Public Defense

Court Must Aggregate All Revocation Imprisonment Terms When Calculating Maximum Supervised Release Term Available Under § 3583(h)

Posted on September 08, 2008
United States v. Vera, No. 07-20516 (5th Cir. Sept. 8, 2008) (Garza, Dennis, Minaldi)When a district court revokes a defendant's supervised release and imposes a term of imprisonment, 18 U.S.C. § 3583(h) permits the court to impose an additional term of supervised release to be served following imprisonment...

Another Resource for Acquired and Derivative Citizenship Claims and Defenses

Posted on September 03, 2008
Last month United States Citizenship and Immigration Services issued this press release announcing the establishment of the agency's new Geneology Program.USCIS maintains historical records documenting the arrival and naturalization of millions of immigrants who arrived in the United States since the late 1800s ...

Latest Hurricane Gustav Update

Posted on September 03, 2008
The Fifth Circuit's web site is now advising that the court "will remain closed through Friday, September 5th. Court will reopen September 8, 2008, and court employees will report for work that day." Additionally, "[a]ll filing dates falling within the time the court was closed due to Hurricane Gustav are automatically extended until September 10, 2008...

Court Closure and Deadline Extensions Due to Hurricane Gustav

Posted on September 01, 2008
The Fifth Circuit Clerk's Office posted the following notice on the court's website on Friday:The Clerk's Office tentatively will re-open for business Thursday, September 4, 2008. Deadlines falling on or between September 1, 2008 and September 4, 2008 are automatically extended until Monday, September 8, 2008...

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Crush of Immigration Prosecutions Coming to Mississippi?

Posted on August 26, 2008
As the New York Times and AP report, ICE agents arrested 350 suspected illegal immigrants during a raid at an electrical equipment plant in Laurel, Mississippi, on Monday.Although the NYT article states that no criminal charges had been filed as of Monday afternoon, such charges appear to be a possibility (especially if the recent mass prosecutions follwing the raid of a kosher meat plant in Postville, Iowa, are any indication)...

Fifth Circuit Rules Changes Concerning Attorney Admissions, Recording of Oral Arguments

Posted on August 18, 2008
Last Friday, August 15th, a couple of changes to Fifth Circuit Rules took effect. The change to Rule 34.7 (Recording of Oral Arguments) is discussed here. Rule 46.1, concerning admission and fees, was amended to add another another category of attorneys who are exempt from the admission fee (those who are "newly graduated from law school, licensed to practice in Louisiana, Mississippi, or Texas, and on orders for extended active duty in the Judge Advocate General's Corps...

Relevant Conduct Requires Specific Findings; No Per Se Rules for §2L1.1 Reckless Endangerment Enhancement

Posted on August 14, 2008
United States v. Garza, No. 07-40962 (5th Cir. Aug. 13, 2008) (Smith, DeMoss, Stewart)Ever get the sense that in some courts the base offense level under guideline §2L1.1 is level 18? Then remember this case, because you'll probably want to cite it a lot...

Drug-Related Act Done With Knowledge That Drugs Are Intended for Sale Is §2L1.2 "Drug Trafficking Offense"

Posted on August 14, 2008
United States v. Fuentes-Oyervides, No. 07-41007 (5th Cir. Aug. 13, 2008) (per curiam) (Higginbotham, Stewart, Southwick)Consider Ohio Rev. Code Ann. § 2925.03(A)(2), which "provides that no person shall knowingly '[p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person...

TX Delivery of Controlled Substance, Even If Based on Offer to Sell, Is "Serious Drug Offense" Under ACCA

Posted on August 13, 2008
United States v. Vickers, No. 07-10767 (5th Cir. Aug. 12, 2008) (Stewart, Owen, Southwick)From the you-can't-tell-the-players-without-a-program files:We know that the Texas offense of delivery of a controlled substance is neither a "drug trafficking" offense under guideline §2L1...

James Brown's [Expert Witness] Hot Tub Party?

Posted on August 12, 2008
Today's New York Times features a very interesting article from legal correspondent Adam Liptak about the apparently unique American practice of relying on partisan experts in litigation, both criminal and civil. Australia, for example, prefers a practice called "hot tubbing," which isn't as swingin' as you might imagine (depending, I guess, on just what kind of imagination you have):In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial ? discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues...

Panel Divides Over Intent Requirement in Federal Bribery Statute

Posted on July 31, 2008
United States v. Valle, No. 07-50869 (5th Cir. July 30, 2008) (Jones, Clement; Wiener, dissenting in part)The federal bribery statute prohibits, among other things, a public official from soliciting anything of value "in return for . . . being induced to do or omit to do any act in violation of the official duty of such official ...

Child Pornography Distribution Conviction Reversed, On Plain Error Review, Because Key Evidence Was Admitted Without Foundation

Posted on July 30, 2008
United States v. Baker, No. 06-40757 (5th Cir. July 30, 2008) (Jolly, Clement, Owen)It's not often that you see a conviction reversed because of evidentiary error, much less on plain error review. But that's exactly what happened to one of the four child pornography counts of which Baker was convicted, all because the Government failed to lay the proper predicate for admission of the evidence it relied on to prove a distribution charge...

Panel Splits Over Whether Credit-Card Holder Who Is Reimbursed for Fraudulent Charges Is a "Victim" Under U.S.S.G. §2B1.1(b)(2)

Posted on July 29, 2008
United States v. Conner, No. 06-50218 (5th Cir. July 28, 2008) (Reavley, Jolly; Garza, dissenting in part)Conner was sentenced to 100 months for his participation in a conspiracy to commit access-device fraud and mail fraud. The scheme used commercial credit card accounts, sans authorization, to purchase merchandise and gift cards from Home Depot, Lowe's, and Sam's Club...

Border Patrol Agents' Convictions Affirmed on Some Counts, Reversed on Others; 924(c)'s With Ten-Year Mandatory Minimums Stand

Posted on July 28, 2008
United States v. Ramos, No. 06-51489 (5th Cir. July 28, 2008) (Jolly, Higginbotham, Prado)As you are probably already aware, Border Patrol agents Ignacio Ramos and Jose Compean were convicted of a variety of offenses after covering up and failing to report their shooting of an unarmed, fleeing drug smuggler...

When Defendant Files Untimely Notice of Appeal That is Later Dismissed, Conviction is Final Under 2255 When the Time for Appeal Expired

Posted on July 24, 2008
United States v. Plascencia, No. 05-11169 (5th Cir. July 23, 2008) (Reavley, Benavides; Owen, dissenting)Here's one for all you habeas-heads and procedure-philes out there: when a defendant files a notice of appeal after the ten-day deadline, but within the thirty-day period in which the deadline may be extended, and the appeal is later dismissed after a finding that there was no good cause or excusable neglect for the late filing, when does the conviction become "final" for purposes of 28 U...

Circuit Split on Whether Recidivist Possession Is Necessarily An Aggravated Felony; Fives Hold "Yes"

Posted on July 23, 2008
United States v. Cepeda-Rios, No. 07-50731 (5th Cir. June 4, 2008; revised July 22, 2008) (per curiam) (Jones, Wiener, Clement)As you can see, this opinion originally issued last month, but the panel just revised it and we didn't mention it the first time around, so here goes...

Court Correctly Holds Defendant Has Absolute Right to Withdraw Guilty Plea Before It's Accepted, But Did It Apply Wrong Standard of Review?

Posted on July 22, 2008
United States v. Arami, No. 07-50536 (5th Cir. July 21, 2008) (Prado, Elrod, Haynes)This appeal concerns Federal Rule of Criminal Procedure 11(b)(1), which permits a defendant to "withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason[...

Panel Calls for En Banc Reconsideration of Whether Unauthorized Use of a Vehicle is an Aggravated Felony

Posted on July 21, 2008
Serna-Guerra v. Mukasey, No. 07-60634 (5th Cir. May 30, 2008) (unpublished) (per curiam) (Jolly, Dennis, Prado)Remember that circuit split over whether unauthorized use of a vehicle is an aggravated felony? To briefly recap, the Fifth Circuit holds that it is, relying on reasoning rejected by the Supreme Court in Leocal v...

"How reliable is DNA in identifying suspects?"

Posted on July 21, 2008
That's the title of this very interesting article from the Los Angeles Times. The answer: maybe not anywhere near as reliable as the FBI wants you to believe. I don't fully understand the science and statistics discussed in the article, but the problem appears to be that the FBI's DNA match methodology is based on some assumptions that have never been subjected to empirical testing...

New Version of BOP Legal Resource Guide Now Available

Posted on July 08, 2008
The 2008 version of the "Legal Resource Guide to the Federal Bureau of Prisons" is now available on the BOP's website. The publication "provides a general overview of the BOP, its services, and its programs[,]" and "is intended to serve as a guide to legal resources, including relevant statutes, regulations, policy documents, and current case law concerning issues the BOP faces today...

Taking Apart the Guidelines, Brick by Brick

Posted on July 07, 2008
Looking for freedom from the Guidelines? Then check out Deconstructing the Guidelines, "a special project undertaken by National Federal Defender Sentencing Resource Counsel" featuring papers that "critically examine the history and basis of the most frequently encountered provisions of the U...

Posted on July 04, 2008

More Circuit Splitting Over "Aggravated Felony" Definition: En Banc Ninth Holds Categorical Approach Applies to Loss Amount Under § 1101(a)(43)(M)

Posted on July 03, 2008
The INA's "aggravated felony" definition includes, among many other things, ?an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000...

Fives Affirm Questionable 404(b) and Loss-Amount Determinations in Union Voter Fraud Case

Posted on July 03, 2008
United States v. Crawley, No. 07-20461 (5th Cir. June 27, 2008) (Jones, Barksdale, Stewart)Crawley was elected president of a Teamsters local in Louisiana in 1997, 1999, and 2002. Irregularities in the 2002 election prompted an investigation which revealed that Crawley falsified voter ballots, and that he received a $20,000 kickback in connection with a contract for telephone services at the union hall...

Proposed Change to Fifth Circuit Rule Concerning Fee for Admission to Practice

Posted on June 30, 2008
The clerk's office has posted this notice of a proposed amendment to Fifth Circuit Rule 46.1, concerning admission and fees. The redline isn't accurate, so the proposed change is a little confusing. It looks like it adds an additional category of attorneys who are exempt from paying an admission fee to practice in the Fifth Circuit: those who are "newly graduated from law school, licensed to practice in Louisiana, Mississippi, or Texas, and on orders for extended active duty in the Judge Advocate General's Corps of the military services[...

Conviction Reversed for Batson Violation; Prosecutor's Proffered Race-Neutral Reason for Strike of Two Black Jurors Was Pretextual

Posted on June 25, 2008
United States v. Williamson, No. 07-10602 (5th Cir. June 24, 2008) (King, Higginbotham, Southwick)During the voir dire portion of jury selection at Williamson's trial for possession of crack with intent to distribute, the court asked the venire if they, or any of their family members or close friends, had ever been involved in a criminal matter or with drugs...

AWOL Not Similar to Truancy, So It Can Count For Criminal History Points Under U.S.S.G. §4A1.2(c)(2)

Posted on June 24, 2008
United States v. Sanchez-Cortez, No.05-41130 (5th Cir. June 6, 2008) (per curiam) (Jones, Wiener, Clement)Sanchez was convicted of PWID cocaine. At sentencing, the district court concluded that Sanchez's prior AWOL conviction---for which he was sentenced to 114 days' confinement and forfeited $670 in pay per month for six months---counted for two criminal history points...

Crawford Doesn't Affect Admissibility of Co-Defendant's Out-of-Court Statements at Trial; Reference to Codefendants' Guilty Pleas Harmless Error

Posted on June 24, 2008
United States v. Ramos-Cardenas, No. 06-51383 (5th Cir. Apr. 9, 2008) (per curiam) (King, Stewart, Prado)Recall that in Bruton v. Smith, the Supreme Court held that the Confrontation Clause bars the admission of a non-testifying codefendant's out-of-court statement that expressly implicates another defendant...

Fives Affirm 548-Month Sentence for First-Time Offender, But Criticize Government for Jacking Sentence So High By Stacking 924(c)'s

Posted on June 23, 2008
United States v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (per curiam) (Reavley, Jolly, Garza)Five-hundred forty-eight months. That's the sentence fifty-three year-old, first-time offender Mary Beth Looney received after a jury found her guilty of conspiracy and substantive meth crimes, as well as a couple of 924(c)'s...

Fives Solict Comments On Proposed Change to Rule Concerning Recordings of Oral Arguments

Posted on June 19, 2008
The court has proposed an amendment to 5th Cir. R. 34.7, which currently prohibits the use of audio or video recording equipment during oral argument. The one exception is if a party hires a court reporter to transcribe the argument. In that case, the reporter may record the argument and use it to prepare the transcript, but must then destroy the recording and may not provide it to anyone...

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