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

The Fifth Circuit denied a petition for review of the BIA's decision upholding the IJ's determination that defendant was subject to removal from the United States because he had been convicted of a crime involving moral turpitude. The IJ determined that the plea agreement signed by petitioner, his defense counsel, and the prosecutor was clear and convincing evidence of a criminal conviction because it contained an indication of guilt and the sentence imposed. Applying a deferential standard of review, the court concluded that petitioner failed to show that the IJ or BIA violated a statutorily imposed evidentiary requirement by finding that the plea agreement at issue proved the existence of a forgery conviction by clear and convincing evidence. Therefore, it is not, as a matter of law, deficient or inadmissible. View "Vu Quang Nguyen v. Garland" on Justia Law

The Fifth Circuit vacated defendant's sentence for making false statements and representations regarding firearm records. USSG 2K2.1(a)(4)(B) provides for a base offense level of 20 if, inter alia, the offense involved a semiautomatic firearm that is capable of accepting a large capacity magazine. In United States v. Longoria, 958 F.3d 372, 377 (5th Cir. 2020), the court held that the commentary to the Guidelines, which further defines what it means for a firearm to be capable of accepting a large capacity magazine, is authoritative and must be enforced.In this case, after Longoria was decided, the district court applied section 2K2.1(a)(4)(B), but not the accompanying commentary. Nor did the presentence report indicate that a magazine capable of holding over fifteen rounds of ammunition was either attached to or in close proximity to the firearm in question—let alone bear sufficient indicia of reliability to be considered as evidence during sentencing—as required under the commentary. Accordingly, the court remanded for resentencing consistent with both the Sentencing Guidelines and the accompanying commentary. View "United States v. Abrego" on Justia Law

The Fifth Circuit affirmed defendant's conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1) & 924(e). In this case, defendant was approached by police officers after a tip was received that he was illegally selling CDs outside of a store in a high-crime area. After defendant voluntarily opened the trunk of his vehicle, he was arrested for unlawful labeling of CDs. A search of defendant and his vehicle uncovered a loaded pistol, magazine, cash, drugs, and drug paraphernalia.The court concluded that the district court did not err in denying defendant's motion to suppress defendant's voluntary statements made prior to being in custody after finding the police had reasonable suspicion to detain defendant and probable cause to arrest him and search his vehicle. The court explained that, although the totality of the circumstances suggest that defendant was not free to leave, his restraint had not yet reached the level necessary to necessitate Miranda warnings. In light of Shular v. United States, 140 S. Ct. 779, 782 (2020), persuasive authority in the court's sister circuits, and the court's own precedent, the court concluded that the district court correctly concluded that defendant's convictions could serve as predicates for his Armed Career Criminal Act enhancement. Finally, the court concluded that the district court did not err by applying a four-level sentencing enhancement under USSG 2K2.1(b)(6)(B) for being a felon in possession of a firearm. View "United States v. Bass" on Justia Law

The Fifth Circuit affirmed defendant's conviction and sentence for malicious injury of property located on "Indian country" in violation of 18 U.S.C. 1152 and 1363. On Columbus Day in 2017, defendant poured red paint on a statue of Nestora Piarote, an Indigenous woman, and placed a wooden cross in front of it. The statue was located in El Paso County, Texas, on land reserved to the Yselta Del Sur Indian Tribe (also known as the Tigua Indian Tribe).The court concluded that, with respect to crimes prosecuted via section 1152, settled and reconcilable Supreme Court doctrine, as well as principles of statutory construction, demonstrate that, when the victim is Indian, the defendant's status as Indian is an affirmative defense for which the defendant bears the burden of pleading and production, with the ultimate burden of proof remaining with the Government. In this case, defendant did not raise the issue of Indian status at trial as an affirmative defense, and thus the Government met its burden to prove the jurisdictional element of section 1363 (as extended by section 1152) by introducing evidence sufficient to establish that the offense occurred in Indian country. Finally, the court rejected defendant's contention that the district court erred at sentencing by incorrectly applying USSG 2B1.5, because it should have used the repair cost of $1,800 as the "value" of the statue for purposes of applying the enhancement, rather than its $92,000 purchase price. Rather, the text of section 2B1.5 foreclosed defendant's argument and the Sentencing Commission's explanation of why it promulgated section 2B1.5 further cuts against defendant's view. View "United States v. Haggerty" on Justia Law

The Fifth Circuit reversed defendant's below-Guidelines sentence imposed after he pleaded guilty to a terrorism charge. The court concluded that defendant's sentence was substantively unreasonable where the district court did not account for a sentencing factor -- the seriousness of defendant's offense -- that should have received significant weight. In this case, the judge characterized and discounted defendant's conduct effectively so as to contradict the facts defendant admitted in his plea agreement. Furthermore, the judge failed to acknowledge that defendant had facilitated and fully supported the purposes and atrocities of ISIS.Accordingly, the court remanded for a second resentencing. Because the sentencing judge seems immovable from his views of the sentence he imposed, and because the judge displayed bias against the government and its lawyers, the court sua sponte reassigned this case to a different judge. View "United States v. Khan" on Justia Law

Michael and Cynthia Herman were convicted of one count of conspiracy to defraud the United States. Michael was convicted of five counts and Cynthia of two counts of willfully filing false tax returns. Defendants' convictions stemmed from their understated gross receipts and claiming of personal expenses as business expenses on their tax returns.The Fifth Circuit affirmed the district court's judgment, concluding that the district court did not reversibly err in excluding some of the proffered defense exhibits; the district court did not err in excluding testimony from defendants' forensic accountant regarding the overstated gross receipts and payment of personal expenses with business funds; and there was no Confrontation Clause violation in the district court's limiting of the cross-examination of two Government witnesses. The court joined its sister circuits in declining to extend the Marinello nexus requirement to 18 U.S.C. 371's defraud clause, and accordingly hold that Count One of the indictment is legally sufficient. Finally, the court concluded that there are no errors that the court could aggregate to find cumulative error. View "United States v. Herman" on Justia Law

The Fifth Circuit affirmed defendants' convictions for one count of conspiracy to defraud the United States, based on their efforts to defraud the FDA and to misbrand drugs. Defendants, along with two corporate entities that they owned and controlled, owned and operated a chain of smoke shops in Texas and New Mexico.The court concluded that the district court's conspiracy-to-defraud jury instructions were correct statements of law; a jury would have concluded that defendants' misbranding tended to influence, or was capable of influencing, the FDA's decisionmaking based on evidence presented at trial; and the district court's jury instruction "substantially covered" defendants' proposed instruction and did not misstate the law. The court also concluded that the evidence was sufficient to support the conviction for conspiracy to defraud the FDA; the evidence was sufficient to prove the felony misbranding offense; and defendants' 36-month sentences were substantively reasonable. View "United States v. Gas Pipe, Inc." on Justia Law

The Fifth Circuit vacated defendant's guilty plea for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). The court concluded that there is no evidence in the record that defendant had either actual or constructive possession of the .38 revolver. In this case, defendant signed a factual basis document indicating the only interaction he had with the firearm was that he had "touched" a .38 caliber revolver while at a friend's house. The court explained that the plain text of section 922(g), logic, and analysis of precedent all reveal that mere touching is insufficient to establish possession. Therefore, the district court plainly erred by accepting the guilty plea and the error affected defendant's substantial rights. The court remanded for entry of a new plea and for further proceedings. View "United States v. Smith" on Justia Law

The Fifth Circuit vacated the district court's denial without prejudice of defendant's motion for compassionate release. The court joined other circuits in its subsequent opinion, United States v. Shkambi, No. 20-40543, 2021 WL 1291609 (5th Cir. Apr. 7, 2021), holding that district courts are not bound by the policy statement in USSG 1B1.13 when considering motions brought by prisoners like defendant under 18 U.S.C. 3582(c)(1)(A).The court explained that Shkambi forecloses the government's contention that section 1B1.13 applies to defendant's motion for compassionate release. In this case, the district court declined to consider whether it had discretion to deviate from the "extraordinary and compelling reasons" articulated in section 1B1.13, including whether it could consider the First Step Act's nonretroactive reduced penalties for 18 U.S.C. 924(c) convictions. Thus, as clarified in Shkambi, the district court effectively considered that policy statement binding. The court also rejected the government's contention that the district court relied solely on the 18 U.S.C. 3553(a) factors. Accordingly, the court remanded for the district court to reassess defendant's motion for compassionate release. View "United States v. Cooper" on Justia Law

Onyeri recruited others to assist in stealing credit card numbers and gift cards, engaged a bank employee to open a bank account using stolen identities, used stolen identities to fabricate tax returns, and bribed mailmen to intercept tax-refund checks. The conspirators' debit card fraud resulted in ATM withdrawals of $20,000 and $40,000 at a time. Onyeri and Akwar were charged in Texas in 2012. Onyeri was then out on bond for other (violent) crimes, and had previously been incarcerated for three years. Judge Kocurek was assigned to Onyeri’s case. Onyeri pled guilty. Judge Kocurek placed him on three-year deferred adjudication probation. The government later moved to proceed with adjudication, alleging that Onyeri had engaged in the fraudulent use of debit cards in Louisiana. Judge Kocurek suggested Onyeri could face several years in prison. Onyeri went to Kocurek’s home and shot Kocurek. Seriously injured, she survived. Onyeri bragged about the shooting. Officers eventually located and apprehended Onyeri.Onyeri was convicted under RICO, 18 U.S.C. 1962(d): mail fraud, bribery of a public official, wire fraud, identity theft, access device fraud, money laundering, witness tampering, and attempted murder. Following his conviction, Onyeri’s father, a former teacher, died. Onyeri was to receive benefits from the Teacher Retirement System of Texas (TRST). The district court ordered TRST to pay Onyeri’s benefits toward his restitution obligation. The Fifth Circuit affirmed, rejecting arguments that the court erred by admitting evidence obtained from the traffic stop because it was not supported by probable cause or reasonable suspicion; that there was insufficient evidence to support a RICO conspiracy conviction; and that the annuity payments were exempt from garnishment. View "United States v. Onyeri" on Justia Law