Career Offender under USSG § 4A1



FIFTH CIRCUIT CASE LAW 2008 –Through 2017: “C”

Compiled by Attorney John M. Economidy of San Antonio

( Cases with “__ F.3d __” are reported cases that lack an official cite

at the time they were posted on the Fifth Circuit Webpage.

( Cases with “___ F. App’x ___” are unreported, but you can get

their Federal Appendix cite. For significance and dissent on unreported

cases, see the topic “Unreported Cases.”

( The Fifth Circuit case number is given for the cases with incomplete

citations so that you can find and read the cases on Fifth Circuit webpage.

Note: Cases can be researched on the State Bar of Texas legal research engine.

Capital offenses in Federal Cases—United States v. Snarr, __ F.3d __ (5th Cir. Jan 9, 2012)(1—40525)

( Prospective Jurors Dismissed for Death Penalty Objections

( Standard of Review. A district court’s dismissal of a prospective juror for cause because of hisor her views on capital punishment is reviewed for abuse of discretion. United States v. Bernard, 299 F.3d 467, 474 (5th Cir. 2002). “Deference to the trial court is appropriate because it is in a position to assess the demeanor of the

venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.” Uttecht v. Brown, 551 U.S. 1, 9 (2007). We thus give “considerable deference” to a district court’s decision to dismiss a juror based on his or her opposition to the death penalty. United States v. Fields, 483 F.3d 313, 357 (5th Cir. 2007).

( Applicable Law. In Witherspoon v. Illinois, the Supreme Court held that a capital defendant’s right to trial by an impartial jury is violated when a court

universally excuses for cause all members of the venire who express conscientious objections to the death penalty. 391 U.S. 510, 521–22 (1968). Nevertheless, “[a] court may excuse a prospective juror for cause because of his views on capital punishment if those views would prevent or substantially impair the performance of his duties as a juror in accordance with the instructions and oath.” United States v. Webster, 162 F.3d 308, 340 (5th Cir. 1998) (citing Wainwright v. Witt, 469 U.S. 412, 424 (1985)). A prospective juror, therefore, properly is dismissed if, regardless of the facts and circumstances of a case, he indicates that he personally could not impose the death penalty. See Fields, 483 F.3d at 357. Additionally, because “many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear,’” dismissal for cause is also appropriate if the court “is left

with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” Wainwright, 469 U.S. at 425–26. Accordingly, this court repeatedly has deemed proper a lower court’s dismissal for cause of a prospective juror who has wavered or given conflicting or ambiguous signals as to whether he or she could sentence a defendant to death. See, e.g., United States v. Jackson, 549 F.3d 963, 973 (5th Cir. 2008); Ortiz v. Quarterman, 504 F.3d 492, 502–03 (5th Cir. 2007); Bernard, 299 F.3d at 474–75; Webster, 162 F.3d at 340–41.

( Prospective Juror Dismissed for a Physical Infirmity.

Defendants claim that the court’s action in excusing this venire person was

contrary to the Jury Selection and Service Act. 28 U.S.C. § 1861, et seq. Second,

Defendants submit that the court violated the Americans with Disabilities Act

(“ADA”) by dismissing this juror. 42 U.S.C. § 12101, et seq.

( Standard of Review. “Determinations as to the general qualifications of jurors are reviewed for abuse of discretion.” United States v. Whitfield, 590 F.3d 325, 360 (5th Cir. 2009). As a question of law, the applicability of the ADA is reviewed de novo. See Jackson, 549 F.3d at 969. Defendants’ constitutional claims were not raised below and, as such, are reviewed only for plain error. See United States v. Goldfaden, 959 F.2d 1324, 1327–28 (5th Cir. 1992). Plain error review “requires considerable deference to the district court.” United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).

( 28 U.S.C. § 1865. As relevant, a person is disqualified from service under the Act’s provisions if he is unable “by reason of mental or physical infirmity, to render satisfactory jury service.” Id. at § 1865(b)(4). “A court has broad discretion to determine whether to excuse a juror for cause” pursuant to 28 U.S.C. § 1865(b)(4). United States v. Solomon, 273 F.3d 1108, 2001 WL 1131955, at *3 (5th Cir. 2001) (per curiam) (unpublished). In Solomon, for example, we affirmed the dismissal for cause of a prospective juror who suffered from an obsessive compulsive disorder. Id. When asked whether his condition would interfere with his ability to focus on the proceedings, the venire person in Solomon had responded that there was “no way to know,”

although he believed that he would be able to focus “[m]ost of the time.” Id.

In United States v. Flores, for instance, the Eleventh Circuit affirmed the dismissal for cause of a potential juror who suffered from attention deficit disorder (“ADD”). 572 F.3d

1254, 1261 (11th Cir. 2009).

( ADA. In United States v. Flores, for instance, the Eleventh Circuit affirmed the dismissal for cause of a potential juror who suffered from attention deficit disorder (“ADD”). 572 F.3d 1254, 1261 (11th Cir. 2009).

( “The Sixth Amendment secures to criminal defendants the right to be tried

by an impartial jury drawn from sources reflecting a fair cross section of the community.” Berghuis v. Smith, 130 S. Ct. 1382, 1388 (2010). To establish a prima facie violation of this right, a defendant must demonstrate:

(1) that the group alleged to be excluded is a “distinctive” group in

the community; (2) that the representation of this group in venires

from which juries are selected is not fair and reasonable in relation

to the number of such persons in the community; and (3) that this

underrepresentation is due to systematic exclusion of the group in

the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Similarly, in Castaneda v. Partida,

the Supreme Court delineated the general contours of an equal protection

challenge to jury selection. 430 U.S. 482, 494 (1977).

( Cause Challenges.

Defendants next assert that the district court erred in refusing to grant their challenges for cause to three prospective jurors, which they contend violated their right to an impartial jury.

( Standard of Review. “The appellate court reviews the district court’s ruling on jury impartiality for ‘manifest abuse of discretion.’” United States v. Wharton, 320 F.3d 526, 535 (5th Cir. 2003) (quoting United States v. Munoz, 15 F.3d 395, 397 (5th Cir.1994)); see also Skilling v. United States, 130 S. Ct. 2896, 2923 (2010) (“A trial court’s findings of juror impartiality may be overturned only for manifest error.”)

(citation omitted). “In reviewing claims of this type, the deference due to district courts is at its pinnacle . . . .” Skilling, 130 S. Ct. at 2923. ( Applicable Law

As noted above, the general “standard for determining when a venire member may be excluded for cause is whether the prospective ‘juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000) (quoting Wainwright, 469 U.S. at 424). In addressing a claim that an empaneled jury was not impartial, however, the inquiry turns not on the district court’s alleged failure to remove for cause certain prospective jurors, but rather on whether the jurors who ultimately sat were impartial. Ross v. Oklahoma, 487 U.S. 81, 86 (1988). In other words, “[a] district court’s erroneous refusal to grant a defendant’s challenge for cause is only grounds for reversal if the defendant establishes that the jury which actually sat to decide

his guilt or innocence was not impartial.” Wharton, 320 F.3d at 535.

( Lesser Included Offense.

( Standard of Review. We review de novo the district court’s determination of whether a particular offense is a lesser included offense of a charged offense. United States v. Finley, 477 F.3d 250, 256 (5th Cir. 2007). We review for abuse of discretion the lower court’s determination as to “whether a jury could rationally acquit on the greater offense yet convict on the lesser.” Id.

( Applicable Law. A defendant is only entitled to a lesser-included-offense instruction if “(1)the elements of the lesser offense are a subset of the elements of the charged offense and (2) the evidence at trial is such that a jury could rationally find the

defendant guilty of the lesser offense yet acquit him of the greater.” Id. at 255; see also Keeble v. United States, 412 U.S. 205, 208 (1973) (noting that a “defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater”). “While a defendant’s request for a lesser included offense charge should be freely granted, there must be a rational basis for the lesser charge and it cannot serve merely as ‘a device for defendant to invoke the mercy-dispensing prerogative of the jury.’” United States v. Collins, 690 F.2d 431, 438 (5th Cir. 1982) (quoting United States v. Sinclair, 444 F.2d 888, 890 (D.C. Cir. 1971)), cert. denied, 460 U.S. 1046 (1983).

( “[a] killing is ‘premeditated’ when it is the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent.” United States v. Agofsky, 516 F.3d 280, 282 n.2 (5th Cir. 2008).

( Substantial Premeditation and Planning

( Applicable Law. As noted, the government alleged that Defendants murdered Rhone “after substantial planning and premeditation”—an aggravating factor under 18 U.S.C. § 3592(c)(9). In United States v. Flores, we observed that the term “substantial,”

as used in 18 U.S.C. § 3592(c)(9), “denote[s] a thing of high magnitude.” 63 F.3d 1342, 1373–74 (5th Cir. 1995). Elsewhere, we have held that “substantial planning” thus may properly be “defined as requiring a considerable amount of planning preceding the killing.” Davis, 609 F.3d at 690 (internal quotation marks omitted). And, as previously explained, “[a] killing is ‘premeditated’ when it is the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent.” Agofsky, 516 F.3d at 282 n.2 (citation omitted).

( Especially Heinous, Cruel, or Depraved Murder

( Applicable Law. Under 18 U.S.C. § 3592(c)(6), the government also alleged that Defendants murdered Rhone “in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse.” “As indicated by the statute, a

murder may be especially heinous, cruel, or depraved if it involves either torture or serious physical abuse.” United Stated v. Agofsky, 458 F.3d 369, 374 (5th Cir. 2006). Because the government does not assert that Rhone was tortured, the question here is reduced to whether there was sufficient evidence to support the jury’s conclusion that the murder involved “serious physical abuse.” In Agofsky, we held that “[f]or serious physical abuse to be aggravating in a murder case, a defendant must inflict suffering or mutilation above and beyond that necessary to cause death

( Future Dangerousness

Although 18 U.S.C. § 3592(c) sets forth several statutory aggravating factors that a jury may consider when contemplating the propriety of the death penalty, the statute also permits the jury to “consider whether any other aggravating factor for which notice has been given exists.” Here, the government provided notice as to the non-statutory aggravating factor of future dangerousness. In particular, the government alleged that Defendants pose “a continuing and serious threat to the lives of others because it is likely that [they] will commit criminal acts of violence in the future.” Where the alternative to the death penalty is life imprisonment, the government “is free to argue that the defendant will pose a danger to others in prison and that executing him is the

only means of eliminating the threat to the safety of other inmates or prison staff.” Simmons v. South Carolina, 512 U.S. 154, 165 n.5 (1994). Under 18 U.S.C. § 3593(c), the presentation of evidence is not limited by “the rules governing admission of evidence at criminal trials.” Evidence of future dangerousness necessarily touches upon a variety of topics, including a defendant’s juvenile record, prior murders and other crimes, and prison records. See Fields, 483 F.3d at 324–25; United States v. Bourgeois, 423 F.3d 501, 511–12 (5th Cir. 2005). “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” Jurek v. Texas, 428 U.S. 262, 276 (1976).

( “A spillover effect, by itself, is an insufficient predicate for a motion to

sever.” United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002).

( Exclusion of “Execution Impact” Evidence

Garcia sought to introduce evidence as to the impact his execution would have on certain of his family members. The district court excluded the evidence based on its holding that precedent of this court precludes execution impact testimony by a D’s family & friends.

( Standard of Review. As noted above, this court reviews the district court’s decisions regarding the presentation of information during a capital sentencing hearing under the abuse of discretion standard. Hall, 152 F.3d at 397. Applicable Law. Because such evidence “does not reflect on [the defendant’s] background or character or the circumstances of his crime,” “the Supreme Court has never included friend/family impact testimony among the categories of mitigating evidence that must be admitted” during a capital trial. Jackson v. Dretke, 450 F.3d 614, 618 (5th Cir. 2006). Accordingly, this court consistently has affirmed. The exclusion of execution impact testimony similar to that proffered by Garcia. See, e.g., Jackson, 549 F.3d at 970 n.3 (affirming the district court’s conclusion “that general pleas for mercy would not be permitted” from the defendant’s mother); Kelly v. Lynaugh, 862 F.2d 1126, 1133 n.12 (5th Cir. 1988) (a family member’s plea to the jury that it spare the defendant’s life did not constitute mitigating evidence, as it did “not reflect on [the defendant’s] personal culpability”). Other courts are in accord. See, e.g., Stenson v. Lambert, 504 F.3d 873, 891–92 (9th Cir. 2007).

Career Offender under USSG § 4A1.2

( See also plea agreements (D had sentence under PBA but PO increased as career offender. Not a breach of PBA.

( United States v. Brewer, 848, F.3d 711, 714-16 (5th Cir. 2017): A federal bank robbery is categorically a “crime of violence” as defined by § 4B1.2(a)(1) for the purpose of the career-offender guideline. Because § 4B1.2(a)(1) defines “crime of violence” “in exactly the same manner as § 924(c)(3)(A),” see United States v. Jones, 854 F.3d 737, 740 (5th Cir. 2017), Brewer necessarily dictates that federal bank robbery is also categorically a “crime of violence” for the purposes of his § 924(c)(1) conviction, see 848 F.3d at 714-16.

( United States v. Loza-Gracia, 670 Fed. 3d 639 (5th Cir. 2012): Where U.S. stipulated in plea to a USSG base offense of 26, but the PO independently determined D was a career offender subject to a base offense of 34, there was no breach of plea agreement. The plea agreement did not purport to bind the probation office, which is a branch of the federal judiciary. Furthermore, at sentence, the AUSA did not voice any support for or advocate for application of the “career offender” enhancement, but instead simply maintained by the government stood by the plea agreement.

( United States v. Daniels, 2009 WL 3807628, 588 F.3d 835 (5th Cir. 2009)(08-30558):

( Under the sentencing guidelines, the defendant is a career offender if he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense. USSG § 4B1.1(a). A prior felony conviction “means a prior adult 3

federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.” USSG § 4B1.2 cmt. n.1. Guilty pleas resulting in deferred adjudications and other diversionary dispositions count toward the career-offender total. United States v. Joshua, 305 F.3d 352, 352-53 (5th Cir. 2002). … The deferred adjudication must “involve[] a judicial determination of guilt or an admission of guilt in open court,” thus reflecting “a policy that defendants who receive the benefit of a rehabilitative sentence and continue to commit crimes should not be treated with further leniency.” USSG § 4A1.2 cmt. n.9.

( At the conclusion of Daniels’s three-year term of community supervision.

Daniels now claims that he is entitled to resentencing on the federal conviction, because one of the two crimes underlying his career-offender status has been dismissed. … Although we have never decided the precise issue presented in this case, we have in a different case foreshadowed the outcome here, noting: “[A case] in which a defendant received a diversionary disposition, such as deferred adjudication or assignment to a substance abuse program, and after the defendant completed the diversionary disposition the underlying offense was dismissed . . . [remains] a valid basis for a career offender designation.” United States v. Santana, 220 F. App’x 283, 286 (5th Cir. 2007)

(unpublished). That persuasive authority guides us here. The rule, of course, is not unequivocal. Indeed, “[s]entences resulting from convictions that . . . have been reversed or vacated because of errors of law or because of subsequently discovered evidence exonerating the defendant, or . . . have been ruled constitutionally invalid in a prior case are not to be counted.” Daniels, however, has not shown that the Texas court dismissed his assault charge for an error of law or for newly found exonerating evidence. To the

contrary, and as the district court noted, the Texas court seems to have dismissed the charge because Daniels’s term of community supervision came to a close and Texas law requires judges in those situations to dismiss the indictment underlying the deferred adjudication: “On expiration of a community supervision period . . . if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him. TEX. CODE CRIM. PROC. art. 42.12.5(c). This deferred adjudication was dismissed almost as a matter of course – and for reasons having nothing to do with “innocence or errors of law.” Daniels presents no evidence to the contrary. The law thus requires that Daniels – a recidivist offender – may not doubly benefit from the fortune of a lenient disposition in the Texas courts – a disposition subsequent to which he committed a serious federal crime. Notwithstanding its procedural dismissal, his Texas guilty plea may count toward Daniels’s status as a career offender under the sentencing guidelines.

( From United States v. Traugott, (5th Cir. Feb. 9, 2010)(08-410-95) WARNING

The plea agreement stipulated the applicable base offense level under United States Sentencing Guidelines [USSG] § 2D1.1(a)(3) was 32. Based on Traugott’s two prior convictions for a crime of violence and a drug trafficking crime, the district court applied a career offender enhancement under USSG § 4B1.1, which increased the offense level

to 37. … Traugott argues that the government breached the plea agreement’s base offense level stipulation by supporting the district court’s application of the career offender enhancement during the sentencing hearing. Contrary to Traugott’s interpretation, the stipulation merely confirms the appropriate guidelines section applicable to his offense. It does not preclude application of the career offender enhancement. Moreover, the district court was, by the plea agreement’s terms, not bound by the stipulation. In addition, when he entered his guilty plea before the magistrate judge, Traugott expressly acknowledged his understanding that prior convictions could increase the applicable guidelines range and that the court was not bound by the stipulated base offense level of 32. See United States v. Rhodes, 253 F.3d 800, 804-05 (5th Cir. 2001); USSG § 6B1.4(d). The government did not breach the plea agreement by supporting the application of the career offender provision.

( United States v. Roberts, 624 F.3d 241 (5th Cir. 2010). Where plea agreement stated that a particular offense level., the career offender is a new base offense and not merely an offense adjustment. Thus, plea agreement was breached when U.S sought to

increase punishment by saying career offender was an adjustment to the offense when it is the base offense.

( United States v. Cashew, 625 F.3d 271 (5th Cir. 2010). Only adjustment for career offenders under Chapter 3 is acceptance of responsibility. Minor role does not apply.

( In a plain error case, Fifth Circuit noted defendant’s objection that a career offender case cannot be upheld …..applying the career offender enhancement because the Government failed to support the predicate …convictions “with sufficient Shepard-approved documents.” Here, under plain error review, the PSI carried the day for the prosecution. Shepard v. United States, 544 U.S. 13 (2005). This is unclear but worth

reviewing in a career offender case.

( United States v. Castille, (5th Cir. July 3, 2012)(11-31085). Judge could properly

give max sentence and reject implication that air soft pistol was harmless. The court

explicitly found that other aspects of the offense were more important than the use of an air soft gun, including the danger created by the mere perception that the gun was real and the trauma to those in the bank.

( Application of Texas Drug Distribution and Robbery as Career Offender.

United States v. Fobs (5th Cir. Jan. 7, 2013)(12-10453):

( Fobbs first contends that his Texas conviction for delivery of a controlled

substance does not support his career offender enhancement because is not a “controlled substance offense” as defined by the Guidelines. Although the Texas offense may not be a controlled substance offense in some cases because it penalizes an offer to sell, Fobbs’s indictment charged that he constructively transferred a controlled substance. Constructive transfer requires a greater showing of culpability than offering to sell. See Stewart v. State, 718 S.W.2d. 286, 288 (Tex. Crim. App. 1986). Accordingly, constructive transfer is within the relevant definition of a controlled substance offense. United States v. Roberts, 255 F. App’x 849, 851 (5th Cir. 2007).

( …Fobbs contends that his prior Texas offense of robbery by threats was not a “crime of violence” because it does not have “as an element the use or threatened use of physical force.” A conviction under Texas Penal Code § 29.02(a)(2), which includes robbery by threats, is the enumerated offense of robbery under the Guidelines. United States v. Santiesteban-Hernandez, 469 F.3d 376, 378-81 (5th Cir. 2006); see United States v. Flores-Vasquez, 641 F.3d 667, 671 n.1 (5th Cir. 2011). We therefore need not consider whether the offense presents a risk of physical injury or has force as an element. See United States v. Rayo-Valdez, 302 F.3d 314, 317-18 (5th Cir. 2002).

( The district court did not commit any error by considering two Texas

offenses for which Fobbs entered pleas in bar. By entering pleas in bar under

Texas Penal Code § 12.45, Fobbs admitted his guilt of the offenses, even though

he was not adjudged guilty. See Hilburn v. State, 946 S.W.2d 885, 886 (Tex. Ct. App. 1997). The admitted conduct was properly considered by the district court. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008); § 4A1.3(a)(2)(E).

Fobbs argues that the 210-month sentence was too long.

( United States v. Cain, (5th Cir. Nov. 10, 2017)(16-11601):

A conviction under Tex. Health & Safety Code § 481.112(a) qualifies for the Armed Career Criminal Act ehancement under § 924(e). Cain acknowledges that binding circuit precedent forecloses his position. See United States v. Vickers, 540 F.3d 356 (5th Cir. 2008); United States v. Winbush, 407 F.3d 703 (5th Cir. 2005). However, he contends that United States v. Johnson, 135 S. Ct. 2251 (2015), and Torres v. Lynch, 136 S. Ct. 1619 (2016), undermine that precedent. We disagree. Johnson addressed the residual clause under the violent-felonies portion of the ACCA, which Winbush and Vickers distinguished from the serious-drug offense portion. Torres’s discussion of how to define “described” in the Immigration and Nationality Act does not undermine Winbush’s and Vickers’s discussions of the word “involving” in the ACCA. Those decisions based the interpretation of § 924(e) on an analysis of Taylor v. United States, 495 U.S. 575

( A defendant is a career offender if he was at least 18 years old at the time

of the offense, the offense is a felony crime of violence or controlled substance offense, and the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1. Pursuant to § 4B1.2, comment. (n.3), the definitions in U.S.S.G. § 4A1.2 are used to determine what qualifies as a predicate conviction under § 4B1.1. Because Forrest did not object to the career offender enhancement in the district court, we review this issue for plain error. To show plain error, he must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If Forrest makes such a showing, this court has the discretion to correct the error, but it will do

so only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. Forrest’s career offender argument fails for at least two reasons. First, because this court has not addressed whether Forrest’s probation, which was imposed pursuant to former Louisiana Code of Criminal Procedure article 648, and the subsequent revocation of that probation, constitutes a conviction for purposes of § 4B1.1, Forrest cannot show that any error was clear or obvious. See United States v. Escalante-Reyes, 689 F.3d 415, 418-22 (5th Cir. 2012) (en banc); see also United States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007). Second, Forrest cannot show an effect on his substantial rights because he cannot establish a reasonable probability of a lower sentence on remand. See Escalante-Reyes, 689 F.3d at 424.

( Career Offender under USSG § 4B1.1 is subject to Downward Variance under

18 U.S.C. § 3553. United States v. Clay, __ F.3d __ (5th Cir. May 22, 2015)(14-60283):

The question on appeal is whether—after calculating Clay’s advisory sentencing range—the district court failed to “apply[] an individualized assessment using the factors set out in 18 U.S.C. § 3553(a)” to determine the appropriate sentence in this case. Id. Section 3553(a)(1) issues a “broad command,” requiring the district court to “consider the nature and circumstances of the offense and the history and characteristics of the defendant.” Id. (quotation marks omitted); see also id. at 3 (stating that “§ 3553(a)(1) contains no express limitations as to what history and characteristics of the defendant are relevant.”

(quotation marks omitted)). Other § 3553(a) factors have similarly broad concerns that a district court must assess, in an individualized manner, before imposing its sentence. E.g., 18 U.S.C. § 3553(a)(2)(B) (requiring consideration of the need for the sentence “to afford adequate deterrence”); id. § 3553(a)(2)(C) (requiring consideration of the need for the sentence “to protect the public from further crimes of the defendant”). When determining the appropriate sentence, the district court further considers the sentence recommended by the U.S. Sentencing Guidelines. The sentencing guidelines, however, are only advisory; they “serve as one factor among several” that must be considered when “determining an appropriate sentence.” Kimbrough v. United States, 552 U.S. 85, 90-91, 101 (2007) (“[W]hile [§ 3553] still requires a court to give respectful consideration to the Guidelines, . . . Booker permits the court to tailor the sentence in [the] light of other statutory concerns as well.”). To be sure, the Supreme Court has applied this general rule to a particular guidelines enhancement—one that increases the recommended sentence for offenses dealing with crack cocaine (as opposed to powder cocaine). Id. at 91. In so doing, the Supreme Court held that the district court may, after considering the factors in § 3553(a), determine “that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing.” Id. In such case, the district court can vary from the guidelines. The Supreme Court’s holding results from a sort of a fortiori rationale: After considering all of the § 3553 factors, it is undisputable that a district court has discretion to vary from the advisory guidelines sentence. So, within this broad authority, a district court, a fortiori, has discretion to vary from a particular guideline enhancement.

This reasoning applies here. That is, given the advisory nature of the sentencing guidelines and the district court’s discretion generally to vary from the recommended guidelines sentence after conducting an individualized assessment of the § 3553(a) factors, a district court, a fortiori, has discretion to vary from a guidelines sentencing range irrespective of whether that particular sentencing recommendation arises under the career-offender provision in U.S.S.G. § 4B1.1. In short, a district court’s sentencing discretion is no more burdened when a defendant is characterized as a career offender under § 4B1.1 than it would be in other sentencing decisions. Note 2:

Note 2: Other circuits appear to agree. See, e.g., United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en banc) (“[A] judge who understands what the [U.S. Sentencing] Commission recommends, and takes account of the multiple criteria in § 3553(a), may disagree with the Commission’s recommendation categorically, as well as in a particular case. Because § 4B1.1 is just a Guideline, judges are . . . free to disagree with it . . . . No judge is required to sentence at variance with a Guideline, but every judge is at liberty to do so.”); United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009) (“[T]he Supreme Court has consistently reaffirmed that all of the sentencing guidelines are advisory. . . . That holds true for the career-offender provisions just as it does any other provisions of the Guidelines.”); United States v. Boardman, 528 F.3d 86, 88 (1st Cir. 2008) (remanding for the district court to “consider [sentencing] issues with the additional latitude furnished by Kimbrough

Accord United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (“[A] sentencing court may vary from the Guidelines based solely on policy considerations, including disagreements with the Guidelines, if the court feels that the guidelines sentence fails properly to reflect § 3553(a) considerations.”). Furthermore, it is not necessary to identify a court of appeals decision that has directly addressed the guidelines provision at issue as Booker provides that discretion across the board with the statutory sentencing factors serving as the guideposts. A district court’s failure to recognize its discretion to vary in this context constitutes procedural error. Accord Robinson, 741 F.3d at 601 (“[A] sentencing court commits procedural error if it fails to appreciate its discretion”) to consider evidence of cooperation under § 3553(a).”); United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008) (holding that defendant was “entitled to have his sentence set by a judge aware of the discretion that Kimbrough has announced”). That is precisely what the district court did here: It treated Clay’s guidelines sentence as effectively mandatory because the recommended sentence was predicated on the career-offender-guideline enhancement. The district court did not recognize its discretion to vary from the guidelines range. This failure was procedural error. The question now is whether such error requires reversal.

( Held not harmless error as the trial judge specifically mentioned it felt its hands were tied by the lack of Fifth Circuit precedence.

( Career Offender and USSG Amendment 782. Because D’s guidelines range was not based on drug quantity but rather his status as a career offender, the district court was correct in concluding that D was not eligible for a reduction under Amendment 782 and § 3582(c)(2). See United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009); see U.S.S.G., App. C., Amend. 782 (amending the drug quantity table set forth at U.S.S.G. § 2D1.1(c)); see also U.S.S.G., App. C, Amend. 788 (providing that Amendment 782 becomes retroactively applicable on November 1, 2015).

( Texas Statutes on Possession with intent to distribute is not a 4B1.1 “controlled

substance offense to become a career offender. United States v. Hinkle, __ F.3d ___

(5th Cir. Aug. 11, 2016)(16-10067). In light of the Supreme Court’s recent decision in Mathis v. United States, 136 S. Ct. 2243 (2016), we conclude that Hinkle’s conviction for delivery of a controlled substance is not a “controlled substance offense” within the meaning of the Guidelines, and therefore, the career-offender enhancement did not apply based on the record presently before us.

Hinkle asserted that the Texas statute under which he was convicted for delivery of heroin did not qualify as a “controlled substance offense” under the Guidelines because it criminalizes conduct that is not included within the Guidelines’ definition of a “controlled substance offense.” He noted in his objections, and this court has held, that a conviction can be obtained under this Texas statute by proving only an offer to sell, and an offer to sell does not constitute a “controlled substance offense” within the meaning of the Guidelines.8 Citing the Supreme Court’s decision in United States v. Descamps,

133 S. Ct. 2276, 2281 (2013). Hinkle asserted that the court could not consider underlying documents in order to determine whether Hinkle was convicted of offering to sell a controlled substance or instead was convicted of a form of delivering a controlled substance that would come within the Guidelines’ definition of a “controlled substance conviction.”

The Government concedes that if Hinkle were convicted of delivering a controlled substance “by offering to sell” that substance, the crime would not come within the definition of a “controlled substance offense” under § 4B1.2. However, the Government contends that the Texas indictment pursuant to which Hinkle was convicted did not charge Hinkle with offering to sell heroin but instead charged that he “knowingly delivered” a controlled substance “by actually transferring said controlled substance.” The question in this appeal is whether the Texas statutes under which Hinkle was convicted are “divisible.”15 A statute is “divisible” when it “sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.”16 As the Supreme Court explained in Descamps, [i]f one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.17 We must resolve whether the definition of “deliver” in section 481.002(8) in conjunction with section 481.112(a).

… Mathis v. United States sets forth how a court determines whether a statute is divisible and therefore whether, in employing the modified categorical approach, documents pertaining to the prior conviction may be used to ascertain if that conviction comes within a federal definition of an offense or has the elements of an enumerated offense. The decision in Mathis plainly and unmistakably leads to the conclusion that the definition of “delivery” in section 481.002(8), as authoritatively interpreted by the Texas Court of Criminal Appeals,22 sets forth various means of committing an offense and does not set forth in the disjunctive separate offenses. The Supreme Court’s decision in Mathis dealt with the Armed Career Criminal Act (ACCA), not the federal sentencing Guidelines. However, the primary focus of the Court’s decision in Mathis was how to determine whether a statute is “divisible” and therefore whether the modified categorical approach can be used to determine, when a statute defines more than one offense, of which offense a defendant was convicted.24 The decision in Mathis clarified when and how the modified categorical approach is applied in the context of federal sentencing.

( Career Offender under USSG 4B1.1. United States v. Gordon, __ F.3d ___ (5th Cir. Sept. 29, 2016)(15-41510): The PSR determined that Gordon’s criminal history score was 9, which established a criminal history category of IV. However, in light of Gordon’s designation as a “career offender” under U.S.S.G. § 4B1.1(a), his criminal history category was increased to VI. U.S.S.G. § 4B1.1(b). With a total offense level of 15 and a criminal history category of VI, the recommended Guidelines range was 41–51 months’ imprisonment.

Gordon first argues on appeal that the district court erred in determining that he qualified as a career offender with a criminal history category designation of VI under subsection (b) of Section 4B1.1 when it did not also apply the offense level from the table in that subsection.

The issue of whether a case “arises under” subsection (b) of Section 4B1.1 of the career offender guideline when the district court does not also apply the offense level from the table in that subsection is res nova in this circuit. …

It is undisputed that Gordon qualifies as a career offender under subsection (a) and does not qualify for the carve-out provided in subsection (c) for offenders convicted under 18 U.S.C. § 924(c) or § 929(a). See U.S.S.G. § 4B1.1(a),(c). Thus, under subsection (b), the district court is required to apply that subsection’s offense level only if it is greater than the “offense level otherwise applicable.” Id. § 4B1.1(b). Consequently, the district court applied the otherwise applicable adjusted combined offense level of 18, since it was greater than the offense level provided in the table in subsection (b)—level 17. There is nothing in the subsection that suggests, however, that applying the “offense level otherwise applicable” somehow removes the district court from the purview of subsection (b).

If a defendant is designated as a career offender under subsection (a) and his case falls under subsection (b), and he is not exempted under subsection (c), he will be assigned a criminal history category of VI, as the district court did here. In sum, because we find the reasoning in Marseille, Miller, and Waters persuasive and supported by the plain text of the Guidelines, we now join our sister circuits in holding that, notwithstanding the express exceptions set forth in subsection (c), “a case arises under subsection (b) of the career offender guideline in every case in which the defendant qualifies as a career offender under subsection (a).” Marseille, 377 F.3d1249, 1257 (11TH Cir. 2004); see Miller, 395 F.3d 452, 456 (D.C. Cir.), vacated on other grounds by Miller v. United States, 545 U.S. 1101 (2005) (alterations omitted) (quoting Marseille, 377 F.3d at 1256–57).; cf. Waters, 648 F.3d 1114, 1118–19 (9th Cir. 2001).

( Bank Robbery is a Crime of Violence for Career Offender. United States v. Brewer,

__ F.3d ___ (5th Cir. Feb. 17, 2017)(15-10866). Other circuit courts to consider this issue have determined that federal bank robbery constitutes a crime of violence. See, e.g., United States v. Wright, 957 F.2d 520, 521 (8th Cir. 1992) (holding federal bank robbery is a “crime of violence” under § 4B1.2(a)(1) because it involves the threat of force); United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991) (same); United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) (same); United States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989) (same).

( Aggravated Assault as Crime of Violence for Career Offender. United States v. Cruz, (5th Cir. June 23, 2017)(16-11098): Cruz appeals his sentencing as a career offender under U.S.S.G. § 4B1.1 (2015), arguing that the district court plainly erred in characterizing his two prior convictions for aggravated assault with a deadly weapon under Texas Penal Code § 22.02 as crimes of violence under U.S.S.G. § 4B1.2 (2015). In support of this argument, Cruz contends that, even though aggravated assault is enumerated as a crime of violence in Application Note One in the commentary of § 4B1.2, the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), invalidated both the residual clause of § 4B1.2(a)(2) and the note. He further contends that his prior Texas offenses do not qualify as crimes of violence under § 4B1.2(a)(2) because aggravated assault is not one of the four offenses enumerated therein. Finally, Cruz argues that his prior offenses do not satisfy the force-as-an-element clause of § 4B1.2(a)(1) in light of Mathis v. United States, 136 S. Ct. 2243 (2016).

After Cruz submitted his appellate brief, the Supreme Court held, in Beckles v. United States, 137 S. Ct. 886, 892 (2017), that § 4B1.2(a)(2)’s residual clause “is not void for vagueness” because “the Guidelines are not subject to a vagueness challenge under the Due Process Clause.” Accordingly, Cruz’s arguments regarding § 4B1.2(a)(2)’s residual clause and Application Note One are unavailing. We have previously held that a Texas aggravated assault conviction constitutes the enumerated “aggravated assault” offense. United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007); United States v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir. 2002). Furthermore, we have recently confirmed that Texas aggravated assault satisfies § 4B1.2(a)(1)’s force-as-an-element clause. See United States v. Shepherd, 848 F.3d 425, 427- 28 (5th Cir. 2017). Accordingly, the district court did not plainly err. See United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015).

Cause of Action for Unlawful Conviction

( To recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

Cell Phone Can Be Search Incident to Arrest

( From United States v. Curtis, __ F.3d __ (5th Cir. Mar. 14, 2011)(09-20491):

In United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)), cert. denied, 549 U.S. 1353 (2007).we held that the police can search the contents of an arrestee’s cell phone incident to a valid arrest.

( United States v. Rodriguez, __ 5th Cir. ___ (5th Cir. Dec. 7, 2012)(11-41020):

Rodriguez’s first argument is that his mere presence in the truck was not sufficient probable cause to justify his warrantless arrest. The Supreme Court, however, has previously allowed the warrantless arrest of all the passengers in a car in which drugs were found when none of them would claim ownership of the drugs in question. Maryland v. Pringle, 540 U.S. 366, 372 (2003). Similarly, in this case, after the discovery of the marijuana, neither Rodriguez nor Izquierdo acknowledged ownership of it, and it was therefore “an entirely reasonable inference . . . that any or [both] of the [truck’s] occupants had knowledge of, and exercised dominion and control over, the [marijuana]” that was found. Id. Rodriguez’s warrantless arrest was thus amply supported by probable cause. Rodriguez’s second argument is that the search of the contents of his cell phone without a warrant violated his Fourth Amendment rights in light of Arizona v. Gant, 556 U.S. 332 (2009). Rodriguez has maintained at every stage of this case that his cell phone was discovered in the truck and not on his person. As a result, in his view, the search of the cell phone after he had already been arrested exceeded the allowable scope of such vehicular searches in light of Gant. But see id. at 343-44 (holding that a search of “the passenger compartment of an

arrestee’s vehicle and any containers therein” is justified “when it is ‘reasonable

to believe evidence relevant to the crime of arrest might be found in the vehicle’”

(quoting Thornton v. United States, 541 U.S. 615, 632 (2004))).

However, the district court held that Rodriguez’s cell phone was seized

from his person. We review such factual findings for clear error only, see United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003), and the evidence supporting the district court’s view, while not overwhelming, but was ample.

Rodriguez argues, though, that, even if the cell phone was found on his person, the warrantless search of its contents exceeded the permissible scope of a search incident to arrest under Gant. We disagree. In United States v. Finley, we held that a search incident to arrest of the contents of a cell phone found on an arrestee’s person for evidence of the arrestee’s crime was allowable, analogizing it to a search of a container found on an arrestee’s person. 477 F.3d 250, 259-60 (5th Cir. 2007). We have not previously held that Gant applies beyond the vehicular context, but even were we to apply it here, in light of that case’s authorization of searches of a vehicle’s passenger compartment “and any containers therein” for evidence of the offense of arrest, we fail to see how Gant disturbs our holding in Finley as it relates to this case. See Gant, 556 U.S. at 343-44. As a result, we are bound by Finley, and we therefore conclude that the search of the contents of Rodriguez’s cell phone was permissible.

( Garcia v. City of Laredo, __ F.3d ___ (5th Cir. 12-12-2012)(11-41118):

the Stored Communications Act, which prohibits accessing without authorization a facility through which an electronic communication service is provided and thereby obtaining access to an electronic communication while it is in electronic storage, does not apply to data stored in a personal cell phone.

( Garcia, a former police dispatcher for the City of Laredo, claims Defendants accessed the contents of her cell phone without permission in

violation of the Stored Communications Act. On November 15, 2008, a police officer’s wife removed Garcia’s cell phone from an unlocked locker in a substation of the Laredo Police Department, and she accessed text messages and images found on Garcia’s phone. Garcia was fired. … A subsequent internal investigation concluded, based in whole or in partupon images and text messages retrieved from her cell phone, that Garcia had

violated police department rules and regulations and Garcia was terminated from her employment. The district court granted summary judgment for Defendants and denied

Garica’s motion for partial summary judgment on the Stored Communications Act, finding that the statute did not apply to Defendants’ actions in this case.

( See Stored Communications Act.

( See collected cases from other jurisdiction on JE CLE file on

computers. Split of authority exists.

( Certiorari Granted.

Justices to tackle cellphone data case next term—June 6,2017

The Supreme Court added an important new case on the use of cellphone data by law enforcement to its docket for its next term. The justices announced this morning that they would review the case of Timothy Carpenter, who was accused of being the mastermind behind a series of armed robberies (ironically, stealing new smartphones) in Ohio and Michigan. Relying on the Stored Communications Act, which allows phone companies to disclose records when the government provides “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation,” the government got an order to obtain phone records for 16 phone numbers, including Carpenter’s cellphone. Law-enforcement officials received several months’ worth of historical cell-site records, which indicate the cell towers with which a cellphone connected while it was in use. The records allowed the government to determine that, over a five-month span in 2010 and 2011, Carpenter’s cellphone connected with cell towers in the vicinity of the robberies.

Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. The district court denied that request, however, and Carpenter was convicted on 11 of the 12 counts for which he was indicted. On appeal, the U.S. Court of Appeals for the 6th Circuit upheld Carpenter’s convictions. It too rejected Carpenter’s arguments that disclosure of his phone records to the federal government was a “search” for which the government needed a warrant. The court of appeals reasoned that cellphone companies had collected the data “in the ordinary course of business” for their own purposes – including “to find weak spots in their network and determine whether roaming charges apply.” And Carpenter would have no reason to believe that his cellphone records would be kept private, the court explained, because the records simply show where his phone connected with cell towers, without providing any information about the content of his calls.

Urging the justices to deny review, the federal government pointed to two of the Supreme Court’s decisions from the 1970s, which held that obtaining a business’ records about a particular person does not rise to the level of a “search” of that person, for which a warrant would be required, even if the records contain information about the person. And although the records at issue in those cases consisted of bank accounts and a list of the numbers that the defendant dialed on his home phone, it shouldn’t matter, in the government’s view, that Carpenter’s case involves “new technologies” like cellphones.

But today’s announcement that the Supreme Court will review Carpenter’s case may signal that the justices – all of whom presumably carry cellphones themselves – might view the issue differently. Three years ago, the court ruled that police must get a warrant to look at information stored on the cellphone of someone who has been arrested. In reaching that conclusion, Chief Justice John Roberts observed that today’s phones are “based on technology nearly inconceivable just a few decades ago” and “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Moreover, the justices stressed in that opinion, they were not holding that “the information on a cell phone is immune from search” but instead simply making clear that “a warrant is generally required before such a search.” The justices may ultimately conclude that, as the federal government urges, giving police access to Carpenter’s historical cell-site data is significantly less intrusive than giving them access to the kind of “detailed personal facts” available on a cellphone itself. But, even if so, they may also believe that, at a minimum, this area of the law needs to be updated and clarified for the 21st century.

Going into last week’s conference, the justices also had before them two cases – both captioned North Carolina v. Covington – arising out of North Carolina’s efforts to redraw its state legislative maps. In the first case, the state asked the Supreme Court to weigh in on a ruling by a three-judge district court striking down the state’s map on the ground that 28 majority-black districts were the product of racial gerrymandering, in violation of the U.S. Constitution. In the wake of its decision last month striking down two North Carolina congressional districts on the ground that the state’s legislature had given too much weight to race in drawing the districts, the justices, without comment, today allowed the lower court’s ruling on the state legislative map to stand.

But the court issued a brief, unsigned opinion in the second case, in which the state challenged an order issued by the district court after its decision invalidating the state legislative maps. In its original ruling, the district court had allowed North Carolina to go forward with the maps for its November 2016 election, but it had instructed the state to redraw its maps before the 2018 election. However, a few weeks after the 2016 election, the district court issued a new order that, among other things, required off-year special elections in some parts of the state.

In its petition for review, the state urged the justices to vacate that order, and today the justices did precisely that. The court explained that when ordering relief in redistricting cases, a district court must ensure that the remedy is a suitable one for the infractions that it has found. This requires, the court continued, an “equitable weighing process” that considers – for example – the seriousness of the constitutional violations, the effect that early elections would have on the government’s ability to function, and “the need to act with proper judicial restraint when intruding on state sovereignty.” But in this case, the court suggested, the district court conducted “only the most cursory” review of both sides’ interests. For that reason, the court concluded, the district court’s order should be invalidated.

The court today granted the Carpenter case after considering it at seven consecutive conferences. But there was still no action on several other high-profile cases. Masterpiece Cakeshop v. Colorado Civil Rights Commission is presumably headed for its 12th relist. The case is a challenge by Jack Phillips, a Colorado man who describes himself as a “cake artist” and argues that the state’s public accommodations law violates the First Amendment by requiring him to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs. Peruta v. California, in which the justices have been asked to decide whether there is a Second Amendment right to carry handgun outside the home for self-defense, is apparently headed for its fifth relist; another gun rights case — involving whether a federal law banning the possession of guns by convicted felons violates the Second Amendment as applied to two men, Daniel Binderup and Julio Suarez – seems to be slated for a fourth relist. The justices will meet for another conference on Thursday, and we expect them to announce orders from that conference on June 12.

Cell Phone Photos

( United States v. Chapa, (5th Cir. July 16, 2015)(14-10781): Court did not abuse discretion in admitting photos taking from D’s cell phone that showed him with guns

as it negated his assertion in drugs with firearms case that he just happened to be

present with others who had guns and lacks affiliation with guns.

Cell Towers

( United States v. Guerrero, __ F.3d __ (5th Cir. Sept. 11, 2014)(13-50376):

( Guerrero asserts that the district court should have suppressed the historical cell site location data that roughly indicated where he was, or at least where his cell phone was, on the afternoon that Mendez was killed.5 That data revealing “the antenna tower and sector to which the cell phone sends its signal” was only available from third party communications providers. See In re Application of the U.S. for Historical

Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013). Congress has mandated a specific procedure that the government must follow to obtain that data. The Stored Communications Act requires that when the government seeks such records from a service provider, it must obtain a court order after submitting an application identifying “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).Guerrero contends, and the government concedes, that this procedure was

not followed; the government obtained the data from state officials who themselves had used a subpoena, not a Section 2703(d) order, to receive the information. The violation of the Act is clear. Guerrero’s problem is that suppression is not a remedy for a iolation of the Stored Communications Act. The Act has a narrow list of remedies, and—unlike the Wiretap Act, see 18 U.S.C. § 2515—suppression is not among them. See 18 U.S.C. § 2707(b) (listing “appropriate relief” as “equitable or declaratory relief,” “damages,” and “reasonable attorney’s fee and other litigation costs reasonably incurred”); 18 U.S.C. § 2708 (providing that the “remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter”); see

also United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (concluding that suppression is not available under the Act); United States v. Jones, 908 F. Supp. 2d 203, 209 (D.D.C. 2012) (same). There is no basis for judicial imposition of the exclusionary rule for a statutory violation when Congress has not provided that remedy. See United States v. Clenney, 631 F.3d 658, 667 (4th Cir. 2011) (“[T]here is no exclusionary rule generally applicable to statutory violations.” (quoting United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006))); cf. Davis v. United States, 131 S. Ct. 2419, 2426 (2011)

(explaining that the exclusionary rule “is a ‘prudential’ doctrine created by this Court to ‘compel respect for the constitutional guaranty,’” and is aimed at “deter[ring] future Fourth Amendment violations”).

( For Guerrero to suppress the cell site location data, he therefore must show that the cell site location data was obtained not just in violation of the Act, but also in violation of the Fourth Amendment. That constitutional question requires a separate inquiry, and it is one we recently addressed. In Historical Cell Site, we held that “Section 2703(d) orders to obtain historical cell site information for specified cell phones at the points at which the user places and terminates a call are not categorically unconstitutional.” 724 F.3d at 615. We emphasized that cell phone users voluntarily convey information to their service providers and reasoned that they “understand that their service providers record their location information when they use their phones at least to the same extent that the landline users in Smith [v. Maryland, 442 U.S. 735 (1979)] understood that the phone company recorded the numbers they dialed.” Id. at 613. Although our holding in Historical Cell Site was decided only in the context of reviewing the denial of applications for Section 2703(d) orders, it nonetheless encompasses the exact issue before us now: whether historical cell site information—that is, a record that the “provider has already created”—is subject to a reasonable expectation of privacy that implicates the Fourth Amendment. Id. at 612; see id. at 615. Rather than attempting to distinguish Historical Cell Site (an effort that would be unavailing for the reasons discussed above), Guerrero argues that the even more recent Supreme Court decision in Riley v. California, 134 S. Ct. 2473 (2014), is an intervening change in the law that requires us to depart from our prior holding. But “for a Supreme Court decision to change our Circuit’s law, it ‘must be more than merely illuminating with respect to the case before [the court]’ and must ‘unequivocally’ overrule prior

precedent.” Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp.,

673 F.3d 399, 405 (5th Cir. 2012) (quoting Martin v. Medtronic, Inc., 254 F.3d

573, 577 (5th Cir. 2001)). Riley does not unequivocally overrule Historical Cell Site. In Riley, the question was whether the search-incident-to-arrest doctrine allows the

government to search an arrestee’s cell phone without a warrant. Based on

modern cell phones’ immense storage capacity, and because they can reveal

the “sum of an individual’s private life,” the Court answered no. Riley, 134 S.

Ct. at 2489, 2495. Although the issues in Riley and in Historical Cell Site implicate a

broader theme concerning the application of the Fourth Amendment to modern technology, they involve distinct doctrinal areas. Cf. id. at 2489 n.1 (“Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”). The Riley defendant indisputably had an expectation of privacy in the contents of his personal cell phone; the issue was whether the search-incident-to-arrest exception overcame that privacy interest for the contents of an arrestee’s cell phone like it did for the contents

of an arrestee’s cigarette pack. See United States v. Robinson, 414 U.S. 218, 236 (1973) (“Having in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it . . . .”); Riley, 134 S. Ct. at 2484–85 (declining to extend Robinson “to searches of data on cell phones” because a “search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson”).

Certificate of Appealability

( Bartee filed a notice of appeal in August 2008. The district court treated it as an implicit request for a COA, which it denied that month. That November, Bartee requested a COA from our court.

Bartee’s 28 U.S.C. § 2254 habeas application is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). E.g., Penry v. Johnson, 532 U.S. 782, 792 (2001). Under AEDPA, Bartee may not appeal the denial of habeas relief unless he first obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Miller v. Dretke, 404 F.3d 908, 912 (5th Cir. 2005) (citations omitted). The district court must first decide whether to grant a COA; only if it is denied by that court may a COA on that issue be requested here. FED. R. APP. P. 22(b)(1). Having been denied a COA by the district court, Bartee requests a COA here for each of the four issues discussed infra.

To obtain a COA, Bartee must make “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To make such a showing when the district court’s habeas denial is on the merits of an issue, Bartee must demonstrate: “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further” (reasonable-jurists standard). Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484). In deciding whether to grant a COA, we can make only a threshold inquiry into the district court’s application of AEDPA to Bartee’s constitutional claims; we may not consider the factual or legal merits in support of those claims. Miller-El, 537 U.S. at 336. “When a court of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.” Id. at 336-37. For purposes of our threshold inquiry, we are cognizant that, under AEDPA, the district court was required, with limited exceptions described below, to defer to the state court’s resolution of Bartee’s claims. Those exceptions turn on the character of the state-court’s ruling. Foster v. Quarterman, 466 F.3d 359, 365 (5 Cir. 2006).

( Ibarra v. Thaler, __ F.3d __ (5th Cir. Aug. 17, 2012)(11-70031):

( Standard for a Certificate of Appealability. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2253(c)(2), a prisoner requesting a COA must make “a substantial showing of the denial of a constitutional right.” This standard is met when a petitioner demonstrates “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.” Druery v. Thaler, 647 F.3d 535, 538 (5th Cir. 2011) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003)). In determining this issue this court “view[s] the petitioner’s arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). Where a state court decision was reviewed on the merits, we defer to the state court’s decision regarding that claim unless the decision is “contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . [is] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Druery, 647 F.3d at 538 (quotation marks and citation omitted). … Where the district court has denied a claim on procedural grounds, a COA will issue only if the petitioner demonstrates both that jurists of reason might debate whether his petition states a substantial showing of the denial of a constitutional right and “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000).

( Atkins claim. Petitioner claims he is mentally retarded and therefore, under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002), may not be subjected to the death penalty. To establish that he falls under Atkins, Petitioner must demonstrate that he possesses significantly sub-average intellectual functioning and impaired adaptive functioning, both of which manifested before the age of 18. See Lewis v. Quarterman, 541 F.3d 280, 283 (5th Cir. 2008); see also Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3. … Prior to the Supreme Court’s decision in Cullen v. Pinholster,131 S. Ct. 1388, 1398 (2011), this court held that the exhaustion requirement is not satisfied where a petitioner “presents material additional evidentiary support in the federal court that was not presented to the state court.” Lewis v. Quarterman, 541 F.3d 280, 285 (5th Cir. 2008). “Evidence is material if it fundamentally alters, not merely supplements, the claim presented in state court.” Id. at 285-86 (emphasis omitted). Petitioner observes that essentially all of the allegations regarding his unfortunate childhood now presented in affidavits from family members and his childhood teacher were originally admitted to the district court in the affidavit of his investigator, and thus argues that the issue was exhausted, because its presence in the form of affidavits from family members

does not “fundamentally alter[] . . . the claim presented in state court.” Id. … Cullen resolves the issue in favor of the state. By disallowing federal courts (with few exceptions) from considering additional evidence not developed in the state court record,

Cullen necessarily rules out the use of such proffered evidence to flesh out claims inadequately presented to the state courts. The federal district court therefore properly disregarded this newly proffered evidence. Moreover, jurists of reason could not find debatable the alternative ground for disposition offered by the district court, that even if Petitioner’s claim is exhausted, his claim was meritless. When evaluating the merits of a claim for habeas relief from a state court judgment, federal courts must employ only the record before the state court. Cullen, 131 S. Ct. at 1398 (limiting consideration of relief under 28 U.S.C. 2254(d)(1) to the state-court record). See also 28 U.S.C. § 2254(d)(2) (contemplating relief based on an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding). … Additionally, relying on Rivera v. Quarterman, 505 F.3d 349 (2007), Petitioner argues that AEDPA deference is inappropriate here, because the state courts did not afford him adequate opportunity to develop his claim. Rivera held that “where a petitioner has made a prima facie showing of retardation . . . the state court’s failure to provide him with the opportunity to develop his claim deprives the state court’s decision of the deference normally due.” Id. at 358; see also Panetti v. Quarterman, 551 U.S. 930, 948, 127 S. Ct. 2842, 2855 (2007) (holding that as a result of failure to provide process, review of competency claim was “unencumbered by the deference AEDPA normally requires”). Rivera does not apply here. Rivera dealt with a state court decision that dismissed the petitioner’s Atkins claim on its face for failure to establish a prima facie case of

mental retardation. Rivera, 505 F.3d at 352. But, as Rivera noted, 505 F.3d at 359, “states retain discretion to . . . define the manner in which habeas petitioners may develop their claims.” Blue v. Thaler, 665 F.3d 647, 657 (5th Cir. 2011). The state provided Petitioner an opportunity for a hearing, and supplied him with $7,500, and over three years elapsed (between the filing of his Atkins habeas claim and the September 18, 2006 hearing on his claim of mental retardation) to develop his claim. Ibarra was represented by counsel during this time. Petitioner’s failure to present Dr. Romey’s affidavit in admissible form is surely not attributable to the relatively short notice on which the actual hearing date was set, nor to the state court’s failure to grant even more thousands of dollars for Petitioner to develop his claim. The narrow circumstances described in Rivera are not applicable here.

( Wiggins Claim. To obtain a COA, as noted, Petitioner must show that

reasonable jurists could disagree regarding the district court's disposition.

Skinner v. Quarterman, 528 F.3d 336, 340-41 (5th Cir. 2008) (quoting Miller-El,

537 U.S. at 336, 338, 123 S. Ct. at 1029). Federal courts cannot reach the merits of a habeas claim if the state court denied relief on an adequate and independent state law ground. Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991). To be adequate, a state rule must be “firmly established and regularly followed.” James v.

Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 1835 (1984). A state court’s ground for judgment is not independent if it “depends on a federal constitutional ruling.” Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 1092 (1985). Here, the relevant state court order stated that the petitioner’s Wiggins claim “does not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5. Therefore, we dismiss this subsequent application.” Ex parte Ibarra, No. 48,832-04, 2008 WL 4417283 (Tex. Crim. App. Oct. 1, 2008).

( Maples v. Thomas, 132 S. Ct. 912 (2012), holds that in a habeas case, a client

cannot be charged with the acts or omissions of an attorney who abandoned him. Because counsel for Ibarra who filed his first state habeas application did not abandon him, but simply did not raise issues Ibarra now would like to argue, Maples is inapposite.

Certificate of Non-Existence of Record

( From United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. Jan. 29, 2010)(08-40809).

Fifth Circuit overrules prior case that a Certificate of a Non-Existence of a Record (CNR) was not testimonial. United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005),

and holds that a CNR is testimonial in an illegal immigration case. However, since defendant failed to object that his confrontation rights were violated, error was harmless.

( Certiorari has been granted on this issue:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-

court testimony of a supervisor or other person who did not perform or

observe the laboratory analysis described in the statements.

Bullcoming v. New Mexico, No. 09=10876.  131 S. Ct. 62 (2010)(Analysis of DWI blood draw by gas chromatograph).

From Scotus Blog:

That was similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in theBullcoming case.  In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible.  Sotomayor sought to show that the decision was a narrow one, and she listed several factual scenarios that she said were not covered.  One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”

In the Sotomayor suggestion, the lab report would not have been admitted, but she intimated that the expert might be allowed to take the stand anyway and give an independent opinion about it.  That appeared to be what had occurred in the Williams case.  The Court apparently granted the case to determine whether this scenario would satisfy the line of cases beginning with Crawford v. Washington (2004).

From CAAF Blog:

( SCOTUS Grants Cert on Another Confrontation Clause Case By Zachary Spilman, June 28, 2011

TODAY THE SUPREME COURT OF THE UNITED STATES GRANTED CERTIORARI IN WILLIAMS V. ILLINOIS (#10-8505) ON THE FOLLOWING QUESTION:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

The Supreme Court of Illinois opinion (238 Ill. 2d 125) is here.

Unlike the facts of Bullcoming (which do not address the Blazier holdings that the raw, machine-generated data, without commentary or notation, (1) may be relied upon by an expert who did not participate in the test, and (2) are non-testimonial and may be admitted into evidence), I believe Williams is directly analogous to the circumstances common to most drug-lab expert testimony in courts-martial for violation of Article 112a.

In Williams (a sexual assault case), biological samples were sent to a laboratory in Maryland, which performed the analysis and reported a DNA match. However, an Illinois State Police forensic biologist testified at trial (a bench trial), providing both a foundational basis for the laboratory’s work and an independent analysis. The laboratory’s report was not admitted.

The Supreme Court of Illinois considered two issues: (1) could the expert determine that the laboratory test was sufficiently reliable to provide a foundational basis for the testimony, and (2) a sixth amendment claim regarding statements about the laboratory report. On the first issue, the court found no error because the testifying expert did not merely regurgitate facts from the report, but conducted her own analysis based on the data in the report, and her reliance on the report itself goes to weight and not admissibility. On the second issue, the court also found no error, noting again the independent analysis and the fact that the report itself wasn’t admitted (and data from it was only admitted for the purpose of explaining the basis of the testifying expert’s opinion).

There is a lot of fodder in the Illinois opinion (e.g., the court “find[s] that the testing of narcotics using a GCMS machine is not comparable to the scientific process at issue in this case”), but it’s heading to the Supreme Court with facts that are very similar to those found at a court-martial; more so than any other confrontation case to date.

Chain of Custody

( Shorter challenged the admission of the evidence below, and we therefore review his claim for an abuse of discretion. See United States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997). “[A] ‘break in the chain of custody simply goes to the weight of the evidence, not its admissibility.’” Id. (quoting United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993)). When the defendant questions the authenticity of evidence, the district court must determine whether there is substantial evidence from which the jury could infer that the evidence is authentic. United States v. Jardina, 747 F.2d 945, 951 (5th Cir. 1984). The record establishes that the Government set forth sufficient evidence to establish the authenticity of the disputed evidence. See id; United States v. Smith, 481 F.3d 259, 264-65 (5th Cir. 2007). Accordingly, the district court did not abuse its discretion in allowing the evidence to be admitted. See Dixon, 132 F.3d at 197.

Character Evidence and “Have You Heard” Questions.

A trial judge “is vested with very wide discretion as to the scope of testimony of witnesses on reputation and especially wide discretion to prevent having the trial of the accused be diverted into a collateral inquiry by the efforts at impeachment and subsequent efforts to rehabilitate the reputation witness.” Shimon v. United States, 352 F.2d 449, 453 (D.C. Cir. 1965); see also Michelson v. United States, 335 U.S. 469, 480 (1948) (“Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations, difficult to detect or appraise from a cold record, and therefore rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject.”).

Under Rule 405(a) of the Federal Rules of Evidence, cross-examination of a witness offering evidence of the defendant’s reputation (commonly referred to as character evidence) can include “Have you heard?” questions regarding relevant, specific instances of the defendant’s conduct.4 See, e.g., United States v. Wells, 525 F.2d 974, 976 (5th Cir. 1976) (“Once a witness has testified concerning a defendant’s good character, it is permissible during cross-examination to attempt to undermine his credibility by asking him whether he has heard of prior misconduct of the defendant which is inconsistent with the witness’ direct testimony.”). The point of such questions is “to determine the credibility and accuracy of [the character witness’s] testimony.” Aaron v. United States, 397 F.2d 584, 585 (5th Cir. 1968). There are two limitations to this type of cross-examination. First, the prosecution must have a good faith factual basis for the prior bad act or misconduct. Second, the incidents must be relevant to the defendant’s character traits that are at issue in the trial. Michelson, 335 U.S. at 481 n.18; United States v. Nixon, 777 F.2d 958, 970 (5th Cir. 1985); Wells, 525 F.2d at 977; Aaron, 397 F.2d at 585. * * * As the Supreme Court explained in Michelson: The good character which the defendant had sought to establish was broader than the crime charged and included the traits of ‘honesty and truthfulness’ and ‘being a law-abiding citizen.’ . . . The crimes may be unlike, but both alike proceed from the same defects of character which the witnesses said this defendant was reputed not to exhibit. It is not only by comparison with the crime on trial but by comparison with the reputation asserted that a court may judge whether the prior arrest should be made subject of inquiry. 335 U.S. at 483–84. The prior incidents in this case involved conduct that was not so remote as to call into question the district court’s exercise of its discretion. See Salgado v. United States, 278 F.2d 830, 833 (1st Cir. 1960) (“The kind of character which may be shown calls for a matter of judgment as to its relevancy.”). Thus, the district court did not abuse its d …

Character Evidence.

( United States v. DeLeon, __ F.3d __ (5th Cir. Aug. 29, 2013)(12-40244):

D/J sustained AUSA’s objection when DC asked D’s mother of whether her son was

law-abiding.

The district court did err when it excluded De Leon’s evidence of his law-abiding character. “[E]vidence of the defendant’s pertinent trait” is admissible. Fed. R. Evid. 404(a)(2)(A). And evidence of the defendant’s “character as a law-abiding citizen . . . is always relevant.” United States v. Hewitt, 634 F.2d 277, 279 (5th Cir. Unit A 1981); see also United States v. John, 309 F.3d 298, 302-03 (5th Cir. 2002). The evidence can take the form of a witness’s opinion or testimonyregarding the defendant’s reputation. Fed. R. Evid. 405(a). Rule 608(a), which the district court cited in limiting testimony to De Leon’s character for truthfulness, applies only to a witness’s credibility. See United States v. Yarbrough, 527 F.3d 1092, 1101 n.5 (10th Cir. 2008). As De Leon was not a witness, the district court erred when it sustained an objection to the question, “And is [De Leon] a law abiding citizen?,” and when it limited the second witness’s testimony to the “very, very narrow” topic of De Leon’s reputation for truthfulness. This error of law was an abuse of discretion. Hewitt, 634 F.2d at 279.

Even though the district court erred in excluding such evidence, however,

we must “affirm[] the judgment unless the ruling affected a substantial right of

the complaining party.” United States v. Tucker, 345 F.3d 320, 326 (5th Cir. 2003) (iWe “will not overturn a conviction based on the exclusion of evidence unless a reasonable probability exists that the error contributed to conviction.”

United States v. Gulley, 526 F.3d 809, 919 n.2 (5th Cir. 2008

Child Citizenship Act and The Lack of Equitable Estoppel as a defense.

( 8 U.S.C. 1432.

( Gonzales-Lupercio v. Lynch, 613 Fed. App’x 443 (5th Cir. 2015);

Robertson-Dewar v. Holder, 646 F.3d 226 (5th Cir. 2011);

Gutierrez v. Lynch, __ F.3d __ (5th Cir. July 18, 2016).

Child Confession

( Judges must consider age of child to determine if child is in custody for

confession purpose. J.D.B. v. North Carolina, 564 U.S. __ (June 16, 2011)(09-11121).

Child Pornography

( Calderon argues that the government did not show by a preponderance of

the evidence that he possessed ten or more images of child pornography, or that

he possessed an image of a child under twelve. He argues that the images found

on his computer appeared in cache memory, which he claims he did not know

how to directly access. He analogizes his case to United States v. Kuchinski, 469

F.3d 853 (9th Cir. 2006), where the Ninth Circuit held that evidence of child

pornography images in a type of cache memory was inadequate to prove the

defendant individually possessed those images. We need not decide whether we

agree with the statutory interpretation in Kuchinski, or whether the cache

memory and other technical facts discussed in that case are analogous to this

one, because there is ample evidence in this record to support the district court’s

determination that Calderon possessed the requisite images. This includes the

statement of facts Calderon verified during the plea colloquy, evidence that

Calderon has a long-term history with child pornography, Calderon’s activity

procuring child pornography in the “preteen” chat room, and Calderon’s lack of

alternate explanations for the presence of the images found on his computer.

( Having a sadistic image is relevant conduct under USSG § 1B1.3. United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009); United States v. Moore, 328 Fed. App’x 308, (5th Cir. 2009)( 08-10913).

( This court has repeatedly rejected similar arguments in challenges to convictions under other statutes that criminalize conduct aimed at minors. United States v. Hubbard, 480 F.3d 341, 346 (5th Cir. 2007) (“When a statute criminalizes conduct because the victim or intended victim is a minor, we have held that it is of no moment that the person with whom a defendant attempted to engage in prohibited conduct was actually an adult as long as the defendant believed the intended victim to be a minor . . . .”).

( A person can commit the offense of attempting to use a facility or means of interstate commerce to induce or entice an individual younger than 18 years old to engage in prostitution or any unlawful sexual activity even if the victim in the case was an adult,

undercover law enforcement officer. United States v. Farner, 251 F.3d 510, 511-13 (5th Cir. 2001) (construing 18 U.S.C. § 2422(b)). “Criminal attempt cases” require “proof of two elements: first, that the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense, and, second, that the defendant had engaged in conduct which constitutes a substantial step toward commission of the crime.” Id. at 513“ The substantial step must be conduct which strongly corroborates the firmness of [the] defendant’s criminal attempt. Id.

( Rudzavice argues that this specific mens rea element requires that the Government prove that the victim was under the age of 16 even when the alleged offense was inchoate. We disagree. The statute criminalizes an attempt to “transfer[] obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years.” Rudzavice’s conduct was an attempt to engage in precisely the prohibited conduct. Because Rudzavice, like Farner, would have violated the law if his scheme were fully carried out as he desired or planned, he is liable for criminal attempt under § 1470. United States v. Rudzavice, 2009 WL 3366563,

586 F.3d 310 (5th Cir. 2009)(08-10791).

( 18 U.S.C. § 1470 does not define the terms “obscene” and “sexual conduct.”

Section 1470 prohibits the interstate transfer of “obscene matter” to an individual under the age of 16. In Miller v. California, the Supreme Court articulated a three-part test for determining whether material is “obscene” and therefore falls outside the scope of First Amendment protections. Courts read that test into federal obscenity statutes in order to construe them in a manner consistent with the Constitution. Accordingly, the fact that § 1470 does not specifically define the word “obscene” does not render it unconstitutionally vague. Rudzavice.

( United States v. Ragsdale, 426 F.3d 765, 782 (5th Cir. 2005): Defendants who went to trial to dispute whether materials satisfied the obscenity test under Miller were challenging their factual guilt, and therefore not “qualif[ied] for a sentencing credit under the rare circumstance where the defendant proceeds to trial but can still qualify for a § 3E1.1 reduction”)(acceptance of responsibility). Accord: Rudzavice. Thielemann, 575 F.3d 265, 270, 278 (3d Cir. 2009).

( United States v. Gerholdt, (5th Cir. Feb. 16, 2012)(11-50317): appeals the sentences imposed following his guilty plea convictions for distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b). He argues that the district court failed to state adequate reasons for the sentences imposed and that the sentences are therefore procedurally unreasonable. Next, he argues that the sentences are substantively

unreasonable because Congress has diverted from the goal of proportionality of

sentences in connection with the child pornography Guidelines, because United States Sentencing Guidelines § 2G2.2 is not based on empirical evidence, and because § 2G2.2 does not comply with the mandates of 18 U.S.C. § 3553(a). He

reasons that the circumstances of his case militate in favor of a below-guidelines

sentence. Although conceding that his argument regarding an empirical basis

is foreclosed by this court’s precedent, he raises the issue to preserve it for

further review.

( United States v. Baker, __ F.3d ___ (5th Cir. Feb. 12, 2014)(12-10834):

USSG § § 2G2.2(b)(3)(F) does not contain a scienter requirement; thus, a two-level enhancement for distribution of child pornography through Baker’s use of the file-sharing program Frostwire was permitted, absent evidence that Baker knew Frostwire enabled other users to access the child pornography he downloaded. … Our sister circuits agree that “distribution as defined in § 2G2.2 includes operating a file sharing program that enables other participating users to access and download files [then automatically] placed in a shared folder” available to other users. United States v. Dodd, 598 F.3d 449, 452-53 (8th Cir. (2010). It is likewise generally accepted both in this circuit and others that the five-level enhancement under § 2G2.2b(3)(B) applies only where the defendant

knew that he was distributing child pornography in exchange for a thing of value through his use of file-sharing software. See, e.g., United States v. Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2012) (“[W]e have explicitly rejected any suggestion we automatically apply a [§ 2G2.2b(3)(B)] enhancement based merely on a defendant’s use of a file-sharing program.”)

We review the district court’s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

From 5th Cir. Blog on this case.

The panel affirmed the district court’s application of the U.S.S.G. § 2G2.2(b)(3)(F) enhancement for Baker’s use of Frostwire that enabled other users to access the child pornography he downloaded, finding this enhancement has no scienter requirement.  In so doing, the panel joins the Tenth and Eleventh Circuits but disagrees with the Second, Fourth, and Seventh Circuits.  The Sixth and Eighth Circuits have held that the use of file-sharing software creates a strong presumption that the users understand that others can access their files, thereby supporting a § 2G2.2(b)(3)(F) enhancement, and the Eighth Circuit allows the defendant to rebut this presumption.

Why did the Fifth Circuit decide § 2G2.2(b)(3)(F) has no scienter requirement?  The panel looks to the language of the enhancement, which plainly does not contain a scienter requirement.  In contrast, the Sentencing Commission defined “distribution to a minor” as the “knowing distribution to an individual who is a minor at the time of offense,” indicating that the omission of a scienter for the definition of “distribution” was not an oversight.  The panel concludes that § 2G2.2(b)(3)(F) is unambiguous and that its application without a scienter requirement does not produce an absurd result, since Baker’s use of Frostwire “contributed to the proliferation of illicit material and increased harm to the children exploited by its creation and distribution.” 

The panel further explains that it typically does not apply the general presumption against strict-liability crimes to sentencing enhancements and that the rule of lenity only applies to ambiguous guidelines provisions.

( United States v. Jenkins, __ F.3d __ (5th Cir. March 20, 2013)(11-51277):

Jenkins argues that the district court erred in applying the section 3A1.1(b)(1) “vulnerable victim” enhancement “based on the age of the children portrayed in the child pornography” because the specific offense guideline already takes into account the ages of the children. Jenkins does not contend that the children were not in fact vulnerable, but rather that the district court erred in applying a section 3A1.1(b)(1) enhancement based on an age related vulnerability. Jenkins also argues that although the children were especially vulnerable to the crime of production of child pornography, they were not especially vulnerable to the specific crimes he committed.

“If the defendant knew or should have known that a victim of the offense

was a vulnerable victim,” the offense level is increased by two. U.S.S.G.

§ 3A1.1(b)(1). The application notes define a “vulnerable victim” as a person

“who is a victim of the offense of conviction,” along with any relevant conduct,

and “who is unusually vulnerable due to age, physical or mental condition, or

who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G.

§ 3A1.1 cmt.2. The application notes also state that the “vulnerable victim”

enhancement should not be applied “if the factor that makes the person a

vulnerable victim is incorporated in the offense guideline. For example, if the

offense guideline provides an enhancement for the age of the victim, [the

enhancement] would not be applied unless the victim was unusually vulnerable

for reasons unrelated to age.” Id. Although the government and the district court seemingly believed that Jenkins’ challenge was foreclosed by circuit precedent, we have had no occasion to consider application of the section 3A1.1(b)(1) enhancement in addition to the section 2G2.2(b)(2) enhancement. …we do not ascribe undue significance to the example provided

in the Guidelines commentary. Rather, we believe the inquiry should focus on

whether “the factor that makes the person a vulnerable victim is incorporated

in the offense guideline.” U.S.S.G. § 3A1.1 cmt. 2. In this case, we do not see

any logical reason why a “victim under the age of twelve” enhancement should

bar application of the “vulnerable victim” enhancement when the victim is

especially vulnerable, even as compared to most children under twelve. We

agree with the Ninth Circuit [United States v. Wright, 373 F.3d 935, 942-

44 (9th Cir. 2004), the Ninth Circuit held that a section 3A1.1(b)(1) “vulnerable

victim” enhancement was appropriate, along with a section 2G2.2(b)(2)

enhancement based on prepubescent/younger-than-twelve children, where the

victims ranged in age from eleven months to four years. The Ninth Circuit

explained that “the victims’ vulnerability is not fully ‘incorporated’ in the victimunder-12 adjustment” because “[m]ost children under 12 are well beyond the

infancy and toddler stages of childhood during which they are the most

vulnerable.” Id. at 943.] The Ninth Circuit further explained that “[t]hough the

characteristics of being an infant or toddler tend to correlate with age, they can

exist independently of age, and are not the same thing as merely not having

‘attained the age of twelve years,’ the criterion for the 4-level increase in” section

2G2.1(b)(2). Id. that in such a case, the victim’s vulnerability is not

fully incorporated into the offense guideline by the “under twelve” enhancement.

We agree with the Ninth Circuit that this is sufficient;

there is no need to show that the particular vulnerabilities of the victims

actually facilitated the commission of Jenkins’ crimes. See United States v.

Lynn, 636 F.3d 1127, 1138-39 (9th Cir. 2011). We therefore conclude that the

district court did not err in applying the section 3A1.1(b)(1) enhancement.

( United States v. Roetcisoender, __ F.3d __ (5th Cir. July 2, 2015)(13-41241):

Roetcisoender was convicted under 18 U.S.C. § 2252A(a)(2)(B), which states: (a) Any person who-- . . . (2) knowingly receives or distributes-- . . . (B) any material that contains child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including by computer; . . . shall be punished . . . . The jury instructions defined “knowingly” as “voluntarily and intentionally, not because of mistake or accident” and “distribute” as “to deliver or transfer possession of [something] to someone else with or without any financial interest in the transaction.” While the statute itself does not define distribute, this court held in United States v. Richardson that storing files in a shared folder accessible to others on a file-sharing program constituted distribution for purposes of § 2252A(a)(2)(B) under the facts of that case.

713 F.3d 232, 235-36 (5th Cir. 2013); see also United States v. Chiaradio, 684 F.3d 265, 282 (1st Cir. 2012) (“When an individual consciously makes files available for others to take and those files are in fact taken, distribution has occurred.”). In Richardson, the defendant used a peer-to-peer file-sharing program to download child pornography videos and stored the videos in a shared folder. The defendant was a computer technician and admitted he “knew that others could access the materials stored in his shared folder.” Roetcisoender argues that his case is distinguishable because although he stored files in a shared folder, the Government did not adduce any evidence indicating that Roetcisoender knew the folder was accessible by other users. Roetcisoender states that he merely downloaded child pornography into the “Incoming” folder, and because he did not know that this folder was, by default, accessible by others, he did not change the setting. The Government offered into evidence, and the jury heard, a recording of Detective Arnold’s initial interview of Roetcisoender. Roetcisoender stated he had been using the eMule program since September 2011, approximately nine months. He explained that to use the eMule program, the user types in a keyword search and chooses which files to download. When asked where a file went when Roetcisoender downloaded it, he said it “stays in the e[M]ule option unless you take it out of there.” He viewed files in the “eMule option,” and he moved some files from eMule to external hard drives or the computer’s recycling bin and left other files in eMule. When Roetcisoender stated that he moved some files from eMule to a folder named “folder 28,” Arnold asked another officer to tell Cox, who was in another room analyzing the computers … AFFIRMED.

( Sadistic Behavior under USSG § 2G2.1. From United States v. Comeaux, (5th Cir. Sept. 8, 2011)(10-30234): A four point enhancement pursuant to § 2G2.1(b)(4) for “material that portrays sadistic or masochistic conduct or other depictions of violence. … The so-called penetrative sex rule is not a rule, but rather an amalgam of cases that attempt to determine in an ad hoc manner what types of acts would qualify as sadistic or violent. In United States v. Lyckman, 235 F.3d at 238–39 (5th Cir. 2000), we agreed with the Second, Seventh, and Eleventh Circuits that sexual penetration of a child by an adult male likely causes pain and, therefore, qualifies as sadistic or violent within the meaning of the guideline. …Tongue in mouth of child: Violent acts or acts that cause physical pain to a child easily fall within the plain language of the guideline. However, although acts that inflict pain upon the child victim are sadistic and violent per se within the meaning of the guidelines, an absence of physical pain is not per se outside the ambit of the enhancement for sadistic acts under § 2G2.1(b)(4). “[S]adism . . . do[es] not necessarily require violent conduct.” United States v. Turchen, 187 F.3d 735, 739 (7th Cir. 1999). “[S]adistic and masochistic conduct includes sexual gratification which is purposefully degrading and humiliating, conduct that causes mental suffering or psychological or emotional injury in the victim.” Id. In fact, many depictions which are unarguably sadistic in nature do not involve violence or pain, but rather subjugation and humiliation. See, e.g., United States

v. Wolk, 337 F.3d 997, 1007–08 (8th Cir. 2003) (pictures of young girl in a collar were sadistic); Turchen, 187 F.3d at 740 (picture of adult males urinating on the face of a grimacing child were sadistic). In Lyckman, we held that the photographs at issue depicted conduct that “caused the children pain, physical or emotional or both.” Id. at 239.

( Analysis of USSG 2G2.2(b)(3)(B) and Peer-To-Peer File Sharing. United Sates v. Groce, _ F.3d __ (5th Cir. April 27, 2015)(14-50272): First, Groce contends that § 2G2.2(b)(3)(B) does not apply because he never distributed the pornography or expected something of value in return. Second, Groce argues that § 2G2.2(b)(5) is inapplicable because he never abused or exploited children.

( When a defendant knowingly uses peer-to-peer file sharing software, however, he engages in the kind of distribution contemplated by § 2G2.2(b)(3)(B). A peer-to-peer file sharing program “lets users exchange digital files through a network of linked computers.” United States v. Richardson, 713 F.3d 232, 233 (5th Cir. 2013), cert. denied, 134 S. Ct. 230 (2013). By using this software as Groce has, the user agrees to distribute the child pornography on his computer in exchange for additional child pornography. This is precisely the kind of exchange contemplated by § 2G2.2(b)(3)(B). This conclusion is nothing new. Although this court has often held that knowing use of peer-to-peer file sharing software triggers § 2G2.2(b)(3)(B), we have not done so in a published opinion. See United States v. Flores, 540 F. App’x 405, 405 (5th Cir. 2013) (unpublished) (applying § 2G2.2(b)(3)(B) because “[t]he undisputed evidence shows that Flores had the necessary technological understanding of the peer-to-peer file sharing software to use the software to obtain images of child pornography”); United States v. Desadier, 495 F. App’x 501, 503 (5th Cir. 2012) (unpublished) (same); United States v. Onken, 440 F. App’x 304, 305 (5th Cir. 2011) (unpublished) (same); United States v. Moore, 328 F. App’x 308, 309 (5th Cir. 2009) (unpublished) (applying § 2G2.2(b)(3)(B) because “[w]here . . . the defendant uses file-sharing software to obtain images of child pornography, there is a natural expectation that he will do his bit for the relationship by sending or continuing to send his own images in return”) (internal quotation marks omitted)).

( The guidelines define sexual abuse or exploitation of a minor as: (A) conduct described in various federal statutes, (B) an offense under state law that would violate the same federal statutes if the offense occurred in the territorial jurisdiction of the United States, or (C) an attempt or conspiracy to commit any of the offenses under (A) or (B). U.S.S.G. § 2G2.2 cmt. n.1. One of the federal statutes referenced in subsection (A) is 18 U.S.C. § 2241, which among other things prohibits knowingly engaging in a sexual act with a person under the age of 12. 18 U.S.C. § 2241(c). Consequently, § 2G2.2(b)(5) applies if Groce engaged or attempted to engage in a sexual act with a minor on two or more occasions.

( Ban on Internet Use during SR Upheld. Three years SR. United States v. Paul, 274 F.3d 155, 169 (5th Cir. 2001); 10 year SR. United States v. Thielemann, 575 F.3d 265, 270, 278 (3d Cir. 2009). For life in child pornography cause. United States v. Fortenberry, 2009 WL 3428403, (5th Cir. Oct. 26, 2009)(08-20748)(unpublished)(deem harsh but upheld under plain error since defense did not object).

( Stipulations Cannot Bar Introduction of Videos under Old Chief. From United States v. Caldwell, 2009 WL 3425074, 586 F.3d 338 (5th Cir. Oct. 27, 2009)(08-50804). The defense argued that because it had stipulated that the videos contained child pornography, under Old Chief v. United States, the Government did not need to publish the videos to the jury. 117 S.Ct. 644 (1997).

( This court reviews a district court’s evidentiary rulings for an abuse of

discretion. United States v. Yanez Sosa, 513 F.3d 194, 199 (5th Cir. 2008). A trial court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous assessment of the evidence. Id. at 200. We review unobjected to opinion testimony and prosecutorial misconduct for plain error that affects substantial rights. United States v. Hitt, 473 F.3d 146, 161 (5th Cir. 2006). The error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id.

( Caldwell contends that the trial court committed reversible error because it did not conduct a 403 weighing test. While all relevant evidence tends to prejudice the party against whom it is offered, Rule 403 excludes relevant evidence when the probative value of that evidence substantially outweighs the unfairly prejudicial nature of the evidence. FED. R. EVID. 403; United States v. Rocha, 916 F.2d 219, 239 (5th Cir. 1990). When one party stipulates to a disputed fact, the stipulation conclusively proves that fact. Old Chief, 117 S.Ct at 653. Any additional evidence offered to prove that fact, while still relevant, could potentially violate Rule 403. Id.

( necessary to reach an honest verdict.”). Unlike Old Chief, child pornography is graphic evidence that has force beyond simple linear schemes of reasoning. It comes together with the remaining evidence to form a narrative to gain momentum to support jurors’ inferences regarding the defendant’s guilt. It provides the flesh and blood for

the jury to see the exploitation of children. The general, conclusory language of the stipulation that the videos “contain visual depictions of minors under the age of eighteen, engaging in sexually explicit conduct” does not have the same evidentiary value as actually seeing the particular explicit conduct of the specific minors. Jurors have expectations as to the narrative that will unfold in the courtroom. Id. at 654. If those expectations are not met, jurors may very well punish the party who disappoints by drawing a negative inference. Id. For example, jurors expect to see a gun in the case of a person charged with using a firearm to commit a crime. Id. Likewise, the actual videos exploiting children in a child pornography case form the narrative that falls within the general rule stated in Old Chief. Moreover, the specific videos published – one of which the evidence showed was opened and previewed the morning of the search – reflected how likely it was that the defendant knew that the video depicted child pornography (which knowledge the stipulation did not mention). We cannot say the trial court abused its discretion when it showed the jury three short excerpts from three of the seventeen different videos of child pornography on defendant’s computer.1

1 REQUEST JURY INSTRUCTION

We further note that the district court carefully and at some length instructed and queried the jury panel on voir dire not to allow any hostility or aversion they might have to

pornography or child pornography to prejudice their consideration of the evidence or to in

any manner influence or incline them not to in all respects follow the court’s instructions

and, among other things, not to fail to afford the defendant the presumption of innocence

and not to make any finding of guilt except as based solely on in-court evidence

establishing guilt beyond a reasonable doubt.

( A person’s voluntary participation in a website group that had as its purpose the

sharing of child pornography supported a probable cause determination that child pornography would be found on the person’s computer. United States v. Martin, 426

F.3d 68, 74-75 (2d Cir. 2005); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir. 2004).

( Search and seizure issues in child pornography case.

United States v. Weast, __ F.3d __ (5th Cir. Jan 26, 2016)(14-11253): Weast first claims that Officer Watkins violated his Fourth Amendment rights by using peer-to-peer software, without a warrant, to identify Weast’s IP address as possibly linked to child pornography and to download data that Weast had made available for sharing. Citing the Supreme Court’s recent decision in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014). Weast moved before trial to suppress all evidence obtained through these activities and the subsequent search of the Weast household. The district court denied the motion, reasoning that Weast had no reasonable expectation of privacy in the information accessed through the software and website. We review this conclusion of law de novo.

We have never explicitly stated whether IP addresses or files shared through peer-to-peer networks are subject to a reasonable expectation of privacy. However, other circuits have concluded that they are not. As the Third Circuit has explained, “[f]ederal courts have uniformly held that ‘subscriber information provided to an internet provider,’” including IP addresses, “‘is not protected by the Fourth Amendment’s privacy expectation’ because it is voluntarily conveyed to third parties.” United States v. Christie, 624 F.3d 558, 573 (3d Cir. 2010) (quoting United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008)); see, e.g., United States v. Wheelock, 772 F.3d 825, 828 (8th Cir. 2014); United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010). Similarly, other courts have consistently held that Fourth Amendment protections do not extend to data shared through peer-to-peer networks. See, e.g., United States v. Conner, 521 F. App’x 493, 497-98 (6th Cir. 2013); United States v. Borowy, 595 F.3d 1045, 1047-48 (9th Cir. 2010); United States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009).

Weast acknowledges much of this unfavorable precedent, but argues that Riley should be understood to have wiped the slate clean. In Riley, the Supreme Court held that the Fourth Amendment prohibits warrantless searches of arrestees’ cell phones. 134 S. Ct. 2473, 2485 (2014). That case relied on the presumption that the arrestees had a reasonable expectation of privacy in the information on their cell phones. Unlike those arrestees, however, Weast had already voluntarily shared all of the information at issue in this case.

( Depiction Issue and Change in Statute Issue. From United States v. Nichols, (5th Cir. March 30, 2010)(09-30487)(unpublished): At the time Nichols entered his guilty plea, § 2251(a) made any person “who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct” guilty of sexual exploitation of a child. 18 U.S.C. § 2251(a) (2006) (amended 2008). Section 2256(5) defined “visual depiction” to “include[ ] undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.” 18 U.S.C. § 2256(5) (2006) (amended 2008). From this language Nichols infers that § 2251(a), which incorporates the definition of visual depiction contained in § 2256(5), applied, at the time of his conviction, only to permanently stored data. We disagree. The definition of “visual depiction” set forth in § 2256(5) is not an exhaustive list of the types of visual depictions criminalized by § 2251(a). Section 2251(a) explicitly covers “any visual depiction” of sexually-explicit conduct. The use of the word “any” before the phrase “visual depiction” in § 2251(a) evidences Congress’s intent to broadly criminalize the dissemination

of any visual image of child pornography, regardless of the means by which it was generated. See, e.g., Massachusetts v. EPA, 549 U.S. 49, 528-29 (2007) (observing that Congress’s repeated use of the word “any” underscores an intent to embrace all types of a particular matter); see also Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002) (“As we have explained, the word ‘any’ has an expansive meaning, that is, one or some indiscriminately of whatever kind.” (internal quotation marks and citation omitted)). Indeed, Nichols concedes in his reply brief that Congress did not intend for the examples of visual depictions in § 2256(5) to be exhaustive. The plain meaning of “visual depiction” clearly encompasses a video that could be viewed—perceived visually—by someone remotely. Instead, Nichols argues that because the statute was subsequently amended in 2008 to expressly criminalize the transmission of live visual

depictions of sexually-explicit conduct, such conduct could not have been covered by the 2006 statute. We find this argument similarly misguided. In 2008, Congress amended § 2251(a) to cover “any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct . . .” Protect Our Children Act of 2008, Pub. L. No. 110-401, § 301, 122 Stat. 4229, 4242 (emphasis added). Congress also amended § 2256(5), which defines “visual depiction” to include “undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image

that has been transmitted by any means, whether or not stored in a permanent format.” Protect Our Children Act of 2008, § 302, 122 Stat. at 4242 (emphasis added). Nichols asserts that Congress was not merely clarifying the scope of § 2251(a) by amending the statute to include the act of transmitting a live visual depiction, but creating a wholly new type of crime distinct from the act of producing a visual depiction. But no principled distinction exists between “producing” a visual image and “transmitting” data capable of being converted into a visual image. Section 2256(3) of the statute states that “‘producing’ means producing, directing, manufacturing, issuing, publishing, or advertising.” Both before and after the 2008 amendment, § 2256(5) defined “visual depiction” to include “data stored . . . by electronic means which is capable of conversion into a visual image.” Thus, the transmission of live video feed that causes a visual image to appear on a remote computer screen is a means of producing a visual depiction. See United States v. Smith, 795 F.2d 841, 846 (9th Cir. 1986)(“Section 2251(a) does not require the actual production of a visual depiction, merely the enticement of minors ‘for the purpose of producing’ a visual depiction of sexually explicit conduct. Whether the film involved here had actually reached the point of ‘visual depiction’ or not, Smith’s use of the girls was clearly ‘for the purpose of producing’ such visual depictions.”).

( United States v. Winkler, __ F.3d __ (5th Cir. 09-50703)(April 25, 2011):

Winkler argues that his conviction for Count One must be set aside because the government failed to prove that he knowingly received the two files at issue. He argues that the most the evidence shows is that he viewed those two videos over the internet, and that he was unaware that the files would be automatically downloaded into the temporary cache on his staff computer. Thus, he asserts that those facts cannot support a conviction for knowing receipt of electronic child pornography. We disagree. To be sure, the exact contours of the crime of “knowingly receiving” electronic child pornography in a constantly shifting technological background are murky. Part of the problem is that computers connected to the internet store vast quantities of data about which many users know nothing. As a user browses the internet, the computer stores images and text and other kinds of data in its temporary memory the way a ship passing through the ocean collects barnacles that cling to its hull. Thus, there is some risk that the computer of an internet user not intending to access child pornography may be infected with child pornography. Understandably, our sister circuits have

struggled with whether to impute knowledge from the presence of illicit files

found in such temporary storage. The Tenth Circuit recently reversed a conviction for knowing receipt of child pornography based entirely on two electronic photographs found only in the defendant’s internet cache. United States v. Dobbs, 629 F.3d 1199, 1201 (10th Cir. 2011). The Tenth Circuit based its ruling on the fact that there was no evidence that the defendant had accessed the files stored in the computer’s cache, and there was no evidence that the defendant knew of the computer’s automatic caching function or that the images had come to the defendant’s computer as a result of a specific pornography related internet search – all the government could rely on was a general pattern of child pornography related searches. ¶ By contrast, in two other cases involving child pornography found in a user’s internet cache, the Tenth Circuit upheld convictions where a review of the evidence showed that the evidence did point convincingly towards the defendant’s intent. See United States v. Bass, 411 F.3d 1198 (10th Cir. 2005); United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir. 2002). ¶ Other circuits have agreed that while “the specter of spam, viruses, and hackers must not prevent the conviction of the truly guilty . . . prosecutors, judges and juries have a duty to safeguard – as best as they are able – potential defendants when receipt of child pornography might well have been truly inadvertent.” United States v. Pruitt, No. 10-10829, 2011 WL 1380687, at *3

(11th Cir. Apr. 13, 2011) (not yet published). ¶ See United States v. Kuchinski, 469 F.3d 853, 861-62 (9th Cir. 2006). Citing the fact that there was no evidence the defendant was a sophisticated computer user, that he tried to get access to the cache files, or that he knew of the cache’s existence, the court answered in the negative: “[w]here a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files.” Id. at 863. ¶ However, the Ninth Circuit has affirmed convictions where the evidence of knowledge was stronger than in Kuchinski. See United States v. Romm, 455 F.3d 990 (9th Cir. 2006). ¶ What unites these cases is not the cache as such, but rather the broader concern that an internet user may find himself ensnared in a child pornography case unwittingly, by virtue of files that were copied to temporary storage and never knowingly received. Cf. United States v. Stulock, 308 F.3d 922, 925 (8th Cir. 2002) (summarizing a district court’s unchallenged observation that “one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache”). ¶The facts in this case are far more like those in Tucker, Bass, Romm and Pruitt than those in Dobbs and Kuchinski. “The mere presence of the files in the cache is certainly proof that the files were received.” Dobbs, 629 F.3d at 1205 (emphasis in original). The only question is whether that receipt was knowing. In stark contrast to Dobbs – where the evidence supporting the government’s case was tenuous at best – the evidence from which a rational jury could infer that Winkler himself sought out, downloaded, viewed and had the ability to manipulate the images at issue in this case is overwhelming. Crucially, the government elicited evidence from which the jury could infer that the files at issue came from the members-only section of a child pornography site – the same source from which the files at issue in Count Five came. Given the evidence at trial, and especially the evidence that Winkler repeatedly paid for members-only child pornography sites, the jury could have concluded that Winkler paid for access to the child pornography website, entered a password and username to

( Remote in Time for Relevant Conduct.

United States v. Bacon, (5th Cir. July 7, 2011)(10-40088)(30 years remote held relevant). Although it is an issue of first impression in this circuit, six other circuits have held that a sentencing court can consider remote-in-time occurrences to establish a “pattern of activity” under § 2G2.2. See United States v. Turner, 626 F.3d 566, 572-73 (11th Cir. 2010) (applying the enhancement where the abusive incidents

occurred 20 years prior to sentencing); United States v. Olfano, 503 F.3d 240, 243 (3d Cir. 2007) (considering convictions from 16 and 13 years earlier); United States v. Garner, 490 F.3d 739, 742-43 (9th Cir. 2007) (involving activity occurring “at least 35 years earlier”); United States v. Gawthrop, 310 F.3d 405, 414 (6th Cir. 2002) (considering an 11-year-old conviction); United States v. Woodward, 277 F.3d 87, 90-92 (1st Cir. 2002) (relying on convictions from 22 and 27 years earlier); United States v. Lovaas, 241 F.3d 900, 903-04 (7th Cir. 2001) (involving abuse from 26 years earlier). … A district court may consider all “relevant conduct” when fashioning a sentence. See United States v. Fowler, 216 F.3d 459, 461 (5th Cir. 2000). Bacon argues that remote-in-time conduct that is not part of the offense of conviction cannot be “relevant conduct.” However, the term “relevant conduct” is defined in several ways by the Guidelines. As other circuits have noted, the plain language of § 2G2.2(b)(5) and its commentary do not require that the “pattern of activity” must be close in time or related to the offense of conviction.

( United States v. Blanton, 11-10405 (5th Cir. April 13, 2012): In child pornography case, a five-level increase in the offense level is warranted “[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” § 2G2.2(b)(5). The relevant “pattern of activity” is defined as two or more instances of sexual abuse or exploitation of a minor regardless whether the abuse occurred during the offense, involved the same minor, or resulted in a conviction. § 2G2.2, comment. (n.1).

The Government was required to prove the facts warranting the increase by a preponderance of the evidence. United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). We review the district court’s factual finding only for clear error. Id. We will affirm if the district court’s decision was plausible in light of the record as a whole. United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005). We afford particular deference when, as here, the district court’s findings are based on the credibility of witnesses. United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005).

( United States v. Teuschler, __ F.3d __ (5th Cir. July 24, 2012)(11-50362):

The government argues, however, that Teuschler’s possession of these images was part of a “common scheme or plan” under § 1B1.3(a)(2): Teuschler, it reasons, had an inventory of images from which he drew to distribute images to entice young victims, and all the images possessed in that inventory were relevant conduct to the crime of distribution.

This theory is foreclosed by our decision in United States v. Fowler, 216 F.3d 459, 461 (5th Cir. 2000). There, a defendant was convicted of transporting child pornography after sending images to an undercover agent. When federal agents arrested him, he was in possession of images portraying sadistic sexual conduct involving minors. Because Fowler had never sent the sadistic images–only non-sadistic images–the court held that the possession of the undistributed sadistic images was not part of a common scheme or plan with the distribution for which Fowler was convicted. Id. at 461-62.

Here, there is no evidence that Teuschler had an ongoing scheme to entice other girls to engage in sexual activity. The government does not cite evidence that Teuschler attempted to use these images to entice young girls on other occasions. And unlike in Fowler, there is no evidence in the record that Teuschler possessed the additional images at the time of his offense of conviction. See Fowler, 216 F.3d at 462 (citing evidence that images were dated prior to offense). The government’s theory here mirrors what Fowler rejected: that all child pornography images possessed by a defendant constitute an inventory and are thus relevant to the offense of distribution. See id. at 462 (“The dissent would make the possession of any child pornography a part of the offense of the interstate transportation of child pornography. We do not believe

the guidelines should be construed so broadly.”). Under Fowler, a showing that possession of images of child pornography is “relevant conduct” to the offense of distribution requires more than simply showing that both the images distributed and the images possessed were child pornography. We therefore conclude that the district court erred in imposing a three-level enhancement for numerosity of images.

( Proving Jurisdiction Prong. United States v. Terrell, __ F.3d __ (5th Cir. Nov. 5, 2012)(11-50602. Conviction for one count of producing child pornography and sexually exploiting a child, in violation of 18 U.S.C. § 2251(a) & (e), and one count of knowingly possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). … The Court finds the government’s reading more persuasive and holds that § 2251(a) does not require knowledge of the interstate nature of the materials used to produce the images of ST.

( Under 18 U.S.C. § 2251(a), the government must prove that the defendant

(1) employed, used, persuaded, induced, enticed, or coerced a minor to engage in

sexually explicit conduct for the purpose of producing a visual depiction of such

conduct; and (2) a jurisdictional nexus. 18 U.S.C. § 2251(a) (West 2003). As to

the jurisdictional nexus element, it may be satisfied: [(a)] if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, [(b)] if that visual depiction was produced using materials

that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or [(c)] if such visual depiction has actually been transported in interstate or foreign commerce or mailed. Id. The Defendant-Appellant argues that the knowledge element—“knows or has reason to know”—applies to each of the three possible ways that the element can be satisfied.

( The more natural reading of this statute is that knowledge must be proven only as to the first jurisdictional hook. See Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009) (“The manner in which the courts ordinarily interpret criminal statutes [should be] fully consistent with . . . ordinary English usage.”); see also United States v. Betancourt, 586 F.3d 303, 308–09 (5th Cir. 2009) (applying Flores-Figueora and adopting a “common-sense, natural reading” of a statute). Here, the statute’s repetition of “if” indicates that each clause following the “if” is distinct. The phrase “knows or has reason to know” follows the first “if,” implying that the phrase is only to be applied to the first clause and not to the latter two. Finally, the use of the disjunctive “or” further indicates that the “knows or has reason to know” applies only to the first item in the list. … The Defendant-Appellant cites no authority for his argument that the

“knowledge” requirement applies to all three jurisdictional elements, and indeed, an identical argument was rejected by the Eleventh Circuit. In United States v. Smith, the Eleventh Circuit stated that the “most natural reading of this provision” is that “[o]nly the first basis for jurisdiction requires any proof of mental state.” See 459 F.3d 1276, 1289 (11th Cir. 2009).

Moreover, and importantly, courts have been consistent in not applying the mens rea of statutes to federal jurisdictional elements, unless the language of the statute requires such a result. For example, in United States v. Yermian, in a prosecution for making false statements to a federal officer in violation of 18 U.S.C. § 1001, the Supreme Court held that the “knowingly” and “willfully” intent requirements did not apply to the federal jurisdictional element—i.e., that the false statement was made to a federal officer. See 468 U.S. 63, 74–75 (1984); see also United States v. Feola, 420 U.S. 671, 693–96 (1975).

( Shared Folders Plus Definition of Distribute. United States v. Richardson, __ F.3d __ (5th Cir. April 1, 2013)(11-20773): Noting that § 2252A does not define “distributes,” Richardson argues that the plain meaning of the word is “to deliver.” He cites an Eleventh Circuit Pattern Jury Instruction, which reads: “To ‘distribute’ something means to deliver or transfer possession of it to someone else, with or without any money

involved I n the transaction.” ELEVENTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL CASES) 83.4A (2010). Richardson alleges that there is no evidence that he actually delivered or transferred possession of his child pornography to another person; rather, he installed LimeWire on his computer, downloaded materials that included child pornography, and then, unbeknownst to him, an

undercover officer downloaded a video from Richardson’s computer. Richardson contends that he did not control whether or not others would download files from his account; he merely kept files in a “shared folder,” such that others could gain access to the files on the computer only if they affirmatively initiated a download. He maintains that storing files on a peer-to-peer network in this manner is akin to leaving magazines containing child pornography in a public location: while anyone would be able to pick up the magazines or even take them, his act of leaving the magazines has not actually transferred possession of the magazines.

We recognize that we have not yet addressed the issue of whether placing

items in a shared folder on a peer-to-peer program may constitute distribution

for purposes of the statute. We have, however, numerous times held that use of

a peer-to-peer program can constitute distribution for the purposes of U.S.S.G.

§ 2G2.2(b)(3)(B). For example, in United States v. Powers we stated: “Powers used a peer-to-peer program on his computer to obtain images of child pornography and, also, to make the images available to others. Under the Guidelines, making the images available to others constitutes distribution and may be accounted for as relevant conduct.” 379 F. App’x 347, 348 (5th Cir. 2010). Other circuits have squarely addressed this issue, and we find the reasoning of the Tenth Circuit in United States v. Shaffer persuasive. 472 F.3d 1219 (10th Cir. 2007). In Shaffer, the defendant downloaded images and videos from a peer-to-peer computer network and stored them in a shared folder on his computer which was accessible to other users of the network. Id. at 1220-21. Shaffer was convicted of distribution of child pornography and argued on appeal—as Richardson does here—that he did not “distribute” child pornography

because he did not actively transfer possession to another; rather he was only a passive participant in the process. Id. at 1223. The Tenth Circuit rejected this argument, concluding that Shaffer “distributed child pornography in the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or ‘dispensed’ it to others.” Id. The court compared Shaffer’s role in the process to that of the owner of a self-service gas station: although the owner might not be present and does nothing when a motorist purchases gas at the pump, the gas station owner distributes gasoline just as a computer user on a peer-to-peer network distributes child pornography—by making the material available for other users on the network just as the gasoline is available to passing motorists. Id. at 1223-24.

The First Circuit reached the same conclusion in United States v. Chiaradio, stating: “When an individual consciously makes files available for others to take and those files are in fact taken, distribution has occurred,” and “[t]he fact that the defendant did not actively elect to transmit those files is irrelevant.” 684 F.3d 265, 282 (1st Cir. 2012). Such is the case here. We agree with the conclusions set forth in Shaffer

and Chiaradio, and we conclude that downloading images and videos containing

child pornography from a peer-to-peer computer network and storing them in a

shared folder accessible to other users on the network amounts to distribution

under § 2252A(a)(2)(B) under the stipulated facts in this case.

( United States v. Scott, __ F.3d __ (5th Cir. April 19, 2016)(15-30516):

distribution as defined in § 2G2.2 includes operating a file sharing program that enables other participating users to access and download files [then automatically] placed in a shared folder’ available to other users.” United States v. Baker, 742 F.3d 618, 620 (5th Cir. 2014) (alteration in original) (quoting United States v. Dodd, 598 F.3d 449, 452–53 (8th Cir. 2010)); see also United States v. Richardson, 713 F.3d 232, 236 (5th Cir. 2013). But the parties contest whether Scott distributed child pornography “for the receipt, or expectation of receipt, of a thing of value” so as to warrant the five-level enhancement.

The key Fifth Circuit case interpreting § 2G2.2(b)(3)(B) in this context is United States v. Groce, 784 F.3d 291 (5th Cir. 2015), in which the defendant pleaded guilty to receiving child pornography using a peer-to-peer file sharing program. 784 F.3d at 293–94. This court rejected Groce’s argument that § 2G2.2(b)(3)(B) should not apply because he didn’t expect to receive anything for sharing files, explaining:

Generally, when a defendant knowingly uses peer-to-peer file sharing software, however, he engages in the kind of distribution contemplated by § 2G2.2(b)(3)(B). A peer-to-peer file sharing program “lets users exchange digital files through a network of linked computers.” By using this software as Groce has, the user agrees to distribute the child pornography on his computer in exchange for additional child pornography. This is precisely the kind of exchange contemplated by § 2G2.2(b)(3)(B).

Id. at 294–95 (emphasis added) (citation omitted). After noting that we had approved the five-level enhancement in unpublished cases involving the “knowing use of peer-to-peer file sharing software,” we affirmed the district court’s application of § 2G2.2(b)(3)(B), reasoning:

Groce knowingly used Frostwire, a type of peer-to-peer file sharing software, to download and distribute child pornography. Groce admitted installing and uninstalling peer-to-peer software numerous times. Groce was familiar with search terms that return images of child pornography. Groce knew that other users could download his files and that, by allowing users to do so, he would be distributing child pornography. Finally, Groce admitted that he “was always careful not to allow anybody to download much off of me,” implying that he knowingly let some users download from him. The district court thus correctly concluded that Groce distributed child pornography in exchange for a nonpecuniary thing [of] value.

Id. at 295 (first emphasis added). In Groce, it was clear that the defendant knew he was distributing child pornography to others, supporting the inference of a knowing, reciprocal exchange or expectation thereof.2 That is significant because, as we have observed, a “defendant could not receive or anticipate receiving a thing of value in exchange for his distribution unless cognizant of his sharing.” Baker, 742 F.3d at 621. And other circuits universally agree that a defendant’s unknowing distribution of child pornography through file-sharing software does not trigger the five-level enhancement. See Baker, 742 F.3d at 620 (“It is . . . generally accepted both in this circuit and others that the five-level enhancement under § 2G2.2(b)(3)(B) applies only where the defendant knew that he was distributing child pornography in exchange for a thing of value through his use of file-sharing software.”); see also United States v. Hernandez, 795 F.3d 1159, 1165–66 (9th Cir. 2015); United States v. Mabee, 765 F.3d 666, 674 (6th Cir. 2014); United States v. McManus, 734 F.3d 315, 319 (4th Cir. 2013); United States v. Durham, 618 F.3d 921, 931 (8th Cir. 2010); United States v. Vadnais, 667 F.3d 1206, 1209 (11th Cir. 2009); United States v. Geiner, 498 F.3d 1104, 1111 (10th Cir. 2007).

( United States v. Terrell, 700 F.3d 755 (5th Cir. 2012): To convict D under 18 USC § 2251, US is not required to prove that D know of the interstate nature of the materials used to produce the images of child pornography at issue. Nor is a reqmt that the D who exploited the child also be the person who produced the images.

( United States v. Lewis, __ F.3d __ (5th Cir. August 10, 2015)(14-30898). In a case involving possession and receipt of child pornography, evidence of child molestation is admissible because it tends to show a defendant’s sexual interest in children. United States v. Moore, 425 F. App’x 347, 352 (5th Cir. 2011) (per curiam) (unpublished).

( United States v. Bogomol, (5th Cir. Nov. 19, 2015)(15-10238):

Transmitting child pornography via the Internet is “tantamount to moving photographs across state lines” and satisfies the interstate nexus requirement of § 2251. United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2001) (internal quotation marks and citation omitted). This court has also rejected arguments that the criminalization of intrastate transportation and transmission of child pornography violates the Commerce Clause. See United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011) (rejecting a Commerce Clause challenge to the ban on production of child pornography in § 2251 as foreclosed under United States v. Kallestad, 236 F.3d 225, 231-33 (5th Cir. 2000)). The Supreme Court’s decision in Bond did not abrogate the holdings of these cases. Accordingly, the district court’s finding of an adequate factual basis for Bogomol’s guilty plea was not a clear or obvious error, as Bogomol acknowledges. See Puckett, 556 U.S. at 135. Alternatively, Bogomol asserts that this Court’s conclusion that intrastate transmission of child pornography through interstate channels suffices to establish an interstate nexus is erroneous in light of Bond v. United States, 134 S. Ct. 2077 (2014) and that criminalization of such transmissions under § 2251 constitutes the prohibited exercise of a federal police power. He also argues, in the alternative, that plain error review should not apply to his forfeited objection to the factual basis for his plea. One panel of this court may not overrule the decision of another absent a superseding en banc or Supreme Court decision. See United States v. Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002). Therefore, Bogomol is correct that these issues are foreclosed. See Dickson, 632 F.3d at 192; Trejo, 610 F.3d 313; Runyan, 290 F.3d at 192.

( Definitions in child pornography statute. United States v. McCall, __ F.3d -__ (5th Cir. August 18, 2016)(15-10894): Sexually explicit conduct” is defined by statute as, inter alia, “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). (note 3: McCall cites Trejo and agrees with the Government that, in the absence of an objection below, our review of the claimed inadequacy of his factual resume is for plain error; however, he argues in passing “that the failure of a factual basis to admit an offense ought not to be reviewed for plain error.” We are not persuaded.)

We have defined “lascivious exhibition” as “a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” United States v. Steen, 634 F.3d 822, at 828 (5th Cir. 2011)(quoting United States v. Grimes, 244 F.3d 375, 381 (5th Cir. 2001)). Moreover, we have applied the six factors from United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), to aid in determining whether a particular depiction is lascivious: 1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and] 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Steen, 634 F.3d at 826 (quoting Dost, 636 F. Supp. at 832). These factors— called the “Dost factors”—are not exhaustive and no one factor is dispositive. See id.

In his brief, McCall expressly chooses not to discuss the Dost factors seriatim or cumulatively. Rather, he argues that even if the Dost factors are resolved against him, at most they show that the video of Doe was a “lascivious image.” In his mind, this is not tantamount to the “lascivious exhibition” In a footnote to his brief, McCall distorts our definition of “lascivious exhibition” by arguing that “[a] minor who showers without intent to appear in a recording is not displaying or bringing forth anything” and is “[c]ertainly . . . not acting to attract notice or excite lustfulness.” According to the plain language of Steen and Grimes, it is the depiction—not the minor—that must bring forth the genitals or pubic area to excite or stimulate. See Steen, 634 F.3d at 826 (quoting Grimes, 244 F.3d at 281). McCall cites no case where we have held or articulated a definition to the contrary. required to support his conviction under Steen. By definition, such a novel legal construct faces overwhelming hurdles on plain error review. See, e.g., Trejo, 610 F.3d at 319 (concluding that the novelty of a legal argument “doom[ed] the case [on] plain error”). The differences between this case and Steen cannot be overstated; indeed, as mentioned supra, McCall acknowledged many of these differences to the district court in arguing for and receiving a five-year downward variance on his sentence. Summarizing, Steen involved a defendant whose interest in voyeurism led him to capture 1.5 seconds of film depicting the pubic region of a girl he did not know to be a minor. See 634 F.3d at 827–28. Here, McCall does not argue that an interest in voyeurism, rather than his documented sexual interest in children, led him to record Doe. See id. at 827 (noting that the Dost “factors have never been deployed where a defendant’s conduct . . . proved to be no more than voyeurism”). Rather, the record unequivocally establishes that he purposefully filmed Doe’s breasts, genitals, and pubic area for a number of minutes and for the admitted purpose of satisfying himself during masturbation. Given these qualitative and quantitative distinctions, this case is not Steen. Notwithstanding all of these differences, McCall relies on Steen to argue that the video does not depict “lascivious exhibition” because Doe was not aware that she was being recorded; she did not intend to display herself; and the video does not show Doe engaging in an affirmative sexual act. The Government responds that Steen adopted no such standard.5 We agree with the Government—Steen did not adopt a special per se rule for surreptitious 5 The Government also argues that McCall pleaded to the production and attempted production of child pornography, and there is no question that he attempted to produce a depiction that met the statutory standard. We need not reach this issue. 7 recording cases that requires an affirmative display or sexual act by a minor.6 See, e.g., United States v. Romero, 558 F. App’x 501, 504 (5th Cir. 2015) (per curiam) (Higginson, J., dissenting) (“In United States v. Steen—a § 2251(a) case in which the defendant surreptitiously recorded a minor at a tanning booth— this court did not adopt a per se rule requiring that the minor affirmatively commit a sexual act.”). Because Steen does not compel the interpretation of § 2251(a) and “lascivious exhibition” that McCall now advances, he cannot show that the district court plainly erred in accepting his plea. See, e.g., United States v. Alvarado-Casas, 715 F.3d 945, 951–53 & n.7 (5th Cir. 2013) (reiterating that “factual basis error is not plain” unless a defendant’s interpretation of a statute is compelled by, inter alia, a “binding judicial construction of it”). B. McCall next arg

( Child Porno and IntraState Distribution. United States v. Lloyd, (5th Cir. Sept. 6, 2016)(16-10161): Lloyd asserts that § 2252A(a)(2) should be construed as requiring the government to prove, or the defendant to admit, that the “offense caused the [child pornography] to move in interstate commerce, or, at least, . . . that the relevant [child pornography] moved in interstate commerce at a time reasonably near the offense.” Relying on Bond v. United States, 134 S. Ct. 2077 (2014), Lloyd contends that a conviction in the absence of such proof impermissibly intrudes on state police power.

Plain error review applies to Lloyd’s forfeited objection to the factual basis for his guilty plea. See id. To establish plain error, Lloyd must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. The Commerce Clause authorizes Congress to prohibit local, intrastate possession and production of child pornography where the materials used in the production were moved in interstate commerce. See United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011); United States v. Kallestad, 236 F.3d 225, 226–31 (5th Cir. 2000). Bond did not abrogate the holdings of those cases. As Lloyd concedes, the district court’s finding that there was a sufficient factual basis for his guilty plea was not a clear or obvious error in light of this caselaw. See Puckett, 556 U.S. at 135. Lloyd raises the issue to preserve it for further review.

Child Sex Crimes

( 2-level sentence enhancement upheld on internet traveling case when defendant

communicated with undercover cop because intent was to communicate with child.

U.S. v. Hatton, 2009 WL 507506 (W.D. La.).

Civil Commitment of Sex Offenders

( Upheld by Supreme Court. United States v. Comstock, 560 U.S. __, 130 S.Ct. 1949 (2010)

Civil Contempt and Right to Counsel.

( Test is set forth in Turner v. Rogers, 564 U.S. __ (U.S. June 20, 2011)(10-10).

Precedent gives no definitive answer on if person facing civil contempt must be provided

counsel. Will depend on if proceeding satisfies due process of law considering various factor: (1) nature of the private interest that will be affect, and (2) the comparative risks of an erroneous deprivation of that interest and without additional or substitute safeguard, and (3) the nature and magnitude of any countervailing interest in not providing additional or substitute procedural requirements. Here, repeated incarceration violated dupe process of law. Key factor was failure of trial count to consider financial inability to pay child support. Will be based on due process violation, not Sixth Amendment right to counsel. Here court failed to consider contemptee inability to pay child support and thus he was deprived of due process of law.

Civil Penalties Adjustment Inflation Act

( Federal Civil Penalties Inflation Adjustment Act.7 See 70 Fed. Reg. 29573, 29577 (May 24, 2005) (codified at 7 C.F.R. § 3.91(b)(2)(ii) (2006)).

( See Knapp v. U.S. Department of Agriculture, __ F.3d ___ (5th Cir. July 31, 2015)(14-60002). Significant decision covering

Civil Rights Violation Based on Texas Parole Law

( Nelson’s due process challenge to the procedures employed by the Parole

Board is not cognizable in a 42 U.S.C. § 1983 proceeding because Texas inmates

do not have a liberty interest in parole. See Allison v. Kyle, 66 F.3d 71, 73-74

(5th Cir. 1995). The dismissal of this claim as frivolous was therefore not an

abuse of discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

Civil Rights Violation—Contract under § 1981

Body by Cook, Inc. v. State Farm Mutual Ins., __ F.3d __ (5th Cir. August 24, 2017)(16-31034): Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts.” 42 U.S.C. § 1981(a). “Make and enforce contracts” is defined as “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” § 1981(b). To establish a § 1981 claim for contractual discrimination, Plaintiffs must allege that (1) they are members of a racial minority; (2) Defendants intended to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute—here, making a contract. Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997); Green v. State Bar of Tex., 27 F.3d 1083, 1086 (5th Cir. 1994). The analysis of discrimination claims under § 1981 is identical to the analysis of Title VII claims. Jones v. Robinson Prop. Grp. L.P., 427 F.3d 987, 992 (5th Cir. 2005). Here, Plaintiffs adequately plead the first element of a § 1981 claim by alleging that Body by Cook is a “100% African American-owned body shop.” Whether Plaintiffs successfully plead the second and third elements are closer questions. We first examine whether Plaintiffs adequately allege discriminatory intent. Although “naked allegation[s]” of discriminatory intent are too conclusory to survive a motion to dismiss, see Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc), discriminatory motive may be—and commonly is—demonstrated by circumstantial evidence, Bellows, 118 F.3d at 274. An allegation that similarly situated non-minorities received better treatment “could create the necessary inference and set the predicate for establishing the section 1981 claim.” See Crosby v. Kilgore, 9 F.3d 104, 1993 WL 481800, at *1 (5th Cir. 1993) (unpublished); cf. Lindsay v. Yates, 498 F.3d 434, 439–40 (6th Cir. 2007) (holding that plaintiffs-purchasers pleaded a § 1981 claim by alleging that (1) sellers advertised their house for sale; (2) plaintiffs signed a purchase agreement and made deposit; and (3) sellers terminated the contract three weeks after signing agreement and one day after agent learned buyers were black).

Note 1: Although not a pleading standard, this court has looked to the “evidentiary framework” set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether a plaintiff pleads discriminatory intent. Haskett v. Cont’l Land Res., L.L.C., 668 F. App’x 133, 134 (5th Cir. 2016) (unpublished); cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (holding that “[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement”). Under McDonnell Douglas, Plaintiffs must demonstrate four elements to establish a prima facie case of racial discrimination at the summary judgment phase: (1) membership in a protected class; (2) that they sought and were qualified to receive an available contract; (3) that their contract proposal was rejected or that they received a contract on unfavorable terms; and (4) similarly-situated individuals or entities not in the protected class received a contract. Jeffrey v. Columbia Med. Ctr. at Lancaster Subsidiary, LP, 48 F. App’x 103, 2002 WL 31016499, at *5 (5th Cir. 2002) (unpublished); see also Hall v. Cont’l Airlines, Inc., 252 F. App’x 650, 654 (5th Cir. 2007) (unpublished) (holding that the plaintiff failed to establish a prima facie case of racial discrimination under § 1981 at the summary judgment phase because “she presented no evidence that similarly situated individuals outside of her protected class were treated more favorably”). While Plaintiffs do not need to satisfy these four elements to successfully plead a § 1981 claim, see, e.g., Lindsay, 498 F.3d at 439–40, the McDonnell Douglas framework demonstrates the types of factual allegations sufficient to support a plausible inference of discriminatory intent.

In addition to discriminatory intent, Plaintiffs must also plead that State Farm’s discrimination concerned one or more of the activities enumerated in the statute. Bellows, 118 F.3d at 274. “Any claim brought under § 1981 . . . must initially identify an impaired ‘contractual relationship,’ under which the plaintiff has rights,” but “[s]uch a contractual relationship need not already exist, because § 1981 protects the would-be contractor along with those who already have made contracts.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (internal citation omitted). Thus, because Body by Cook does not allege an existing contract, it must plead facts that plausibly demonstrate that State Farm’s alleged discrimination concerned a prospective contract. See Grambling Univ. Nat’l Alumni Ass’n v. Bd. of Supervisors, 286 F. App’x 864, 869–70 (5th Cir. 2008) (unpublished). The Complaint does not state a plausible claim that Defendants refused to contract with the individual Plaintiff, Robert Cook. The gravamen of the Complaint is that Defendants refused to certify Body by Cook as a Direct Repair Shop and allow Body by Cook to enter their Direct Repair Programs.

Clerical Error

( A clerical error occurs when “the court intended one thing but by merely clerical mistake or oversight did another.” United States v. Buendia-Rangel, 553 F.3d 378, 379 (5th Cir. 2008) (quoting United States v. Steen, 55 F.3d 1022, 1026 n.3 (5th Cir. 1995)). Nothing in the record establishes that the district court’s judgment did not accurately reflect its intent. The judgment does not contradict anything that the judge said at the sentencing hearing. See United States v. Slanina, 359 F.3d 356, 357-58 (5th Cir. 2004) (per curiam). Indeed, the record shows that the court crafted the relevant portion of

the judgment expressly as the parties requested in the agreed motion to amend the judgment. Roth’s argument that the judgment does not reflect the court’s intent to apply U.S.S.G § 5G1.3(b) is misplaced because no mention of this guideline was made at sentencing, so there is no evidence that the court intended for it to have any effect on the sentence. Moreover, Roth is not entitled, as he insists, to a more detailed explanation in the judgment regarding how the sentence should be executed. The judgment is consistent with the court’s verbal explanation of the sentence and its grant of the motion to amend the judgment; thus Rule 36 cannot be used to clarify the sentence. See United States v. Patrick Petroleum Corp., 703 F.2d 94, 98 (5th Cir. 1982).

Coin Collecting

( Malvino v. Delluniversita, __ F.3d ___ (5th Cir. Oct. 20, 2016)(15-41435):

Malvino filed suit against Anthony and Paul, PCA, and PCI, asserting a substantive civil RICO violation predicated on mail fraud and wire fraud; conspiracy to violate RICO; various state common law claims including fraud, fraudulent concealment, and negligent misrepresentation; civil conspiracy to commit the state common law violations; and violations of the Texas Deceptive Trade Practices Act.

After a bench trial, the district court dismissed the Texas Deceptive Trade Practices Act claims on the ground that they did not survive Pereida’s death. The court ruled in Malvino’s favor, however, on the fraud, negligent misrepresentation, and civil conspiracy claims asserted against PCA and PCI, and held Anthony personally responsible for damages associated with the claims.3 For these common law claims, the court found economic damages of $536,934 and exemplary damages in the same amount.

The court also found Anthony and PCA liable under both the substantive and conspiracy provisions of civil RICO. It held that these claims survived Pereida’s death, reasoning that RICO is primarily a remedial statute. Under RICO’s treble damages provision, the court calculated damages in the amount of $1,610,802.4 It also noted that RICO allows a prevailing plaintiff to recover attorneys’ fees, which totaled $280,190.

…Coins are valued according to rarity and condition. Rarity is based on “mintage,” the number of coins originally minted, as well as the number that have survived. The same rare coin’s value can vary wildly based on condition. So collectors have adopted a grading scale. They use descriptors such as “MS” for “mint state” (meaning original condition), or “AU” for “about uncirculated” (meaning very little wear from use). A numeric scale running from one to seventy makes finer distinctions. A coin graded AU50 is slightly more damaged than a coin graded AU55. An MS70 is in perfect condition. Collectors, especially unsophisticated collectors, rely on these grades to determine coins’ value. Numismatics is unregulated, however, and whether a grade actually reflects a coin’s value depends on whether the grade was assigned consistent with industry standards.

PCA is a rare coins dealer owned by Anthony Delluniversita and his son, Paul Delluniversita. Paul, who owns 40% of PCA, serves as its president, but in practice his sole job is ensuring that sales representatives are on the phone making sales; Anthony, who owns 60%, manages all other operations, including training salespeople and setting coin prices. Each coin PCA sold Pereida came with an invoice that showed the grade as determined by “independent third party” grader PCI Coin Grading, Inc. Anthony, however, owned and operated PCI, which he had purchased in November 2010. He was also PCI’s sole coin grader, although he had no formal training in numismatics. For each coin PCA sold to Pereida, Anthony had purchased it, through PCA, in a “raw,” or ungraded, state and personally assigned it a PCI grade. Just over a year after he purchased the company, Anthony sold PCI in late 2011. Pereida passed away in October 2011. Her former fiancé, Albert Malvino, became executor of her estate. Malvino had the coin collection appraised for tax purposes by Heritage Auction Appraisal Services, a leading coin valuation company. Heritage determined that the fair market value of the PCA coins was only $190,865, or 26.2% of the amount Pereida paid. Heritage found that PCI overgraded coins, failed to identify a counterfeit coin, and improperly graded “cleaned”(1) coins. Malvino then retained Paul Montgomery, an experienced coin grader, for a second opinion. Montgomery found the collection was worth $150,964 at the time of purchase, or 20.8% of what Pereida paid. Like Heritage, he found patterns of overgrading and selective overgrading to take advantage of significant changes in valuation for small grade variances.(2) Montgomery graded all of Pereida’s coins lower than

-- (Note 1: “Cleaning” is a technical term and describes the chemical treatment of a coin’s surface to improve its appearance and desirability. The process can severely damage a coin and is not an accepted technique to enhance the grade of a coin.

00(Note 2) For example, a 1911-D $5 Gold Indian Head coin graded at MS63 is generally valued at $40,000 while the same coin graded at MS60 is generally valued at $6,750. In selective overgrading, dealers identify coins with such dramatic value spreads and overgrade to overcharge buyers.

PCI did. Like Heritage, he identified a counterfeit coin and twenty five coins that were ungradable because they were cleaned or damaged. Montgomery sought another opinion from the Professional Coin Grading Service, which confirmed his conclusion (and that of Heritage) that the coins were worth about half a million dollars less than what Pereida paid. Malvino filed suit against Anthony and Paul, PCA, and PCI, asserting a substantial civil RICO violation predicated on … (See also RICO).

Collateral Attack on Prior Convictions Not Permitted.

( From United States v. Longstreet, 603 F.3d 273 (5th Cir. April 7, 2010)(09-60051):

( On appeal, Longstreet argues that there was never an

“adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere,”

by the state court, as required to constitute a “prior sentence” for criminal history purposes. See U.S.S.G. § 4A1.2(a)(1). The government, citing the Supreme Court’s decision in Custis v. United States, 511 U.S. 485 (1994), contends that Longstreet’s

argument amounts to an impermissible collateral attack on a prior conviction. Custis held that the Constitution requires collateral review of a defendant’s prior conviction used to enhance a federal sentence only when the defendant alleges that the conviction was obtained in violation of her Sixth Amendment right to counsel. Id. at 495-97; see also Daniels v. United States, 532 U.S. 374, 382 (2001).

In a number of unpublished decisions following Custis, this court has refused to entertain collateral attacks on prior state convictions made during federal sentencing proceedings when, as here, the defendant does not allege that the prior conviction was uncounseled. See, e.g., United States v. Castellanos, 226 F. App’x 410, 411 (5th Cir. 2007) (unpublished); United States v. Moore, 281 F.3d 1279, at *3 (5th Cir. 2001) (unpublished table decision); United States v. Galvan-Zapata, 233 F.3d 574, at *2 (5th Cir. 2000) (unpublished table decision); cf. United States v. Gonzales, 79 F.3d 413, 426-27 (5th Cir. 1996) (“Except in the limited circumstance in which the prior conviction was obtained in violation of the right to have counsel appointed, a defendant has no constitutional right to challenge prior convictions used to enhance a currently imposed sentence.”). Our sister circuits have adopted the same rule. United States v. Munoz, 36 F.3d 1229, 1237 (1st Cir. 1994); United States v. Jones, 27 F.3d 50, 52 (2d Cir. 1994); United States v. Thomas, 42 F.3d 823, 824 (3d Cir. 1994); United States v. Bacon, 94 F.3d 158, 163 (4th Cir. 1996); United States v. Covarrubias, 65 F.3d 1362, 1372 (7th Cir. 1995); United States v. Moore, 245 F.3d 1023, 1025 (8th Cir. 2001); United States v. Fondren, 54 F.3d 533, 534-35 (9th Cir. 1994); United States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994); United States v. Phillips, 120 F.3d 227, 231 (11th Cir. 1997).

( From United States v. Gonzalez, 636 F.3d 157 (5th cir. 2011): Defendant has burden of collaterally attacking a prior conviction on the ground that he did not knowingly and intelligently waive his right to assistance of counsel.

Collateral Attacks on State Court Civil Judgments Prohibited

( Riley v. Louisiana State Bar Ass’n, __ F.App’x __ (5th Cir. Sept. 16, 2010)(10-50306):

“The Rooker-Feldman doctrine directs that federal district courts lack jurisdiction to

entertain collateral attacks on state court judgments.” Riley I, 214 Fed.Appx. at 458 (citing Liedtke v. State Bar of Tex., 18 F.3d 315, 317 (5th Cir. 1994)). This is because “[c]onstitutional questions arising in state proceedings are to be resolved by the state courts.” Liedtke, 18 F.3d at 317. Our decision in Liedtke advises individuals like Riley that: [i]f a state trial court errs the judgment is not void, it is to be reviewed and corrected by the appropriate state appellate court. Thereafter, recourse at the federal level is limited solely to an application for a writ of certiorari to the United States Supreme Court. The casting of a complaint in the form of a civil rights action cannot circumvent this rule, as absent a specific delegation[,] federal district courts, as courts of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders of state courts.

Id. (internal citations, quotation marks, and brackets omitted).

(The Rooker-Feldman doctrine refers to the doctrine derived from two Supreme Court 2

cases, see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923).

( United States v. Guerrero, (5th Cir. 2-15-2012)(10-10914): Guerro claims that the district court erred in applying the career offender enhancement because one of his Texas state convictions on which the district court relied was obtained in violation of his Sixth Amendment right to counsel. Although a defendant generally may not collaterally attack a prior state conviction that is used to enhance his federal sentence, Texas state law allows such an attack when the defendant alleges that the conviction was “void” or

“tainted by a constitutional defect.” United States v. Rubio, 629 F.3d 490, 493

(5th Cir. 2010). …Section 4A1.2(f) of the United States Sentencing Guidelines states that “[a] diversionary disposition resulting from a finding or admission of guilt . . . in a

judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction

is not formally entered.” Guerrero concedes that he was represented by counsel when he entered his guilty plea, and he does not claim that his constitutional rights were violated during the guilty-plea hearing. Accordingly, the deferred adjudication order could not have been tainted by a Sixth Amendment constitutional violation.

Collection of Fine and Special Assessments and Restitution.

United States v. Diehl, __ F.3d ___ (5th Cir. Feb. 13, 2017)(15-50162). To collect fines and special assessments, United States can use the Texas Turnover statute in Texas Practices and Remedies Code because the statute authorizing collections states the federal government can use state laws for collection purposes.

Combining Offenses

( Under U.S.S.G. § 3D1.2, closely related counts are those that involve “substantially the same harm.” Counts involve “substantially the same harm” when, inter alia, they “involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.” § 3D1.2(b). For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the “victim” is the societal interest that is harmed. § 3D1.2, comment. (n.2). In such cases, the counts are grouped together when the societal interests that are harmed are closely related. Id.

Commerce Clause(See Sorna

Communication of Threats by Internet, Phone, or Mail (18 U.S.C. § 844(e)

( United States v. Pillault, __ F.3d ___ (5th Cir. April 10, 2015)(14-60222)(N. Miss)

( Upholds conviction for knowingly and willfully communicating a threat by means of the internet, an instrument of interstate and foreign commerce, concerning an attempt to kill and injure individuals and unlawfully damage and destroy buildings by means of fire and explosives, in violation of 18 U.S.C. § 844(e) and, pursuant to USSG 2A6.1(b)(1), upheld six-level enhancement for conduct evidencing an intent to carry out the threat.

( While playing the online video game “Runescape,” D communicated violent threats to other players. Runescape is a fantasy role-playing game that is played online. Players can communicate with each other by typing comments, which appear above the players’ characters as well as in a chat box at the bottom of the screen. In response to provocative comments made by another player, D stated that he was going to acquire guns, Molotov cocktails, and pipe bombs in order to reenact the Columbine school shooting at Oxford (MS) High School. D threatened to “level [O]xford hi[g]h school” and turn it to “gravel.” D also stated that “[i]ts always a good time to talk about columbine” and that he could not “wait to blow brains out of skulls.”

( Section 2A6.1(b)(1) provides: “If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels.” In order to determine whether the enhancement applies, the court should “consider both conduct that occurred prior to the offense and conduct that occurred during the offense; however, conduct that occurred prior to the offense must be substantially and directly connected to the offense, under the facts of the case taken as a whole.” U.S.S.G. §2A6.1 app. n.1.

Pillault contends, he did not commit an overt act that was substantially and directly connected to the offensive threat. See United State v. Goynes, 175 F.3d 350, 355 (5th Cir. 1999) (requiring “some form of overt act” to sustain an enhancement under § 2A6.1(b)(1)); U.S.S.G. § 2A6.1 app. n.1 (“[C]onduct that occurred prior to the offense must be substantially and directly connected to the offense, under the facts of the case taken as a whole.”). This court requires “some form of overt act to sustain a § 2A6.1(b)(1) enhancement.” Goynes, 175 F.3d at 355. Violent threats alone are not sufficient to justify the enhancement. See id.

( D also raised an issue that sentence was based on rehabilitation as raised in Tapia v. United States, 131 S. Ct. 2382 (2011). Court held that sentence was not based exclusively on rehabilitation and thus Tapia was not violated.

Community Property Seizure

( Good review at United States v. Tract 31A, Lots 31 and 32, __ F.3d _____ (5th Cir. March 13, 2017)(16-40588).

Competency

( District court did not abuse its discretion in failing to conduct a more searching

competence inquiry. See United States v. Messervey, 317 F.3d 457, 463 (5th Cir.

2002); United States v. Davis, 61 F.3d 291, 304 (5th Cir. 1995); United States v. Williams, 819 F.2d 605, 607 (5th Cir. 1987); United States v. Horovitz, 584 F.2d 682, 683 n.3 (5th Cir. 1978).

( Statutory requirements for a district court to sua sponte hold a competency hearing are set out in 18 U.S.C. § 4241(a), entitled “[d]etermination of mental competency to stand trial or to undergo post-release proceedings.” Section 4241(a) states that:

[t]he court shall . . . order [ ] a [competency] hearing on its own

motion, if there is reasonable cause to believe that the defendant

may presently be suffering from a mental disease or defect

rendering him mentally incompetent to the extent that he is unable

to understand the nature and consequences of the proceedings

against him or to assist properly in his defense.

In determining whether the court should order a § 4241(a) hearing, the court must consider three factors: (1) the existence of a history of irrational behavior, (2) the defendant’s demeanor at trial, and (3) prior medical opinion on competency. See United States v. Messervey, 317 F.3d 457, 463 (5th Cir. 2002).

( United States v. Ruston, 565 F. 3d 892 (5th Cir. 2009):

We have not located controlling precedent as to what a district court must do when encountered with a defendant of questionable competency during a § 4243(c) hearing; however, “we find that jurisprudence developed . . . and related [to] competency questions in criminal trial proceedings [to be] instructive.” Mata v. Johnson, 210 F.3d 324, 329 (5th Cir. 2000).

Standard of Review

Whether the district court erred in not sua sponte holding a competency hearing is reviewed for abuse of discretion. See, e.g., United States v. Messervey, 317 F.3d 457, 463 (5th Cir. 2002). “Whether ‘a reasonable cause’ exists to put the court on notice that the defendant might be mentally incompetent is left to the sound discretion of the district court.” United States v. Davis, 61 F.3d 291, 304 (5th Cir. 1995) (citation omitted); see also United States v. Alden, 527 F.3d 653, 659 (7th Cir. 2008). “The district court is in the best position to determine the need for a competency hearing.” Alden, 527 F.3d at 659 (citation omitted). But “[i]f the trial court received evidence, viewed objectively, that should have raised a reasonable doubt as to competency, yet failed to make further inquiry, the defendant has been denied a fair” proceeding. Mata, 210 F.3d at 329; see

also Alden, 527 F.3d at 659 (explaining that a district court may sua sponte order a competency hearing “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”) (citation omitted); United States v. Marks, 530 F.3d 799, 814 (9th Cir. 2008) (holding that the appropriate inquiry “is not whether the trial court could have found the defendant either competent or incompetent, nor whether the reviewing court would find the defendant incompetent” but instead “the record is reviewed to see if the evidence of incompetence was such that a reasonable judge would be expected to experience a genuine doubt respecting the

defendant’s competence.”) (quotations omitted).

( The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution

prohibits the prosecution of a criminal defendant who is not competent to stand trial.

Cooper v. Oklahoma, 517 U.S. 348, 354 (1996); Godinez v. Moran, 509 U.S. 389, 394 (1993). When making a competency determination, the court looks at the mental state not at the time of the offense but rather is concerned with whether the defendant is able to

confer intelligently with counsel and to competently participate in the trial of the case.

United States v. Collins, 491 F.3d 1050, 1053 (5th Cir. 1974). The standard for determining competency is whether, by a preponderance of the evidence, the defendant

has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 402 (1960)(per curiam); see also 18 U.S.C. § 4241(d)(adopting Dusky standard).

( Standard of Review: We engage in “a species of clear error” when

reviewing a trial court’s competency determination, and, after “re-analyz[ing] the

facts and tak[ing] a hard look at the trial judge’s ultimate conclusion[,]” we will

reverse only if the finding was “clearly arbitrary or unwarranted.” United States

v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003).

( Uncooperative Defendant. United States v. Simpson, __ F.3d __ (5th Cir. June 23, 2011)(09-30075). See also Ineffective Assistance of Counsel—Substitute Counsel.

( Requirements to Force Defendant To Involuntarily Take Medication. United States v. Gutierrez, __ F.3d. __ (5th Cir. Jan. 11, 2013)(12-50028)

( Standard of Review. In reviewing a district court’s order to medicate a defendant involuntarily, we review findings of fact for clear error and conclusions of law de novo. United States v. White, 431 F.3d 431, 433 (5th Cir. 2005). “[W]hether the government’s asserted interests are sufficiently important is a legal issue subject to de novo review.” United States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007).

( Discussion. An individual “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs.” Washington v. Harper, 494 U.S. 210, 221 (1990). However, “in certain instances” which “may be rare,” the

Constitution permits the government “involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial.” Sell v. United States, 539 U.S. 166, 179-80 (2003). First, a court must determine that “important governmental interests are at stake.” Id. at 180. Second, the court must determine that involuntary medication “will significantly further” those interests – that is, that “administration of the drugs is substantially likely to render the defendant competent to stand trial” and is “substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense.” Id. at 181. Third, the court must determine that involuntary medication “is necessary to further those interests” – that is, that “any alternative, less intrusive treatments are unlikely to achieve substantially the same results.” Id. Fourth, the court must determine that “administration of the drugs is medically appropriate” – that is, “in the patient’s best medical interest in light of his medical condition.” Id.

Compliance with Regulatory Procedure. The prior 1992 version of 28 CFR § 549.43(a)(5) required that a psychiatrist hearing officer “determine whether treatment or psychotropic medication is necessary in order to attempt to make the inmate competent for trial.” Gutierrez’s counsel argues that the government still has not complied with this procedure because the hearing officer did not make a specific finding that medication was “necessary” for this purpose. It appears that the BOP declined to use the word “necessary” because it viewed such a finding as tantamount to

an approval of involuntary medication. As the BOP correctly noted, only a district court can make the quintessentially legal determination of whether the government’s interest in prosecution overrides a defendant’s liberty interest in avoiding forced medication.

( Possibility of Civil Commitment. This court and other circuits have held that the government’s interest in prosecution is not diminished if the likelihood of civil commitment is uncertain. See, e.g., United States v. Nicklas, 623 F.3d 1175, 1178-79 (8th Cir. 2010); United States v. Palmer, 507 F.3d 300, 304 (5th Cir. 2007); United States v. Bradley, 417 F.3d 1107, 1116-17 (10th Cir. 2005); United States v. Evans, 404 F.3d 227, 239 (4th Cir. 2005); United States v. Gomes, 387 F.3d 157, 161 (2d Cir. 2004). Under 18 U.S.C. § 4246, Gutierrez could be civilly committed only if a court finds “by clear and convincing evidence that [he] is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.” Similarly, under Texas law, Gutierrez could be civilly committed only if a judge or jury finds by clear and convincing evidence that he is likely to cause serious harm to himself or others, or is “suffering severe and abnormal mental, emotional, or physical distress” that causes “substantial mental or physical deterioration of [his] ability to function independently” and is “unable to make a rational and informed decision as to whether or not to submit to treatment.” Tex. Health & Safety Code § 574.035(a)(2) (West 2010). To be “clear and convincing,” the evidence “must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm: (1) the likelihood of serious harm to [himself] or others; or (2) [his] distress and the deterioration of [his] ability to function.” Id. § 574.035(e).

( Time Already Spent in Custody. Gutierrez is charged with threatening to kill the President and threatening to kill a former President, each of which carries a five-year statutory maximum, as well as threatening to kill a federal law enforcement officer with intent to interfere with the performance of official duties, which carries a ten-year statutory maximum. 18 U.S.C. §§ 115(b)(4), 871(a) & 879(a). Accordingly, assuming conviction on all counts and consecutive sentencing, Gutierrez could receive a maximum of twenty years imprisonment. … This disagreement between the parties illustrates the difficulty of tryingto estimate the applicable guidelines range without the benefit of a presentence report. Gutierrez’s counsel suggests that the district court could have directed the U.S. Probation Office to prepare a report calculating the likely guidelines sentence in advance of the Sell hearing. This is not an acceptable solution. A

presentence report involves an often lengthy investigation by a probation officer, after which both parties have an opportunity to object. An incompetent defendant is, by definition, unable to meaningfully participate in this process. More importantly, even if it were possible to produce an accurate presentence report in advance of a Sell hearing, this would not take into account the broad discretion of the district judge to impose a sentence outside the advisory guidelines range. It is not appropriate either to require a district court to conduct a mock sentencing hearing and select a provisional sentence at a Sell hearing, or to prematurely speculate about a defendant’s possible sentence in an interlocutory appeal. Accordingly, we follow the approach of several other circuits in comparing the time already served by Gutierrez with the statutory

maximum authorized for his indicted offenses. See, e.g., Bradley, 417 F.3d at 1117; Evans, 404 F.3d at 239; Gomes, 387 F.3d at 160; but see United States v. Ruiz-Gaxiola, 623 F.3d 684, 694 (9th Cir. 2010) (using expected guidelines range rather than statutory maximum to determine “seriousness” of crime, as well as additional incarceration that the defendant would face upon conviction). Under this standard, the government’s interest in prosecution is clearly not diminished. Furthermore, even assuming Gutierrez would serve little or no prison time if tried and convicted, the government’s interest in prosecution is not extinguished. In Palmer, we noted that “the government interest, as the [Supreme C]ourt explained in Sell, is not in seeing [a defendant] convicted, but rather in ensuring that he is brought to trial.” Palmer, 507 F.3d at 304. Aside from exacting retribution against and incapacitating Gutierrez himself,

prosecution of the instant offenses expresses society’s disapproval of such conduct and potentially deters others from engaging in it. Additionally, conviction would authorize the district court to impose a term of supervised release, which would facilitate monitoring of Gutierrez to ensure that he does not pose a threat to others.

( Accord: United States v. Mann, (5th Cir. March 20, 2013)((11-20698).

On January 6, 2011, the chief psychiatrist at the Federal Medical Center

in Butner, North Carolina (“FMC Butner”) held a hearing pursuant to

Washington v. Harper, 494 U.S. 210 (1990)(“Harper hearing”), to determine

whether Mann should be involuntarily medicated on the basis that he was a

danger to himself and others. Pursuant to applicable BOP regulations, Mann

received written notice of the hearing, was present and advised of his rights, and

had the aid of a staff representative at the hearing. A report prepared after

Mann’s Harper hearing (“Harper Report”) concluded that Mann suffered from a

form of schizophrenia, but that he did not meet the criteria for involuntary

treatment pursuant to Harper because he was not a danger to himself or others,

and his mental illness had not rendered him gravely disabled or unable to care

for his physical needs. Mann’s Harper Report did not contain an opinion or

reference as to whether he could or should be involuntarily medicated to restore

his competency to proceed to trial. … Because involuntary medication orders conclusively decide a disputed question and resolve an important issue, this court has jurisdiction to consider this appeal under the collateral order doctrine. See Sell v. United

States, 539 U.S. 166, at 175-77 (2003); United States v. White, 431 F.3d 431, 432-33 (5th Cir. 2005). In forcible medication cases, this court ordinarily reviews the district court’s findings of fact for clear error and its conclusions of law de novo. White, 431 F.3d at 433. However, when, as here, a party “fails to preserve an error by specific objection in the trial court, an appellate court reviews the district court’s legal conclusions for plain error.” United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012).

( Revoked Conditional Release Does not Require Hearing. ( United States v. Mitchell, __ F.3d __ (5th Cir. Feb. 18, 2013)(11-51084). Congress enacted the Insanity Defense Reform Act of 1984 to establish an affirmative defense of insanity, a verdict of “not guilty only by reason of insanity,” and a corresponding civil-commitment procedure under § 4243. Shannon v. United States, 512 U.S. 573, 577 (1994). D was found incompetent and then placed on conditional release. DJ ordered revocation because D was a threat to society. Mitchell argues that the district court erred in not sua sponte calling for a competency hearing at his § 4243(g) hearing. “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” (Note: Drope v. Missouri, 420 U.S. 162, 171 (1975); see also 18 U.S.C. § 4241(a); Cooper v Oklahoma, 517 U.S. 348, 354 (1996).) Convicting a legally incompetent person violates due rocess, and competency requirements have been applied to various parts of the adversarial process. In United States v. Ruston, 565 F.3d 892, 901 (5th Cir. 2009), this court found that the initial § 4243(c) hearing required competency. Although we have never imposed a competency requirement on a § 4243(g) hearing, Mitchell asks that we extend Ruston to impose such a requirement here. Even assuming arguendo that competency is required, the district court did not err by failing to call sua sponte for a competency hearing. We review for abuse of discretion a decision not to hold a competency hearing. United States v. Flores-Martinez, 677 F.3d 699, 706 (5th Cir. 2012). This court recognizes that the trial court is in the best position to decide whether a competency hearing is necessary, and “[w]hether reasonable cause exist[ed] to put the court on notice that the defendant might be mentally incompetent is left to the sound discretion of the district court.” A court must sua sponte call for a competency inquiry “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Flores-Martinez, 677 F.3d at 706. There is no specific threshold or “quantum of evidence” that requires the district court to order a competency hearing. Davis v. Alabama, 545 F.2d 460, 464 (5th Cir. 1977). Instead, this court considers three factors: “(1) the existence of a history of irrational behavior, (2) the defendant’s demeanor at trial, and (3) prior medical opinion on competency.” Ruston, 565 F.3d at 902. Significantly, “the presence or absence of mental illness or brain disorder is not dispositive” as to competency. Mata v. Johnson, 210 F.3d 324, 329 n.2 (5th Cir. 2000).

( Competency of Death Row Inmate. Lopez v. Stephens, __ F.3d __ (5th Cir. April 6, 2015)(14-70025). The Supreme Court has elaborated the legal standard we apply to assess the competency of a death row inmate to abandon further appeals of his sentence, namely “whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Rees v. Peyton, 384 U.S. at 314. Applying this standard, we have observed that “a habeas court must conduct an inquiry into the defendant’s mental capacity ... if the evidence raises a bona fide doubt as to his competency,” further noting that “[t]he extent and severity of the petitioner’s history of mental health problems which have been brought to the court’s attention influence the breadth and depth of the competency inquiry required.” Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000).

( United States v. Garcia Vargas, (5th Cir. July 19, 2016)(15-41320):

Whether Garcia-Vargas was suffering from delusional disorder is irrelevant, however, if he was both able to understand the nature and consequences of the proceedings and had sufficient present ability to assist counsel in his defense with a reasonable degree of rational understanding. See Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998); 18 U.S.C. § 4241; see also Mays v. Stephens, 757 F.3d 211, 216 (5th Cir. 2014), cert. denied, 135 S. Ct. 951 (2015) (“A defendant can be both mentally ill and competent to stand trial.”). The parties agreed that Garcia-Vargas was able to understand the nature and consequences of the proceedings, but they disputed whether he had sufficient present ability to assist counsel. As explained below, the finding of such ability was not clearly arbitrary or unwarranted. See United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2013). Accordingly, we do not reach Garcia-Vargas’s arguments concerning his alleged delusional disorder.

Computer IP Address and Expectation of Privacy

( We need not reach the question of whether Orisakwe has a reasonable expectation of privacy in IP addresses because he has not convinced us that the subpoenas or warrants were unlawful. United States v. Orisakw, (5th Cir. August 5, 2015)(14-40699)

( Note 2: We note that every circuit to have addressed the issue has held that there is not a reasonable expectation of privacy in IP addresses that implicates the Fourth Amendment. See, e.g., United States v. Wheelock, 772 F.3d 825, 828 (8th Cir. 2014) (“With Comcast in possession of his subscriber data, Wheelock cannot claim a reasonable ‘expectation of privacy in [the] government’s acquisition of his subscriber information, including his IP address and name from third-party service providers.’” (alteration in original)); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007) (“Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of email messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account. We conclude that the surveillance techniques the government employed here are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith.” (footnote omitted)); see also United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information [associated with an IP address] provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”).

Computer Data lost by Feds, Not a cause of action and not a loss of due process

Omran v. United States, (5th Cir. Aug 23, 2016)(15-30663);

To the extent that Omran asserted that Roy and the expert negligently deleted his electronic data, such a claim does not implicate the Due Process Clause. See Daniels v. Williams, 474 U.S. 327, 328 (1986)( Due Process Clause is not implicated by a state official's negligent act causing unintended loss of or injury to life, liberty, or property.); Lewis v. Woods, 848 F.2d 649, 652 (5th Cir. 1988). Such a claim thus lacks an arguable basis in law and is frivolous. See Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009). Although the intentional deprivation of property by a government official may amount to a due process violation in certain cases if the deprivation is authorized and not random, see Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 822 (5th Cir. 2007), Omran has not alleged facts showing either an authorized or deliberate deletion of his computer data and thus he has failed to state a claim of an intentional deprivation of property under Bivens. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007).

Computer Fraud and Abuse Act. 18 U.S.C. § 1030. This act has various components.

( Access. separate “access” provisions of section 1030. See, e.g., LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009) (“[A] person who uses a computer ‘without authorization’ has no rights, limited or otherwise, to access the computer in question.”); see also Pulte Homes, Inc. v. Laborers’ International Union of North America, 648 F.3d 295, 303–04 (6th Cir. 2011)(relying on Brekka).

( Damaging without Authorization. United States v. Thomas, __ F.3d ___ (5th Cir.

December 11, 2017)(16-41264): But there are important differences between the “access” and “damage” crimes that make it inappropriate to import access caselaw into the damage statute. Section 1030(a)(5)(A) is the only independent “damage” provision, meaning it does not also require a lack of authorization to access the computer. Contrast 18 U.S.C. § 1030(a)(5)(B), (C) (both applying to damage that results from unauthorized access of a computer). It prohibits “intentionally caus[ing] damage without authorization.” As discussed, the statute defines damage. And as numerous courts have recognized in discussing both the damage and access provisions, the ordinary meaning of

“without authorization” is “without permission.” See Brekka, 581 F.3d at 1133 (quoting Random House Unabridged Dictionary to define “authorization” as “permission or power granted by an authority”); United States v. Valle, 807 F.3d 508, 524 (2d Cir. 2015) (same); WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199, 204 (4th Cir. 2012) (defining “without authorization” as “without approval”); Yucel, 97 F. Supp. 3d at 422 (citing Webster’s Third International Dictionary); see also Orin S. Kerr, Cybercrime’s Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes, 78 N.Y.U. L. REV. 1596, 1661–62 (2003) (“[T]he damage statute uses the phrase ‘without authorization’ to mean merely ‘without permission’ . . . .”)

…Crimes involving unauthorized access are more numerous in the Computer Fraud and Abuse Act. See, e.g., 18 U.S.C. § 1030(a)(1), (2), (3). Some of these provisions distinguish between “intentionally access[ing] a computer without authorization,” and “exceed[ing] authorized access.” See id. § 1030(a)(1), (2). To give meaning to the separate provisions, courts have interpreted “access without authorization” as targeting outsiders who access victim systems, while “exceeds authorized access” is applied to “insiders,” such as employees of a victim company. See Valle, 807 F.3d at 524 (citing United States v. Nosal, 676 F.3d 854, 858 (9th Cir. 2012) (en banc)). It is this attempt to police that statutory line—between those who have no permission to access a system and those who have some permission to access but exceed it—that led to the language Thomas invokes about a “no authorization” case being limited to a person with “no right[], limited or otherwise, to access the computer in question.” Brekka, 581 F.3d at 1133 (emphasis added). This ensures that “access without authorization” applies to outsiders. Indeed, Brekka begins its analysis by recognizing that “authorization” has the ordinary meaning of “permission”; the separate term “exceeds authorized access” is the source for its conclusion that access without authorization must be an all-or-nothing proposition. Id. at 1133. In addition to its support in the bifurcated statutory scheme for access crimes, a narrow reading of those statutes avoids criminalizing common conduct—like violating contractual terms of service for computer use or using a work computer for personal reasons—that lies beyond the antihacking purpose of the access statutes. See, e.g., Valle, 807 F.3d at 512–13, 526–27 (involving police officer charged with violating section 1030(a)(2)(B) for accessing a government computer for a non-law enforcement purpose); United States v. Drew, 259 F.R.D. 449, 466 (C.D. Cal. 2009) (involving defendant charged with violating sections 1030(a)(2)(C) and 1030(c)(2)(B)(ii) for creating a fictitious profile on a social networking website and then using the account to cyberbully a teenager in violation of the website’s Terms of Service); Kerr, supra, at 1663 (“If we interpret the phrase “exceeds authorized access” to include breaches of contract, we create a remarkably broad criminal prohibition that has no connection to the rationales of criminal punishment.”).

Computer Password and Encryption

( United States v. Valas, __ F.3d __ (5th Cir. May 20, 2016)(15-50176). Encrypted

data was destroyed by gov’t when FBI attempted entry even though D originally gave

FBI the password. Denying instruction on spoliation not abuse of discretion.

Concurrent Federal-State Sentencing

( Hunter v. Tamez, 622 F.3d 427 (5th Cir. 2010): 28 USC § 2241 habeas properly denied where defendant sought credit for BofP’s failure to grant him credit against his federal sentence for his time in Texas prison for unrelated state convictions, although the state judge sentence said that the state sentence would run concurrently with federal time.

Issue was forclosed by Leal v. Tombone, 341 F.3d 427, 428-30 & nn. 13 & 19 (5th Cir. 2003). This is an issue of clemency.

( United States v. Trevino, (5th Cir. June 7, 2017)(16-41289):

A defendant is classified as a career offender under § 4B1.1 if, after the age of eighteen, he commits a “felony that is either a crime of violence or a controlled substance offense” and he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” § 4B1.1(a). A defendant has two prior felony convictions for purposes of the career offender guideline when, as relevant here, he committed the offense for which he is being sentenced “subsequent to sustaining at least two felony convictions of . . . a crime of violence” and “the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of [U.S.S.G.] § 4A1.1(a), (b), or (c).” § 4B1.2(c). Trevino’s sole challenge to the career-offender enhancement at issue here is that his robbery sentences should not and could not have been counted separately, as provided under § 4A1.2(a)(2), because those sentences ran concurrently and were entered and imposed on the same date. However, even though both state court judgments are stamped March 15, 2008, those judgments clearly show that Trevino’s prior sentences were imposed on different days. Thus, the district court did not err in applying the § 4B1.1 enhancement.

( Ordonez argues that the district court lacked the statutory authority to order his federal sentence to run consecutively to his yet-to-be imposed state court sentence. In support of his argument, Ordonez relies on United States v. Quintana-Gomez, 521 F.3d 495, 496 (5th Cir. 2008). This court reviews a sentence, including its consecutive nature, for reasonableness. United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). A district court’s authority to order a consecutive sentence is governed by 18 U.S.C. § 3584(a), which provides that “if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.” This court has held that a district court’s authority to impose a consecutive sentence under § 3584(a) includes the authority to order that a federal sentence run consecutively to a not-yet-imposed state sentence. See United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by Candia, 454 F.3d at 473. The rule announced in Brown is the law of this Circuit, which forecloses ruling on this issue.

( United States v. Jasso, 2009 WL 3722720, 587 F.3d 706 (5th Cir. Nov. 9, 2009)(08-10453):

( Jasso also argues on appeal that the district court erred in ordering his federal

sentence to run consecutively to any sentence that the Texas state court may impose with

respect to a pending assault charge. He acknowledges that there is a circuit split on this issue. Cf. United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir. 1998); with United States v. Clayton, 927 F.2d 491, 492-93 (9th Cir. 1991)). However, Jasso also concedes that his argument is foreclosed by this Court’s precedent in United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds, United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006) (holding that a federal court may impose a federal sentence to run consecutively to a state sentence not yet imposed). Jasso notes that he “accepts this holding as the law of the Circuit,” but asserts that he seeks to preserve the matter for further review. One panel of this Court may not overrule the decision of a prior panel in the absence of en banc consideration or a superseding Supreme Court decision. United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). Accordingly, the appellant’s argument is foreclosed by this Court’s holding in Brown, and this memo will not address the appellant’s argument in this regard any further.

( Future Offense. From United States v.Boutte, (5th Cir. 2009)(08-40610)(March 23, 2009)

(unreported): Finally, defendant’s contention that USSG 5G1.3(b) requires court to order his sentence to run concurrently with any future state-court sentence is unavailing. The district court did not order the sentence be run consecutively to any future sentence. Instead, this decision was left to any court that might sentence Boutte in the future. In any event, Boutte has not established the applicability of this guideline, because he has not shown his not yet-imposed sentence(s) to be “undischarged” within the meaning of Guideline § 5G1.3(b).

( United States v. Dominque, (5th Cir. Nov. 22, 2010)(09-31088)(unreported):

… district court sentenced Domingue to 36 months in prison and ordered the sentence to run consecutively to Domingue’s undischarged state probation revocation sentence of five years. Domingue appeals, arguing that the district court was required to impose a concurrent sentence pursuant to U.S. Sentencing Guideline (U.S.S.G.) § 5G1.3(b)..

We review sentences, whether inside or outside the Guidelines, for procedural error and substantive reasonableness in light of the Sentencing Guidelines and the factors set out in § 3553(a). Gall v. United States, 552 U.S. 38, 46, 51 (2007); see United States v. Candia, 454 F.3d 468, 472 (5th Cir. 2006) (applying the United States v. Booker, 543 U.S. 220 (2005), standard of review to analyze the application of § 5G1.3(c)). We review the district court’s application of the Guidelines de novo, and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Multiple sentences of imprisonment are addressed in 18 U.S.C. § 3584, which generally provides that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” 18 U.S.C. § 3584(a).

Section 5G1.3(b) provides, in pertinent part, as follows:

If . . . a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction . . . and that

was the basis for an increase in the offense level for the instant

offense . . . the sentence for the instant offense shall be . . .

(1) adjust[ed] . . . for any period of imprisonment already served on the undischarged term of imprisonment . . . ; and

(2) . . . imposed to run concurrently to the remainder of the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b). Subsection (b) does not apply “in cases in which the prior offense increased the . . . offense level for the instant offense but was not relevant conduct to the instant offense.” U.S.S.G. § 5G1.3 cmt. n.2(B). The term “relevant conduct” has the meaning ascribed to it in § 1B1.3(a)(1), (2), or (3) of the Guidelines. U.S.S.G. § 5G1.3(b). … In the instant case, state law enforcement officers arrested Domingue and charged him with possession with intent to distribute hydrocodone. In connection with the arrest, the officers seized a short-barreled shotgun which had never been registered as required by federal law. … Domingue was serving his probation revocation sentence when he was sentenced in connection with the instant offense. Because Domingue’s probation revocation sentence “resulted” not from his original state drug offense, which was “relevant conduct to the instant offense . . . and . . . was the basis for an increase in the offense level for the instant offense” but rather from his probation violation, which was based on separate, unrelated criminal offenses, § 5G1.3(c) controlled the outcome in the instant case. See United States v. Reyes-Lugo, 238 F.3d 305, 308-10 (5th Cir. 2001). Thus, the district court did not clearly err in imposing a consecutive federal sentence. See id. Furthermore, because the imposition of consecutive sentences was in keeping with § 5G1.3(c), the sentence imposed on Domingue is a within-guidelines sentence entitled to the presumption of reasonableness in all respects. See Candia, 454 F.3d at 471, 473, 478-479.

( United States v. Washington, (5th Cir. March 10, 2011)(10-10445): Washington also challenges the ruling that his federal sentence must run consecutively to an anticipated, but not-yet-imposed, state sentence. As Washington concedes, that argument is foreclosed by United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which remains binding precedent in this circuit. See United States v. Setser, 607 F.3d 128, 131-32 (5th Cir. 2010), cert. granted (June 15, 2011)(No. 10-7387), United States v. Setser, 607 F.3d 128, 131-32 & n.2 (5th Cir. 2010), aff’d, 132 S. Ct. 1463 (2012). Setser was decided March 1, 2012. The Court held that federal district judges have authority to direct that a criminal sentence be served consecutively or concurrently to a state sentence, even if that state sentence has not yet been imposed.  Justice Scalia was the author of the Court’s decision, which was joined by the Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, and Kagan.  Justice Breyer filed a dissenting opinion, which was joined by Justices Kennedy and Ginsburg. The Court rejected this application of the expressio unius canon because it did not read Section 3584 as a grant of authority to district courts.  (If it had been a grant of authority, then Congress’s specification of the two situations where that authority could be exercised would have implied that no authority was granted for different situations.)  Rather, the Court treated Section 3584 as a recognition of pre-existing, traditional judicial authority to determine the concurrent/consecutive character of sentences.  Although this point was disputed by the dissenting Justices, the Court emphasized that “[j]udges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings.

( Texas will give federal defendant credit while in federal facility. Nixon v. State, 572 S.W.2d 699 (Tex. Crim. App. 1978).

( United States v. Green (5th Cir. May 10, 2016)(15-60644)(unpublished). Green contends the district court should have run his sentence concurrent with the state sentence. He argues the court should have considered USSG § 5G1.3 but he failed to argue

that the court consider § 5G1.3(b) in determining the guideline sentence. Thus, we review his claim of procedural unreasonableness for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). A district court retains the discretion to impose a consecutive sentence as a departure or variance even when § 5G1.3(b) applies. United States v. Bell, 46 F.3d 442, 446 (5th Cir. 1995); United States v. Rangel, 319 F.3d 710, 713 (5th Cir. 2003). Contrary to Green’s assertion, there is no indication that the district court failed to consider his argument for a concurrent sentence. Green’s attorney argued that § 5G1.3(b) applied, and the district court expressed its opinion that the Guideline did not constrain the court’s ability to vary from the Guidelines.

( United States v. Martinez-Vaca, (5th Cir. Dec. 15, 2017)(17-10214):

D contends that his 27-month sentence of imprisonment, which was within the advisory guidelines range, is substantively unreasonable because the district court refused to adjust his sentence to account for the 27 days he spent in immigration custody.

A defendant is given credit toward his federal sentence for time spent in official detention before being received into federal custody that has not been credited against another sentence. See 18 U.S.C. § 3585(b). However, a district court is not authorized to decide the amount of credit that a defendant receives. United States v. Wilson, 503 U.S. 329, 335 (1992); Leal v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003). Rather, the Attorney General, through the Bureau of Prisons, determines what credit, if any, is awarded to prisoners for time spent in custody prior to the commencement of their federal sentences. Leal, 341 F.3d at 428. In determining the particular sentence to be imposed, district courts are required to consider several factors, including “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” § 3553(a)(6). However, “avoiding unwarranted general sentencing disparities is not a factor that [is granted] significant weight where the sentence is within the Guidelines range.” United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011). The record reflects that the district court considered Martinez-Vaca’s arguments for sentencing leniency, including, inter alia, his request for a reduced sentence in light of the time that he was in immigration custody, and determined that a within-guidelines sentence was merited in light of specific factors listed in § 3553(a). MartinezVaca’s mere disagreement with the weight that the district court gave the sentencing factors does not justify reversal, and he has shown no other reason for this court to disturb the presumption of reasonableness that applies to his sentence. See Gall, 552 U.S. at 51. AFFIRMED.

Concurrent Federal—Federal Sentences

( United States v. Garcia-Vasquez, (5th Cir. March 23, 2017)(15-40921):

Also for the first time on appeal, Garcia-Vazquez challenges the district court’s imposition of consecutive sentences. He contends that the court erred because it believed that it lacked authority to run the sentences concurrently. Although Garcia-Vazquez requested concurrent sentences, he did not object when the probation officer and the district court expressed the belief that the court must impose consecutive sentences. In other words, he did not attempt to correct the court’s misunderstanding of the law—even though the erroneous statement appeared in the presentence report and was repeated by the court at sentencing. “A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for [this court’s] review.” United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (quoting United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994)). “[A]n argument is preserved when the basis for objection presented below ‘gave the district court the opportunity to address’ the gravamen of the argument presented on appeal.” United States v. GarciaPerez, 779 F.3d 278, 281-82 (5th Cir. 2015) (quoting United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000)). Because Garcia-Vazquez failed to preserve the “specific claim[] of procedural error that he argues in this appeal,” plain error review applies. Whitelaw, 580 F.3d at 259. The district court has “discretion to make its . . . sentence run concurrently (or partially concurrently) with the previously imposed . . . sentence for supervised release revocation (although the Commission recommends that the sentence imposed be consecutive to that for the revocation).” United States v. Huff, 370 F.3d 454, 465 (5th Cir. 2004); see also 18 U.S.C. § 3584(a), (b). Accordingly, the district court clearly or obviously erred here in determining that it was required to run the sentences consecutively. Applying the Supreme Court’s recent decision in Molina-Martinez v. United States, 136 S. Ct. 1338, 1346-48 (2016), we conclude that the error affected Garcia-Vazquez’s substantial rights. The district court applied a cumulative guidelines range of 50 to 67 months (46 to 57 months for the illegal reentry, plus a consecutive 4 to 10 months for the supervised release violation). The correct range was 46 months (assuming concurrent sentences at the low end) to 67 months (assuming consecutive sentences at the high end). The court sentenced Garcia-Vazquez to 46 months for the illegal reentry offense and 4 months for the revocation, for a total sentence of 50 months. Under the fourth prong of plain error review, we compare the degree of the error and the particular facts of the case “to other cases that have turned on the fourth prong.” United States v. Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016). A defendant’s sentence at the bottom of an erroneously high range has weighed in favor of exercising our discretion. See, e.g., id. at 665-66; United States v. Mazarego-Salazar, 590 F. App’x 345, 350 (5th Cir. 2014) (per curiam); United States v. Price, 516 F.3d 285, 289 & n.28 (5th Cir. 2008). We likewise exercise our discretion to correct the error here, although we express no view on the ultimate issues on resentencing. We VACATE the sentence and REMAND for resentencing. c/w -- EDITH H. JONES, Circuit Judge, with whom PRISCILLA R. OWEN, Circuit Judge, joins, concurring: I concur in this decision to remand on plain error review, but it is most disturbing to note that three different Federal Public Defenders recently represented defendants at sentencing in three separate cases on appeal— United States v. Dias, No. 16-40862, 2017 WL 1048069 (5th Cir. Mar. 17, 2017) (per curiam), and United States v. Villarreal-Garcia, No. 16-40884 (5th Cir. filed Jun. 20, 2016), being the other two—and every one of them allowed the visiting district judge to make the same mistake: thinking that superseded Fifth Circuit law required him to run sentences consecutively. We have had to review this plain error three times. The discretionary nature of the court’s decision to sentence consecutively or concurrently in these circumstances is not a tough issue; it is settled by the plain language of the Guidelines. U.S. Sentencing Guidelines Manual § 5G1.3(d) & cmt. n.4(C) (U.S. Sentencing Comm’n 2015); see also United States v. Huff, 370 F.3d 454, 465 (5th Cir. 2004); United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009). Moreover, two of these three appeals included yet another issue that had to be reviewed by this court on plain error. The failure of the Federal Public Defender’s office to bring sentencing errors to the attention of the district court seems to be a virus that is spreading. It is true that in Dias the Government misrepresented the consecutive sentencing authority to the district court, while the probation office may have erred in the other two cases. Any errors on common issues like these are bad form for all the “experts” involved in sentencing. Nevertheless, the Federal Public Defender risks having its clients spend considerably more time incarcerated than might otherwise have been required, because clients go to prison while the appellate process winds its way to this court. Review on plain error is becoming unpredictable, as all parties in this process know, resulting in different outcomes for different defendants. Finally, in the unusual case where resentencing is actually meaningful, given the types of errors we are now seeing, the public incurs needless costs and there is a misuse of judicial resources in duplicative proceedings. It is time for the FPD and the U.S. Attorney’s office to take the details of sentencing more seriously in the district court

( United States v. Nava, __ F.3d __ (5th Cir. August 8, 2014)(13-11070):

( D has new sentence for new charge in N. Dist. TX plus MTR in WDTX. N. Dist. sentence said imprisonment for its offense would run

concurrent with WD. WD, however, later revoked and had sentence run

consecutively. D did not object. Plain error review only.

( Under plain-error review, this court may correct a forfeited error in its “sound discretion” on a showing of (1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732–37 (1993). … The order to run the illegal reentry sentence consecutively with the pending federal sentence is clear and obvious error under prongs one and two See United States v. Quintana-Gomez, 521 F.3d 495, 498 (5th Cir. 2008). Estrada Nava, however, has failed to meet his burden as to prong three….Affecting substantial rights “means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” (citing Puckett)….

( D failed to carry his burden on third prong.

( Concurrent Doctrine

From United States v. Jackson, (5th Cir. Jan 3, 2017)(16-50485):

The Government argues that the concurrent sentence doctrine applies and that we should decline to consider Jackson’s challenge to his sentence in the felon in possession cases because he is not challenging his concurrent sentence in the escape case. Under the concurrent sentence doctrine, an appellate court may decline to review a substantive challenge to a sentence when the sentence on the challenged conviction is being served concurrently with an equal or longer sentence on a valid conviction. United States v. Collins, 774 F.3d 256, 261 (5th Cir. 2014). “Under this doctrine, a tool of judicial economy, the existence of one valid sentence makes unnecessary the review of other sentences that run concurrently with it.” United States v. Soape, 169 F.3d 257, 266 n.4 (5th Cir. 1999). Applying the doctrine in a manner that removes the adverse collateral consequences of the sentence, we have adopted the policy of vacating the unreviewed sentence and suspending imposition of that sentence, while the valid conviction remains untouched. United States v. Stovall, 825 F.2d 817, 824 (5th Cir.), amended by later opinion, 833 F.2d 526 (5th Cir. 1987). The district court imposed sentences of 12 months and one day to run concurrently upon the revocation of supervised release in this case and in the escape case. Applying the concurrent sentence doctrine, we decline to review the revocation sentence in this case, vacate the revocation sentence, and remand with instructions to the district court to suspend imposition of the sentence. See Stovall, 825 F.2d at 824. Declining to review the revocation sentence serves the interests of judicial economy. Id. Application of the doctrine is also favored in a case such as this in which the challenge to the concurrent sentence is not related to guilt or innocence. Id.

Confessions

( From United States v. Montes, 602 F.3d 381 (5th Cir. March 26, 2010)(08-10932):

In reviewing a district court’s denial of a defendant’s motion to suppress (written confession), this court reviews factual findings, including credibility determinations, for clear error, while we review legal conclusions de novo. United States v. Solis, 299 F.3d 420, 435 (5th Cir. 2002); United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). “A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Where a district

court’s denial of a suppression motion is based on live oral testimony, the clearly

erroneous standard is particularly strong because the judge had the opportunity to observe the demeanor of the witnesses. Solis, 299 F.3d at 436; Foy, 28 F.3d at 474. We review the evidence in the light most favorable to the prevailing party, which in this case is the government. Solis, 299 F.3d at 436.

( It is black letter law that when a suspect who is subject to custodial interrogation exercises his right to counsel, law enforcement officers must cease

questioning until counsel is made available to him, unless the accused himself initiates further communication, exchanges or conversations with the officers. Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). Generally, an invocation by a suspect of his right to counsel that is ignored by law enforcement officers requires that the suspect’s statements made after the request be excluded by the trial court. Id. If a suspect, however, makes an ambiguous or equivocal reference to an attorney there is no requirement that law enforcement cease questioning. See Davis v. United States, 512 U.S. 452, 459 (1994) (holding that an ambiguous reference to counsel does not invoke the right to an attorney); see also United States v. Scurlock, 52 F.3d 531, 535-37 (5th Cir. 1995). Further, the

investigator conducting the questioning has no obligation to attempt to clarify the ambiguous comment of the accused. Davis, 512 U.S. at 461. Thus, “law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Id.

( Sixth Circuit improperly expanded Miranda rule. IAC did not affect voluntariness of

statement to police. Berghuis v. Thompkins, 560 U.S. __ (2010).

( When reviewing a district court’s ruling on a motion to suppress a confession, we use a clearly erroneous standard for lower court findings of fact. United States v. Cardenas, 410 F.3d 287, 292 (5th Cir. 2005). The ultimate question of the voluntariness of a confession is reviewed de novo. Id.

( Confessions can be involuntary if a governmental official threatens to unlawfully indict or arrest a loved one. See Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir. 1986).

( Bruton Confessions by Co-Defendant. United States v. Vasquez, __ F.3d __ (5th Cir.

Sept. 3, 2014)(12-411-94):

( Bruton v. United States, 391 U.S. 123, 127-28 (1968), we address

that argument below. Echeverria cannot himself invoke Bruton because “[t]he rule

enunciated in Bruton stems from the right to confrontation and is designed to protect the

non-testifying confessor’s codefendant, not the confessor himself.” See United States v.

Morales, 477 F.2d 1309, 1316 (5th Cir. 1973).

( According to Vasquez, his conviction violates the Confrontation Clause because Echeverria’s “confession naming him as a participant in the crime was

introduced at their joint trial” through a third-party witness, Sanchez-Alvarez,

without any opportunity to cross-examine the actual declarant, Echeverria.

Because Vasquez raises his Bruton challenge for the first time on appeal, he

must show that there was plain error affecting his substantial rights.

( Courts have observed, the Supreme Court described “statements from one prisoner to another” as “clearly nontestimonial” for the purposes of the Crawford analysis in Davis v. Washington, 547 U.S. 813, 825 (2006) (analyzing the facts of Dutton v. Evans, 400 U.S. 74, 87-89 (1970) (plurality opinion)). Based on this dicta, the Fourth Circuit held in United States v. Dargan, 738 F.3d 643, 650-51 (4th Cir. 2013), that the rule of Bruton was “simply irrelevant in the context of nontestimonial statements” made “to a cellmate in an informal setting.” The Third Circuit likewise held in United

States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012), that Bruton is no longer

applicable to a non-testimonial “prison yard conversation” because “Bruton is

no more than a by-product of the Confrontation Clause.” The First, Second,

Sixth, Eighth, Ninth, and Tenth Circuits have also limited Bruton to testimonial statements only.

(

( Refusal to Sign Waiver of Rights. “The mere refusal to sign a written waiver does not automatically render inadmissible all further statements made by the defendant.” Chapa-Garza, 62 F.3d at 122 (citing United States v. McDaniel, 463 F.2d 129, 135 (5th Cir. 1972)); see Berghuis, 130 S. Ct. at 2262. Indeed, “[a] refusal to sign a waiver may indicate nothing more than a reluctance to put pen to paper under the circumstance of custody.” McDaniel, 463 F.2d at 135; see Berghuis, 130 S. Ct. at 2264.

( United States v. Hernandez, __ F.3d __ (5th Cir. Feb. 9, 2012)(11-40211):

“the exclusionary rule prohibits the introduction at trial of all evidence that is derivative of an illegal search, or evidence known as the ‘fruit of the poisonous tree.’” United States v. Singh, 261 F.3d 530, 535 (5th Cir. 2001). However, evidence should not be excluded merely because it would not have been discovered “but-for” a constitutional violation. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). “Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488 (internal quotation marks and citation omitted). Verbal statements, in addition to physical evidence, are subject to the exclusionary rule. Id. at 485-86. “[V]erbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest . . . is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Id. at 485. However, “since the cost of excluding livewitness testimony will often be greater, a closer, more direct link between the illegality and that kind of testimony is required.” United States v. Ceccolini, 435 U.S. 268, 277 (1978). … In this case, the district court did not consider any of these factors. Rather, the district court relied on New York v. Harris in concluding that the confession was admissible. In Harris, the Supreme Court addressed whether a written statement made by Harris at the police station should have been

suppressed as the fruit of the poisonous tree because immediately prior to the statement, the police entered Harris’s home without a warrant and without Harris’s consent and arrested him, in violation of Payton v. New York, 445 U.S. 573 (1980). Harris, 495 U.S. at 16. … instead of being factually similar to Harris, this case is remarkably similar to Dunaway v. New York, 442 U.S. 200 (1979), in which the Supreme Court excluded a post-Miranda confession because the police illegally seized the defendant without probable cause almost immediately before the statement was made. Id. at 202-07. The Court determined that seizing Dunaway and taking him to the police station for questioning without probable cause was a Fourth Amendment violation, and deemed it necessary to determine whether the connection between the constitutional violation and the incriminating statement was sufficiently attenuated to warrant its admission.

( We review the voluntariness of a confession de novo and the factual

findings underlying a voluntariness determination for clear error. United States

v. Bell, 367 F.3d 452, 460-61 (5th Cir. 2004). A finding is clearly erroneous if the

reviewing court is left with “the definite and firm conviction that a mistake has been committed.” United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1347 (5th Cir. 1994) (internal citation and quotation marks omitted). In determining whether a defendant has validly waived his Miranda rights, we must look at the totality of the circumstances that surround the interrogation. United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). If, under the totality of the circumstances, the statement results from a free and rational choice, then the statement is voluntary. Bell, 367 F.3d at 461. A defendant’s waiver of his Miranda rights is effective only if the relinquishment of the right to remain silent is free of “intimidation, coercion, or deception.” United States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005).

( United States v. Nanda, __ F.3d __ (5th Cir. Aug. 10, 2017)(16-11135):

Atul’s counsel vigorously objected to the letter’s entry into evidence, arguing that its admission would violate Atul’s Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the Supreme Court held that admission of a codefendant’s confession at a joint trial where that codefendant does not take the stand violates the other defendant’s Sixth Amendment right of confrontation. Id. at 127–28. The Court later qualified Bruton’s scope in Richardson v. Marsh, 481 U.S. 200 (1987). Richardson explained that Bruton created a “narrow exception,” and held that admission of a confession did not violate the Sixth Amendment where “the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial.” Id. at 207, 208. The Court further explained that, where the codefendant’s confession does not directly reference the defendant, a limiting instruction to the jury will further help mitigate against any confrontation issues. See id. at 208; see also United States v. Jobe, 101 F.3d 1046, 1067 (5th Cir. 1996) (“[T]he admission of a nontestifying defendant’s confession is permissible if the trial court gives a proper limiting instruction.”). Thus, under Richardson, “an indirect reference to a co-defendant is not enough to bring a statement within the proscription of Bruton.” United States v. Restrepo, 994 F.2d 173, 187 (5th Cir. 1993). “Bruton is not violated unless [the codefendant’s] statement directly alludes to [the defendant] . . . .” Id. at 186; see also United States v. Webster, 734 F.2d 1048, 1054 n.6 (5th Cir. 1984) (“[T]his Court has held consistently that the Bruton rule is not violated unless a co-defendant’s statement directly alludes to the complaining defendant. . . . This is true, even if the evidence makes it apparent that the defendant was implicated by some indirect references.”). The district court conducted an extensive hearing on the letter’s admissibility. It ultimately concluded that, because the reference to “Dibon” in the letter could have referred to a number of different Dibon employees and not to Atul specifically, a limiting instruction would be satisfactory to avoid any Sixth Amendment concerns. Accordingly, the district court admitted the letter and expressly instructed the jury three times not to consider any of its contents in regard to Atul.

There is no allegation that the Government attempted to use the letter against Atul at any point during the trial. Because Atul preserved his Bruton objection below, we review the admission of the letter for abuse of discretion, subject also to harmless error analysis. See United States v. Powell, 732 F.3d 361, 376 (5th Cir. 2013); United States v. Walker, 148 F.3d 518, 522 (5th Cir. 1998), abrogated on other grounds by Texas v. Cobb, 532 U.S. 162 (2001 We agree with the district court: the letter did not “directly allude” to Atul, and so admitting it did not violate his Sixth Amendment right of confrontation. Restrepo, 994 F.2d at 187. Atul contends that the reference to “Dibon” was in effect a direct allusion to him personally, because the Government repeatedly stressed that Jay and Atul were the central figures in Dibon’s operation. But there were a number of other Dibon employees involved in the benching scheme; “Dibon” in the letter could have referred to any of them. Atul’s argument would require us to “link” the letter “with evidence introduced later at trial”—precisely what the Supreme Court instructed not to do in Richardson. Richardson, 481 U.S. at 208. Accordingly, admitting the letter did not violate Atul’s rights. We note further that, even were we to conclude that admitting the letter was error, such error would be harmless. The other evidence against Atul presented at trial was overwhelming, and included testimony from multiple Dibon employees directly implicating Atul in the benching scheme. “It is well established that a Bruton error may be considered harmless when, disregarding the co-defendant’s confession, there is otherwise ample evidence against a defendant.” Powell, 732 F.3d at 379. That is true here.

( Pre-Arrest, Pre-Miranda Statements. The U.S. Supreme Court has agreed to

decide whether jurors can consider a prosecutor’s remark about a client’s pre-arrest, pre-Miranda silence. Salinas v. Texas, (12-246 January 11, 2013). Texas and the Fifth Circuit currently permit such prosecutor arguments. United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996).

( Violation of Miranda and Consent Search. United States v. Gonzales-Garcia, __ F.3 __ (5th Cir. Feb. 15, 2013)(11-41365): We have suggested that a request for consent is not an “interrogation” capable of violating the Edwards rule. (Note: United States v. Stevens, 487 F.3d 232, 242, 243 n.3 (5th Cir. 2007); see also Montejo, 556 U.S. at 795 (explaining that Edwards does not apply to “noninterrogative types of interactions between the defendant and the State”); cf. United States v. Daughenbaugh, 49 F.3d 171, 174 (5th Cir. 1995) (“A handwriting sample is nontestimonial evidence beyond the

scope of the right against self-incrimination. The bare request for a sample therefore does not implicate Edwards.”).) The issue need not detain us, however, because even if there was an Edwards violation, suppression would be inappropriate. The critical point here is that Gonzalez seeks only suppression of marijuana. A violation of the prophylactic Miranda rule does not require “suppression of the [nontestimonial] physical fruits of the suspect’s unwarned but voluntary statements.” United States v. Patane, 542 U.S. 630, 634 (2004) (plurality opinion); id. at 645 (Kennedy, J., concurring) (“nontestimonial”). Nor does a violation of Edwards’s “second layer of prophylaxis.” McNeil v. Wisconsin, 501 U.S. 171, 176 (1991); see United States v. Cannon, 981 F.2d 785, 789 (5th Cir. 1993) (“We have held that the derivative evidence doctrine is not triggered by an Edwards violation.”); United States v. Cherry, 794 F.2d 201, 208 (5th Cir. 1986). … The final issue is whether the conceded Miranda violation renders involuntary Gonzalez’s subsequent consent to the search. Gonzalez appears to argue that the government used his unwarned confession to obtain his consent, making his consent involuntary. No one disputes that if his consent was involuntarily given, the marijuana must be suppressed.. Without consent, the warrantless search was unlawful. If the search was unlawful, the taint of that illegality had not “dissipate[d]” by the time agents found the marijuana. Wong Sun v. United States, 371 U.S. 471, 487 (1963). …Gonzalez appears to argue that consent is coerced whenever police use an unwarned statement to obtain consent. But a categorical rule is inconsistent with the multi-factor, holistic approach to assessing voluntariness that this Court and the Supreme Court have endorsed. (Note: See Schneckloth, 412 U.S. at 227 (explaining that voluntariness “is a question of fact to be determined from the totality of all the circumstances.”); Watson, 423 U.S. at 424 (extending Schneckloth to custodial interrogation); Solis, 299 F.3d at 436 n.21 (describing six factors).) Gonzalez’s position appears to be an analog of the “cat out of the bag” theory rejected in Oregon v. Elstad, See Schneckloth, 412 U.S. at 227 (explaining that voluntariness “is a question of fact to be determined from the totality of all the circumstances.”); Watson, 423 U.S. at 424 (extending Schneckloth to custodial interrogation); Solis, 299 F.3d at 436 n.21 (describing six factors).. Just as a confession following an unwarned confession may be voluntary, consent following an unwarned confession may be voluntary. (Note: This is so notwithstanding the pressures inherent in custodial interrogation. See

Patane, 542 U.S. at 634, 635 n.1 (plurality opinion); Elstad, 470 U.S. at 303, 307, 315–16.) Accordingly, this argument is without force.

Confrontation Clause Violation

( Latest 5th Circuit Confrontation Clause Review Case (2017).

United States v. Kizzee, _ F.3d __ (5th Cir. Dec. 15, 2017)(16-20397):

Kizzee properly raised a Confrontation Clause objection, thus preserving his claim of error. See United States v. Polidore, 690 F.3d 705, 710 (5th Cir. 2012). This Court “review[s] the alleged violation of the Confrontation Clause de novo, subject to a harmless error analysis.” Id. (citing United States v. Bell, 367 F.3d 452, 465 (5th Cir.

The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.

The Confrontation Clause bars the admission of “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had [] a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). The Supreme Court has defined “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51 (alteration in original) (citation omitted). But “the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’” Williams v. Illinois, 132 S. Ct. 2221, 2235 (quoting Crawford, 541 U.S. at 59–60 n.9). “Police officers cannot, through their trial testimony, refer to the substance of statements given to them by nontestifying witnesses in the course of their investigation, when those statements inculpate the defendant. When the statement from an out-ofcourt witness is offered for its truth, constitutional error can arise.” Taylor v. Cain, 545 F.3d 327, 335 (5th Cir. 2008). We thus examine three issues: first, whether the prosecutor’s questioning, combined with Detective Schultz’s testimony, introduced a testimonial statement; second, whether the statement was offered for its truth, i.e., to show Kizzee’s guilt; and third, whether Brown was unavailable to testify and Kizzee had a prior opportunity to cross examine him.

1. Testimonial Statement We begin our analysis by examining whether the court admitted the testimonial statement of a witness who did not appear at trial. Crawford, 541 U.S. at 53–54. “[A] statement is testimonial if its ‘primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution.’” Duron–Caldera, 737 F.3d at 992–93 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). Brown’s statements made to Detective Schultz while under interrogation by law enforcement are unquestionably testimonial hearsay. See Crawford, 541 U.S. at 53 (classifying “interrogations by law enforcement” as testimonial hearsay). In Crawford, the Court explained that “[s]tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” Crawford, 541 U.S. at 52; see also Taylor, 545 F.3d at 335–36. The Court reinforced this view in Davis where it stated that “[t]he product of [police] interrogation, whether reduced to a writing signed by the declarant or embedded in the memory . . . of the interrogating officer, is testimonial.” 547 U.S. at 826.

Instead, the Government argues that no statement made by Brown was ever

introduced at trial, and Detective Schultz testified only as to his own observations. After objecting to Detective Schultz’s testimony regarding Brown’s interrogation based on hearsay and the Confrontation Clause, counsel approached the bench to discuss Brown’s status as a nontestifying witness. The prosecutor justified his questioning of Schultz by arguing that “hearsay is an out-of-court statement. You are not going to hear this witness utter one single word that Carl Brown replied in response to any of the questions. It can’t possibly be hearsay.” The Government adopts this argument on appeal, arguing that “[n]o statement made by Brown was offered for its truth;” the only testimonial statements offered to the jury were Detective Schultz’s own statements.

This Court has recognized that police testimony about the content of statements given to them by witnesses are testimonial under Crawford; officers cannot refer to the substance of statements made by a nontestifying witness when they inculpate the defendant. See Taylor, 545 F.3d at 335; Favre v. Henderson, 464 F.2d 359, 362 (5th Cir. 1972). Where an officer’s testimony leads “to the clear and logical inference that out-of-court declarants believed and said that [the defendant] was guilty of the crime charged,” Confrontation Clause protections are triggered. Favre, 464 F.2d at 364. In Favre, we reasoned that “[a]lthough the officer never testified to the exact statements made to him by the informers, the nature of the statements . . . was readily inferred.” Id. at 362. Officer testimony regarding statements made by witnesses is thus inadmissible where it allows a jury to reasonably infer the defendant’s guilt. Similarly, a prosecutor’s questioning may introduce a testimonial statement by a nontestifying witness, thus implicating the Confrontation Clause. See United States v. Johnston, 127 F.3d 380, 393–95. (5th Cir. 1997); Favre, 464 F.2d at 364; c.f. Gochicoa v. Johnson, 118 F.3d 440, 445–46 (5th Cir. 1997), cert denied, 522 U.S. 1121 (1998). This is true where “the jury would reasonably infer that information obtained in an out of court conversation between a testifying police officer and an informant . . . implicated a defendant in narcotics activity.” Johnston, 127 F.3d at 395.

2. Statement Offered for its Truth Next, we consider whether Brown’s statements introduced at trial through Detective Schultz’s testimony were offered for their truth: to prove Kizzee’s guilt of the charged crime. … Testifying officers may provide context for their investigation or explain “background” facts. See United States v. Smith, 822 F.3d 755, 761 (5th Cir. 2016). Such out-of-court statements are not offered for the truth of the matter asserted therein, but instead for another purpose: to explain the officer’s actions. See Castro–Fonseca, 2011 WL 1549213, at *2; United States v. Carrillo, 20 F.3d 617, 619 (5th Cir. 1994). These statements often provide necessary context where a defendant challenges the adequacy of an investigation. But absent such claims, there is a questionable need for presenting out-of-court statements because the additional context is often unnecessary, and such statements can be highly prejudicial. See 2 McCormick on Evidence § 249 (7th ed. 2013) (citation omitted) (“The need for this evidence is slight, and the likelihood of misuse great.”). Statements exceeding the limited need to explain an officer’s actions can violate the Sixth Amendment—where a nontestifying witness specifically links a defendant to the crime, testimony becomes inadmissible hearsay. See Taylor, 545 F.3d at 335; Johnston, 127 F.3d at 394 (“The more directly an out-of-court statement implicates the defendant, the greater the danger of prejudice.”); United States v. Evans, 950 F.2d 187, 191 (5th Cir. 1991); United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir. 1985); United States v. Gomez, 529 F.2d 412, 416-17 (5th Cir. 1976); see also United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). Questions by prosecutors can also trigger Confrontation Clause violations. See Johnston, 127 F.3d at 402–03; Favre, 464 F.2d at 362–64; Meises, 645 F.3d at 21–23. A prosecutor may violate the Confrontation Clause by introducing an out-of-court statement, even indirectly, if offered for its truth by suggesting a defendant’s guilt. See Johnston, 127 F.3d at 394–95. In Hernandez, 750 F.2d at 1257–58. In this case, the prosecutor’s questions and Detective Schultz’s subsequent testimony exceeded the scope required to explain Detective Schultz’s actions.

…The fact that a defendant could call a witness cannot fairly constitute a prior opportunity to cross-examine that witness. Otherwise, a prosecutor could introduce hearsay statements by any available witness merely by proposing that the defense could call them instead. Even if Kizzee had a prior opportunity to examine Brown, Brown was not unavailable as defined by the Federal Rules of Evidence. See Fed. R. Evid. 804(a) (listing criteria for being unavailable as a witness). In fact, the Government concedes that “Brown was not unavailable as a witness. The United States had subpoenaed Brown, but elected not to call him.” The Government did not offer any reason why it did not elect to call Brown as a witness, only that it was “not interested in having [Brown].” Finally, a police officer’s testimony is no substitute for a nontestifying declarant and does not cure a Sixth Amendment violation. See Davis, 547 U.S. at 826; Ocampo, 649 F.3d at 1113. Thus, we find that Kizzee’s Sixth Amendment right to confront adverse witnesses at trial was violated by Detective Schultz’s testimony when the prosecutor implicitly introduced Brown’s out-of-court statements.

( United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. 2009):

This court reviews a Confrontation Clause challenge de novo. United States v.

Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008). Such claims, however, are

subject to harmless error review. Id.; see also United States v. Jimenez, 464 F.3d 555,

558 (5th Cir. 2006); United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004).

United States v. Octave, 575 F. App’x 533, 537 (5th Cir. 2014) (citing United States v. Acosta, 475 F.3d 677, 680 (5th Cir.2007)).

III. Whether There Was a Violation of the Confrontation Clause

The Confrontation Clause of the Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amend. VI. In Crawford v. Washington, 541 U.S. 36, 53–54, 68 (2004), the Supreme Court held that the right to confrontation bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” See also United States v. Harper, 527 F.3d 396, 401 (5th Cir. 2008); United States v. Flores, 286 F.App’x 206, 214 (5th Cir. 2008). There is no dispute that the playing of the videotaped deposition constituted the admission of testimonial statements of a witness who did not appear at trial. At issue in this case is whether Garay-Ramirez was “unavailable to testify” at Tirado-Tirado’s trial, and whether Tirado-Tirado had a prior opportunity to cross-examine Garay-Ramirez. 2

A. Unavailability

A witness is “unavailable” for Confrontation Clause purposes if the “prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Ohio v. Roberts, 448 U.S. 56, 74 (1980) (quoting Barber v. Page, 390 U.S. 719, 724–725 (1968)), overruled on other grounds by Crawford, 541 U.S. 36.3 “The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness.” Id. (quoting California v. Green, 399 U.S. 149, 189 n.22 (1970) (Harlan, J., concurring)). “The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), ‘good faith’ demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.” Roberts, 448 U.S. at 74. “Because of the importance our constitutional tradition attaches to a defendant’s right to confrontation, the ‘good faith effort’ requirement demands much more than a merely perfunctory effort by the government,” but “[t]he inevitable question of precisely how much effort is required on the part of the government to reach the level of a ‘good faith’ and ‘reasonable’ effort eludes absolute resolution applicable to all cases.” United States v. Allie, 978 F.2d 1401, 1406, 1408 (5th Cir. 1992). The prosecution bears the burden of establishing that a witness is unavailable. Roberts, 448 U.S. at 74. 4

3 Crawford did not change the definition of “unavailability” for Confrontation Clause

purposes; pre-Crawford cases on this point remain good law.

4 This Court treats the Confrontation Clause unavailability inquiry as identical to the

unavailability inquiry under Rule 804(a)(5) of the Federal Rules of Evidence, which

defines a witness as being unavailable when he is “absent from the hearing and the

proponent of [his] statement has been unable to procure [his] presence by process or

other reasonable means.” See Calderon–Lopez, 268 F.App’x at 288; Aguilar-Tamayo,

300 F.3d at 565 (“Unavailability must ordinarily also be established to satisfy the

requirements of the Confrontation Clause.”).

( Certiorari has been granted on this issue:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-

court testimony of a supervisor or other person who did not perform or

observe the laboratory analysis described in the statements.

Bullcoming v. New Mexico, No. 09=10876.  131 S. Ct. 62 (2010)(Analysis of DWI blood draw by gas chromatograph)

( Testimony Not Used for Truth of Matter Assert is Not Subject to Confrontation.

“[T]he Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Instead, to constitute a Confrontation Clause violation, the statement must be used as hearsay—in other words, it must be offered for the truth of the matter asserted. United States v. Polidore, 690 F.3d 705, 719 n.15 (5th Cir. 2012); see also United States v. Tolliver, 400 F. App’x 823, 830 (5th Cir. 2010) (“Statements not offered for their truth, even if testimonial in nature, are not subject to [the protections of the Confrontation Clause].”) (citing United States v. Holmes, 406 F.3d 337, 349 (5th Cir. 2005)).

Confrontation--Certificate of Non-Existence of Record

( From United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. Jan. 29, 2010)(08-40809).

Fifth Circuit overrules prior case that a Certificate of a Non-Existence of a Record (CNR)

was not testimonial. United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005),

and holds that a CNR is testimonial in an illegal immigration case. However, since defendant failed to object that his confrontation rights were violated, error was harmless.

Id., at 584. Accord: United States v. Ceballos-Zungia, (09-40587)(June 4, 2010) (unreported).

Confrontation—Laboratory Report

( Laboratory report is testimonial and subject to confrontation. Melendez–Diaz v. Massachusetts, 557 U.S. —, —, 129 S. Ct. 2527, 2532 (2009); United States v. Rose,

2009 WL 3683127, 587 F.3d 695 (5th Cir. Nov. 6, 2009)(08-10813).

( If there is no objection to laboratory report on confrontation grounds, matter is reviewed for plain error and there is no plain error. United States v. Rose, 587 F.3d 695 (5th Cir. Nov. 6, 2009)(08-10813).

( U.S. Supreme Court follow-on case to Melendez-Diaz is Virginia v. Briscoe (07-11191).

( On January 25, 2010, the Supreme Court ruled per curiam: We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts.

Confrontation through Stipulation.

( A D may waive his right to confrontation by stipulating to a witness’ testimony.

United States v. Stephens, 609 F.2d 230 (5th Cir. 1980)(D on record for the waiver). Government bears burden of proof to show proper waiver. United States v. Jonson, 954 F.2d 1015, 1020 (5th Cir. 1992); United States v. Ceballos, __ F.3d __ (5th Cir. June 16, 2015)(13-50786)(stipulation made by counsel; no comment by D)( this Court has found a valid waiver of the right of confrontation without evidence that the defendant himself expressed agreement with the stipulation. See United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999), abrogated on other grounds by United States v. Vargas– Ocampo, 747 F.3d 299 (5th Cir. 2014) (en banc) accord. See United States v. Plitman, 194 F.3d 59, 64 (2d Cir. 1999).) Crawford did not change the contours of confrontation-waiver law

United States v. Holmes, 620 F.3d 836, 842–43 (8th Cir. 2010) (“Crawford did not change the rule that a defendant can waive his right to confront witnesses by opening the door to the admission of evidence otherwise barred by the Confrontation Clause” (internal quotation marks omitted)); United States v. Lopez–Medina, 596 F.3d 716, 733 (10th Cir. 2010).

Confrontation—911 Calls.

Massive discussion upholding 911 as nontestimonial and as present sense impression.

United States v. Polidore, __ F.3d __ (5th Cir. Aug. 13, 2012)((09-40896).

Confrontation and Sentencing

( Contrary to Nunez’s contention, Crawford does not extend a defendant’s confrontation rights to sentencing proceedings. United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006). The information in the PSR was obtained from debriefings of cooperating sources and co-conspirators, surveillance operations, consensual monitored telephone conversations, wire intercepts, and multiple interviews with the agent in charge of the investigation. Thus, the PSR was supported by an adequate evidentiary basis with sufficient indicia of reliability. See United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014); United States v. Gaytan, 74 F.3d 545, 557-58 (5th Cir. 1996). A

Confession

( Good review at United States v. Seale, 600 F.3d 473 (5th Cir. March 12, 2010)(07-60732).

Confrontation Clause

( Alleged violations of the Confrontation Clause of the Sixth Amendment are reviewed de novo, but are subject to harmless error analysis. United States v. Jimenez, 464 F.3d 555, 558-559 (5th Cir. 2006); United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004).*

Ordinarily a witness is considered to be a witness against a defendant for purposes of the Confrontation Clause only when his testimony is part of the body of evidence that a jury may consider in assessing his guilty. Cruz v. New York, 481 U.S. 186, 190 (1987).

* Circuits different on this issue. De Novo: The First, Fifth, Eighth, and Tenth Circuits have adopted the same approach. See, e.g., United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir. 2005); United States v. Jimenez, 464 F.3d 555, 558-559 (5th

Cir. 2006); United States v. Bentley, 561 F.3d 803, 808 (8th Cir. 2009), cert. denied, 130 S. Ct. 1275 (2009); United States v. Montelongo, 420 F.3d 1169, 1173 (10th

Cir. 2005). Six other circuits, by contrast—the Second, Third, Fourth, Sixth, Eleventh, and District of Columbia Circuits— take the same approach that CAAF does, applying

abuse-of-discretion review even when a restriction on the cross-examination of a prosecution witness is attacked on constitutional grounds. United States v. Franco, 484 F.3d 347, 353 (6th Cir. 2007). Cases from the other circuits in this group are to the same effect. See, e.g., United States v. Rosa, 11 F.3d 315, 335 (2d Cir. 1993); United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008); United States v. Shelton, 200 F. App’x

219, 221 (4th Cir. 2006). Petition for certiorari is sought on this conflict in Smith v.

United States, 68 M.J. 445 (C.A.A.F. 2010).

Consent Search

To satisfy the consent exception to the Fourth Amendment’s presumptive warrant requirement, “the government must demonstrate that there was (1) effective consent, (2) given voluntarily, (3) by a party with actual or apparent authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).

Conspirator

( Uncorroborated Conspirator. Thomas argues that the evidence was insufficient because it consisted of the uncorroborated testimony of various unreliable co-conspirators. We have repeatedly held that “a defendant may be convicted based upon the uncorroborated testimony of a co-conspirator.” United States v. Rasco, 123 F.3d 222, 229 (5th Cir. 1997). We will uphold a verdict on this basis “even if the witness is interested due to a plea bargain or promise of leniency, unless the testimony is incredible or insubstantial on its face.” United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).

( United States v. Medina, 161 F.3d 867, 872-73 (5th Cir. 1998) (“As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a co-conspirator . . . may be constitutionally sufficient evidence to convict.”

Conspiracy.

( USSG 2X1.1. United States v. Gonzales, __ F.3d ___, (5th Cir. May 26, 2011)(10-20238). Defendant was convicted of Hobbs Act violation via robbery and urged application or robbery guideline rather than conspiracy guideline in USSG 2X1.1.

This circuit has held already in United States v. Villafranca, 260 F.3d 374, 381 (5th Cir. 2001), that § 2X1.1 applies to extortion conspiracies under the Hobbs Act. One of our sister circuits held in United States v. Amato, 46 F.3d 1255, 1259-63 (2d Cir. 1995), that § 2X1.1 applies to Hobbs Act robbery conspiracies, and other circuits, albeit in unpublished opinions, have adopted that same approach. See, e.g., United States v. Mershon, 322 F. App'x. 232, 236 (3d Cir. 2009); United States v. Joost, No. 95-2031,

1996 WL 480215, *11-12 (1st Cir. Aug. 7, 1996).

( Comment (4) of 2X1.1reduces offense level if the intended offense is not completed.

Interpreted in various cases: United States v. John, 597 F.3d 263 (5th 2015) and United States v. Thomas, 585 F. App’x 869, 860 (5th Cir. 2014), cert. denied, 135 S. Ct. 1750 (2015)(exception does not apply because involving the completed offense of the possession of stolen mail, which likewise does not require actual loss as an element). Most recent case: United States v. Popa, ___ F.3d ___ (5th Cir. Aug 25, 2016)(15-11153).

( Instruction of when part of the conspiracy is while D is under Age 18. United States v. Harris, __ F.3d __ (5th Cir. Jan. 10, 2014)(12-31046): “The circuits are split on whether the district court must instruct the jury to disregard evidence of pre-eighteen conduct when assessing guilt” in a continuing crime, such as a conspiracy. United States v. Tolliver, 61 F.3d 1189, 1199–1200 (5th Cir. 1995), vacated on other grounds sub nom. Moore v. United States, 519 U.S. 802 (1996). Although we acknowledged this circuit split in Tolliver, we left unanswered the question of whether the failure to give such a limiting instruction is error. This Court reasoned that, because the “posteighteenth birthday evidence was sufficient to support the jury’s verdict,” the defendant could not establish plain error. Id. at 1200–01. Arthur argues that his case is distinguishable from Tolliver, because, in his case, the post-eighteen

conduct is insufficient to support the verdict. But, as we have previously discussed, see supra Part III(A)(2), the jury saw a great deal of post-eighteen evidence on which it could have based Arthur’s guilty verdict. Thus, Arthur’s case is not factually distinguishable from Tolliver. We therefore hold that the district court’s failure to give an instruction

limiting the jury’s reliance on Arthur’s juvenile conduct was not plainly erroneous. Under Henderson v. United States, 133 S. Ct. 1121 (2013), “a substantive legal question that was unsettled at the time the trial court acted foreclose[s] the possibility that an error could have been ‘plain’” unless it . . .becomes settled by the time of appellate review. Id. at 1124–25. Here, the substantive legal question of whether the district court was required to instruct the jury to disregard Arthur’s pre-eighteen conduct was unanswered at the time of the trial. This Court still has not resolved this question, and given the sufficiency of the evidence of post-eighteen conduct, we need not

answer it today. Thus, the district court did not plainly err in failing to give

this instruction.

( Multiple Conspiracies. United States v. Bowen, __ F.3d __ (5th Cir. March 29, 2016)(14-40654): Salazar and Bowen argue that their convictions must be reversed because the trial court failed to give a multiple conspiracies jury instruction. Where, as here, the defense requested a jury instruction and the request was denied, we review the denial for abuse of discretion. United States v. McClatchy, 249 F.3d 348, 356 (5th Cir. 2001). The court affords “substantial latitude to the district court in describing the law to the jury.” United States v. Barnes, 803 F.3d 209, 222 (5th Cir. 2015).

A multiple conspiracies instruction “is generally required where the indictment charges several defendants with one . . . overall conspiracy, but the proof at trial indicates that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment.” United States v. Castaneda-Cantu, 20 F.3d 1325, 1333 (5th Cir. 1994) (second emphasis added). Salazar and Bowen argue that Bowen was in only a separate conspiracy unrelated to the drug dealing activities of Salazar and other co-conspirators because Bowen acted “independently” of the other conspirators. Ordinarily, district courts should give a multiple conspiracies instruction if there is some evidence that could support a reasonable jury’s finding that the defendant was in only an unrelated conspiracy. The government argues that here there is no such evidence that Bowen was in only an unrelated conspiracy. Assuming, arguendo, that there was such evidence, any error was harmless because: (1) the jury was given a detailed conspiracy instruction requiring them to find that Bowen was a member of the charged conspiracy; (2) Bowen’s counsel was free to, and did, argue that Bowen was not part of the charged conspiracy; and (3) the evidence against Bowen was overwhelming.

( Drug Conspiracy. The crime of conspiracy to possess a controlled substance does not require actual possession of the controlled substance. See United States v. Ballard, 586 F.2d 1060, 1066 (5th Cir. 1978). Rather, “[t]he crime of conspiracy is complete upon the formation of the illegal agreement.” United States v. Pietri, 683 F.2d 877, 879 (5th Cir. 1982). To that end, recorded phone conversations between Moody and Risher showed the existence of an agreement to distribute cocaine for profit. See United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998).

Conspiracy Exception to Hearsay Rule

( The conspiracy for the purpose of the hearsay rule exclusion of Fed. R. Evid.801(d)(2)(E) need not be unlawful; the statement may be made in furtherance of a lawful joint undertaking. United State v. Nelson, 732 F.3d 504 (5th Cir. 2014).

Conspiracy and Pinkerton Instruction:

United States v. Danhach, _ F.3d __ (5th Cir. March 9, 2016)(14-20339):

See Pinkerton v. United States, 328 U.S. 640, 645–47 (1946); see also United States v. Thomas, 348 F.3d 78, 84–85 (5th Cir. 2003) (approving a Pinkerton instruction essentially identical to the one given here). Under Pinkerton, “a conspirator can be found guilty of a substantive offense committed by a co-conspirator and in furtherance of the conspiracy, so long as the co-conspirator’s acts are reasonably foreseeable.” United States v. Mata, 491 F.3d 237, 242 n.1 (5th Cir. 2007).

( United States v. Sanjar, __ F.3d ___ (5th Cir. March 27, 2017)(15-20025):

The district court’s Pinkerton instruction said: “A conspirator is responsible for offenses committed by other conspirators if the conspirator was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of, or as a foreseeable consequence of, the conspiracy.”

Sanjar argues the disjunctive language is error as Pinkerton liability applies only to crimes committed in furtherance of the conspiracy that were reasonably foreseeable. Many of our cases, both recent and old, agree with Sanjar’s formulation. See, e.g., United States v. Danhach, 815 F.3d 228, 235 (5th Cir. 2016) (“Under Pinkerton, a conspirator can be found guilty of a substantive offense committed by a co-conspirator and in furtherance of the conspiracy, so long as the co-conspirator’s acts are reasonably foreseeable.” (internal quotation marks omitted)); United States v. Heffington, 682 F.2d 1075, 1083 (5th Cir. 1982) (citing Pinkerton to require both in furtherance of and foreseeability). That is consistent with Pinkerton itself. 328 U.S. at 647– 48 (noting the doctrine would not apply “if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement”).

Somewhere along the way, our case law departed from this understanding and began omitting “foreseeability” as a requirement for Pinkerton liability; it was enough that the act was committed in furtherance of the conspiracy. See, e.g., United States v. Thomas, 348 F.3d 78, 84–85 (5th Cir. 2003); United States v. Dean, 59 F.3d 1479, 1490 n.18 (5th Cir. 1995). The 2001 Pattern Jury Instructions thus included the disjunctive instruction given in this case. PATTERN JURY INSTRUCTIONS: FIFTH CIRCUIT (CRIMINAL) § 2.22 (2001). When that version of the pattern charges was in effect, we upheld that instruction given its support in some of our caselaw while recognizing that it departed from the traditional understanding of Pinkerton and created a circuit split. United States v. Armstrong, 619 F.3d 380, 387 n.4 (5th Cir. 2010) (citing United States v. Gonzalez, 570 F.3d 16, 26 n.8 (1st Cir. 2009)).

Noting the concerns raised in Armstrong, the current Pattern Jury Instructions—issued after this case was tried—restore “foreseeability” and “in furtherance of” as independent requirements. PATTERN JURY INSTRUCTIONS: Case: 15-20025 Document: 00513928172 Page: 19 Date Filed: 03/27/2017 No. 15-20025 20 FIFTH CIRCUIT (CRIMINAL) § 2.17 (2015). The better course is for district courts to follow the updated pattern and instruct the jury in the conjunctive as a finding of foreseeability mitigates due process concerns that sometimes arise with Pinkerton’s vicarious liability. See generally United States v. Alvarez, 755 F.2d 830, 849–50 (11th Cir. 1985).

Nonetheless, using the 2001 Pattern Jury Instruction here was not reversible error. First off, Armstrong rejected a challenge to that very instruction. 619 F.3d at 387. And importantly, foreseeability is usually not disputed in a case like this one in which Pinkerton liability is extending only to the substantive offense that is the object of the conspiracy. United States v. Wynter, 379 F. App’x 841, 848–49 (11th Cir. 2010) (distinguishing cases “in which the substantive crime that is the subject of the Pinkerton charge is also one of the primary goals of the alleged conspiracy” from “cases in which the substantive crime is not a primary goal of the alleged conspiracy, but directly facilitates the achievement of one of the primary goals”). In other words, how could the payment of kickbacks not be foreseeable to a participant in a kickback conspiracy? Foreseeability is more often an issue when the substantive offense for which Pinkerton liability is being sought is not an object of the conspiracy, such as when prosecutors are seeking to hold drug trafficking conspirators liable for firearms and murder offenses committed by fellow dealers. See, e.g., United States v. Gonzales, 841 F.3d 339, 351–53 (5th Cir. 2016). Failure to require a foreseeability finding is not reversible error. 2.

Although framed in terms of a challenge to the Pinkerton instruction, Sanjar’s Wharton’s Rule argument is really about whether conspiracy to violate the Anti-Kickback Statute and an actual violation of that law can be punished as separate crimes. The general rule is that “a conspiracy and the substantive offense that is its immediate end are discrete crimes for which separate sanctions may be imposed.” Iannelli v. United States, 420 U.S. 770, 771 (1975). Wharton’s Rule, named after the nineteenth century treatise writer who summarized the doctrine, is an exception. Id. at 773. It provides that when the substantive crime requires more than one actor (adultery is the anachronistic example Wharton cites), conspiracy should not be additional punishment to a crime that already requires concerted action.11 Id. at 772–74 (citing 2 F. WHARTON, CRIMINAL LAW § 1604, p. 1862 (12th ed. 1932)). The narrow rule is implicated “[o]nly when it is impossible under any circumstances to commit the substantive offense without cooperative action.” United States v. Payan, 992 F.2d 1387, 1390 (5th Cir. 1993) (citing Gebardi v. United States, 287 U.S. 112, 122 (1932)). That is not the case with the Anti-Kickback Statute. One can violate it just for soliciting a kickback. 42 U.S.C. § 1320a-7b(b)(1). Convictions for both conspiracy to violate the Anti-Kickback Statute and actually violating that law are allowed.

VI. In response to the instructions it was given, the jury returned guilty verdicts on all counts except for the kickback charge in Count Nine. Defendants challenge the sufficiency of the evidence to support these counts. We must affirm the verdict unless no rational juror could have found guilt beyond a reasonable doubt. Njoku, 737 F.3d at 62 (instructing that we view the evidence “in the light most favorable to the government,” draw all inferences “in support of the jury’s verdict,” and “ask whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”). 11 As is often the case, there is an exception to this exception. Wharton’s Rule is just a “judicial presumption, to be applied in the absence of legislative intent to the contrary.” United States v. Payan, 992 F.2d 1387, 1391 (5th Cir. 1993) (quoting Iannelli, 420 U.S. at 782) (holding that Congress intended for conspiracy and aiding and abetting to be separately punishable). Case: 15-20025 Document: 00513928172 Page: 21 Date Filed: 03/27/2017 No. 15-20025 22 A. The defendants convicted of the health care fraud offenses—all but Manney, who just faced kickback charges—though separately challenging their individual convictions raise similar legal issues. To be guilty of health care fraud, a defendant must have knowingly and willfully executed a scheme to defraud a government health care program like Medicare. 18 U.S.C. § 1347; United States v. Willett, 751 F.3d 335, 339 (5th Cir. 2014). Willfully joining with another to engage in such a scheme, with awareness of the agreement’s unlawful purpose, is a conspiracy to commit health care fraud. 18 U.S.C. § 1349; Njoku, 737 F.3d at 63. Echoing their argument concerning the admissibility of patient testimony about mental conditions, defendants assert that expert testimony from a doctor who reviewed the patient files is required for a jury to find that the PHP treatment was not medically necessary. As an initial matter, this argument focuses on only one of the theories the government advanced for why the PHP billings were fraudulent. It ignores the extensive evidence showing that PHP treatment, whether needed or not, was not being provided in the “Mickey Mouse” facility. That alone supports the findings of health care fraud. But we also do not see any basis for a categorical rule that expert testimony is required for a jury finding of medical necessity. Defendants cite medical malpractice cases for such a requirement. In addition to those being state law civil cases, medical malpractice focuses on whether a doctor properly treated a patient’s condition, not on whether the patient actually had the condition. It makes sense that expert testimony from physicians is needed for the former. But on the latter question, the patient certainly has something to offer. Just about any visit to a doctor begins with self-reporting: What are your symptoms? When did they start? How severe is the pain?

Constitutional Validity of Criminal Statute

( Constitutional Attack. The Fifth Circuit reviews de novo a preserve challenge to the constitutionality of a criminal statute. United States v. Howard, 755 F.3d 414, 419

(5th Cir. 2014).

Constructive Amendment

( From United States v. Broadnax, 595 F.3d 565 (5th Cir. Jan. 26, 2010)(08-10494), revised, 601 F.3d 336 (5th Cir. 2010):

A criminal defendant has a Fifth Amendment right to be “tried only on charges presented in a grand jury indictment.” United States v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988). Only a grand jury has the power to amend an indictment. See id. “A jury charge constructively amends an indictment . . . if it permits the jury ‘to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.’” United States v. Daniels, 252 F.3d 411, 413-14 (5th Cir. 2001) (citing Chandler, 858 F.2d at 257). The accepted test is that a “constructive amendment occurs if the jury is permitted to convict on an alternative basis permitted by the statute but not charged in the

indictment.” Id. at 414 (internal quotation marks and citation omitted). … The issue is whether the indictment is to be read as requiring proof beyond a reasonable doubt that Broadnax possessed a “firearm,” as that term is defined under § 921(a)(3), that was “in and affecting interstate commerce,” or whether it requires proof that Broadnax possessed the specific firearm named, the “RG Industries, Model RG 31, .38 caliber revolver, serial number 019420,” and that it was “in and affecting interstate commerce.”

( Supreme Court Case: United States v Stirone, 361 U.S. 212, 213-14 (1960). We first consider the argument that the proof offered at trial by the government and the jury charge submitted by the district court permitted the jury to convict Wong and Bohuchot on theories that were not alleged in the indictment, thereby impermissibly constructively amending the indictment. The defendants rely on the Supreme Court’s seminal decision in Stirone v. United States, in which the indictment alleged that Stirone had unlawfully interfered with interstate commerce in sand. At trial the prosecution presented not only 5

evidence of interference with interstate commerce in sand but as to steel as well, and over the defendant’s objection, the trial court’s charge permitted the jury to convict based on a finding regarding either sand or steel. The Supreme Court held that this violated “the basic protection the grand jury was designed to afford” because it “subject[ed] the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.”

( Constructive Amendment and Harmless Error Test. United States v. Bohuchot,

__ F.3d __ (5th Cir. Nov. 9, 2010)(08-11090): The defendants failed to object to any of the evidence or arguments by the prosecution that they now urge constructively amended the indictment. They contend, however, that they preserved their contentions by objecting to the district court’s proposed instructions to the jury. … Prior to the Supreme Court’s decision in United States v. Olano, 507 U.S. 725 (1993). this 10 court had held that “[c]onstructive amendments are reversible per se.” United States v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988).Our post-Olano decisions, however, have concluded that plain error review applies even if there has been a constructive amendment. Although there is tension between plain error review and the ‘automatic reversal’ rule of Mize,” it is clear

in this Circuit that we have “reconciled [that tension] in favor of plain error review.” United States v. Dixon, 12 273 F.3d 636, 639 n.1 (5th Cir. 2001) (quoting United States

v. Daniels, 252 F.3d 411, 414 n.8 (5th Cir. 2001)); see also United States v. Scher, 601 F.3d 408,

411 (5th Cir. 2010); United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010); United

States v. Phillips, 477 F.3d 215, 221 (5th Cir. 2007); United States v. Reyes, 102 F.3d 1361,

1365 (5th Cir. 1996).

( United States v. Lynde, (5th Cir. June 9, 2011)(10-60554) “A constructive amendment occurs when the government changes its theory during trial so as to urge the jury to convict on a basis broader than that charged in the indictment, or when the government is allowed to prove an essential element of the crime on an alternative basis permitted by the statute but not charged in the indictment.” United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1998) (emphasis added) (quotation marks and citation omitted).

( “Elements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt. Sentencing factors, on the other hand, [here number of images of youth in pornography) can be proved to a judge at sentencing by a preponderance of the evidence.” United States v. O’Brien, 130 S.Ct. 2169, 2174 (2010) (internal citations omitted).

( Limitation on Cross-Exam and Confrontation. United States v. Ramirez, 2009 WL 1941283, (5th Cir. July 7, 2009)( 08-50598)(unreported)” Ramirez argues that the district court abused its discretion in limiting the cross examination of her codefendant regarding the co-defendant’s motivation for entering into a plea agreement and testifying against her … The Confrontation Clause is generally satisfied when the defendant has been “permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993) (internal quotation marks omitted). “The relevant inquiry is whether the jury had sufficient information to appraise the bias and motives of the witness.” United States v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993). Where the district court limits the cross examination of a witness, as in this case, the standard of review is for an abuse of discretion. United States v. Jimenez, 464 F.3d 555, 558- 59 (5th Cir. 2006). The only limitation on defense counsel’s cross examination of Ramirez’s codefendant was that counsel could not question the co-defendant about her exact sentencing range or about the exact sentence reduction she might receive in exchange for entering into a plea agreement and testifying against Ramirez. Defense counsel was otherwise at liberty to question the codefendant about her motives for entering into a plea agreement and for testifying against Ramirez, including the possibility of receiving a reduced sentence. The testimony elicited through cross examination was sufficient to appraise the jury of the codefendant’s possible motives for testifying against Ramirez. See Tansley, 986 F.2d at 886. Further, Ramirez has failed to show that a reasonable juror would have received a significantly different impression of her codefendant’s credibility if her exact sentencing range was divulged. See United States v. Davis, 393 F.3d 540, 547 (5th Cir. 2004). Accordingly, the district court did not abuse its discretion in limiting the scope of the cross examination.

( Limitations placed on cross-examination of government witness was well within trial court’s wide latitude. United States v. Templeton, 624 F.3d 215 (5th Cir. 2010).

Consecutive Sentencing

( Benitez-Salazar argues that by imposing this sentence on revocation of supervised release to run consecutively to a separate term of imprisonment, the district court imposed a sentence greater than necessary to meet the goals of 18 U.S.C. § 3553(a).

Because Benitez did not object on this basis below, we review for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008); United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). The district court had the authority, after consideration of the § 3553(a) factors, to order Benitez’s revocation sentence to run consecutively to the sentence imposed for his illegal reentry offense. See 18 U.S.C. § 3584(a), (b); see also United States v. Gonzalez, 250 F.3d 923, 925-29 (5th Cir. 2001). The policy statements in the Sentencing Guidelines also recommend the imposition of consecutive sentences. See U.S. Sentencing Guidelines Manual § 7B1.3(f), p.s. In addition, the district court gave reasons for its sentence consistent with the

§ 3553(a) factors. Benitez-Salazar, 323 Fed. App’x 356 (5th Cir. 2009)(No. 08-40725).

( From United States v. Setser, 607 F.3d 128 (5th Cir. May 11, 2010)(08-10835)

On appeal, Setser contends that the district court erred by relying on 18 U.S.C. § 3584 as authority to order his sentence to run consecutively to his undischarged state sentence in his 2006 state conviction. He acknowledges that this argument is foreclosed by the Court’s decision in United States v. Brown, 920 F.2d 1212, 1216 (5th Cir. 1991), abrogated on other grounds by Candia, 454 F.3d at 472-73, where this Court held that “[w]hether a sentence imposed should run consecutively or concurrently [to an undischarged state sentence] is committed to the sound discretion of the district court, subject to consideration of the factors set forth in 18 U.S.C. § 3553(a).” Setser offers several arguments as to why this Court should now revisit its decision in Brown. First, Setser notes that the circuits are split on this issue,*

* The Eleventh, Eighth, Tenth, and Fifth Circuits have held that § 3584 authorizes

district courts to order a federal sentence to run consecutively to an undischarged state

sentence. … In contrast, the Second, Fourth, Seventh, Sixth, and Ninth Circuits have held that a federal district court does not have such discretion or authority. Cf. United States v. Donoso, 521 F.3d 144, 147 (2d Cir. 2008).

and he contends that Brown does not comport with the text of 18 U.S.C. § 3584 or its legislative history. Finally, Setser contends that the sentencing factors in

“A sentence is ultimately reviewed for ‘unreasonableness.’” United States v. Candia, 454 F.3d 468, 472 (5th Cir. 2006) (quoting United States v. Smith, 440 F.3d 704, 705 (5th Cir. 2006)). “Under Booker, it is the sentence itself, including its consecutive nature, that is ultimately reviewed for reasonableness.” Id. at 472-73 (quoting United States v. Booker, 543 U.S. 220, 261 (2005)). Here, where the Defendant-Appellant is only challenging the imposition of a consecutive sentence, and not the district court’s application or calculation of the Guidelines themselves, “the appellate court should . . . consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007); see also Candia, 454 F.3d at 474.

It is important to note that Setser’s “contention that the sentence is ‘impossible’ to fulfill stems not from an inherent flaw on the face of the court’s sentencing papers, . . . but from the very practical problems that arise in carrying out overlapping state and federal sentences in a dual sovereignty.” United States v. Cibrian, 2010 WL 1141676, *5 (5th Cir., Mar. 14, 2010) (unpublished). That is, in Cibrian, this Court noted that “[t]he irreconcilability of [a defendant’s] federal and state sentences is a well-documented practicality of our system of contemporaneous jurisdiction.” Id. at 7. As a result of this dual system of jurisdiction, in some instances—as in here—it is “the federal sentence

[that may be] partially foiled, [and] in other cases, it is the state sentence that suffers the intrusion.” Id. A subsequently issued state court sentence, therefore, does not render an otherwise legal federal sentence illegal.

Notably, “the United States Supreme Court [has] held that § 3585(b) does not authorize a . . . court to compute credit for time spent in official detention at sentencing, but [rather,] credit awards are to be made by the Attorney General, through the Bureau of

Prisons, after sentencing.” United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992) (citing United States v. Wilson, 503 U.S. 329 (1992)). In the event that a prisoner feels he has been improperly refused credit for time he has served in state custody, the prisoner must first “seek administrative review of the computations of [his] credit, and, once [he has] exhausted [his] administrative remedies, [the] prisone[r] may only then pursue judicial review of these computations.” Id. (citing Wilson, 503 U.S. at 335; 28 C.F.R. §§ 542.10-542.16 (1990)) (internal citations omitted); see also Lundy v. Osborn, 555 F.2d 534, 534-35 (5th Cir. 1977) (“[G]rievances of prisoners concerning prison administration should be presented to the Bureau [of Prisons] through the available administrative channels. Only after such remedies are exhausted will the court entertain the application for relief in an appropriate case.”). *** Thus, although his appeal began as a challenge to the ambiguity regarding how the BOP might interpret and carry out the district court’s sentence, the BOP has subsequently interpreted and carried out the sentence. The BOP’s interpretation of Setser’s sentence, however, is not properly before this Court. At this juncture, should Setser wish to contest the BOP’s denial of credit for the time he served in state custody, Setser must first pursue his administrative remedies pursuant to 28 C.F.R. §§ 542.10-542.16 (2002).

As a result, the district court’s sentence was not illegal or unreasonable. Accordingly, we find that the district court did not abuse its discretion, and we AFFIRM.

*** This Court has previously dismissed a prisoner’s appeal of the BOP’s interpretation *and calculation of his sentence if the prisoner has failed to exhaust his administrative

remedies. That is, once a prisoner has exhausted his administrative remedies, he may “fil[e] a pro se petition for habeas relief under 28 U.S.C. § 2241, challenging the BOP’s computation of his sentence . . . .” Dominguez v. Williamson, 251 F.3d 156, at *2 (5th Cir. 2001). However, “this court has determined that a § 2241 petitioner must first exhaust his administrative remedies through the Bureau of Prisons.” Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993).

( See also concurrent sentencing.

Concurrent Sentencing

( United States v. Collins, __ F.3d ___ (5th Cir. Dec. 12, 2014)(12-10582):

Courts have used the concurrent sentence doctrine to avoid reviewing a conviction whose sentence is set to run concurrently with the sentence of a valid conviction. In the Fifth Circuit, this was accomplished in years past by vacating the unreviewed conviction while the valid conviction remains untouched). United States v. Stovall, 825 F.2d 817, 824 (5th Cir. 1987). As its name implies, the concurrent sentence doctrine requires that sentences be “concurrent.” The sentences here, however, are not perfectly concurrent because the district court imposed a $100 special assessment on the Appellants as to each of the counts.3 According to Ray v. United States, however, when a defendant’s “liability to pay . . . depends on the validity of each . . . conviction[], the sentences are not concurrent.” 481 U.S. 736, 737, 107 S. Ct. 2093, 2094 (1987) (per curiam). As a result of Ray, defendants hardly ever invoke the concurrent sentence doctrine anymore.

Conspiracy:

To establish conspiracy to possess and distribute more than five kilograms of cocaine, the government had to prove the following elements beyond a reasonable doubt: “(1) an agreement with one other person to possess with intent to distribute at least five kilograms of cocaine; (2) defendant’s knowledge of the agreement; and (3) defendant’s

voluntary participation in the conspiracy.” United States v. Percel, 553 F.3d 903,

910 (5th Cir. 2008).

( To prove conspiracy to possess with intent to distribute narcotics, the Government must establish: (1) the existence of an agreement between two or more persons to possess with the intent to distribute illicit drugs, (2) knowledge of the agreement on the part of the defendant, and (3) voluntary participation in the agreement by the defendant. United States v. Gonzales, 79 F.3d 413, 423 (5th Cir. 1996).

( Proof of the identity of the co-conspirators was not necessary. See Rogers

v. United States, 340 U.S. 367, 375 (1951); United States v. Lewis, 902 F.2d 1176,

1181 n.4 (5th Cir. 1990).

( United States v. Delgado, __ F.3d __ (5th Cir. Jan. 19, 2011)(07-41041)(Ien banc review granted, July 7, 2011):

“Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.” Iannelli v. United States, 420 U.S. 770, 777 (1975). The agreement necessary to convict a defendant of conspiracy “need not be shown to have been explicit. It can instead be inferred from the facts and circumstances of the case.” Id. at 777 n.10. “In some cases reliance on such evidence perhaps has tended to obscure the basic fact that the agreement is the essential evil at which the crime of conspiracy is directed.” Id. (citing Developments in the Law — Criminal Conspiracy, 72 Harv. L. Rev. 920, 933-34 (1959)). “Nonetheless, agreement remains the essential element of the crime, and serves to distinguish conspiracy from aiding and abetting which, although often based on agreement, does not require proof of that fact, and from other substantive offenses as well.” Id. (citation omitted). See also United States v. Shabani, 513 U.S. 10, 16 (1994)

(“The prohibition against criminal conspiracy . . . does not punish mere thought;

the criminal agreement itself is the actus reus . . . .”)

It is axiomatic that a conspiracy conviction may not rest on an “agreement”

with a government informer. “[A]s it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy.” Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965). See also United States v. Corson, 579 F.3d 804, 811 (7th Cir. 2009) (“[A]n agreement must exist among coconspirators, that is, those who actually intend to carry out the agreed-upon criminal plan. A defendant is not liable for conspiring solely with an undercover government agent or a government informant.” (citation omitted)); United States v. Paret-Ruiz, 567 F.3d 1, 6 (1st Cir. 2009) (“The agreement must exist between two or more persons, and as a matter of law, there can be no conspiracy between a defendant and a government agent.”); United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006) (“The agreement to conspire requires that at least two culpable co-conspirators agree, and a ‘person who enters into such an agreement while acting as an agent of the government, either directly

or as a confidential informant, lacks the criminal intent necessary to render him a bona fide co-conspirator.’” (quoting United States v. Vasquez, 113 F.3d 383, 387 (2d Cir. 1997))). Thus, evidence of any agreement Delgado had with the governmental informant Vasquez cannot support her conspiracy conviction. Furthermore, this circuit and others have held that “a buyer-seller relationship, without more, will not prove a conspiracy.” United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993) (citing United States v. Hughes, 817 F.2d 268, 273 (5th Cir. 1987)); United States v. Thomas, 12 F.3d 1350, 1365 (5th Cir. 1994) (same). This rule is based on a consensus of opinion among the courts …

“What distinguishes a conspiracy from its substantive predicate offense is not just the presence of any agreement, but an agreement with the same joint criminal objective — here the joint objective of distributing drugs. This joint objective is missing where the conspiracy is based simply on an agreement between a buyer and a seller for the sale of drugs. Although the parties to the sales agreement may both agree to commit a crime, they do not have the joint criminal objective of distributing drugs.” United States v. Dekle, 165 F.3d 826, 829 (11th Cir. 1999). “Evidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer

has joined the seller’s distribution conspiracy. This is so even if the seller is aware

of the buyer’s intent to resell. It is axiomatic that more is required than mere knowledge of the purpose of a conspiracy.” United States v. Boidi, 568 F.3d 24, 30 (1st Cir. 2009) (quoting United States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008)) (citing Lechuga, 994 F.2d at 349; United States v. Glenn, 828 F.2d 855, 857-58 (1st Cir. 1987) (Breyer, J.)).

( SOL. It is up to defendants to prove they withdrew from criminal conspiracies in time to take advantage of a five-year statute of limitations on prosecution. Smith v. United States, No. 11–8976 (S. Ct. Jan. 9, 2013).

( Withdrawal from Conspiracy. United States v. Salazar, 751 F.3d 316 (5th Cir. 2014). To be a defense for conspiracy, withdrawal must occur before the overt act.

Contempt

( “The first duty of an appellate court in reviewing a contempt judgment is to determine whether the nature of the contempt proceeding was civil or

criminal.” Smith v. Sullivan, 611 F.2d 1050, 1052 (5th Cir. 1980). This

determination is critical because there are several differences between the two. For example, civil contempt orders must satisfy the clear and convincing evidence standard, Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995), while criminal contempt orders must be established beyond a reasonable doubt, as in any other criminal case, In re Stewart, 571 F.2d 958, 965 (5th Cir. 1978). Further, for a criminal contempt order, the district court must also find an additional element—that the defendant exhibited willful, contumacious intent, 18 U.S.C § 401(A)(3), or a reckless state of mind, at the time the prohibited conduct occurred, In re Joyce, 506 F.2d 373, 378 (5th Cir. 1975). In determining whether a contempt order is civil or criminal, the district court’s characterization is relevant, but not conclusive. Smith v. Sullivan, 611 F.2d at 1053. Instead, properly characterizing an order as civil or criminal depends on its primary purpose. In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009) (citing Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990)). If the

purpose of the order is to punish the contemnor and vindicate the authority of the court, the order is viewed as criminal. Id. If instead the purpose is to coerce the contemnor into compliance with a court order, the order is civil. Id. (citing Adams, 918 F.2d at 566). While imprisonment is appropriate for either civil or criminal contempt, contempt is civil if the imprisonment is conditional and coercive, but criminal if it is backward-looking and unconditional. Id. If an order is partly coercive and partly punitive, “the criminal feature of the order is dominant.” Port v. Heard, 764 F.2d 423, 426 (5th Cir. 1985). The district court here characterized its order as civil, but because the punishment was backward-looking and unconditional, it is more properly characterized as criminal in nature. See Bradley, 588 F.3d at 263. In fact, the Government acknowledges the criminal nature of the contempt sanction: “because the sanction imposed was apparently intended to punish past conduct (i.e. the initial failure to appear) rather than to secure future compliance or remedy some harm resulting from noncompliance, the proceedings were arguably criminal rather than civil in nature.” Thus, we consider the district court’s contempt order to be criminal, notwithstanding the district court’s express characterization of the order as civil.

Federal Rule of Criminal Procedure 42(a) requires that a defendant be given notice before he may be punished for criminal contempt. Rule 42(a) sets forth three basic requirements: adequate notice, the appointment of a prosecutor, and trial and disposition. The notice may be provided in one of three ways: in open court, in an order to show cause, or in an arrest order. Fed. R. Crim. P. 42(a)(1)(A)–(C). It must (1) inform the accused person of the time and place of the trial, (2) allow him or her a reasonable time to prepare a defense, and (3) state the essential facts constituting the criminal contempt and describe it as such. Id. (emphasis added); see also In re Troutt, 460 F.3d 887, 894 (7th Cir. 2006).

( A defendant is guilty of criminal contempt under 18 U.S.C. § 401(1) if evidence establishes beyond a reasonable doubt that the defendant: (1) engaged in misbehavior; (2) in or near the presence of the court; (3) with criminal intent; (4) that resulted in an obstruction of the administration of justice. United States v. Ortlieb, 274 F.3d 871, 874 (5th Cir. 2001). …. The government implies Clemons could be guilty of contempt even if he was not under the influence of marijuana, but the contempt charge is limited to Clemons’s alleged use of an “illegal drug.” So the conviction is limited to that ground. See United States v. Martinez, 686 F.2d 334, 345 (5th Cir. 1982).

Constitutionality of Statute.

( United States v. Clark, 582 F.3d 607 (5th Cir. 2009): Clark argues that 18 USC § 1328 is facially invalid, at least as it relates to “immoral purposes.” Although he does not challenge the statute’s prohibition of importing aliens for purposes of prostitution, he observes that the general verdict could have been on either basis. “We review questions of law de novo. Because a facial challenge to the constitutionality of a statute presents a pure question of law, we employ that standard here as we examine the merits.” Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) (citation omitted). As we recognized in Roark & Hardee LP v. City of Austin, 522 F.3d 533, 548 (5th Cir. 2008), “in Village of Hoffman Estates [v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982) (“Hoffman”),] the Supreme Court announced the proper procedure for analyzing a facial vagueness challenge.” The first step is the overbreadth analysis, in which the court must to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. Hoffman, 455 U.S. at 494-95.

The overbreadth doctrine is applicable only to First Amendment challenges.

See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); United States v. Salerno, 481 U.S. 739, 745 (1987) (“[W]e have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”); United States v. Mazurie, 419 U.S. 544, 550 (1975) (“[C]hallenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.”).

We move therefore to Clark’s vagueness challenge. As we have said, to be unconstitutionally vague, a statute must be “impermissibly vague in all its applications,”

Hoffman, 455 U.S. at 495, including its application to the party bringing the vagueness challenge, Roark & Hardee, 522 F.3d at 546-47, 551 n.19. “Objections to vagueness under the Due Process Clause rest on the lack of notice and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” Maynard v. Cartwright, 486 U.S. 356, 361 (1988). On the other hand, an ordinance is vague in all its applications where “it subjects the exercise of [a] right . . . to an unascertainable standard,” Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971), or if, in other words, “‘men of common intelligence must necessarily guess at its meaning,’” id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

Constitutional Tort

( Lewis v. Jindal, (5th Cir. March 8, 2010)(09-31000)(unreported):

To assert a claim under § 1983, a “plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989)). “The § 1983 remedy encompasses violations of rights secured by federal statutory as well as constitutional law.” Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 702 (5th Cir. 2007) (citing Maine v. Thiboutot, 448 U.S. 1, 4 (1980)). “A plaintiff must establish that the defendant was either personally involved in the deprivation or that his wrongful actions were causally connected to the deprivation.” James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008) (citing Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 438, 443 (5th Cir. 1999)).

Appellants have not cited any federal statutes or constitutional rights that would entitle them to force Louisiana authorities to criminally prosecute those involved in their civil rights lawsuit. It is well-settled that the decision whether to file criminal charges against an individual lies within the prosecutor’s discretion, and private citizens do not have a constitutional right to compel criminal prosecution. See United States v. Batchelder, 442 U.S. 114, 124 (1979)(discussing prosecutorial discretion); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (finding that a citizen lacks standard to contest prosecutorial policies “when he himself is neither prosecuted nor thereatened with prosecution”) (citations omitted); see also Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990) (“Contrary to Oliver’s contention, he does not have a constitutional right to have

someone criminally prosecuted.”). Therefore, it is clear that Appellants’ claims

have no arguable basis in law.

( From Hoog-Watson v. Guadalupe County, __ F.3d ___ (5th Cir. Dec. 16, 2009)(08-55507). Constitutional tort action for warrantless search of residence to seized animals

who authorities feared were endangered. Granting of summary judgment for defendants

based on Heck v. Humphrey reversed.

( Heck v. Humphrey, 512 U.S. 477, 487 (1994) held:

[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

( As the parties recognize, Heck applies only to suits that implicate prior criminal proceedings, see, e.g., Ballard v. Burton, 444 F.3d 391, 397 (5th Cir. 2006) (“The policy undergirding the favorable termination rule is based on ‘the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.’”). According to the defendants, Heck applies because the post-seizure proceeding was criminal in nature, while Hoog-Watson says that it was civil.

( For the purposes of a Heck-based motion for summary judgment, a proceeding’s civil or criminal nature is a question of fact. This must be so because Heck provides substantive boundaries for the cause of action. According to Heck, “[t]he issue with respect to monetary damages challenging conviction is not, it seems to us, exhaustion; but rather, the same as the issue was with respect to injunctive relief challenging conviction in Preiser: whether the claim is cognizable under § 1983 at all.” Heck, 512 U.S. at 483 (emphasis added); see id. at 489 (“We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action.”); Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (“When a claim comes within the parameters of the Heck teachings, it is not cognizable under 42 U.S.C. § 1983 . . . .”). In other words, the existence (or not) of a prior criminal proceeding is, like many other concrete circumstances, a fact to be proven by the party asserting the § 1983 claim. Our precedent, although not directly on point, accords with this principle. In Brandley v. Keeshan, 64 F.3d 196 (5th Cir. 1995), abrogated on other grounds by Wallace v. Kato, 549 U.S. 384 (2007), the court did not assign the burden of proving the existence of Heck-type criminal proceedings, but it did assign the burden of proving the termination of those proceedings. See id. at 199. After Brandley cited Heck for the proposition that “[t]he underlying criminal proceeding must terminate in the plaintiff’s favor before a malicious prosecution claim accrues,” the court asserted that “[the plaintiff] has the burden of establishing that the capital murder prosecution has terminated.” Id. Brandley

held that “[w]hether this proceeding has terminated in [the plaintiff’s] favor is a factual question that must be answered in the first instance by the district court.” Id. (emphasis added); see also Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995) (“To the extent that [the plaintiff’s] claims, if successful, would necessarily imply that his state criminal conviction is invalid, they are not cognizable under section 1983 because [the plaintiff] has not proved that his conviction and sentence for burglary have been invalidated.”). On other occasions, we have used Heck to dispose of claims when the record contained some proof of a Heck triggering fact (the existence of criminal proceeding), but no allegation of a Heck saving fact (termination in the plaintiff’s favor). See, e.g., Littles v. Bd. of

Pardons & Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995) (“[The plaintiff] has

questioned the validity of the confinement resulting from his parole-revocation

hearing, and he has not alleged that the Board’s decision has been reversed, expunged, set aside, or called into question, as Heck mandates.”); Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (“[The plaintiff] does not allege that any revocation proceeding has been reversed, expunged, set aside by a state court, or called into question by a federal court's issuance of a writ of habeas corpus.”). These cases are consistent with the principle that, had a plaintiff alleged such a fact and accompanied it with sufficient evidence, summary judgment would not be warranted. When this question—the existence of a prior criminal proceeding—is viewed as a question of fact to be proven by a plaintiff, the Circuit’s Heck decisions fit comfortably within typical summary judgment practice. Jackson represents the easiest case.

( Hoog-Watson accepts the fact that the proceeding took place before a Justice of the Peace, and asserts that this fact militates in favor of the civil characterization because criminal animal cruelty proceedings were outside of the Justice Court’s jurisdiction. We agree. In 2005, a violation of Texas Penal Code Section 42.09 constituted a criminal offense punishable as a “Class A misdemeanor,” “state jail felony,” or “felony of the third degree,” Tex. Penal Code § 42.09(d), (i) (Vernon’s 1977 & Supp. 2004–05), thereby falling outside of the Justice Court’s jurisdiction, which extended only to criminal cases “punishable by fine only” or punishable by fine and “a sanction not consisting of confinement or imprisonment,” Code Crim. Proc. art. 411(a) (Vernon’s 2003 & Supp. 2005). In contrast, Texas Health and Safety Code Section 821.022 outlines civil procedures that may take place before a Justice of the Peace. Under the statute, animal control officers may obtain a seizure warrant from “a justice court” before there takes place “a hearing in the appropriate justice court or municipal court to determine whether the animal has been cruelly treated.” Tex. Health & Safety Code § 821.022(a)–(b) (Vernon’s 2003 & Supp. 2005). While the order memorializing the plea agreement does not make specific references to the statute in question, it does note that “the Court held a hearing to determine if any said animals seized with said warrant should be returned,” terms that track the civil statute. Thus, we take the fact that the proceeding

came before a Justice of the Peace and the fact that it followed the civil statute’s procedures as evidence of the proceeding’s civil nature. Finally, Hoog-Watson points to the affidavit of Missy Martinez, an animal control officer who swore that “I decided not to file any charges against Ms. Watson.” Faced with this record, we conclude that Hoog-Watson presented enough evidence to raise a genuine question of fact as to whether the requisite prior criminal proceeding took place, thereby precluding summary judgment.

( Le Clair contends that because the TBCJ’s conduct violated the

Fourteenth Amendment, the TBCJ is not entitled to Eleventh Amendment

immunity, and he argues that the TBCJ is a “person” susceptible to suit under

§ 1983 and is liable for its policies or customs. We review the judgment of

dismissal de novo. Ballew v. Continental Airlines, Inc., 668 F.3d 777, 781 (5th

Cir. 2012); Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011).

The Supreme Court has recognized “only two circumstances in which an

individual may sue a State. First, Congress may authorize such a suit in the

exercise of its power to enforce the Fourteenth Amendment . . . . Second, a State

may waive its sovereign immunity by consenting to suit.” College Sav. Bank v.

Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).

Neither exception applies here. Further, “an entity with Eleventh Amendment

immunity is not a ‘person’ within the meaning of § 1983.” Howlett v. Rose, 496

U.S. 356, 365 (1990). Thus, the district court did not err in dismissing Le Clair’s

suit. The judgment of dismissal is affirmed.

“Controlled Substance Offense” See also “Drugs”

( Simple possession of narcotics is not a “controlled substance offense” that can justify enhancement under USSG § 4B1.4(b)(3) and (c)(2). United States v. Neal, 578 F.3d 270 (5th Cir. 2009).

( Simple possession of a controlled substance may be punishable as a felony under the CSA only if it is committed after a prior conviction for a controlled substance violation has become final. § 844(a); Smith v. Gonzales, 468 F.3d 272, 277 (5th Cir. 2006).

Controlled Substance Act and Administrative Subpoena(See Administrative Subpoena

Copyright Law Preempts State Law

( Ultraflo Corp. v. Pelican Tank Parts, __ F.3d ___ (5th Cir. Jan 11, 2016)(15-20084):

Federal Cpyright preempts this Texas cause of action when the intellectual property at issue is within the subject matter of copyright. Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 785–89 (5th Cir. 1999). 17 U.S.C. sect 301(a). This text is the source of the two-part test we use to determine if the Copyright Act preempts a state law cause of action. Alcatel, 166 F.3d at 785–86. Courts first ask whether the intellectual property at issue is within the subject matter of copyright. Id. If it is, then a state law claim is preempted if it protects rights in that property that are equivalent to any of the exclusive rights within the general scope of copyright. Id.

The preemption statute, however, sweeps more broadly. It preempts state protection of works that fall within the subject matter (that is, the scope) of copyright, regardless whether the works are actually afforded protection under the Copyright Act. Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 596–97 (5th Cir. 2015). “[S]cope and protection are not synonyms.” Id. at 596 (quoting U.S. ex rel. Berge v. Bd. of Trs. of the Univ. of Ala., 104 F.3d 1453, 1463 (4th Cir. 1997)). As the Fourth Circuit put it, “the shadow actually cast by the Act’s preemption is notably broader than the wing of its protection.” U.S. ex rel. Berge, 104 F.3d at 1463. This distinction led us to hold in Spear Marketing that state claims based on ideas fixed in a tangible medium of expression fall within the subject matter of copyright even though copyright law does not protect the mere ideas. 791 F.3d at 597. The parties disputed whether copyright preemption extended to state claims protecting the noncopyrightable material—ideas—contained in copyrightable works—a software program. Id. at 594. In finding that it did, we noted that to allow states to protect fixed ideas would intrude upon Congress’s exclusion in section 102(b) of ideas from federal copyright protection. Id. at 596 (citing 5 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 19D.03[A][2][b]). The result should be no different for the valve design that Congress also chose to exclude from copyright protection.6 Indeed, the exclusion of useful articles from copyright protection is a corollary of the idea-expression 6 A copyright treatise reaches the same conclusion in considering the preemption question for another type of subject matter that is excluded from copyright protection: typeface. HOWARD B. ABRAMS, THE LAW OF COPYRIGHT § 6:22 (2016) (concluding that if “Congress deliberately made certain classes of subject matter ineligible for federal copyright protection, as was clearly the case for typeface designs, then . . . the state law is preempted”).

Case: 15-20084 Document: 00513830789 Page: 7 Date Filed: 01/11/2017 No. 15-20084 8

dichotomy that Spear Marketing rejected as a basis for the dividing line of when copyright preemption applies. See Mazer v. Stein, 347 U.S. 201, 217 (1954); Durham Indus. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980) (“Just as copyright protection extends to expression but not ideas, copyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work.”). Congress’s exercise of its power under the Copyright Clause to not provide protection for the embodiment of ideas in useful articles is entitled to preemptive force. Allowing state law to protect such works would undermine the “deliberate exclusion” of such subject matter from the federal copyright scheme. Spear Mktg., 791 F.3d at 596. B. That the valve design is within the subject matter of copyright does not, on its own, mean that the state claim is preempted. As mentioned at the outset, the state law must also seek to protect rights equivalent to those “within the general scope of copyright.” 17 U.S.C. § 301. This is determined by the “extra elements” test, which looks at whether “one or more qualitatively different elements are required to constitute the state-created cause of action being asserted.” Alcatel, 166 F.3d at 787. If so, the state law protects rights different than those that the Copyright Act protects and there is no preemption. Id. We have previously held that Texas’s unfair competition by misappropriation cause of action does not afford protection materially different from federal copyright law. Id. at 787–89. In doing so, we rejected Alcatel’s attempt to satisfy the extra elements test by pointing to the state

(N: The elements of Texas’s unfair competition by misappropriation are: (1) the creation by a plaintiff of a product through extensive time, labor, skill, and money; (2) the use of that product by defendant in competition with plaintiff; and (3) commercial damage to the plaintiff. U.S. Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 865 S.W.2d 214, 218 (Tex. App.—Waco 1993, writ denied). )

tort’s elements of sweat equity and use against a competitor. Id. With respect to the former, we concluded “the time, labor, skill, and money expended by the author in creating the work are necessarily contemplated in [] copyright,” which requires independent creation. Id. at 789. As to the latter, we held that reproduction or derivate use of a copyright by a competitor would suffice to show copyright infringement.

( United States v. Estill (5th Cir. Oct. 4, 2012)(12 -40108): The district court is authorized to assess costs against a criminal defendant in non-capital cases pursuant to 28 U.S.C. § 1918(b). The exclusive definition of the items that may be taxed as costs, unless provided by some other explicit statutory or contractual authority, is set forth in 28 U.S.C. § 1920. See Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010) (civil case). The costs of investigation are not delineated as a permissible cost of prosecution under § 1918 and § 1920, and no other statutory or contractual

authority would permit the district court to impose the costs of investigation in this case.

Counterfeit Goods

( For each of the trafficking counts, the government was required to prove that (1) the defendant trafficked or attempted to traffic in goods; (2) such trafficking, or attempt to traffic, was intentional; (3) the defendant used a counterfeit mark on or in connection to the goods; and (4) the defendant knew the mark was counterfeit. United States v. Hanafy, 302 F.3d 485, 487 (5th Cir. 2002).

( First, Garrison (June 7, 2010, 09-60382) should have been put on notice of the likely counterfeit nature of the shirts after he was informed by U.S. Customs agents in 2006 that at least one shipment of shirts he was importing was counterfeit. See United States v. Yi, 460 F.3d 623, 630 (5th Cir. 2006) (selling merchandise after receiving a cease and desist letter is some evidence that the defendant knew the goods were counterfeit). Second, Garrison knew that a vendor must be licensed to sell Polo, Lacoste, and Abercrombie & Fitch shirts and he did not have a license. Third, the jury was told that Garrison had been previously convicted in 1995 for conspiracy to counterfeit. And last, the very low cost of the shirts themselves

should have raised Garrison’s suspicions. Thus, we affirm the smuggling count.

CPS Immunity

( Camreta v. Alford, 564 U.S. __ (U.S. May 26, 2011)(09-1454).

Crack Amendments

( Section 3582(c)(2) permits a district court to reduce a term of imprisonment when it is

based upon a sentencing range that has subsequently been lowered by an amendment

to the Guidelines, if such a reduction is consistent with the policy statements issued by

the Sentencing Commission.” United States v. Gonzalez-Balderas, 105 F.3d 981, 982

(5th Cir. 1997). The decision whether to reduce a sentence under Section 3582(c)(2) is

discretionary, and we review the denial of a Section 3582 motion for abuse of

discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).

( “The crack cocaine guideline amendments do not apply to prisoners sentenced as career offenders.” United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009).

( For a twist on this and review of many cases, see United States v. Jones, 596 F.3d 273 (5th Cir. Feb. 4, 2010)(08-30725)(error was harmless)(overlap doctrine: overlap between two ranges sentencing as career offender and regular sentence).

Credibility Determinations

( We give due deference to the district court’s credibility determinations.

See United States v. Solis, 299 F.3d 420, 437 (5th Cir. 2002).

( This court will not disturb the jury’s credibility findings. See United States v. Freeman, 77 F.3d 812, 816 (5th Cir. 1996). See United States v. Pruneda-Gonzalez, 953 F.2d 190, 196 n.9 (5th Cir. 1992) (a jury is free to credit only certain portions of a witness’s testimony).

Credit in Federal Case for Time Served in State Custody.

( United States v. Howard, (5th Cir. Feb. 23, 2015)(14-50357):

Howard seeks credit for the time he was held in jail between __ and the date the federal judge pub a “hold” on him and his sentencing date on _____. 18 U.S.C. § 3585(b) provides that “[a] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences …that has not been credited against another sentence.” The Attorney General , through the Bureau of Prisons, makes the sentence calculation and “determines what credit, if any, will be awarded to the prisoner for time spent in custody prior to the commencement of their federal sentences.” Leal V. Tombone¸ 341 F. 3d 427, 428 (5th Cir. 2003). The Attorney General’s decision regarding the calculation of Howard’s sentence is reviewable viable a 28 U.S.C. § 2241 (federal habeas corpus) petition. See United States v. Gabor, 905 F.2d 76,77-78 (5th Cir. 1990).

( USSG § 5G1.3(b).

( Challenge to the application of the Guidelines is not cognizable in a § 2255 motion.

See United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). A district court

is without jurisdiction to entertain a § 2241. See United States v. Early, 27 F.3d 140,

142 (5th Cir. 1994).

( From Perez v. Lappin, (5th Cir. Jan. 15, 2010)(09-50645)(unreported):

The Attorney General, through the (Bureau of Prisons) BOP, determines what credit, if any, will be awarded to prisoners for time spent in custody prior to the start of their federal sentences. United States v. Wilson, 503 U.S. 329, 331-32, 334 (1992). “[A] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . . that has not been credited against another sentence.” 18 U.S.C. § 3585(b) (emphasis added). Because the state officials have credited the pertinent time against Perez’s 60-year sentence, Perez is not entitled to credit against his federal sentence.

( From Pierce v. Holder, __ F.3d __ (5th Cir. Aug. 9, 2010)(08-50435): Pierce was convicted in federal court of conspiracy to possess with intent to distribute methamphetamine. While his state criminal proceeding for possession of amphetamine was still pending, he was sentenced in federal court on March 17, 2004, to 130 months of imprisonment. Two days later, he convicted in state court of possession of amphetamine and sentenced to ten years of imprisonment. The state court sentence was to run concurrently to his federal sentence, if so allowed by the federal authorities, but the judgment and conviction in the federal criminal proceeding is silent as to whether the federal sentence should be served concurrently or consecutively with any state sentence.

Pierce, now a federal prisoner, filed a petition pursuant to 28 U.S.C. § 2241 in December 2007 when he was a Texas state prisoner. Pierce sought an order stating that his federal sentence was to be served concurrently with the state sentence he was then serving. The Bureau of Prisons (BOP) sent a letter to the sentencing court on February 1, 2008, explaining that Pierce had requested credit towards his federal sentence for his time spent in state custody and seeking the district court’s position as to whether a nunc pro tunc designation might be appropriate in Pierce’s case.

In response to the BOP’s letter, the sentencing court, on March 7, 2008, sua sponte amended the judgment and sentence in Pierce’s criminal proceeding to indicate that his federal sentence was to run consecutively to his state sentence.

Other circuits have held that before the Attorney General has made a

determination of a prisoner’s credits, there is no case or controversy ripe for

review when the prisoner challenges his credits. We agree with those courts, and hold that a habeas petition requesting a nunc pro tunc designation is not ripe until the BOP makes a final decision on the prisoner’s nunc pro tunc request. The district court did not have jurisdiction to rule on the merits of Pierce’s unripe habeas petition.

( United States v. Farmer, (5th Cir. Aapril 27, 2016)(15-60403):

Farmer also argues that the district court erred by not ordering that he receive proper credit for the time that he was in state custody before he was delivered to federal authorities. But 18 U.S.C. § 3585(b) authorizes only the Attorney General, through the Bureau of Prisons, to determine a prisoner’s credits. See United States v. Wilson, 503 U.S. 329, 333-35 (1992). “In the event that a prisoner feels he has been improperly refused credit for time he has served in state custody, the prisoner must first ‘seek administrative review of the computations of his credit, and, once he has exhausted his administrative remedies, the prisoner may only then pursue judicial review of these computations.’” United States v. Setser, 607 F.3d 128, 133 (5th Cir. 2010) (quoting United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992)) (alterations omitted). The district court did not abuse its discretion by denying relief that it had no authority to give. The judgment of the district court is affirmed.

Credit—Good Time

( From Montague v. Fox, _ F. App’x _ (5th Cir. Oct. 1, 2010)(10-40227):

(Monague) appeals the district court’s denial of his 28 U.S.C. § 2241 petition challenging the Bureau of Prisons’s (BOP) method of calculating his good conduct time (GCT) credit under 18 U.S.C. § 3624(b). In Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005), we held that, where the prisoner was not claiming he was immediately eligible for release, we lacked subject matter jurisdiction over the appeal of his § 2241 petition challenging the BOP’s calculation of GCT credit under § 3624(b). We concluded that the petition was not ripe because the prisoner had not established that he would sustain immediate injury that could be redressed by the relief requested. Id. … even if Montague’s request for relief were not premature, his argument is foreclosed. See Barber v. Thomas, 130 S. Ct. 2499, 2504 (2010); Moreland v. Federal Bureau of Prisons, 431 F.3d 180, 186 (5th Cir. 2005).

( Barber v. Thomas, 560 U.S. __ (2010): Bureau of Prison’s computation of good time credit was lawful. Section 212(a)(2) of Sentencing Reform Act required computation based on sentence imposed rather than on time actually served.

( The district court does not ultimately determine credit for time served. United States v. Wilson, 503 U.S. 329, 331-34 (1992). The Attorney General, through the Bureau of Prisons, does. Id.

( Pretrial in Treatment Center Gets No Credit. Reno v. Koray, 515 U.S. 50, 57-65 (1995) held that time spent while released on bail subject to restrictions, including

confinement in a community treatment facility, does not constitute official

detention for purposes of § 3585(b) and is not credited toward the sentence

imposed. Accord: Munoz v. Maye, (5th Cir. August 13, 2012)(11-51072).

Criminal History

( United States v. Rodriguez-Bernal, __ F.3d __ (5th Cir. April 3, 2015)(14-10287):

Section 2L1.2(b)(1)(A)(i) provides that the offense level for unlawfully entering the United States shall be increased by sixteen if, inter alia, the defendant previously was deported after “a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months . . . .” “‘Sentence imposed’ has the meaning given the term ‘sentence of imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2 . . . .” § 2L1.2 cmt. n.1(B)(vii). Section 4A1.2(b)(1), in turn, defines “sentence of imprisonment” as “a sentence of incarceration and refers to the maximum sentence imposed.” The “maximum sentence imposed” can differ from the time actually served: “[T]he length of a sentence of imprisonment is the stated maximum . . . in the case of an indeterminate sentence of one to five years, the stated maximum is five years . . . . [C]riminal history points are based on the sentence pronounced, not the length of time actually served.” § 4A1.2 cmt. n.2. But there is an important exception: “If part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended.” § 4A1.2(b)(2). A. Rodriguez-Bernal avers that his “sentence of imprisonment” was less than thirteen months because he was discharged after serving ten. Equating “discharged” with “suspended” under § 4A1.2(b)(2), he claims that the district court erred by counting the time during which his sentence was discharged toward the “sentence of imprisonment.” He is mistaken for two independent reasons. First, his discharged sentence does not qualify as a suspended sentence under § 4A1.2(b)(2) because it was not suspended by a court. Second, a discharged sentence under Texas law is not equivalent to a suspended sentence.

Only a court can suspend a sentence for purposes of the § 4A1.2(b)(2) exception. “The defining characteristic of a ‘suspended sentence’ under the . . . Guidelines is that it is suspended by a judicial officer, rather than an executive

Criminal Livelihood under USSG § 2D1.1(b)(15)(E).

( United States v. Hawkins, __ F.3d __ (5th Cir. Aug. 3, 2017)(16-10879):

This enhancement only applies if the defendant also received an Aggravating Role adjustment under U.S.S.G. § 3B1.1. Here, the organizer or leader enhancement, … is such an adjustment. U.S.S.G. § 2D1.1(b)(15)(E). provide for a two-level enhancement where

“the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood.” U.S.S.G. § 2D1.1(b)(15)(E).1 The phrase “engaged in as a livelihood,” which is defined in U.S.S.G. § 4B1.3, means that: (A) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly minimum wage under federal law; and (B) the totality of circumstances shows that such criminal conduct was the defendant’s primary occupation in that twelvemonth period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant’s legitimate employment was merely a front for the defendant’s criminal conduct).

U.S.S.G. § 4B1.3, Application Note 2; U.S.S.G. § 2D1.1, Application Note 20. Under the then-existing federal hourly minimum wage of $7.25, this enhancement would apply to Hawkins if the income she derived from the conspiracy totaled more than $14,500 in any twelve-month period. As both parties correctly point out, this Court has seldom addressed the criminal livelihood enhancement.

--United States v. Quertermous, 946 F.2d 375, 377 (5th Cir. 1991)(enhancement applied to D who possessed stolen mail based on the value of the stolen checks and other amounts received, even though he did not successfully cash all checks.

--United States v. Cryer, 925 F.2d 828, 830 (5th Cir. 1991)(amount of credit cards stolen from the mail.

Crime of Violence.

( Standard of Review. We review de novo whether a prior conviction qualifies as a crime of violence within the meaning of the Guidelines.” United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc).

( Judge Says Sentence Would Be Same if Miscalculation. “The harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing.” United States v. Tanksley, 848 F.3d 347, 353 (5th Cir.) (bracket omitted) (quoting United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010)), supplemented on petition for rehearing en banc, 854 F.3d 284 (5th Cir. 2017). “[I]t is not enough for the district court to say the same sentence would have been imposed but for the error.” Id. Instead, “the government ‘must show that the [sentence] the district court imposed was not influenced in any way by the erroneous Guideline calculation.’” United States v. HernandezMontes, 831 F.3d 284, 295 (5th Cir. 2016) (quoting United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014)).

( Deadly Conduct under Tex Penal Code § 22.05 Is Divisible and Not a Crime of Violence. Mathis v. United States, 136 S. Ct. 2243 (2016). The interpretive tools provided in Mathis lead us to the conclusion that Section 22.05(b) is not divisible. Because the government fails to prove Section 22.05(b) divisible, Section 22.05(b) may not be used here as the basis for a crime-of-violence enhancement. United States v. Perlaza-Ortiz, __ F.3d __ (5th Cir. Aug 23, 2017)(16-40331).

( The Federal Sentencing Guidelines, including Section 4B1.2(a)'s residual clause, are not subject to vagueness challenges under the due process clause. Beckles v. United States, __ U.S. ___ (March 7, 2017)(15-8544)(CRIME OF VIOLENCE).137 S. Ct. 886 (2017).

( United States v. Favors (5th Cir. July 27, 2017)(16-10389):

After Favors submitted his appellate brief, the Supreme Court held, in Beckles v. United States, 137 S. Ct. 886, 892 (2017), that § 4B1.2(a)(2)’s residual clause “is not void for vagueness” because “the Guidelines are not subject to a vagueness challenge under the Due Process Clause.” Favors’s arguments regarding § 4B1.2(a)(2)’s residual clause and Application Note One are thus unavailing. A Texas aggravated assault conviction constitutes the enumerated “aggravated assault” offense. United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007); United States v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir. 2002). Furthermore, we have recently confirmed that Texas’s crime of aggravated assault satisfies § 4B1.2(a)(1)’s force-as-an-element clause. See United States v. Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017).

( United States v. Alay, __ F.3d ___ (5th Cir. March 3, 2017)(15-41125):

Because Alay objected to the COV enhancement both when it first appeared in the PSR and at sentencing, he has preserved the objection, and we review his sentence de novo. United States v. Hernandez-Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015). In addition, “[w]e review the district court’s characterization of a prior offense as a [COV] de novo.” United States v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010) (per curiam).

We take a “categorical” approach in “determining whether a prior conviction qualifies as a [COV] under the Guidelines.” United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc). “Under the categorical approach, the analysis is grounded in the elements of the statute of conviction rather than a defendant’s specific conduct.” Id.

[O]ur application of [the] categorical approach to a prior state conviction proceeds in the following four steps: First, we identify the undefined offense category that triggers the federal sentencing enhancement. We then evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable commentary. If not, we proceed to step two, and determine whether that undefined offense category is an offense category defined at common law, or an offense category that is not defined at common law. Third, if the offense category is a non-common-law offense category, then we derive its “generic, contemporary meaning” from its common usage as stated in legal and other well-accepted dictionaries. Fourth, we look to the elements of the state statute of conviction and evaluate whether those elements comport with the generic meaning of the enumerated offense category. Id. at 552–53 (internal footnotes omitted).

A necessary corollary is that there is no need to examine anything beyond the plain meaning of the guidelines if the offense category is defined in the guidelines. Commentaries to the guidelines, including the notes, are binding on us unless they are plainly inconsistent with the guidelines. United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc). If the defendant was convicted under a statute matching the offense as the generic offense defined in the guidelines, or if the statute of conviction was narrower than in the guidelines, a COV enhancement is appropriate.

For this COV enhancement to be appropriate, then, the elements of Alay’s conviction under Section 261(a)(3) must match the offense categories in Section 2L1.2(b)(1)(A)(ii) and its accompanying notes. Specifically, to uphold the sentence, we would need to conclude that the California conviction qualifies as a “forcible sex offense” under the guidelines. It does.

The guidelines commentary defines a forcible sex offense to include any offense “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). On its face, that definition is clear enough that we can apply its plain meaning, as the first step of Rodriguez dictates. See Rodriguez, 711 F.3d at 552–53. Forcible sex offenses are what the guidelines See, e.g., United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006), abrogated on other grounds by Rodriguez, 711 F.3d at 554–55. The parties also dispute whether Alay’s conviction could fit within the guidelines’ catch-all provision for other non-specific COVs: “any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Because the California conviction qualifies as a forcible sex offense, we do not address this second issue.

The guideline definition of forcible sex offense is broad and includes no requirement of mens rea. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Specifically, the guidelines define a forcible sex offense as an offense “where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” Id. Notably absent from this definition is any mention of a required mental state; indeed, the plain meaning of the guidelines is that a forcible sex offense is any offense that fits the definition delineated above, regardless of mens rea.

( United States v. Gonzales-Longoria, __ F.3d ___ (5th Cir. Aug 6, 2016)(en banc)

(15-40041): This case presents the question whether the “crime of violence” definition provided by 18 U.S.C. § 16(b), when incorporated by reference into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Court struck as unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). We hold that 18 U.S.C. § 16(b) is not unconstitutionally vague.

( JONES, Circuit Judge, joined by SMITH, Circuit Judge, concurring: Although I concur in the majority opinion holding that 18 U.S.C. § 16(b) is not unconstitutionally vague in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), our disagreement over that proposition could have been obviated with a holding that neither the U.S. Sentencing Guidelines, nor extrinsic statutes cross-referenced in the Guidelines, are subject to challenges based on the Due Process Clause’s prohibition of vague laws. This holding flows from the recognition of several principles. First, Johnson itself did not treat or address the Guidelines. Second, no other Supreme Court case has implied the propriety of vagueness challenges in the realm of Guidelines sentencing. Third, the Supreme Court’s most recent sentencing cases are not to the contrary. Fourth, this court has repeatedly rebuffed vagueness challenges to Guidelines sentencing, and we remain bound by that line of case law. Fifth, as a matter of principle and logic, sentencing under the Guidelines remains discretionary with the district courts. Sixth, allowing vagueness challenges to the Guidelines would threaten both the Guidelines themselves and the federal law beyond the Guidelines.

( Impact of Texas statute on Penal Code Ann. § 22.01(a)(1), (b)(2)(B) as Crime of Violence under USSG 2K2.1. Conviction affirmed in a wild case in which the 5th Circuit declares the issues currently before SCOTUS. United States v. Howell, __ F.3d __ (5th Cir. Sept 22, 2016)(15-10336).

( United States v. Hernandez-Montes, __ F.3d ____ (5th Cir. July 25, 2016)(15-40544):

We analyze COV enhancements under a familiar test called the “Crime of Violence Framework.” United States v. Hernandez-Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015). Under the COV framework and the guidelines, a conviction may be a COV in one of two ways: first, if it qualifies as any one of a number of “enumerated offenses,” including murder, see U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)9(We analyze COV enhancements under a familiar test called the “Crime of Violence Framework.”) United States v. Hernandez-Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015). Under the COV framework and the guidelines, a conviction may be a COV in one of two ways: first, if it qualifies as any one of a number of “enumerated offenses,” including murder, see U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)9; second, if it is an offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another,” see id.10 (10 The “use of force” prong of the COV framework. ) The guidelines also treat a conviction of an attempt to commit a COV as a COV itself.11 Within the COV framework, we assess whether a conviction is a COV under either prong using slightly different methodologies: Our two methodologies are both iterations of the elements-based categorical approach set forth in Taylor[12] and its progeny, with each looking to different sources of guidance. Under the “enumerated offense” prong, we conduct a “common-sense” categorical approach, looking to various sources—such as “the Model Penal Code, the LaFave and Scott treatises, modern state codes, and dictionary definitions”—to define each crime by its “generic, contemporary meaning.” Under the “use of force” prong, we analyze whether the offense has as an element the use, attempted use, or threatened use of physical force. . . . Under both approaches, we determine the elements to which a defendant pleaded guilty by analyzing the statutory definition of the offense, not the defendant’s underlying conduct. United States v. Herrera-Alvarez, 753 F.3d 132, 137–38 (5th Cir. 2014) (citations omitted).; second, if it is an offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another,” see id.10 The guidelines also treat a conviction of an attempt to commit a COV as a COV itself.11 Within the COV framework, we assess whether a conviction is a COV under either prong using slightly different methodologies: Our two methodologies are both iterations of the elements-based categorical approach set forth in Taylor[12] and its progeny, with each looking to different sources of guidance. Under the “enumerated offense” prong, we conduct a “common-sense” categorical approach, looking to various sources—such as “the Model Penal Code, the LaFave and Scott treatises, modern state codes, and dictionary definitions”—to define each crime by its “generic, contemporary meaning.” Under the “use of force” prong, we analyze whether the offense has as an element the use, attempted use, or threatened use of physical force. . . . Under both approaches, we determine the elements to which a defendant pleaded guilty by analyzing the statutory definition of the offense, not the defendant’s underlying conduct. United States v. Herrera-Alvarez, 753 F.3d 132, 137–38 (5th Cir. 2014) (citations omitted).

Under the enumerated-offense prong, “we compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the generic crime . . . .” United States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir. 2014) (internal quotations omitted).13 If the elements of the conviction are narrower than or coterminous with the generic meaning, the COV enhancement is valid. Hernandez-Rodriguez, 788 F.3d at 195–96. When the elements of the conviction are facially broader than the generic meaning, the defendant still must show a “realistic probability”—rather than “a mere theoretical possibility”—that his “statute of conviction would in fact punish conduct outside of the offense’s ordinary meaning.” United States v. Garcia-Figueroa, 753 F.3d 179, 187 (5th Cir. 2014) (quotations omitted). To establish a “realistic probability,” the defendant “must at least point to his own case or other cases in which the state courts in fact did apply the statute” to conduct not encompassed by the generic meaning. Id. (quotations omitted). If he shows that the statute of conviction in fact applies to conduct broader than the generic meaning, then “the conviction is not a [COV] as a matter of law.” Hernandez-Rodriguez, 788 F.3d at 196 (quotations omitted). A. There is a threshold issue regarding the standard of review, because there is some ambiguity as to how to characterize Hernandez-Montes’s prior conviction.

( Our treatment of “violent felony” under the ACCA is interchangeable with our treatment of “crime of violence” under § 4B1.2(a). United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011).

( See also “Aggravated Felony under USSG § 2L1.2”

(Note> S.Ct. has granted cert in § 924(c) case and decided it. Abbott v. U.S. (09-479).

(1) Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction? From 09-7073: Does a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) apply to a count when another count already carries a greater mandatory minimum sentence?

Ruling: Supreme Court ruled unanimously that Congress did not intend in 1998 to spare individuals convicted of federal crimes from an extra sentence if they used a gun during a drug offense or a violent crime.  That was the first decision of the Term in an argued case. 

The Court’s sentencing law decision resolved a dispute among lower courts about the effect of a 12-year-old change of the federal law that adds at least five years to a criminal’s prison sentence for using or carrying a gun during either a drug crime or a crime of violence.  That added period of years extends beyond any sentence for the underlying crime.  Congress provided that extra punishment, the Court recalled in Monday’s decision, to punish independently for having a gun during a criminal episode.

That goal, the Court decided in Abbott v. U.S. (09-479) and Gould v. U.S. (09-7073), would be undercut if the 1998 revision of the law were interpreted to set aside the additional term in some cases.  Upholding the federal government’s view, the Court ruled that those who violate the criminal ban on gun possession or use must always get at least an extra five years, unless some other law added even more time to the prison term. (The Court ruling, written by Justice Ruth Bader Ginsburg, was unanimous, although Justice Elena Kagan did not take part in it.)

The practical effect of the ruling can be seen in the two specific cases the Justices decided.

Kevin Abbott (in case 09-479) was convicted of several cocaine crimes, and of being a convicted felon with a gun, as well as for using the gun during the cocaine crimes.  He got a 15-year sentence for the felon-in-possession conviction, and then five years were tacked on for having the gun during the drug offenses.  He contended that the 1998 law exempted him from the extra five years, because he already had been subject to a greater minimum sentence — that is, the 15 years on the felon-in-possession charge.

Carlos Rashad Gould pleaded guilty to a conspiracy to distribute cocaine, and with possessing a gun during that crime.  He received a mandatory ten-year sentence for the cocaine trafficking offense, plus the extra five years for the gun possession.  He contended that the extra five years were invalid, because of the mandatory minimum he already faced for drug trafficking.

Federal appeals courts rejected both of the challenges, and the Supreme Court agreed with that result Monday.

( Unconstitutionality of “Crime of Violence in Residual clause of Armed Career Criminal Act. Johnson v. United States, 135 S.Ct. 2551 (2015)

( United States v. Houston, __ F.3d __ (5th Cir. Nov. 8, 2010)(09-50347): Houston contends that the district court erred in imposing both a seven-year consecutive sentence for the first count of brandishing a firearm and a 25-year consecutive sentence for the second count, because § 924(c)(1)(A) prohibits imposing the seven-year § 924(c) sentence “to the extent that a greater minimum sentence is otherwise provided by [§ 924(c)].” We must therefore decide whether a greater minimum sentence for a second or

subsequent § 924(c) offense qualifies as a “greater minimum sentence . . . otherwise provided by [§ 924(c)].” … The language of a statute, like all language, “cannot be interpreted apart from context.” Smith v. United States, 508 U.S. 223, 229 (1993). The so-called “except” clause of § 924(c)(1)(A)(i) “does not say ‘a greater minimum sentence’ for what; yet it has to have some understood referent to be intelligible.” United States v. Parker, 549 F.3d 5, 11 (1st Cir. 2008). One such referent is that the clause applies only to sentences concerning firearm possession. The question is whether the “except” clause also covers a “greater minimum sentence” for possession of the same firearm during a subsequent crime committed later in the same day.

The issue is one of first impression, but the Second Circuit has come close

to addressing it directly. In United States v. Williams, 558 F.3d 166, 171-72 (2d Cir. 2009) (dictum), it observed (and in United States v. Parker, 577 F.3d 143, 147 (2d Cir. 2009), it held) that the so-called “except” clause of § 924(c)(1)(A) applies only to conduct arising from the same criminal transaction or set of operative facts as the crime yielding the greater mandatory minimum sentence. Thus, in Parker, the mandatory minimum sentence arising from possession of crack cocaine between April 30 and May 1 did not preclude an additional consecutive sentence for conduct arising from possession of crack cocaine on July 19, because those were different transactions. Parker, 577 F.3d at 147. In support of its holding, the Second Circuit relied on § 924(c)(1)(A)(i)’s

reference to the use or carrying of a firearm “during and in relation to,” or possession

“in furtherance of,” a crime of violence or drug trafficking offense. Id.; Williams, 558 F.3d at 171. The problem with that reasoning, however, is that the phrases “same transaction” and “set of operative facts” are procedural terms of art that mean neither “during” nor “in furtherance of” a crime of violence or drug trafficking offense. …

Although the statute is admittedly “not a model of clarity,” Collins, 205 F. App’x at 198, that does not sanction importing a doctrine found nowhere in the statute, let alone one as vague as the “same transaction” test. There is a more faithful interpretation of the statute. Section § 924(c)-(1)(A)(i) imposes a mandatory minimum sentence for using or carrying a firearm “during and in relation” to a crime of violence or drug trafficking crime or for possessing a firearm “in furtherance of” such a crime, unless § 924(c) or another provision of law imposes a greater mandatory minimum sentence. Just as we

thought in Collins that the statute’s “greater mandatory minimum sentence” exception most reasonably refers only to another, greater sentence for firearm possession, id., so too does it most reasonably refer only to a greater mandatory minimum sentence for that specific crime of firearm possession. In addition to being the most natural reading of § 924(c)(1)(A)(i), that interpretation avoids the odd result produced by the Second Circuit’s reading, whereby a second conviction under § 924(c)(1)(C) precludes any imprisonment for the first conviction if the two crimes occurred in close proximity. “A determination of guilt that yields no sentence is not a judgment of conviction at all.”

Easter, 553 F.3d at 526. The Second Circuit’s interpretation would thus be proper

only if § 924(c)(1)(A)(i) were only a sentencing enhancement provision. But it is not an enhancement provision; it defines a stand alone crime.

Finally, the reasoning we adopt meets the goals identified by the Second

Circuit. We avoid making the length of a sentence turn on whether prosecutors charged the defendant in separate prosecutions instead of in a multi-count indictment. Moreover, we avoid giving a defendant a lighter sentence just because he was “already sentenced for a prior unrelated crime in a previous case.” Williams, 558 F.3d at 172. In sum, § 924(c)(1)(A)(i)’s reference to a “greater mandatory minimum sentence” refers only to a greater mandatory minimum for that specific offense.

( “Characterizing an offense as a crime of violence is a purely legal determination,” which we review de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Guevara, 408 F.3d 252, 261 n.10 (5th Cir. 2005).

( A district court’s its determination that a prior conviction is a crime of violence

is reviewed de novo. United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007).

A district court’s factual findings are reviewed for clear error. United States v. Cisneros-

Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

( United States v. Hernandez, (5th Cir. Aug. 6, 2012)(10-40613): The Guidelines’ notes for

§ 2L1.2 enumerate types of offense that count as “crime[s] of violence.” “[E]ven if an enumerated offense does not include an element of force, it remains a crime of violence precisely because it is enumerated.” United States v. FierroReyna,466 F.3d 324, 327 (5th Cir. 2002). Among the enumerated offenses are “forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced) . . . .”

( If no objection, review is for plain error. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert. denied, 130 S. Ct. 192 (2009).

( The guidelines provide for an increase of 16 levels in the offense level for

unlawfully entering or remaining in the United States if the defendant was

previously convicted of a crime of violence. The commentary, § 2L1.2(b)(1)(A)(ii)., specifically enumerates several offenses that qualify as crimes of violence, including the

burglary of a dwelling. § 2L1.2 cmt. n.1(B)(iii). Burglary of a habitation under Texas law qualifies as a crime of violence as defined in the guidelines. United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005). In determining whether a prior offense is a crime of violence, we look to the elements of the offense as defined by statute rather than to the facts of the defendant’s conduct. In making that determination, we may consider certain adjudicative records, such as the state indictment and the state court judgment

of conviction.

( Conspiracy as a Crime of Violence. United States v. Segovia, __ F.3d __ (5th Cir. Oct. 28, 2014)(12-41424): ” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Application Note 5 to § 2L1.2 states that conspiracy to commit a COV is also a COV. Id. n.5. However, the Guidelines do not define “conspiracy”. When the Guidelines do not define predicate offenses, we typically define them with reference to their “generic, contemporary

meaning[s].” Taylor v. United States, 495 U.S. 575, 598 (1990); United States v. Dominguez-Ochoa, 386 F.3d 639, 642 (5th Cir. 2004). If the defendant was convicted under a state law “following the generic definition with minor variations, or a statute narrower than the generic crime, the sentence enhancement may be applied.” United States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011) (internal quotation marks omitted). On the other hand, “[i]f the statute of conviction prohibits behavior that is not within the plain, ordinary meaning of the enumerated offense, the prior offense is not a ‘crime of

violence.’” United States v. Olalde-Hernandez, 630 F.3d 372, 374 (5th Cir.

2011) (citation omitted).

( A defendant’s prior state offense, while labeled “manslaughter,” does not

necessarily qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). See United

States v. Bonilla, 524 F.3d 647, 652-55 (5th Cir. 2008). Instead, whether a prior

conviction qualifies as an enumerated “crime of violence” requires this court to compare the actual statute of conviction with the “generic, contemporary meaning” of the offense. See United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006). “When the statute of conviction encompasses prohibited behavior that is not within the generic, contemporary definition of the enumerated offense, the conviction is not a crime of violence as a matter of law.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006).

( “We have recognized that the recklessness standard adopted in the Model

Penal Code provides the minimal necessary mens rea for generic contemporary

manslaughter (including involuntary manslaughter).” Bonilla, 524 F.3d at 654

(internal citations omitted). The recklessness standard requires “proof of conscious disregard of perceived homicidal risk.” Id. Criminal negligence, in contrast, requires only that a person “should be aware of a substantial and unjustifiable risk” and is insufficient to comport with generic, contemporary manslaughter. United States v. Dominguez-Ochoa, 386 F.3d 639, 645 (5th Cir. 2004). Thus, Florida’s manslaughter statute “will be broader than the general, contemporary definition of manslaughter—and thus not a [crime of violence] under the guideline—if one of its subsections requires less than a reckless state of mind.” Bonilla, 524 F.3d at 654.

( The Texas crime of evading arrest by use of a motor vehicle is a crime of violence under USSG § 4B1.2,, because the crime is purposeful, violent, and aggressive. United States v. Harrimon, 568 F.3d 531, 535 (5th Cir. 2009).

--But see United States v. Maldonado, (5th Cir. Feb. 11, 2016)(14-40562), remanding case from S. Ct. to 5th Cir. to trial level in light of Robinson evading arrest case

( Mowla: Evading arrest by vehicle under PC 38.04 has been identified by the Fifth Circuit as a “crime of violence” for purposes of 18 U.S.C. 16(b).  Look at United States v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011). It is also classified as an “aggravated felony” under 8 U.S.C. 1101(a)(43)(F) for immigration purposes.   The 5th Circuit sustained the 8-level enhancement under 2L1.2(b)(1)(C) to the defendant’s sentence calculation.

( Carachuri-Rosendo v. Holder, 560 S. Ct. __, 2010 WL 2346552 (June 14, 2010)

(No. 09-60) held that “when a defendant has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been ‘convicted’ under [8 U.S.C.] § 1229b(a)(3) of a ‘felony punishable’ as such ‘under the Controlled Substances Act,’ 18 U.S.C. § 924(c)(2).” 2010 WL 2346552, at *11.

( From United States v. Lipscomb, 619 F.3d 474 (5th Cir. Sept. 13, 2010)(09-10240):

For our purposes today, a crime is a crime of violence if it is an “offense under federal . . . law, punishable by imprisonment for a term exceeding one year, that . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a)(2). To determine whether a crime is a crime of violence, we consider only “conduct ‘set forth in the count of which the defendant was convicted,’” but may not consider any other evidence to determine the conduct underlying the instant offense. United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992) (quoting U.S.S.G. § 4B1.2 Application Note 1). Therefore, the district court erred by considering testimony as to the weapon’s characteristics to be relevant, but the error was harmless. As noted above,

Lipscomb’s single-count indictment, which the district court could consider, alleges that he possessed a sawed-off shotgun. The only remaining question is whether possessing such a weapon, “by its nature, presented a serious potential risk of physical injury.” United States v. Insaulgarat, 378 F.3d 456, 467 (5th Cir. 2004). We think that the Sentencing Commission’s commentary to § 4B1.2 answers that for us. Stinson v. United States, 508 U.S. 36, 44-45 (1993) (holding that commentary to the guidelines is “treated as an agency’s interpretation of its own legislative rule”). “Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (i.e., a sawed-off shotgun . . . ) is a crime of violence.” U.S.S.G. § 4B1.2 Application Note 1. Accordingly, as per the specific allegations of the indictment and his plea of guilty to those charges, Lipscomb’s § 922(g) conviction is for a crime of violence. Lipscomb argues otherwise, asserting that applying the categorical analysis his conviction under § 922(g) only required that the government prove that he possessed a gun—nothing more. We reject Lipscomb’s argument that we must apply the categorical approach crafted by the Supreme Court in Taylor and its progeny. Such a rule would require the sentencing court to use the indictment only to determine the statutory phrase that is the basis of conviction.

Thus, he argues, his conviction is only for possessing a “firearm,” as the statute proscribes; his conviction is not for possessing a sawed-off shotgun, as the indictment’s language charges. This argument ignores the fact that Taylor and its progeny were decided under the Armed Career Criminal Act and did not involve the application of—or even mention—the specific Guidelines commentary at issue here. The commentary, which applies in this case, specifically treats unlawful possession of a firearm by a felon as a crime of violence when the weapon is a sawed-off shotgun. Id. Lipscomb’s proposed standard, if applied here, would render the commentary meaningless for § 922(g) offenses.

( Escape from halfway house—not a crime of violence. United States v. Jones,

__ F.3d __ (5th Cir. June 12, 2014)(12-40877) Under USSG 4B1.2(a).

( U.S.S.G. § 4A1.1(f). United States v. Scott, __ F.3d__ (5th Cir. 2011): Scott argues that U.S.S.G. § 4A1.1(f) requires 1 adding points to uncounted “crimes of violence” rather than to uncounted sentences. According to Scott, the four convictions and sentences at issue constituted only one “crime of violence” because they all sprang from a “single criminal episode.”

Neither the appellant nor the appellee provides a single case that interprets the 2008 version of § 4A1.1(f) to explain how courts are to assess criminal-history points for prior sentences. While one other court of appeals has stated in dicta that courts must award additional criminal-history points under this section to otherwise-uncounted prior offenses committed on the same occasion, see King v. United States, 595 F.3d 844, 850 n.3 (8th Cir. 2010), we are squarely faced with deciding this apparently res nova issue of law. Nevertheless, we have no trouble deciding that Scott’s appeal fails for several reasons. ¶ First, Scott’s argument that § 4A1.1(f) focuses on the “crime of violence”—that is, “criminal episode”—that is uncounted rather than the sentence is

clearly at odds with the remainder of § 4A1.1(f)’s text. The second half of

§ 4A1.1(f) loops back to focus on the sentence imposed for the prior crime,

explaining that section (f) points are added “because such sentence was counted as a single sentence” and did not receive points under § 4A1.1(a)–(c). Common sense dictates that this portion of the sentence refers back to uncounted sentences for crimes of violence rather than uncounted “crimes of violence” themselves.

( Attempted Sexual Assault. United States v. Sanchez, __ F.3d __ (5th Cir. Jan. 10, 2012)(10-20249). The district court concluded that Sanchez’s prior conviction for this offense was a “crime of violence” within the meaning of § 2L1.2(b)(1)(A)(ii), and

increased the base offense level by 16. … There is no contention before us that under the 2009 Guidelines, the Texas offense of attempted sexual assault of a child had “as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of the definition of “crime of violence” of this Guideline provision. Instead, the Government contends that Sanchez’s 1995 Texas

conviction for attempted sexual assault of a child qualifies as a crime of violence

because that crime constitutes an attempt to commit the enumerated offenses of “statutory rape” and “sexual abuse of a minor Sanchez maintains in his appeal that his Texas conviction for attempted sexual assault of a child is not a crime of violence because the elements of the Texas “attempt” statute do “not satisfy the generic, contemporary definition of attempt.” Sanchez raised this objection in the district court. We review de novo.

The Guidelines do not define “attempt.” We therefore “‘employ a commonsense approach and define the term according to its generic, contemporary meaning.’”

United States v. Rosas-Pulido, 526 F.3d 829, 834 (5th Cir. 2008) (quoting United States v. Gonzalez-Ramirez, 477 F.3d 310, 316 (5th Cir. 2007)). We “should rely on a uniform definition, regardless of the ‘labels employed by the various States’ criminal codes.’” United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006) In determining whether a prior conviction is an enumerated offense and therefore constitutes a crime of violence, we use a “common sense approach.” United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. 2007). We determine “whether a prior conviction constitutes an enumerated offense as that offense is understood in its ordinary, contemporary, [and] common meaning.” Murillo-Lopez, 444 F.3d at 339. Ultimately, “[i]f the state definition for an offense is broader than the generic definition, a conviction under that state’s law cannot serve as a predicate for the [crime of violence] enhancement.” United States v. Ellis, 564 F.3d 370, 372 (5th Cir.), cert. denied, 130 S. Ct. 371 (2009); see also United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006) (“When the statute

of conviction encompasses prohibited behavior that is not within the plain, ordinary meaning of the enumerated offense, the conviction is not a crime of violence as a matter of law.”(internal quotation marks omitted)).

The crime of attempt generally consists of two elements, a mens rea

requirement and an actus reus requirement. The mens rea requirement for the crime of attempt is, in its most basic formulation, “an intent to commit some other crime.” The actus reus requirement exists in order to ensure that a criminal defendant cannot be punished unless he undertakes some act in furtherance of his criminal intent.

the generic, contemporary actus reus requirement for attempt is the Model Penal Code’s “substantial step” test. United States v. Hernandez-Galvan, 632 F.3d 192, 198 (5th Cir. 2011). … in United States v. Hernandez-Galvan, we identified a

purportedly unresolved issue with respect to the substantial step test. We noted an apparent inconsistency between two of our own cases applying the substantial step test, United States v. Mandujano and United States v. Oviedo. We observed that one plausible reading of Mandujano suggests that the substantial step test only requires a “slight act” that “amounts to something more than mere preparation.” We noted that “[o]n the other hand,” in Oviedo, “this court required that ‘the objective acts performed, without any reliance on the accompanying mens rea, mark the defendant’s conduct as criminal in nature.’ … Our decisions in Mandujano and Oviedo are not inconsistent when it is recognized that the substantial step test requires an act that is both strongly

corroborative of the actor’s criminal purpose and more than mere preparation. …

But our determination of whether the Texas attempt statute criminalizes conduct that would not satisfy the substantial step test must turn on realistic probabilities, not theoretical possibilities. That the Texas statutory language differs from the substantial

step test does not, in and of itself, establish that attempt in Texas does not constitute attempt under the Guidelines—the difference must be “significant as a practical matter.”

( this Court, sitting en banc, created a new “plain-meaning approach” for

non-common-law enumerated offenses. United States v. Rodriguez, 711 F.3d 541, 544 (5th Cir. 2013) (en banc). In Rodriguez, we explicitly noted that the new plain-meaning approach would not be employed in determining whether an aggravated assault conviction constitutes an enumerated offense. Id. at 552 n.17. Thus, Rodriguez is inapplicable to the instant case.

( An offense qualifies as a crime of violence under the pertinent sentencing guideline if it includes the element of use of force or constitutes an enumerated offense. § 2L1.2 cmt. n.1(B)(iii). Section 2L1.2 includes among the enumerated offenses the crime of “aggravated assault.” Id. The guidelines, however, “do not define the enumerated crimes of violence,” and therefore, “this court adopts a ‘common sense approach,’ defining each crime by its ‘generic, contemporary meaning.’” United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir. 2006). “When comparing the state conviction with

the generic, contemporary meaning of the crime, we examine the elements of the statute of conviction rather than the specifics of the defendant’s conduct.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006). … Although it is a question of federal law whether an offense constitutes a crime of violence under § 2L1.2, “we look to state law to determine [the offense’s] nature and whether its violation is a crime of violence under federal law.” United States v. Izaguirre-Flores, 405 F.3d 270, 273 (5th Cir. 2005).

( Indecency with a Child. Indecency with a child triggers a 16-level enhancement as a crime of violence under USSG § 2L1.2(b)(1)(A)(ii). United States v. Rodriguez, 711

F.3d 541, 548 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013). Latest case:

United States v. Elizondo-Hernandez, __ F.3d ___ (5th Cir. June 9, 2014)(13-40887).

( Burglary of a Building is a Crime of Violence. United States v. Conde-Castenada,

753 F.3d 172, 174 (5th Cir. 2014); see also United States v. Fearance, 582 F. App’x 416, 416-17 (5th Cir. 2014) (applying this holding to an ACCA case), cert. denied 135 S.Ct. 311 (2015). United States v. Herrold, _ F.3d __ (5th Cir. Jan. 12, 2015)(14—11317).

( Burglary of a Habitation Is a Crime of Violence. United States v. Herrold, __ F.3d

__ (5th Cir. Jan. 12, 2016)(14-11317). In determining that Herrold’s burglary of a habitation conviction qualified for enhancement, the district court declined to specify whether it fell within the ACCA as a generic burglary or as covered by the residual clause. After Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the residual clause is unconstitutionally vague, we can only affirm if Texas burglary of habitation is generic burglary. Of course, we may affirm on any basis supported by the record. United States v. McGee, 460 F.3d 667, 669 n.3 (5th Cir. 2006).

Under Taylor, generic burglary requires both entry and specific intent, which are not present in subsections 2 and 3, respectively.13 Subsection 1 is the only provision that includes both. As we later clarified, United States v. Silva, 957 F.2d 157 (1992), “could have only been referring to § 30.02(a)(1)” in holding that Texas burglary qualifies as generic burglary. This Court has consistently affirmed this interpretation of Silva in a series of unpublished opinions. See, e.g., United States v. Wallace, 584 F. App’x 263, 264-65 (5th Cir. 2014), cert. denied, 135 S. Ct. 1512 (2015) (“We have previously held that a conviction under § 30.02(a)(1) qualifies as a generic burglary for purposes of the ACCA.”); United States v. Hageon, 418 F. App’x 295, 298 (5th Cir. 2011) (“The Texas crime of burglary as defined in § 30.02(a)(1) therefore qualifies as a violent felony under the ACCA.”); United States v. Cantu, 340 F. App’x 186, 190-91 (5th Cir. 2009) (“[T]he Government has shown that Cantu’s burglary violated Tex. Penal Code § 30.02(a)(1) and thus is a violent felony.)

( Texas Aggravated Assault as a Crime of Violence under USSAG 2L1.2.

United States v. Ramos, (5th Cir. June 19, 2017)(16-41483):

In United States v. Guillen-Alvarez, 489 F.3d 197, 199-01 (5th Cir. 2007), we held that a conviction for aggravated assault in violation of Texas Penal Code § 22.02 qualifies as the enumerated offense of aggravated assault, and, thus, a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). Guillen-Alvarez remains valid after Mathis v. United States, 136 S. Ct. 2243 (2016). United States v. Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017). We are bound by our own precedent unless and until that precedent is altered by a decision of the Supreme Court or this court sitting en banc. See United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010). We have also rejected a challenge to the constitutionality of § 16(b) based on Johnson v. United States, 135 S. Ct. 2551 (2015). See United States v. Gonzalez-Longoria, 831 F.3d 670, 672-79 (5th Cir.) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259). The grant of certiorari in Lynch v. Dimaya, 137 S. Ct. 31 (2016), does not alter our holding in Gonzalez-Longoria. See Setser, 607 F.3d at 131. The judgment of the district court is AFFIRMED.

Criminal Contempt

( 18 U.S.C. § 401(3).

( Trial judge’s denial of a motion to recuse is reviewed for abuse of discretion.

Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir. 1999). If the issue is not raised by a separate motion to recuse in the district court, review is for plain error. See United States v. Molina, 530 F.3d 326, 329 2 (5th Cir. 2008); see also United States v. Westbrook, 119 F.3d 1176, 1185-86 (5th Cir. 1997) (collecting cases holding that a codefendant is not required to make the futile gesture of repeating or joining a motion or objection that has already been denied by the trial judge).

Criminal History

( Lindsey contends the district court erred by assessing two criminal-history

points for recency, under former Guideline § 4A1.1(e), which, at the time Lindsey

was sentenced, provided: “Add 2 points if the defendant committed the instant

offense less than two years after release from imprisonment on a sentence counted under (a) [sentences exceeding one year and one month] or (b) [sentences of at least 60 days] or while in imprisonment or escape status on such a sentence”. See U.S.S.G. Supp. to App. C, Amend. 742 (amended 1 Nov. 2010). Lindsey was sentenced prior to the effective date of Amendment 742, which deleted former Guideline § 4A1.1(e) and, thus, eliminated criminal-history points based on recency. Because Amendment 742 has not been made retroactively applicable, the district court correctly applied former Guideline § 4A1.1(e). See U.S.S.G. § 1B1.10(c).

( Pretrial Confinement and Suspended Sentence. United States v. Fernandez, __ F.3d ___ (5th Cir. Feb. 24, 2014)(13-50131): TJ assessed 2 points criminal history

for Colorado case where D served 254 days in pretrial confinement but the rest of

his time was suspended. Held the 254 days were over 60 days, so he gets 2 points history. “[A]lthough the maximum sentence imposed generally provides the measure for assigning criminal history points [pursuant to § 4A1.2(b)(1)], § 4A1.2(b)(2) limits the application of §§ 4A1.1(a)-(c) when a sentence is suspended.” United States v. Dixon, 230 F.3d 109, 112 (4th Cir. 2000). Additionally, where a prior sentence was “totally suspended or stayed,” it is treated as a one-point prior sentence under § 4A1.1(c). U.S.S.G. § 4A1.2(a)(3); see also United States v. Atkinson, 15 F.3d 715, 721 (7th Cir.

1994) (explaining same provision). …

Cross-Examination Limitation See also Confrontation Clause for cases

( The record reflects that the jury was provided with sufficient information to appraise Alexander’s bias and motives, and the limitation of Alexander’s cross-examination did not violate the Sixth Amendment. See United States v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993). The district court did not abuse its discretion in determining that the prejudicial effect of the proposed line of questioning outweighed its probative value. See United States v. Thorn, 917 F.2d 170, 176 (5th Cir. 1990). Moreover, any error would be harmless, because the testimony of the other three coconspirators was sufficient to prove Walker’s participation in the conspiracy. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

( From United States v. Gentle, __ F. App’x __ (5th Cir. Jan. 20, 2010)(08-11127): Cross-examination is not a form of “extrinsic evidence.” United States v. Townsend, 31 F.3d 262, 269 (5th Cir. 1994) (“Rule 608(b) provides that specific acts of misconduct, though they cannot be proved by extrinsic evidence, may be elicited on cross-examination.”).

( United States v. Farias-Farias, 925 F.2d 805, 810 (5th Cir. 1991) (Rule 608(b) does not “stand as a bar to the admission of evidence introduced to contradict, and which the jury might find disproves, a witness's testimony as to a material issue of the case.”); accord United States v. Opager, 589 F.2d 799, 802 (5th Cir. 1979); see also United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir. 1979) (“When the witness . . . was an accomplice or participant in the crime for which the defendant is being prosecuted, the importance of full cross-examination to disclose possible bias is necessarily increased.” (citation omitted)).

( United States v. Wilson, __ F. App’x __ (5th Cir. Nov. 15, 2010)(09-30742):

Claims of violation of the Sixth Amendment’s Confrontation Clause are reviewed de novo; if no Sixth Amendment violation exists, the cross-examination limitation is reviewed for abuse of discretion. United States v. Jimenez, 464 F.3d 555, 558-59 (5th Cir.

2006).

The Sixth Amendment guarantees a criminal defendant the right to cross-examine

witnesses testifying against him. E.g., Davis v. Alaska, 415 U.S. 308, 315 (1974). This right, of course, is not unlimited, see Delaware v. Van Arsdall, 475 U.S. 673, 679-80 (1986); and it is not infringed provided defendant is able to expose facts from which the jury could draw inferences as to the witness’ reliability, see United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). To show the alternative abuse of discretion, defendant must establish clear prejudice, so that “a reasonable jury might have had a significantly different impression of the witness’[] credibility if defense counsel had been allowed to pursue the questioning”. Id. at 548. Defendants are incorrect in insisting jurors were entitled to know the “magnitude of the benefit”made available to Miranda. The Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish”. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original). Jurors were made more than well aware of the potential bias associated with Miranda’s testimony. Moreover, had the district court permitted cross-examination of Miranda’s plea-agreement and corresponding Guideline sentencing-range, it would have improperly revealed to jurors the Guideline-range Heinrich and Wilson faced. See Pope v. United States, 298 F.2d 507, 508 (5th Cir. 1962) (informing jurors of matters relating to defendant’s sentence opens door to compromised verdicts and confuses issues to be decided). Additionally, revealing that range risked

unnecessarily confusing the jury, and one of the purposes of limiting crossexamination

is to avoid that. United States v. Hitt, 473 F.3d 146, 156-57 (5th Cir. 2006) (trial court retains wide discretion to limit cross-examination based upon concerns of prejudice and confusion). Rather than enter into a complex discussion about the mechanics of the advisory Sentencing Guidelines, the district court was correct to avoid confusing jurors, as well as avoid revelation of prejudicial information concerning Wilson’s and Heinrich’s possible sentences.

( Unlike mental retardation, being mentally ill does not bar death penalty. Ways v. State, 318 S.W.3d 368, 379 (Tex. Crim. App. 2010); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006); In re Woods, 155 Fed. App’x 132, 136 (5th Cir. 2005).

Cruel and Unusual Punishment

( See Eighth Amendment.

( United States v. Acuna, 5th Cir. (Oct. 30, 2017)(16-11225): D claims 200 months

for drug offense was cruel and unusual(We review his constitutional claim de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). Acuna’s assertion that his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment is without merit. The Eighth Amendment prohibits a sentence that is grossly disproportionate to the severity of the crime for which it is imposed. Solem v. Helm, 463 U.S. 277, 288 (1983). When evaluating an Eighth Amendment proportionality challenge, we make a threshold comparison between the gravity of the charged offense and the severity of the sentence. McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992). We look to Rummel v. Estelle, 445 U.S. 263 (1980), as a benchmark. United States v. Gonzales, 121 F.3d 928, 943 (5th Cir. 1997), abrogated on other grounds by United States v. O’Brien, 560 U.S. 218 (2010). The 200-month prison sentence is not grossly disproportionate to the severity of Acuna’s drug offense when measured against the benchmark in Rummel. See 445 U.S. at 284–85.

( from United States v. Smith, (5th Cir. May 1, 2015)(14-30816):

“The Eighth Amendment has been read to preclude a sentence that is greatly disproportionate to the offense, because such sentences are cruel and unusual.”United States v. Thomas, 627 F.3d 146, 160 (5th Cir. 2010). “On review, however, this court does not substitute its judgment for that of the legislature nor of the sentencing court as to the appropriateness of a particular sentence; it should decide only if the sentence is within the constitutional limitations.” Id. (citation and quotation marks omitted). Thus, our review is narrow, and “successful Eighth Amendment challenges to prison-term lengths will be rare.” Id. (citation and quotation marks omitted). In one case, a defendant was sentenced to 1,435 months, almost 90% of the sentence being for five section 924(c) violations. Id. at 159. In holding the sentence did not violate the Eighth Amendment, we stated that its length “was the result of a Congressional decision to establish mandatory minimum sentences for certain weapons offenses.” Id. at 160. Although the “‘sentence is a long one . . . . it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.’” Id. (quoting Ewing v. California, 538 U.S. 11, 30 (2003)). While Smith and Robinson’s sentences are lengthy, they are the result of congressionally established mandatory minimums. “[I]t is for Congress to ameliorate the result of application of statutory mandatory minimum sentences if it deems it too harsh.” United States v. Looney, 532 F.3d 392, 397 15 Case: 14-30816 Document: 00513028055 Page: 15 Date Filed: 05/01/2015 No. 14-30816 (5th Cir. 2008) (citation, quotation marks, and brackets omitted). These sentences do not constitute cruel and unusual punishment in violation of the Eighth Amendment.

Cumulative Error Doctrine

( United States v. Stephens, 571 F.3d 401 (5th Cir. 2009)(07-20899):

Under the cumulative error doctrine, relief may be obtained “only when constitutional errors so ‘fatally infect the trial’ that they violate the trial’s ‘fundamental fairness.’” United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) (citation omitted).

( Where we find no merit to any of appellant’s arguments of error, a claim of cumulative error fails. United States v. Moye, 951 F.2d 59, 63 n. 7 (5th Cir. 1992).

( United States v. Houston, (5th Cir. July 18, 2012)(11—20015)(Rev’d for cumulative error): These cumulative errors, therefore, “so fatally infect[ed] the trial that they violate[d] the trial’s fundamental fairness.” United States v. Stephens, 571 F.3d 401, 412 (5th Cir. 2009).

Curtilage

( The touchstone case for determining what part of a residence is “curtilage” is United States v. Dunn, 480 U.S. 294 (1987), which laid out a four-factor test: (1) the proximity of the area claimed to be cartilage to the house, (2) whether the area is included within an enclosure surrounding the house, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. Id. at 301. This test does not mechanically answer all curtilage questions, but

rather, “these factors are useful analytical tools only to the degree that, in any

given case, they bear upon the centrally relevant consideration—whether the

area in question is so intimately tied to the home itself that it should be placed

under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. … even if the officers had unlawfully entered the curtilage, any such violation was attenuated by Ima’s voluntary consent, which broke the chain of causation between the alleged violation and discovery of the evidence. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). Although the taint of violation was not cured by a long passage of time between Ima’s consent and the alleged violation or by other intervening circumstances, see United States v. Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir. 1993), those facts alone are not dispositive in a Brown analysis, see United States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990). … We agree with the Seventh and Eighth Circuits that the objection of an absent cotenant does not vitiate the consent of a physically present cotenant under Randolph. First, as both courts noted, Randolph self-consciously emphasized the importance of Randolph’s presence by repeatedly noting it when declaring and reiterating the holding. See Randolph, 547 U.S. at 106, 114, 121, 122, 123. Justice Breyer’s concurrence confirms the importance of physical presence. Id. at 126 (Breyer, J., concurring). Second, the Randolph Court seemed to have structured the holding as an exception to the general rule of Rodriguez and Matlock that a cotenant may consent to the search of a residence, id. at 106, a

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