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

Officers performed a traffic stop of Alvarado’s vehicle. Alvarado's girlfriend, Lujan, was in the vehicle. With Alvarado’s consent, they searched the vehicle and discovered 28.505 grams of methamphetamine and a firearm. The officers also discovered a gun, 1 gram of methamphetamine, and 0.4 grams of marijuana in Lujan’s purse. A search of Alvarado's and Lujan’s hotel room revealed another firearm, 109.7 grams of methamphetamine, 24.137 grams of heroin, 22 grams of marijuana, and $10,694 in currency. A month later, police stopped Lujan's vehicle. She consented to a search. Officers discovered 28.51 grams of methamphetamine and eight ecstasy pills. Lujan admitted that she had sold approximately three ounces of methamphetamine since Alvarado’s arrest.According to her PSR, Lujan was accountable for 1.85 kilograms of methamphetamine: 167.715 grams, seized from Alvarado and Lujan, three ounces Lujan admitted to selling, and 1,600 grams based on a cash-to-drug conversion of the $10,694 seized from the hotel room. Her Sentencing Guidelines range was 168-210 months. Lujan objected to the PSR’s cash-to-drug conversion as inappropriately using the “wholesale” price of methamphetamine, rather than “the going price of methamphetamine . . . to an average user,” i.e., the “retail” price. The district court overruled the objections and sentenced Lujan to 168 months’ imprisonment. The Fifth Circuit vacated. The district court implausibly found that Lujan would have used the entirety of the $10,694 to purchase more methamphetamine. View "United States v. Lujan" on Justia Law

Hammond pleaded guilty to bank fraud, money laundering, and obstructing the administration of internal revenue laws in 2017. The district court granted him a U.S.S.G. 5K1.1 downward departure and a downward variance, then sentenced him to one year and one day of imprisonment with three years of supervised release. Hammond was released in August 2019. In March 2021, the Probation Office (USPO) filed to revoke Hammond’s supervised release, alleging two Class C violations. Hammond admitted to failing to report a DUI arrest. The district court found him guilty of sending an impersonator to take a drug test, calculated Hammond’s guideline range at five-11 months, upwardly departed under Guidelines section 7B1.4 cmt. n.4 and imposed a 24-month sentence.Hammond claimed that the district court failed to put him on notice that it might upwardly depart under section 7B1. The Fifth Circuit affirmed. Before the revocation hearing, USPO submitted a violation worksheet, and the government submitted a revocation sentencing memorandum. Both discussed the possibility of an upward departure under 7B1.4, which provides: Where the original sentence was the result of a downward departure (e.g., as a reward for substantial assistance), or a charge reduction that resulted in a sentence below the guideline range applicable to the defendant’s underlying conduct, an upward departure may be warranted. View "United States v. Hammond" on Justia Law

In 2019, the Fifth Circuit affirmed Fuentes-Rodriguez’s sentence imposed after he pleaded guilty to illegal reentry into the U.S. following deportation and having been previously convicted of an aggravated felony. The court held that his prior Texas conviction qualified as a crime of violence under 18 U.S.C. 16. While his petition was pending, the Supreme Court decided in "Borden" that a crime capable of commission with “a less culpable mental state than purpose or knowledge,” such as “recklessness,” cannot qualify as a “violent felony” under 18 U.S.C. 924(e)(2)(B)(I), the Armed Career Criminal Act (ACCA).On remand from the Supreme Court, the Fifth Circuit vacated. Fuentes-Rodriguez’s underlying Texas conviction qualifies as an aggravated felony only through 18 U.S.C. 16(a), which defines a “crime of violence” almost identically to the ACCA’s “violent felony” provision at issue in Borden. Fuentes-Rodriguez should not have been sentenced under 8 U.S.C. 1326(b)(2) because Texas’s family-violence assault can be committed recklessly. His conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction for a non-aggravated felony. The district court’s judgment should be reformed because section 1326(b)(2) is associated with worse collateral consequences than section 1326(b)(1). Remanding the case for entry of an amended judgment, reflecting that Fuentes-Rodriguez was convicted and sentenced under 8 U.S.C. 1326(b)(1) as an “Alien Unlawfully Found in the United States after Deportation, Having Previously Been Convicted of a Felony,” will reduce the risk of future confusion. View "United States v. Fuentes-Rodriguez" on Justia Law

The Fifth Circuit affirmed defendant's conviction for mail fraud, concluding that there was sufficient evidence for the jury to find that defendant, through her adoption agency, engaged in a scheme to defraud two families seeking to adopt by double matching them with one birth mother. In this case, a reasonable jury could have found that defendant used the mails to further her fraudulent scheme, and that defendant had the specific intent to defraud in executing the double matching scheme. The court also concluded that the district court did not err in applying a two-level vulnerable victim sentencing enhancement under USSG 3A1.1(b)(1). Finally, the court upheld the district court's order of restitution to one of the families. View "United States v. Swenson" on Justia Law

The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress drugs found in two packages that were seized by the USPS. Based on the aggregate of factors, and contrary to defendant's contentions, the court concluded that the postal employee had reasonable suspicion to detain the packages. The court also concluded that the 17-day delay between the detention of the package and its search did not constitute an unreasonable, warrantless seizure in violation of the Fourth Amendment. In this case, the eight-day delay between the establishment of probable cause and obtaining the search warrants was reasonable. Finally, defendant's argument that the search warrants were invalid is meritless. Accordingly, the court affirmed defendant's conviction and sentence. View "United States v. Martinez" on Justia Law

On remand from the Supreme Court in light of Borden v. United States, 141 S. Ct. 1817 (2021), the Fifth Circuit concluded that the robbery offense of which appellee was convicted under the Texas simple robbery statute, Tex. Penal Code Ann. 29.02, was robbery-by-threat, a valid Armed Career Criminal Act (ACCA) predicate for an enhanced sentence that was not affected by Borden. Therefore, the court reinstated its judgment reversing the district court's imposition of a lesser sentence, and remanded to the district court for resentencing under the ACCA. View "United States v. Garrett" on Justia Law

The Fifth Circuit affirmed defendant's 65 month sentence imposed after he pleaded guilty to illegal reentry. The court stated that, although the district court committed plain error by relying on a bare arrest record at sentencing, the error did not affect defendant's substantial rights because he cannot show that he would have received a lesser sentence absent the error. In this case, given the district court's emphasis on defendant's immigration history, and in particular the decision to impose the same 65 month sentence he had received previously, the court cannot say that there is a reasonable probability that the district court would have imposed a lesser sentence absent consideration of the bare arrest record. View "United States v. Zarco-Beiza" on Justia Law

Pennywell delivered his petition for direct review of his state conviction—which resulted in multiple life sentences—to prison guards for mailing. Through some unknown fault in the mailing process, the Louisiana Supreme Court never received the petition. Once Pennywell discovered the petition had never arrived at the Louisiana Supreme Court, he promptly refiled it. As a result of the untimeliness caused by the mailing failure of his first petition, however, the Louisiana Supreme Court dismissed his renewed petition for direct review as untimely. That decision was the basis for all subsequent denials of state and federal post-conviction relief.The Fifth Circuit reversed the district court’s dismissal of Pennywell’s petition, holding that Pennywell was entitled to equitable tolling. The failure to timely deliver the petition to the Louisiana Supreme Court was through no fault of Pennywell; by the failure of the mail system, Pennywell was “prevented in some extraordinary way from asserting his rights.” Given the undisputed facts, Pennywell demonstrated due diligence and an extraordinary circumstance that justify equitable tolling. View "Pennywell v. Hooper" on Justia Law

On remand from the Supreme Court, the Fifth Circuit agreed with the parties that, in light of Borden v. United States, 141 S. Ct. 1817 (2021), defendant's conviction for aggravated assault in Texas does not qualify as an aggravated felony under 8 U.S.C. 1326(b)(2). The court remanded the case to the district court for the limited purpose of reforming its judgment to reflect defendant's conviction and sentencing under section 1326(b)(1). View "United States v. Gomez Gomez" on Justia Law

The Fifth Circuit dismissed a petition for review of the BIA's decision finding petitioner subject to removal because he committed two crimes involving moral turpitude (CIMTs) under 8 U.S.C. 1227(a)(2)(A)(ii). After determining that res judicata does not bar the proceedings, the court concluded that petitioner's conviction for deadly conduct qualified as a CIMT because reckless offenses may constitute CIMTs and deadly conduct, which requires an offender to take actions creating imminent danger or serious physical injury, is categorically a CIMT. The court also concluded that petitioner's 2005 adjustment to lawful permanent resident status constitutes the operative admission for purposes of this removal proceeding under section 1227(a)(2)(A)(ii). Therefore, because petitioner's convictions for deadly conduct and evading arrest occurred after he adjusted his status, he has been convicted of two CIMTs after admission to the United States. View "Diaz Esparza v. Garland" on Justia Law