly erred in applying the enhancement. Id. at 469–70. Gallardo is distinguishable because the drugs in Ordonez’s truck were not hidden in the cab, which would be analogous to transporting drugs in an ordinary vehicle. Secreting the drugs in a large trailer loaded with legitimate

cargo obviously makes the drugs much more difficult for the police to discover. In these circumstances, we agree with the district court’s finding that Ordonez’s

( United States v. Simmons, (5th Cir. April 1, 2011)(09-11031): II.

Simmons next argues that the district court erred by applying an

enhancement for her utilizing sophisticated means during the offense. She contends that the means she utilized were not sophisticated and that an enhancement for use of a special skill pursuant to U.S.S.G. § 3B1.3 should not have applied because she received an enhancement for being in the business of preparing tax returns. She asserts that the enhancement was not appropriate because a sophisticated means enhancement was not applied in United States v. Poltonowicz, 353 F. App’x 690 (3d Cir. 2009), even though the defendant in that tax preparation fraud case had previously worked as an analyst for the IRS criminal investigation division.

While Simmons was not a tax attorney or an accountant, special training

is not necessary for the application of a sophisticated means enhancement. See

United States v. Charroux, 3 F.3d 827, 837 (5th Cir. 1993). The evidence

presented in the PSR showed that Simmons operated a tax return preparation

business, trained and instructed employees on preparing false tax returns and

creating fraudulent supporting documentation, and purchased personal

information used to claim false dependents from clients and the homeless. Her

argument that she could not receive an enhancement under § 3B1.3 and an enhancement for being in the business of preparing tax returns is irrelevant as she did not receive an enhancement under § 3B1.3. In addition, her reliance under Poltonowicz is misplaced as that case did not address the issue of a sophisticated means enhancement, and that opinion does not indicate whether a sophisticated means enhancement was applied or not. See Poltonowicz, 353 F. App’x at 691-95. Given the complex nature of Simmons’ tax preparation fraud scheme, the district court’s finding that she used sophisticated means was plausible in light of the record as a whole, and, therefore, not clearly erroneous. See United States v. Mata, 624 F.3d 170, 173 (5th Cir. 2010).

Speedy Trial.

( A District Court’s factual findings supporting a ruling under the Speedy Trial Act for

clear error and its legal conclusions de novo. United States v. Parker, 505 F.3d 323,

326 (5th Cir. 2007); United States v. Burrell, 634 F.3d 284, 290 (5th Cir. 2011) A

district court’s factual finding is not clearly erroneous if it is

plausible in light of the record as a whole. United States v. Molina, 469 F.3d 408, 413

(5th Cir. 2006).

( “[P]ending motions will toll the trial clock indefinitely; there is no independent

requirement that the delay attributable to the motions be ‘reasonable.’” United States

v. Kington, 875 F.2d 1091, 1109 (5th Cir. 1989).

( Unlike other unpreserved claims, even plain error review is not available as to Speedy

Trial Act issues that are not properly raised before trial.” See United States v. Belton,

520 F.3d 80, 81 (1st Cir. 2008), United States v. Abad, 514 F.3d 271, 274 (2d Cir.

2008) (explaining that while unpreserved constitutional claims are subject to review

for plain error, unpreserved Speedy Trial Act claims are deemed waived, in

accordance with § 3162(a)(2)). Yet even assuming, arguendo, that the plain error

standard of review applies, Williams’s claims must fail. See United States v. Green

324 F.3d 375, 381 (5th Cir. 2003) (applying the plain error standard of review where

the theory on appeal is different from that raised before the trial court).

( United States v. Ortiz, __ F.3d ___ (5th Cir. July 17, 2012)(11-20220):

The Speedy Trial Act requires that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). “The Act contains two main time limits: the limit in § 3161(b) running from arrest or summons to indictment, and the seventy-day limit in § 3161(c) running from indictment to trial.” United States v. DeJohn, 368 F.3d 533, 538 (6th Cir. 2004). “The purpose of the former, the thirty-day limit at issue in this case, is to insure that individuals will not languish in jail or on bond without being formally

indicted on particular charges.” Id. The Act further provides that “[t]he following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed[:] . . . Any period of delay resulting from the absence [of] . . . an essential witness.” 18 U.S.C. § 3161(h)(3)(A).

The government concedes that the indictment was filed beyond the 30-day deadline prescribed by the Speedy Trial Act, but contends that Diaz-Soto was an essential witness and that his absence, as a fugitive, tolled the 30-day time limit for filing Ortiz’s indictment. … Ortiz submits four arguments in response: … (3) that Diaz-Soto was not an essential witness because his testimony was not needed to obtain an indictment from the grand jury … We agree with Ortiz on the third point, that Diaz-Soto was not “an

essential witness” because his testimony was not necessary to obtain a grand

jury indictment, and thus, do not need to reach his other arguments.

The Speedy Trial Act does not define “essential witness,” and although this

court has not had occasion to expound this term, several of our sister circuits

have. See United States v. Miles, 290 F.3d 1341 (11th Cir. 2002); United States

v. Hamilton, 46 F.3d 271 (3d Cir. 1995); United States v. McNeil, 911 F.2d 768

(D.C. Cir. 1990); United States v. Eagle Hawk, 815 F.2d 1213 (8th Cir. 1987);

United States v. Marrero, 705 F.2d 652 (2d Cir. 1983). All of those courts began

by noting that the Senate Judiciary Committee report accompanying the Speedy

Trial Act provides the following explanation: “By an ‘essential witness’ the

Committee means a witness so essential to the proceeding that continuation

without the witness would either be impossible or would likely result in a

miscarriage of justice.” S. Rep. No. 93-1021, at 37 (1984), reprinted in 1984

U.S.C.C.A.N. 7401; see Miles, 290 F.3d at 1350; Hamilton, 46 F.3d at 277;

McNeil, 911 F.2d at 773; Eagle Hawk, 815 F.2d at 1218; Marrero, 705 F.2d at

656. “If, however, the witness’s anticipated testimony will be merely cumulative,

or substantially irrelevant, that witness should be deemed non-essential.” Eagle

Hawk, 815 F.2d at 1218; Miles, 290 F.3d at 1350 (quoting the same statement

from Eagle Hawk, 815 F.2d at 1218); Hamilton, 46 F.3d at 277 (“[I]f the witness’s

testimony will be merely cumulative or substantially irrelevant, the witness

should not be deemed essential.” (citing Eagle Hawk, 815 F.2d at 1218)); McNeil,

911 F.2d at 774 (“While Simms’s testimony may have added something to the

Government’s case in this regard, it clearly was cumulative, not essential.”); see

also Marrero, 705 F.2d at 656 (“The legislative history reveals that by [‘essential

witness’] Congress meant to refer to witnesses whose testimony would be

extremely important to the proceeding, perhaps providing proof that was not

otherwise attainable.”).

Diaz-Soto’s statement to the police implicating Ortiz would have been

admissible in the grand jury without his testimony, see Fed. R. Evid. 1101(d)(2)

(the rule against hearsay does not apply in grand-jury proceedings), and

therefore, because his testimony would have been merely cumulative for the

purpose of obtaining a grand jury indictment, we have no trouble concluding that

Diaz-Soto was not an essential witness to that proceeding.

The Act further provides that “[i]n determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” Id. “‘[T]he statute leaves to the court’s discretion,’” based on consideration of these factors, “‘whether to dismiss the [case] with or without prejudice,’” and “‘[o]ur usual practice is to remand for the district court

to consider these factors. Burrell, 634 F.3d at 293 (quoting United States v.

Stephens, 489 F.3d 647, 657-58 (5th Cir. 2007)).

( The government filed a “notice of intent to enter guilty plea” on February

16, 2011. The notice stated that Dignam and the government

propose to enter into a Plea Agreement to be tendered to this

Honorable Court pursuant to Rule 11 of the Federal Rules of

Criminal Procedure. This Notice is entered in order to interrupt the

Speedy Trial Clock pursuant to 18 U.S.C. § 3161(h)(1)(G).

Standby Counsel. See Faretta Hearings.

Standing

( Standing to Challenge Constitutionality of Criminal Statute

Bond v. United States, 564 U.S. ___ (U.S. June 16, 20110(09-1227)

( Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 144 (1939) is irrelevant as this court has disapproved that case as authoritative for purposes of Article III’s case-or-controversy requirements. Assoc. of Data Processing Svc Organizations, Inc. v. Camp, 397 U.S. 150, 252-54. … Federalism’s limitations are not a matter of rights belonging only to the states. In a proper case, a litigant may challenge a law as enacted in contravention of federalism, just as injured individuals may challenge actions that transgress, e.g. separation-of-powers limitations. The claim need not depend on the vicarious assertion of a State’s constitutional interests, even if those interests are implicated.

( United States v. Johnson, __ F.3d __ (5th Cir. Feb. 4, 2011)(09-50474)(Assuming without deciding that standing exists in attack on SORNA:

( However, Tennessee Electric’s applicability to Johnson’s case may be

questioned (1939 decision of Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 144 (1939) (“[T]here is no objection . . . by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the [Tenth] amendment.”)in which the Supreme Court denied a private party Tenth Amendment standing. because it assessed standing in the context of the long-since repudiated “legal interest” test, rather than the modern Article III standing requirements articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).. These modern requirements are: (1) an injury in fact that is concrete and actual or imminent, (2) a causal connection between the injury and challenged action of the defendant, and (3) a likelihood (not mere speculation) that the injury would be

redressed by a favorable decision. Johnson was injured by being imprisoned under SORNA; the statute led to his injury; and he would find relief if this court struck down SORNA under the Tenth Amendment. On this basis, he has satisfied Lujan’s Article III standing requirements.

( Our sister circuits

( The First, Second, Third, Eighth, and Tenth Circuits have held that private parties do not have standing to bring such claims. See United States v. Shenandoah, 595 F.3d 151, 161–62 (3d Cir. 2010); United States v. Hacker, 565 F.3d 522, 526 (8th Cir. 2009); Brooklyn Legal Servs. Corp. B. v. Legal Servs. Corp., 462 F.3d 219, 234–36 (2d Cir. 2006); Medeiros v. Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005); United States v. Parker, 362 F.3d 1279, 1284 (10th Cir. 2004). The Seventh and Eleventh Circuits have permitted private parties to assert Tenth Amendment claims. See Gillespie v. City of Indianapolis, 185 F.3d 693, 700 (7th Cir. 1999), abrogated on other grounds by District of Columbia v.Heller, 554 U.S. 570 (2008); Atlanta Gas Light Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1368 (11th Cir. 1982). Of these, Shenandoah and Hacker both addressed the issue in the context of interpreting SORNA, while the

remaining cases answered the question in the course of analyzing other claims. In a Tenth Amendment case brought by a state that lacked a relevant injury, the Ninth Circuit held “[o]nly states have standing to pursue claims alleging violations of the Tenth Amendment by the federal government.” Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir. 2009). In an unpublished opinion, the Ninth Circuit more explicitly affirmed its position that private parties lack Tenth Amendment standing. Stop the Casino 101 Coalition v. Salazar, 384 F. App’x 546, 548 (9th Cir. 2010) (unpublished) (“We also remind STOP that it is the settled law of this circuit that only states have standing to bring Tenth Amendment claims.”) (citing Legal Servs. Corp., 552 F.3d at 972)

are divided over whether, in spite of Lujan, Tennessee Electric prohibits private parties from challenging the constitutionality of a federal statute on Tenth Amendment grounds. Recently, the Supreme Court granted certiorari in a case with this precise question: “[w]hether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth

Amendment.” Petition for Writ of Certiorari at I, Bond v. United States, No. 09-1227 (U.S. filed Apr. 30 9, 2010), 2010 WL 1506717, appeal from 581 F.3d 128 (3d Cir. 2009), cert. granted 131 S. Ct. 455 (2010). While this is a weighty constitutional issue, we need not address it here.

( No standing for for-profit organization collecting for charities in challenging

Texas disclosure statute. National Federal of the Blind v. Abbott, __ F.3d ____ (5th Cir. July 15, 2011)(10-10236).

Statute Reviewed For Sentencing

( United States v. Munoz-Ortenza, 563 F. 3d 112 (5th Cir. 2009). We review the district

court’s characterization of a defendant’s prior conviction de novo. United States v. Balderas-Rubio, 499 F.3d 470, 472 (5th Cir. 2007), cert. denied, 128 S. Ct. 1304

(2008). When a defendant does not raise the issue in the district court, we review for plain error. See United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). We find plain error when we find a clear and obvious error that affected the defendant’s substantial rights, and then we may exercise our discretion to correct the error only if

“the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. … We use a common-sense approach to determine if a prior

conviction is categorically an enumerated offense, deciding whether an offense is

sexual abuse of a minor according to its ordinary, contemporary and common

meaning. Izaguirre-Flores, 405 F.3d at 274–75; see United States v. Dominguez-

Ochoa, 386 F.3d 639, 642–43 (5th Cir. 2004) (“Taylor instructs that where, as here,

the enhancement provision does not specifically define the enumerated offense, we

must define it according to its ‘generic, contemporary meaning’ and should rely

on a uniform definition, regardless of the ‘labels employed by the various States’

criminal codes.’” (quoting Taylor v. United States, 495 U.S. 575, 592, 598

(1990))). We ground this analysis in the statute of conviction rather than the

defendant’s specific conduct. United States v. Najera-Najera, 519 F.3d 509, 511

(5th Cir.), cert. denied, 129 S. Ct. 139 (2008). “If the statute of conviction is

overly broad, we may also examine certain adjudicative records to determine

whether the prior conviction qualifies as an enumerated offense.” United States

v. Murillo-Lopez, 444 F.3d 337, 339–40 (5th Cir. 2006).

Substantial Assistance under USSG 5K1

( 5K1 must be Based on Its on Factors, not Seriousness of Crime. United States v.

Desselle, 45- F.3d 179 (5th Cir. 2006): Although judges have latitude under   5K1.1, they must "conduct[] a judicial inquiry into each individual case before independently determining the propriety and extent of any departure in the imposition of sentence." United States v. Johnson, 33 F.3d 8, 9 (5th Cir. 1994). Section 5K1.1 requires the court to state its reasons for imposing the departure, reasons "that may include, but are not limited to, consideration of the following:"

(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

(3) the nature and extent of the defendant's assistance;

(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

(5) the timeliness of the defendant's assistance. U.S.S.G.   5K1.1.

        Although the enumerated reasons are not the only factors a court may consider in determining the extent of the   5K1.1 departure, a court must begin to assess a   5K1.1 departure using the criteria listed by the Guidelines. Further, the additional factors a court may consider must be related to determining the "nature, extent, and significance of assistance." See U.S.S.G.   5K1.1 Application Note Background. We thus join the majority of circuits in holding that the extent of a   5K1.1 or   3553(e) departure must be based solely on assistance-related concerns.[1]

183:        The district court here abused its discretion by considering non-assistance-related factors in determining the extent of the   5K1.1 departure. See Harris, 293 F.3d at 871 (abuse of discretion if district court departs for an impermissible reason); see also United States v. McVay, 447 F.3d 1348, 1355 (11th Cir. May 5, 2006) (consideration of improper factors in the context of a   5K1.1 departure "was error as a matter of law and must be reversed"). Although the district court had discretion to decide "(1) whether to depart from the guidelines based on substantial assistance, and (2) if so, the reasonable extent of that departure, plainly it did not have discretion to consider factors altogether unrelated to the nature and extent of [the defendant's] assistance." Id. at 1335.

        Moreover, on the record, the extraordinary departure is not supported by the nature of Desselle's assistance. "An extraordinary reduction must be supported by extraordinary circumstances." United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005). Without such a rule, there would be "little room for greater departures for defendants who actually participate in controlled buys, wear wires, give grand jury and trial testimony, or are subjected to significant risk of injury or death to themselves or their family." United States v. Haack, 403 F.3d 997, 1005-06 (8th Cir. 2005). Desselle did not follow instructions from the FBI agents with whom he dealt and provided little helpful information. These are clearly not the "extraordinary circumstances" required to support a departure of sixty-seven percent.

( Failure to Object Decided by Plain Error Doctrine. United States v. Diaz, (5th Cir. April 9, 2016) (15-10075).

Substantial Assistance under USSG 5K1

( District courts have “almost complete discretion to deny” a § 5K1.1 motion. United States v. Cooper, 274 F.3d 230, 248 (5th Cir. 2001). We lack discretion to review the denial of a motion for downward departure unless the denial was due to the district court’s mistaken belief that it could not grant the motion. Cooper, 274 F.3d at 248; see also United States v. Tuma, 738 F.3d 681, 691 (5th Cir. 2013), cert. denied, 134 S. Ct. 2875 (2014). United States v. Moreno, (5th Cir. October 12, 2015)(15-10005).

Summary Affirmance.

United States v. Monshizadeh, (5th Cir. Feb. 15, 2017)(16-10544):

Summary disposition in lieu of the traditional appellate process is “necessary and proper” in “cases where time is truly of the essence,” or where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). This court’s summary affirmance procedure is generally reserved for cases in which the parties concede that the issues are foreclosed by circuit precedent. See, e.g., United States v. Lopez, 461 F. App’x 372, 374 n.6 (5th Cir. 2012). In this appeal, Monshizadeh does not concede that the first issue he raises is foreclosed and opposes the Government’s motion for summary affirmance. Therefore, we deny the Government’s motion for summary affirmance, see Groendyke Transp., Inc., 406 F.2d at 1162, but we dispense with further briefing because Monshizadeh is not entitled to the relief that he seeks.

Summary Charts and Summary Witnesses

( From United States v. Armstrong, 619 F.3d 380 (5th Cir. Sept. 8, 2010)(08-20323):

SUMMARY CHART

Summary chart under Federal Rule of Evidence 1006. We review the admission

of evidence, including summaries and summary testimony, for abuse of discretion.

United States v. Harms, 442 F.3d 367, 375 (5th Cir. 2006). If there is error, it is “excused unless it had a substantial and injurious effect or influence in determining the jury’s verdict.” Id. (internal quotatoin marks omitted.

Rule 1006 provides that “[t]he contents of voluminous writings, recordings,

or photographs which cannot conveniently be examined in court may be presented

in the form of a chart, summary, or calculation.” Fifth Circuit precedent conflicts on whether rule 1006 allows the introduction of summaries of evidence that is already before the jury, or whether instead it is limited to summaries of voluminous records that have not been presented in court. We need not resolve 1 that conflict, however, because even if summaries of information already before the jury, such as Exhibit 161, are inadmissible, the admission of Exhibit 161 was harmless error.

Ramcharan argues that Exhibit 161 had a “substantial and injurious effect

or influence,” Harms, 442 F.3d at 375, for two reasons. First, she professes that

the exhibit drew an inappropriate inference from the underlying evidence by

implying that Ramcharan was criminally liable for all the properties in the chart, but the evidence connected her to only four of them. The presence of an inference itself is not prejudicial, for under rule 1006, “‘[t]he essential requirement is not that the charts be free from reliance on any assumptions, but rather that these assumptions be supported by evidence in the record.’” Buck, 324 F.3d at 791 (citing United States v. Diez, 515 F.2d 892, 906 (5th Cir. 1975)).

Moreover, Exhibit 161 did not suggest any conclusions unsupported by the evidence. The witness who prepared the exhibit clarified in her testimony, on direct and

cross-examination, that Ramcharan had a connection only to the properties that had a line drawn to her picture. Thus, there was no reason for the jury to believe that she was connected to the other properties as well.

Second, Ramcharan contends that admitting Exhibit 161 may have bolstered the credibility of the witnesses testifying to the underlying evidence. That argument fails, however, because the court made plain to the jury that it should consider the exhibit only as an aid in understanding the other evidence. Immediately after admitting Exhibit 161, the court commented: I remind the jury that this is among those summary charts that we

talked about yesterday. This chart is not independent evidence. It is admitted to assist in summarizing other evidence. If you find that the exhibit does not accurately or correctly summarize the evidence that has been otherwise established, you should disregard it to that extent, and give it only the weight that you think it deserves. The final jury instructions included a similar comment. Those instructions dispelled any danger that the jury would give weight to Exhibit 161 as substantive evidence or to bolster credibility. Thus, the admission of Exhibit 161, if error, was harmless.

1

.Compare United States v. Bishop, 264 F.3d 535, 547-48 (5th Cir. 2001) (allowing introduction of summary charts that prosecutors “based . . . on testimony and documentary evidence

presented to the jury”), and United States v. Stephens, 779 F.2d 232, 238-39 (5th Cir.

1985) (stating that the language of rule 1006 extends to summaries of writings that have been

presented in court), with United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003) (“Th[e] use

of summaries [allowed under rule 1006] should be distinguished from charts and summaries

used only for demonstrative purposes to clarify or amplify argument based on evidence that

has already been admitted. . . . Although some Courts have considered such charts and summaries under Rule 1006, the Rule is really not applicable because pedagogical summaries are not evidence. Rather, they are demonstrative aids governed by Rules 403 and 611” (quoting 5 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL § 1006.02[5], at 1006-6 (8th ed. 2002))).

Testimony of the Summary Witness.

Defendants argue that the court erred when it allowed Postal Inspector

Jan Tarpley to testify as a summary witness for the government. Because defendants

objected to Tarpley’s testimony, we review its admission for abuse of

discretion. Avants, 367 F.3d at 443.

Although this court allows summary witness testimony in “limited circumstances” in complex cases, we have “repeatedly warned of its dangers.” United States v. Nguyen, 504 F.3d 561 (5th Cir. 2007). “While such witnesses may be

appropriate for summarizing voluminous records, as contemplated by Rule 1006,

rebuttal testimony by an advocate summarizing and organizing the case for the

jury constitutes a very different phenomenon, not justified by the Federal Rules

of Evidence or our precedent.” United States v. Fullwood, 342 F.3d 409, 414 (5th

Cir. 2003). In particular, “summary witnesses are not to be used as a substitute

for, or a supplement to, closing argument.” Id.

To minimize the danger of abuse, summary testimony “must have an adequate

foundation in evidence that is already admitted, and should be accompanied by a cautionary jury instruction.” Bishop, 264 F.3d at 547. Moreover, “[f]ull cross-examination and admonitions to the jury minimize the risk of prejudice.”

Id.

Here the evidence involving numerous witnesses, technical testimony, and scores of exhibits has sufficient complexity to justify use of a summary witness. Nothing in the record suggests that Tarpley’s testimony went beyond summarizing the evidence already in the record, and Tarpley was subject to extensive cross-examination. Moreover, even though the court’s instructions did not explicitly address summary testimony, they did warn the jury generally not to take summaries as substantive evidence. Thus, the district court did not abuse its discretion by allowing the use of this summary witness.

( D claims that the district court erred because (1) the Government did not also enter the underlying phone records into evidence, and (2) the district court failed to provide a contemporaneous limiting jury instruction that the charts were not, themselves, proof of facts. These arguments are foreclosed by precedent. See United States v. Valencia, 600 F.3d 389, 417–18 (5th Cir. 2010) (holding that requiring the admission of underlying records “would contravene the plain language and purposes of Rule 1006”); United States v. Williams, 264 F.3d 561, 574–75 (5th Cir. 2001) (determining that “[a] summary chart that meets the requirements of Rule 1006 is itself evidence and no [limiting] instruction is needed”).

Summary Judgment

( applying the same standard as the district court. Kornman & Assocs. v. United

States, 527 F.3d 443, 450 (5th Cir. 2008). This court reviews findings of fact for

clear error and legal issues de novo. Houston Exploration Co. v. Halliburton

Energy Servs., Inc., 359 F.3d 777, 779 (5th Cir. 2004). Specifically, a district court’s characterization of a transaction for tax purposes is a question of law subject to de novo review, but the particular facts from which that characterization is made are reviewed for clear error. See Compaq Computer Corp. v. Comm’r, 277 F.3d 778, 780 (5th Cir. 2001) (citing Frank Lyon Co. v. United States, 435 U.S. 561, 581 n.16 (1978)).

Superseding Indictment

( A superseding indictment may be filed any time before trial on the merits. See United States v. Millet, 559 F.2d 253, 257–58 (5th Cir. 1977) (affirming denial of motion to

dismiss superseding indictment returned six days before trial). Even assuming that a district court may disallow a superseding indictment that prejudices the defendant, we find that Trahan made an inadequate showing of prejudice in this case. Cf. United States v. Grossman, 843 F.2d 78, 82–83 (2d Cir. 1988) (making a similar assumption and rejecting the defendant’s claims of prejudice resulting from a superseding indictment returned two business days before trial). Although Trahan sought no continuance but contended that defending himself against the new charge necessitated expert testimony regarding the narrow issue of the amount of codeine consistent with possession, he did not assert that the remaining twelve days before trial did not afford him sufficient opportunity to procure such an expert or otherwise indicate how much time would be

required. Trahan’s allegations of unfair surprise are also substantially undermined by his own acknowledged awareness of the facts underlying the newly-added count and the Government’s uncontroverted representation that it had already provided Trahan the relevant evidence during discovery. To the extent that the district court concluded otherwise, we hold those findings are clearly erroneous in light of the record.

( United States v. McMillan, 600 F.3d 434 (5th Cir. 2010). Six-month safe harbor period for superseding indictment after original dismissal permitted by 18 U.S.C. § 3288 if original indictment was defective. No running of statute of limitations.

Supervised Release—Term of:

( See separate Law Primer on Supervised Release.

( When a defendant does not object to the district court’s imposition of a life term of

supervised release, review is for plain error only. See United States v. Willingham,

497 F.3d 541, 544 (5th Cir. 2007). To show plain error, Diaz 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, 77 U.S.L.W. 3398 (U.S. Jan. 12, 2009)

(No. 08-7559). If appellant makes such a showing, this court has the discretion to

correct the error but only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

Supervised Release

( United States v. Thomas, 600 F.3d 387 (5th Cir. March 10, 2010)(09-30426):

Jeffery Thomas, III, pleaded guilty to possession of a firearm by a convicted felon, and, on April 23, 2003, the district court sentenced him to 46 months of imprisonment and three years of supervised release. Following the service of his term of imprisonment, the district court revoked Thomas’s supervised release, and it sentenced him to 24 months of imprisonment and one year of supervised release. Following Thomas’s second release, the district court again revoked his supervised release, and it sentenced him to an additional 24-month term of imprisonment. Thomas appeals the sentence imposed following the second revocation of his supervised release.

Thomas argues that the district court violated the Ex Post Facto Clause by applying the PROTECT Act amendment to 18 U.S.C. § 3583(e)(3) in his case because his initial offense, conviction, and sentence all occurred before the enactment of the PROTECT Act. See PROTECT Act, Pub. L. No. 108-21 § 101, 117 Stat. 650, 651. He maintains that under the pre-PROTECT Act version of § 3583(e)(3), he could only be sentenced to a cumulative total of 24 months of imprisonment on all revocations of his supervised release because his original conviction was for a Class C felony. Due to the prior sentence of 24 months of imprisonment that he served upon the first revocation of his supervised release, he maintains that the present sentence of 24 months of imprisonment exceeds the statutory maximum. While Thomas maintains that he properly preserved his argument in the district court, he contends that even if he failed to preserve

the issue, the imposition of a sentence exceeding the statutory maximum constitutes plain error. The Government concedes that the sentence exceeded the statutory maximum, and it joins Thomas’s request that the sentence be vacated.

While Thomas argued in the district court that he could not be sentenced to a further term of imprisonment because he had served 24 months of imprisonment upon the first revocation of his supervised release, he did not raise the Ex Post Facto Clause argument that he raises on appeal. Nevertheless, “because a sentence which exceeds the statutory maximum is an illegal sentence and therefore constitutes plain error,” we review this issue de novo. United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008) (internal quotation marks and citation omitted).

Thomas’s original conviction was for possession of a firearm by a convicted

felon. The statutory maximum sentence for that offense was ten years of imprisonment thereby making the offense a Class C felony. See 18 U.S.C. §§ 924(a)(2), 3559(a)(3). Accordingly, the statutory maximum sentence of imprisonment that the district court could impose upon the revocation of Thomas’s supervised release was 24 months of imprisonment. 18 U.S.C. § 3583(e)(3). Prior to the PROTECT Act amendment to § 3583(e)(3), the 24- month maximum sentence that could be imposed for the revocation of supervised release following a conviction for a Class C felony was a cumulative maximum sentence that could be imposed for all revocations of supervised release. United States v. Jackson, 329 F.3d 406, 407-08 (5th Cir. 2003). The PROTECT Act,

which went into effect on April 30, 2003, modified § 3583(e)(3) to provide that the

statutory maximum sentence that could be imposed upon the revocation of supervised release applies upon “any such revocation,” and courts have interpreted this language to mean that the statutory maximum sentence was no longer cumulative. See Vera, 542 F.3d at 461 n.2 (citation omitted); United States v. Lewis, 519 F.3d 822, 824-25 (8th Cir.) (citations omitted), cert. denied, 129 S. Ct. 166 (2008); see also PROTECT Act, Pub. L. No. 108-21 § 101, 117 Stat. 650, 651.

The PROTECT Act went into effect on April 30, 2003, after Thomas’s initial offense, conviction, and sentencing. See, e.g., Lewis, 519 F.3d at 824. “Since post-revocation penalties relate to the original offense,” to apply the post-PROTECT Act version of § 3583(e)(3) to Thomas “would be to apply this section retroactively (and to raise the remaining ex post facto question, whether that application makes him worse off).” Johnson v. United States, 529 U.S. 694, 701 (2000). Prior to examining the Ex Post Facto Clause issue, however, we must first determine whether Congress intended the PROTECT Act amendment to § 3583(e)(3) to apply retroactively. See id. Barring a clear statement of intent for a statute to apply retroactively, statutes are not given retroactive effect. Id. Although this court has not considered whether the PROTECT Act amendments to § 3583(e)(3) apply retroactively, see United States v. Vera, 542 F.3d 457, 461 n.2 (5th Cir. 2008), the First Circuit has held that nothing in the PROTECT Act “as it concerns § 3583(e)(3) suggests an effort to apply this amendment retroactively.” United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir. 2004). Furthermore, the Eight Circuit has also refused to apply the PROTECT Act amendment to § 3583(e)(3) retroactively. United States v. Hergott, 562 F.3d 968, 970 (8th Cir. 2009) (remanding for resentencing because the appellant’s sentence violated the pre-PROTECT Act statutory maximum under § 3583(e)(3)). Similarly, courts have also held that the PROTECT Act amendment to § 3583(h) does not apply retroactively. See United States v. Brown, 163 F. App’x 370, 373 (6th Cir. 2006); United States v. Peters, 147 F. App’x 836, 837-38 (11th Cir. 2005). The reasoning in the decisions of our sister circuits appears sound, and, accordingly, we accept the Government’s concession that the PROTECT Act amendment to § 3583(e)(3) does not apply retroactively. Thomas served 24 months of imprisonment upon the first revocation of his supervised release, and, therefore, could not be sentenced to a further term of imprisonment upon the second revocation of his supervised release under the version of § 3583(e)(3) applicable to him. See United States v. Jackson, 329 F.3d 406, 407-08 (5th Cir. 2003). Accordingly, the judgment of the district court is vacated, and the case is remanded to the district court with the instruction that Thomas be discharged from custody. VACATED AND REMANDED.

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