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

The Fifth Circuit affirmed the district court's denial of petitioner's motion to dismiss the indictment against him for illegal reentry after conviction of a felony. Petitioner argued that 8 U.S.C. 1326(d)'s bar on collateral attacks did not attach because his 2001 removal order was void ab initio because it was based on an unconstitutionally vague statute. Petitioner had previously waived his right to appeal the removal order stemming from the 2001 felony conviction for driving while intoxicated under Texas law.Reviewing de novo, the court rejected petitioner's argument and held that petitioner failed to exhaust the administrative remedies that were available to him. The court held that petitioner's argument upends Congress's mandate that collateral review in the course of reentry prosecutions be available only in a narrow set of circumstances. Furthermore, such an argument enlarges the Supreme Court's observation that it is precisely the unavailability of effective judicial review of the administrative determination which warrants a collateral attack at a later criminal proceeding. In this case, both administrative remedies and judicial review of the removal order were available to petitioner and he chose not to pursue them. View "United States v. Parrales-Guzman" on Justia Law

The Fifth Circuit affirmed defendant's two special conditions of supervised release: (1) that he surrender to immigration authorities until deported and (2) that he remain outside the United States until authorized to reenter. The court held that the surrender condition was consistent with the district court's intent that defendant be deported after serving his prison term. The court held that the no-entry condition did not conflict with the oral sentence because it was duplicative of the mandatory condition that defendant was prohibited from violating the law if he reentered the United States. View "United States v. Vasquez-Puente" on Justia Law

The Fifth Circuit affirmed the district court's denial of plaintiff's motion to remand and the dismissal of his claims alleging that the individuals associated with the Texas prison system violated his rights under the First, Thirteenth, and Fourteenth Amendments to the United States Constitution as well as the Texas Constitution and a Texas statute. Plaintiff's claims were based on repercussions that he asserts he endured because of his religiously motivated decision not to participate in an unpaid prison work program.The court held that there was no evidence that Defendant Whitfield's notice of removal was untimely under 28 U.S.C. 1446(b)(1) because there was no evidence that he was properly served. The district court did not err when it denied plaintiff's motion to remand where removal did not violate section 1446(b)(2)(A) even though no defendants joined Whitfield's notice of removal or filed consents to removal. The court also held that the district court did not abuse its discretion when it dismissed plaintiff's First and Fourteenth Amendment claims as malicious and when it dismissed plaintiff's retaliation and Thirteenth Amendment claims for failure to state a claim. Finally, the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over plaintiff's state-law claims. View "Shakouri v. Davis" on Justia Law

The Fifth Circuit appealed the district court's imposition of an eight year supervised release term after defendant violated conditions of his supervised release. The court held that the district court plainly erred when it concluded that eight years was the mandatory minimum supervised release term, when in fact no mandatory minimum existed. The court exercised its discretion to correct the error because it affected defendant's substantial rights and remanded for resentencing. View "United States v. Campos" on Justia Law

The Fifth Circuit vacated defendant's sentence imposed after he pleaded guilty to one count of being a felon in possession of a firearm. The court held that aggravated assault under Texas law does not categorically require the use or carrying of a knife, firearm, or destructive device, and cannot qualify as a predicate offense under Armed Career Criminal Act for juvenile adjudications. However, the district court did not err in calculating defendant's base offense level as 24 under USSG 2K2.1. The court remanded for resentencing. View "United States v. Flores" on Justia Law

The Fifth Circuit affirmed defendant's conviction of conspiracy to defraud the United States, mail fraud, and aiding and abetting aggravated identity theft. The court held that defendant's challenges to the presentencing report's (PSR) loss estimate were unavailing and she failed to satisfy her burden of demonstrating that the information in the PSR was inaccurate or materially untrue; the evidence was sufficient to prove beyond a reasonable doubt that she aided and abetted the aggravated identity theft of the three victims; and any error in disqualifying defendant's original trial court attorney without first holding a hearing was harmless. View "United States v. Garcia De Nieto" on Justia Law

Texas assault of a public servant is an "aggravated felony" under 8 U.S.C. 1326(b)(2). The court held in United States v. Gracia-Cantu that Texas assault -- family violence was a crime of violence. Because Texas assault of a public servant has substantively identical elements, the court held that it was also a crime of violence and therefore an aggravated felony under section 1326(b)(2). Accordingly, the court affirmed the district court's judgment. View "United States v. Rocha Flores" on Justia Law

The Fifth Circuit affirmed defendant's conviction for one count of conspiracy to pay and receive kickbacks for referring Medicare patients to a particular health care provider, three counts of receiving such kickbacks for such referrals, three counts of identity theft, and one count of making false statements to a federal agent. The court held that the evidence was sufficient to support defendant's convictions, rejected defendant's evidentiary challenge, and rejected defendant's challenge to the inclusion of a deliberate ignorance jury instruction.However, the court vacated defendant's sentence, holding that the district court erred by not deducting Progressive's direct costs—the value of the treatment Progressive provided—in calculating the improper benefit conferred under USSG 2B4.1. The court also held that the district court erred by ordering defendant to pay restitution in any amount where the district court failed to offset the amount Medicare would have reimbursed Progressive for the services rendered had there been no illegal kickback scheme. Accordingly, the court remanded for resentencing and dismissal of the restitution order. View "United States v. Ricard" on Justia Law

The Fifth Circuit treated the petition for rehearing en banc as a petition for panel rehearing and denied the petition for rehearing en banc. The court substituted the following opinion in place of its prior opinion.The court affirmed defendant's conviction of wire fraud, securities fraud, making false statements to the SEC, and conspiracy to commit wire fraud and securities fraud. The court held that the district court committed harmless error by admitting the testimony of an FBI case agent; the district court did not abuse its discretion by excluding the deposition testimony of ArthroCare's former controller who invoked the Fifth Amendment and did not testify at defendant's trial; the district court did not erroneously instruct the jury on the "obtain money or property" element of the wire fraud offense; and the jury was properly instructed on accomplice liability. The court rejected defendant's remaining arguments as meritless. View "United States v. Baker" on Justia Law

This case concerns implications of a warrant issued in the Eastern District of Virginia (EDVA), which authorized the FBI to use certain malware to identify and prosecute users of a child pornography website known as "Playpen" that operated on an anonymity network. The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress evidence obtained as a result of a warrant, which led to his prosecution for possession of child pornography. The court joined its sister circuits in holding that the good faith exception to the exclusionary rule set out in United States v. Leon, 468 U.S. 897 (1984), applied to save the fruits of the warrant at issue from suppression. View "United States v. Ganzer" on Justia Law