Court Concludes Traffic Stop was Illegally Extended, and Reverses Denial of Motion to Suppress

United States v. Jenson, No. 05-50683 (5th Cir. Aug. 23, 2006)

Jenson is notable for a couple of reasons. First, it demonstrates that the reasonable suspicion standard actually has teeth by holding that a state trooper lacked a reasonable suspicion to extend a traffic stop, because the Government failed to articulate a connection between the allegedly suspicious totality of circumstances surrounding the stop and some specific criminal activity. Second, it suggests that Brigham isn't quite as broad as it might appear. This is one that you'll definitely want to keep handy in your toolbox.

The facts: When Jenson was pulled over by a state trooper for speeding, he took 30 seconds to one minute to come to a complete stop. The trooper ran the driver's licenses of Jenson and his two passengers. Within a few minutes the license checks came back clean. The trooper finished writing out the warning that he'd started before the checks came back, and issued it to Jenson. The trooper thought Jenson was acting nervous, so he continued to question Jenson and one of the passengers about their travel plans. The trooper perceived some (picayune) discrepancies in their answers, so he asked for and received Jenson's consent to search the vehicle. Before beginning the search, the trooper told Jenson he would have to pat him down. Jenson became agitated, complained about harassment, and started emptying his pockets. The trooper unholstered his gun and ordered Jenson to put his hands behind his back. The frisk turned up a pistol, so the trooper ran a criminal background check on Jenson which revealed that he was a convicted felon. Another officer found a bag of marijuana in Jenson's sock when he was brought to jail.

The district court denied Jenson's motion to suppress, and Jenson appealed. "Jenson concede[d] that his speeding justified the traffic stop at its inception. Therefore, the sole issue on appeal [was] whether the officer's subsequent actions, including his request to search the vehicle and his pat-down search of Jenson's person, were reasonably related to the circumstances justifying the stop." Slip op. at 3. Because of Brigham, that question often turns on whether a reasonable suspicion of additional criminal activity developed prior to the return of checks on a driver's and passengers' ID's. "If all computer checks come back clean, then as a general matter reasonable suspicion disappears, and there is no legitimate reason for extending the stop." Id. at 4.

On the facts of this case, "the specific issue of first impression [was] whether taking an unusual amount of time to pull over, coupled with nervous behavior by the driver, amounts to reasonable suspicion to justify prolonged detention." Id. The court answered that question "no," principally because "the government [did] not present adequate evidence of a nexus between Jenson's allegedly suspicious behavior and any specific criminal activity." Id. at 5 (emphasis added). (The court went on to hold that although the district court did not clearly err in finding that Jenson's consent to search the vehicle was voluntary, it was nevertheless not an independent act of free will.)

That's significant. Commonly, the Government will simply recite the facts comprising the totality of circumstances surrounding a given seizure, and then baldly assert that the facts amount to a reasonable suspicion without bothering to explain exactly how those facts lead to a reasonable inference that there is some specific criminal activity afoot. And all too often courts will do the same thing. Jenson, on the other hand, makes clear that a vague, inchoate assertion of suspicious circumstances is not enough to meet the standard for a Terry stop.

Then there's this interesting footnote regarding the scope of Brigham:

Some language in Brigham suggests that it does not matter in what sequence the police ask for consent to search the vehicle and conduct the background ID search. See Brigham, 382 F.3d at 511 ("There is . . . no constitutional stopwatch on traffic stops."); id. (stating that ID searches "need not be pursued to the exclusion of, or in particular sequence with, other efficient means."). As quoted above, however, we put particular emphasis on the fact that defendants' ID's had not yet cleared, and we explicitly stated that the government had not asked the en banc court to reconsider Dortch, Jones, or Santiago. See id. at 510 n.10. The best understanding of Brigham is to treat as decisive the fact that, in that case, one passenger presented the police with a fake license, which (a) heightened suspicion about the passenger's activities and (b) necessarily extended the time required to identify and clear the vehicle's occupants.

Slip op. at 8 n.14. So look for a way to distinguish Brigham on its facts the next time you pursue a motion to suppress arising out of a traffic stop.

New Options for Electronic Slip Opinion Subscriptions

If you like to get slip opinions while they're still fresh out of the oven and piping hot, you now have some more choices. According to this notice on the Fifth Circuit's website:

As part of the recent maintenance we have enabled new features
for the opinions subscriptions service.

• Can receive the message in HTML format instead of plain text. Selecting this option provides you hyperlinks to each opinion within the body of the message.
• Can have the opinions mailed to you in PDF format instead of WordPerfect.
• If you select HTML format, you can turn off the attachments altogether if you do not wish to receive them. This feature is only enabled if HTML is selected.

Sentence Vacated in Part Because of Conflict Between Oral Pronouncement and Written Judgment

United States v. Bigelow, No. 05-20539 (5th Cir. Aug. 23, 2006)

The district court only imposed one special condition of supervised release when it orally pronounced the sentence at the sentencing hearing. The written judgment, however, included two special conditions of release that were not part of the oral pronoucement and one special condition that was broader than the one mentioned at the sentencing hearing. The court of appeals held that all three of the differences were conflicts, not ambiguities, and vacated the sentence in part and remanded with instructions to conform the written judgment to the oral pronouncement.

Although Bigelow doesn't appear break any new ground, it does serve as a reminder to carefully review the written judgment to make sure that it doesn't add anything that wasn't part of the oral pronouncement of sentence.

The Guidelines are Dead. Long Live the Guidelines.

United States v. Guidry, No. 05-30543 (5th Cir. Aug. 23, 2006)

Another below-guidelines sentence falls. This time because the sentence "is based on clearly erroneous factual determinations, puts significant weight on irrelevant factors, and ignores factors that should be given significant weight." Slip op. at 7. More specifically, the district court 1) clearly erred in finding that Guidry's criminal history (Cat I) wasn't that serious and that he probably wasn't a major drug dealer, 2) ignored a guidelines policy statement proclaiming that family ties and responsibilities aren't ordinarily relevant, and 3) shouldn't have considered whether Guidry was fully aware that relevant conduct could more than triple his sentencing exposure compared to the drug quantities alleged in the indictment, because neither constitutionally ineffective counsel nor "adequate but less than perfect counsel" are relevant sentencing factors.*

What's especially remarkable about this opinion (apart from its muscular exercise of reasonableness review) is this paragraph:

The district court also noted that Guidry supported his family and stated it would take this fact into account “when determining the need to promote respect for the law and to provide just punishment for the offense.” “In sentencing a defendant . . . family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted.” U.S.S.G. § 5H1.6. The district court is supposed to consider such policy statements by the Sentencing Commission. 18 U.S.C. § 3553(a)(5)(A). The district court failed to acknowledge the policy statement or to give any indication that Guidry’s family ties are somehow extraordinary such that the policy statement would not apply. By ignoring the policy statement, the district court failed to give significant weight to a § 3553(a) factor, further making its non-Guideline sentence unreasonable.

Slip op. at 5-6 (emphasis added).

That's inconsistent, to say the least, with the concept of advisory guidelines. It's one thing to say that if a district court is going to give weight to a factor that a guideline policy statement declares to be "not ordinarily relevant," then the court should address that policy statement and explain why it concludes that the factor is in fact relevant to crafting a just sentence (if for no other reason than that it will facilitate an appellate court's reasonableness review). But Guidry seems to be saying more than that. Guidry apparently gives those policy statements not just presumptive weight, but the same controlling weight that they had pre-Booker. If that's really what Guidry is saying, then it's as if Booker never happened.

*(The sentence, by the way, was 120 months. That was approximately 50% below the low end of the 235- to 293-month guideline range calculated by the district court. That range was apparently driven overwhelmingly by relevant conduct findings, although it's hard to tell exactly what effect the relevant conduct had on the calculations because the opinion doesn't explain exactly what Guidry did or the charges in any detail. By way of contrast, the probation officer had initially calculated the range at 78 to 97 months.)

"Sentencing Kabuki" or "A New Twist on Reasonableness Review"

United States v. Tzep-Mejia, No. 05-40386 (5th Cir. Aug. 15, 2006)

Tzep is an important case for two reasons. First, it affirms an arguably below-guidelines sentence. That's a relatively rare occurrence these days (see Professor Berman's commentary on that point here, and his post on Tzep here).

Second, it holds that a district court can impose a reasonable sentence without actually deciding which of two competing guidelines calculations is the correct one, so long as the court actually considers both ranges and explains why neither one is appropriate with reference to the 3553(a) factors. This is surprising, because the court appeared to reject this type of Crosby-style sentencing in United States v. Duhon.

The lesson that emerges from Tzep and Duhon is that a court can sentence outside the guidelines for case-specific reasons tied to the 3553(a) factors, but it cannot reject the guidelines out of hand or because of a disagreement with policy decisions made by Congress or the Sentencing Commission. A fine distinction, to be sure (and one that I think is hard to justify based on the text of 3553(a)) but that's where we're at right now. Craft your sentencing arguments accordingly.

On to the particulars. Tzep pled guilty to illegal reentry (8 U.S.C. § 1326). He had a prior New York conviction for attempted first degree assault. The district court determined that if the prior conviction qualified as a crime of violence for purposes of the 16-level enhancement under §2L1.2, then Tzep's guideline range would have been 46 to 57 months (21, III). On the other hand, the court determined that if the conviction was not for a crime of violence, then the range would only have been 10 to 16 months (10, III).

The district court then determined that neither range would provide an appropriate sentence. Given the violent nature of Tzep's prior offense (based on the alleged facts underlying that offense), a 10 to 16 month range would not adequately capture the seriousness of the offense and "would not protect the public from further crimes." Slip op. at 6. The district court also concluded that a 46 to 57 month range was too long. "[B]ecause all of the defendant’s criminal history points arose out of one incident, the district court concluded that the criminal history category overstated the seriousness of the defendant’s record. The district court also noted that the defendant had been in the United States for many years and had some degree of cultural assimilation and was going to be deported for the rest of his life." Id. at 7. The district court ultimately imposed a sentence of 36 months.

Tzep appealed. Both parties focused primarily on whether Tzep's New York assault conviction was a 16-level COV under §2L1.2(b)(1)(A)(ii). The court didn't resolve that issue (although it suggested pretty strongly that the offense was a COV, see slip op. n.4). Instead, the court concluded that the 36-month sentence was a reasonable non-guidelines sentence.

The court began by setting forth, and clarifying, the framework for reasonableness review.

Post-Booker case law recognizes three types of sentences under the new advisory sentencing regime: (1) a sentence within a properly calculated Guideline range; (2) a sentence that includes an upward or downward departure as allowed by the Guidelines, which sentence is also a Guideline sentence; or (3) a non-Guideline sentence which is either higher or lower than the relevant Guideline sentence.

Before the court imposes a non-Guideline sentence, it must first calculate the Guideline range and consider the appropriateness of a sentence within that sentencing range to fulfill its duty to consider the Sentencing Guidelines as advisory and as a frame of reference. This first step ordinarily requires that the district court determine a properly calculated Guideline sentence. If the district court makes an error in an application of the Guidelines, we vacate the resulting sentence without reaching the sentence’s ultimate reasonableness. This is so because Booker did not excise 18 U.S.C. § 3742(f). Section 3742(f) requires that if a sentence is imposed “as a result of an incorrect application of the sentencing guidelines” the sentence must be vacated and the case remanded for further sentencing proceedings. If, however, the district court imposes a non-Guideline sentence and that advisory sentence did not directly “result” from any Guideline error, it need not be vacated.

Slip op. at 4-5 (citations omitted). The court concluded that Tzep's

sentence did not “result” from an incorrect application of the Guidelines. Based on facts presented in the PSIR, the district court carefully considered the two possible Guideline ranges that could result depending on how it ruled on the defendant’s objection to the crime of violence enhancement. The court then rejected both options and elected to exercise its discretion to impose a non-Guideline sentence.

Both the Second and Eighth Circuits have recognized that the approach followed by the district court in this case is an appropriate one. See United States v. Haack, 403 F.3d 997 (8th Cir. 2005); United States v.Crosby, 397 F.3d 103 (2d. Cir. 2005). In Haack, the court stated: “[t]here may be situations where sentencing factors may be so complex, or other § 3553(a) factors may so predominate, that the determination of a precise sentencing range may not be necessary or practical. However, in those cases the court should be careful to identify potential applicable ranges, the reason why a particular range is not being selected, and other § 3553(a) factors that predominate.” Haack, 403 F.3d at 1003, (citing Crosby).

Slip op. at 7-8. That endorsement of Crosby is somewhat surprising, because the Fifth Circuit appeared to reject Crosby's reasoning in United States v. Duhon, 440 F.3d 711 (5th Cir. 2006). In Duhon, the district court imposed a sentence of probation in a child pornography case, stating that it would impose the same sentence regardless of what the advisory guidelines suggested. That didn't fly:

[Booker mandates] that sentencing courts "take account" of the Guidelines along with other sentencing goals. In light of its duty to "account" for the Guidelines, the court's statement that it would impose the same sentence regardless of which range applied, making the sentence more, rather than less, problematic. The court cannot reasonably impose the same sentence regardless of the correct advisory range anymore than it could reasonably impose the same sentence regardless of the seriousness of the offense. Both are sentencing factors that must be taken into account under section 3553(a). A sentencing court cannot evade its duty under Booker and Mares to correctly calculate the Guideline range with the expedient of saying the Guidelines would not affect the result. Accordingly, the miscalculation deprives the sentence of "great deference" and is a factor to be considered in assessing the reasonableness of the sentence.

Id. at 716. (By the way, Duhon petitioned for cert and the Supreme Court has requested a response from the Solicitor General. It's docket number 05-11144, which you can monitor here.)

So how do you reconcile Duhon and Tzep? Case-specific reasons good, policy disagreements bad:

We emphasize that a court’s decision to impose a non-Guideline sentence must be based on the individualized, case specific factors spelled out in § 3553(a). We fully agree with the courts that have held that Booker does not give sentencing courts the discretion to impose a non-Guideline sentence based on the courts’ disagreement with Congressional and Sentencing Commission policy. Thus, for example, a court is not entitled to base its decision to give a non-Guideline sentence on its disagreement with policy established by Congress and the Commission that traffickers in crack cocaine should receive stiffer sentences than traffickers in powder cocaine. See, e.g., UnitedStates v. Pho, 433 F.3d 53, 61-65 (1st Cir. 2006); United States v. Miller, 450 F.3d 270, 274-76 (7th Cir. 2006); United States v. Eura, 440 F.3d 625, 633-34 (4th Cir. 2006). These courts recognize the obvious distinction between the court’s exercise of discretion based on § 3553(a) case-specific factors and disagreement with general policy decisions made by Congress and the Commission. As the First Circuit stated in Pho, “The clear import of this statutory framework is to preserve Congress’s authority over sentencing policy and to guarantee that the exercise of judicial discretion over sentencing decisions be based on case-specific circumstances, not on general, across-the-board policy considerations.” Pho, 433 F.3d at 62.

The record reveals that the district court, after carefully considering the Guidelines, decided to impose a non-Guideline sentence based on individualized § 3553(a) factors.

Slip op. at 8-9. The court went on to conclude that Tzep's sentence was reasonable.

Tzep's endorsement of Pho, et al., is disappointing. I find it hard to square with the concept of advisory guidelines, and I don't think this policy-disagreement-vs.-case-specific-reasons distinction is tenable in light of the text of § 3553(a).

On the bright side, however, Tzep does provide needed guidance to courts and practitioners in this circuit. And if nothing else it shows that it's not all that hard to identify case-specific reasons for an individualized non-guidelines sentence that will survive reasonableness review.

Possible Cert Grant on the Horizon?

Several months ago the Fifth Circuit held in United States v. Garcia-Avalino, 444 F.3d 444, 445-47 (5th Cir. 2006), that a warrant issued on an application for revocation of supervised release does not have to be supported by oath or affirmation. There is a circuit split on this issue, with the Ninth Circuit having held otherwise. United States v. Vargas-Amaya, 389 F.3d 901, 904 (9th Cir. 2004). That Ninth Circuit case generated a vigorous dissent from a denial of en banc rehearing. United States v. Vargas-Amaya, 408 F.3d 1227 (9th Cir. 2005).

So what you have here is a not-uncommon recipe for a cert grant. And indeed, Garcia-Avalino has filed a petition for certiorari. The Supreme Court docket number is 05-11487, and you can use it to keep track of the case here.

Might the Fifth Circuit Reconsider Whether Cal. Penal Code § 245(a)(1) is Categorically a §2L1.2(b)(1)(A)(ii) Crime of Violence?

United States v. Robles-Enriquez, No. 05-40388 (5th Cir. Aug. 11, 2006) (unpublished)

In United States v. Sanchez-Ruedas the court held that assault with a deadly weapon and by means of force likely to produce great bodily injury under Cal. Penal Code § 245(a)(1) is "sufficiently similar to the generic contemporary definition of aggravated assault to qualify categorically as an enumerated crime of violence" for purposes of the 16-level enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). 452 F.3d 409, 413 (5th Cir. 2006). Robles had a prior conviction under that California statute, so the court here considered itself bound by Sanchez-Ruedas to hold that Robles qualified for the 16-level crime of violence enhancement.

Judge Dennis wrote a separate concurrence "acquiesc[ing]" in the majority's determination that Sanchez-Ruedas controlled the outcome here. However, he opined that the court was actually bound by an earlier panel decision of the Fifth Circuit (United States v. Torres-Diaz, 438 F.3d 529, 536-37 (5th Cir.), cert. denied, 126 S. Ct. 1487 (2006)) and by California cases interpreting § 245(a)(1) "which would, together, have required a different result here." Slip op. at 3. Judge Dennis therefore suggested that "en banc reconsideration of both this decision and Sanchez-Ruedas may be appropriate." Id.

Apart from citing cases, Judge Dennis didn't spell out exactly why he thinks Sanchez-Ruedas might have been wrongly decided, but it's probably because Sanchez-Ruedas glossed over a feature of the California offense that renders it broader than generic aggravated assault.

Sanchez-Ruedas relied primarily on the Model Penal Code's definition of aggravated assault (as had Torres-Diaz). See 452 F.3d at 412-14. In comparing the elements of Cal. Penal Code § 245(a)(1) and the MPC provision regarding aggravated assault committed without a weapon, the court identified a difference in the required mens rea: the MPC requires that the defendant intend to cause serious bodily injury, while under § 245(a)(1) "the defendant need not specifically intend great bodily injury, but need only intentionally engage in conduct that will likely produce that." Id. at 414.

Well if that's the case then the California statute is broader than the generic, contemporary definition of aggravated assault embodied in the MPC, and under the categorical approach that means that it isn't generic aggravated assault. Sanchez-Ruedas didn't discuss this point in any depth; it simply noted the difference and then asserted that "[t]his subtle difference between the aggravating factors in these two statutes, California's focus on the defendant's intentional conduct in contrast to the Model Penal Code's focus on the defendant's intentional result, is not enough to remove the California statute from the family of offenses commonly known as 'aggravated assault.'" Id.

Sanchez-Ruedas appears to have gotten this one wrong, and Judge Dennis rightly suggests that this issue deserves en banc reconsideration. (That also means that this is an issue worth preserving if it arises in any of your cases.)

Re-Do With Same Result; Fast-Track Disparities Still not Unreasonable

United States v. Aguirre-Villa, No. 05-50978 (5th Cir. Aug. 15, 2006) (per curiam)

The court granted a petition for rehearing, and withdrew its earlier opinion in the case (blogged here) and substituted a new opinion. The holding hasn't changed; the court still holds that geographic fast-track disparities don't render a sentence unreasonable because disparity is just one of the § 3553(a) factors and Congress apparently authorized this type of geographic disparity "when it authorized early disposition programs without altering § 3553(a)(6)." The old opinion also pointed out that even if an early-disposition departure had been available to Aguirre, his 77-month sentence still would have fallen within the resulting 52- to 78-month guideline range (the range that would have applied if he'd been prosecuted in the adjacent District of New Mexico). The new opinion omits that additional justification for finding the sentence reasonable.

Judicial Documents Established that Prior Burglary Convictions Were for Generic Burglary Under ACCA

United States v. McGee, No. 04-20847 (5th Cir. Aug. 11, 2006)

McGee pled guilty to being a felon in possession of a firearm. He had several prior South Carolina convictions for second-degree robbery (S.C. Code § 16-11-312(A)), which the district court found to be generic burglary for purposes of the Armed Career Criminal Act. McGee disagreed with that conclusion, and appealed.

"McGee argue[d] that the Taylor Court deemed the generic burglary definition not to include entry into objects such as booths, tents, boats, or railroad cars, but that South Carolina's definition of 'dwelling,' as construed by South Carolina courts, includes entry into such objects." Slip op. at 4. The court assumed without deciding that the South Carolina statute was nongeneric and, reyling on Shepard, examined the indictment and plea agreement from McGee's prior conviction to pare down the statute. Those documents identified the burgled dwellings by specific street addresses. Citing cases from the Ninth Circuit, the court held that identification of the burgled locations by common street addresses was sufficient to support a finding that they were "buildings" within the Taylor definition of generic burglary.

Opinion Withdrawn and Replaced Due to Government's Factual Misrepresentation

United States v. Zheng, No. 05-20144 (5th Cir. Aug. 10, 2006)

You don't see this everyday:

We previously issued an opinion that was predicated, in part, on a misrepresentation by the government. See United States v. Yi, 451 F.3d 362 (5th Cir. 2006). Upon reconsideration, we withdraw the prior opinion in its entirety and replace it with the following.

Slip op. at 1. The part to which the opening line refers is Zheng's sufficiency challenge to his convictions on six counts of trafficking in counterfeit goods. The government misrepresented a fact that was material to the court's rejection of the sufficiency challenge as to count 6.

Zheng owned a discount retail store in Houston called XYZ Trading Corp. In June 2003 an ICE agent in Norfolk, Virginia inspected and seized a shipping container bound for XYZ from China. The agent seized the container because it contained various counterfeit electrical goods (batteries, power cords, and flashlights). The agent also seized a second container shipped from China to XYZ a few weeks later. That shipment included 4,000 pairs of counterfeit Nike sandals.

A couple of months later ICE agents executed a search warrant at XYZ and found a variety of counterfeit merchandise, as well as cease and desist letters from the owners of some of the infringed trademarks. Some of that merchandise was the same as that found in the first shipping container in Norfolk. There were no fake Nike sandals or similar items in the store, nor was there a cease and desist letter from Nike.

Zheng was convicted at a jury trial of six counts of trafficking in counterfeit goods, in violation of 18 U.S.C. § 2320. Counts 1 through 5 were based on the counterfeit merchandise seized at XYZ in Houston. Count 6 was based on the Nike sandals in the second shipping container seized in Norfolk.

On appeal Zheng argued that there was insufficient evidence to prove beyond a reasonable doubt that he knew the trademarks were counterfeit, an essential element of the offense. The original opinion rejected Zheng's sufficiency challenge in part because it understood the evidence to show that had Zheng rejected opportunities to inspect both shipping containers. (I don't quite understand why that evidence suggested that Zheng knew the trademarks were fake, but the court found it significant.)

However, in the substituted opinion, the panel affirmed the convictions only on counts 1 through 5. As it turned out, "[o]n the first go-around, the government misrepresented a fact material to our decision to uphold Zheng's conviction [on count 6] for trafficking in the counterfeit Nike sandals: that Zheng was given and declined the opportunity to inspect the second shipment containing the Nike sandals." Slip op. at 9, n.7. The remaining evidence, which was "at best, weak and attenuated[,]" was insufficient to support Zheng's conviction on count 6.

Apart from the sufficiency challenge, the court rejected Zheng's arguments regarding a number of evidentiary matters (including, inter alia, the Government's reference at trial to Zheng's immigration status, and testimony that traffic in counterfeit goods helps to finance terrorism).

Finally, the court held that the district court's factual finding regarding the infringment amount under U.S.S.G. §2B5.3(b)(1) was "implausible in light of the entire record and [was] clearly erroneous." Slip op. at 20-21. For that reason, and because of the vacatur of Zheng's conviction on count 6, the court vacated the sentence and remanded for resentencing.

Counsel Waiver in Revocation Proceeding Must be Knowing and Voluntary

United States v. Hodges, No. 05-60138 (5th Cir. Aug. 11, 2006)

Hodges addresses an issue of first impression in this circuit, namely "what requirements must be satisfied for a person on supervised release to waive his right to counsel in a revocation proceeding under Federal Rule of Criminal Procedure 32.1(b)(2)." Slip op. at 1.

Hodges was on supervised release following imprisonment for a false statements conviction. The probation officer filed a petition to revoke Hodges' supervised release, alleging that Hodges had been stalking a woman.

Just before the beginning of the revocation hearing Hodges' appointed counsel informed the district court of Hodges' desire to proceed pro se. The court engaged Hodges in a brief colloquy, explaining to Hodges that he had the rights to disclosure of the evidence against him, to an attorney, to cross-examine witnesses, and to present evidence of his own. The court also told Hodges that his appointed counsel would probably do a better job of representing him than he could himself. Hodges explained that he "would rather just take it to my own hands and have the blame for myself." Slip op. at 4. The court allowed Hodges to represent himself, and also allowed his former counsel to remain at the counsel table in case Hodges wished to consult him during the proceedings.

The court wound up revoking Hodges' release and sentencing him to 12 months' imprisonment and an additional 24 months of supervised release.

Hodges appealed his revocation "on the sole basis that the waiver of his right to counsel was invalid due to the failure of the district court to warn him of the pitfalls of self-representation and the benefits of counsel." Slip op. at 5. The court of appeals rejected this argument, holding that less is required for a valid counsel waiver at a revocation hearing than at a criminal trial.

Reasoning that because the right to represent oneself at a revocation hearing arises from Rule 32.1, rather than the Sixth Amendment, the court held that a waiver of counsel in that setting need only be "knowing and voluntary" and that its validity will be assessed in light of the totality of circumstances.

Although a thorough colloquy with the district court may be the most precise means of evaluating the voluntariness of a waiver, the failure of the district court to engage in a comprehensive colloquy is not, of itself, fatal to the defendant’s waiver. We thus hold that the waiver of a defendant’s Rule 32.1(b) rights is knowing and voluntary (1) where there is a sufficient colloquy by the district court to assure an understanding or freely made waiver; or (2) where the colloquy leaves some uncertainty, the totality of the circumstances assures that the waiver is knowing and voluntary.

Slip op. at 11. The court went on to hold that although the colloquy itself did not establish that Hodges' counsel waiver was knowing and voluntary, the totality of circumstances did: (1) Hodges was aware of the charges against him and the potential penalty; (2) both his appointed counsel and the court advised Hodges that self-representation was a bad idea; (3) Hodges was familiar with the criminal justice system, and the court explained the rights he would have at the hearing; (4) Hodges consulted with his former counsel during the hearing; and (5) there was "no evidence or indicia of coercion, gamesmanship, or improper forces at play in Hodges's decision to represent himself." Slip op. at 12-14.

Length of Traffic Stop not Unreasonable Prior to Completion of Computer Checks

United States v. Estrada, No. 05-41042 (5th Cir. Aug. 8, 2006)

In Estrada the Fifth Circuit holds that there was no Fourth Amendment violation when a DPS trooper extended a traffic stop for a minor equipment violation to inquire about matters unrealated to the reason for the stop and to request consent to search the vehicle.

The case involves a typical fact pattern: an apparently pretextual traffic stop for a de minimus traffic violation, investigation of and questioning on matters unrelated to the reason for the stop while waiting for computer checks on license plates and driver's licenses, a request for consent to search the vehicle after the checks come back clean, and ultimately the discovery of drugs.

The court held that under United States v. Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc) (which adopted a breathtakingly broad view of the permissible scope of a traffic stop), the length of the stop prior to the completion of the computer checks was reasonable. "In a valid traffic stop, an officer may request a driver's license and vehicle registration and run a computer check thereon." Slip op. at 5. Because the trooper developled a reasonable suspicion to extend the stop prior to the completion of the computer checks (he saw marks on the gas tank which he believed to be evidence of a hidden drug compartment), it was not unreasonable to extend the stop beyond that point. The defendants' consent to search the truck was therefore not tainted by an unlawful seizure, and the totality of circumstances supported the district court's finding that the consent was voluntarily given.

The chief culprit here (apart from Whren) is the Fifth Circuit's erroneous en banc decision in Brigham. See Judge DeMoss's excellent dissent in Brigham for a lengthy and detailed explanation of why the majority was wrong.

Court Takes Sides on Circuit Split Regarding Restoration of Gun Rights for Felon-in-Possession Predicates

United States v. Chenowith, No. 05-20636 (5th Cir. Aug. 8, 2006)

In this felon-in-possession case the court holds that Chenowith's 1974 Ohio manslaughter conviction could not serve as a predicate felony because Chenowith's rights to vote, hold public office, and serve on juries had been restored not by operation of law, but by a certificate granted by the Ohio Adult Parole Authority in 1978.

In so doing, the court took sides on a circuit split involving the following issue: whether, for purposes of determining whether a person was "expressly deprived of the right to possess a firearm by some provision of the restoration law or procedure of the state of the underlying conviction[,]" the court "look[s] only to the certificate of restoration to decide if it expressly limits [a person's] rights with regard to firearms, or whether we look to all of [the state's] statutory law to decide if any statute prohibits convicted felons from possessing firearms." Slip op. at 6-7. In this case, the certificate that Chenowith received from the Parole Authority contained no such limitation, but Ohio law bars those who have "been convicted of any felony offense of violence" from acquiring or possessing firearms. Slip op. at 7 (quoting Ohio Rev. Code Ann. § 2923.13).

The court sided with the D.C., Seventh, and Ninth Circuits in holding that under 18 U.S.C. § 921(a)(20) a court "'may look no further than the source of the restoration of . . . civil rights to see whether . . . gun-related rights have been restricted.'" Slip op. at 10 (quoting United States v. Bost, 87 F.3d 1333, 1336 (D.C. Cir. 1996)). Here, because Chenowith's rights had been restored by a certificate, rather than by operation of law, and because the certificate "does not expressly prohibit his possessing firearms," the Ohio conviction could not serve as a predicate felony for the felon-in-possession charge. Slip op. at 12.

More on South Texas Jail Boom (and Domes)

From Sunday's San Antonio Express-News, another article about the South Texas jail boom:

South Texas is experiencing a jail construction boom, with nearly 13,000 beds recently added, under construction or proposed in communities facing increasing populations and crime, many on the front line of the illegal immigration crackdown.

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U.S. marshals are holding about 11,000 detainees combined in the agency's southern and western districts, more than any other two connecting districts in the nation, agency spokesman Tim Hughes said.

"The federal government is really cracking down on immigration. That has raised our prisoner total," Hughes said.

And yes, there will be domes:

While some see the boom in detention centers as evidence of the criminal justice system's failings, others call it a public safety investment that can pay financial dividends to taxpayers.

Willacy County Judge Simon Salinas cheered the 500-bed lockup cited by Bush, a "fast-track" project opened Tuesday by Management and Training Corp. that will grow next month to 2,000 beds.

"You talk about economic development, this is it," he said, noting the county's initial cut is $2.25 a day, per occupied bed.

Salinas predicted annual county income from the facility eventually would hit $10 million. The finished $64.8 million facility will feature 10 pod-like domes, built on concrete floors and made of synthetic fabric, each with 200 beds.

No word on what jailers will do with the thousands of prisoners housed in giant dome tents the next time South Texas gets hit by a hurricane (or even severe thunderstorms, for that matter).

And while we're on the subject of domes in Texas, you can read about the Eighth Wonder of the World here, the not-very-dome-like home of the Alamo Bowl here, and dome evangelists here (this last one will surely be familiar to anyone who's driven I-35 between Waco and Dallas).

Border to Get More Prosecutors & More Jail Space

Today's San Antonio Express-News has a couple of articles of interest to practitioners along the border (and immigration policy wonks).

In "Prosecutors Near Border to Get Help," we learn that DOJ is adding 25 new prosecutors to the five southwestern border districts, 20 of whom will focus on prosecuting immigration-related offenses.

The move comes on the heels of reports that heightened border enforcement is overwhelming the criminal justice system. It also follows claims last week from some members of Congress that a few of the 94 U.S. attorney offices in the country have been forced to forego prosecutions because of staffing and supply shortages.

A June article in the federal judiciary's newsletter [blogged here] said the increase in enforcement was creating a crisis in the border courts. Judges and prosecutors in the article predicted that some criminal cases would have to be dismissed or rejected unless more prosecutors were hired to handle the workload brought by increases in border agents.

Of course, adding more prosecutors without a corresponding increase in court resources will likely exacerbate the problems faced by courts on the border.

Court officials, who continue to absorb a huge workload without equitable increases in staff, met the announcement with some frustration.

"Congress has really looked at enforcement primarily, adding more Border Patrol and immigration agents. Now the prosecution side (increases)," said Bill Putnicki, court clerk of the Western District of Texas. "But I don't know if they've really looked at what happens to the people after they get arrested."

In related news, the private prison industry in South Texas is booming.

A Florida-based prison management company announced Tuesday that it will expand the South Texas Detention Complex in Pearsall to house an additional 884 immigration detainees, increasing the capacity to 1,904.

GEO Group Inc. said the expansion will not require new construction and has been approved to meet the future bed needs of U.S. Immigration and Customs Enforcement as it implements its "Secure Border Initiative" on the nation's southern border.

The article doesn't explain how GEO will nearly double the bedspace of the facility without any new construction. "Tent-like domes," perhaps?

Aside from the Pearsall complex, ICE has contracted to have 500 beds available at a detention facility in Raymondville, Rusnok said. That facility, which uses tent-like domes for detainees, opened Tuesday.