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

Defendant was convicted of drug and money laundering offenses and sentenced to over twenty years in prison. In subsequent filings under 28 U.S.C. 2255, defendant asserted the reason for him not filing a direct appeal was his counsel's failure to file despite being asked to do so at sentencing. Defendant later claimed that his counsel also failed to advise him of his appellate rights and failed to consult with him about the virtues of an appeal over the course of his counsel's representation.The Fifth Circuit granted a certificate of appealability (COA) and concluded that the district court did not err in concluding that defendant's failure-to-advise and failure-to-consult claims did not relate back to his failure-to-file claim and were, as a result, untimely. The court found persuasive the approach recently taken by the Tenth Circuit in United States v. Roe, 913 F.3d 1285, 1298–300 (10th Cir. 2019), and concluded that defendant's newly raised claims do not arise out of the same set of facts as his earlier failure-to-file claim. As in Roe, defendant's failure-to-file claim is limited in time and fact to one specific event: the entire claim turns on whether one of his attorneys heard and then failed to follow defendant's alleged whisper at the sentencing hearing. Defendant's claims to the contrary are unavailing. View "United States v. Alaniz" on Justia Law

The Fifth Circuit denied the petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for cancellation of removal because petitioner's prior Texas conviction for delivering cocaine, in violation of Texas Health and Safety Code 481.112, is included in the Controlled Substances Act (CSA).The court concluded that the rule of orderliness does not apply to the court's previous reliance on the government's concession that an offer to sell falls outside the CSA. Because there is no binding precedent, the court held that section 481.112's offer-to-sell theory falls within the CSA, which makes it unlawful for any person knowingly or intentionally to distribute a controlled substance. The court explained that section 481.112's offer-to-sell theory requires (1) the requisite culpability and (2) a substantial step. Therefore, it falls within the CSA's definition of an attempted transfer. View "Ochoa-Salgado v. Garland" on Justia Law

The Fifth Circuit affirmed defendant's sentence imposed after he pleaded guilty to both counts of a two-count indictment for conspiracy to possess with intent to distribute heroin and methamphetamine. The court concluded that defendant's sentence was not substantively unreasonable and the district court did not abuse its discretion by imposing a 240-month sentence on each count, to run concurrently. In this case, the district court did not abuse its discretion in considering the 18 U.S.C. 3553(a) sentencing factors, including the fact that death resulted from defendant's offense; the upward variance fell within the statutory maximum; and the district court did not improperly consider that the drugs defendant provided the deceased caused her death. View "United States v. Hudgens" on Justia Law

The Fifth Circuit affirmed defendant's conviction for possessing child pornography. The court concluded that the district court did not err in denying defendant's motion to suppress evidence of his statements to HSI agents and the evidence from his laptop. The court weighed the totality of the circumstances and concluded that defendant was not in custody at the time he made the statements and thus Miranda warnings were not necessary. The court also weighed the factors for determining whether a consent to a search was voluntary and concluded that the district court did not err in determining that defendant's consent to the search of his laptop was voluntary.The court further concluded that there was no error in the admission of several pieces of evidence and witness testimony. Even if the district court did err, the error was harmless. Finally, the court concluded that the evidence was sufficient to convict defendant of knowing possession of child pornography. View "United States v. Michalik" on Justia Law

Defendant was convicted of violating 18 U.S.C. 2114(a) by assaulting mail carriers and putting their lives in danger, and violating 18 U.S.C. 924(c)(1)(A) and (c)(3)(B) by using a firearm in relation to a crime of violence. Defendant was sentenced to 552 months in prison, including four concurrent sentences for 168 months based on the fact that defendant put his victims' lives in jeopardy by the use of a dangerous weapon. Defendant was subsequently granted a certificate of appealability (COA) on whether the district court erred by denying defendant's 28 U.S.C. 2255 motion as untimely. In this case both sides agree that defendant's COA is invalid because it fails to specify a constitutional issue.Given the plain text of 28 U.S.C. 2253(c)(2), Supreme Court precedent, and the similarities between the COA requirement and other habeas doctrines, the Fifth Circuit held that an invalid COA can and should be vacated. In so holding, the court aligned its circuit with the strong majority of circuits that have confronted this issue. View "United States v. Castro" on Justia Law

The Fifth Circuit affirmed defendant's convictions and sentence for his role in an alien smuggling operation during which an alien died. The court concluded that there was no Confrontation Clause violation where the government undertook reasonable efforts to secure the attendance of deported witnesses at trial. The court also concluded that the government was not required to prove that defendant directly received payments for transporting the illegal aliens, and the district court did not abuse its discretion by including a statement saying such in the jury instructions. The court further concluded that the evidence was sufficient to support defendant's convictions.In regard to defendant's sentence, the court concluded that there was no error in the district court's denial of a downward departure for defendant's acceptance of responsibility where he put the government to its burden of proof at trial. Furthermore, there was no error in the application of a ten-level enhancement for the death of one of the aliens. Finally, the court concluded that defendant's bottom-of-the-Guidelines sentence of 78 months was procedurally and substantively reasonable. View "United States v. Gaspar-Felipe" on Justia Law

Defendants Judith and Dick Brocato were convicted by a jury of conspiracy to commit tax fraud, and filing false returns. Defendants were sentenced to 33 months imprisonment on all counts, to run concurrently. On appeal, defendants seek recusal of the district judge, vacatur of their sentences, and resentencing by a different judge. In this case, defendants argued that the district court's "sua sponte, ex parte investigation into Judith's credibility," its accusation of perjury, and its decision to increase both defendants' bond obligations evinced actual or apparent bias warranting recusal.The Fifth Circuit concluded that certain statements of the district court judge were ill-advised and certain actions of her staff were improper, but nonetheless affirmed because, after a thorough review of the record, the court concluded that there was no actual bias or reasonable question as to the judge's impartiality in this case that would require recusal. The court explained that a reasonable and objective observer, aware of all of the facts and circumstances, would not harbor doubts about the judge's impartiality. View "United States v. Brocato" on Justia Law

The Fifth Circuit held that Texas's intoxication manslaughter statute, Tex. Penal Code 49.08(a), does not constitute a "crime of violence" under 18 U.S.C. 16. Therefore, the court concluded that the district court erred when it convicted and sentenced defendant under 8 U.S.C. 1326(b)(2) based on his prior conviction under Texas Penal Code 49.08(a). Nonetheless, the court concluded that the error did not ultimately affect defendant's sentence because there is no indication anywhere in the record that the sentence imposed here was influenced in any way by an incorrect understanding of the statutory maximum sentence. Rather, defendant concedes that the district court entered a sentence within the Guidelines range, and below the statutory maximum of section 1326(b)(1). Moreover, the district court did not even cite section 1326(b)(2) in its sentencing decision. Accordingly, the court reformed the judgment to correct the error under section 1326(b)(2) and affirmed the sentence as reformed. View "United States v. Trujillo" on Justia Law

Samuel Abram was convicted by jury of possession of a firearm by a convicted felon. In Rehaif v. United States, 139 S. Ct. 2191 (2019), the United States Supreme Court decided that that crime required the government to prove the defendant's knowledge of his felony status. Because his indictment didn’t allege such knowledge, Abram petitioned for a writ of habeas corpus under 28 U.S.C. 2241, which the district court dismissed for lack of jurisdiction. The Fifth Circuit Court of Appeals found that Abram provided only a conclusory assertion he was "actually innocent" of his firearm conviction. He did not contend he was unaware of his felony status. "And that’s fatal: Where a prisoner seeks relief under Rehaif but fails to 'argue that he was unaware of his [relevant] status, he has failed to demonstrate that he [is] entitled to proceed under § 2255(e)’s savings clause.'” Accordingly, the district court's dismissal was affirmed. View "Abram v. McConnell" on Justia Law

The Fifth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion seeking to vacate his sentence based on the ineffective assistance of counsel. The court concluded that defendant failed to meet his burden of showing that counsel's decision to forego a suppression motion was unreasonable under prevailing professional norms and that her decision was not sound strategy. Therefore, defendant failed the first prong of the Strickland v. Washington analysis. In this case, counsel provided constitutionally adequate representation when she decided to forego a suppression motion to follow her strategy of preventing additional charges from being brought against defendant. View "United States v. Scott" on Justia Law