Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

The Fifth Circuit affirmed defendant's conviction and sentence for conspiracy to defraud the United States, conspiracy to commit wire fraud, and three substantive counts of wire fraud, relating to the operation of his company, Gourmet Express. The court held that the IRS agents' search of defendant's home office did not violate the Fourth Amendment and therefore the district court did not err by admitting the seized evidence. In this case, the good faith exception to the exclusionary rule applied. The court rejected defendant's argument that the government violated due process by filing the second superseding indictment and held that the district court did not err in refusing to strike it. The court weighed the four Barker factors and held that plaintiff's Sixth Amendment right to a speedy trial was not violated. Finally, the court held that there was sufficient evidence to support defendant's convictions for wire fraud and conspiracy to commit wire fraud, and defendant's sentence was substantively reasonable. View "United States v. Scully" on Justia Law

Defendant appealed his 120 month sentence imposed after he pleaded guilty to possession with intent to distribute 28 grams or more of a mixture and substance containing cocaine base. Defendant argued that his 1994 conviction for robbery, in violation of Texas Penal Code 29.02, does not qualify as a crime of violence in light of the commentary in USSG 4B1.1. The Fifth Circuit denied the government's motion for summary affirmance and granted the government's motion for an extension of time to file its brief. The court held that the government has not addressed whether the holdings in the cases upon which it relies are equally applicable to cases involving section 4B1.2(a), notwithstanding the commentary to that guideline. Therefore, the government has not satisfied the standard for summary affirmance. View "United States v. Arambula" on Justia Law

The Fifth Circuit affirmed defendant's conviction and sentence for two counts of possession with intent to distribute a synthetic cannabinoid. The court held that the evidence was sufficient to sustain the jury's finding that defendant acted with the requisite mens rea; sentencing errors in the presentencing report did not affect defendant's sentence and were harmless; and the district court did not err by applying a sentencing enhancement under USSG 2D1.1(b)(12) for maintaining a premises for manufacturing or distributing a controlled substance. View "United States v. Moton" on Justia Law

The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress his statements and confession. Defendant was convicted of possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. The court held that, under the totality of the circumstances, the district court did not clearly err by determining that defendant knowingly waived his Miranda rights. In this case, defendant initially affirmed that he understood his right to an attorney prior to or during interrogation, there was a video of him signing the Spanish translated waiver, he had a second affirmation stating that he understood his rights, and he had an agreement to speak with the agents. View "United States v. Alvarado-Palacio" on Justia Law

The Fifth Circuit affirmed defendants' convictions for conspiracy and fraud for participating in a plot to defraud the federal workers’ compensation fund. The court held that the evidence was sufficient to convict Defendants Rose and Sanders of conspiracy to commit health care and wire fraud, as well as health care fraud and aiding and abetting. Furthermore, the evidence was sufficient to convict Rose of conspiracy to launder money, and of money laundering and aiding and abetting. The court also held that the district court did not plainly err by denying a motion for a mistrial, and there was no error in the district court's handling of a recalcitrant witness. Finally, the court upheld the criminal forfeiture order. View "United States v. Sanders" on Justia Law

The Fifth Circuit affirmed the district court's final order of garnishment under the Mandatory Victims Restitution Act. Defendant pleaded guilty and was convicted of wire fraud, mail fraud, and falsifying a tax return, all in connection with the ongoing theft of funds from her employers. Defendant was then ordered to pay restitution of more than $2 million. In order to enforce the judgment, five investment retirement accounts (IRAs), held under defendant and her husband's names, were garnished. After defendant agreed to release the funds, the government reapplied to garnish two accounts in the husband's name and the district court granted the writ. The court first rejected defendant's claim under federal law that any non-defendant spouse's IRA an be part of a defendant spouse's property or rights to property under 18 U.S.C. 3613. The court has previously held that notwithstanding its anti-alienation provision, 29 U.S.C. 1056(d)(1), Employee Retirement Income Security Act retirement accounts are subject to MVRA restitution awards. Furthermore, under United States v. Loftis, 607 F.3d 173 (5th Cir. 2010), the court held that defendant's one-half interest in her husband's solely managed IRA is part of all property and rights to property of the spouse fined under section 3613. Under Texas law, the court held that the husband's IRAs are solely managed community property, and that a wife has only a one-half interest in her husband's solely managed community property. Finally, the court held that the Consumer Credit Protection Act was inapplicable in this case. Therefore, the court held that half the funds—around $1 million—may be garnished now. View "United States v. Berry" on Justia Law

The Fifth Circuit affirmed defendant's sentence under the Armed Career Criminal Act (ACCA) imposed after he pleaded guilty to possessing a firearm after a felony conviction. Defendant argued that he could not be sentenced under the ACCA because 18 U.S.C. 924(a)(2), not 924(e), was charged in the indictment, and that his 2008 Mississippi robbery conviction does not constitute a violent felony conviction under the ACCA. Defendant conceded that his arguments are contrary to precedent but, nonetheless, wished to preserve the issues for further review. The court held that defendant's argument that the district court erred in sentencing him under the ACCA because section 924(e) was not cited in the indictment was unavailing. Furthermore, the court rejected defendant's challenges to his conviction for Mississippi robbery in light of its prior rulings and defendant's failure to cite Mississippi case law that establishes a realistic probability that Mississippi courts would apply the robbery statute to conduct that does not involve "the use, attempted use, or threatened use of physical force against the person of another." View "United States v. Williams" on Justia Law

The Louisiana offense of armed robbery qualifies as a violent felony under the Armed Career Criminal Act (ACCA). Defendant was sentenced as an armed career criminal after pleading guilty to one count of being a felon in possession of a firearm. In Louisiana, armed robbery is "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." The court stated that elements of simple robbery are the same, except that they lack the dangerous-weapon element. In United States v. Brown, 437 F.3d 450, 452 (5th Cir. 2006), the court held that the Louisiana crime of simple robbery qualifies as a violent felony under the ACCA. The court rejected defendant's contention, under the rule of orderliness, that the Brown panel must have relied on the residual clause when it concluded that the use of force needed for robbery was the same as the use of force contemplated in the ACCA. Furthermore, subsequent precedent has supported, rather than overruled, Brown. View "United States v. James" on Justia Law

The Fifth Circuit affirmed defendant's sentence for conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine, plus two counts of unlawful use of communications facilities. The court held that the BOP did not abuse its discretion by refusing to construe defendant's request for custody credit as a request for nunc pro tunc designation. In any event, defendant failed to establish that the BOP has made a final decision on a nunc pro tunc request, and thus his claim has not been administratively exhausted; the BOP did not err by declining to award custody credit under Willis v. United States, 438 F.2d 923 (5th Cir. 1971); and neither 18 U.S.C. 3553(e) nor 3553(f) applied to defendant's situation and thus granting his request would place his sentence below the statutory minimum. View "Smith v. McConnell" on Justia Law

Defendant-appellant Clifford Mecham took his computer to a technician for repairs. The technician discovered thousands of images showing nude bodies of adults with faces of children superimposed. The technician reported the pornography to the Corpus Christi Police Department. Unlike virtual pornography, this “morphed” child pornography used an image of a real child. Like virtual pornography, however, no child actually engaged in sexually explicit conduct. The Fifth Circuit Court of Appeals determined the circuits disagreed about whether morphed child pornography was protected speech. The Fifth Circuit agreed with the majority view that morphed child pornography did not enjoy First Amendment protection, so it affirmed defendant's conviction for possessing child pornography. "But the fact that the pornography was created without involving a child in a sex act does mean that a sentencing enhancement for images that display sadistic or masochistic conduct does not apply," so defendant's case was remanded for resentencing. View "United States v. Mecham" on Justia Law