tag:blogger.com,1999:blog-94195302012-01-27T15:08:22.183-06:00Fifth Circuit BlogPaul M. Rashkindnoreply@blogger.comBlogger4881100tag:blogger.com,1999:blog-9419530.post-50120409893406633972012-01-27T15:07:00.001-06:002012-01-27T15:08:22.247-06:00§2L1.2 Enhancement for Unlawfully Remaining In U.S. Following Certain Convictions Applies Only If a Removal Order Was Issued or Reinstated After Such a Conviction (Even If Not in Response to It)United States v. Nevares-Bustamante, No. 10-31110 (5th Cir. Jan. 25, 2012) (Higginbotham, Stewart; Haynes, specially concurring)
Let's say an alien is deported a couple of times (both times following convictions of aggravated felonies), returns again to the United States, is convicted of rape in state court and sentenced to prison, is released from prison without the Border Patrol being notifiedBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-70580276208758909202012-01-24T17:39:00.000-06:002012-01-24T17:39:05.042-06:00Fives Affirm Suppression of Un-Mirandized Statements Made In Response to Interrogation During Execution of Search Warrant at Suspect's HomeUnited States v. Cavazos, No. 11-50094 (5th Cir. Jan. 19, 2012) (Benavides, Prado, Alvarez, D.J.)
Following Cavazos's successful motion to suppress un-Mirandized statements he made in response to interrogation during the execution of a search warrant at his home, the Government took an interlocutory appeal. It argued that Miranda warnings weren't required because Cavazos was not in custody when Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-24759602123040578492012-01-20T17:29:00.000-06:002012-01-20T17:29:06.003-06:00SCOTUS GVR's Breland In Light of SG's Position That Tapia Applies Equally to Revocation of Supervised ReleaseYou'll recall that the Supreme Court held in Tapia v. United States that a court may not impose or lengthen a term of imprisonment in order to promote a defendant's rehabilitation. You'll also recall that the Fifth Circuit held in United States v. Breland that Tapia's holding does not apply when imposing a sentence on revocation of supervised release. That set up a circuit split with the First Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-23605299670860799762011-07-18T18:20:00.000-05:002011-07-18T18:20:44.633-05:00GPS Tracking of Vehicle Neither a Search nor a Seizure (At Least Not on the Facts of This Case)United States v. Hernandez, No. 10-10695 (5th Cir. July 18, 2011) (Jones, Higginbotham, Southwick)
Let's suppose police decide to track a suspect by surreptitiously attaching a GPS device to his vehicle. Let's also suppose that the police did not obtain a warrant to conduct this electronic surveillance. Fourth Amendment violation?
Actually, there's no need to suppose such a scenario, because Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-37912715941064828562011-07-15T16:44:00.000-05:002011-07-15T16:44:34.190-05:00Extradition Must've Been a NightmareOne of my colleagues alerted me to this unpublished opinion handed down today:
Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-24026220786340726252011-07-13T00:01:00.004-05:002011-07-13T00:01:01.757-05:00Circuit Split: Fourth Circuit Holds Government May Not Condition Motion for Third Acceptance Level on Appeal WaiverUnited States v. Divens, No. 09-4967 (4th Cir. July 5, 2011) (Motz, Gregory, Shedd)
As you'll recall, the Fifth Circuit held in United States v. Newson that the Government may refuse to move for the third acceptance level under guideline §3E1.1(b) if a defendant refuses to enter a plea agreement containing an appeal waiver. Agreeing with the Ninth and Tenth Circuits, Newson held that the scope Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-21295573447443550722011-07-12T15:20:00.000-05:002011-07-12T15:20:57.955-05:00Where Circuit Had Not Yet Addressed Question at Time of Trial, Error Is Neither "Clear" Under Rule 35(a) Nor "Plain" Under Rule 52(b)United States v. Henderson, No. 10-30571 (5th Cir. July 8, 2011) (Smith, Southwick, Graves)
Another reason, as if you needed one, to preserve, preserve, preserve error in the district court.
Henderson, who pleaded guilty to being a felon in possession of a firearm, received an upward departure "to ensure that [he] had an opportunity to enroll in the federal Bureau of Prisons drug treatment Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-27945456700225913742011-07-11T17:14:00.001-05:002011-07-12T14:05:13.010-05:00Fives to Rehear Sufficiency Win En BancA nice sufficiency win from earlier this year, United States v. Delgado, will be reheard en banc. Presumably this was prompted by the criticism in Judge Clement's dissent from the panel ruling. She faulted the majority for addressing the sufficiency issue sua sponte, and criticized what she described as the majority's expansion of the buyer-seller exception to conspiracy liability and its Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-10715510043750783922011-06-23T15:37:00.000-05:002011-06-23T15:37:50.385-05:00SCOTUS: Court May Not Impose or Lengthen Prison Term to Promote Defendant's RehabilitationTapia v. United States, No. 10-5400 (U.S. June 16, 2011)
When imposing sentence, 18 U.S.C. § 3553(a)(2) requires a court to consider certain factors, including rehabilitative factors: the need "to provide the defendant with needed educational or vocational training, medical care, or other appropriate correctional treatment in the most effective manner." But a separate statute, § 3582(a), furtherBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-8536524973322399792011-06-16T12:04:00.001-05:002011-06-16T12:05:03.399-05:00An Important Lesson On Error Preservation, An Open Miranda Question, and Knowledge of Interstate Movement in FIP CasesUnited States v. Potts, No. 10-10257 (5th Cir. June 15, 2011) (Smith, DeMoss, Owen)
A general rule of preserving error at trial (which I'm shamelessly stealing from someone else) is to keep asking for things until the court says no. Failure to do so, as Potts illustrates, lands you in the dark realm of plain error review. Not a good place to be when, as in Potts, the question of whether there Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-67173143922769054592011-06-14T14:37:00.001-05:002011-06-14T14:42:13.087-05:00Cert Grant: May District Court Order Federal Sentence to Run Consecutively to Anticipated, But Yet-to-Be-Imposed State Sentence?No longer will that question fester, with yesterday's cert grant in Setser. That's Setser v. United States, No. 10-7387, to be exact, a case out of our very own circuit. The Court also granted cert on a second question concerning the proper interpretation of 18 U.S.C. § 3584(a): "Is it reasonable for a district court to provide inconsistent instructions about how a federal sentence should Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-9724551880221035372011-05-24T15:27:00.002-05:002011-05-25T13:16:56.427-05:00Proposed Amendment to Fifth Circuit Rule Addresses Loss of Quorum After Grant of Rehearing En BancYesterday the clerk's office issued this notice soliciting public comment on a proposed change to Fifth Circuit Rule 41.3. Here's a redline:
41.3 Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate. If, after voting a case en banc, the court lacks a quorum to act Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-47692394275570906472011-05-23T14:35:00.000-05:002011-05-23T14:35:52.807-05:00Cert Grant: Is Filing a False Statement on a Corporate Tax Return an Aggravated Felony?Today the Supreme Court granted certiorari in Kawashima v. Holder, No. 10-577, which presents this question:
Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-35049890175051947882011-05-03T18:01:00.001-05:002011-05-03T18:06:12.368-05:00Alien Is "Released from Imprisonment," for Supervised Release Purposes, When He Is Transferred from BOP to ICE Custody to Await RemovalUnited States v. Garcia-Rodriguez, Nos. 09-20406 & 09-40635 (5th Cir. May 2, 2011) (per curiam) (Smith, DeMoss, Owen)
Title 18 U.S.C. § 3624(e) instructs that a "term of supervised release commences on the day the person is released from imprisonment." Seems straightforward enough. But what if the person is an alien, completes his sentence, and is transferred from BOP to ICE custody and Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-37906618472206476942011-04-11T18:00:00.000-05:002011-04-11T18:00:20.595-05:00Sentencing Commission Promulgates Guidelines Amendments for November 2011Last week the Sentencing Commission issued this press release announcing a new crop of Guidelines amendments. Absent Congressional action, the amendments will take effect on November 1, 2011. There's some good and some bad for defendants, with changes affecting illegal reentry, firearms, supervised release, mitigating role, health care fraud, and more. The Sentencing Resource Counsel Project hasBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-10234111849400593782011-03-29T17:33:00.002-05:002011-03-29T17:40:38.121-05:00They Say This Cat Tolentino's a Bad Mother— Shut Your Mouth! But I'm Just Talking 'Bout Tolentino! Then We Can DIG It!As you can tell from the post title, today the Supreme Court dismissed as improvidently granted the writ of certiorari in Tolentino v. New York. As is usual with DIGs, the Court didn't explain the reason for the dismissal. But the oral argument transcript suggests a possibility: unanswered questions below.
Recall what happend here: Tolentino was pulled over by police, and arrested when the Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-81507634162104747272011-02-25T08:01:00.002-06:002011-02-25T08:01:00.507-06:00Fives Take Side on Circuit Split, Hold That SORNA's Registration Requirement Did Not Become Applicable to Those with Pre-SORNA Convictions Until AG Issed Interim Rule Making SORNA RetroactiveUnited States v. Hoang, No. 09-30484 (5th Cir. Feb. 23, 2011) (Jones, Jolly, Garza)
So what's this case about?
Appellant Nam Van Hoang (“Hoang”) appeals from his conviction for failure to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”). Hoang was convicted of a sex offense and registered as a sex offender under state law prior to the enactment of SORNA, which Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-35397045581931200182011-02-24T08:01:00.001-06:002011-02-24T08:01:00.139-06:00Downward Departure to Cat I for Overrepresented Criminal History Does Not Make Defendant Safety-Valve EligibleUnited States v. Jasso, No. 10-40203 (5th Cir. Feb. 17, 2011) (Garza, Stewart, Haynes)
Let's say you're facing a mandatory minimum, but you're ineligible for safety valve relief because you've got more than one criminal history point. What if you persuade the district court that your criminal history category is overrepresents the seriousness of your criminal history, and you get a departure toBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-68653630696716024422011-02-23T15:40:00.000-06:002011-02-23T15:40:14.786-06:00Obstructing Highway or Other Passageway in Violation of Tex. Penal Code § 42.03 Is Not Similar to "Loitering" Under Criminal History GuidelinesUnited States v. Hernandez, No. 10-10913 (5th Cir. Feb. 22, 2011) (per curiam) (Jolly, Higginbotham, Smith)
The concise intro:
The Federal Sentencing Guidelines instruct a sentencing court to consider all of a defendant’s prior convictions, including misdemeanors and petty offenses, subject to two exceptions designed “to screen out past conduct which is of such minor significance that it is not Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-85601762513824926792011-02-23T14:44:00.000-06:002011-02-23T14:44:40.365-06:00No.That's the answer to the question posed in this post from a few weeks ago: Is SCOTUS Poised to Reconsider Almendarez-Torres?
To recap, the Court seemed to be taking an interest in two petitions presenting the question of Almendarez-Torres's continuing viability. It called for responses from the Solicitor General in both cases, and thereafter relisted both petitions three times. Some observers Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-16136040900827817622011-02-17T18:35:00.000-06:002011-02-17T18:35:12.014-06:00One Sausage, Different Lengths? Panel Agrees Necessary & Proper Clause Authorizes SORNA's Failure-to-Register Offense for Those With Federal Priors, But Disagrees As to WhyUnited States v. Kebodeaux, No. 08-51185 (5th Cir. Feb. 15, 2011) (per curiam) (Stewart, Haynes; Dennis, concurring in the judgment)
(Disclosure: My office represents Mr. Kebodeaux, so I'm limiting this post to just a summary of the two opinions, without any analysis of their merits.)
As you know, the Sex Offender Registration and Notification Act—or SORNA, to its friends—contains a criminal Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-29173346810261659412011-02-15T17:31:00.000-06:002011-02-15T17:31:39.748-06:00Defense Suppression Victory; Court Upbraids Prosecutor for Improper Remarks During Closing ArgumentUnited States v. Raney, No. 10-20007 (5th Cir. Feb. 9, 2011; rev. Feb. 10, 2011) (per curiam) (DeMoss, Elrod; Benavides, dissenting)
This case presents two you-dont-see-that-every-days: a rare Fourth Amendment win for the defense, and a stern warning to prosecutors to knock it off with the improper jury arguments.
So what happened here? Raney drove on the wrong side of the street to get around Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-41140464882989259602011-02-10T08:00:00.001-06:002011-02-10T08:00:11.983-06:003582(c)(2) Reduction Denial Vacated for Failure to Consider 3553(a) FactorsUnited States v. Larry, No. 08-30368 (5th Cir. Feb. 8, 2011) (DeMoss, Prado; King, dissenting)
Larry picked up a 280-month sentence for a crack offense. In response to a Rule 35 motion from the Government, his sentence was later reduced to 154 months. A second Rule 35 motion got him down to 138 months. Then came the Sentencing Commission's decision in 2008 to make the reductions to the crackBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-18669047849707078382011-02-09T16:22:00.000-06:002011-02-09T16:22:21.999-06:00Convictions Reversed for Insufficiency and Cumulative Error; Good Discussion of Deliberate IgnoranceUnited States v. Delgado, No. 07-41041 (5th Cir. Jan. 19, 2011) (Wiener, Dennis; Clement, J. dissenting)
A common fact pattern, an uncommon result:
Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense, 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371.0. She was sentenced to a concurrent Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-16973822154728787272011-01-27T17:28:00.000-06:002011-01-27T17:28:19.056-06:00Is SCOTUS Poised to Reconsider Almendarez-Torres?That the question posed in this post at SCOTUSblog. What prompted this speculation?
As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Since the government filed briefs in opposition, the Court has relisted those cases three times, at theBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-60650979701281507892011-01-19T00:01:00.002-06:002011-01-19T00:01:02.075-06:00Proposed Guidelines Amendments and Requests for CommentAs Professor Berman highlighted last week, the Sentencing Commission has published for public comment a raft of proposed amendments to the Guidelines. A few of these proposals could be quite significant for those of us in border districts, as well as anyone who represents alien defendants (which is pretty much everyone these days). There are also some requests for comment on matters perennial (Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-68430722760643570252011-01-18T15:23:00.004-06:002011-02-09T16:00:56.408-06:00Bare Offer to Sell Drugs Is Now Drug-Trafficking Offense Under Illegal Reentry Guideline; Still Not Plain Error to Apply Higher Guidelines In Effect at Time of SentencingUnited States v. Marban-Calderon, No. 09-40207 (5th Cir. Jan. 18, 2011) (Higginbotham, Smith, Elrod)
As you'll recall, the Fifth Circuit has in the past held that a Texas conviction for delivery of a controlled substance was not categorcially a "drug trafficking offense" under guideline §2L1.2, because the offense can be committed by a bare offer to sell drugs. You'll also recall that the Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-69874548219542616922011-01-14T17:20:00.001-06:002011-01-14T17:20:47.395-06:00Cert Grant: Under ACCA, Is Maximum Punishment for Prior Offense Determined By Current Law or By Law In Effect at the Time of That Offense?Under the ACCA, a "serious drug offense" is one carrying a maximum term of imprisonment of at least 10 years. In determining whether a prior offense is a serious drug offense, does the court look at the maximum punishment authorized at the time the defendant committed the offense, or at the time of sentencing for the new federal offense?
That is the question on which the Supreme Court granted Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-7838634673756221802011-01-13T10:19:00.001-06:002011-01-13T10:20:29.006-06:00Revocation AggregationUnited States v. Shabazz, No. 10-10553 (5th Cir. Jan. 6, 2011; rev. Jan. 12, 2011) (King, Stewart, Owen)
United States v. Hampton, No. 10-10035 (5th Cir. Jan. 6, 2011) (King, Stewart, Owen)
In these cases, the court addresses an issue concerning revocation imprisonment terms that has been lurking since the passage of the PROTECT Act in 2003. Namely, is there an aggregate limit on the amount ofBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-44975358304364833442011-01-12T08:01:00.000-06:002011-01-12T08:01:00.198-06:00TX Fleeing by Vehicle Is Aggravated Felony, for Largely the Same Reason It's an ACCA Violent FelonyUnited States v. Sanchez-Ledezma, No. 10-40451 (5th Cir. Jan. 7, 2011) (Garza, Stewart, Haynes)
Recall that, in United States v. Harrimon, the Fifth Circuit found that evading arrest or detention by use of a vehicle, in violation of Texas Penal Code § 38.04(a), is a "violent felony" under the ACCA. Specifically, Harrimon held that the Texas offense falls within the violent felony definition's Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-80359555425884050612011-01-11T17:44:00.001-06:002011-01-11T17:45:16.173-06:00Legally Non-Consensual Sex Offenses, Even If Involving Consent In Fact, are "Forcible Sex Offenses" Under §2L1.2's COV DefinitionUnited States v. Rodriguez-Juarez, No. 09-41001 (5th Cir. Jan. 10, 2011) (per curiam) (Higginbotham, Smith, Haynes)
Remember the Fifth Circuit cases, such as Luciano-Rodriguez and Sarmiento-Funes, which held that sex offenses that are factually consensual but legally non-consensual (such as when the victim is too intoxicated to legally consent) are not "forcible sex offenses" for purposes of theBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-24105850648925477552011-01-07T17:50:00.002-06:002011-01-11T10:05:29.714-06:00Fives Clarify Harmlessness Analysis of Guidelines Calculation ErrorUnited States v. Ibarra-Luna, No. 09-40768 (5th Cir. Dec. 22, 2010) (Higginbotham, Clement, Owen)
Been wondering just when an error in calculating the advisory Guidelines range requires reversal? Today is your lucky day:
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 Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com2tag:blogger.com,1999:blog-9419530.post-65583956061141510632010-12-16T15:54:00.002-06:002010-12-16T15:57:57.123-06:00California First-Degree Burglary is COV Under 18 U.S.C. § 16(b), and Therefore Aggravated FelonyUnited States v. Echeverria-Gomez, No. 09-50261 (5th Cir. Dec. 8, 2010) (per curiam) (Jolly, Higginbotham, Smith)
We know that burglary under Cal. Penal Code § 459 is not generic "burglary" because it does not require that the entry be unlawful or unprivileged. And for that reason, it does not trigger a 16-level COV enhancement under the illegal reentry guideline, §2L1.2. But we also know Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-4218596955284136052010-12-15T00:01:00.001-06:002010-12-15T00:01:01.628-06:00Cert Grant: Are Pre-Existing Identity-Related Governmental Documents, Such as Motor Vehicle Records, Obtained as the Direct Result of Police Action Violative of the Fourth Amendment, Subject to the Exclusionary Rule?Last month the Supreme Court granted cert to answer that question—a question that has divided courts 'round the land—in Tolentino v. United States, No. 09-11556.
The evidence at issue is Tolentino's driving record, which police obtained by running a computer records check during an allegedly illegal traffic stop. That record revealed that Tolentino's license was suspended (as it had been on 10 Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-79754345170620316222010-12-14T15:00:00.000-06:002010-12-14T15:00:22.892-06:00Cert Grant: May a District Court Give a Defendant a Longer Sentence to Promote Rehabilitation?Such is the question presented in Tapia v. United States, No. 10-5400, in which the Supreme Court granted cert last Friday. You may be familiar with the scenario presented in Tapia: the district court imposed a 51-month, top-of-the-guidelines sentence in part to ensure that Tapia would remain in prison long enough to be able to participate in BOP's 500-hour drug treatment program.
According to Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-88615374781293515902010-11-05T09:28:00.000-05:002010-11-05T09:28:07.973-05:0021 U.S.C. § 851 Does Not Bar Defendant From Challenging 5+ Year-Old Conviction on Identity GroundsUnited States v. Gonzalez, No. 09-40125 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis)
Sometimes it seems like sentencing in federal court has more to do with what the defendant did in the past than what he did this time. Which brings us to Gonzalez and 21 U.S.C. § 851. The case presents two questions:
First, although § 851 precludes a defendant from challenging the validity of aBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-60502704939434939292010-11-04T00:01:00.007-05:002010-11-04T09:23:49.556-05:00Career Offenders Ineligible for Mitigating Role AdjustmentUnited States v. Cashaw, No. 09-51035 (5th Cir. Nov. 2, 2010) (per curiam) (King, Garwood, Davis)
As it turns out, this appears to be the first time the Fifth Circuit has held as such. Cashaw had argued that he was eligible for the adjustment because "the career offender provision does not expressly preclude a downward adjustment for a minor participant and . . . this court has never ruled to Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-86527404985342570962010-11-03T14:36:00.000-05:002010-11-03T14:36:22.902-05:00CA "Willful Infliction of Corporal Injury" a §2L1.2 16-Level COV, But CA "Making Criminal Threats" NotUnited States v. Cruz-Rodriguez, No. 09-40500 (5th Cir. Nov. 2, 2010) (per curiam) (King, Benavides, Elrod)
And now for something completely different: a §2L1.2 16-level COV case.
Cruz got hooked with the enhancement on the basis of two Golden State priors:
Cal. Penal Code § 273.5—willful infliction of corporal injury
Cal. Penal Code § 422—making criminal threats
Neither is an enumerated COV, Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-16622130848331885312010-10-28T18:30:00.000-05:002010-10-28T18:30:28.554-05:00GA Residential Burglary Statute Is Within Curtilage of Generic Burglary of a DwellingUnited States v. Garcia, No. 09-20587 (5th Cir. Oct. 27, 2010) (Barksdale, Stewart, Southwick)
Another day, another COV case. The opinion doesn't contain anything new on the categorical approach or any meta-COV issues; it's just one more to add to your list.
The context: Illegal reentry case, the 16-level COV enhancement under guideline §2L1.2 (which includes burglary of a dwelling as an Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-70656869251532596492010-09-24T08:00:00.001-05:002010-09-24T08:00:00.622-05:00Fourth Amendment Friday: Jail Strip Search of Person Arrested for Minor Offense Still Requires Reasonable Suspicion of Weapon or Contraband Possession . . . For NowJimenez v. Wood County, Texas, No. 09-40892 (5th Cir. Sept. 22, 2010) (Garza, Benevides, Lynn, D.J.)
"I'll take 'Book 'em Danno' for $200, Alex."
"Strip searches in a prison setting may be performed on less than probable cause."
"What was the holding of Bell v. Wolfish, 441 U.S. 520 (1979)?"
"Correct. Go again."
"'Book 'em Danno' for $400."
"'[A] strip search of an individual arrested for Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-41177992593399988912010-09-23T18:06:00.000-05:002010-09-23T18:06:00.875-05:00Prior Illegal Reentry Was Aggravated Felony Where Judgment Listed § 1326(b)(2) as Statute of ConvictionUnited States v. Gamboa-Garcia, No. 09-50513 (5th Cir. Sept. 21, 2010) (Jones, Prado, Ozerden, D.J.)
One part of the "aggravated felony" definition doesn't get a lot of attention, perhaps because it seems superfluous. We're talking, of course, about 8 U.S.C. § 1101(a)(43)(O), which includes as an aggravated felony "an offense described in section 1325(a) or 1326 of this title committed by an Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-69595747045386769792010-08-31T18:36:00.000-05:002010-08-31T18:36:34.280-05:00On Remand for Resentencing Without Specific Instructions, District Court May Consider Any New Evidence from Either Party Relevant to Issues AppealedUnited States v. Carales-Villalta, No. 09-40468 (5th Cir. Aug. 26, 2010) (Jolly, Garza, Starrett, D.J.)Let's say a defendant successfully appeals his sentence. What's in play on remand? As it turns out, this has been something of an open question in the Fifth Circuit: "This Court has not precisely stated what is proper for the district court to consider on remand absent a specific mandate." SoBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-81535801712028923222010-08-24T18:55:00.001-05:002010-08-24T18:55:59.779-05:00§ 924(c) Conviction a "Felony Drug Offense" for Controlled Substance Act Enhancement Purposes If Record Shows It Involved Drug-Trafficking CrimeUnited States v. Rains, No. 09-50724 (5th Cir. Aug. 23, 2010) (King, Higginbotham, Garza)Rains confronts what is surprisingly a question of first impression for the court. In fact, only one other circuit has addressed it in a published opinion. That question is whether a § 924(c) conviction is a "felony drug offense" for purposes of the enhanced penalties in 21 U.S.C. § 841. Which means we'll Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-59921775903444497852010-08-16T15:39:00.000-05:002010-08-16T15:39:30.709-05:00Government Failed to Prove That Defendant Used "Counterfeit Mark" on Containers of Allegedly Counterfeit DrugsUnited States v. Xu, 599 F.3d 452 (5th Cir. 2010) (Smith, Garza, Clement)You may not find yourself handling many counterfeit drug cases, but there's still a broader lesson to be learned from Xu: even if there's a simple, straightforward way for the Government to establish an easily provable element of an offense, the Government can still screw it up. So keep on your toes.Xu was convicted at Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-33005399443144769932010-08-12T18:39:00.000-05:002010-08-12T18:39:51.594-05:00Border Search Doctrine Applies As Long as International Border Has Been Crossed, Regardless of Where Travel OriginatedUnited States v. Pickett, 598 F.3d 231 (5th Cir. 2010) (per curiam) (Clement, Prado, Elrod) [I haven't included a hyperlink to the opinion because it doesn't appear to available on the opinions page at the Fifth Circuit's website.]Now here's an interesting case.Recall our old friend (or nemesis) the border search doctrine. Routine searches at the border are per se reasonable, and do not require Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-71091432979034210242010-08-12T17:40:00.000-05:002010-08-12T17:41:00.614-05:00Court May Deny Third Acceptance Point, Even if Government Moves for ItUnited States v. Williamson, 598 F.3d 227 (5th Cir. 2010) (Smith, Clement, Owen)Post-PROTECT Act, a government motion is a necessary condition for the third acceptance point under guideline §3E1.1(b). But it is sufficient? No.Williamson went to trial on a 50+ gram crack charge a few years ago. He was convicted. On appeal, the Fifth Circuit reversed his conviction due to a Batson violation Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-37063062465958088212010-08-12T17:04:00.002-05:002010-08-12T17:07:04.903-05:00Programming NoteI am in the middle of preparing a Fifth Circuit case update for a CLE presentation in September. While doing that, I'm going to be posting summaries of some important cases that I neglected to mention at the time they came out. So if you're wondering why I'm blogging cases that are weeks or months old, that's why.Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-11641944978369905472010-08-03T14:52:00.003-05:002010-08-03T14:56:03.924-05:00Restitution Order Based on Taxes Owed Is "Debt Due for Federal Tax" Under Federal Debt Collection Procedures Act & Consumer Credit Protection ActUnited States v. Clayton, No. 09-31025 (5th Cir. Aug. 2, 2010) (Davis, Smith, Haynes)How much of one's earnings may be garnished to satisfy a restitution order based on a failure to pay federal income taxes? All of them.Clayton pleaded guilty to three misdemeanor counts of failing to file federal income tax returns for the tax years 1999 through 2001. His tax liability for those three years was Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-15283464144525553232010-07-16T11:05:00.002-05:002010-07-16T16:46:16.051-05:00Sixth Circuit Approves of Variances Based on Fast-Track Disparity, Bringing Circuit Split On Issue to 3-3If you handle illegal reentry cases, you're well aware of the circuit split over whether a court in a non-fast-track district may vary from the advisory Guidelines range to temper the disparity caused by the availability of such programs elsewhere. The Fifth, Ninth, and Eleventh Circuits have said no. The First and Third have said yes. Professor Berman now reports that the Sixth Circuit, with itsBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-66874465990425255672010-07-14T18:56:00.000-05:002010-07-14T18:56:38.180-05:00TX Injury to Child by Act Not 2L1.2 16-Level COV; No Invited Error Where Counsel Misunderstood Relevant PrecedentUnited States v. Andino-Ortega, No. 09-40498 (5th Cir. June 8, 2010) (Barksdale, Garza, Dennis)Two important holdings in this appeal of an illegal reentry sentence. But first, the facts:Andino had a prior Texas conviction for injury to a child (Tex. Penal Code § 22.04), for which the PSR hit him with a 16-level crime-of-violence enhancement. At sentencing, he asked for a downward variance on Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-8617529126025050902010-07-13T17:17:00.000-05:002010-07-13T17:17:28.917-05:00Birth In Philippines During Territorial Period Does Not Confer U.S. CitizenshipNolos v. Holder, No. 08-60786 (5th Cir. July 9, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)Deriviative citizenship and a categorical approach/aggravated felony issue in the same opinion? You'll want to pay attention to this one.Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-48572665396667756732010-07-01T18:03:00.001-05:002010-07-01T18:05:11.336-05:00Defendant's Admission That PSR Was Correct Costs Him On Plain Error Review of Otherwise Erroneous Sentence EnhancementUnited States v. Velasquez-Torres, No. 09-40646 (5th Cir. June 18, 2010) (per curiam) (Jolly, Smith, Owen)Here we have another object lesson in the perils of admitting—explicitly or implicitly—the accuracy of the PSR.Recall that, under the illegal reentry statute, 8 U.S.C. § 1326, enhanced penalties apply if an alien was deported after having been convicted of a qualifying offense. Which brings Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-6890143901260231302010-06-15T18:44:00.000-05:002010-06-15T18:44:13.072-05:00No Categorical Rule for Deciding Whether (c)(1)(C) Sentence Was "Based On" Retroactively Reduced Guidelines Range for § 3582(c)(2) PurposesUnited States v. Williams, No. 09-30778 (5th Cir. June 15, 2010) (per curiam) (Jolly, Smith, Owen)If that post title sounds familiar to you, it's because the Fifth Circuit addressed the same issue several weeks ago in United States v. Garcia. So why another published opinion so soon? Perhaps because Williams presents a slightly different factual scenario.Recall that in Garcia, the defendant Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-37545032477989904342010-06-14T18:27:00.000-05:002010-06-14T18:27:27.058-05:00Second or Subsequent Simple Possession Not Aggravated Felony Unless Record of Conviction Shows It Was Based on Fact of Prior Drug ConvictionCarachuri-Rosendo v. Holder, No. 09-60 (U.S. June 14, 2010)As with so many other common issues in our neck of the woods, you're no doubt familiar with this one if you regularly handle illegal reentry cases. Today the Supreme Court held, reversing a decision from the Fifth Circuit, "that second or subsequent simple possession offenses are not aggravated felonies under [8 U.S.C.] § 1101(a)(43) Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-5458940630125972082010-05-17T10:16:00.000-05:002010-05-17T10:16:09.566-05:00Sentence Resulting from (c)(1)(C) Agreement May or May Not be "Based On" a Retroactively Reduced Guidelines Range for § 3582(c)(2) PurposesUnited States v. Garcia, No. 08-50458 (5th Cir. May 7, 2010) (per curiam) (Jones, Higginbotham, Elrod)Garcia was charged with seven counts of distributing lots of cocaine and crack. He entered a (c)(1)(C) agreements providing that 1) he would plead guilty to two counts in exchange for dismissal of the remaining counts, and 2) the sentence would be at least 240 months.The plea agreement also Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-59285317579760881912010-05-14T15:07:00.000-05:002010-05-14T15:07:58.913-05:00Split Remains Over Whether Court May Order Federal Sentence to Run Consecutively to Not Yet Imposed State SentenceUnited States v. Setser, No. 08-10835 (5th Cir. May 11, 2010) (Benavides, Stewart, Southwick)May a district court order that the federal sentence it imposes run consecutively to an anticipated, but not yet imposed, state sentence? The answer is found in 18 U.S.C. § 3584(a). And that answer, per the Fifth Circuit's 1991 decision in United States v. Brown, is yes. Other circuits disagree. So Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-23837349976765898292010-04-15T00:01:00.000-05:002010-04-15T00:01:00.646-05:00Adding "Without Prejudice" to Jurat on Form 1040 Did Not Make Tax Return InvalidUnited States v. Davis, No. 08-20844 (5th Cir. Apr. 13, 2010) (DeMoss, Elrod, Haynes)What's that? You want to read about a tax-related opinion on tax day? You're in luck! Plus, it addresses a novel issue. So break out your adding machines, green eyeshades, and sharpened No. 2 pencils and dig in.Davis, a Houston-area car-dealer/tax-prep/skydiving magnate, prepared tax returns for Oden, one of Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-16017864462587944102010-04-14T16:08:00.001-05:002010-04-14T16:14:43.040-05:00Fives Reaffirm Limits On Collaterally Attacking Prior ConvictionsUnited States v. Longstreet, No. 09-60051 (5th Cir. Apr. 7, 2010) (Garwood, Smith, Clement)As you're well aware, the number and nature of prior convictions can have a large effect on a defendant's sentencing exposure, due to a variety of statutory and Guidelines enhancements. Anything you can do to challenge the validity of such priors? Very little, as the court reminds us in Longstreet:Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-76255879861278640602010-03-30T18:13:00.000-05:002010-03-30T18:14:40.971-05:00No Presumption of Vindictiveness When Defendant Receives Higher Sentence On Remand From Different Judge Of the Same CourtUnited States v. Rodriguez, No. 09-20181 (5th Cir. Mar. 25, 2010) (King, Barksdale, Elrod)From the be-careful-what-you-wish-for files: Rodriguez entered into plea agreement in exchange for 1) dismissal of some counts, and 2) the Government's promise not to seek offense level enhancements at sentencing. The Government then breached the agreement by defending the PSR's calculation of the GuidelinesBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-31320596070607312462010-03-29T16:43:00.000-05:002010-03-29T16:43:23.980-05:00Fives Reiterate That District Court May Not Impose Sentence Below Statutory Minimum, Absent Substantial Assistance Motion or Safety ValveUnited States v. Montes, No. 08-10932 (5th Cir. Mar. 26, 2010) (Reavley, Davis, Stewart)That's what the court held in United States v. Krumnow, and that's what it holds here:In United States v. Krumnow, 476 F.3d 294, 295-98 (5th Cir. 2007), we held that district courts could impose a sentence of imprisonment below a statutory minimum only if: (1) the government so moves pursuant to 18 U.S.C. § Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-76176429503210123852010-03-23T13:41:00.001-05:002010-03-31T09:51:03.112-05:00Hiding in Sleeper Compartment of Tractor-Trailer Not §2L1.1 Reckless EndangermentUnited States v. Torres, No. 09-40678 (5th Cir. Mar. 4, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)I've sometimes wondered how long it would take for a 1000 monkeys pecking away at a 1000 typewriters to answer every possible COV question out there. Probably about as long as it would take those same monkeys to answer whether every conceivable alien-smuggling scenario calls for a reckless Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-77788464068591319172010-03-22T16:31:00.001-05:002010-03-23T10:29:11.752-05:00Cert Grant On Derivative Citizenship Statute's Disparate Treatment of Out-of-Wedlock Birth to U.S. Citizen Father vs. U.S. Cititzen MotherThis post was written by Matthew Wright, Legal Research & Writing Specialist in the Amarillo office of the Federal Public Defender for the Northern District of Texas.Everyone who has raised an acquired or derivative citizenship defense to a prosecution for illegal reentry understands that it is more difficult to establish citizenship through an unwed U.S. citizen father than through an unwed U.S.Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-35815387136030818422010-03-19T09:34:00.000-05:002010-03-19T09:34:11.679-05:00New SCOTUS WebsiteTony Mauro reports in the National Law Journal:The Supreme Court's long-awaited Web site redesign was unveiled Thursday at supremecourt.gov, bringing the site into the 21st century only a few years late.The new site is visually appealing, with a rotating series of photos of the Court building, and iconography drawn from the Court's architectural features. It has an easy search function on its Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-10795733105289552972010-02-19T18:11:00.000-06:002010-02-19T18:11:43.982-06:00District Court Has Jurisdiction to Reduce Sentence Under 18 U.S.C. § 3582(c)(2), Even if Original Sentence Is Pending on AppealUnited States v. Martin, No. 07-30815 (5th Cir. Feb. 5, 2010) (Jolly, Dennis, Jordan, D.J.)More action for all of you § 3582(c)(2) wonks out there:This case presents a question of whether a district court has jurisdiction to modify a sentence under 18 U.S.C. § 3582(c)(2) while an appeal of the original sentence is pending before this court. We determine that in this case it does.So how did the Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-73812150859456243662010-02-11T11:22:00.005-06:002010-03-17T17:52:14.736-05:00Panel Breaks With Prior Panel Precedent; Holds Ex Post Facto Clause Does Not Apply to Guidelines Increases Post-BookerUnited States v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010; rev'd Mar. 10, 2010) (Jones, Smith, Elrod)See update below.Here we have an instance of dueling panels. Castillo-Estevez holds that any error in the district court's application of the Sentencing Guidelines was not plain, despite the fact that there is controlling circuit precedent on the precise question at issue, and under Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-66266500261128759042010-02-05T17:56:00.000-06:002010-02-05T17:56:51.644-06:00SCOTUS To Decide Whether Court May Impose Sentence Below Revised Range in § 3582(c)(2) ResentencingsSpeaking of sentence reductions pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive amendments to the crack guidelines, the Supreme Court in December granted cert on questions that have divided the circuits in this area. Dillon v. United States, No. 09-6338, presents the questions:I. Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-6449245413340780302010-02-05T17:08:00.000-06:002010-02-05T17:09:02.753-06:00Defendant Who Got 5K1.1 Departure Below Statutory Minimum Not Eligible for 3582(c)(2) Reduction, Because Sentence Was Based on Statute, Not GuidelinesUnited States v. Carter, No. 08-20235 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)The short answer (because the long one requires close examination of statutory and guideline language): "[W]e join the Fourth, Eighth, and Eleventh Circuits and hold that when a defendant is subject to a statutory minimum sentence above the upper end of his guideline range, even if the district court Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-35361665911278358542010-02-05T16:21:00.000-06:002010-02-05T16:21:08.058-06:00Each Receipt of Money Is Separate Offense Under 18 U.S.C. § 641United States v. Reagan, No. 08-11006 (5th Cir. Feb. 4, 2010) (King, Barksdale, Elrod)Ever wondered what the unit of prosecution is under the theft of public money statute, 18 U.S.C. § 641? Then read on.Reagan was charged under 18 U.S.C. § 641 for improperly receiving $41,832 over five years in Section 8 program payments from the Dallas Housing Authority (DHA), which administers funding providedBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-49320280410757824842010-02-04T00:01:00.000-06:002010-02-04T00:01:01.879-06:00No Error In Letting Government Amend Indictment to Conform Serial Number of Gun Alleged to Gun Introduced at TrialUnited States v. Midkiff, No. 07-30981 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)Although not otherwise breaking any new ground, this opinion does address one question that the Fifth Circuit hasn't previously addressed directly: is it a mistake of form or substance if an indictment alleging a gun crime alleges a serial number different from the one on the gun introduced at trial? (Hint: Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-77629326057289243132010-02-03T15:34:00.000-06:002010-02-03T15:34:46.718-06:00Court Must Accept or Reject Entire (c)(1)(C) Agreement, May Not Accept Parts and Reject Others; Probably Goes for (c)(1)(A) Agreements, TooUnited States v. Self, No. 08-40624 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)Self finds the court confronting an issue of first impression in the Fifth Circuit: whether a court can accept or reject a Rule 11(c)(1)(C) plea agreement on a "piecemeal basis." Answer: no. And the reasoning appears to be equally applicable to (c)(1)(A) agreements.Self was charged with two counts of bank Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-3780342430113123382010-02-01T17:43:00.003-06:002010-02-23T14:02:23.956-06:00Certificates of Non-Existence of Record Are Testimonial for Confrontation Clause Purposes, But That's Not the Silver Bullet You Might Have Hoped ForUnited States v. Martinez-Rios, No. 08-40809 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)Think way, way back, to the mists of last July, when the world—well, this blog, at least—was abuzz over whether the Supreme Court's Confrontation Clause decision in Melendez-Diaz v. Massachusetts portended a new dawn of heroic struggle against the ease with which the Government can prove the Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-30804377184087802342010-01-27T12:19:00.000-06:002010-01-27T12:20:01.226-06:00The Legal Universe At Your Fingertips, For Free!The end of the workday. You lock up your shop, trundle off to the local attorney watering hole, and almost instantly find yourself embroiled in a friendly, yet frenzied, argument over whether case X said Y or Z. Factions form. A wager ensues. The next round depends on who's right. But how to settle it?Soon, you'll no longer need to adjourn to the nearest law library, spectators in tow, to Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-57970662128738615112010-01-25T14:21:00.000-06:002010-01-25T14:21:40.395-06:00Melendez-Diaz Remains Safe; Court Vacates and Remands VA Case That Could Have Undermined the Recent RulingLast June, only one day after handing down its Confrontation Clause ruling in Melendez-Diaz v. Massachusetts, the Supreme Court granted cert in Briscoe v. Virginia on a question that Melendez-Diaz appeared to have answered. That development naturally prompted speculation that the Court might already be looking to modify, if not overrule, Melendez-Diaz, given the vigorousness of the dissent and Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-59941869547088176792010-01-22T12:24:00.001-06:002010-01-22T12:26:05.700-06:00Court May Not Impose Special Assessment When Revoking Supervised Release, Nor Reimpose Unpaid Assement Ordered More Than Five Years AgoUnited States v. Pineda, No. 08-41301 (5th Cir. Jan. 22, 2010) (per curiam) (Jones, Smith, Elrod)This opinion is so brief and to the point, you might as well read the whole thing. Here 'tis:This appeal concerns a $100 assessment.In 2001, Jose Carlos Pineda pled guilty to illegal reentry after deportation and was sentenced to seventy months of imprisonment and three years of supervised release. Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-5827181421327270832010-01-21T10:12:00.001-06:002010-01-21T10:14:20.468-06:00"FRE & the Intertron" or "How to Borrow Mr. Peabody's WABAC Machine Without Getting Taken for a Ride"Ever wondered how to get a web page admitted into evidence at trial? Ever tried and failed, only to be left sobbing uncontrollably? Then this article from law.com is for you: Authenticating Web Pages as Evidence, by M. Anderson Berry and David Kiernan. A taste, to whet your evidentiary appetite:Although many courts view internet evidence as "voodoo information," with the proper support, Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-64265726750946997822010-01-14T18:27:00.000-06:002010-01-14T18:27:46.824-06:00New Report on Operation StreamlineMany of you are aware of, and even in the trenches of, Operation Streamline, an ostensibly* zero-tolerance policy of prosecuting every person caught entering the United States illegally in certain areas along the U.S.-Mexico border. You're probably also already aware that the effort has overwhelmed courts in the border districts in which it's been implemented, and that "due process" and "Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-78228076339953014892010-01-06T17:26:00.000-06:002010-01-06T17:26:23.805-06:00Office of Defender Services Announces Litigation Support Available to Defenders and CJA AttorneysGot a case where the discovery comprises mountains of documents and oceans of electrons? Then you just might benefit from the litigation support services offered by the Office of Defender Services. "What's litigation support," you say? As the spiffy new National Litigation Support page at the ODS website explains,The essential goal of litigation support is to organize, analyze, and present Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-19577662930945249352010-01-06T00:01:00.000-06:002010-01-06T00:01:00.341-06:00State Felon-In-Possession Offense is Aggravated Felony, Despite Lack of Interstate Commerce ElementNieto Hernandez v. Holder, No. 09-60261 (5th Cir. Dec. 30, 2009) (King, Davis, Haynes)In short:Nieto argues that the BIA erred in finding that his firearms conviction under [Texas Penal Code] § 46.04(a) was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(E)(ii), which defines “aggravated felony” as including an offense “described in” 18 U.S.C. § 922(g)(1). Nieto argues that his firearms Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-92070520763052280192010-01-05T10:50:00.003-06:002010-01-05T11:22:46.982-06:00Leaked DOJ Memos Shed Light on Discovery Practices!OK, "leaked" is perhaps a loaded and inaccurate—and yet, entertaining—way of describing this post from the DOJ's Justice blog announcing the release of memos providing guidance to prosecutors on discovery practices:Last year, the Department of Justice convened a working group to explore the Department’s policies, practices, and training related to criminal case management and discovery. The groupBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-72804755592989366732009-12-24T00:01:00.001-06:002010-01-04T15:16:15.353-06:00Reduced Crack Guidelines Do Not Apply to Defendants Sentenced as Career OffendersUnited States v. Anderson, No. 08-41314 (5th Cir. Dec. 21, 2009) (per curiam) (Higginbotham, Clement, Southwick) Are defendants who were convicted of crack offenses and sentenced as career offenders eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. §1B1.10 in the wake of the Sentencing Commission's lowering of the crack guidelines?No, says Anderson. Such a defendant was Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-11444652447903621552009-12-23T15:58:00.001-06:002009-12-23T15:59:20.502-06:00Feeling Busier Lately?That's not suprising, given the recent explosion in the number of immigration prosecutions. As a new report from the Transactional Records Access Clearinghouse at Syracuse University reveals, "the number of all kinds of federal criminal prosecutions peaked at 169,612 cases in FY 2009, up nearly 9 percent from the previous year's total of 155,694 and 42 percent from five years ago when Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-77911415836483848882009-11-02T15:32:00.001-06:002009-11-02T16:11:25.087-06:00SCOTUS Snubs Seale; Stevens, Scalia SquawkToday the Supreme Court dismissed the certified question from the Fifth Circuit in United States v. Seale, concerning the statute of limitations applicable to the case. The Court offered no explanation for its action, which I can only assume is how it typically handles these matters.But not everyone was on board with the decision. Justice Stevens, joined by Justice Scalia, issued a statement Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-68524811467370965932009-10-27T16:47:00.000-05:002009-10-27T16:47:36.727-05:00Bad Border Patrol Stop Results in Suppression VictoryUnited States v. Rangel-Portillo, No. 08-40803 (5th Cir. Oct. 26, 2009) (King, Davis, Benavides)Case law concerning traffic stops—and roving Border Patrol stops, in particular—breaks so heavily in favor of law enforcement that successful suppression motions are rare, although not unheard of. Even rarer are appellate decisions reversing the erroneous denial of a suppression motion, but that's Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-63695209365080783162009-10-16T18:41:00.004-05:002009-10-16T18:43:24.423-05:00"Altered or Obliterated Serial Number" Defined for Purposes of §2K2.1(b)(4)United States v. Perez, No. 08-40917 (5th Cir. Oct. 16, 2009) (Reavley, Smith, Dennis)Have you ever wondered what it means for a firearm's serial number to have been "altered or obliterated" for purposes of guideline §2K2.1(b)(4)? The Fifth Circuit answers that question for the first time in Perez, adopting the reasoning of the Ninth Circuit's 2005 decision in United States v. Carter (which, Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-57502226699078923662009-10-02T16:28:00.001-05:002009-10-02T16:34:47.472-05:00Another Relevant Conduct Victory; Counterfeiter Not Responsible for All Recovered Bills Made from Same Image He UsedUnited States v. Livingston, No. 08-10655 (5th Cir. Sept. 9, 2009) (per curaim) (unpublished) (Benavides, Dennis, Elrod)A helpful reader alerted me to this nice unpublished relevant conduct win, which actually came out a few weeks before Rhine. (Incidentally, please let me know of any unpublished opinions worth highlighting here, as those usually fly underneath my radar.) And as you will see, theBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-29453206550674196882009-10-01T10:59:00.000-05:002009-10-01T10:59:22.654-05:00Excellent Opinion On Relevant Conduct; Rejects Speculative Findings and Incorrect Allocation of Burden of ProofUnited States v. Rhine, No. 08-10502 (5th Cir. Sept. 29, 2009) (Wiener, Garza, Elrod)Stop me if you've heard this one before: defendant is convicted of a drug charge based on a relatively small amount of drugs, but relevant conduct findings concerning drug quantity jack the Guidelines range over the statutory maximum on that count, aided and abetted by a felon-in-possession count. Fortunately Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-64250679693614254242009-09-22T17:39:00.001-05:002009-09-22T17:41:20.165-05:00Fives Extend Mezzanatto, Hold Defendant Can Waive Right to Keep Prosecution from Using Plea-Discussion Statements In Case-In-ChiefUnited States v. Sylvester, No. 08-30586 (5th Cir. rev. Sept. 21, 2009) (Higginbotham, Smith, Southwick)As you know, FRE 410 and Federal Rule of Criminal Procedure 11(f) render statements made during plea discussions inadmissible at trial. As you also know, the Supreme Court held in United States v. Mezzanatto that a defendant may waive that privilege, as least to the extent of allowing the Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-50423849979359145152009-09-17T14:52:00.000-05:002009-09-17T14:52:39.469-05:00Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With FifthFor over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in some districts, but not others. Our own circuit, in United States v. Gomez-Herrera, has held that not only are district courts not required to consider sentencing disparities created Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-80505089153131094802009-08-31T10:36:00.001-05:002009-08-31T13:30:19.247-05:00Why the Departure/Variance Distinction Matters, Part TwoUnited States v. Gutierrez-Hernandez, No. 08-20620 (5th Cir. Aug. 28, 2009) (King, Higginbotham, Clement)Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review." Turns out that I couldn't have been more wrong. Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-26116776962487527542009-08-28T18:22:00.000-05:002009-08-28T18:22:16.932-05:00Suspended Sentence Not a "Sentence Imposed" for §2L1.2 Purposes, But Troubling Plain Error AnalysisUnited States v. Rodriguez-Parra, No. 08-40708 (5th Cir. Aug. 26, 2009) (Higginbotham, Smith, Southwick)There's good and bad in this opinion. The good is that a suspended sentence isn't a "sentence imposed" for purposes of the 12- and 16-level drug-trafficking enhancements in guideline §2L1.2. The bad is that the panel continues a recent trend of ever-stricter plain error review, and in this Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-43889923936132558392009-08-26T17:23:00.001-05:002009-08-27T10:03:02.580-05:00Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation SentenceUnited States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutively to any other sentence, even though the sentence for the original offense—as required by the terms of the plea agreement—ran concurrently with an already-imposed state sentence? That Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-67095026381178405962009-08-24T18:29:00.001-05:002009-08-24T22:17:39.209-05:00Prosecutor's Misleading Rebuttal Argument at Trial Not Plain ErrorUnited States v. Vargas, No. 08-40704 (5th Cir. Aug. 21, 2009) (Higginbotham, Smith, Southwick)If a prosecutor successfully moves in limine to exclude from evidence an exculpatory statement that the defendant made at the time of his arrest, may she nevertheless strongly imply in the rebuttal portion of her closing argument that the defendant did not try to exculpate himself when he was arrested?Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com1tag:blogger.com,1999:blog-9419530.post-43449346280851387902009-08-18T00:01:00.000-05:002009-08-18T00:01:00.378-05:00Crime-Fighting ArmadilloThe Wall Street Journal reports on an innovative approach to law enforcement:PEORIA, Ill. -- This industrial city, hard hit by the recession, has found a new, low-budget way to fight crime: Park an unmanned, former Brink's truck bristling with video cameras in front of the dwellings of troublemakers.Police here call it the Armadillo. They say it has restored quiet to some formerly rowdy streets. Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-65777631455703517952009-08-17T00:01:00.000-05:002009-08-17T00:01:00.125-05:00New Blog on SnitchingTitled, appropriately enough, "Snitching Blog", and written by law professor Alexandra Natapoff. As the introductory post explains,This blog does a bunch of things. It discusses how snitching works--on paper and in reality. It provides resources to individuals, lawyers, law enforcment, and legislators . . . . It covers current events and news stories. And it lets you share your own experiences Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-77140421855061047412009-08-13T17:08:00.001-05:002009-08-13T17:08:18.573-05:00Enhancement for Committing an Offense While On Release Applies to One Convicted of Failing to AppearUnited States v. Dison, No. 08-30786 (5th Cir. June 23, 2009; rev. July 24, 2009) (Wiener, Dennis, Clement)If you get convicted of failing to report for service of a sentence, can you also receive a sentence enhancement for committing an offense while on release, even though the only way you could have failed to appear was because you were on release in the first place? Dison answers that vexingBrad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-42706919740739426352009-08-10T16:58:00.002-05:002009-08-10T17:01:00.187-05:00Nice Opinion on Error Preservation and Harm In Appeal From Erroneous Guidelines CalculationUnited States v. Neal, No. 08-30693 (5th Cir. Aug. 7, 2009) (Wiener, Garza, Elrod)You'll want to keep this opinion handy, in case you get into a battle over whether an objection to a sentencing error was properly preserved in the district court. It's also a nice go-to for harm arguments when the district court miscalculated the advisory Guidelines range.As the court recounted the facts,Police Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-57525251029669542122009-08-05T18:34:00.000-05:002009-08-05T18:34:41.820-05:00Fives Order Post-Conviction DNA Testing Under Innocence Protection Act, Address Burdens and Standards of ReviewUnited States v. Fasano, No. 08-60750 (5th Cir. July 31, 2009; rev. Aug. 4, 2009) (Higginbotham, Smith, Southwick)In 2002, a gentleman clad in a work shirt, hard hat, and sunglasses strolled into a bank in Morton, Mississippi, presented a demand note to a teller, and departed with $6,600. Minutes later, police found the shirt, hat, and glasses discarded near the bank. Fasano was later charged Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-91152536401160922932009-08-03T00:01:00.000-05:002009-08-02T21:55:31.467-05:00Popular Mechanics Unveils "The Truth About 4 Common Forensics Methods"Forensic evidence, shmorensic evidence. Okay, that's a little bit of an exaggeration, but the point remains: much of forensic "science" is anything but scientific. That was one of the findings contained in a recent report by the National Academy of Sciences. And it's one of the reasons why cross-examination of witnesses presenting forencic evidence is no mere formality.The deficiencies of Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0tag:blogger.com,1999:blog-9419530.post-8793795783518876672009-07-30T13:33:00.002-05:002009-08-03T11:01:32.458-05:00Fives Certify Question to SCOTUS in Seale; Ask What SOL Applies to Kidnapping Committed in 1967 But Not Indicted Until 2007You all remember Seale, right? Seale was indicted and convicted in 2007 for kidnapping and conspiracy to commit kidnapping, arising from his alleged involvement in the kidnapping and murder of two black men in 1964. A Fifth Circuit panel reversed Seale's convictions, holding that the prosecution was time-barred because a 1972 amendment to the kidnapping statute retroactively reduced the statute Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com2tag:blogger.com,1999:blog-9419530.post-27708795243932775992009-07-29T18:16:00.000-05:002009-07-29T18:17:06.666-05:00Panel Majority Finds Constitutional Speedy Trial Violation, Holds Standard of Review is De NovoUnited States v. Molina-Solorio, No. 08-10167 (5th Cir. July 27, 2009) (Stewart, Southwick; King, dissenting)It's not every day that you see the court of appeals reverse a district court's denial of a constitutional speedy trial claim—much less when the charge is escaping from federal custody—but that's just what happened in this case. Let's dig in, shall we?The timeline:1997: Molina is Brad Boganhttp://www.blogger.com/profile/05404257475440332297noreply@blogger.com0