Fifth Circuit Update Dale F. Ogden, Assistant Federal Public - - PowerPoint PPT Presentation
Fifth Circuit Update Dale F. Ogden, Assistant Federal Public Defender Del Rio Division, TXWD August 21, 2020 Outline 4 th Amendment 5 th Amendment 6 th Amendment & Confrontation Pereira & 1326(d) Competency
Dale F. Ogden, Assistant Federal Public Defender Del Rio Division, TXWD August 21, 2020
■ 4th Amendment ■ 5th Amendment ■ 6th Amendment & Confrontation ■ Pereira & 1326(d) ■ Competency ■ Guilt Issues ■ Sentencing & Guideline Issues ■ Appeals ■ Post-Conviction ■ Categorical Approach ■ Trends
The right of the people to be secure in your papers
Your papers please ….
■ Traffic Stop, where the Fifth (2 to 1) held that the following amounted to reasonable suspicion: – Driving on I-20, a known drug-trafficking corridor, from Dallas, a known drug source; – Driving a truck registered to someone else with a temporary plate for another state; – Reyes refused to get out of the truck but when she did, she locked it behind her; – Implausible and inconsistent stories; – A prior conviction for possession of meth; – Reyes was unemployed and therefore had a motive to participate in illegal activity; – She showed surprise when asked if there were drugs in the truck. ■ The majority held that, under the totality of the circumstances, these articulable facts along with the officer’s training and experience provided reasonable suspicion.
■ Judge Graves original dissenting opinion ■ Judge Graves disagreed with facts the majority relied upon. These are his primary issues with the original opinion – Reyes locked her truck even though the police car was right behind it. The majority viewed this as her “protectiveness of the vehicle.”
■ But “the mere fact that a person refuses to consent to search cannot be used as evidence in support of reasonable suspicion.” ■ Additionally Locking the car is an automatic behavior
– The majority’s reliance on Reyes’s smile turning to a concerned daze when asked about drugs in the truck.
■ Judge Graves noted that a person having a visible reaction when accused of illegal activity is not like evasive or nervous behavior.
– Finally, the fact relied upon by the majority that was the most problematic was Reyes’s unemployed status and that this provided her a motive to be involved in illegal activity. The majority cited no case law for giving this analytic weight, and “I am deeply concerned about the precedent we set by doing so.”
■ Petition for review en banc, and a substituted opinion ■ What was deleted between the opinions as reasonable suspicion? – When Reyes exited the truck, she locked it, even though an officer was immediately behind it in a marked patrol vehicle – Reyes was unemployed, which Trooper figured provided her a motive to participate in illegal activity
■ The Fifth holds that an officer had reasonable suspicion to stop and detain Smith and his car, and that the officer did not unreasonably extend the detention. ■ The car was stopped because the officer believed that the license plate was improperly displayed. It was not. – Officer knew this after approaching the vehicle up close ■ After stopping the car, the officer questioned Smith about his travel plans and then questioned his passengers as well. He also ran the drivers licenses of all three men. One had a warrant for a parole violation. – Although the officer extended the detention to search for drugs, there weren’t any. Instead he found social security cards, many of them blank, fake IDs, a printer etc… ■ The court held that the officer had reasonable suspicion to continue the detention based on – the passenger’s parole warrant, – the car traveling on an interstate that was known for drug smuggling, and – the differences in the mens’ descriptions of the travel plans—this was especially true where, as here, the officer drew on his experience to make inferences and deductions.
■ District Court grants a suppression motion and the Fifth Circuit reverses ■ The Fifth Circuit holds that the decision in Carpenter v. United States, did not apply to “toll records and subscriber information” obtained through a subpoena for historical Cell Site Location Information (CSLI). ■ In this case, the FBI had obtained CSLI and other information based upon a subpoena under the Stored Communications Act. Before trial, the Supreme Court decided Carpenter. In response, the FBI obtained a search warrant for the information that they had already obtained through the subpoena. – The Court held that CSLI obtained by subpoena prior to the Carpenter decision was admissible based on the the good-faith exception to the exclusionary rule applied when the search relied upon a statute that was subsequently held to be unconstitutional.
■ Does a rental car driver, who is not authorized to drive the vehicle, have standing to challenge the search of the vehicle? ■ Circuit precedent says the driver of a rental vehicle who was not authorized under the rental agreement did not have a reasonable expectation of privacy in the vehicle. See United States v. Riazco, 91 F.3d 752, 754 (5th Cir. 1996) ■ But SCOTUS recently said that “someone in otherwise lawful possession and control
agreement does not list him or her as an authorized driver.” Byrd v. United States, 138 S. Ct. 1518 (2018)
■ Alien Smuggling (8 U.S.C. § 1324) suppression motion from a fixed checkpoint ■ Tello goes through a fixed checkpoint, agents asked Tello if he was a citizen – Tello answered that he was naturalized, the agent was satisfied and did not ask for documentation. – Because the agent wanted to give the dog more time to sniff the tractor trailer truck, he asked the defendant what he was hauling and whether he had made any
■ The defendant argued that the agents had impermissibly extended the immigration checkpoint stop beyond its limited immigration purpose. The Fifth Circuit disagreed. – the permissible duration of the stop includes the time necessary to inquire about citizenship status, ascertain the number and identity of occupants, request documentation, and seek consent to extend the detention. BP agents may conduct a dog sniff to search for drugs or concealed aliens at immigration checkpoints as long as the sniff does not lengthen the stop beyond the time necessary to verify immigration status.
■ The defendant also argued that the 5th Circuit case law, especially Machuca- Barrera, focusing on the length of the detention rather than the questions asked, did not survive the Supreme Court’s Rodriguez decision. – In Rodriguez, the Supreme Court rejected the position that a “de minimus” extension of a detention did not violate the 4th Amendment. – But the 5th Circuit disagreed that Rodriguez overruled Machuca-Barrera. It noted that Rodriguez was a traffic stop while Machuca-Barrera was an immigration checkpoint stop.
■ Still work to be done on these “totality of the circumstances stops” – Including impermissible factors ■ Always look to the extension of any stop, and exactly when the stop should have ended ■ Think about Carpenter, and the impacts of technology on privacy (what reveals the “intimate details of life”) ■ Do you have a right to privacy? SCOTUS has been expanding (eg rental cars)
■ The Dallas police obtained a search warrant for the defendant’s residence, based on some inaccurate dates. At the residence, the defendant agreed to speak with law enforcement. He admitted that he uploaded and downloaded CP and that his username was TexPerv. Meanwhile an agent had located the defendant’s laptop and recovered many images of CP. Later, in the lab, when the agent attempted to image the hard drive, the computer tried to start up Windows, triggering updates. The updates destroyed some of the data. ■ Before trial, the defendant moved to dismiss the indictment based on prosecutorial misconduct b/c
■ On appeal, the 5th Circuit held that the defendant had failed to prove a violation of Brady v.
that if he had access to the overwritten data the outcome of the trial would have been different. ■ The 5th Circuit also held that the defendant failed to prove a violation of Arizona v. Youngblood, because he could not show bad faith on the part of the government. The agent’s actions in allowing the Windows update to install were at most negligent. The 5th Circuit also rejected the defendant’s challenge to the denial of his request for a spoliation instruction because he could not show bad faith.
■ Diaz was convicted on various counts of healthcare fraud ■ Diaz argued that the government had violated his Sixth Amd right to counsel by directing his codefendant to record their conversations when Diaz was represented by counsel. The 5th Circuit held that the government did not violate Diaz’s right to
held that the Sixth Amd right to counsel attaches when the prosecution commences. ■ The Mississippi state rules of professional conduct state that an attorney may not communicate with a party that he/she knows is represented by counsel. The 5th Circuit has held that state bar rules do not apply to government conduct prior to indictment “and certainly do not apply to the indiscretions of a non-attorney government informant.” ■ Here, the codefendant made the recordings after Diaz had obtained counsel but prior to indictment.
■ The 5th Circuit reversed a denial of 28 U.S.C. § 2254 relief. Lucio was convicted of murdering her two-year-old daughter and sentenced to death. ■ The Texas trial court judge would not allow her experts to testify to explain why Lucio would admit to facts that were not true in her interrogation. She argued in her § 2254 that she was deprived of the right to present a complete defense. The 5th Circuit called the exclusion of the expert testimony completely irrational, rendering the trial fundamentally unfair. ■ Great overview of right to present a complete defense and prejudice ■ Rehearing en banc granted
■ The Fifth Circuit held that the right to confront witnesses applies to suppression hearings but rejected Daniels’s Sixth Amendment challenge ■ An agent involved in the search and seizure did not testify because he was facing an investigation for misconduct and asserted his Fifth Amendment right against self- incrimination ■ “[A] witness’[s] right against self-incrimination will outweigh a defendant’s right to force that witness to testify.”
■ Noria was convicted by a jury of unlawfully reentering the United States after removal, 8 U.S.C. § 1326. ■ In the district court, the government introduced the front page of five I-213 forms. Gov agreed that the other pages were inadmissible. – The I-213 forms contain, on the front page, biographical information including the individual’s name, address, and immigration status along with administrative codes. The later pages contain a narrative of the immigration inspector’s conversation with the individual. – The Noria objected based on both Confrontation Clause and hearsay grounds. ■ Crawford prevents testimonial hearsay by individuals not subject to cross examination. Testimony” typically consists of “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” For determining whether a statement is testimonial, the court looks to the statement’s “primary purpose” (i.e. whether the statement had a primary purpose of establishing or proving past events potentially relevant to a later criminal prosecution.”) – the 5th Circuit held that the front page of the I-213 form was nontestimonial. – “Here, Border Patrol prepares I-213 in all cases, not just for prosecution” ■ The 5th Circuit did not address the Sixth Amendment status of the other pages of an I-213 because that was not before the Court. The Court also had first questioned whether I-213’s were subject to the Confrontation Clause at all b/c the declarant was the
■ The 5th Circuit also held that the front page of the I-213 form was admissible under the public records exception to hearsay. Rule 803(8). It does not come within “matters observed by law-enforcement personnel.” That is so because 1) they are admissible in civil proceedings, which have recognized them as nonhearsay; 2) the two federal circuits to address this issue, 9th and 11th, have held that these are nonhearsay; and 3) they are like other immigration documents, such as warrants of removal, removal orders, and reinstatements of removal orders, that are routinely admitted under Rule 803(8).
■ Jones was charged with methamphetamine and gun offenses. ■ An agent testified he knew Jones had received meth b/c a CI had told him. Based on info from a CI,
received a tip from CI that drug deal was going to happen that day. Officers saw vehicles but did not see any transaction. Officers followed Jones, stopped him, and searched his car but found no drugs or guns. Officers searched the road and found a gun and a bag of meth. ■ Jones moved to exclude testimony related to the CI. District Court denied, and the Prosecutor stressed this testimony in opening and closing arguments. ■ The Fifth Circuit held that police officers may not testify about the substance of CI’s out-of-court statements that incriminate the defendant. – Here the agent testified that he knew Jones had meth b/c of what CI told him that he had heard from others. Both the agent and the prosecutor “blatantly linked” Jones to the drug deal based on the CI’s info. Government argued statements not for truth but to explain officers’ actions. District court gave that instruction to the jury. 5th Circuit held that this went beyond permissible explanation of actions—agent’s testimony about his conversation with CI pointed directly at Jones and his guilt. – Jury instructions could not cure the CC error. Some statements are too powerfully incriminating. – The CI’s confirmation that drug deal occurred directly inculpated Jones on contested issue of
Jones’s alleged meth dealing, and remanded for new trial.
■ Present a complete defense – Start raising whenever one of your pieces of evidence is excluded – Make a showing of prejudice in the district court – Tie prejudice to an element of the offense ■ Confrontation Rights – Apply at suppression hearings – Limited in some cases, but always object – Look to who is speaking
■ Agents cannot “pass through testimony” of other individuals (i.e. CIs)
■ The district court had dismissed Pedroza’s indictment under 8 U.S.C. § 1326 because the deportation order was based on a notice to appear without a hearing
– See Pereira v. Sessions, 138 S. Ct. 2105 (2018). ■ Deportation did not moot gov appeal – The 5th Circuit found that the government suffers an injury by having to file a new indictment if Pedroza returns. – It also held that the district court should have denied the motion to dismiss because the defendant failed to satisfy the criteria in § 1326(d). ■ Cert denied
■ The district court granted the defendant’s motion to dismiss his indictment under 8 U.S.C. § 1326(d), holding, among other things, that the defendant had proved that he suffered actual prejudice as a result of his deportation proceedings. ■ The 5th Circuit reversed, holding that the district court used the improper standard for “actual prejudice” by finding that had the IJ properly considered the defendant’s asylum and withholding of removal claims, that “might have prevented his ultimate deportation.” The correct standard is the defendant must show that “but for the errors complained of the defendant would not have been deported.” ■ The 5th Circuit also held that it was clear from the record that the defendant would not have obtained relief under asylum or withholding of removal.
What can you do? – Focus on the prejudice showing
■ Make a record in the district court about what would have happened ■ Even if it wasn’t before the IJ, try to get it in front of the district court ■ Show how your client would have met those standards
– File cert petitions
■ de facto circuit split? ■ Notice how CA5 never cites other cirs on the prejudice issue? ■ Still an uphill battle
■ McKown argued 18 U.S.C. § 4241(d) violates due process by requiring commitment to the AG’s custody for “a reasonable period of time, not to exceed four months, as is necessary to determine whether there is substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.” After both parties had McKown examined by psychiatrists (one said commitment might work to restore competency, the other said only long term outpatient therapy would work), the district court committed him to the AG’s custody for four months, ■ § 4241(d) is reviewable as a collateral order. ■ The Fifth Circuit agreed with the other court of appeals to hold that § 4241(d) complies with due process: judge has to find by preponderance of evidence that the defendant lacks capacity, then the judge has to commit to AG’s custody for max 4-mo period, and then if not improved, the court must schedule a “dangerousness hearing” and release him if, by clear and convincing evidence, the court finds the defendant is not a sexually dangerous person or does not pose a substantial risk of bodily injury to another person
■ Cert denied
■ The constitutional limits of 18 U.S.C § 4241(d) proceedings ■ “The nature and duration of commitment must bear some reasonable relation to the purpose for which the individual is committed. . . . A person who is committed solely
reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. And even where a court concludes that the defendant will soon regain competency, his continued commitment must be justified by progress toward that goal.” – “indefinite duration [is] problematic absent a finding of dangerousness” ■ Competency orders are often deficient in this regard
■ A jury convicted the defendant of child sex trafficking. For a conviction the gov must prove, among other things, that either – knowledge or reckless disregard that the victim was under 18 years old, or – defendant had a reasonable opportunity to observe the victim (re: age) ■ Here, the indictment did not mention the reasonable opportunity to observe
was an error in that the court transformed the offense the indictment charged from
constructive amendment) ■ Because the defendant did not object in the district court, however, it was under plain error review. The 5th Circuit refused to exercise its discretion to correct the error because of the substantial evidence against the defendant.
■ The 5th Circuit overturned a “possession of a firearm by a prohibited person” conviction. ■ Under § 922(g)(4), it is a crime for a person “who has been adjudicated as a mental defective or who has been committed to a mental institution” to possess a firearm. ■ Yoo twice had been involuntarily committed based on temporary orders obtained in New Jersey through an ex parte procedure. ■ The question before the 5th Circuit was whether this type of temporary order based on an ex parte procedure constituted “commitment to a mental institution.” It does not. ■ “[A]fter District of Columbia v. Heller, the right to possess a firearm is no longer something that can be withdrawn by the government on a permanent and irrevocable basis without due process. The 5th Circuit had also previously held that a similar Louisiana ex parte procedure for temporary involuntary hospitalization did not constitute
signed by a judge without a hearing, did not constitute “commitment to a mental institution” under § 922(g)(4).
■ The 5th Circuit held that 18 U.S.C. § 922(g)(8), which prohibits individuals subject to certain domestic violence protective orders from possessing firearms, is constitutional under the Second Amd. The Court went through an extensive in-depth analysis of the law, including the two-step framework established after the Supreme Court’s decision in District of Columbia v. Heller. – First, we ask “whether the conduct at issue falls within the scope of the Second Amendment right.” – Second, "apply the appropriate level of means-ends scrutiny”—either strict or intermediate
■ Strict: a “regulation that threatens a right at the core of the Second Amendment”—i.e., the right to possess a firearm for self-defense in the home ■ Intermediate: “a regulation that does not encroach on the core of the Second Amendment”
■ Judge Duncan concurring opinion joined by J. Jones: urging that two-step approach should be discarded “in favor of an approach focused on the Second Amendment’s text and history.”
■ Conviction for, among others, being a felon in possession of a firearm ■ SCOTUS in Rehaif: You must know your prohibited status (i.e. knowledge of being a felon, knowledge of protective order, or knowledge of undocumented status) ■ Argument: the felony “took place long before the current offense, was “relatively minor,” and resulted only in a “probated sentence,” the “possibility is quite real” that Huntsberry was unaware
– Although the defendant objected to the sufficiency of the evidence, he targeted a different element of the offense. Thus, on appeal, sufficiency is reviewed for manifest miscarriage of justice. ■ Court noted that by stipulating to his prior conviction, the defendant precluded the government from presenting the underlying facts to the jury. However, had the defendant put knowledge of his felon status at issue at trial, then the government could have put in those facts. ■ Looking at those facts—the defendant was sentenced to a suspended sentence of two years imprisonment, and his plea required he be admonished of the maximum possible penalty—the Court determined that the defendant “undoubtedly understood” his offense was punishable by more than one year in prison. Therefore, no manifest miscarriage of justice.
■ Rule 29 Motions for Acquittal ■ Normally preserve sufficiency of the evidence arguments for appeal: – if a defendant objects to the sufficiency of the evidence, then the Court will review for sufficiency of every element. – However, if the defendant objects to the sufficiency for one element or based
theory will be reviewed for plain error on appeal. – Here, it is unclear what exactly the defendant argued in his Rule 29 motion.
■ The 5th Circuit affirmed the district court’s grant of a motion for new trial. Gov appeal ■ During deliberations, the jury deadlocked. Court Security Officer (CSO) spoke with the juror(s) that told her not to worry about any punishment. The CSO said he told the juror(s) they needed to decide whether the defendants committed the crime or not. If they thought the defendants committed the crimes, they should find them guilty. If they thought the defendants didn’t commit the crimes, they should find them not guilty. ■ Precedent allows the district court flexibility, to handle these matters. The cases cited by the government dealt with denials of motions for new trial not grants. The rule is different for denials because, after all, it is the criminal defendant who enjoys the right to a jury by an impartial jury, under the 6th Amendment. ■ In urging the juror(s) to vote “without regard to the punishment that may be imposed,” the CSO arguably suggested a preference for a guilty verdict. “Worse,” the CSO’s statements to the jury that they should return a guilty verdict “if they thought the defendants committed the crimes,” can be reasonably understood as urging conviction
character as an officer of the court gave his statements extra influence.
■ Always look to what the indictment actually charged – Object to ANY debatable constructive amendments or differences – Consider bills of particulars, or motions re: duplicative or multiplicitous indictments to narrow it down ■ Gun Cases – Did the person know their prohibited status? (Rehaif) – Did the person have their rights restored or are they really a “prohibited person” – The Fifth Circuit is willing to entertain 2nd amendment arguments ■ Rule 29 – Careful with only addressing one element and waiving the rest on appeal ■ Prejudice & unpreserved errors – Plain error includes whether the “failure to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings”
■ 5th Circuit held that district court violated ex post facto clause by applying a later, more severe Guidelines Manual in determining the defendant’s sentence. In Peugh
application of a higher Guidelines range violates the ex post facto clause. ■ The 5th Circuit has repeatedly applied Peugh, holding that “the ex post facto clause is violated when a sentencing court uses a Guidelines edition generating a higher sentencing range than the range of the edition in effect on the date of the defendant’s criminal conduct.” United States v. Urbina-Fuentes, 900 F.3d 687 (5th
■ All of the circuits agree, except for the 6th Circuit. The 5th Circuit refuses the government’s request that it adopt the 6th Circuit’s approach. Cir ircuit cuit s split it.
■ Under Tapia v. United States, 564 U.S. 319 (2011), courts cannot impose a higher prison sentence “to enable an offender to complete a treatment program or
– A court does not commit Tapia error, however, if the need for rehabilitation is a secondary concern or additional justification ■ Rodriguez argued that the district court erred in sentencing by relying on the defendant’s need for eye surgery. ■ Here, although the 5th Circuit was concerned with some of the district court’s “troubling” statements, it found that the court’s dominant sentencing concern was that the defendant receive a significantly longer sentence for his third illegal reentry than he had received for his first and second. The defendant’s need for eye surgery was, at most, a secondary concern for the sentence.
■ The 5th Circuit held that the government can refuse to ask the district court to reduce the defendant’s offense level by one point, under §3E1.1, because of a contested suppression hearing. ■ The defendant argued that the Sentencing Commission’s 2013 amendment to that guideline undermined the long-standing precedent. Indeed, earlier panels had recognized that there was a colorable argument about “what extent [Amendment 775] was meant to reject our previous rule that a suppression hearing may justify withholding a section 3E1.1(b) reduction.” United States v. Silva, 865 F.3d 238 (5th
■ The 5th Circuit now holds that “the amendment does not clearly overrule our caselaw allowing the government to withhold the third point when it must litigate a suppression motion.” ■ Circuit split. 2nd agrees with 5th. DC, 9th and 10th all hold the opposite.
■ Seven defendants found guilty of conspiracy to possess with intent to distribute meth. ■ The government’s evidence on the drug quantity attributable to defendant Killough consisted of a statement by an informant that she had bought meth from Killough every day from December 4, 2013 through April 4, 2014. ■ Killough objected and pointed to his pretrial stipulation with the government that he was incarcerated from January 14, 2014 until April 12, 2014—a significant amount
■ On appeal, the Fifth Circuit held that the district court erred in calculating the drug quantity attributable to Killough, because the information from the informant did not contain sufficient indicia of reliability.
■ The district court approximated Barfield’s statements that he trafficked about one pound of meth when calculating the drug quantity – Barfield made this statement when he “was extremely high on meth” and – the hope that he might “talk himself out of being arrested” by indicating that he could give prosecutors information on a major drug-trafficking operation ■ The Fifth Circuit determined that its contents as reported in the PSR satisfied both the similarity and the temporal-proximity requirements, and left no doubt that Barfield engaged in a pattern of criminal conduct. ■ The Court further decided that it was not clear error for a district court to rely on a PSR’s account of a defendant’s post-arrest, Mirandized admission of relevant conduct where the defendant has objected to the reliability of his own statement but has failed to introduce evidence to rebut it.
■ Alien smuggling case under 8 U.S.C. § 1324. ■ Guideline enhancement for reckless endangerment. USSG § 2L1.1(b)(6). ■ The Fifth Circuit held that these facts were enough to support the enhancement: – while BP agents were pursuing him, the defendant drove 20 mph over the speed limit, wove thru traffic, and ran a red light. At one point, the defendant slowed down & pulled over but then sped off, driving up to 100 mph through traffic. ■ What doesn’t support the enhancement? – “mere violation of traffic laws” – Not wearing seatbelts alone – “the baseline risk inherent in all vehicular travel” – a passenger riding in an area of the vehicle not designed for passengers – Exceeding vehicle capacity somewhat (not a lot)
■ On remand from the Supreme Court. – Before you had to object after the court imposed the sentence to preserve substantive reasonableness challenges ■ Overturning established 5th Circuit precedent to the contrary, the Supreme Court held that a defendant who requested a below-guideline sentence had properly preserved a challenge to the substantive reasonableness of the sentence. ■ On remand, the 5th Circuit held that the sentence was substantively reasonable. ■ In a footnote, the Court suggested that some of the defendant’s “specific arguments were not preserved and were subject to plain error.”
■ Substantive reasonableness of below-Guidelines probation sentence. ■ The defendant, Chief Deputy of a Sheriff’s Office, was convicted of several counts of tax evasion and filing false income tax returns over a 12 year period. The Guidelines range was 27 to 33 months in prison. The district court downwardly varied to a sentence of 60 months’ probation. ■ The government appealed the sentence as substantively unreasonable. ■ The Fifth Circuit affirmed the sentence. The majority opinion noted the review for substantive reasonableness was “highly deferential.” ■ Judge Ho concurring opinion: Acknowledged the highly deferential standard but argued that the probation sentence for a law enforcement officer, who secured letters of support from prominent state and local officials, “will only further fuel public cynicism and distrust of our institutions of government.” J. Ho also expressed doubt that “an ordinary citizen of Louisiana—one without the power and connections that come with holding powerful office—who defrauded the US” would have received zero prison time as well.
■ SCOTUS: In United States v. Haymond, the Supreme Court struck down 18 U.S.C. § 3583(k), a provision of the federal supervised-release statute that imposed a five- year minimum sentence on convicted sex offenders who committed certain specified sex offenses while on supervised release. ■ One of the defendant’s violations was for failing to report for a mandatory drug test, and that violation req equir ires incarceration, under 18 U.S.C. § 3583(g). ■ On appeal, the defendant argued that the provision requiring incarceration for refusing to comply with mandatory drug testing, § 3583(g), was unconstitutional under United States v. Haymond. The 5th Circuit held that there was no plain error.
■ Always check what guideline was in effect during the offense, and compare with the current one ■ Object and make a record of Tapia errors (court cannot impose higher sentence for medical or rehabilitative reasons) – Object in your compassionate release cases too ■ Preserve loss of one-point acceptance reduction for filing suppression motions (circuit split) ■ Factual PSR errors – Show implausibility via objective facts – Docket or present some type of evid idence to rebut ■ Raise all possible 3553(a) issues to preserve appeals (don’t rely on general statements) ■ Object to mandatory incarceration supervised-release revocations after United States v. Haymond
■ The main issue in this appeal is whether it is moot. ■ The defendant was convicted of illegal reentry and sentenced to 26 months in prison and three years of supervised release. He appealed, challenging the eight-level increase for having a prior aggravated-felony conviction, as well as the judgment designating the conviction under 1326(b)(2). ■ Twice during the pendency of the appeal, the briefing was suspended to await Supreme Court decisions. By the time the 5th Circuit was ready to address the appeal, the defendant had completed his prison sentence and been removed to Mexico. ■ However, his supervised release term continued until November 2020. The 5th Circuit held that, under binding precedent, United States v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006), the appeal of the guideline calculation was not moot, even though the term of imprisonment was over, because the defendant was still on supervised release. ■ If the district court decided that the defendant had been improperly sentenced, it had the authority to modify conditions or terminate supervised release. Circu cuit s it split. it.
■ The defendant challenged, among other things, the calculation of his base offense level ■ The 5th Circuit held that the issue was so inadequately briefed that it was forfeited. – “Maes devoted less than 3 pages to what should have been an exceptionally complex argument.” – He failed to include record citations in a case involving a multi-day trial with numerous witnesses. – And his counsel failed to cure the inadequate briefing at oral argument ■ Don’t let this happen to you!
■ Never assume an appeal is moot – Deportation does not moot a sentencing appeal, for example ■ Waiver is a very strict thing in the Fifth Circuit ■ Always brief important issues thoroughly – Cite the record – Don’t footnote important things
■ Def pleaded guilty pursuant to a plea agreement that waived his right to appeal and to collaterally challenge, under 18 USC 2255, his conviction and sentence. ■ Later, he filed a 2255 motion under Johnson v. United States, 135 S.Ct. 2551 (2015), which held the ACCA’s residual clause unconstitutional. ■ The Fifth Circuit held that his 2255 was barred by the waiver in his plea agreement. ■ Circuit split
■ The 5th Circuit held that whether a defendant has a “covered offense,” for purposes
reduction, depends only on the statute under which he was convicted. ■ The Court rejected the government’s argument that a “covered offense” is determined not by the amount of drugs alleged in the indictment but by the amount set out in the PSR. ■ The 5th Circuit also held that it will review a district court’s discretionary denial of a motion to resentence under the FSA for ab abuse o
discr cretio ion. – the FSA gives the district court broad discretion in deciding whether to resentence.
■ Big bad decision from the 5th Circuit affecting retroactive litigation under the First Step Act, §§ 404(a) & (b) ■ The 5th Circuit held, based on its interpretation of the statutory language, that the First Step Act does not allow for plenary resentencing ■ Here, Hegwood claimed that the career-offender enhancement should also have been removed following intervening Fifth Circuit law
■ The district court denied the defendant’s motion for compassionate release, based
■ Although the court found that the defendant’s terminal illness was “an extraordinary and compelling reason” for compassionate release, it refused to reduce his sentence. ■ The 5th Circuit held that it reviews the discretionary denial of compassionate release for ab abuse of
discr cretio ion but that the district court must provide specific factual reasons for its decision. Here the district court provided those reasons. ■
■ Watch out for 2255 waivers in plea agreements (esp with pending litigation) – Preserve the issue of circuit split if gov enforces waiver ■ First Step Act reductions = very discretionary sentencing standard – First Step Act does not allow plenary resentencing regarding retroactive drug reduction (still object as litigation is ongoing) ■ Compassionate release also = very discretionary sentencing standard
■ 18 USC 924(c) enhanced penalties for carrying, using, etc a firearm in furtherance
■ Crime of violence means: – Force/Elemen ents c clause: has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or – Resid idual c clause: that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense
■ Davis held this unconstitutional
■ Therefore, there’s a lot of litigation around what satisfies the force clause
■ The 5th Circuit held that attempted murder is a crime of violence (COV) under the elements clause of 18 U.S.C. § 924(c)(3). ■ Other circuits have held that when a substantive offense is a COV, an attempt to commit that offense is also a COV. An attempt offense that includes the specific intention to commit a COV and a substantial step in an effort to accomplish that COV is itself a COV under the elements clause. ■ The 5th Circuit joins the other circuits to hold that because murder is a COV, attempted murder is also a COV.
■ The defendants were convicted of racketeering, drug, & firearm offenses as members of the NOLA “Ride and Die” gang. For each of the offenses under 18 U.S.C. § 924(c), a RICO conspiracy was alleged as the predicate COV and a drug trafficking conspiracy was alleged as the controlled substances predicate. ■ The verdict form used at trial did not require the jury to specify which predicate it was relying upon. ■ The parties agreed that a RICO conspiracy is not a § 924(c) COV under Davis, which was issued after oral argument in this case. ■ The defendants argued that all of their § 924(c) convictions were based on an unconstitutional provision under Davis. They argued that permitting a § 924(c) conviction based on a RICO conspiracy was structural error. They also argued that, even if not structural error, the convictions should be reversed under plain error. ■ The 5th Circuit rejected the structural error argument but reversed the § 924(c) convictions under plain error.
■ United States v. Reyes-Contreras, 910 F.3d 169, 173-74, 183 (5th Cir. 2018) (en banc) – Held that the term "use of physical force" does not require the use of force to be intentional and thus applies to reck ckless conduct; ■ Applies to Texas assault. See, e.g., United States v. Howell, 838 F.3d 489, 490-92, 501-03 (5th Cir. 2016) ■ In the First, Fourth, and Ninth Circuits recklessness is not sufficient to satisfy the force clause ■ But the Fifth, Sixth, Tenth, D.C. have held recklessness can satisfy the force clause ■ Borden v. United States, 19-5410 (SCOTUS). Link.
■ Always look to the force clause in 924(c) cases – Case law might not be intuitive (e.g. kidnapping not a COV) – Attempted COV = COV, – Conspiratorial COV =/= COV ■ Preserve all recklessness COV cases (i.e. Texas assault) given the cert grant
Three points to a greater trend?
■ Ayestas v. Davis, 138 S. Ct. 1080, 1087 (2018) ■ Ayestas denied funding to investigate IAC claim ■ Section 3599(a) authorizes federal courts to provide funding to a party who is facing the prospect of a death sentence and is “financially unable to obtain adequate representation or investigative, expert, or other reas eason
nece ecessar ary services.” ■ Fif Fifth C Cir ir: The Fifth Circuit has held that individuals seeking funding for such services must show that they have a “substantial need” for the services. ■ Sco cotus: We conclude that the Fifth Circuit’s interpretation of §3599(f) is not a permissible reading of the statute.
■ Davis v. United States, 140 S. Ct. 1060 (2020) (per curiam) ■ Davis raised a first-time sentencing argument on appeal – Therefore review should be for plain error ■ Fif Fifth C Cir ir: “But the Fifth Circuit refused to entertain Davis’ argument at all. The Fifth Circuit did not employ plain-error review because the court characterized Davis’ argument as raising factual issues, and under Fifth Circuit precedent, “[q]uestions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” ■ Sco cotus: “Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.” ■ Reversed and remanded
■ Holguin-Hernandez – The fifth circuit was the only outlier that required an objection AFTER sentencing to preserve 3553(a) and substantive reasonableness issues
■ What do all these cases have in common? – They involved a legal standard that starts with a statute – Then the Fifth Circuit has expounded upon it (ever so slightly) to create language that makes it harder for defendants – Ultimately the Fifth Circuit created a legal standard of its own
■ Source: Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L.
97% 91% 90% 90% 99% 90% 85% 91% 85% 95% 97% 80% 1 2 3 4 5 6 7 8 9 10 11 DC
Subs bstantive R Reasonable leness Affirm m Ra Rate
■ Judge Edith Jones noted that the reasonableness standard “defies appellate explanation.” Judge Jones described sitting on an oral argument calendar where sentences “were shown to vary by multiples
Jones posited that the court had “no principled way to disagree with, much less overturn, such disparate sentences” and that “[r]easonableness review has essentially become no appellate review.” ■ Hon. Edith H. Jones, C.J., U.S. Court of Appeals for the Fifth Circuit, Statement Before the U.S. Sentencing Commission 4 (Nov. 20, 2009), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings _and_Meetings/20091119-20/Jones.pdf. ■ Further reading: More Than A Formality: The Case For Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951, 951 (2014)
■ My proposition: be wary of slight shifts in language, and legal standards that stray too far from the statutes at issue – Look for de facto circuit splits ■ Make records of these things, brief in the Fifth Cir. – File cert petitions ■ Some areas – Substantive reasonableness – Harmless-error analysis – I’d love to hear other ideas
Dale F. Ogden, Assistant Federal Public Defender Del Rio Division, TXWD dale_ogden@fd.org