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Public Defense

Fifth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Fifth Circuit

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Last Entry: August 28, 2017 at 09:00:00

Fives Suggest Consideration of Fast-Track Disparity Is Abuse of Discretion; Apply Very Robust Presumption of Reasonableness

Posted on April 10, 2008
United States v. Gomez-Herrera, No. 07-10153 (5th Cir. Apr. 3, 2008; revised Apr. 4, 2008) (Jones, Davis, Garza)Recall that, after Booker, the Fifth Circuit held that a district court's refusal to consider geographic sentencing disparities created by differing fast-track policies around the country does not render a sentence unreasonable, notwithstanding the statutory command in § 3553(a)(6) to consider the need to avoid unwarranted sentencing disparities...

Date of Prior Removal Is Element of Enhanced Illegal Reentry Penalties Under 8 U.S.C. § 1326(b); Fives Better Than Nines on Plain Error Review

Posted on March 26, 2008
United States v. Rojas-Luna, No. 07-40016 (5th Cir. Mar. 26, 2008) (King, Stewart, Prado)Remember several months ago when the Ninth Circuit held that the date of a prior removal is an element of the enhanced penalties found in 8 U.S.C. § 1326(b), the illegal reentry statute? The Fifth Circuit has now joined suit, but disagrees with the Ninth Circuit on a separate issue: the test to apply for the third prong of plain error review...

Shepard Permits Use of Texas Judicial Confession When Employing Modified Categorical Approach

Posted on March 26, 2008
United States v. Garcia-Arellano, No. 06-11276 (5th Cir. Mar. 25, 2008) (Wiener, Garza, Benavides)You can add another item to the list of documents a court can use when employing the modified Taylor/Shepard categorical approach: a judical confession.In this illegal reentry case, Garcia had a prior Texas conviction for delivery of a controlled substance...

Court May Not Order Sentence to Run Consecutively to Anticipated, But Not-Yet-Imposed, Federal Sentence

Posted on March 25, 2008
United States v. Quintana-Gomez, No. 07-10139 (5th Cir. Mar. 25, 2008) (Jolly, Barksdale, Benavides)May a district court order that a sentence run consecutively to an anticipated, but not-yet-imposed, federal sentence? Nope.Let's get a little more concrete...

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Cert Grant: Is Domestic Relationship an Element of "Misdemeanor Crime of Domestic Violence" Under § 922(g)(9)?

Posted on March 24, 2008
Today the Supreme Court granted cert in United States v. Hayes, No. 07-608, to consider whether, in order to qualify as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), the domestic relationship required by § 921(a)(33)(A)(ii) must be an element of the predicate offense...

Free Online Legal Databases (Some Even Searchable)

Posted on March 18, 2008
This article at law.com highlights several sites offering free access to databases of federal statutes and case law. Some are simply a repository of opinions, which can be handy if all you want to do is pull up a case.Another project, still in early testing, aims to give this growing body of public-domain law a sophisticated search engine comparable to those of commercial legal databases...

Supremes Take Ice

Posted on March 17, 2008
Oregon v. Ice, that is, granting cert on the question[w]hether the Sixth Amendment, as construed in [Apprendi and Blakely], is violated by the imposition of consecutive sentences based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant...

Cert Grant: Are Forensic Lab Reports "Testimonial" and Thus Subject to Crawford?

Posted on March 17, 2008
Today the Supreme Court granted certiorari in Melendez-Diaz v. Massachusetts (No. 07-591), which presents the following question:Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v...

Tenth Edition of "An Introduction to Federal Sentencing" Now Available

Posted on March 17, 2008
Interested in a broad overview of how federal sentencing works? Then you'll want to dig right into "An Introduction to Federal Sentencing," now in its tenth edition. Most of what's in the paper will be familiar to anyone handles federal cases on a regular basis, but if you're just getting started in the federal world (or if you just like to take in the big picture every now and then) you'll find: a summary of the relevant statutes and the Guidelines Manual, tips for applying the Guidelines, commentary on plea bargaining, and traps for the unwary...

If Defendant Got §4A1.3 Departure at Original Sentencing, Revocation Guidelines Calculation Requires Use of Pre-Departure CHC

Posted on March 14, 2008
United States v. McKinney, No. 07-50170 (5th Cir. Mar. 7, 2008) (Jones, Davis, Garza)Chapter 7 of the Guidelines Manual provides advisory sentencing ranges for probation and supervised release violations. The recommended ranges are determined by the grade of violation and the defendant's criminal history category...

Hybrid Aggravated Felonies

Posted on March 13, 2008
Looking for a new angle on aggravated felony arguments? Try this one on for size: hybrid crimes.As you're no doubt well aware, there's a whole slew of offenses that are "aggravated felonies." (And if you didn't know that, just pop on over to 8 U.S.C. § 1101(a)(43) and take yourself a gander...

Goverment's Burden of Proof on Harmless Error Review of Confrontation Clause Violation Depends on Type of Violation

Posted on March 13, 2008
United States v. Alvarado-Valdez, No. 99-40370 (5th Cir. Mar. 12, 2008) (Higginbotham, Davis, Smith)Here's one for all the appellate geeks out there: how must the Government meet its burden of proving that a Confrontation Clause violation at trial was harmless beyond a reasonable doubt? Answer: it depends on the type of Confrontation Clause violation...

TX Indecency With a Child Is Generic "Sexual Abuse of a Minor," Therefore a 16-Level COV Under §2L1.2

Posted on March 11, 2008
United States v. Najera-Najera, No. 07-10464 (5th Cir. Mar. 7, 2008) (Reavley, Benavides, Elrod)Texas Penal Code § 21.11 defines the offense of "indecency with a child." For purposes of that statute, a "child" is a person under age seventeen. The offense can be commited by sexual contact or exposure, and the statute apparently covers both consensual and non-consensual conduct...

Fives Speak to Post-Rita/Gall/Kimbrough Reasonableness Review, Affirm Substantial Upward Variance Based on Criminal History

Posted on March 11, 2008
United States v. Herrera-Garduno, No. 07-40327 (5th Cir. Mar. 10, 2008) (Jolly, Barksdale, Benavides)Fifth Circuit watchers know that the court has been largely silent on what Rita, and more recently Gall and Kimbrough, mean for reasonableness review in our circuit...

New Texas Ethics Opinion on Conflicts Between Multiple Clients of a Single Public Defender's Office

Posted on March 05, 2008
All Texas-licensed FPD lawyers practicing anywhere in the Fifth Circuit---as well as all FPD lawyers (wherever they may be licensed) who practice in a district that mandates compliance with the Texas ethical rules---should read the recent opinion from the Professional Ethics Committee of the State Bar of Texas appearing in the March 2008 issue of the Texas Bar Journal...

Robbery Under Cal. Penal Code § 211 Is Generic Robbery for §2L1.2 COV Purposes

Posted on February 29, 2008
United States v. Tellez-Martinez, No. 06-50647 (5th Cir. Feb. 19, 2008; revised Feb. 22, 2008) (per curiam) (King, Higginbotham, Davis)In United States v. Santiesteban-Hernandez, the Fifth Circuit held that generic "robbery," for crime-of-violence purposes, is a theft under circumstances presenting some immediate danger to another person...

Defendant's Refusal to Enter Plea Agreement Containing Appeal Waiver Justifies Government's Refusal to Move for Third Acceptance Level

Posted on February 29, 2008
United States v. Newson, No. 06-41115 (5th Cir. Jan. 22, 2008) (Higginbotham, Davis, Smith)Newson pleaded guilty, without a plea agreement, to possession of marijuana with intent to distribute. The Government refused to move for the third acceptance level, candidly admitting that its only reason for doing so was because Newson declined to enter a plea agreement containing an appeal waiver...

New Book: False Confessions "A Systemic Feature of American Criminal Justice"

Posted on February 27, 2008
Via Grits for Breakfast, we see that Anne Reed at Deliberations is highlighting a new book by University of San Francisco law professor Richard Leo, entitled Police Interrogation and American Justice. According to the book,[t]he problem of false confession is not limited to a small number of cases...

U.S. Customs and Border Protection "Inspector's Field Manual" Available On-Line

Posted on February 19, 2008
Thanks to the FOIA efforts of one Charles M. Miller, a California immigration attorney, the U.S. Customs and Border Protection "Inspector's Field Manual" is available for your persual here. As Miller's introduction cautions, "sections . . . may be out-of-date by later changes to the law or policy or may reflect an arguable exposition of the law...

Psychotherapist-Patient Privilege Only Applies to Communications Made with Reasonable Expectation of Confidentiality

Posted on February 13, 2008
United States v. Auster, No. 07-30084 (5th Cir. Feb. 11, 2008) (Higginbotham, Davis, Smith)Auster is a retired New Orleans police officer. He had been underoing therapy for paranoia, anger, and depression for a number of years. Workers' comp covered the treatment, and an outfit named CCMSI managed his benefit claim...

En Banc Rehearing Granted in COV Case; Fives to Reconsider Categorical Approach?

Posted on February 12, 2008
The Fifth Circuit has granted rehearing en banc in United States v. Gomez-Gomez. The panel held that the 1991 version of a California rape statute was not a "crime of violence" for purposes of guideline §2L1.2's 16-level enhancement. It reasonsed that because the offense can be committed by means of retribution (such as a threat to reveal embarrassing secrets about the victim), the offense lacks an element of physical force and also falls outside the generic meaning of a "forcible sex offense...

Protective Sweep Creep: Search of Entire Auto Repair Shop OK After Box-Truck Full of Marijuana Tried to Leave Premises

Posted on February 12, 2008
United States v. Mata, No. 06-40957 (5th Cir. Feb. 11, 2008) (Jolly,* Clement, Owen)That the Fifth Circuit would find a warrantless search permissible as a protective sweep isn't all that surprising, given its ever-expanding view of the circumstances justifying that particular exception to the Fourth Amendment's warrant requirement...

Good Unpublished Opinion Rejecting Speculative Reasoning Underlying Reckless Endangerment Bump in Alien Transporting Case

Posted on February 11, 2008
United States v. Balderas-Gonzalez, No. 07-20533 (5th Cir. Feb. 1, 2008) (revised Feb. 8, 2008) (unpublished) (Wiener, Barksdale, Dennis)It's too bad this opinion is unpublished. The actual fact pattern isn't likely to come up all that often, but the opinion is still valuable for its rejection of the type of speculative reasoning that is used all too often to justify Guidelines enhancements...

Interesting Sixth Circuit En Banc Decision Deepens Circuit Split Over Reasonableness Review and Plain Error

Posted on February 07, 2008
As you'll recall, the Fifth Circuit held in United States v. Peltier that "a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." That decision was wrong for a variety of reasons, but that's not the point of this post, which is instead about the circuit split that has developed on this issue and what that means for counsel representing defendants at sentencing...

Burglary Under Cal. Penal Code § 459 Is Never Generic Burglary or Burglary of Dwelling; Court Clarifies Application of Modified Categorical Approach

Posted on February 06, 2008
United States v. Gonzalez-Terrazas, No. 07-50375 (5th Cir. Feb. 1, 2008) (Garza, Stewart, Owen)This opinion is important for its clarification of a couple of points concerning the Taylor/Shepard categorical approach. First, it explains that resort to Shepard-approved documents under the "modified" categorical approach is permissible only when the statute underlying the prior conviction contains either multiple subsections, or a series of disjunctive elements...

An Offer to Sell Drugs Is Not a "Controlled Substance Offense" Under Guideline §4B1.2(b); Interesting Discussion of Plain Error

Posted on February 01, 2008
United States v. Price, No. 07-40040 (5th Cir. Feb. 1, 2008) (Higginbotham, Davis, Smith)We know from United States v. Garza-Lopez that an offer to sell drugs is not a "drug trafficking offense" under guideline §2L1.2. And we know from United States v...

Possession of Even Large Amount of Controlled Substance Isn't §2L1.2 "Drug Trafficking" If Statute Has No Intent-to-Distribute Element

Posted on January 31, 2008
United States v. Lopez-Salas, No. 06-41637 (5th Cir. Jan. 3, 2008; revised Jan. 30, 2008) (per curiam) (King, Barksdale, Dennis)Lopez-Salas picks up where Arce-Vences v. Mukasey left off. Arce-Vences, as you'll recall, is the case from last month holding that simple possession of even a large quantity of a controlled substance is not an aggravated felony under Lopez v...

California "Grand Theft from a Person" is an ACCA "Violent Felony"

Posted on January 30, 2008
United States v. Hawley, No. 06-50510 (5th Cir. Jan. 30, 2008) (DeMoss, Dennis, Owen)The issue: is "grand theft from a person" under Cal. Penal Code § 487(2) a "violent felony" under the Armed Career Criminal Act? The court answers "yes," holding that it's a violent felony under the "otherwise clause" in 18 U...

Court Affirms Reckless Endangerment and Death Enhancements in Alien Smuggling Case; Takes a Broad View of Foreseeability

Posted on January 30, 2008
United States v. De Jesus-Ojeda, No. 05-41265 (5th Cir. Jan. 24, 2008) (Garwood, Dennis, Owen)This appeal prinicipally concerns the sentences of two defendants involved in an alien-smuggling conspiracy: Maria De Jesus-Ojeda and Jose Geronimo-Mendez. Geronimo would bring aliens across the Rio Grande and take them a stash house on the U...

No Exigency Justified Border Patrol Agents' Warrantless Entry Into House

Posted on January 22, 2008
United States v. Troop, No. 06-40922 (5th Cir. Jan. 15, 2008) (Jolly, Higginbotham, Prado)The Fourth Amendment has some life left in it yet, even on the frontera.Several Border Patrol agents were tracking some suspected illegal immigrants through the South Texas brush one late July night...

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