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

The Fifth Circuit denied the petition for review challenging the BIA's determination that petitioner is statutorily ineligible for withholding of removal and not entitled to protection under the Convention Against Torture (CAT). The court concluded that the BIA did not err by holding that the 2019 IJ could reexamine whether petitioner's felony assault conviction was a particularly serious crime. After determining that the court had jurisdiction to review petitioner's alternative argument, the court concluded that the BIA did not err in determining on the merits that petitioner was ineligible for withholding of removal because his felony assault conviction was a particularly serious crime. Finally, the court concluded that a foreign government's "failure to apprehend the persons threatening the alien" or "the lack of financial resources to eradicate the threat or risk of torture" do not constitute sufficient state action for petitioner to be entitled to protection under the CAT. View "Aviles-Tavera v. Garland" on Justia Law

The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress evidence of sexually explicit Facebook chats with an underage minor on the ground that Facebook and NCMEC are government agents. The court concluded that defendant failed to carry his burden of showing that Facebook is a government agent or instrument, and thus the private search doctrine applies. The court also concluded that later investigative techniques employed by NCMEC and government officials did not impermissibly expand the scope of the original search. View "United States v. Meals" on Justia Law

The Fifth Circuit affirmed defendant's conviction for using two counterfeit passports to open bank accounts, but vacated his sentence and remanded for resentencing. The court concluded that the district court did not err, let alone abuse its discretion, in admitting two webcam photos in evidence where the photos were properly authenticated. The court also concluded that any error in excluding the photo of the fake driver's license was harmless. However, the court concluded that the district court clearly erred in calculating defendant's guideline range when it used USSG 1B1.3(a)(2)'s broad definition of relevant conduct, even though that provision does not apply to defendant's offenses of conviction. Furthermore, application of the correct definition would have left defendant with a guidelines range of 10-16 months for each count, rather than the 27-33 months for each count that the district court calculated. View "United States v. Okulaja" on Justia Law

The Fifth Circuit affirmed defendant's 51-month sentence imposed after a jury found him guilty of fraudulently obtaining federal worker's compensation benefits and stealing government property. The court concluded that the district court did not procedurally err by calculating defendant's sentencing range under USSG 2B1.1, which sets forth the applicable guidelines for crimes involving fraud and deceit. In this case, the facts in the PSR were derived from the trial testimony of an Air Force human resources specialist who explained that defendant stood to receive more than $850,000 in benefits over the course of his life. Furthermore, the trial testimony, which formed the basis of the specific loss amount adopted by the PSR and district court, went entirely unchallenged. The court also concluded that defendant's top-of-the-guidelines sentence was substantively reasonable where the district court considered the 18 U.S.C. 3553(a) factors and the sentence imposed does not overstate defendant's culpability in the underlying offense. View "United States v. Vargas" on Justia Law

On remand from the Supreme Court in light of Borden v. United States, 141 S. Ct. 1817, 1834 (2021), which held that offenses involving a mens rea of recklessness do not qualify as violent felonies under the Armed Career Criminal Act (ACCA), the Fifth Circuit vacated defendant's sentence and remanded for reconsideration. The court remanded because the district court did not have the benefit of this intervening Supreme Court authority at sentencing, resulting in an erroneous guidelines calculation, and because the Government has failed to show that the error was harmless. View "United States v. Greer" on Justia Law

The Fifth Circuit affirmed the district court's grant of defendant's motion to reduce his sentence under the First Step Act of 2018 from life to 40 years imprisonment. The court concluded that the district court did not abuse its discretion in reducing defendant's sentence where the district court noted that a significant prison term was still warranted based on his previous recidivism and the violence that accompanied his past crimes. The court stated that it has never held that courts must consider the 18 U.S.C. 3553(a) sentencing factors when assessing a sentence reduction under the Act. Finally, the court rejected defendant's argument that he was entitled to a hearing regarding his post-sentence behavior. Finally, the district court did not abuse its discretion in declining to reduce defendant's sentences for Counts One and Three, because the statutory penalties for those counts are not covered under the Act. View "United States v. Abdul-Ali" on Justia Law

While on supervised release, Ortega admitted to drug violations. The district court revoked Ortega’s supervised release and sentenced her to an additional two years in prison and one year of supervised release, with a condition requiring Ortega to “reside in [a] Reentry Center and successfully participate in [a] Residential Reentry Program for a period of at least 4 months to be released at the direction of the probation officer” and to “initially participate in [the Reentry Program’s] community corrections component,” but Ortega “may become eligible the last one-third of the term of confinement for placement in [the Program’s] prelease component upon approval of the program review team.” Ortega did not initially object to the condition, but later argued that the condition “impermissibly delegated authority to the probation officer by allowing the probation officer to determine the duration of a residential treatment program.”The Fifth Circuit affirmed. A court errs when it surrenders “‘the final say’ on whether to impose a condition” or leaves to probation the details of a condition involving “a ‘significant deprivation of liberty,’” but does not err when it assigns a probation officer reasonable authority to supervise participation in a treatment program, including the program’s “modality, intensity, and duration.” The district court’s modest delegation of supervisory authority was proper; the special condition is specific and restrictive and directs probation to release Ortega within a particularized eight-month window, subject to its superior knowledge of Ortega’s situation. View "United States v. Ortega" on Justia Law

The Fifth Circuit denied petitioner, who is convicted of murder and sentenced to death, a certificate of appealability (COA) on all of his claims. The court concluded that petitioner did not sufficiently plead his Confrontation Clause claim and neither of his alternative arguments have any merit. The court also concluded that the state court's conclusion that petitioner's counsel was not ineffective for failing to use a peremptory strike against certain jurors was supported by the evidence and its legal conclusion that petitioner did not satisfy Strickland v. Washington's first prong was therefore not unreasonable; petitioner's Batson claims are either procedurally defaulted or the district court's rejection of petitioner's Batson claim is not debatable; petitioner's claim that counsel was ineffective by making an incomplete Batson claim also failed; even assuming counsel was ineffective for failing to object to the introduction of certain testimony, the error was not prejudicial; and no reasonable jurist could find that the habeas court's decision regarding counsel's ineffectiveness (for not arguing that petitioner's mental illness rendered his confession involuntary) was unreasonable. View "Harper v. Lumpkin" on Justia Law

Bittner non-willfully failed to report his interests in foreign bank accounts on annual FBAR forms, as required by the Bank Secrecy Act of 1970 (BSA), 31 U.S.C. 5314. The Act imposes no penalty for a non-willful violation if “such violation was due to reasonable cause.”The government assessed $2.72 million in civil penalties against him—$10,000 for each unreported account each year from 2007 to 2011. The district court found Bittner liable and denied his reasonable-cause defense but reduced the assessment to $50,000, holding that the $10,000 maximum penalty attaches to each failure to file an annual FBAR, not to each failure to report an account.The Fifth Circuit affirmed the denial of Bittner’s reasonable-cause defense. Bittner did not exercise ordinary business care and prudence in failing to fulfill his reporting obligations. In assessing reasonable cause, the most important factor is the extent of the taxpayer’s effort to assess his proper liability. The court reversed with respect to the application of the $10,000 penalty. Each failure to report a qualifying foreign account constitutes a separate reporting violation subject to penalty. The penalty applies on a per-account, not a per-form, basis. View "United States v. Bittner" on Justia Law

The Fifth Circuit concluded that the evidence was sufficient to support defendant's conviction for possessing a gun in furtherance of a drug trafficking conspiracy. Accordingly, the court affirmed defendant's conviction. However, the court vacated the forfeiture award, concluding that forfeiture was plainly erroneous under Honeycutt v. United States, 137 S. Ct. 1626 (2017), because it imposed joint and several liability for proceeds defendant did not personally obtain. View "United States v. Moya" on Justia Law