Thursday, February 26, 2009

Escapees Have No Fourth Amendment Rights

United States v. Ward, No. 08-50114 (5th Cir. Feb. 26, 2009) (Higginbotham, Elrod, Haynes)

"Shortly after he received a 10-year federal sentence on a felon in possession charge, state authorities mistakenly released federal prisoner Dan Ward, who exploited the situation by absconding." Marshals tracked down Ward at a motel in Odessa, Texas, and tried to arrest him. Ward managed to maneuver his car around the Marshals' car, and a chase ensued. Fearing an accident, the Marshals broke off the chase and found another motel where Ward had a room registered in his own name. They got a key from the manager, and searched the room. Inside was a camera bag, and inside the bag was another bag, and inside that bag was a loaded 9mm pistol and some ammo. Ward was arrested shortly thereafter in Midland.

Ward was charged with being both a felon and a fugitive in possession of a firearm, based on the gun the Marshals found in the Odessa motel room. After unsuccessfully moving to suppress the evidence from the motel room, Ward conditionally pleaded guilty.

"The question[,]" the court explained, was "whether Ward, as an escapee, had a right of privacy in his motel room entitling him to the protection of the Fourth Amendment against unreasonable searches." The answer: a resounding "no".

The court looked first to the Supreme Court's decision in Hudson v. Palmer, which held that a prisoner has no protected Fourth Amendment privacy interest in his prison cell. Recognizing that a motel room isn't a prison cell, the court nevertheless concluded that many of the same considerations underlying the decision in Hudson weighed against finding that an escapee has a reasoanble expectation of privacy in a motel room:
  • recognizing such a right would encourage escape, thus undermining prison security
  • "an escapee privacy right remains incompatible with the objectives of incarceration"
  • society needs protection from dangerous felons, and escaped felons "self-select[] themselves into an even more crime-prone subset"
The court also discussed Supreme Court cases approving warrantless searches of parolees' and probationers' persons and homes, and concluded that "[e]scape is a frustration of ordered justice that cannot be rewarded with rights greater than those held by felons that leave or avoid prison lawfully."

Although the court ultimately holds "that Ward, as a prison escapee, could not invoke the Fourth Amendment to suppress a warrantless search of his motel room and bag[,]" it cautions against taking the general principle too far:
[T]here remains the nagging risk of invading the privacy rights of third parties attending the warrantless pursuit of escaped prisoners. By his legal status an escaped felon is walking probable cause—police can arrest and, as we have explained, search his dwelling and his bag without a warrant and without justification under the Fourth Amendment. This makes important the circumstance that the motel room at issue in this case was Ward’s own, not just to the presence of probable cause to enter the room, but also in justification of a warrantless search of the bag when officers learned on entry that Ward was not then in his room. We pause to remind that in recapturing escaped prisoners, law enforcement may well encounter the hurdles of the Fourth Amendment rights of third parties.

As an example of such a hurdle, the court cites "Steagald v. U.S., 17 451 U.S. 204, 215 (1981) (requiring, in the absence of consent or exigent circumstances, a search warrant before law enforcement could search the home of a third party for the subject of an arrest warrant)." Presumably there's others.

One final point worth mentioning: Ward argued "that because he was mistakenly released he is not technically an escapee." The court disagreed, citing cases broadly interpreting the term "escape" under the federal escape statute: "They read escape to include a failure to return, even if the initial escape did not involve anything resembling a physical leap over a prison wall. Thus, we can confidently label Ward as an escapee in the general meaning of the word." There was also the fact that Ward fled when the Marshals tried to arrest him at the first motel.

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Tuesday, February 24, 2009

Another Cert Grant on ACCA "Violent Felony" Definition: Does a Nonconsensual Touching Constitute the Use of Physical Force?

Yesterday the Supreme Court granted cert in Johnson v. United States, No. 08-6925. The two questions presented are:

1. Whether, when a state's highest court holds that a given offense of that state does not have as an element the use or threatened use of physical force, that holding is binding on federal courts in determining whether that same offense qualifies as a ''violent felony" under the federal Armed Career Criminal Act, which defines ''violent felony" as, inter alia, any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another."

2. Whether this court should resolve a circuit split on whether a prior state conviction for simple battery is in all cases a "violent felony" - a prior offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Further, whether this court should resolve a circuit split on whether the physical force required is a de minimis touching in the sense of "Newtonian mechanics" or whether the physical force required must be in some way violent in nature - that is the sort of force that is intended to cause bodily injury, or at a minimum likely to do so.

I don't know off the top of my head if there's any Fifth Circuit case law on question one. As for question two, the Fifth Circuit has held that "force," for purposes of use-of-force clauses, is "synonymous with destructive or violence force." United States v. Dominguez, 479 F.3d 345, 345 (5th Cir. 2007). Plus, in Leocal v. Ashcroft, the Supreme Court interpreted the use-of-force clause in 18 U.S.C. § 16 to "suggest[] a category of violent, active crimes." 543 U.S. 1, 11 (2004).

By the way, the offense in question is simple battery on a police officer, which happens to be a felony under Florida law, and which can be committed merely by a nonconsensual touching (such as spitting on a police). The Florida Supreme Court has held that---under a Flordia statute parallelling the use-of-force clause in the ACCA's "violent felony" definition, and elsewhere---the offense does not involve the use of physical force or violence. The Eleventh Circuit, in Johnson, held that it wasn't bound by the Florida Surpeme Court's determination of whether the offense involves physical force, and also that simply touching a person without that person's consent constitutes the type of physical force necessary to qualify the offense as an ACCA "violent felony" under that defintion's use-of-force clause.

Interestingly (depending on what you find interesting, of course), the Supreme Court declined to grant cert on the third question presented, which was a should-Almendarez-Torres-be-overruled issue: "Whether the district court lacked the authority to sentence Mr. Johnson as an Armed Career Criminal, given that Mr. Johnson did not admit the predicate offenses for such a classification when he pled guilty."

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Friday, February 20, 2009

Ninth Weighs In On Circuit Split: No Objection Required In District Court to Preserve Substantive Reasonableness Challenge

United States v. Autery, No. 07-30424 (9th Cir. Feb. 13, 2009) (Thompson, Smith; Tashima, concurring in part and dissenting in part)

Remember that circuit split over reasonbleness review and plain error? Courtesy of our colleagues at the Ninth Circuit Blog (here and here), we learn that the Ninth Circuit has weighed in on that question. Much like the Sixth Circuit in Vonner---and, curiously, without ever mentioning Vonner---the Nines draw a distinction between procedural errors and substantive reasonableness: an un-objected-to procedural error is reviewed for plain error, whereas "the substantive reasonableness of a sentence—whether objected to or not at sentencing—is reviewed for abuse of discretion." In so holding, the Ninth Circuit expressly disagreed with our own circuit's contrary decision in Peltier, instead finding the Seventh Circuit's reasoning more persuasive:
In Castro-Juarez, the Seventh Circuit reasoned that “[t]o insist that defendants object at sentencing to preserve appellate review for reasonableness would create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection-probably formulaic-in every criminal case.” 425 F.3d at 433-34. “Since the district court will already have heard argument and allocution from the parties and weighed the relevant § 3553(a) factors before pronouncing sentence,” the court reasoned, “we fail to see how requiring the defendant to then protest the term handed down as unreasonable will further the sentencing process in any meaningful way.” Id. at 434.

Autery also takes issue with Peltier's head-counting on the circuit split:
In Peltier, the Fifth Circuit acknowledged that the Seventh Circuit held that a defendant need not object at sentencing to the reasonableness of his sentence to preserve the issue for review, and then stated that various other circuits have taken a contrary view. 505 F.3d at 391. In support of this latter point, the court cited decisions from the Second, Sixth, Tenth, Third, and Ninth Circuits. Id. at 391 n.5. In so doing, however, the Peltier court apparently mistook the holdings of some of those cases, conflating substantive reasonableness with the procedural failure to consider the § 3553(a) factors, discussed supra. See id.

It's a safe bet that this issue will make its way to the Supreme Court eventually. How soon that will happen is hard to say. (See how easy it is to make a prediction that, at any given point in time, can't be wrong?) Autrey won't be the vehicle, though. You see, the Government was the appellant in Autery, and it failed to object to the substantive reasonableness of the sentence in the district court. Although the Government loses in Autrey---because the Ninth Circuit affirms the sentence two votes to one---it obviously won't be petitioning for en banc review or cert on the ground that its challenge to the sentence should have been reviewed for plain error, rather than an abuse of discretion. It's rather elegant, isn't it?

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For Purposes of Illegal Reentry, Alien Who Departs U.S. Before Being Ordered Removed Has Been "Removed" If Removal Order Later Issues

United States v. Ramirez-Carcamo, No. 08-30298 (5th Cir. Feb. 17, 2009) (Smith, Southwick, Rodriguez, D.J.)

Submitted for your consideration: an offense that doesn't obey the rules of all the others in the U.S. Code. Some of the elements can be proven by paper, notwithstanding a defendant's right to confront the witnesses against him. The maximum penalty increases five- or ten-fold based on the existence and nature of a defendant's prior criminal convictions, notwithstanding a defendant's double jeopardy right to not be punished more than once for a single offense. And the fact of a prior conviction need not be alleged in the indictment or proven to a jury beyond a reasonable doubt, notwithstanding the general rule that facts which increase the maximum penalty for an offense must be alleged and proven in that manner. What's more, sentences for this offense often exceed those for drug or gun offenses, and even offenses involving an actual victim. And now, we learn that this offense doesn't even obey the normal rules of statutory construction, like the rule that every word of a statute must be given effect, or the rule of lenity. It is an offense which we call "Illegal Reentry."

Meet one Olvin Ramirez-Carcamo, a citizen of Honduras. Border Patrol agents apprehended him near Eagle Pass, Texas on September 17, 2005. Lacking sufficient funds to detain Ramirez, the agents sent him on his way with a notice to appear before an immigration judge to show cause why he was not subject to removal from the United States. "No date or time for the appearance was stated. The Notice to Appear indicated the timing would be established later. Ramirez-Carcamo was required to report, in writing or in person, to a deportation officer on October 1, 2005. Further, if he did not appear at his removal hearing after being told of its scheduling, the Notice informed him that an immigration judge could order removal in his absence."

Ramirez did not report to a deportation officer on October 1st, nor did he appear at the removal hearing which at some point was set for January 20, 2006. That's because he boarded a plane in Miami on September 28, 2005---eleven days after his apprehension by Border Patrol---and flew to El Salvador. The immigration judge ordered Ramirez's removal in absentia on January 20, 2006.

Fast-forward to August 2007, when Ramirez was arrested for traffic violations in Louisiana and then turned over to Border Patrol. He told them he had reentered the United States---sans permission to do so---one year earlier.

That arrest led to Ramirez's indictment for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326. He moved to dismiss the indictment on the ground that one of the elements was not met, i.e., that he had not previously been "removed" from the United States because he voluntarily departed the country before the January 2006 removal order issued. The district court denied the motion. Ramirez entered a conditional guilty plea, and appealed.

Not surprisingly, Ramirez rested his argument on the text of § 1326(a), which makes it a crime for an alien to reenter the United States without first applying for the requisite permission, if the alien "has [previously] been denied admission, excluded, deported, or removed, or has departed the United States while an order of exclusion deportation, or removal is outstanding . . . ."
Ramirez-Carcamo submits that “removal” means the physical act of being transported outside of the United States instead of the issuance of an order of removal. He left before any order of removal was issued and argues he therefore was never “removed” for purposes of Section 1326. He submits that if “removed” means leaving by force of a legal order, then a later portion of the statute – departure “while an order of removal is outstanding” – is superfluous. An important statutory construction principle is “that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted). We must also remember, though, that canons of statutory interpretation are only guides. Chickasaw Nation v. United States, 534 U.S. 84, 85 (2001).

The court, as you know by now, rejected Ramirez's argument. After a largely unnecessary examination of the way § 1326 has been amended over the years, and a review of some cases involving a prior version of the statute, the court finally alighted on 8 U.S.C. § 1101(g). That provision reads:
For the purposes of this chapter any alien ordered deported or removed (whether before or after the enactment of this chapter) who has left the United States, shall be considered to have been deported or removed in pursuance of law, irrespective of the source from which the expenses of his transportation were defrayed or of the place to which he departed.

The court, for reasons not apparent to me from the text of § 1101(g), "interpret[ed] it to override the distinction Ramirez-Carcamo is making, that if the order of removal is entered after an alien has physically departed, there has in law been no 'removal.'" Ramirez, naturally, countered that "this provision applies only to aliens who depart after issuance of a removal order. Not so, said the court:
. . . Section 1101(g) does not state, and, to our ears, does not even suggest that the removal order or the departure must always be first. No matter whether the removal order comes first and the alien then departs, or, as here, the departure comes first and then removal is ordered in absentia, the alien ultimately is outside the country with an enforceable order requiring that he have exited. When both have occurred, the person is “considered to have been . . . removed in pursuance of law.” 8 U.S.C. § 1[1]01(g).

So what about Ramirez's argument that reading "removal" in this way effectively renders the departure-while-order-of-removal-outstanding clause superfluous? After dismissing the canons of construction as merely "guides," the opinion simply drops the matter without attempting to salvage this now apparently vestigial predicate to illegal-reentry liability.

The court concludes the opinion thusly:
In conclusion, we emphasize certain aspects of the chronology. At the time of his capture on September 17, 2005, Ramirez-Carcamo signed a Notice to Appear. The notice warned that the immigration judge could order removal in absentia if he did not appear at the removal proceedings. Rather than appear at the proceedings, Ramirez-Carcamo left the country. The threatened order was entered in absentia. We conclude, based on our analysis of the statutory language, that aliens do not avoid prosecution under Section 1326 by refusing to comply with their obligation to appear at removal proceedings and instead departing in advance of the removal order. If the removal order is thereafter entered in absentia, it has the same effect for prosecutions under Section 1326 as would a departure after the removal order.

Is the court suggesting that the statute needs to be read this way in order to prevent wily aliens from escaping § 1326 liability by voluntarily leaving the country prior to the issuance of a removal order? Seems far-fetched to me. More importantly, if § 1101(g) is ambiguous on this point, then the court should have applied the rule of lenity and resolved that ambiguity in favor of the defendant. Even if other canons of construction are merely "guides," surely the due-process aspects of the rule of lenity warrant its application here.

A final note: given the court's difficulty in parsing the (concededly confusing) INA, some amicus assistance from an immigration expert might have been helpful. Unfortunately, as Orin Kerr discussed some while back---in a post I am now unable to find at the Volokh Conspiracy---it is often difficult for potential amici to identify cases at the circuit court level in which their expertise could assist the court.

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Wednesday, February 18, 2009

Maximum Supervised Release Terms In 21 U.S.C. § 841 Trump Lower Maximums in 18 U.S.C. § 3583 When New Sentence Is Imposed on Revocation of Release

United States v. Jackson, No. 07-51229 (5th Cir. Feb. 12, 2009) (Garwood, Garza, Owen)

Title 21 U.S.C. § 841(b)(1) requires minimum terms of supervised release, but establishes no maximum term. Section (b)(1)(C), for example, requires a supervised release term of "at least 3 years" (assuming no prior felony drug convictions). But 18 U.S.C. § 3583(b)(2)---the statute captioned "Inclusion of a term of supervised release after imprisonment"---declares that, "[e]xcept as otherwise provided, the authorized term[] of supervised release [is] . . . not more than three years" for the class of felonies into which § 841(b)(1)(C) falls. In United States v. Kelly, the Fifth Circuit reconciled these two provisions by holding that the required term of supervised release for a violation of § 841(b)(1)(C) was three years---no more, no less. (Meaning five was right out.)

Enter Congress, which in 2002 amended § 841(b)(1)'s supervised release provisions to read, "[n]otwithstanding section 3583 of Title 18, any sentence imposing a term of imprisonment under this paragraph shall . . . impose a term of supervised release of at least" a certain number of years---still three in the case of (b)(1)(C). In light of that amendment, the court here expressly overrules Kelly, holding that the the maximum supervised release terms in § 841---meaning life---control over the lower limits in § 3583(b).

Which brings us to this case. In 2004, Jackson was convicted of possessing marijuana with the intent to distribute it, in violation of § 841(b)(1)(C). He got 30 months' imprisonment and 3 years' supervised release. While on supervised release, Jackson pleaded guilty to assualting his girlfriend. That, among other violations of the terms of his release, got his release revoked. Hence a 15-month imprisonment term, to be followed by 7 more years of supervised release.

Jackson challenged the 7-year release term on appeal. He conceded that Kelly was no longer good law and that there is no maximum term of supervised release available at the original sentencing for a violation of § 841. But he argued that the § 3583(b) maximums nevertheless apply at a revocation sentencing, for three reasons. The court rejected all three.

"First, he contend[ed] that application of a life-term would render § 3583(h) inoperable because § 3583(h) instructs the district court to subtract 'any term of imprisonment that was imposed upon revocation' from the proposed new term of supervised release. According to Jackson, if the proposed new term of release was life (as permissible under § 841), then it would be impossible to subtract any numerical figure from that term." Second, Jackson argued that Congress could have expressly imported the § 841 maximums into § 3583 if it had wanted to, but it did not.

The court rejected both of these arguments as "contrary to the plain meaning of § 3583(h)[,]" which provides that "[a] court may reimpose up to 'the term of release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation.'" In this case, the statute for the underlying offense---§ 841(b)(1)(C)---allows up to a life term of supervised release. Thus, under the plain meaning of § 3583(h), the maximum release term Jackson faced on revocation was life minus the term of revocation imprisonment.

Jackson's third argument was that "imposing a new term of supervised release that is longer than his original term of three years might violate the Double Jeopardy clause because he had a 'legitimate expectation of finality in his original sentence.'" Not so, said the court:
Post-revocation sanctions are not a separate penalty for purposes of the Double Jeopardy clause—they are part of the penalty for the original offense. Johnson v. United States, 529 U.S. 694, 700–01 (2000). Jackson could not have had a “legitimate expectation of finality” in his original term of supervised release, as the statutory framework clearly authorizes a new and potentially longer term of supervised release upon revocation. See § 3583(h).

In addition to his statutory arguments, Jackson also challenged the seven-year release term as unreasonable, for two reasons. First, he argued that the release term had nothing to do with the concerns of § 841. The court responded with this odd non-sequitur:
Jackson cites to no authority requiring a nexus between the type of release violation and the underlying purpose of the original statute. As noted above, post-revocation sanctions are considered part of the penalty for the original offense. Johnson, 529 U.S. at 700–01.
Jackson next argued that the release term was longer than necessary to address the seriousness of his violation conduct. To which the court replied, "Given Jackson’s past assault of the former girlfriend, the district court’s determination that Jackson posed a legitimate threat was reasonable."


Tuesday, February 17, 2009

Sentence Vacated: Attempted Murder Cross-Reference Improperly Applied to Defendant Convicted of Aiding & Abetting Felon-In-Possession

United States v. Johnston, No. 08-10120 (5th Cir. Feb. 10, 2009) (Smith, Southwick, Rodriguez, D.J.)

Just because the Guidelines are advisory doesn't mean they aren't important, as this case dramatically illustrates. And read carefully, because there's a quiz at the end. (Don't worry, it's a fun one.)

The facts:

Tiffany’s husband Jason Johnston, along with Cleties Conley, escaped from prison and made their way to a friend’s house. Jason called Tiffany to pick him up and asked her to bring his handgun. She obligingly packed the weapon in the trunk of her car, loaded her son into the back seat, and collected the escapees. Once on the road, Jason retrieved his gun from the trunk.

Law enforcement officers initiated a traffic stop and ordered the foursome to exit the vehicle. Tiffany pulled over and opened the door to comply, but Jason fired a shot toward the officers. Tiffany slammed the door and sped away, then stopped in a parking lot and indicated that she would surrender. She, her son, and Conley got out of the car; Jason drove off alone and was caught.

For that, Tiffany Johnston was convicted of aiding and abetting the offense of felon-in-possession. The probation officer recommended, and the district judge agreed, that a cross-reference to the attempted murder guideline should be applied "because 'the defendant knew or should have known that providing the firearm to [Jason] would allow him to use the firearm against law enforcement during the escape' (emphasis added)." That, along with other enhancements, raised the guidelines calculation from 24 to 30 months (as calcualted under the firearm guideline) to 235 to 298 months. But the advisory Guidelines "range" was only 120 months, because the offense carried a 10-year statutory maximum. The district judge departed dowward to 96 months' imprisonment. Tiffany appealed.

Reviewing the Guidelines application question de novo, the court of appeals held that the district court improperly applied the cross-reference.

The cross-reference in question provides that,
If the defendant . . . transferred a firearm . . . with knowledge or intent that it would be used or possessed in connection with another offense, apply . . . § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above . . . .
U.S.S.G. § 2K2.1(c)(1) (emphasis added). Tiffany argued that although she gave the gun to Jason knowing that he would possess it in connection with the escape, she did not know or intend that he would use it in connection with attempted murder.

The Government countered by pointing to Application Note 14, which explains that the cross-reference "appl[ies] if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively." According to the Government, Tiffany knew that the firearm "had the potential of facilitating" attempted murder, thus triggering the cross-reference.

The court disagreed. Although the application note "clarifies the meaning of the 'in connection with' phrase[,]" it
does not change the requirement that the defendant transferred the firearm with the “knowledge or intent” that it would be “used or possessed” for that other offense. To follow the cross-reference and apply the sentence for another offense, the district court must find two elements: that (i) the firearm facilitated or had the potential to facilitate another offense, and (ii) the defendant transferred the firearm knowing or intending it to be used or possessed for that offense. Stated another way, it is not enough for the defendant to know that the firearm is capable of facilitating another offense; he must know that the firearm will be used to facilitate or potentially facilitate that offense.

Because the district court found only that Tiffany "knew or should have known" that Jason would attempt murder with the gun, rather than that she knew Jason would actually attempt murder, it improperly applied the cross-reference. Thus, the sentence was vacated and the case remanded for resentencing.

A couple of things to note. First, the Government also argued that the cross-reference could be applied on the basis of general relevant conduct principles. But as the court pointed out, the relevant conduct guideline only applies "unless otherwise specified," and the knowledge requirement of the cross-reference does otherwise specify. That's not the only Guidelines provision carving out an exception to the relevant conduct guideline, so keep your eyes peeled for that sort of thing.

Second, there is at least one part of the gun guideline that is triggered merely by a reason-to-believe, rather than actual knowledge:
The cross-reference is triggered only where there is intent or knowledge; it is not followed where the defendant merely had reason to believe the firearm would be used to commit another offense. By comparison, U.S.S.G. § 2K2.1(b)(6), also addressed by Application Note 14, explicitly includes such situations: “If the defendant . . . transferred any firearm . . . with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18” (emphasis added).

Finally, a discussion question: assume the district court had found that Tiffany actually knew--despite her denial---that Jason would attempt murder with the gun, and applied the cross-reference on that basis. Would Tiffany have an as-applied Fifth and Sixth amendment challenge to her 96-month sentence?

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Wednesday, February 11, 2009

Fifth Circuit's AVIS and Event Notification Systems To End February 13, 2009

The Fifth Circuit's website recently posted these two notices announcing the impending demise of the AVIS and Event Notification Systems:

AVIS System Termination

Effective February 13, 2009, we will close down our Automated Voice Information System, (AVIS). We do so because we are converting our cases to a nationally supported software system called Appellate Case Management/Electronic Case Filing, or more simply, CM/ECF. Unfortunately, CM/ECF does not support AVIS.

If you need information about the status of a Fifth Circuit case you may log onto the Public Access to Court Electronic Records, (PACER), system at, or contact the clerk's office.

For information about Fifth Circuit cases scheduled for oral argument, you may visit our website at for updates to the calendar and to obtain the names of the panel judges, which will be posted on the Calendars one week before the beginning of the court session.

Event Notification Termination

Effective February 13, 2009, we will discontinue the Fifth Circuit's event notification system, which has provided free access to certain case related information. We will be converting our cases to the Case Management portion of CM/ECF, which does not support this functionality. Once we implement Electronic Case Filing electronic notification will once again be available.

In the meantime, you can obtain Fifth Circuit case information by accessing the Public Access to Court Records (PACER) system at

Monday, February 09, 2009

District Court Lacks Power, Under Rule 35(a), To Revise a Reasonable Sentence

As the court tidily sums it up:
Timothy Patrick Ross pled guilty to one count of possession of child pornography and was sentenced to sixty months imprisonment. Shortly after the initial sentencing hearing, the district court sua sponte resentenced Ross to seventy months to correct what it deemed to be “clear error” within the meaning of Federal Rule of Criminal Procedure 35(a). [The court believed its failure to sufficiently account for Ross's "escalating behavior"---"from possession of pornography, to possession of child pornography, to initiating contact with children" was clear error.] Ross argues that the district court did not have the authority to make this modification. We agree. Accordingly, we vacate and remand for reinstatement of the original sentence.
The court's exegesis of Rule 35(a) and its history is pretty involved, but boils down to whether the imposition of a sentence that would be found unreasonable on appeal amounts to "clear error" within the meaning of the rule. Per the court,
We are at least skeptical that Rule 35(a), after Booker, permits a district court to change a sentence on the basis that the original sentence was “unreasonable.” We are confident, however, that a district court is not permitted to withdraw a reasonable sentence and impose what is, in its view, a more reasonable one.
Because Ross's 60-month sentence was not unreasonable, "[a]ny subsequent misgivings about the leniency or severity of the sentence do not constitute the type of error that is contemplated by Rule 35(a). Accordingly, the district court did not have authority to re-sentence Ross."

A couple of things to note:

First, the court needed very little discussion to conclude that Ross's below-Guidelines sentence was reasonable:
Given the considerable discretion the district court had when it first imposed the sentence, we cannot say that imprisonment for sixty months, which was ten months below the lower limit of the seventy to eighty-seven month advisory Guidelines range, was unreasonable. The district court initially considered all the relevant facts and imposed a sentence within its discretion.
Second, the opinion appears to leave intact the court's 1994 decision in United States v. Lopez, which held that what is now Rule 35(a) "does not authorize re-sentencing when the basis for doing so is that the district court changed its mind about the appropriateness of the sentence."