Fifth Circuit Case Law—2008 Through 2016: “G to I” Compiled by Attorney John M. Economidy of San Antonio

Cases with “__ F.3d __” are reported cases that lack an official cite at the time they were posted on the Fifth Circuit Webpage. Cases with “___ F. App’x ___” are unreported, but you can get their Federal Appendix cite. For significance and dissent on unreported cases, see the topic “Unreported Cases.” The Fifth Circuit case number is given for the cases with incomplete citations so that you can find and read the cases on Fifth Circuit webpage. Note: Cases can be researched on the State Bar of Texas legal research engine.

Gangs. United States v. Hamilton, __ F.3d __ (5th Cir. July 11, 2013)(12-20250):Conviction reversed for improper gang evidence. Hamilton argues that the district court erred by permitting the Government to introduce evidence that he was a member of the BD and that members of this gang often carry narcotics and guns. We review a district court’s decision to admit evidence under Fed. Rule of Evidence 404(b) under aheightened abuse of discretion standard. United States v. Olguin, 643 F.3d 384, 389 (5th Cir. 2011). At trial, the Government argued that evidence of Hamilton’s gang affiliation was admissible to show his motive to possess a firearm. … Admissibility of evidence under Rule 404(b) is typically governed by the two-part test set out in United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). First, it must be determined whether “the extrinsic evidence is relevant to an issue other than the defendant's character.” Id. at 911. Second, the evidence must possess “probative value that is not substantially outweighed by its undue prejudice” and meet the other requirements of Federal Rule of Evidence 403. Id.

Here, there was no direct evidence that Hamilton was currently in the BD gang. The evidence of Hamilton’s BD tattoo and record in the HPD gang database shows that he was a member of the BD (as Hamilton admitted). Had the testimony been limited to these facts, it would have been intrinsic to the case because it was part of the on-scene investigation and thus not governed by Beechum. United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007). Officer Abel’s testimony, however, considerably elaborated on Hamilton’s probable current gang membership and the connection between gang membership and the motive for a defendant’s possession of a gun. Drawing inferences as to these connections based on his experiences was extrinsic testimony subject to Beechum. In this respect, the case resembles

1

United States v. Sumlin, in which the defendant was also convicted of unlawful possession of a firearm by a convicted felon. 489 F.3d at 684. During the trial, the court allowed an officer to testify

Because the evidence of guilt was sparse, and the prejudice that comes with gang membership may be great, “there is a reasonable possibility that the improperly admitted evidence contributed to [Hamilton’s] conviction.” United States v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992) (internal citation marks omitted); see also Sumlin, 489 F.3d at 691. Therefore, Officer Abel’s testimony about Hamilton’s gang membership, beyond the intrinsic facts that Abel ran a Gang Tracker check on Hamilton and Hamilton admitted that he “was” a BD member and wore a BD tattoo, was inadmissible and not harmless error United States v. Lockhart, __ F.3d __ (5th Cir. Dec. 23, 2016)(15-50596)(sex trafficking of a minor charge and use of gang affiliation of El Paso Defendants).Because in an alleged conspiracy the existence of a joint venture and the nature of the members’ relationship are at issue, evidence of defendants being members of the same gang is intrinsic to the crime of conspiracy. United States v. Westbrook, 125 F.3d 996, 1007 (7th Cir. 1997). In this case, gang evidence serves to complete the story as to why Appellants would work together, deciding to “leave the dope game alone” and take up prostituting women instead. See United States v. Lugo-Lopez, 833 F.3d 453, 461 (5th Cir. 2016) (citing United States v. Chavful, 100 F. App’x 226, 231 (5th Cir. 2004)) (“[The defendant’s] alleged cartel involvement was also probative of his association with the other members of the conspiracy.”). Therefore, the district court did not err in allowing this evidence to come before the jury.

Garnishment Orders See also Debt Collection by United States Reviewed for an abuse of discretion. Af-Cap, Inc. v. Republic of Congo, 462 F.3d 417, 425 (5th Cir. 2006) (reviewing garnishment order issued in private litigation for abuse of discretion); United States v. Seymour, 275 F. App’x 278, 280 (5th Cir. 2008) (unpublished) (applying Af-Cap standard of review in appeal of FDCPA garnishment order entered, as here, to collect a criminal restitution judgment). United States v. Clayton, __ F.3d __ (5th Cir. Aug. 2, 2010)(09-31025)(garnishment of retirement pension due to tax debt). The United States is authorized to enforce any restitution order imposed as part of a criminal sentence by using its powers under the FDCPA. See 18 U.S.C. § 3664(m)(1)(A) (2006); 18 U.S.C. § 3613(a), (f) (2006); see also United States v. Phillips, 303 F.3d 548, 550–51 (5th Cir. 2002) (explaining the statutoryscheme in detail). The FDCPA in turn authorizes the government to garnish property “in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment.” 28 U.S.C. §

2

3205(a) (2006). However, the government’s power to collect restitution in general is expressly made subject to the restrictions on garnishment of section 303 of the Consumer Credit Protection Act (“CCPA”), 15 U.S.C. § 1673 (2006). See 18 U.S.C. § 3613(a)(3). The principal restriction imposed by the CCPA is that garnishment of anindividual’s disposable earnings is limited to twenty-five percent of the debtor’sweekly earnings. 15 U.S.C. § 1673(a)(1). Clayton argues that this restrictionapplies here to limit the garnishment of his half-pay inactive status benefits. The United States contends that 15 U.S.C. § 1673(b)(1)(C) expressly removes the garnishment order obtained here from the protection of the CCPA altogether: that subsection provides that, without qualification or exception, “[t]he restrictions of subsection (a) do not apply in the case of . . . (C) any debt due for any State or Federal tax.” 15 U.S.C. § 1673(b)(1)(C). The question then becomes whether the restitution order constitutes a debt “due for any Federal tax.” We agree with the government that the unequivocal plain language of 15 U.S.C. § 1673(b)(1)(C) operates to eliminate the twenty-five percent garnishment limit as to this order.

General Verdict: United States v. Garza-Robles, __ F.3d __ (5th Cir. Nov. 29, 2010)(07-40704). The general verdict jurors reached did not reveal which theory was accepted. If theevidence was sufficient to support one theory, the fact that the evidence wasinsufficient to support another of the theories does not negate the verdict.Griffin v. United States, 502 U.S. 46, 59-60 (1991); United States v. Edwards,303 F.3d 606, 641 (5th Cir. 2002). … the Supreme Court has distinguished between a general verdict that might be based on a factually unsupported theory and one possibly based on a legally inadequate theory. Griffin, 502 U.S. at 59. Because jurors “are wellequipped to analyze the evidence” and reject factually unsupported grounds –indeed, such is a key role for jurors – a verdict of guilt should be sustained aspresumably not being based on a ground for which there was insufficient proof.Id. (emphasis omitted). Conversely, jurors would not have reason to considerwhether a theory was legally flawed; consequently, their own good judgment would not have saved them from an error about the law. Id.

3

We have held, though, that a general verdict is sustainable when the theory that was factually unsupported was also legally unavailable. United States v. Wilson, 116 F.3d 1066, 1080 (5th Cir. 1997), rev’d on other grounds, United States v. Brown, 161 F.3d 256, 257 n.1 (5th Cir. 1998) (en banc).

Good Faith Search In reviewing the denial of a motion to suppress based on a search warrant, we first determine whether a “good-faith” exception to the exclusionary rule applies. See UnitedStates v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). If the good-faith exceptionapplies, this court’s analysis concludes and the district court’s denial of suppression will be affirmed. Id. In reviewing the denial of a motion to suppress, this court reviews factual findings for clear error and legal conclusions de novo. United States v. Phillips, 382 F.3d 489, 494 (5th Cir. 2004). The district court found that the good-faith exception applied and denied Gildon’s motion to suppress. The good-faith exception provides that “evidence obtained by officers in objectively reasonable good-faith reliance upon a search warrant is admissible, even though the affidavit on which the warrant was based was insufficient to establish probable cause.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).

Gildon argues that the good-faith exception does not apply because thewarrant was based on an affidavit that was “so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable.” United States v. Cherna, 184 F.3d 403, 407-08 (5th Cir. 1999). Specifically, he contends that the affidavit lacks sufficient indicia of probable cause because the allegations in the affidavit are stale and the allegations do not establish a nexus between the alleged criminal activity and his residence. The allegations in the affidavit are not stale because they show an ongoingpattern of criminal activity between Gildon and a confidential informant. See United States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997) (holding that information reaching back over long periods may be used to support an affidavit “if the information of the affidavit clearly shows a long-standing, ongoing pattern of criminal activity”). In reviewing a district court’s denial of a motion to suppress, this court first determines whether the evidence at issue was obtained by law enforcementofficials acting in objectively reasonable good-faith reliance upon a search warrant. United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997). If the good-faith exception applies, our inquiry ends, and the district court’s judgment must be affirmed. United States v. Froman,

4

355 F.3d 882, 888 (5th Cir. 2004) (citations omitted). However, if the exception does not apply, we must determine whether there was a substantial basis for finding probable cause. Id. We review findings of fact made by a district court on a motion to suppress for clear error and the district court’s legal conclusions de novo, viewing the evidence in the light most favorable to the prevailing party. See United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).

Mayes argues that the good-faith exception does not apply in this case because the drafting officer deliberately falsified or recklessly disregarded the truth necessary to the finding of probable cause by cutting-and-pasting from an unrelated affidavit. Mayes is correct that the good-faith exception is not applicable if the warrant contains a false statement that was made intentionally or with reckless disregard for the truth. See United States v. Pope, 467 F.3d 912, 916–17 (5th Cir. 2006); United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006). However, while there is evidence that the affidavit in this case may have been copied recklessly from an earlier affidavit, the record also contains credible evidence that the facts recited in the affidavit reflect events that actuallyoccurred and which established probable cause. Moreover, to the extent that the affidavit contains unverified statements that were carelessly copied from a prior affidavit, the removal of those statements is without consequence; the remaining evidence in the affidavit adequa1tely establishes the necessary probable cause for the issuance of a search warrant. See United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002); United States v. Alvarez, 127 F.3d 372, 374 (5th Cir. 1997) (citing Franks v. Delaware, 483 U.S. 154 (1978)). Thus, Mayes has failed to establish that the district court erred in denying his motion to suppress. He also has not shown that this case involves rare and particularly egregious circumstances that might prompt this court to exercise its supervisory powers and order suppression even though the warrant application, removed of any false information, demonstrates probable cause. Cf. United States v. Hasting, 461 U.S. 499, 506–07 (1983) (suggesting that supervisory powers should be used sparingly); see also Herring v. United States, 129 S. Ct. 695, 702–04 (2009) (reviewing the type of flagrant or systemically negligent conduct that warrants use of exclusionary rule for deterrence purposes)

Good Time Credit Federal courts lack statutory authority to award credit against federal sentences for time spent in state custody under 18 U.S.C. § 3585(b). United States v. Wilson,503 U.S. 329, 333-37 (1992). Rather, set 3585(b) authorizes the AG, through the BofP, to calculate credit. Id. District courts can, however, in certain circumstances account for a D’s time in state custody by reducing the D’s sentence and stating the reasons on therecord. United States v. Barrera-Saucedo, 385 F.3d 533, 537 (5th Cir. 2004).

5

Most recent case: United States v. Benavides-Hernandez, (5th Cir. Dec. 13, 2013)(13-40055).. Cannot Get double credit with State and Federal. Time. A federal prisoner is entitled to credit against his sentence for any time spent in official nonfederal detention between the date of his commission of the federal offense and the start of his federal sentence, so long as that time “has not been credited against another sentence.” 18 U.S.C. § 3585(b); see United States v. Wilson, 503 U.S. 329, 337 (1992).

The pleadings and record establish that High committed the instant federal offenses, at the latest, on January 26, 1989; that he was arrested on state drug charges on June 19, 1989; that his state drug trafficking sentences commenced on January 22, 1991; and that his federal sentences began on July 17, 1991.

The record further reflects that 582 days of state presentence detention—betweenJune 19, 1989, and January 22, 1991—were credited against High’s state sentences. Based thereon, the BOP determined that § 3585(b) barred High from applying his already-credited state presentence detention time against his federal sentence. High asserts that he is excepted from § 3585(b)’s double-credit prohibition because his concurrent state sentences were fully discharged in 2009, causing his nonfederal full-term date to become shorter than his federal full-term date of 2021. See Willis v. United States, 438 F.2d 923, 925 (5th Cir. 1971); Kayfez v. Gasele, 993 F.2d 1288, 1289-90 (7th Cir. 1993); BOP Program Statement 5880.28, Sentence Computation Manual, 7/19/99, p. 1-22. To the contrary, High’s early discharge from state custody had no bearing on his applicable nonfederal full-term date because the BOP calculates a prisoner’s time-served credits as of the date he enters federal custody using his “raw” (asimposed) nonfederal full-term date, not the date on which his nonfederal sentence actually expires. See Kayfez, 993 F.2d at 1290; Wilson, 503 U.S. at 335; BOP Program Statement 5880.28, Sentence Computation Manual, 7/19/99, p. 1-22. Because at the time he entered federal custody High’s “raw” 70-year state term of incarceration dwarfed his concurrent 30-year federal sentences, the BOP correctly determined that he was not entitled to double credit for the 582 days he spent in presentence state detention. See § 3585(b); Willis, 438 F.2d at 925.

GPS Tracking. United States v. Jones, 132 S. Ct. 945, 949 (2012 (January 23, 2012)(10-1259):The attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment United States v. Hernandez, 670 F.3d 616, 620 (5th Cir. 2012) ( July 18, 2011)(10-10695).

Facts: Agent crawled under the back of the truck and attached a GPS tracking device to the undercarriage with a magnet. The agent did not have a warrant to attach or use the device. Soon afterward, the GPS began transmitting the truck’s location to DEA officers in the Dallas Communication Center. This unsophisticated battery-operated GPS device, known as a “slap-on tracker,” was accurate to 50 yards, but could neither relay a precise address nor transmit a signal from an enclosed area like a garage. Instead of a continuous signal, the device emitted a “ping” at

6

intervals ranging from 15 minutes to two hours. Two days after the GPS was installed, DEA agents intercepted phone calls (pursuant to a warrant) between Angel and Jose Hernandez (“Hernandez”), the appellant here. The calls indicated that Hernandez was driving Angel’s truck to a particular hotel in California to pick up drugs for the Texas operation. Using the GPS device, agents determined that Hernandez was driving the truck westbound on a highway. In California, DEA agents were informed of the transaction, located Hernandez’s truck and conducted visual surveillancewithout the GPS. (The battery on the GPS device died soon after the officers established visual surveillance.) Officers observed Hernandez load several packages onto the truck.They contacted local patrol officers who stopped Hernandez for traffic violations; he consented to a vehicle search that produced 20 pounds of methamphetamine hidden in the packages. Hernandez was eventually charged in federal court with one count of conspiracy to possess with intent to distribute and distribution of a controlledsubstance in violation of 21 U.S.C. § 846. After seeking unsuccessfully to suppress the methamphetamine evidence, Hernandez entered a conditional plea agreement and was sentenced to 188 months imprisonment. He timely appealed. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

Hernandez cannot claim the protection of the Fourth Amendment unlesshe “has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143 (1978). This requirement is typically referred to as “standing,” although the term is used “for brevity’s sake” and exists apart from the question of Article III standing. See United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). Hernandez’s expectation must be “personal[]” and “reasonable,” and it must have “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U.S. 83, 88 (1998) (citations and internal quotations omitted). Standing does not require an ownership interest in the invaded area; in Minnesota v. Olson, 495 U.S. 91 (1990), for example, the Court recognized that an overnight guest in a home has a legitimate expectation of privacy in that home. Hernandez bears the burden of establishing standing. See Rakas, 439 U.S. at 130 n.1.We conclude that Hernandez lacks standing to challenge the placement ofthe GPS device on his brother’s truck. Thus, Hernandezlacks standing to challenge the placement of the GPS device.

Even if Hernandez had standing to challenge the placement of the GPS device, there was no Fourth Amendment violation. Placing the GPS device under the car was not a search because a car’s undercarriage “is thrust into the public eye, and thus to examine it does not constitute a search.” New York v. Class, 475 U.S. 106, 114 (1986) (citations and quotation marks omitted). Other circuits, relying on Class, have held, for example, that no search existed when an officer “knelt down and looked under the car with a flashlight.” United States v. Rascon-Ortiz, 944 F.2d 749, 750 (10th Cir. 1993). Nor was the placement of the GPS device an unconstitutional seizure. A “‘seizure’ ofproperty occurs when there is some meaningful interference with an individual’s possessory interest in that property.” United States v. Karo, 468 U.S. 705, 712 (1984) (internal quotations and citations omitted). Applying Karo, the Seventh Circuit has

7

squarely rejected the notion that attaching a GPS device to a car’s undercarriage constitutes a seizure. See United States v. Garcia, 474 F.3d 996-97 (7th Cir. 2007) (“The device did not affect the car’s driving qualities, did not draw power from the car’s engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car’s appearance, and in short did not ‘seize’ the car in any intelligible sense of the word.”).

Hernandez asserts that the government’s use of the hidden GPS to trackhis movements constituted an unconstitutional warrantless search. Wedisagree. In United States v. Michael, 645 F.2d 252, 257-58 (5th Cir. 1981) (en banc),this court approved the warrantless use of a broadcasting beeper attached to theexterior of a rented van to track a suspect. The court relied on the lesserexpectation of privacy that has historically been applied to motor vehicles, therelatively non-intrusive nature of the device’s installation and use, and the fact that the agents had reasonable suspicion to believe the suspect was trafficking in illegal drugs. The beeper, in sum, “only aided the agents in the performance of their lawful surveillance.” Id. Two years later, the Supreme Court held in United States v. Knotts, 460 U.S. 276 (1983), that the use of an electronic beeper broadcasting its location from its placement inside a five gallon drum “was neither a ‘search’ nor a ‘seizure’ within the contemplation of the Fourth Amendment.” See United States v. Butts, 729 F.2d 1514, 1518 n.4 (1984) (en banc)(acknowledging Knotts).

Recently, other circuits have held that the use of post-Knotts GPS technology to monitor a vehicle’s movements is not a search governed by the Fourth Amendment. See United States v. Cuevas-Perez, ___ F.3d ___, 2011 WL 1585072 (7th Cir. Apr. 28, 2011); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). And the Eighth Circuit has noted that “when police have reasonable suspicion that a particular vehicle is transporting drugs, a warrant is not required when, while the vehicle is parked in a public place, they install a non-invasive GPS tracking device on it for a reasonable period of time.” United States v. Marquez, 605 F.3d 604, 609-10 (8th Cir. 2010).

The only arguably contrary authority arises from the D.C. Circuit, whichconcluded that extensive GPS monitoring of a subject’s movements over the course of a month does constitute a search because “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” United States v. Maynard, 615 F.3d 544, 560 (D.C. Cir. 2010), cert granted, ____ U.S. ____. United States v. Andres, __ F.3d __ (5th Cir. Jan. 3, 2013)(11-40783):Involves December 2009 warrantless search based on GPS tracking. …Although Jones did not reach the issue of whether warrantless GPS searches are unreasonable, “[w]arrantless searches are per se unreasonable under the Fourth Amendment, subject to a few specific exceptions.” United States v. Mata, 517 F.3d 279, 284 (5th Cir. 2008) (citing Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971)). Andres argues that the warrantless placement and use of the GPS device to monitor the truck he was driving violated the Fourth Amendment. Andres further argues that because this illegal GPS search directly led to the discovery of the drugs in his truck, the drugs mustbe suppressed under the “fruit of the poisonous tree” doctrine. See, e.g., United States v. Hernandez, 670 F.3d 616, 620 (5th Cir. 2012). Because Andres did not argue before the

8

district court that the GPS search was unconstitutional, we review his argument only for plain error. See United States v. Baker, 538 F.3d 324, 328-29 (5th Cir. 2008). …“[S]earches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011). In December 2009, it was objectively reasonable for agents operating within the Fifth Circuit to believe that warrantless GPS tracking was permissible under circuit precedent. In United States v. Michael, 645 F.2d 252, 257 (5th Cir. 1981) (en banc), this court held that “reasonable suspicion is adequate to support warrantless beeper installation” on a suspect’s vehicle parked in a public place. Although the precise technological capabilities of the beeper were not explained in the opinion, the court described it as an “electronic tracking device.” Id. at 254. The dissent was concerned that the beeper would “enable[] [police] to maintain continuous electronic surveillance over [a person’s] movements twenty-four hours per day continuously and indefinitely.” Id. at 260 (Tate, J., dissenting). Despite any possible technological differences between a 1981 “beeper” and the GPS device used in this case, the functionality is sufficiently similar that the agents’ reliance on Michael to install a GPS device on the truck, in light of the reasonable suspicion of drug trafficking, was objectively reasonable. Because we find that the district court did not err in refusing to suppress the drug evidence, we do not reach the remaining plain error factors. Grady v. North Carolina: Satellite based monitoring of sex offenders implicates the Fourth Amendment; reversed for reconsideration under JonesNorth Carolina’s satellite based monitoring (SBM) of sex offenders is designed to effect a government search of the location of sex offender under Jones. It matters not that it is in the context of a civil case. The state court expressly ruled that Jones applies to cars and not to persons. The state court of appeals decision is vacated and remanded for reconsideration. Grady v. North Carolina, 14–593 (March 30, 2015) (per curiam):

In United States v. Jones, we held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” 565 U. S., at ___ (slip op., at 3) (footnote omitted). We stressed the importance of the fact that the Government had “physically occupied private property for the purpose of obtaining information.” Id., at ___ (slip op., at 4). Under such circumstances, it was not necessary to inquire about the target’s expectation of privacy in his vehicle’s movements in order to determine if a Fourth Amendment search had occurred. “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.” Id., at ___, n. 3 (slip op., at 6, n. 3).We reaffirmed this principle in Florida v. Jardines, 569 U. S. ___, ___–___ (2013) (slip op., at 3–4), where we held that having a drug-sniffing dog nose around a suspect’s front porch was a search, because police had “gathered … information by physically entering and occupying the [curtilage of the

9

house] to engage in conduct not explicitly or implicitly permitted by the homeowner.” See also id., at ___ (slip op., at 9) (a search occurs “when the government gains evidence by physically intruding on constitutionally protected areas”). In light of these decisions, it followsthat a State also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.

In concluding otherwise, the North Carolina Court of Appeals apparently placed decisive weight on the fact that the State’s monitoring program is civil in nature. See Jones, ___ N. C. App., at ___, 750 S. E. 2d, at 886 (“the instant case … involves a civil SBM proceeding”). “It is well settled,” however, “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations,” Ontario v. Quon, 560 U. S. 746, 755 (2010), and the government’s purpose in collecting information does not control whether the method of collection constitutes a search. A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment. See Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967) (housing inspections are “administrative searches” that must comply with the Fourth Amendment).In its brief in opposition to certiorari, the State faults Grady for failing to introduce “evidence about the State’s implementation of the SBM program or what information, if any, it currently obtains through the monitoring process.” Brief in Opposition 11. Without evidence that it is acting to obtain information, the State argues, “there is no basis upon which this Court can determine whether North Carolina conducts a ‘search’ of an offender enrolled in its SBM program.” Ibid. (citing Jones, 565 U. S., at ___, n. 5 (slip op., at 7, n. 5) (noting that a government intrusion is not a search unless “done to obtain information”)). In other words, the State argues that we cannot be sure its program for satellite-based monitoring of sex offenders collects any information. If the very name of the program does not suffice to rebut this contention, the text of the statute surely does:“The satellite-based monitoring program shall use a system that provides all of the following:“(1) Time-correlated and continuous tracking of the geographic location of the subject ….“(2) Reporting of subject’s violations of prescriptive and proscriptive schedule or location requirements.”N. C. Gen. Stat. Ann. §14–208.40(c).

10

The State’s program is plainly designed to obtain information. And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.

That conclusion, however, does not decide the ultimate question of the program’s constitutionality. The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. See, e.g., Samson v. California, 547 U. S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State’s monitoring program is reasonable—when properly viewed as a search—and we will not do so in the first instance.

The petition for certiorari is granted, the judgment of the Supreme Court of North Carolina is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Grand JuryUnited States v. Sanjar, __ F.3d __ (5th Cir. March 27, 2017)(15-20025)Grand Jury claims de novo are reviewed de nova.. United States v. Jones, 733 F.3d 574, 584 (5th Cir. 2013); United States v. Miller, 520 F.3d 504, 512–13 (5th Cir. 2008).

Guilty Plea—Denial of Motion to Withdraw Plea and Motion to Withdraw PleaWithdrawal of a plea of guilty is not a right and the

granting of such a motion rests within the sound discretion

of the trial judge and will be reviewed only for abuse of

discretion. United States v. Clark, 931 F.2d 292, 294 (5th

Cir. 1991); United States v. Daniel, 866 F.2d 749, 751 (5th

Cir. 1989); United States v. Hurtado, 846 F.2d 995, 997 (5th

Cir. 1988). The burden is on the defendant to convince the

Court that withdrawal is justified. United States v.

Daniel, supra at 752; United States v. Hurtado, supra. The

11

Fifth Circuit has defined seven factors that should be

considered by the Court in determining whether to allow the

withdrawal of a plea. They are:

1) Whether the defendant has asserted his innocence.

2) Whether the Government would suffer prejudice.

3) Whether the defendant has delayed in filing his motion.

4) Whether withdrawal would substantially inconvenience the court.

5) Whether close assistance of counsel was present.

6) Whether the original plea was knowing and voluntary.

7) Whether the withdrawal would waste judicial resources.

United States v. Clark, supra; United States v. Daniel,

supra; United States v. Hurtado, supra; all citing United

States v. Carr, 740 F.2d 339, 343-344 (5th Cir. 1984), cert.

denied, 471 U.S. 1004, 105 S.Ct. 1865 (1985).

United States S. Ct. when it evaluated the prior legal authority, Fed. R. Crim. P. 32(e), on withdrawal of a guilty. United States v. Hyde, 520 U.S. 670, 117 S. Ct. 1630 (1997).I have been advised that the Supreme Court interpreted Fed. R. Crim. P. 32(3e) to permit withdrawal of a guilty plea prior to formal sentencing only when the defendant showed a “fair and just reason” for doing so. I have been advised that, when Rule 32 was completely reorganized by amendments in 2002, the withdrawal provision was placed more logically in Fed. R. Crim. P. 11(d). Rule 11(d) permits withdrawal of a plea after entry and before sentencing only under the Hyde criteria of a fair and just reason or for rejection of a plea agreement under Rule 11(c)(5). United States v. McKnight, 570 F.3d 641 (5th Cir. 2009): if he provides a fair and just reason. FED. R. CRIM. P. 11(d)(2)(B). This Court reviews a district court’s decision to deny a motion to withdraw a guilty plea for abuse of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003) (citing United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998) (“[A] district court abuses its discretion if it bases its decision on an

12

error of law or a clearly erroneous assessment of the evidence.”)). In deciding whether the district court should have permitted McKnight to withdraw his guilty plea, this Court mustconsider seven factors: (1) whether McKnight asserted his innocence; (2) whether the Government would suffer prejudice if the withdrawal motion was granted; (3) whether McKnight delayed in filing his withdrawal motion; (4) whether the withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to McKnight; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-344 (5th Cir. 1984). The Carr factors are considered for the totality of the circumstances, and the district court is not required to make a finding as to each individual factor. Powell, 354 F.3d at 370 (citation omitted).United States v. Mason Chi (5th Cir, Dec. 27, 2017)(15-40861):“A defendant does not have an absolute right to withdraw [his] guilty plea,” United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003), and has the burden of establishing that “a fair and just reason” required the district court to grant his motion to withdraw his guilty plea, United States v. Harrison, 777 F.3d 227, 234 (5th Cir. 2015) (internal quotation marks and citation omitted); see FED. R. CRIM. P. 11(d)(2)(B). A district court’s denial of a motion to withdraw a guilty plea is afforded “broad discretion.” United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984) (internal quotation marks and citation omitted). We look at the totality of circumstances, including whether (1) Chi asserted his innocence, (2) withdrawal would prejudice the Government, (3) Chi delayed in filing his withdrawal motion, (4) withdrawal would substantially inconvenience the court, (5) close assistance of counsel was available, (6) the original plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. See Carr, 740 F.2d at 343-44. United States v. Toler, (5th Cir. June 1, 2011)(10-31059):We review the district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. McKnight, 570 F.3d 641, 645 (5th Cir. 2009). Because Toler did not seek to withdraw his guilty pleas before the district court accepted them, he had no absolute right to withdraw his pleas. See United States v. Arami, 536 F.3d 479, 483 (5th Cir. 2008); FED. R. CRIM. P. 11(d). Before sentencing, a defendant may withdraw his guilty plea that the district court has accepted if “the defendant can show a fair and just reason for requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). “The burden of establishing a fair and just reason for withdrawing a guilty plea remains at all times on the defendant.” United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996).

In reviewing the denial of a motion to withdraw a guilty plea, we consider whether (1) the defendant asserted his innocence, (2) withdrawal would prejudice the government, (3) the defendant delayed in filing the withdrawal motion, (4) withdrawal would inconvenience the

13

court, (5) close assistance of counsel was available to the defendant, (6) the plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). We must consider the totality of the circumstances in applying these factors, id. at 344, “[n]o single factor or combination of factors mandates a particular result.” United States v. Badger,925 F.2d 101, 104 (5th Cir. 1991). Based on the totality of the circumstances, Toler failed, both in the district court and in this court, to carry his burden of establishing a fair and just reason for the withdrawal of his guilty pleas. See Still, 102 F.3d at 124. O Discovery of Exculpatory Evidence. From: United States v. Washington, __ F. App’x __ (5th Cir. Sept. 9, 2010)(09-31107)(defendant pleas guilty and then discovers video tape of stop and moves to withdraw guilty plea, aff’d): We review the denial of a motion to withdraw a plea for abuse of discretion. United States v. Conroy, 567 F.3d 174, 177 (5th Cir. 2009), cert. denied, 130S. Ct. 1502 (2010). To the extent that Washington argues that withdrawal should have been granted because the government breached a duty to disclose the video recording,the argument is unavailing. See Conroy, 567 F.3d at 178. In rejecting the argumentthat a defendant must always be aware of impeachment information before pleading guilty, the Supreme Court noted “the random way in which such information may, or may not, help a particular defendant” and that the Constitution “permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor,” including circumstances in which a defendant’s attorney “misjudged the admissibility of a confession” or “failed to find a potential constitutional infirmity in grand jury proceedings.” United States v. Ruiz, 536 U.S. 622, 630-31 (2002) (internal quotation marks and citations omitted). In addition, a guilty plea generally waives Fourth Amendment claims. United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999). Carr Factors Authorizing Motion to Withdraw Guilty Plea. After a district court has accepted a guilty plea, it may grant a motion towithdraw the plea before the defendant is sentenced if the defendant shows “afair and just reason for requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). In determining whether the defendant has met this burden, we consider whether (1) the defendant asserted his innocence, (2) withdrawal would prejudice the government, (3) the defendant delayed in filing the withdrawal motion, (4)

14

withdrawal would inconvenience the court, (5) close assistance of counsel was available to the defendant, (6) the plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). The totality of the circumstances is considered when applying these factors, and “[n]o single factor or combination of factors mandates a particular result.” United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). The district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. Id. at 103. We review the district court’s denial of a withdrawal of a guilty plea for anabuse of discretion. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). In determining whether the defendant has established a fair and just reason forwithdrawing a guilty plea, this circuit considers seven factors. United States v.Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). Those factors are: (1) whether thedefendant asserted his innocence; (2) whether withdrawal would prejudice theGovernment; (3) whether the defendant delayed in filing the motion to withdraw;(4) whether withdrawal would inconvenience the court; (5) whether adequateassistance of counsel was available; (6) whether the plea was knowing andvoluntary; and (7) whether withdrawal would waste judicial resources. Id.In making this determination, we bear in mind that “[s]olemn declarationsin open court carry a strong presumption of verity.” United States v. McKnight,570 F.3d 641, 649 (5th Cir. 2009. A defendant ordinarily may not refute testimony given under oath at a plea hearing. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). Rule 11 does not require TJ to inform D that he is entitled to represent himself.Failure to do so is not plain error. United States v. Alvarez-Lopez, (5th Cir. May 28, 2015)(14-40775). (The right to counsel and the right to self-representation are distinct rights, Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982); and Rule 11(b)(1)(D) does not require an admonishment regarding the right to self-representation, Fed. R. Crim. P. 11(b)(1)(D) (requiring admonishment about right to representation by counsel and possible court-appointed counsel). Alvarez refused to waive his right to counsel, averred he was indigent, and affirmatively requested appointment of counsel.

Guilty Plea—Review Guilty pleas are reviewed for compliance with [FED. R. CRIM P.] 11.United States v. Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006). BecauseHernandez-Luna did not object to the Rule 11 proceedings in the district court,review is for plain error. See id. at 541. To show plain error, Hernandez-Lunamust show an error that is clear or obvious and that affects his substantialrights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied,129 S. Ct. 962 (2009). If he makes such a showing, this court has the discretion

15

to correct the error but only if it seriously affects the fairness, integrity, or publicreputation of the judicial proceedings. Id. He must show a reasonableprobability that, but for the alleged Rule 11 error, he would not have entered theguilty plea. United States v. Molina, 469 F.3d 408, 412 (5th Cir. 2006). Guilty pleas are reviewed for compliance with [FED. R. CRIM P.] 11.United States v. Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006). BecauseHernandez-Luna did not object to the Rule 11 proceedings in the district court,review is for plain error. See id. at 541. To show plain error, Hernandez-Lunamust show an error that is clear or obvious and that affects his substantialrights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied,129 S. Ct. 962 (2009)Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). See also “Allocution by Defendant.” Under Rule 11(b)(1) of the Federal Rules of Criminal Procedure, the defendant need be informed only of the maximum prison term and fine for the offense charged. United States v. Jones, 905 F.2d 867, 868 (5th Cir. 1990). The district court is not required to calculate or explain the applicable guideline sentence before accepting a guilty plea. Id. Neither is the court required to advise a defendant of the exact punishment that he will receive prior to accepting an otherwise valid guilty plea. United States v. Smallwood, 920 F.2d 1231, 1239-40 (5th Cir. 1991).

Guilty Plea Withdrawal Can AUSA use Guilty Plea when D withdraws his guilty plea before US Magistrate Judge and before US District Judge Accepts Plea? No, the plea is protected byFed. R. Evid. 410 and Fed. R. Crim. P. 11(f). United States v. Escobedo, __ F.3 __ (5th Cir. June 27, 2014)(12-40205). A defendant’s initial plea entered during arraignment does not become final until it is accepted by the district court and embodied in the judgment of the court. See FED. R. CRIM. P. 11; Wood v. United States, 128 F.2d 265, 273 (D.C. Cir. 1942) (“The plea on arraignment . . . is necessary to inform the court how to proceed with the trial. . . . The function of that plea is to put the Government to its proof and to preserve the right to defend.”). The Government argues that Field (unreported, 07-51327, 4-21-09) waived his right to appeal his conviction in his plea agreement and that, if Field’s claim is subject to review, it should be reviewed only for plain error because he did not file an objection and did not file a

16

motion to withdraw his plea. The Government is incorrect in its assertion that Field waived his right to challenge the voluntariness of his plea. See United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). Because Field raised the coercion issue before the district court, we do not apply plain error review.

After a district court accepts a guilty plea, but before it imposes the sentence, the district court may grant a motion to withdraw a guilty plea if the defendant can show “any fair and just reason” for its withdrawal. Fed. R. Crim. P. 11(d)(2)(B); see United States v. Badger, 925 F.2d 101, 103–04 (5th Cir. 1991). The court makes its determination based on the totality of the circumstances. Badger, 925 F.2d at 104.

The totality of the circumstances reflect that there was no fair or just reason for allowing Field to withdraw the plea. Field provided no evidence of the claimed coercion, other than his own statements; he had stated under oath during the plea colloquy that his plea was freely and voluntarily given, and he admitted his guilt to the drug charge several times during the re-arraignment. See Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). In addition, Field did not advise the district court that his plea was coerced until the sentencing hearing, several months after the district court had accepted his plea, and he provided no substantial reason for the lengthy delay in filing his motion to withdraw hisguilty plea. See United States v. Benavides, 793 F.2d 612, 617–18 (5th Cir. 1986). In addition, during his re-arraignment, Field agreed that his defense counsel had provided him with adequate representation at the time that he entered his plea. Allowing Field to withdraw the plea would be prejudicial to the Government because the prosecutor would have to again prepare for the same trial, and another trial would require the district court to expend judicial resources already used in commencing the first jury trial. Based on these factors, Field failed to present to the district court a fair and just reason forwithdrawing his plea. See United States v. Carr, 740 F.2d 339, 343–44 (5th Cir.1984). In United States v. Carr, 740 F.2d 339 (5th Cir. 1984), we elaborated the following factors: (1) whether or not the defendant has asserted his innocence;(2) whether or not the government would suffer prejudice if the withdrawal motion were granted; (3) whether or not the defendant has delayed in filing his withdrawal motion; (4) whether or not the withdrawal would substantially inconvenience the court;(5) whether or not close assistance of counsel was available;

Whether a defendant received close assistance is a fact intensive inquiry.

17

United States v. McKnight, 570 F.3d 641, 646 (5th Cir. 2009). This inquiry is distinctfrom receiving effective assistance of counsel.(6) whether or not the original plea was knowing and voluntary; and(7) whether or not the withdrawal would waste judicial resources and, as applicable, the . . . reasons why a defendant delayed in making his withdrawal motion.

The above factors are not exclusive and ultimately we review the totality ofthe circumstances. Carr, at 344 (citing United States v. Morrow, 537 F.3d 120, 146 (5th Cir. 1976). The only issue is the motion to withdraw the guilty plea, which we “review . . . for an abuse of discretion.” United States v. London, 568 F.3d 553, 562 (5th Cir. 2009). Although “there is no absolute right for a defendant to withdraw a plea,” United States v. Lampazianie, 251 F.3d 519, 523–24 (5th Cir. 2001), he “may withdraw a plea of guilty . . . if . . . [he] can show a fair and just reason for requesting the withdrawal,” FED R. CRIM. P. 11(d)(2)(B). “[T]he defendant bears the burden to establish a ‘fair and just reason’ for withdrawal.” United States v. Puckett, 505 F.3d 377, 382 (5th Cir. 2007) (quoting United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003)) United States v. Curry, (5th Cir. Sept. 6, 2016)(15-11062): We accord broad discretion to the district court’s decision. United States v. Carr, 740 F.2d 339, 344 (5th Cir. 1984). “[A] defendant may withdraw a guilty plea after the court has accepted it, but prior to sentencing, only if he ‘can show a fair and just reason for requesting the withdrawal.’” United States v. Harrison, 777 F.3d 227, 234 (5th Cir. 2015) (quoting FED. R. CRIM. P. 11(d)(2)(B)). Curry disagrees with the district court’s assessment of the Carr factors and points to specific facts in support of his own assessment of those factors. We find no abuse of discretion, as Curry has not shown that the district court denied the motion based on an error of law or a clearly erroneous factual finding. See Harrison, 777 F.3d at 234; Carr, 740 F.2d at 344.

Guilty Plea—Plea Negotiations by Trial Judge United States v. Pena, __ F.3d __ (5th Cir. June 18, 2013)(11-50482):However, Rule 11 prohibits the sentencing court from participating in pleanegotiations: “An attorney for the government and the defendant’s attorney, orthe defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions.” Fed. R. Crim. P. 11(c)(emphasis added). We have characterized Rule 11’s prohibition of judicialinvolvement as a “bright line rule,” United States v. Rodriguez, 197 F.3d 156, 158

18

(5th Cir. 1999), and “an absolute prohibition on all forms of judicial participationin or interference with the plea negotiation process,” United States v. Adams,634 F.2d 830, 835 (5th Cir. Unit A Jan. 1981).(note 6)

Note 6: Westlaw and Lexis have designated United States v. Adams as “superseded” by statute or regulation based on the reasoning of non-Fifth Circuit cases that Adams was decided prior to the enactment of the U.S. Sentencing Guidelines. However, we have relied on Adams in full, including its remedy, as recently as 2010. See United States v. Self, 596 F.3d 245, 250 (5th Cir. 2010) (relying on Adams to vacate the defendant’s conviction and sentence and to reassign to a different judge on remand following the district court’s participation in plea negotiations). Thus, while these sources categorize Adams as no longer good law in part, this designation is incorrect that a district court explore a plea agreement once disclosed in open court[,] . . . it does not license discussion of a hypothetical agreement that it may prefer.” Miles, 10 F.3d at 1140 (citation omitted).

We have recognized this bright line rule for several reasons. First, “it serves to diminish the possibility of judicial coercion of a guilty plea, regardless of whether the coercion would cause an involuntary, unconstitutional plea.” Id. at 1139 (citations omitted). Indeed, “pressure is inherent in any involvement by a judge in the plea negotiation process.” Rodriguez, 197 F.3d at 159. Second, “such involvement ‘is likely to impair the trial court’s impartiality. The judge who suggests or encourages a particular plea bargain may feel a personal stake in the agreement . . . and may therefore resent the defendant who rejects his advice.’” Miles, 10 F.3d at 1139 (omission in original) (citations omitted). Third, a judge’s “participation in plea discussions creates a misleading impression of the judge’s role in the proceedings. As a result of his participation, the judge is no longer a judicial officer or a neutral arbiter.” Id. (citations and internal quotation marks omitted). Rather, the judge “becomes or seems to become an advocate for the resolution he has suggested to the defendant.” Id. (citations and internal quotation marks omitted).

…“[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

Habeas and Conflict of Fed Writ Counsel having Served as State writ counsel Speer v. Stephens, __ F.3d ___ (5th Cir. 3-31-2015)(13-70001)

19

In Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013), the Supreme Court held that a habeas petitioner’s procedural default of an ineffective assistance of trial counsel claim could be excused by a federal habeas court if, under certain circumstances, the petitioner received ineffective assistance of counsel during the state collateral review process.

Now pending before this court is a motion by the petitioner’s federal habeas counsel to withdraw as counsel. Counsel argues that because he also represented the petitioner during state habeas proceedings, it would be a conflict of interest for him to now determine whether his state conduct was ineffective. Speer also requests the appointment of new counsel to investigate whether he has any viable claim under the rule established in Martinez and Trevino. We do not read the Supreme Court’s narrowly crafted decisions in Martinez or Trevino to require in this case the appointment of additional federal habeas counsel. Those cases provide only that the federal habeas court is not procedurally barred from hearing a prisoner’s ineffective assistance of trial counsel claim if the petitioner’s state habeas counsel was constitutionally ineffective.4 They do not create a constitutional right to counsel on collateral review. They only offer remedial relief from procedural bars to the presentation of federal claims attending that defective performance.5 It is said that the petitioner is entitled to counsel on habeas review and that means conflict-free counsel. That there is no such constitutional right to counsel on collateral review aside, the petitioner enjoyed that right. The lawyer here had no conflict in arguing the constitutional claim of ineffective trial counsel to the federal court. It signifies that the petitioner continues to enjoy all the rights Martinez and Trevino afford. The petitioner’s present lawyer is conflicted only in the sense that every lawyer charged to examine the performance of counsel is conflicted in that task when the performance is his own. That has no bearing on counsel’s charge to argue the substantive claim of ineffective assistance of trial counsel. We do not read the Supreme Court as requiring a second federally appointed lawyer to plow the same ground ably plowed by the first federally appointed lawyer with no suggestion or hint of any shortcoming on his part.

Though we do not interpret Martinez or Trevino as creating the right to new counsel that Speer insists those cases do, our task is not done. 18 U.S.C. § 3599 authorizes federal judges to appoint counsel for indigent federal habeas defendants in capital cases.6 We may also appoint supplemental counsel in federal habeas proceedings.7 We conclude that this authority should be used in the present case in the interest of justice. Under that power, and mindful of the systematic benefits of efficiently resolving all potential claims as early in the habeas process as possible, we direct the appointment of supplemental counsel for the sole purpose of determining whether Speer has additional habeas claims that ought to have been brought. The congressional grant of appointment power in habeas cases came in response to the challenges petitioners face in the complex and difficult law of the death penalty. This authority enables federal appointments of separate counsel for state and federal habeas, an answer to today’s perceived problem.

Habeas Time Limits From Gonzales v. Thaler, __ 5th Cir. __ (5th Cir. Oct. 6, 2010)(08-10871)

20

Gonzalez’s period for discretionary review for a regular murder conviction and 30 year sentence expired on August 11, 2006.. He did not seek discretionary review by TCA. On September 26, 2006, the mandate was issued in his case. A magistrate judge recommended that the district court dismiss Gonzalez’s petition as time-barred because he had failed to comply with the one-year statute of limitations under the Antiterrorismand Effective Death Penalty Act of 1996 (AEDPA). Citing to this court’s decision in Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003), the magistrate judge calculated Gonzalez’s one-year period beginning from the date Gonzalez could no longer petition for discretionary review to the Texas Court of CriminalAppeals, August 11, 2006. Gonzalez objected to the magistrate judge’s reportand recommendation, arguing that the magistrate judge should have calculatedthe one-year period from that the date the mandate was issued instead of thedate his right to petition for discretionary review expired. The district courtoverruled Gonzalez’s objections, adopted the magistrate’s recommendations, anddismissed Gonzalez’s petition as time-barred. Gonzalez appealed, and we granted a certificate of appealability (COA) on the question of “whether Roberts has been overruled by Lawrence [v. Florida, 549 U.S. 327, 331-35 (2007)] and, if so, whether [Gonzalez’s] habeas application.

In Roberts, we held that the issuance of a mandate by a state court is irrelevant to determining when a judgment becomes “final” for the purposes of § 2244(d)(1)(A). Roberts, 319 F.3d at 694-95. Instead, because a conviction becomes final “by the conclusion of direct review or the expiration of the time for seeking such review,” the one-year limitations period for a petitioner that does not appeal to the state court of last resort begins “when the time for seeking further direct review in the state court expires.” Id. at 694 (quoting § 2244(d)(1)(A)). … Under Roberts, Gonzalez’s AEDPA limitations period therefore began on August 12, 2006, the day after his conviction become final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (applying FED. R. CIV. P. 6(a) toAEDPA calculation). … Gonzalez argues the Supreme Court overruled Roberts in Lawrence and thus his conviction became “final” for the purposes of § 2244(d)(1)(A) when the state appellate court issued its mandate on September 26, 2006. Excluding thesame 125 days for the properly filed state habeas petition, Gonzalez’s one-year limitations period would therefore extend to January 30, 2008, and his federal habeas petition would not be time-barred by the

21

AEDPA. In Lawrence, the issue before the Court was “whether the [AEDPA] limitations period was . . . tolled [under § 2244(d)(2)] during the pendency of Lawrence’s petition for certiorari to [the Supreme] Court seeking review of the denial of state post-conviction relief.” 549 U.S. at 331. The Court held that the statute of limitations was only tolled while the state courts reviewed the application because, “[a]fter the State’s highest court has issued its mandate or denied review, no other state avenues for relief remain open,” and the petition was therefore not “State post-conviction or other collateral review” required by § 2244(d)(2). Id. at 332 (emphasis in original). We hold that the Supreme Court did not overrule Roberts in Lawrence.First, and most importantly, the Court was interpreting the AEDPA’s tolling provision, § 2244(d)(2), not its triggering provision, § 2244(d)(1), in Lawrence. Id. at 332. Furthermore, although the Court references the “State court’s mandate” in Lawrence, the references were to the State court’s mandate denying the prisoner’s state post-conviction habeas petition, not the mandate affirming his original conviction. Id. at 330-32. It is unlikely that the Court intended to implicitly hold that a state conviction is “final” under § 2244(d)(1) when the mandate issues while discussing the finality of a state habeas claim in the context of a different statutory component of the AEDPA. One Year Limit and Dlvy to Prison Authorities. A pro se prisoner’s noticeof appeal under Federal Rule of Appellate Procedure 4(a)(1) is deemed filed asof the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988); United States v. Richards, __ F.3d __ (5th Cir. Mar. 22, 2026)(11-20803).

Habeas and Due Process. From Gonzales v. Thayer, __ F.3d __ (5th Cir. June 13, 2011)(09-20019): Gonzales must first show that his state-court proceedings involved a“violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). He therefore cannot rely on the state-law hearsay violation as the basis for hisfederal habeas application. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Pemberton v. Collins, 1222–24 (5th Cir. 1993); see also Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (per curiam). Instead, Gonzales argues that the admission of the warrant affidavit “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process,’” Darden v. Wainwright, 477 U.S. 168, 180–81 (1986) (quoting Donnelly v.DeChristoforo, 416 U.S. 637, 643 (1974), in violation of the Fourteenth Amendment.¶ Due process is implicated only for rulings “of such a magnitude,” Hills v. Henderson, 529 F.2d 397, 401 (5th Cir. 1976). or “so

22

egregious,” Pemberton, 991 F.2d at 1226, that they “render the trial fundamentally unfair.” Id. at 1227. [A fundamentally unfair trial is one “largely robbed of dignity due a rational process.” Menzies v. Procunier, 743 F.2d 281, 288 (5th Cir. 1984) (internal quotation marks omitted). It offers no authority to federal habeas courts to review the mine run of evidentiary rulings of state trial courts. See Guidroz v. Lynaugh, 852 F.2d 832, 834–35 (5th Cir. 1988); see also Luna v. Beto,21 395 F.2d 35, 40 (5th Cir. 1968) (en banc) (Brown, C.J., concurring specially). Relief will be warranted only when the challenged evidence “played a crucial, critical, and highly significant role in the trial.” Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998) (citing Andrade v. McCotter, 805 F.2d 1190, 1193 (5th Cir. 1986). In Martinez v. Ryan, No. 10-1001, the U.S. Supreme Court held that, in a federal habeas corpus proceeding, inadequate assistance of counsel in a state initial-review collateral proceeding may provide cause for a prisoner's procedural default on a claim of ineffective assistance of trial counsel.  Feds apply mailbox rules on writ mailed when delivered to prison authorities.Richards v. Thaler, 710 F.3d 573 (5th Cir. 2013).

Habeas and Request at Feds for Funds for Experts Allen v. Stephens, __ F.3d __ (5th Cir. Nov. 9, 2015)(14-70017):Finally, Allen challenges the district court’s refusal to grant funding to hire an expert witness to assist him in developing his unexhausted claim for ineffective assistance of trial counsel. “[A] COA is not necessary to appeal the denial of funds for expert assistance.” Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005). Under 18 U.S.C. § 3599(f), “[u]pon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor . . . .” We have “interpreted ‘reasonably necessary’ to mean that the petitioner must show that he has ‘a substantial need’ for the requested assistance,” and we “review the denial of funding for investigative or expert assistance for an abuse of discretion.” Brown v. Stephens, 762 F.3d 454, 459 (5th Cir. 2014) (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004)), cert. denied, 135 S. Ct. 1733 (2015).

Habeas and Impact of Pinholster Rabe v. Thaler, __ F.3d __ (5th Cir. Aug. 3, 2011)(09-10938):Earlier this year, the Supreme Court held, in Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) that federal review of a state prisoner’s habeas claim is “limited to the record thatwas before the state court that adjudicated the claim on the merits.” The Court went on to explain that “evidence introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” In our review of Rabe’s habeas application, therefore, we may not considerany of the evidence presented for the first time in federal court.

23

When a habeas applicant fails to demonstrate on the basis of the state-court recordthat the state court’s adjudication of his claim resulted in a decision “contrary to” or “involv[ing] an unreasonable application” of federal law pursuant to § 2254(d)(1), a writ of habeas corpus shall not be granted, and “our analysis is at an end.” Pinholster, 131 S. Ct. at 1411 n.20. Smith v. Cain, __F.3d __ (5th Cir. Feb. 11, 2013)(10-30665): We granted Smith a Certificate of Appealability (“COA”) on the limited issue of comparative juror analysis required by Miller-El v. Dretke, 545 U.S. 231 (2005).

After the COA was granted, the Supreme Court decided Cullen v. Pinholster, 131S. Ct. 1388 (2011), which called into question whether the district court couldproperly grant Smith an evidentiary hearing on his Batson claim–a major issuein this appeal.

We hold that Pinholster’s restriction does not bar the federal evidentiaryhearing conducted in this case because the district court first concluded, solelyon the basis of the state court record, that the state courts committed legal error,as required under 28 U.S.C. § 2254(d)(1), through the state courts’s“unreasonable application of, clearly established Federal law.” Thus, theevidentiary hearing was committed to the district court’s discretion, subject tosection 2254(e)(2). Because the district court did not abuse its discretion inconducting the hearing, we will review Smith’s substantive Batson claim in thelight of the federal evidentiary record. After reviewing the record, we hold thatSmith has failed to carry his burden of proving that the prosecutor’s race-neutralexplanations for striking the two black panelists at issue were a pretext forpurposeful discrimination, and thus AFFIRM the judgment of the district court.

Habeas Review Chester v. Thaler, __ F.3d __ (5th Cir. 2012)(08070023): AEDPA Review28 U.S.C. § 2254(d) bars relitigation of any claim “adjudicated on themerits” in state court, subject only to exceptions in Section 2254(d)(1) and (d)(2). Harrington v. Richter, 131 S. Ct. 770, 784 (2011). Section 2254(d)(1) containstwo overlapping but distinct exceptions: an “unreasonable application” prong anda “contrary to” prong. See Terry Williams v. Taylor, 529 U.S. 362, 404,120 S. Ct. 1495, 1519 (2000). Federal courts may not grant habeas reliefpursuant to § 2254(d)(1) “unless the adjudication of the claim . . . resulted in adecision that was contrary to, or involved an unreasonable application of, clearlyestablished Federal law, as determined by the Supreme Court of the UnitedStates.” 28 U.S.C. § 2254(d)(1). In this context, “clearly established federal law‘refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisionsas of the time of the relevant state-court decision.’” Valdez v. Cockrell, 274 F.3d941, 946 (5th Cir. 2001) (quoting Terry Williams, 529 U.S. at 412, 120 S. Ct. at1523).

Section 2254(d)(2) excepts from the general bar on relief those cases inwhich the adjudication of the claim “resulted in a decision that was based on anunreasonable determination of the facts in light of the evidence presented in theState court proceeding.” 28 U.S.C. § 2254(d)(2). A reviewing federal courtpresumes that the state court’s factual findings are sound unless the petitioner

24

rebuts the “presumption of correctness by clear and convincing evidence.” Miller-El v. Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 2325 (2005); Maldonadov. Thaler, 625 F.3d 229, 236 (5th Cir. 2010). This standard is demanding but notinsatiable; deference does not by definition preclude relief. Miller-El, 545 U.S.at 240, 125 S. Ct. at 2325.

As the Supreme Court has recently reminded, “If [§ 2254(d)’s] standard isdifficult to meet, that is because it was meant to be. . . . It preserves authorityto issue the writ where there is no possibility fairminded jurists could disagreethat the state court’s decision conflicts with [the Supreme] Court’s precedent. It goes no farther.” Harrington, 131 S. Ct. at 786 (emphasis added) (internalquotation marks and citation omitted).

Petitioner claims that he is entitled to relief under both 28 U.S.C.§ 2254(d)(1) and 28 U.S.C. § 2254(d)(2); he asserts that the state court’sadjudication resulted in a decision contrary to and involving an unreasonableapplication of clearly established federal law and was based on an unreasonabledetermination of the facts in light of the evidence presented in the State Courtproceeding. We address these claims in turn.

II. Section 2254(d)(1) ClaimsA state court’s judgment falls within the “unreasonable application”

exception of § 2254(d)(1) if the state court correctly identifies the governinglegal principle from the Supreme Court’s decisions, but unreasonably applies itto the facts of the particular case, Busby, 359 F.3d at 713, or where it ‘extendsa legal principle from [Supreme Court] precedent to a new context where itshould not apply or unreasonably refuses to extend that principle to a newcontext where it should apply.’” LaCaze v. Warden of La. Corr. Inst. for Women,645 F.3d 728, 734 (5th Cir. 2011) (quoting Terry Williams, 529 U.S. at 407, 413,120 S. Ct. at 1520, 1523). A federal court cannot reverse the denial of habeasrelief simply by concluding that the state court decision applied clearlyestablished federal law erroneously; rather, the court must conclude that suchapplication was also unreasonable. See Horn, 508 F.3d at 313. In fact, “acondition for obtaining habeas corpus from a federal court” is a showing “that thestate court’s ruling on the claim being presented . . . was so lacking injustification that there was an error well understood and comprehended inexisting law beyond any possibility for fairminded disagreement.” Harrington,131 S. Ct. at 786-87 (emphasis added).

The first step in determining whether a state court unreasonably appliedclearly established federal law is to identify the Supreme Court holding that thestate court supposedly unreasonably applied. See Valdez, 274 F.3d at 946(citation omitted). In the instant case the relevant holding is that of Atkins v.Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002).

Habeas and Reduced Sentence under 18 U.S.C. § 3852 United States v. Jones, __ F.3d __ (5th Cir. Aug. 4, 2015)(13-50475):In this case, we must decide whether a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2) results in a new judgment such that a habeas application attacking the reduced sentence is not “second or successive” to previous habeas applications attacking the

25

sentence. 28 U.S.C. §§ 2244(b), 2255(h). Relying on the plain text of § 3582(c)(2) and on decisions of the Supreme Court and our court interpreting the statute, we hold that a § 3582(c)(2) sentence reduction does not result in a new judgment, but rather only in the modification of an existing one, and a petitioner may not thereby avoid the requirements for filing “second or successive” habeas applications.

Habeas and Successive Motions United States v. Gipson, (5th Cir. Dec. 8, 2015)(14-60489):A habeas application is not second or successive merely because it follows an earlier application. In re Cain, 137 F.3d 234, 235 (5th Cir. 1998). Rather, “a later petition is successive when it: 1) raises a claim challenging the petitioner’s conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.” Id. Thus, in United States v. Orozco-Ramirez, 211 F.3d 862, 865, 869 (5th Cir. 2000), we concluded that Orozco-Ramirez’s claims of ineffective assistance of counsel that related to his out-of-time appeal were not successive because the facts underlying those claims “accrued after his initial habeas motion was adjudicated and could not have been raised” in his earlier § 2255 motion. Similarly, Gipson’s claims of ineffective assistance of counsel relate to his resentencing, and the facts underlying those claims did not accrue until after his initial § 2255 motion was adjudicated. Accordingly, we VACATE the district court’s order transferring Gipson’s § 2255 motion to this court, and we REMAND the case to the district court for consideration of his § 2255 motion. Gipson’s motion for leave to proceed in forma pauperis on appeal is GRANTED.

Harboring Aliens United States v. Magallan-Rodriguez, (5th Cir. June 10, 2013)(12-40367): Under USSG § 2L1.1(b)(6), a sentence for harboring an unlawful alien is enhanced if the offense “involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” USSG § 2L1.1(b)(6). USSG § 2L1.1 cmt. n.5 states: Reckless conduct to which the adjustment from subsection (b)(6) applies includes a wide variety of conduct (e.g., transporting persons in the trunk or engine compartment of a motor vehicle, carrying substantially more passengers than the rated capacity of a motor vehicle or vessel, or harboring persons in a crowded, dangerous, orinhumane condition). … The enhancement is “not limited to the examples provided in the commentary.” United States v. Zuniga–Amezquita, 468 F.3d 886, 888 (5th Cir. 2006). Application of § 2L1.1(b)(6) is fact-intensive. See United States v. Mateo Garza, 541 F.3d 290, 294 (5th Cir. 2008) (“[T]he examples given [in the Guideline commentary], with one exception, require courts to look at the specifics of the situation.”); United States v. Solis–Garcia, 420 F.3d 511, 516 (5th Cir. 2005). …This Court has had only one opportunity to determine if conduct involved in housing aliens in stash houses justifies the enhancement. See United States v. Teran, 236 F. App’x 82, 83–84 (5th Cir. 2007)(affirming the enhancement where at least 69 aliens were “kept in severely overcrowded conditions in two rear bedrooms of a stash house without running water or air conditioning, [and] allowed to use restroom facilities andgiven water only once per day”). While it appears the conditions in the stashhouses in Teran posed a greater risk of death or serious bodily injury, weconclude that the enhancement is also warranted in this case.

26

Hague Convention on Civil Aspects of International Child Abduction—Meaning of Well-Settled. Hernandez v. Pena, __ F.3d __ (5th Cir. April 28, 2016)(15-30993):Petition under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (the Convention), seeking the return of his only child. The Convention provides as a general rule that when a court receives a return petition within one year of a child’s wrongful removal, the court “shall order the return of the child forthwith.” Art. 12. Hernandez, however, filed his return petition two months outside of the one-year period, allowing the district court to consider the Convention’s defense that the child is well-settled in his new environment and therefore should not be returned. The district court denied Hernandez’s petition, concluding that D.A.P.G. was well-settled in his current community even though Garcia Peña’s removal of D.A.P.G. from Honduras was wrongful. This case presents an issue of first impression in this Circuit: the interpretation and application of the Convention’s “well-settled” defense. Judgment against father reversed due to misapplication of well-settled defense.

III. The Hague Convention on the Civil Aspects of International Child Abduction was adopted by its signatories, which include the United States and Honduras, to address “the problem of international child abductions during domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8 (2010). The terms of the Convention were implemented by Congress through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–11. The Convention’s two express objectives are: (1) “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and (2) “to ensure that rights of custody and access under the law of one Contracting State are effectively respected.” Art. 1. The return remedy is the central operating feature of the Convention and provides that a wrongfully removed child must be returned to his or her country of habitual residence unless certain defenses4 apply. Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1228–29 (2014). Notably, the return remedy does not address the merits of any underlying custody dispute but instead only determines where any custody decision should be made. Sanchez v. R.G.L., 761 F.3d 495, 503 (5th Cir. 2014); see also 22 U.S.C. § 9001(b)(4). As the Supreme Court has explained, the return remedy “is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott, 560 U.S. at 20. This principle works to “restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court.” England v. constitutes waiver. Even if we considered this issue, we conclude that Garcia Peña failed to present sufficient evidence to support this defense. 4 These defenses are commonly referred to interchangeably by courts as “exceptions,” which is the term employed by the implementing legislation. See 22 U.S.C. § 9003(e)(2). England, 234 F.3d 268, 271 (5th Cir. 2000) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)). But, while the Convention is designed to discourage child abduction, it “does not pursue that goal at any cost.” Lozano, 134 S. Ct. at 1235. The Convention recognizes that the interests of a child may be better served by the child remaining in a new environment and provides “several narrow affirmative defenses to wrongful removal.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir. 2004) (emphasis added); see also Elisa Pérez–Vera, Explanatory Report: Hague Convention on Private International Law ¶ 34, available at https://assets.hcch.net/upload/expl28.pdf (explaining that these defenses are

27

to be interpreted narrowly to avoid undermining the objectives of the Convention).5 When addressing these defenses to return, courts “must strive always to avoid a common tendency to prefer their own society and culture.” Abbott, 560 U.S. at 20. This case concerns the Convention’s well-settled defense. IV. A district court’s determination of whether a child is well-settled presents a mixed question of law and fact. See In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir. 2009). We review the district court’s factual findings for clear error, and its legal conclusions de novo. England, 234 F.3d at 270. “A factual finding is not clearly erroneous as long as it is plausible in the light of the record as a whole.” Sealed Appellant, 394 F.3d at 342 (citation omitted). V. We conclude that the district court erred in its legal analysis and application of the Convention’s well-settled defense. 5 The Pérez–Vera Explanatory Report “is recognized as the history and commentary of the convention.

This Court has never reached the merits of the well-settled defense, contained in Article 12 of the Convention. Vasconcelos v. Batista, 512 F. App’x 403, 404 n.3 (5th Cir. 2013) (per curiam). We join the circuits that have addressed this issue and hold that the following factors should be considered: (1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular activities; (6) the respondent’s employment and financial stability; and (7) the immigration status of the respondent and child. See Lozano, 697 F.3d at 57; In re B. Del C.S.B., 559 F.3d at 1009. Courts diverge, however, with regard to the significance of immigration status, which forms the crux of the parties’ arguments here.

Harmless beyond Reasonable Doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 82 (1967). Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827 (1999).

Hearsay Out-of-court statements, offered to provide background information to explain the actions of investigators, are not hearsay. United States v. Dunigan, 555 F.3d 501, 507 (5th Cir.), cert. denied, 129 S. Ct. 2450 (2009). The district court’s evidentiary ruling on hearsay evidence is reviewed for abuse of discretion, subject to a harmless-error analysis. United States v. Crawley, 533 F.3d 349,353 (5th Cir. 2008). Adoption of Hearsay—Admissible. United States v. Demmitt, __ F.3d __ (5th Cir. Feb. 1, 2013)(11-11120): “If the witness admits on the stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem.” Fed. R. Evid. 801(d)(1) advisory committee’s note; see also Vanston v. Conn. Gen. Life Ins. Co., 482 F.2d 337, 344 (5th Cir. 1973) (quoting committee note and recognizing this circuit as having adopted the rule). The Government argues that the direct examination exchange between the prosecutor and Fry, quoted at the outset of this section, was

28

sufficient to serve as an adoption. The hearsay rule stands as a bulwark against unreliable testimony, and thus hearsay exceptions and exclusions have been carefully crafted. As made clear in the committee note and our case law, the prior statement must be acknowledged and affirmed on the stand in order to be admissible for substantive purposes independent of use as a prior inconsistent statement. As the above exchange illustrates, Fry did acknowledge that he had made the statements in the factual resume. However, he did not admit on the stand, in the presence of the jury, that they were true statements, only that he had previously sworn they were true. The prosecutor’s careful use of the past tense when asking about the truth of the factual resume—“did you swear that everything contained in the factual resume was true and correct?”—is insufficient to establish Fry’s affirmation on the stand at Demmitt’s trial. Cf. Cisneros-Gutierrez, 517 F.3d at 758 (holding that a witness’s admission under oath at a plea hearing that a factual resume was “true and correct in every respect” demonstrated sufficient adoption such that the factual resume could be used as a prior inconsistent statement). We thus conclude that Fry did not adopt the factual resume on the stand at Demmitt’s trial. (Held harmless error.) Rules of hearsay cannot be applied mechanically so as to exclude reliable hearsay to defeat the ends of justice.

--Chambers v. Mississippi, 410 U.S. 284, 302 (1973)--Green V. Georgia, 442 U.S. 95, 97 (1979)--Rock v. Arkansas, ___ U.S. ___ (___)--Sears v. Upton, 561 U.S. 945, __, 130 S. Ct. at 3263 n. 6 (2010)

Health Care Fraud. See “Fraud—Medical Care or Health Care”

Health Care Fee in Prison. $100 annual fee if you receive free medical care in Texas prisons upheld under Texas Government Code § 501.063. Morris v. Livingston,__ F.3d ___ (5th Cir. Jan. 10, 2014)(12-50848).

Hobbs Act Conspiring to interfere with commerce by robbery, in violation of 18 U.S.C.§ 1951 (commonly known as the Hobbs Act). For the reasons set forth in United States v. Richarte, 2011 WL 661581 (5th Cir. Feb. 23, 2011) and United States v. Zavala, 2010 WL 5375947 (5th Cir. Dec. 29, 2010), the judgment of the district court is AFFIRMED. Supreme Court in Sekhar v. United States, __ U.S. __ , __ S.Ct. __ (2013). Hobbs Act requires that the property alleged to have been extorted must “be transferable” — that is, capable of passing from one person to

29

another. That is because the text of the Act defines extortion as “the obtaining of property from another.” And, whatever might be said about the advice that the general counsel rendered, it cannot be considered “obtainable property” under the Hobbs Act. An employee’s “yet-to-be-issued recommendation [cannot] be called obtainable property, and less so still a yet-to-be-issued recommendation that would merely approve (but not effect) a particular investment.” … Footnote 5 explained the key to its holding as the inability to transfer or obtain the right to issue the recommendation. United States v. Rashad, __ F.3d __ (5th Cir. July 10, 2010)(10-10645).Extortion is defined as “the obtaining of property from another, without his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(a) and (b)(2). “Fear of economic loss” may underlie extortion in this context, United States v. Edwards, 303 F.3d 606, 636 (5th Cir. 2002), as does action “under color of official right.”

Fear of Economic Harm. Extortion induced by means of wrongful fear of economic harm must involve a particular loss, not merely a loss of future benefit or advantage in an otherwise fair competition. Edwards, 303 F.3d at 635. Extortion of this type also occurs where the victim believes that he will lose an investment if he doesnot cooperate with the perpetrator’s demands. See United States v. Tomblin, 46 F.3d 1369, 1385 (5th Cir. 1995).

Under Color of Official Right. Usually, only public officials are charged with extorting property under color of official right. Tomblin, 46 F.3d at 1382. In Tomblin, the defendant won a new trial because he practiced extortion as a private individual claiming to exert influence over public officials, but he received the payments for himselfalone. Tomblin, 46 F.3d at 1382-83. Rashad contends that because he, too, is a private citizen, he cannot be guilty of extortion “under color of official right.” This argument misapprehends Tomblin and our circuit precedent. Tomblin was charged with conspiracy to extort under color of official right, not with the underlying substantive offense. Rashad’s participation in an illegal agreement with public officials who were practicing extortion suffices to establish conspiratorial guilt. In various cases, courts have applied the “under color of official right” theory to private individuals who conspired with corrupt public officials, masqueraded as public officials, aided or abetted extortion by public officials, or were speaking for a public official. See, e.g., United States v. Rubio, 321 F.3d 517, 527 (5th Cir. 2003) (private bail bondsman conspired with public official who received bribes); United States v. Box, 50 F.3d 345, 351 (5th Cir.1995) (bail bondsman guilty of Hobbs Act conspiracy to extort “under color of official right” because he conspired with public officials on the take); Tomblin,46 F.3d at 1382-83.

30

United States v. Stephens, __ F.3d __ (5th Cir. June 5, 2013)(12-20093):Stephens has met his burden of showing that a clear or obvious error was made, because he is correct that § 2B3.1(b)(7)(D), a provision dealing with the completed offense of robbery, applies only to actual loss. However, we hold that this error did not affect his substantial rights. We have previously held that U.S.S.G. § 2X1.1, a sentencing provision covering inchoate offenses including conspiracy, is applicable to Hobbs Act robbery conspiracies and directs an enhancement for intended loss that incorporates the enhancements for actual loss contained in § 2B3.1(b)(7). See United States v. Gonzales, 642 F.3d 504, 505 (5th Cir. 2011) (per curiam); see also United States v. Amato, 46 F.3d 1255, 1262-63 (2d Cir. 1995) (“Section 2X1.1(a), when applied to robbery conspiracies, adopts by cross-reference all the adjustments of § 2B3.1, even where the offense conductcausing the adjustment was intended but unachieved.”).

“A sentencing error [only] affects a defendant’s substantial rights if he can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” United States v. Medina-Torres, 703 F.3d 770, 778 (5th Cir. 2012) (quoting United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam)). Because a correct application of § 2X1.1 would have yielded the same result as the mistaken direct application of § 2B3.1(b)(7)(D), Stephens cannot show a reasonable probability that he would have received a lesser sentence absent the district court’s minor cross-referencing error. United States v. White, (5th Cir. Jan. 15, 2014)(12-50846): Defendant robs drug dealer and is charged with violation of Hobbs Act. Our caselaw, however, treats illegal drugs somewhat differently and suggests that the required interstate nexus can be established by a single robbery of a single drug dealer. In this circuit’s first case upholding a Hobbs Act conviction involving drug dealers, two former police officers had been convicted of extorting money from local dealers: The Fifth Circuit has adopted the “depletion of assets” test.

Under this theory, taking money away from a business engaged in

interstate commerce obstructs, delays, or affects commerce, as required for a Hobbs Act violation. The evidence at trial showed that the defendants took money away from Green’s and Frazier’s drug businesses. This court has previously held that “drug

trafficking affects interstate commerce.” This holding was based on a

detailed Congressional finding to that effect. The extortion at

31

issue here, which depleted funds otherwise available for drug trafficking, therefore impeded interstate commerce sufficiently to

implicate the Hobbs Act.United States v. Davenport, No. 93-1216, 36 F.3d 89 (table), 1994 WL 523653, at *11 (5th Cir. Sept. 6, 1994) (unpublished).

Then in United States v. Villafranca, 260 F.3d 374 (5th Cir. 2001), a prosecutor was convicted under the Hobbs Act for “fixing” drug cases for money:

Most of the defendants that paid Villafranca and Garcia to fix their

cases were caught while traveling to and from Mexico, and occasionally to and from other states. Many of the defendants were

engaged in the shipment of large quantities of drugs. Thus, the extortion by Villafranca involved delaying or expediting the

movement of individuals across state and international lines and affected commerce in drugs. The requirement of a nexus to

interstate commerce is met in this case.Id. at 378 (footnotes omitted). “[I]nterfering with or facilitating narcotics trafficking [is] sufficient to create an effect on interstate commerce, since drugs are traded on an interstate market.” Id.

The case of United States v. Rubio, 321 F.3d 517 (5th Cir. 2003), similarly involved convictions under the Hobbs Act for “fixing” drug cases. In United States v. Partida, 385 F.3d 546, 561 (5th Cir. 2004), the court again held that the interstate nexus is met if the defendants “depleted funds that would otherwise have been available for drug trafficking.”

After reviewing the holdings and reasoning in Davenport, Villafranca, and Partida, however, we cannot say that the instant petty robberies lack an interstate nexus. Both “depleted funds that would otherwise have been available for drug trafficking,” Partida, 385 F.3d at 561, and “[t]he extortion at issue here, which depleted funds otherwise available for drug trafficking, therefore impeded interstate commerce sufficiently to implicate the Hobbs Act,” Davenport, 1994 WL 523653, at *11. Finally, White and Roberts “interfere[ed] with .narcotics trafficking . . . .” Villafranca, 260 F.3d at 378 Hobbs as robbery is a crime of violence under 18 USC § 924(c ). United States v. Buck, __ F.3d __ (5th Cir. Feb. 1, 2017)(15-20197. Accord: United States v. Hill,

32

8 832 F.3d 135, 140 (2d Cir. 2016). United States v. Robinson, 844 F.3d 137, 140-41 (3d Cir. 2016); In re Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); United States v. Howard, 650 F.. App’x 466, 468 (9th Cir. 2016).

Homeland Security Admin Use of PSR from Criminal CaseUnited States v. SHAHID IQBAL, __ F.3d __ (5th Cir. June 17, 2012):(“Iqbal”) pled guilty to one count of structuring financial transactions to evade federal reporting requirements. The Department of Homeland Security (“DHS”) subsequently attempted to introduce Iqbal’s Presentence Investigation Report (“PSR”) in a removal proceeding; the immigration court refused to admit the PSR without the district court’s approval, which DHS then sought. Iqbal in turn requested criminal contempt sanctions against the DHS attorneys who pursued disclosure of his PSR. Thedistrict court granted DHS’s motion after redacting much of Iqbal’s personal information and denied Iqbal’s sanctions request. We AFFIRM. DHS relied on the balancing framework for determining a “compelling, particularized need for disclosure” that was articulated by this court in United States v. Huckaby, 43 F.3d 135, 139 (5th Cir. 1995). The government, having agreed to redact Iqbal’s personal information, contended that the public’s interest in preventing an ongoing fraud on the immigration laws outweighed Iqbal’s remaining privacy interests. Iqbal argued that DHS should instead establish its immigration case against Iqbal through various witnesses, including the investigating officer and Iqbal’s co-defendants. When combined with Iqbal’s substantial privacy interests, this alternate avenue to make its case, Iqbal urged, defeated DHS’s claim of a particularized need to disclose Iqbal’s PSR. Iqbal further requested the district court to sanction DHS attorneys for filing Iqbal’s sealed PSR with the immigration court without the district court’s permission. The district court found our Huckaby framework instructive and, balancing the Huckaby interests, released the redacted PSR to the immigration court. The court summarily denied Iqbal’s sanctions request.

Hot Pursuit Civil Rights Suit Scott v. Harris, 550 U.S. 372; 127 S. Ct. 1769 (2007): established a rule for§ 1983 actions against police officers involved in high-speed chases.

As an affirmative defense, qualified immunity must be pled and proved by the defendant. See Gomez v. Toledo, 446 U.S. 635, 640 (1980); FED. R. CIV. P. 8(c). Generally, under Rule 8(c) affirmative defenses must be raised in the first responsive pleading. However, “[w]here the matter is raised in the trial court in a manner that does not result in unfair surprise . . .

33

technical failure to comply precisely with Rule 8(c) is not fatal.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983). An affirmative defense is not waived if the defendant “raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” Id. at 856. We have noted that a failure to plead an affirmative defense in the first response is “especially excusable” where the law on the topic is not clearly settled. See Johnson v.Johnson, 385 F.3d 503, 516 n.7 (5th Cir. 2004).

Until recently, we resolved government officials’ qualified immunity claimsunder the strict two-part test mandated by the Supreme Court in Saucier v. Katz, deciding (1) whether facts alleged or shown by plaintiff make out the violation of a constitutional right, and (2) if so, whether that right was clearly established at the time of the defendant’s alleged misconduct. See Saucier, 533 U.S. 194, 201 (2001); Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998). However, the Supreme Court has revisited this rule and determined that the rigid two-step structure is no longer mandatory. See Pearson v. Callahan, 129 S. Ct. 808, 2009 WL 128768 at *9 (2009). Accordingly, as the Court did in Pearson, we will first consider whether the officer’s conduct violated clearlyestablished law. Id. at *14.

See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992)(finding that § 1983 does not provide a remedy if there is no violation of federal law); Davis v. Scherer, 468 U.S. 183, 194 (1984) (noting that officials do not lose qualified immunity where they violate administrative directives); Scott, 127 S. Ct. at 1773 n.1 (observing that “it is irrelevant to our analysis whether [Officer] Scott had permission to take the precise actions he took” when he bumped the fleeing suspect off the road). Therefore, we hold that the district court erred in concluding that Knoblauch loses qualified immunity because he failed to follow his supervisor’s order to end the chase.

The district court also found that Tennessee v. Garner, 471 U.S. 1 (1985),established a clear Fourth Amendment rule making Knoblauch’s actions unconstitutional because no innocent bystanders were present. … Considering the vast difference between an unarmed suspect fleeing on foot and a reckless, intoxicated driver speeding away from police in a vehicle, we hold that Garner did not establish a clear Fourth Amendment rule making Knoblauch’s conduct unlawful based on the summary judgment record in this case. directly to the question of whether an officer may attempt to end a high-speed car chase by bumping the suspect off of the road. However, in 2007 the Supreme Court confronted facts similar to this case in Scott v. Harris. In Scott,

34

a police officer rammed a fleeing suspect’s rear bumper to end a car chase that hadexceeded eighty-five miles per hour and presented a danger to the public. See Scott, 127 S. Ct. at 1772. The Court held:

A police officer’s attempt to terminate a dangerous high-speed car

chase that threatens the lives of innocent bystanders does not

violate the Fourth Amendment, even when it places the fleeing

motorist at risk of serious injury or death.

Hybrid Representation A criminal defendant does not have the right to “hybrid representation.” United States v. Ogbonna, 184 F.3d 447, 449 & n.1 (5th Cir. 1999). . "'[T]here is no constitutional right to hybrid representation. ... By accepting the assistance of counsel the [defendant] waives his right to present pro se briefs." United States v. Ogbonna, 184 F. 3d 447, 449 n.1 (5th Cir.), cert. denied, 528 U.S. 1055 (1999).

Hyde Amendment Recovery United States v. Claro, 579 F.3d 452 (5th Cir. 2009)(07-20732). Hyde Amendment, Pub. L. 105-119, § 617, 111 Stat. 2519 (1997), reprinted in 18 U.S.C. § 3006A, Note. Dismissed indictment in 2005, and the Government’s having neither appealed that dismissal nor sought to re-indict Claro, he filed a motion for attorney’s fees and litigationexpenses, pursuant to the Hyde Amendment. Establishes basis and accounting to collect.At issue are whether the Hyde Amendment allows the recovery of attorney’s fees: for Claro’s contingent-fee contract with an attorney to pursue Claro’s claims under the Hyde Amendment; and for uncompensated paralegal services provided by Claro’s wife for defending against the criminal charges against Claro.

DeGuerin firm’s pursuing, under its contingent-fee contract, the Hyde Amendment claim (as discussed infra, the $28,000 awarded for the Neville firm was in error; it did not pursue the claim); and (2) whether Claro can recover for his wife’s paralegal work for the underlying criminal proceedings.

An award or denial of attorney’s fees and expenses under the Hyde Amendment is reviewed for abuse of discretion. E.g., United States v. Truesdale, 211 F.3d 898, 905 (5th Cir. 2000). Legal determinations underlying the award are, of course, reviewed de novo. Id. at 906.

35

those implicated by one under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412: “In each case, the movant is seeking an award of attorney’s fees [andexpenses] based upon a litigating strategy employed by the government that, the movant claims, conflicts with certain statutorily defined notions of fair play.” Truesdale, 211 F.3d at 904. Accordingly, in enacting the Hyde Amendment, Congress directed that the procedures and limitations of the EAJA are, with limited exceptions, incorporated into the Hyde Amendment. Id. at 903.

Section 2412 of the EAJA, however, contains two provisions relating toattorney’s fees: subparts (b) and (d). Subpart (b) provides, inter alia, that a district court “may award reasonable fees and expenses of attorneys . . . to the prevailing party in any civil action brought by or against the United States”. 28 U.S.C. § 2412(b). Subpart (d) contains the “procedures and limitations” for an award under the Act. 28 U.S.C. § 2412(d). For the two issues at hand, we join our sister circuits that have held the “procedures and limitations” incorporated by the Hyde Amendment are those in subpart (d). See United States v. Aisenberg, 358 F.3d 1327, 1339-42 (11th Cir. 2004); United States v. Knott, 256 F.3d 20, 26-27 (1st Cir. 2001); United States v. Sherburne, 249 F.3d 1121, 1129 (9th Cir. 2001); United States v. Ranger Elec. Commc’ns, Inc., 210 F.3d 627, 633 (6th Cir. 2000), overruled on other grounds by Scarborough v. Principi, 541 U.S.401 (2004). prevailing party . . . fees and other expenses . . . incurred by that party . . .unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust”. 28 U.S.C. § 2412(d)(1)(A) (emphasis added).

Section 2412(d) states, in pertinent part: “[A] court shall award to a “Fees and other expenses” include “reasonable attorney fees . . . based upon prevailing market rates for the kind and quality of the services furnished, except that . . . attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor . . . justifies a higher fee”. 28 U.S.C. § 2412(d)(2)(A).To support an award, the prevailing party is required, inter alia, to “submit to the court an application for fees and other expenses . . . [showing] the amount sought, including an itemized statement from any attorney . . . representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed”. 28 U.S.C. § 2412(d)(1)(B).

Claro claims fees based on a contingent-fee contract are recoverable under

36

the Amendment because such fees are recoverable under the EAJA and because this circuit has held contingent fees are recoverable under similar fee-shifting statutes.

Identification, Illegal and Identification, Eyewitness Perry v. New Hampshire, __ U.S. ___ (Jan. 11, 2012)(op. by J. Ginsburg, concur by Thomas, dissent by Montemayor): An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification, Simmons v. United States, 390 U.S. 377, 384 (1968)[n. 1], the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arrange suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth. We have not extended pretrial screen for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petition request that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.

Our decisions, however, turn on the presence of state action and aim to deter police from rigged identification procedures, for example, at a lineup, show-up, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably the presence of counsel at post-indictment line-ups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness and the requirement that guilt be proven beyond a reasonable doubt. United States v. Tindall, (5th Cir. Nov. 9, 2011)(10-20818)(Judges David, Stewart, and Clement): Tindall has not shown that the district court abused its discretion inexcluding Dr. Fisher’s testimony. See United States v. Jackson, 50 F.3d 1335, 1340 (5th Cir. 1995). … This case is more similar to United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986), and United States v. McGinnis, 201 F. App’x 246 (5th Cir. 2006), than to United States v. Alexander, 816 F.2d 164, 166 (5th Cir. 1987). The evaluation of the reliability of the witnesses’ identification was within the common sense of the jury and did not require the aid of expert testimony. The district court did not abuse its discretion in determining that Dr. Fisher’s testimony would have been more confusing to the jury than helpful. United States v. Delgado, __ F. App’x__ (5th Cir. Feb. 4, 2010)(08-51219).

37

In reviewing a motion to suppress identification testimony, “‘we accept the district court’s findings of fact unless they are clearly erroneous, but we review de novo the court’s ultimate conclusion of the constitutionality of the law enforcement action.’” United States v. Moody, 564 F.3d 754, 762 (5th Cir. 2009)(quoting United States v. Guidry, 406 F.3d 314, 319 (5th Cir. 2005)). In undertaking this inquiry, we may “consider the evidence admitted at both the suppression hearing and the trial.” United States v. Jones, 239 F.3d 716, 718 (5th Cir. 2001). Whether an identification is constitutionally admissible is a mixed question of law and fact. Moody, 564 F.3d at 762.mixed question of law and fact. Moody, 564 F.3d at 762.

“The Due Process Clause protects against the use of evidence obtained from impermissibly suggestive identification procedures.” Id. (citation and internal quotation marks omitted). “The admissibility of identification evidence is governed by a two-step test. . . .” Id. (quoting Guidry, 406 F.3d at 319). First, we ask whether the identification procedure was impermissibly suggestive. Second, we ask whether the procedure used posed a “very substantial likelihood of irreparable misidentification.” Id. (quoting Guidry, 406 F.3d at 319). Identification testimony is inadmissible only if both questions are answered in the affirmative. Id. The linchpin of the admissibility inquiry is whether the identification is reliable. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). “[T]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Allen v. Estelle, 568 F.2d 1108, 1112 (5th Cir. 1978) (internal punctuation, quotation marks, and citations omitted). However, even if an out-of-court identification procedure was impermissibly suggestive in violation of a defendant’s due process rights, the resulting identification testimony may still be admissible if it is reliable in light of the totality of the circumstances. Amador v. Quarterman, 458 F.3d 397, 414 (5th Cir. 2006). An identification is reliable if the identification procedures did not pose a “substantial likelihood of irreparable misidentification[;]” i.e., it meets the second Brathwaite prong. Id. If we determine that an identification meets the second Brathwaite prong, we need not examine whether the identification procedures satisfied the first Brathwaite prong to determine that the resulting identification is admissible. Moody, 564 F.3d at 762 n.10 (citing Coleman v. Quarterman, 456 F.3d 537, 544 (5th Cir. 2006)). In assessing whether identification procedures posed a substantial likelihood of irreparable misidentification, we consider several factors: “(1) the opportunity of the witness to view the criminal at the crime scene; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at theconfrontation; and (5) the length of time between the crime and the confrontation.” See id. at 762–63 (quoting Coleman, 456 F.3d at 544).

38

Gary L. Wells et al., Eyewitness Evidence: Improving Its Probative Value, 7 PSYCHOL. 27 SCI. PUB. INT. 45, 62 (2006). The investigators in this case did not conduct double-blind or sequential line-ups, which may increase reliability. See id. at 63–64; see also CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, REPORT AND RECOMMENDATIONS REGARDING EYEWITNESS IDENTIFICATION PROCEDURES (2005), available at http://www.ccfaj.org/documents/reports/eyewitness/official/eyewitnessidrep.pdf. Quoted in n. 27, Gonzales v. Thayer, __ F.3d. __ (5th Cir. June 13, 2011)(09-20019).

United States v. Lugo-Lopez, (5th Cir. Aug. 17, 2016)(15-50407):[A]n in-court identification is not necessary for conviction.” United States v. Castaneda, 548 F. App’x 140, 143 (5th Cir. 2013). We have also held that “[a]lthough ‘an uncertain in-court identification will not support a conviction where that identification is the only evidence offered on the issue of identity,’ such ‘tentative nature of . . . identification is not fatal,’ if there is other sufficient evidence of identity.” United States v. Guerrero, 169 F.3d 933, 941 (5th Cir. 1999) (emphasis omitted). However, where the “sole witness is unsure and there are no other connecting or corroborating facts or circumstances” the jury cannot find guilt beyond a reasonable doubt. United States v. Johnson, 427 F.2d 957, 961 (5th Cir. 1970), superseded by rule on other grounds in United States v. Nelson, 242 F. App’x 164 (5th Cir. 2007).

Identity Theft (See also Aggravated ID Theft) United States v. Martinez, 322 Fed. App’x 384 (5th Cir. 2009)(08-10255)

Martinez argues that the district court erred by applying the nine-level enhancement under U.S.S.G. § 2L2.1(b)(2)(C) on the ground that Counts 1, 2, 4, and 5 involved 100 or more documents. Because Martinez did not object on this basis in the district court, this issue is reviewed for plain error only. See United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). At Martinez’s sentencing, a special agent of Immigrations and Customs Enforcement testified that Martinez’s apartment contained, among other items used to create false identification documents, over 100 sheets of stock paper simulating green cards and social security cards. The district court did not commit plain error in applying the nine-level enhancement under § 2L2.1(b)(2)(C). See United States v. Salazar, 70 F.3d 351, 351-52 (5th Cir. 1995). Martinez also argues that the district court erred in finding that a factual basis existed to support his guilty plea as to aggravated identity theft under 18 U.S.C. § 1028A. Martinez contends that he never admitted knowing that the means of identification he was using belonged to another person. Martinez argues that such knowledge is an element of § 1028A. Because this argument is raised for the first

39

time on appeal, plain error review applies. See United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006).

Section 1028A imposes a consecutive two-year sentence on anyone who during particular enumerated offenses “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” § 1028A(a)(1). Martinez argues that the word “knowingly” modifies not only the phrase “transfers, possesses, or uses” but also the phrase “a means of identification of another person,” such that the Government was required to prove that a defendant knew that the means of identification belonged to another person. Martinez alternatively argues that § 1028A(a)(1) is ambiguous and that it should be interpreted in his favor pursuant to the rule of lenity.

We have not considered this issue. The First, Ninth, and D.C. Circuits have held that the Government must prove under § 1028A that the defendant actually knew that the means of identification belonged to another person. United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008); United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008); United States v. Villanueva-Sotelo, 515 F.3d 1234, 1246 (D.C. Cir. 2008), petition for cert. filed (Nov. 7, 2008)(No. 08-622). The Eighth, Eleventh, and Fourth Circuits have reached the opposite conclusion. United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008), petition for cert. filed (July 15, 2008) (No. 08-5316); United States v. Hurtado, 508 F.3d 603, 609, 610 & n.8 (11th Cir. 2007), cert. denied, 128 S. Ct. 2903 (2008); United States v. Montejo, 442 F.3d 213, 216-17 (4th Cir. 2006). The Supreme Court has granted certiorari on this issue in Flores-Figueroa v. United States, 129 S. Ct. 457 (2008). “An error is considered plain, or obvious, only if the error is clear under existing law.” United States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007). Because the law is not currently settled, any error by thedistrict court was not clear or obvious. See id. at 759. U.S. Supreme Court Decision. Flores-Figueroa v. United States, 556 U.S.1886 (2009 held that the law enhancing the sentence for identity theft requires proof that an individual knew that the identity card or number he had used belonged to another, actual person. Merely using a Social Security Number is not sufficient connection to another individual.

Application of Flores-Figueroa to Other Areas (Drugs). In United States v. Chapman, __ F. App’x __ (5th Cir. Dec. 31, 2009)(09-40210), Chapman unsuccessfully argued that the Flores-Figueroa principle should be applied to new areas so as to require the United States to prove in a drug case that the accused knew the specific type and quantity of controlled substance. Held: These issues are foreclosed by current circuit precedent, see United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003) (holding that knowledge of drug type or quantity is not an element of an offense under 21

40

U.S.C. § 841), which has not been overruled by Flores-Figueroa. See United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009). Contrary to Smith’s assertion, she was not required to explicitly admit that she knew that the names used to forge the checks belonged to the those who were authorizedto sign them; the facts that she admitted were more than sufficient to draw thisinference. See United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008). U.S. V. Buchanan, (5th Cir. Jan. 9, 2013)(11-20988). United States v. Minor, __ F.3d ___ (5th Cir. Aug. 2, 2016)(15-10231)

The district court found that Minor committed an offense with over 250 victims and therefore increased Minor’s offense level by six pursuant to U.S.S.G. § 2B1.1(b)(2)(C) (2014).8 Minor challenges this six-level enhancement on appeal. We review the district court’s interpretation and application of the U.S. Sentencing Guidelines de novo and its factual findings for clear error. United States v. Conner,537 F.3d 480, 489 (5th Cir. 2008). (Note: Note 9 rejects government’s argument that review should be by plain error). U.S.S.G. § 2B1.1 (2014) provides the applicable framework for calculating Minor’s offense level. If the defendant’s offense “involved 250 or more victims,” § 2B1.1(b)(2)(C) requires the court to increase the defendant’s offense level “by 6 levels.”10 If, by contrast, the defendant’s offense only involved 50 or more victims,” the court should instead only “increase by 4 levels.”11

In cases involving identification fraud, the term “victim” includes, inter alia, “any individual whose means of identification was used unlawfully or without authority.”12 Importantly, however, the mere “acquisition and possession of a means of identification do not qualify as using that means of identification” for the purposes of § 2B1.1(b)(2).13 A defendant only “uses” another person’s means of identification within the meaning of § 2B1.1(b)(2) if the defendant “actively employ[s]” that person’s identification in the furtherance of some “criminal goal.”14

We agree with the district court that Minor and his co-defendant actively employed the means of identification of over 250 victims in furtherance of their bank fraud scheme. Minor and his accomplice used the identification information of 361 bank customers with the object of unlawfully accessing those customers’ bank accounts without their consent. Minor’s use of this identification information went beyond mere “acquisition and possession of a means of identification;”15 rather, Minor “actively employed” that identification information to further his criminal scheme.16 Thus, the 361 bank customers were victims of Minor’s offense.

Minor rejoins that, even though he attempted to use the identification information of 361 customers to access their bank accounts, he only successfully obtained access to approximately 150 accounts. He argues that an unsuccessful attempt to use a person’s means of identification does not render that person a “victim” within the meaning of § 2B1.1(b)(2). He therefore posits that his crime only had 150 victims. The Eleventh Circuit rejected a materially indistinguishable argument in United States v. Adeife, 606 F. App’x 580 (11th Cir. 2015).. ….We find Adeife both persuasive and analogous to the facts of this case. Even though Minor did not successfully access or withdraw funds from all 361 victims’ accounts, he nonetheless “actively employed”

41

their identifying information when he attempted to access their accounts. In other words, Minor “used” a stolen identity every time he called a bank posing as another individual in an attempt to breach that individual’s account, even if the bank.

Ignorance of the LawHowever, it is a “deeply-rooted common law principle . . . that ignorance of the law provides no defense to its violation.” United States v. Wilson, 133 F.3d 251, 261 (4th Cir. 1997). “This maxim is so strongly embedded in our legal system that ‘unless the text of a statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.’” United States v. Ho, 311 F.3d 589, 605 (5th Cir. 2002) (quoting Bryan v. United States, 524 U.S. 184, 193 (1998)); see also United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 559, 563 (1971) (holding that the phrase “knowingly violates [applicable regulations]” required knowledge of the facts that constituted the violation, but not knowledge of the regulations); Wilson, 133 F.3d at 262 (“[W]e cannot conclude that Congress intended to require the defendant to know that his conduct was illegal when it stated that ‘Any person who knowingly violates [provisions of the Clean Water Act] . . . shall be punished.’”). Knapp does not identify, and we have not found, any language in the statute, regulations, or legislative history that displaces the well established principle that ignorance of the law is no defense. The determination that Knapp’s violations were “knowing” requires only that Knapp knew the facts that constituted the unlawful conduct. See Ho, 311 F.3d at 605. Substantial evidence in the record supports that conclusion with respect to the transactions not subject to remand: Knapp knew the existence of the cease and desist order, and he knew he was purchasing and selling the animals at issue without a license. The Judicial Officer therefore did not err in concluding that these violations were “knowing.” Knapp v. U.S. Department of Agriculture, __ F.3d ___ (5th Cir. July 31, 2015)(14-60002).

Illegal Entry Due to Prior Conviction United States v. Munoz-Gonzalez, __ F.3d __ (5th Cir. Feb. 3, 2016)(15-40385):A subsequent pardon granted for reasons other than proof of innocence does not vitiate the defendant’s prior crimes or convictions in a conviction for illegal entry. See Watkins v. Thomas, 623 F.2d 387, 388 (5th Cir. 1980) (quoting Gurleski v. United States, 405 F.2d 253, 266 (5th Cir. 1968)): A pardon for any other reason than subsequent proof of innocence does not obliterate the defendant’s previous transgressions particularly as they may bear on his present character and veracity. Any number of reasons may lie behind the granting of an executive pardon, but the granting of a pardon does not itself indicate any defect in previous convictions. Neither does it negate any bearing that they may have on present credibility.

The Supreme Court has long recognized that pardoned offenses may be used for sentencing enhancement purposes. Carlesi v. New York, 233 U.S. 51, 59 (1914). The Court in Carlesi held that a presidential pardon of a federal crime does not restrict or limit “the power of [a state] to punish crimes thereafter committed against its authority, and in so doing to prescribe such penalties as may be deemed appropriate in view of the nature of the offense and the character of the offender, taking in view his past conduct[.]”

42

The Fifth Circuit reviews a district court’s characterization of a defendant’s prior conviction de novo. United States v. Balderas-Rubio, 499 F.3d 470, 472 (5th Cir. 2007),cert. denied, 128 S. Ct. 1304 (2008). When a defendant does not raise the issue in the district court, review is for plain error. See United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). Valdez-Amaro’s challenge to the presumption of reasonableness is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also rejected the argument that using a prior conviction to increase the offense level and in calculating criminal history is impermissible “double counting.” See United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). A conviction for aggravated assault of a peace officer in violation of§ 22.02(a)(2)(A) (1991) does not qualify as a crime of violence under § 16(a)because the use of force was not an element of the offense. See United States v.Villegas-Hernandez, 468 F.3d 874, 879, 882 (5th Cir. 2006)

Illegal Entry—Cannot Suppress ID or INS File Due to Bad Arrest. United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999);United States v. Hernandez-Mandujano, __ F.3d __ (5th Cir. June 27, 2013)(12-30793)(Note especially the concurrence of Judge Jolly pointing out split authorityamong federal courts of appeal on this issue.)

Illegal Entry--Prior Removal under 8 U.S.C. § 1326 Section 1326 prohibits an alien who was previously removed from reentering the United States without the Attorney General’s permission. An alien who is prosecuted under § 1326 may collaterally attack the prior removal order as an element of the criminal offense. United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). To do so, the alien must establish (1) that the removal hearing was fundamentally unfair, (2) that the hearing effectively eliminated his right to challenge the hearing by means of judicial review of the removal order, (3) that he was prejudiced by the proceduraldeficiencies at the hearing, and (4) that he exhausted any administrative remedies that were available to challenge the order. United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002); § 1326(d). United States v. Gonzales-Guzman, 597 F.3d 695 (5th Cir. 2010).

43

New Offense although Never Ordered Removed. United States v. Neveres-Bustamante, __ F.3d __ (5th Cir. Jan. 25, 2012)(11-30080): Mr.Nevares-Bustamate was not ordered removed after that predicate conviction. Whether the sentencing 16-level enhancement of 2L1.2b(1)(A)(ii) should apply is a matter of first impression in this Circuit. … The application notes to § 2L1.2 explain that “[a] defendant shall be considered to have unlawfully remained in the United States if the defendant remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction.” We see no inherent inconsistency between the Guideline and the definition of “unlawfully remained” in its application note, so we treat the application note as authoritative. The question then is whether Nevares-Bustamante “remained in theUnited States following a removal order issued after a conviction.” This Courthas not previously been presented with that question, but a case from the FirstCircuit is analogous. United States v. Sanchez-Mota, 319 F.3d 1 (1st Cir. 2002) (per curiam). Without a fresh removal order or reinstatement of a prior removal order, the court concluded, the defendant did not “unlawfully remain[] in the United States following a removal order issued after a conviction.” We find the First Circuit’s reasoning persuasive, and we adopt it here. we hold that a defendant alleged to have unlawfully remained in the United States following a qualifying conviction under U.S.S.G. § 2L1.2(b)(1)(A) is subject to the § 2L1.2(b)(1)(A) enhancement only when a removal order is issued or reinstated after that conviction United States v. Sandoval, (5th Cir. July 25,2012)(11—20644): He argues thatthe district court erred in assessing criminal history points based on his priormisdemeanor conviction for displaying a fictitious or counterfeit inspectioncertificate in violation of TEX. TRANSP. CODE ANN. § 548.603(a)(1). … In determining a defendant’s criminal history score, “[s]entences for misdemeanor and petty offenses are counted,” except for offenses listed under U.S.S.G. § 4A1.2(c)(1) and “offenses similar to them.” See § 4A1.2(c)(1). … Alvarez argues that the fictitious inspection certificate offense is similar to the offenses of driving without a license or with an invalid license and giving false information to a police officer, which are listed offenses excludable from a defendant’s criminal history under § 4A1.2(c)(1). He acknowledges that we have held that a misdemeanor conviction for violating § 548.603 counts as a conviction for criminal history purposes. See United States v. Guajardo, 218 F. App’x 294 (5th Cir. 2007). … The district court did not err in determining that the conviction should be counted in determining his criminal history because displaying a counterfeit inspection certificate requires affirmative and knowing activity and, thus, involves a greater level of culpability than the offenses of omission listed in § 4A1.2(c)(1). See United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991). Accordingly, the

44

district court did not err in assessing criminal history points based on Alvarez’s conviction for displaying a fictitious or counterfeit inspection certificate.

Illegal Entry and Crime of Violence under 2L1 United States v. Chacon, __ F. 3d __ (5th Cir. January 6, 2014)(12-41301). Furthermore, a crime of violence includes an attempt to commit a crime of violence. U.S.S.G. § 2L1.2 cmt. n.5. We note that Chacon has not argued that an “attempt” under Maryland law is different from an “attempt” under the guidelines. See United States v. Sanchez, 667 F.3d 555, 560-66 (5th Cir. 2012).

Illegal Alien—Unlawfully Procuring Citizenship for False Statement re Marriage.18 U.S.C. § 1425(b). United States v. Allouche, (5th Cir. July 12, 2017)(op. on revision)(15-50499): Section 1425 punishes unlawful procurement of naturalization in two ways. First, Section 1425(a) punishes one who “knowingly procures or attempts to procure, contrary to law, the naturalization of any person.” 18 U.S.C. § 1425(a). Second, § 1425(b) punishes one who, “whether for himself or another person not entitled thereto, knowingly issues, procures or obtains or applies for or otherwise attempts to procure or obtain naturalization.” Id. § 1425(b). While “subsection (a) covers illegal means of procurement,” i.e., “an illegality played some role in [the] acquisition” of citizenship, “subsection (b) covers simple lack of qualifications.” Maslenjak v. United States, 137 S. Ct. 1918, 1925 n.2 (2017). The penalties for violating either subsection include both imprisonment and mandatory denaturalization, see 8 U.S.C. § 1451(e). In United States v. Moses, this Court outlined three elements the Government must prove to sustain a conviction under § 1425(b): “(1) the defendant issued, procured, obtained, applied for, or otherwise attempted to procure naturalization or citizenship; (2) the defendant is not entitled [to] naturalization or citizenship; and (3) the defendant knows that he or she is not entitled to naturalization or citizenship.” 94 F.3d 182, 184 (5th Cir. 1996).

The second element is at issue in this case. At trial, the Government introduced evidence showing that Allouche was not entitled to naturalization under Section 319 because he was separated from his wife. Allouche does not challenge this evidence on appeal. Instead, Allouche argues that he was entitled to naturalization under Section 316. As discussed above, Section 316 permits a lawful permanent resident to naturalize after five years of continuous residence in the United States, provided that he is physically present in the United States for at least half that time and “is a person of good moral character.” 8 U.S.C. § 1427(a). Absences from the United States for more than six months during that period are presumed to destroy the continuity of residence. Id. § 1427(b). But there is an exception for translators supporting U.S. Armed Forces; these individuals maintain their continuous residence for the duration of their employment abroad. See Admission of Translators and Interpreters as Special Immigrants, Pub. L. No. 110-36, § 1(c)(2), 121 Stat. 227, 228 (2007) (adding subsection (e) to § 1059 of the National Defense Authorization Act for Fiscal Year 2006) (codified as amended at 8 U.S.C. § 1101 note). Allouche introduced evidence suggesting he was eligible to naturalize under Section 316. Specifically, Allouche seems to have qualified for the translator exception described above, having served as an interpreter for the U.S. Army in Iraq during his 233-day absence from the United States in 2008. Moreover, after

45

submitting his naturalization application, Allouche filed an 8 470 form in order to preserve his continuous residence upon returning to Iraq. The U.S. Government approved this form. Based on this evidence, Stanley Shaffer—who interviewed Allouche and approved his naturalization— essentially conceded at trial that Allouche could have been eligible to naturalize under Section 316. The district court treated this evidence as irrelevant because Allouche was naturalized under the marital provision at Section 319. But this is a distinction without a difference. Citizenship obtained under Section 319 is the same as citizenship obtained under Section 316. Indeed, a naturalized citizen “possess[es] all the rights of a native citizen,” save the right to be eligible for the presidency. Schneider v. Rusk, 377 U.S. 163, 166 (1964) (quoting Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 827 (1824)). Thus, the fact that Allouche was ineligible for naturalization under Section 319 does not prove that he was “not entitled” to naturalization within the meaning of § 1425(b).

Illegal Alien—Deportation Does Not Moot Appeal Even if No SR United States v. Isidro-Esteban, __ F.3 ___ (5th Cir. June 30, 2017)(16-40340):Isidro-Esteban was released from incarceration on January 19, 2017, after the briefs in this appeal were filed, he is not subject to a term of supervised release, and he was removed from the United States on February 2, 2017. This case is not moot, however, as several of our sister circuits have held that “[c]ompletion of a sentence and deportation does not moot the [G]overnment’s appeal of an improper sentence.” United States v. HernandezGarduno, 460 F.3d 1287, 1291 (10th Cir. 2006); see also United States v. Plancarte-Alvarez, 366 F.3d 1058, 1063-64 (9th Cir. 2004); United States v. Orrega, 363 F.3d 1093, 1095-96 (11th Cir. 2004); United States v. Suleiman, 208 F.3d 32, 36-38 (2d Cir. 2000). Therefore, we must turn to the merits. The merits of this case are clear and the outcome required by the existing precedent in this circuit. This court in United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), determined that § 16(b) is not unconstitutionally vague in light of Johnson. Isidro-Esteban agreed that Gonzalez-Longoria currently forecloses the issue in this circuit, and that he simply wished to preserve the issue for possible further review. Gonzalez-Longoria is binding precedent unless overruled by this court en banc or by the Supreme Court, therefore the district court erred in holding § 16(b) was unconstitutionally vague and not granting the appropriate sentencing enhancement.

Immigration Consequences RODRIGUEZ-ESCARENO, __ F.3d ___ (5th Cir. Oct. 23, 2012)(11-41067):

The defendant pled guilty to illegal reentry following a deportation. Hehad earlier been convicted of a conspiracy to distribute methamphetamine. Athis sentencing for illegal reentry, the district court increased his sentencebecause it considered his earlier crime to be a “drug trafficking offense” as that

46

term is defined by the Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(i). The defendant did not object. On appeal, he argues the enhancement wasimproper. Under plain-error review, we agree. We VACATE and REMAND.

*** The issue in this case is whether a conspiracy conviction under 21 U.S.C.§ 846 satisfies the requirements for the 16-level enhancement. The enhancement is for “conspiring” to commit an offense, but we must decide whether the elements of a Section 846 conspiracy are consistent with the meaning of “conspiring” in Application Note 5 of U.S.S.G. § 2L1.2(b)(1)(A)(i). This question has not been squarely decided in this circuit.

*** We conclude from these sources that the generic, contemporary meaning of the word “conspiracy” contains an overt-act requirement. It has been settled since 1994 that Section 846 does not require that an overt act occur. United States v. Shabani, 513 U.S. 10, 13-14 (1994). It follows that the “conspiring” in Application Note 5 of Section 2L1.2(b)(1)(A)(i) of the Guidelines does not reach judgments of conviction of a conspiracy under Section 846. The government concedes that a Section 846 conspiracy is not one that fits the generic, contemporary meaning of a conspiracy. An immigration judge’s failure to inform an alien of his eligibility for discretionary waiver of removal at his removal proceeding does not render the proceeding fundamentally unfair. U.S. v. Lopez-Ortiz, 313 F.3d 225, 229-31 (5th Cir. 2002). See Romero-Rodriguez v. Gonzales, 488 F.3d 672, 677 n.5 (5th Cir. 2007). 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008). See also “Endangerment Enhancement in Transportation of Aliens.” Review of Denial of Downward Departure in Alien Case. Under United States v. Barrera-Saucedo, 385 F.3d 533, 537 (5th Cir. 2004), “it is permissible for a sentencing court to grant a downward departure to an illegal alien for all or part of time served in state custody from the time immigration authorities locate the defendant until he is taken into federal custody.” “This Court has jurisdiction to review a district court’s refusal to grant a downward departure from the Guidelines only if the refusal was based on an error of law.” Barrera-Saucedo, 385 F.3d. at 535. “A refusal to grant a

47

downward departure is a violation of law only if the court mistakenly assumesthat it lacks authority to depart.” United States v. Cooper, 274 F.3d 230, 248(5th Cir. 2001).

Immigration Documents and Admissibility United States v. Tavarez-Levario, __F.3d __ (5th Cir. June 5, 2015)(14-50415):This case presents a question of first impression for this court and our sister circuits: whether “use” of an immigration document, “knowing it to be forged, counterfeited, altered, or falsely made” or “procured by fraud or unlawfully obtained,” constitutes a “continuing offense” for statute of limitations purposes. 18 U.S.C. § 1546(a). We conclude that it is not. As a result, the indictment in this case was filed outside the applicable five-year limitations period. From United States v. Becerra-Valadez, __ F.3d __ (5th Cir. Nov. 2, 2011)(10-50446):

An A-File is created in every immigration case regardless of whether the alien is formally prosecuted or is permitted to voluntarily leave the United States without immigration court proceedings. Each A-File is given a unique number and is kept in the central repository at the National Records Center. Aliens who are formally prosecuted and ordered removed from the United States by an Immigration Judge (“IJ”) are escorted to the border and released to the Mexican authorities. The alien’s departure is then recorded in an administrative warrant of deportation/removal, otherwise known as a Form I-205. A Form I-205 contains a photograph of the alien, the alien’s fingerprint and signature, and the signature of an immigration official indicating that he or she witnessed the alien depart from the United States. The completed Form I-205 is then placed in the alien’s A-File.

Government then moved to admit four exhibits: (1) IJ’s order ofremoval, (2) Becerra’s Form I-205, (3) Becerra’s waiver of rights form, and (4)Becerra’s Form I-215. Escoto testified that Government exhibit 1 was an IJ’sorder of removal, dated July 9, 2001, indicating that Becerra was ordered to beremoved to Mexico following the immigration court proceedings. AlthoughEscoto did not witness Becerra depart from the United States to Mexico, Escotostated that Government exhibit 2 was a Form I-205 from Becerra’s A-File that

48

contained a photograph of Becerra, his fingerprint and signature, and thesignature of the immigration official who witnessed Becerra depart from theUnited States into Mexico on July 10, 2001.

Becerra objected to the admission of all four exhibits on grounds thatadmission violated his rights under the Sixth Amendment’s ConfrontationClause. … The district court admitted the Governments’exhibits over Becerra’s objection, finding that the exhibits were non-testimonial and that an agent’s testimony established that the documents were obtained from Becerra’s A-File.

The Confrontation Clause of the Sixth Amendment guarantees a criminaldefendant the right “to be confronted with witnesses against him.” U.S. Cont.amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the SupremeCourt held that the Confrontation Clause is violated where the prosecutionintroduces “testimonial statements of a witness who did not appear at trialunless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” The Court observed, however, that certain statements, “by their nature [are] not testimonial – for example, business records or statements in furtherance of a conspiracy.” Id. at 56. The Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’” Id. at 68. Recently, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Supreme Court revisited the question of what constitutes a testimonial statement. The Court held that the admission of “certificates of analysis” without testimony from the laboratory technicians that prepared them violated the defendant’s rights under the Confrontation Clause because the certificates were “quite plainly affidavits” submitted to establish a fact, were prepared inanticipation for use at trial, and were “functionally equivalent to live, in courttestimony.” Id. at 2532. The Court held that the certificates were not business

49

or official records because the business records exception to the hearsay rule didnot extend to cases where “the regularly conducted business activity is theproduction of evidence for use at trial.” Id. at 2538. Nevertheless, the Courtobserved, documents “created for the administration of an entity’s affairs andnot for the purpose of establishing or proving some fact at trial . . . are nottestimonial.” Id. at 2539-40.

While we have held that a Form I-205 was non-testimonial evidence andthat such a warrant may be admitted into evidence without violating theConfrontation Clause, United States v. Valdez-Maltos, 443 F.3d 910, 911 (5thCir. 2006), we have not had the opportunity to address the issue of whether,after Melendez-Diaz, documents contained in an alien’s A-File – specifically,Form I-205 and an IJ’s order of removal – are testimonial. Because Valdez-Maltos relied, in-part, upon one of our earlier decisions that was implicitly overruled by Melendez-Diaz and explicitly overruled by Martinez-Rios, 595 F.3d 581, 586 (5th Cir. 2010), it is necessary to address the issue of whether, after Melendez-Diaz, a Form I-205 and an IJ’s order of removal contained in an alien’s A-File are testimonial. In reaching our decision in Valdez-Maltos, we relied on two of our earlier decisions: United States v. Quezada, 754 F.2d 1190 (5th Cir. 1985) and United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005), overruled by Martinez-Rios, 595 F.3d at 586. In Quezada, we held that a Form I-205 contained in an alien’s A-File was properly admitted under Federal Rules of Evidence 803(8) (public records exception). 754 F.2d at 1194-95. This exception to the general hearsay rule is based upon the principles that “public documents prepared in thedischarge of official functions” are presumed trustworthy, “and the necessity ofusing such documents, [is] due to the likelihood that a public official would haveno independent memory of a particular action or entry where his duties require

50

the constant repetition of routine tasks.” Id. at 1193 (see generally, 4 D. Louiselland C. Mueller, Federal Evidence, Public Records § 454). Therefore, wedetermined that a Form I-205 was reliable and admissible because animmigration official preparing the warrant has no motivation to do anythingother than “mechanically register an unambiguous factual matter.” Id. at 1194.

Similarly, in Rueda-Rivera, this court held that a certificate ofnon-existence of record (“CNR”) was non-testimonial evidence and may beadmitted without violating the Confrontation Clause. 396 F.3d at 680.However, following the Supreme Court’s decision in Melendez-Diaz,Rueda-Rivera has been recently overruled. Martinez-Rios, 595 F.3d at 586(holding that a CNR in a § 1326 case is a testimonial statement, and that itsadmission, as proof of a defendant’s failure to apply for admission to the UnitedStates, without testimony of the analyst who prepared the CNR, violated theConfrontation Clause). However, the holding in Quezada has not beenoverruled. Therefore, in order to avoid the application of Valdez-Maltos, Becerra must show that the holding in that case has been explicitly or implicitly overruled by an intervening Supreme Court decision. See Martin v. Medtronic, Inc., 254 F.3d 577 (5th Cir. 2001) (“[A] panel of this court can only overrule a prior paneldecision if ‘such overruling is unequivocally directed by controlling SupremeCourt precedent.’”). Although Martinez-Rios decided only whether, after Melendez-Diaz, the admission of a CNR without the testimony of the analyst that prepared it in a § 1326 case violated the defendant’s confrontation rights, this court’s observations in that case are instructive. Martinez-Rios, 595 F.3d at 583,

51

585-86. In Martinez-Rios, we noted that Melendez-Diaz relied upon a “keydistinction between records that are kept in the ordinary course of business andthose that are specifically produced for use at trial,” the latter being testimonial.Id. at 586. This court held that because “CNR’s are not routinely produced inthe course of Government business but instead are exclusively generated for use at trial,” the CNR was testimonial and triggered the Confrontation Clause. Id. Agent E testified that an IJ’s order of removal is one possible result of the routine administrative process applicable to an alien who is subject to immigration proceedings. Escoto also testified that an IJ’s order of removal provides immigration officials the authority to remove an alien from the United States and that a Form I-205 is used in ICE’s regular course of business to document an alien’s departure from the United States. Certainly, an official court document, such as an IJ’s order of removal, which is created for the purpose of empowering ICE agents to carry out their ministerial duties does not fall within contours of the certificates of analysis at issue in Melendez-Diaz. See Melendez-Diaz, 129 S. Ct. at 2538-39 (certificates of analysis– “like police reports generated by law enforcement officials – do not qualify as business or public records for precisely the same reason” – they are not routinely produced in the course of government business, but are produced exclusively for use at trial. (citation omitted)). Similarly, a Form I-205, which must be prepared in every case resulting in a final order of removal, see 8 C.F.R. § 241.2, is produced in the routine course of government business, and not for use exclusively at trial, to memorialize an alien’s departure from the United States. It is of no moment that an incidental or secondary use of those documents, generated by interviews and other means, actually furthered a prosecution. See Davis v. Washington, 547 U.S. 813, 822 (2006) (holding that statements are testimonial when, inter alia, “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” (emphasis added)).

Other circuits considering the issue presented here have consistently held that a Form I-205 and similar A-File records are non-testimonial and do not violate the

52

Confrontation Clause. See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1034 (9th Cir. 2011) (recognizing that a warrant of removal and an IJ’s order of removal are non-testimonial in nature); United States v. Orozco-Acosta, 607 F.3d 1156, 1161-64 (9th Cir. 2010) (determining that Melendez-Diaz did not apply to a warrant of removal), cert. denied, 131 S. Ct. 946 (2011); United States v. Diaz-Gutierrez, 354 F. App’x 774, 775 (4th Cir. 2009) (warrants of deportation are non-testimonial and therefore not subject to the requirements of the Confrontation Clause), cert. denied, 130 S. Ct. 1560 (2010); United States v. Burgos, 539 F.3d 641, 645 (8th Cir. 2008) (concluding that a warrant of deportation is a non-testimonial business record not subject to the requirements of the Confrontation Clause); United States v. Torres-Villalobos, 487 F.3d 607, 613 (7th Cir. 2007) (holding the admission of warrants of deportation did not violate defendant’s Confrontation Clause rights); United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir. 2005) (holding that a warrant of deportation is non-testimonial in nature and not subject to confrontation because it “is recorded routinely and not in preparation for a criminal trial. It records facts about where, when, and how a deportee left the country.”).

The admission of the IJ’s order of removal and Form I-205 did not violateBecerra’s rights under the Sixth Amendment Confrontation Clause. Therefore,the district court did not err in admitting these documents into evidence. …AFFIRM Becerra’s conviction and sentence.

Immunity and Excessive Force in Medical Environment Pena v. Dallas County Hospital District (5th Cir. Nov. 23, 2015)(14-11020): III. DISCUSSION A. Legal Standard. This Court “review[s] the district court’s denial of qualified immunity de novo, accepting all well-pleaded facts as true and viewing them in the light most favorable to the plaintiff.” Cantrell v. City of Murphy, 666 F.3d 911, 918 (5th Cir. 2012) (quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)). Because we “lack the authority to review the district court’s decision that a genuine factual dispute exists, we do not apply the ordinary summary judgment standard.” Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013). Instead, we consider “only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment.” Kinney, 367 F.3d at 348. The burden to establish the inapplicability of qualified immunity is on Pena. See Cantrell, 666 F.3d at 918. We apply “a two-step analysis to determine whether a

53

defendant is entitled to summary judgment on the basis of qualified immunity.” Id. at 922. First, “we determine whether, viewing the summary judgment evidence in the light most favorable to the plaintiff, the defendant violated the plaintiff’s constitutional rights.” Id. (quoting Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007)). Second, we ask “whether the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the conduct in question.” Id. (quoting Freeman, 483 F.3d at 411). We may exercise our discretion in deciding which of the two prongs to address first. Id. For a right to be clearly established under the second prong of qualified immunity, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Kinney, 367 F.3d at 349–50 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “This requirement establishes a high bar.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013).

To hold that law is clearly established, we must “be able to point to ‘controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.’” Id. (quoting Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (en banc)); cf. City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015) (“Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.”). However, a plaintiff need not show that “the very action in question has been previously held unlawful.” Cantrell, 666 F.3d at 919 (quoting Wernecke v. Garcia, 591 F.3d 386, 393 (5th Cir. 2009)). Rather, “the unlawfulness need only be readily apparent from relevant precedent in sufficiently similar situations.” Id. (quoting Brown, 519 F.3d at 236–37).

B. Givens and Achebe (Excessive Force and Substantive Due Process) Pena claims that Givens and Achebe (collectively “the psych techs”) used excessive force against Cornell in violation of the Fourth Amendment. Pena also maintains that the psych techs violated Cornell’s substantive due process rights under the Fourteenth Amendment. The district court denied qualified immunity on the Fourth Amendment claim but did not discuss the Fourteenth Amendment claim. We address each claim in turn. 1. Fourth Amendment Excessive Force. To establish a Fourth Amendment excessive-force claim, “a plaintiff must first show that she was seized. Next she must show that she suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and (3) the force used was objectively unreasonable.” Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004) (citation omitted). The district court held that Cornell’s Fourth Amendment rights were clearly established based, explaining that “several courts have found that [police officers] restraining a suspect or patient in a prone position can constitute excessive force” and that “the technicians were trained not to use this kind of hold for extended periods of time.” The district court found that the psych techs’ “restraint of Cornell was not intended to treat his condition but rather to subdue him and prevent him from leaving the hospital.” Quoting the Sixth Circuit’s decision in McKenna v. Edgell, 617 F.3d 432, 438–39 (6th Cir. 2010), the district court reasoned: “[E]xposure to liability does not depend merely on the profession of the government actors.” Yet, as noted, before a court can consider whether the forced used was excessive, “a plaintiff must first show that she was seized.” Flores, 381 F.3d at 396. Qualified immunity thus attaches unless the law is clearly established that the defendant’s conduct amounted to a

54

seizure. See id. at 400 (determining, before looking to the amount of force used, that “[i]t was clearly established that stopping a moving car by intentionally shooting it constitutes a seizure”). Givens and Achebe contend that “it was not clearly established law that medical personnel who restrain patients while rendering aid have ‘seized’ the patient for Fourth Amendment purposes.” This Court has held implicitly that a person taken into custody by police officers under Texas Health and Safety Code § 573.001 is seized under the Fourth Amendment. See Cantrell, 666 F.3d at 923 (holding that Texas police officers who had probable cause to believe the plaintiff that they detained was a danger to herself were qualifiedly immune). We are, however, unaware of a case extending Fourth Amendment seizure law to mental-health facilities and workers that take custody of these individuals pursuant to Texas Health and Safety Code § 573.021, which authorizes a mental-health facility to temporarily hold parties brought into custody pursuant to § 573.001. Moreover, in Peete v. Metropolitan Government of Nashville & Davidson County, the Sixth Circuit “f[ound] no case authority holding that paramedics answering a 911 emergency request for help engage in a Fourth Amendment ‘seizure’ of the person when restraining the person to render aid.” 486 F.3d 217, 219 (6th Cir. 2007). In that case, paramedics were called to render aid to an epileptic man experiencing a seizure. Id. at 219–20. The paramedics restrained the man by “using their bodies to apply weight and pressure to [the epileptic’s] head, neck, shoulders, arms, torso, and legs in an attempt to prevent the decedent from moving”; they “tied his hands and ankles behind his back and continued to apply pressure to [him] while he was in a prone position.” Id. at 220. In its opinion, the Sixth Circuit distinguished Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004), a case on which the district court here heavily relied. See Peete, 486 F.3d at 221–222. Champion involved a § 1983 Fourth Amendment excessive-force claim brought against several police officers. 380 F.3d at 895–96. That case turned on a custodial arrest by the police of a severely autistic man who had become violent with his caretaker. Id. In that case, the plaintiff, Champion, struggled with the officers during the course of the arrest. Id. at 896–97. Looking at the facts in the light most favorable to the plaintiff, the court found that the officers remained on top of Champion even after he stopped resisting “and sprayed him with pepper spray even after he was immobilized by handcuffs and a hobbling device.” Id. at 901. Champion, who began vomiting after several minutes of being held down, was dead upon arrival at the hospital. Id. at 898. The court held that Champion’s arrest amounted to a clearly established unreasonable seizure under the Fourth Amendment. Id. at 901–902. Importantly, in Peete, the Sixth Circuit found that Champion did not apply to the paramedics’ conduct because the paramedics “were not acting to enforce the law, deter, or incarcerate.” 486 F.3d at 222. As the court explainedthe paramedics “were unlike the police officers in Champion who handcuffed and shackled the plaintiff in order to arrest and incapacitate him.” Id. The Sixth Circuit addressed the applicability of Peete to police officers rendering medical aid in McKenna v. Edgell, 617 F.3d 432 (6th Cir. 2010). Officers were the first responders to a 911 call requesting assistance for a man having a seizure; the officers handcuffed the man, though the reasons for the restraint were disputed. Id. at 435–36. The officers argued that they were entitled to qualified immunity based on Peete; the plaintiff countered that Peete was inapplicable because Peete concerned paramedics. Id. at 438–39. The Sixth Circuit held that whether the Fourth Amendment applied hinged on “whether the [officials]

55

acted in a law-enforcement capacity or in an emergency-medicalresponse capacity.” Id. at 439–40. We hold it was not clearly established that psych techs conduct in this case amounted to a seizure under the Fourth Amendment. Although whether the Fourth Amendment applies does not turn solely on whether the government officials were police officers, see McKenna, 617 F.3d at 438–39, the Sixth Circuit has held that whether Peete applies should depend on “whether the [officials] acted in a law-enforcement capacity or in an emergency-medical response capacity,” id. at 439. Pena cites no binding authority holding that a medical professional’s restraint of an individual in an emergency medical situation constitutes a Fourth Amendment seizure. Champion, relied upon by both the district court and Pena, involved police officers’ use of force after they had already seized an individual. Under McKenna, even police officers’ use of restraint does not implicate the Fourth Amendment if they are acting in an “emergency-medical-response capacity,” id. at 439–40. Pena points to no “controlling authority—or a robust consensus of persuasive authority,” Wyatt, 718 F.3d at 503 (quoting Morgan, 659 F.3d at 371–72), suggesting that medical personnel “seize” patients when restraining them in the course of providing treatment.2 Therefore, we hold that Pena has not carried her burden, see Cantrell, 666 F.3d at 918, and that Givens and Achebe are entitled to qualified immunity on the excessive-force claims. 2. Substantive Due Process. The district court did not discuss Pena’s Fourteenth Amendment substantive due process claim in its order denying qualified immunity.3 Because Givens and Achebe argued that they were entitled to qualified immunity on this issue in their motion for summary judgment, we read the district court’s order as a denial without explanation. Where the district court denies summary judgment on qualified immunity without explanation, this Court “review[s] the record to determine what conduct the district court attributed to [the defendant] in finding that he had violated clearly established law.” Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998) (per curiam). “This circuit held as early as 1981 that ‘[t]he right to be free of state occasioned damage to a person’s bodily integrity is protected by the fourteenth amendment guarantee of due process.’” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450–51 (5th Cir. 1994) (en banc) (quoting Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981)).4

Immunity for Prosecutors> Absolute immune.First, Green’s claims against prosecutors in their official capacities are barred by the Eleventh Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997). We further conclude that Green’s individual capacity claims are barred by absolute prosecutorial immunity. See Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987). Green’s allegations against Reyna, Luce, and Ramsey concern actions that fall within the scope of prosecutorial immunity. See Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994).

Immunity, Qualified Hernandez v. City of Lubbock, (5th Cir. December 17, 2015)(15-10464):

56

II. DISCUSSION The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). This Court has appellate jurisdiction to review the district court’s partial judgment pursuant to 28 U.S.C. § 1291.

We review a district court’s decision to grant a defendant’s motion for summaryjudgment on the basis of qualified immunity de novo. Correa v. Fischer, 982 F.2d 931, 932 (5th Cir. 1993). A court should grant summary judgment if no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, while “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor,” id. at 255, “[t]he nonmovant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial,” Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006).

A public official is entitled to qualified immunity on summary judgment unless (1) the plaintiff has “adduced sufficient evidence to raise a genuine issue of material fact suggesting [the official’s] conduct violated an actual constitutional right,” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008 (2) the official’s “actions were objectively unreasonable in light of clearly established law at the time of the conduct in question,” id. (quoting Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)). As to the first of these prongs, we have previously described this inquiry as requiring the plaintiff to show a genuine issue of material fact that he or she suffered “(1) an injury (2) which resulted from the use of force that was clearly excessive to the need and (3) the excessiveness of which was objectively unreasonable.” Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013) (quoting Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011)). Once an officer raises qualified immunity as a defense, the burden shifts to the plaintiff to show that summary judgment should not be granted. See Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). In opposing a motion for summary judgment on the basis of qualified immunity, a plaintiff “cannot rest on conclusory allegations and assertions but must demonstrate genuine issues of material fact regarding the reasonableness of the officer’s conduct.” Id.

Whether an officer has acted reasonably is analyzed from the perspective of areasonable officer at the scene of the events. Graham v. Connor, 490 U.S. 386, 396 (1989). This “calculus . . . must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396−97. “Objective reasonableness is a matter of law for the courts to decide, not a matter for the jury.” Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). The district court found that Hernandez had not raised a genuine issue of material fact that Officer Freeman’s use of force was “objectively unreasonable.” We agree. Officer Freeman had probable cause to stop Hernandez as he observed Hernandez and her friend illegally jaywalk. Accordingly, he did not act unreasonably in choosing to arrest her. See, e.g., United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995) (“Probable cause for a warrantless arrest exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.”). This is true even where the offense is minor, such as for failing to wear a seatbelt while operating a

57

motor vehicle. See Atwater v. City of Lago Vista, 195 F.3d 242, 244 (5th Cir. 1999) aff’d, 532 U.S. 318 (2001). There is also no genuine issue of material fact regarding the

Impossibility “Legal impossibility occurs when the actions which the defendant performs, or sets in motion, even if fully carried out as he desires, would not constitute a crime.” United States v. Conway, 507 F.2d 1047, 1050 (5th Cir. 1975). “Factual impossibility denotes conduct where the objective is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing it about.” Id.

Improper Vouching United States v. McCann, __ F.3d __ (5th Cir. July 28, 2010)(09-30550)We begin our two-step analysis of McCann’s assertion of prosecutorial misconduct by determining whether or not the Closing and Rebuttal Comments were proper. “A prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence.” United States v. Vargas, 580 F.3d 274, 278 (5th Cir. 2009). “A prosecutor may argue fair inferences from the evidence that a witness has no motive to lie, but cannot express a personal opinion on the credibility of witnesses.” United States v. Gracia, 522 F.3d 597, 601 (5th Cir. 2008).

The test for improper vouching for the credibility of a witness is “whether the prosecutor’s expression might reasonably lead the jury to believe that there is other evidence, unknown or unavailable to the jury, on which the prosecutor was convinced of the accused’s guilt.” United States v. Ellis, 547 F.2d 863, 869 (5th Cir. 1977) (quoting McMillian v. United States, 363 F.2d 165, 169 (5th Cir. 1966)). We have held that “it is impermissible per se for a prosecutor to offer personal assurances to the jury that government witnesses are telling the truth . . . or to tell the jury that law enforcement witnesses should be believed simply because they were doing their job . . . .” Gracia, 522 F.3d at 601. However, “[i]n determining whether a prosecutor’s comment was improper, it is necessary to look at the comment in context.” United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004). “The prosecutor may . . . present what amounts to a bolsteringargument if it is specifically done in rebuttal to assertions made by defense counsel in order to remove any stigma cast upon him or his witnesses.” United States v. Dorr, 636 F.2d 117, 120 (5th Cir. Unit A Feb. 1981). McCann argues that the Closing and Rebuttal Comments were grounds for a mistrial, because they improperly bolstered the

58

credibility of the arresting officers. The Government responds that both comments were an “invitedresponse” to the accusations of framing and lying made by McCann’s counsel. See generally United States v. Young, 105 S.Ct. 1038, 1045 (1985) (“[I]f the prosecutor’s remarks were ‘invited,’ and did no more than respond substantially in order to ‘right the scale,’ such comments would not warrant reversing a conviction.”). We hold that the Closing Comment was proper. In United States v. Bermea, we found that a prosecutor had not personally vouched for the credibility of a witness by asserting that government informants were fired if they were found to have lied to law enforcement officers, because the record showed that the prosecutor had merely repeated the testimony of a witness in making this assertion. 30 F.3d 1539, 1564–65 (5th Cir. 1994). Similarly, in thiscase, the factual contents of the Closing Comment were limited to evidence that was in the record.

Imputation of Notice Between Gov’t Agencies Not Allowed The Bureau of Prisons’ knowledge of Ocampo’s transfer is not imputed to the UnitedStates Attorney. We have held that “notice or actual knowledge of one United States government agency will not be imputed to another agency.” U.S. Small Bus. Admin. v. Bridges, 894 F.2d 108, 112 (5th Cir. 1990).

Inconsistent Statements as Guilty Knowledge. “Perhaps the strongest evidence of a criminal defendant’s guilty knowledgeis inconsistent statements to federal officials.” United States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir. 1990). “Inconsistent statements are inherently suspicious; a fact finder could reasonably conclude that they mask an underlying consciousness of guilt.” Id. at 955.

Increased SentenceUnited States v. Henderson, (5th Cir. June 7, 2016)(14-31367): Sentence was high because of miscalculation by PO. After D filed a notice of appeal, trial courtvacated his sentence on a motion to vacate sentence. Fifth Circuit remanded back and the trial court significantly increased the sentence. The record supports that the district court lacked the authority to vacate Henderson’s sentence and resentence him. The filing of a notice of appeal from the original judgment deprived the district court of jurisdiction, see Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), and the record does not establish that the district court issued an indicative ruling in accordance with Federal Rule of Criminal Procedure 37 and Federal Rule of Appellate Procedure 12.1. See FED. R. CRIM. P. 37(b); FED. R. APP. P.

59

12.1(a). Even if the actions of the district court could be construed as an implicit indicative ruling, the district court otherwise had no authority to vacate and alter Henderson’s sentence. The district court could not have acted pursuant to Federal Rule of Criminal Procedure 35(a) because the vacation of the sentence and resulting resentencing occurred more than 14 days after the original sentence was orally pronounced. See FED. R. CRIM. P. 35(a), (c); United States v. Bridges, 116 F.3d 1110, 1112-13 (5th Cir. 1997). Furthermore, the district court could not have acted under Federal Rule of Criminal Procedure 36 because calculating a new guidelines sentencing range on account of an error in applying the Sentencing Guidelines is not the type of error that is subject to correction under Rule 36. See United States v. Mackey, 757 F.3d 195, 200 (5th Cir. 2014); United States v. Spencer, 513 F.3d 490, 491 (5th Cir. 2008). No other basis for vacating and altering Henderson’s sentence is applicable. Therefore, the judgment imposed after resentencing is void and should be vacated. The original judgment remains in effect and, because Henderson has not contested it, should be affirmed. See United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010). 

Independent Intermediary DoctrineBuehler v. City of Austin, __ F.3d __ (5th Ci. June 1, 2016)(15-50155):Buehler photographed police in arresting others of DWI. Officer arrested Buehlerfor harassment of a public servant and Austin ordinance misdemeanor resisting arrest.Buehler was cited with felony harassment of a public servant and misdemeanor resisting arrest. A person commits the offense of failing to obey a lawful order if he “knowingly fails or refuses to comply with an order or direction of a peace officer that is given by a visible or audible signal.” Austin Mun. Ord. § 9-4-51. The grand jury did not indict Buehler on the more serious charges cited each time he was arrested. In October 2014, a jury found Buehler not guilty of failing to comply with a lawful order during the January incident. Buehler has not been tried on the other charges. In December 2013, Buehler filed this lawsuit against the City, Officers Oborski, Snider, Berry, and Johnson, and Police Chief Art Acevedo. In addition to state-law claims, Buehler alleged that the defendants (1) violated his Fourth and Fourteenth Amendment rights by detaining, searching, and prosecuting him without probable cause, (2) violated his First and Fourteenth Amendment Case: 15-50155 Document: 00513529671 Page: 5 Date Filed: 06/01/2016 No. 15-50155 6 rights by interfering with his filming efforts, and (3) conspired to deprive him of his constitutional rights. Citing the independent intermediary doctrine, the district court granted summary judgment in favor of defendants on all of Buehler’s federal claims.2 4 See Taylor v. Gregg, 36 F.3d 453, 455, 456–57 (5th Cir. 1994) (applying doctrine where presentment to magistrate and grand jury occurred after arrest), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). 5 See Russell, 546 F. App’x at 434, 436–37; see also Smith, 670 F.2d at 526 (“The constitution does not guarantee that only the guilty will be arrested.”). 6 See Jones v. Cannon, 174 F.3d 1271, 1287 (11th Cir. 1999) (holding that a grand jury indictment insulated police officers from damages accruing after, but not before, the indictment); Arnott v. Mataya, 995 F.2d 121, 124 n.4 (8th Cir. 1993) (rejecting the argument that a grand jury indictment insulated police officers from false arrest claims);

60

cf. McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006) (holding under New York law that a grand jury indictment does not create a presumption of probable cause for false arrest claims). But see Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (articulating principles similar to this court’s intermediate intermediary doctrine and citing two Fifth Circuit cases with approval) 4 See Taylor v. Gregg, 36 F.3d 453, 455, 456–57 (5th Cir. 1994) (applying doctrine where presentment to magistrate and grand jury occurred after arrest), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). 5 See Russell, 546 F. App’x at 434, 436–37; see also Smith, 670 F.2d at 526 (“The constitution does not guarantee that only the guilty will be arrested.”). 6 See Jones v. Cannon, 174 F.3d 1271, 1287 (11th Cir. 1999) (holding that a grand jury indictment insulated police officers from damages accruing after, but not before, the indictment); Arnott v. Mataya, 995 F.2d 121, 124 n.4 (8th Cir. 1993) (rejecting the argument that a grand jury indictment insulated police officers from false arrest claims); cf. McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006) (holding under New York law that a grand jury indictment does not create a presumption of probable cause for false arrest claims). But see Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012) (articulating principles similar to this court’s intermediate intermediary doctrine and citing two Fifth Circuit cases with approval)

Indian Religious Rituals in Texas Prisons and Religious Land Use and Institutionalized Persons Act (“RLUIPA”)(Religious Communal Pipe, Smudging,Hair of Deceased Family Excellent unpublished opinion. Chance v. TDCJ, __ Fed. App’x __ (5th

Cir. August 27, 2013)(12-41015).

Indictment, Amended From United States v. Broadnax, 595 F.3d 565 (5th Cir. Jan. 26, 2010)(08-10494)A criminal defendant has a Fifth Amendment right to be “tried only on charges presented in a grand jury indictment.” United States v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988). Only a grand jury has the power to amend an indictment. See id. “A jury charge constructively amends an indictment . . . if it permits the jury ‘to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.’” United States v. Daniels, 252 F.3d 411, 413-14 (5th Cir. 2001) (citing Chandler, 858 F.2d at 257). The accepted test is that a “constructive amendment occurs if the jury is permitted to convict on an alternative basis permitted by the statute but not charged in theindictment.” Id. at 414 (internal quotation marks and citation omitted). … The issue is whether the indictment is to be read as requiring proof beyond a reasonable doubt that Broadnax possessed a “firearm,” as that term is defined under § 921(a)(3), that was “in and affecting interstate commerce,” or whether it requires proof that Broadnax possessed the specific firearm named, the “RG Industries, Model RG

61

31, .38 caliber revolver, serial number 019420,” and that it was “in and affecting interstate commerce.” According to Broadnax, the indictment charged “that a specific completed weapon))the RG industries, Model RG 31, .38 caliber revolver, serial number 019420))had been possessed in and affecting interstate commerce.” Broadnax contends that the juryinstructions worked a constructive amendment of the indictment because theyallowed the jury to convict on the basis that a component of the firearm, specifically, the frame, was in interstate commerce, rather than requiring the government to prove beyond a reasonable doubt that the specific, completed weapon was in or affecting interstate commerce. The government contends that by pleading the weapon as a “firearm,” Broadnax was put on notice that the government sought conviction by proof that he possessed a “firearm,” as that term of art is defined, in and affecting interstate commerce.… “Firearm” is a term of art. It means “any weapon . . . which will or is designed to or may readily be converted to expel a projectile by The jury instructions were substantially identical to the language of § 921(a)(3). the action of an explosive[;] . . . the frame or receiver of any such weapon[;] . . . any firearm muffler or firearm silencer[;] . . . or any destructive device.” 18 U.S.C. § 921(a)(3). “To establish a violation of § 922(g)(1), the government must prove three elements beyond a reasonable doubt: (1) that the defendantpreviously had been convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005). … We find Broadnax’s reliance on United States v. Chambers, 408 F.3d 237 (5th Cir. 2005) and United States v. Doucet, 994 F.2d 169 (5th Cir. 1993), misplaced. … commerce.” No constructive amendment occurred here because neither the evidence at trial nor the jury instructions implied that Broadnax could be convicted of anything other than being a felon in possession of a firearm that had been in and affecting interstate commerce in violation of § 922(g)(1). From United States v. Scher, __ F.3d ___ (5th Cir. March 23, 2010)(08-20269).Conviction upheld as not plain error when defendant in wire fraud case failed to objectthat there was an implied amendment when court gave partial instructions of a differenttype of fraud that that in the indictment. United States v. Griffin, __ F.3d __ (5th Cir. Sept. 1, 2015)(14-60554):

A grand jury handed down a 17-count indictment, charging Griffin with bank fraud, wire fraud, aggravated identity theft, money laundering, and conspiracy to commit money laundering.3 At the time the grand jury charged Griffin, the government held the mistaken belief that Griffin submitted the counterfeit authorization and void check to

62

Bank of America Corporation—an entity distinct from Bank of America Merchant Services4—and that, before Griffin’s scheme, credit card payments to Courtyard by Marriott were deposited in an account at Bank of America Corporation rather than Wells Fargo. As a result, the indictment referred to Bank of America Corporation and charged that Griffin “knowingly devised and executed a scheme and artifice to obtain funds under the custody or control of Bank of America and Magnolia Federal Credit Union,” and to direct Bank of America Corporation to reroute the funds to the Jenkins account. In other words, the indictment charged that Griffin defrauded two federally insured banks, one of which was not involved in Griffin’s scheme (4 Bank of America Corporation is the federally insured bank holding company, while Bank of America Merchant Services is a credit card processor and is not federally insured.)

Griffin argues that by scrubbing references to Bank of America from the indictment presented to the jury, the district court constructively amended the indictment and thereby violated Griffin’s Fifth Amendment right to a grand jury indictment. “[A]fter an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Stirone v. United States, 361 U.S. 212, 215-16 (1960). But not all changes to an indictment are impermissible. A “constructive amendment” of the indictment is reversible error per se—assuming that the defendant preserved his objection—while a “variance” is subject to harmless error review. United States v. Nuñez, 180 F.3d 227, 230-31 (5th Cir. 1999). To be a constructive amendment, a jury charge must permit the jury “to convict on an alternative basis permitted by the statute but not charged in the indictment.” United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010) (quoting United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001)) (internal quotation marks omitted). But if “the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” United States v. Miller, 471 U.S. 130, 136 (1985).

In other words, the key inquiry is whether the jury charge broadened the indictment; if it only narrowed the indictment, no constructive amendment occurred. Nuñez, 180 F.3d at 232-33; see also United States v. Soudan, 812 F.2d 920, 929 (5th Cir. 1986) (“It is a long established principle that after an indictment has been returned its charges may not be broadened except by the grand jury itself.”). Thus, “withdraw[ing] a portion of [the indictment] from the jury’s consideration . . . because of the government’s inability to prove that part” is not a constructive amendment, “provided the indictment still charges an offense and the same offense originally contemplated by the indictment as returned.” United States v. Prior, 546 F.2d 1254, 1257 (5th Cir. 1977); accord United States v. Hughes, 58 F. App’x 597, at *1 (5th Cir. 2003) (per curiam). Similarly, eliminating surplusage from the indictment, provided that nothing is thereby added to the indictment, is not a constructive amendment. E.g., Miller, 471 U.S. at 144; United States v. Robles-Vertiz, 155 F.3d 725, 729 (5th 5 If raised for the first time on appeal, constructive amendment arguments are reviewed for plain error. United States v. Broadnax, 601 F.3d 336, 340 (5th Cir. 2010)see also United States v. Adams, 778 F.2d 1117, 1124 n.11 (5th Cir. 1985).

Here, in redacting the indictment and in charging the jury, the district court only narrowed the indictment. The indictment charged that Griffin “knowingly devised and executed a scheme and artifice to obtain funds under the custody or control of Bank of

63

America [Corporation] and Magnolia Federal Credit Union by means of materially false and fraudulent pretenses and representations.” The government proved at trial that Griffin executed a scheme to obtain funds under Magnolia Federal’s control through fraud. Thus, Griffin was convicted on a basis charged in the indictment. “[N]either the evidence at trial nor the jury instructions implied that [Griffin] could be convicted of anything other than” defrauding Magnolia Federal. Broadnax, 601 F.3d at 343. The government, by virtue of pleading that Griffin defrauded both Bank of America Corporation and Magnolia Federal—in the same counts— “was afforded the freedom of proving the elements of the crime in alternative ways.” United States v. Reasor, 418 F.3d 466, 477 (5th Cir. 2005). In other words, Griffin’s complaint “is not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than was necessary.” Miller, 471 U.S. at 140. Thus, because the district court only narrowed the indictment, no constructive amendment occurred here. The variance, moreover, did not prejudice Griffin, who knew before trial that the government would proceed on a theory that only Magnolia Federal was defrauded.

Indictment—sufficiency of …. The sufficiency of an indictment is a legal question reviewed de novo. United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011). An indictment is legally sufficient if (1) “each count contains the essential elements of the offense charged,” (2) “the elements are described with particularity,” and (3) “the charge is specific enough to protect the defendant against a subsequent prosecution for the same offense.” United States v. Threadgill, 172 F.3d 357, 366 (5th Cir. 1999) (quoting United States v. Lavergne, 805 F.2d 517, 521 (5th Cir. 1986)).

United States v. Cooper, __ F.3d ___ (April 26,2013)(11-20711): We have previously held that captions can supply an element of a charged offense, such as the location of the offense conduct, when that element is otherwise missing from the text of the indictment. See United States v. Arteaga Limones, 529 F.2d 1183, 1188-89 (5th Cir. 1976). Moreover, “[t]he validity of an indictment is governed by practical, not technical considerations,” United States v. Ramos, 537 F.3d 439, 459 (5th Cir. 2008) (quoting United States v. Crow, 164 F.3d 229, 235 (5th Cir. 1999)), and “[t]he basic purpose behind an indictment is to inform a defendant of the charge against him,” United States v. Hoover, 467 F.3d 496, 499 (5th Cir. 2006). To the extent that the descriptions of the charged offense conduct in Cooper’s indictment were ambiguous, we hold that any such ambiguity was cured by the captions. As a result, Cooper’s indictment, viewed “practical[ly],” Ramos, 537 F.3d at 459, contained all the elements of the offenses charged, described them with the requisite particularity, and was specific enough so as to preclude any double jeopardy concerns, see Threadgill, 172 F.3d at 366. We decline to reverse Cooper’s convictions on Counts 2 and 4.

64

Indictment—Dismissal and New Indictment Dismissal of one indictment due to speedy trial violation and the issuing of a new oneby the grand jury causes a new criminal prosecution. United States v. Blevins, __ F.3 ___(5th Cir. June 16, 2014)(13-30090).

Ineffective Assistance of Counsel Our standards for evaluating claims of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), are well established: First, [a defendant] must demonstrate that his attorney’s performance fell below an objective standard of reasonableness. This court has described that standard as “requiring that counselresearch relevant facts and law, or make an informed decision that certain avenues will not be fruitful.” Second, [a defendant] must also prove that he was prejudiced by his attorney’s substandard performance. “[T]o prove prejudice, [a defendant] must show thatthere is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005) (footnotes omitted)(quoting United States v. Conley, 349 F.3d 837,841 (5th Cir. 2003)). [T]he “general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” Only in those rare occasions where the record is sufficiently developed will the court undertake to consider claims of inadequate representation on direct appeal. If we cannot fairly evaluate the claim from the record, we must decline to consider the issue without prejudice to a defendant’s right to raise it in a subsequent proceeding. United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (citations omitted) (quoting United States v. Higdon, 832 F.2d 312, 313–14 (5th Cir. 1987)). “An attorney’s failure to raise a meritless argument . . . cannot form the basis of a successful ineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue.” United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999). United States v. Stephens, 571 F.3d 401 (5th Cir. 2009)(07-20899). To prove that her counsel was ineffective, Pettiette must show that counsel’s performance was deficient and that his deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A movant’s claim of ineffective assistance of counsel must be stated with specificity; “conclusional allegations” and “generalized assertions” will not suffice.

65

United States v. Demik, 489 F.3d 644, 646-47 (5th Cir.), cert. denied, 128 S. Ct. 456 (2007). “The district court need not hold an evidentiary hearing to resolve ineffective claims where the petitioner has failed to allege facts which, if proved, would admit of relief.” United States v. Fields, 565 F.3d 290 (5th Cir. 2009) (quotation marks and brackets omitted). If this court “can conclude as a matter of law that the petitioner cannot establish one or both of the elements necessary to establish [her] constitutional claim, then an evidentiary hearing is not necessary.” Id.

Harrington v. Richter, 131 S. Ct. 770 (2011): evaluating whether trial defense counsel was

ineffective for not seeking expert assistance during trial after the government’s expert witness testified

in a habeas case. Initially, the Supreme Court held that the standard that must be met to grant federal

habeas relief to a person in custody "pursuant to the judgment of a State court . . . with respect to any

claim that was adjudicated on the merits in State court," 28 U.S.C. § 2254(d), applies even when the

state court has issued a summary judgment without an opinion explaining the reasons relief has been

denied.  The Court further held that when a federal claim has been presented to a state court and the

state court has denied relief, it may be presumed that the state court adjudicated the claim on the

merits in the absence of any indication or state law procedural principles to the contrary.

Pursuant to § 2254(d), federal habeas relief may not be granted unless it is shown that the earlier state court's decision "was contrary to or involved an unreasonable application of" federal law then clearly established in the holdings of the Supreme Court, id. § 2254(d)(1), or that it "was based on …

Here (Another case), the Second Circuit stated that, even if there was error here, the Appellate Division's decision was not unreasonable because:

“[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

I haven't really discussed this too much around here, but that new definition of what makes something unreasonable silently overruled Williams v. Taylor, 529 U.S. 362, 409-11 (2000) (O'Connor, J., concurring, but writing for the majority on this part), in which the Supreme Court rejected an almost identical definition, stating that it added an unjustified subjective extra layer to the analysis.  But now the Supreme Court has simply replaced the previously improper "all reasonable jurists" test set forth in Williams with the just as subjective "all fairminded judges" test.   Haven't I said that this may be the worst ever Supreme Court term for habeas petitioners?

IAC and Determination of Plea Based on Sentencing Factors— Lafler Factors .From United States v. Scribner, __ F.3d __ (5th Cir. Aug. 1, 2016)(IAC--failure to reveal D will be sentenced as career offender)-->.

66

Once a petitioner shows that counsel rendered deficient performance in failing to properly advise him of his sentencing exposure in accepting a plea, the petitioner must show that he was prejudiced by this failure under prong two of the Strickland standard. To demonstrate prejudice in such circumstances, a petitioner must show that but for the ineffective advice of counsel there is a reasonable probability [(1)] that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), [(2)] that the court would have accepted its terms, and [(3)] that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed. Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). The magistrate judge, in her recommendation, concluded that all three requirements under Lafler had been met. However, the district court declined to accept this recommendation and made factual findings that Scribner failed to demonstrate a reasonable probability that his plea would have been accepted or that he would have received a reduction for acceptance of responsibility in light of his “dogged insistence of innocence.

A defendant’s decision to plead guilty, the acceptance of the plea, and whether the plea would result in a less severe sentence are findings of fact normally subject to clear error review. See United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004) (“Whether it is reasonably probable that [petitioner]’s decision to plead guilty would have been different had he been properly counseled as to his potential punishment is a question of fact. Such a determination should be left to the district court.”); see also id. at 438–39 (noting that “further proceedings in front of the district court” were required in order to determine whether a petitioner would have received a reduced sentence from the district court had he accepted a guilty plea). Moreover, the Supreme Court’s own opinion in Lafler strongly suggests that a district court makes factual determinations as to whether a petitioner has made out the three Lafler factors. See Lafler, 132 S. Ct. at 1391 (citing with approval the lower court’s holding that the evidence demonstrated that the petitioner in that case would have pleaded guilty and received a lower sentence but for counsel’s poor advice).

Due process requires Dist Judge to hold own hearing where he rejects magistrate’s credibility determinations. Johnson v. Finn, 665 F.3d 1063, 1074 (9th Cir. 2011) (“Taking the Supreme Court’s various hints, the First, Second, Third, Fifth, and Eleventh Circuits have all held that a district judge may not reject the credibility finding of a magistrate judge without holding a new evidentiary hearing.”).5 In such cases, where the “the district judge doubts the credibility determination of the magistrate, only by hearing the testimony himself does he have an adequate basis on which to base his decision.” Louis, 630 F.2d at 1110. This is because—under the Due Process Clause—“[i]n order to adequately determine the credibility of a witness as to such constitutional issues, the fact finder must observe the witness.” Id. A district court not only errs in this respect by expressly rejecting a magistrate judge’s credibility findings but also by “accept[ing] the magistrate judge’s decision . . . as to credibility, [but] then dr[awing] different inferences from” testimony IAC & Guilty Plea. To show prejudice in the context of a guilty plea, defendant must establish that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

67

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). However, a prisoner’s allegation that he would not have pleaded guilty must be reasonable. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994). A failure to establish either deficient performance or prejudice defeats the claim. Strickland, 466 U.S. at 697. Record Insufficiently Developed. The record, however, is not sufficiently developed to permit direct review of Jacobs’ ineffective-assistance-of-counsel claim. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Therefore, we decline to consider this claim, without prejudice to Jacobs’ right to raise it in a 28 U.S.C. § 2255 motion. See Massaro v. United States, 538 U.S. 500, 502–07 (2003) (noting that habeas proceedings are the preferred method for raising an ineffective-assistance-of-counsel claim). As a general rule, we do not review claims of ineffective assistance of counsel that are raised for the first time on direct appeal, because there has not been an opportunity to develop the record. United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). Counsel’s performance was deficient in failing to object to superseding indictmentcharging defendant with non-cognizable offense. Williams v. United States, 684 F. Supp. 2d 807 (W.D. Tex. 2010). “The general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008) (internal quotation and citation omitted). Ordinarily a habeas corpus proceeding is the proper mechanism for resolving an ineffective-assistance claim. United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999). Because the record is not sufficiently developed, we will not consider the ineffective-assistance claim. See Gulley, 526 F.3d at 821. White v. Thaler, 610 F.3d 890 (5th Cir. 2010). Defense counsel provided IAC by cross-examining defendant on his post-arrest silence, which allowed impeachment for failure to tell police his exculpatory version of events, and (2) failing to file a motion in limine or to object about murder victim’s pregnancy. A defendant may raise a claim of ineffective assistance of counsel in a motion for a new trial. See United States v. Fuchs, 467 F.3d 889, 910-11 & n.15 (considering ineffective assistance of counsel claim that was raised in motion for a new trial). However, a motion for relief in habeas corpus pursuant to 28 U.S.C. § 2255 “is the preferred method for raising a claim of ineffective assistance of counsel.” United States v. Gordon, 346 F.3d 135, 136 (5th Cir. 2003) (citing Massaro v. United States, 538 U.S. 500, 504 (2003). The Supreme Court has emphasized that a 28 U.S.C. § 2255 motion is the preferred

68

method for raising a claim of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 503-04 (2003) IAC Does Not Apply to Forfeiture Action. The criminal conviction is not subject to review in this appeal from a civil forfeiture order and the “right to effective assistanceof counsel does not apply to civil proceedings.” Sanchez v. United States PostalService, 785 F.2d 1236, 1237 (5th Cir. 1986). Standard of Review on Appointment of Substitute Counsel. Although we review Sixth Amendment claims de novo, id., if that Amendment has not been violated, the trial court’s refusal to appoint substitute counsel is reviewed for an abuse of discretion. United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973).

United States v. Simpson, __ F.3d. __ (5th Cir. June 23, 2011)(09-30075):Although this language may seem to imply that a defendant’s refusal to communicate requires the appointment of substitute counsel, Young did not reach that conclusion; as suggested by the operative language itself, that issue was not before the court. See id.Simpson refers us to other circuits for support of his position. Those circuits have found complete communication breakdowns where a defendant’s repeated efforts failed to establish contact with his attorney, United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002), and where the attorney had no communication with the defendant in the month preceding trial. United States v. Mullen, 32 F.3d 891, 896-97 (4th Cir. 1994). Simpson argues that Lott and Mullen demonstrate that a defendant who is unable to communicate with his lawyer is entitled to the appointment of substitute counsel; thus reversal is appropriate here because his paranoia made it impossible for him to communicate with Myers and Murray. The government responds that both cases are distinguishable; it argues that reversal is inappropriate when the breakdown can be attributed to the defendant’s intransigence, and not to the neglect of defense counsel or the trial court.¶ We agree with the government’s view of these cases. … As Simpson acknowledges, the breakdown of attorney-client communications is intertwined with the competency issue. Simpson was the root cause of the communication problem. Because he was adjudged competent, it is reasonable to conclude that he was capable of cooperating with his lawyers, and was only engaging in a ruse, at least in part, to “demand a different appointed lawyer.” United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973). We cannot find “good cause” to appoint substitute counsel where none exists. See id. Simpson admitted that he was willing to cooperate with any lawyer other than Myers or Murray. Under the facts before us, neither the Sixth Amendment nor our precedent suggests thatSimpson was entitled to the appointment of substitute counsel.

69

No IAC for Meritless Objection. Counsel is not ineffective for failing to make a meritless objection. See Clark v. Collins, 19 F.3d 959, 965-66 (5th Cir. 1994). IAC and Notice of Appeal. United States v. Bejaarno, __ F.3d ___ (5th Cir. March 27, 2014)(12-10952): In Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), the Supreme Court held that the Strickland test applies to claims “that counsel was constitutionally ineffective for failing to file a notice of appeal.” To satisfy the prejudice prong, “a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Id. at 484. “[E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination.” Id. at 485. To prove deficient performance, a defendant can rely on evidence that he sufficiently demonstrated to counsel his interest in an appeal. But such evidence alone is insufficient to establish that, had the defendant received reasonable advice from counsel about the appeal, he would have instructed his counsel to file an appeal. Id. at 486. The Court has explained that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (quoting Strickland, 466 U.S. at 694). The defendant need not show “that his hypothetical appeal might have had merit.” Flores-Ortega, 528 U.S. at 486; see Pham, 722 F.3d at 324. We have held that Flores-Ortega applies “even where a defendant has waived his right to direct appeal and collateral review.” United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).

In Forma Pauperis From United States v. Perez v. Lappin, (5th Cir. Jan. 15, 2010)(09-50645):A movant for IFP on appeal must show that he is a pauper and that he will present a nonfrivolous appellate issue. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).

Informer or Informant Paid Informer. The testimony of a paid informer is not per se inadmissibly. United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987)(en banc). Admission of such testimony is, however, conditioned upon four rules: (1) the government must not deliberately use or encourage perjured testimony, (2) the prosecution must comply with Brady, (3) the defene must be allowed to fully explore the compensation arrangement on cross-examinatin, and the district court

70

must specifically instruct jurors on paid witnesses. Id. at 315-16. Subsequent cases confirm the necessity on the credibility of paid witnesses. United States v. Dukes, 139 F.3d 469 (476 (5th Cir. 1998). The instruction must point out that the witness has been paid or expects to be compensated. United States v. Goff, 847 F.2d 149, 161 (5th Cir. 1988).

Inmate Financial Responsibility Program (“IFRP”) Driggers v. Cruz, __ F.3d ___ (5th Cir. Jan. 15, 2014)(12-10775):

In 1987, the BOP implemented the IFRP as a method of “encourag[ing] each sentenced inmate to meet his or her legitimate financial obligations.” 28 C.F.R. § 545.10. An inmate makes payments under the IFRP according to a plan developed by BOP staff; the staff then monitors that inmate’s progress in meeting his obligations under the plan. Id. at § 545.11. The inmate may make payments using any combination of funds earned while in detention (known as “institution resources”) or from funds given to the inmate from family or friends (known as “non-institution resources”). Id. at § 545.11(b). The IFRP mandates that an inmate pay no less than $25 per quarter; once an inmate makes this minimum payment, he is allowed a $75 per month deduction to enable him to make use of the Inmate Telephone System. Id. An IFRP minimum payment “may exceed $25.00, taking into consideration the inmate’s specific obligations, institution resources, and community resources.” Id. at § 545.11(b)(1). BOP officials periodically help each inmate make new IFRP plans by taking into account credits for past payments and IFRP mandated deductions. If an inmate verbally refuses to participate in the program or if it is discovered the inmate is not making the agreed upon payments, it is within the BOP’s discretion to place that inmate into IFRP “refuse” status, which results in tangible consequences for the inmate. Id. at §§ 545.11(d)(1)-(11). Such consequences include: (1) notifying the Parole Commission “of the inmate’s failure to participate;” (2) the inmate’s future inability to receive furlough; (3) the inability “to receive performance pay above the maintenance pay level, or bonus pay, or vacation pay;” (4) no future assignments to “any work detail outside the secure perimeter of the facility;” (5) removal from UNICOR or the inability to be placed into UNICOR;1(6) a “more stringent” monthly commissary spending limit; (7) placement into a lower housing status; (8) no future placement in a “community-based program;” (9) no release gratuity without the Warden’s approval; (10) and finally, no incentives for entering residential drug treatment programs. Id.

Driggers correctly frames his claim of denial of access to the courts as a First Amendment claim because “the right of access to the courts is an aspect of the First Amendment right to petition the

71

Government for redress of grievances.” Bill Johnson’s Rests., Inc. v. N.L.R.B., 461 U.S. 731, 741 (1983). The Constitution requires that inmates have a “reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Bounds v. Smith, 430 U.S. 817, 825 (1977). This right, however, does not suggest that an inmate must be able to “discover grievances . . . [or] litigate effectively once in court.” Lewis v. Casey, 518 U.S. 343, 354 (1996). In Lewis, the Supreme Court explained the parameters of this right of access by stating that the “tools [the] Constitution requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and those necessary] to challenge the conditions of their confinement.” Id. at] . . .355. An inmate’s claim arguing that he has been unconstitutionally deprived of access to the courts requires a showing of actual injury. Id. at 351-52. The inmate must “demonstrate that a nonfrivolous legal claim ha[s] been frustrated or [is] being impeded.” Id. at 353. Here, Driggers fails to demonstrate an actual injury. IV. Driggers next argues that the IFRP’s uniform $25 minimum payment unconstitutionally discriminates against him and such poorer inmates in violation of the equal protection component of the Fifth Amendment. According to Driggers, the IFRP impermissibly classifies inmates based on their wealth, or ability to pay, denying them equal protection. Neither we, nor any other court, has had the opportunity to address whether a minimum payment under the IFRP unconstitutionally deprives indigents of the equal protection of the laws.

At the outset, Driggers fails to show that he, as an indigent prisoner, is a member of a suspect class for equal protection purposes. Under an equal protection analysis, a law that does not “target[] a suspect class” will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Generally speaking, an individual’s indigence does not make that individual a member of a suspect class for equal protection purposes. Maher v. Roe, 432 U.S. 464, 471 (1977) (stating that the Supreme Court “has never held that financial need alone identifies a suspect class for purposes of equal protection analysis”). Furthermore, the Supreme Court has held that when a regulation “impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). We have previously held, in an unpublished opinion, that the IFRP meets this low level of scrutiny. See Acevedo, 1995 WL 625358, at *1 (holding that the IFRP “does not violate any constitutional right as such participation is reasonably related to a legitimate penological interest in encouraging inmates to rehabilitate themselves by developing a sense of financial

72

responsibility”). Other circuits have held the same. See United States v. Lemoine, 546 F.3d 1042, 1045 (9th Cir. 2008) (holding that the IFRP “promotes [inmates’] acceptance of responsibility and fulfillment of the obligation to make restitution to victims”); Johnpoll v. Thornburgh, 898 F.2d 849, 851 (2d Cir. 1990) (finding that participation in the IFRP is “reasonably related to the legitimate government objective of rehabilitation”); James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989) (holding that the IFRP helps inmates develop a sense of financial responsibility and thus serves a legitimate penological interest). Because the IFRP is reasonably related to legitimate penological interests, it does not violate Driggers’s equal protection rights.

Insanity Defense Untimely Notice. United States v. Pollard, (5th Cir. Nov. 20, 2014)(14-60156): Federal Rule of Criminal Procedure 12.2(a) provides that “[a] defendant who intends to assert a defense of insanity at the time of the alleged offense must so notify an attorney for the government in writing within the time provided for filing a pretrial motion.” If the defendant fails to timely notify the Government and file a notice with the clerk of court, she “cannot rely” on such a defense. FED. R. CRIM. P. 12.2(a). However, the district court “may, for good cause, allow the defendant to file the notice late.” FED. R. CRIM. P. 12.2(a). Pollard did not request an extension of time in the district court. Nordid she establish good cause for the late filing. Because Pollard failed to comply with the requirements of Rule 12.2(a), the district court did not abuse its discretion in granting the Government’s motion in limine and excluding Pollard from relying on an insanity defense. See United States v. Castro, 15 F.3d 417, 421 (5th Cir. 1994); FED. R. CRIM. P. 12(a). Diminished Capacity. United States v. Graco,(5th Cir. Oct. 26, 2017)(16-31166):The Government filed a motion in limine seeking to prevent Graco from raising an insanity defense or introducing any evidence of his alleged post-traumatic stress disorder. Relying on United States v. Eff, 524 F.3d 712, 717-19 (5th Cir. 2008), the district court found that Dr. Sautter’s report did not show that Graco satisfied the elements required for an insanity defense under 18 U.S.C. § 17. The district court granted the Government’s motion. Graco pleaded guilty and specifically reserved the right to appeal the granting of the Government’s motion. We review a district court’s exclusion of expert testimony for abuse of discretion. United States v. Ogle, 328 F.3d 182, 188 (5th Cir. 2003). In Eff,we held that an insanity defense under § 17 requires that the defendant be completely unable to appreciate the quality of his actions and that having only a diminished capacity to do so was insufficient for the defense. Eff, 524 F.3d at 718-720. Graco concedes that the district court was bound by the existing definition of insanity in § 17 and that Eff governs

73

our review. Graco raises a challenge to § 17 to preserve it for further direct review. The judgment of the district court is AFFIRMED.

Insufficient Evidence—Argue It or Abandoned It United States v. Stalnaker, 571 F.3d 428, 434 (5th Cir. 2009): “Where a defendant asserts ‘that the evidence was insufficient to convict him’ but fails ‘to make any argument whatsoever to support this contention,’ the issue is considered abandoned.”

Internet Does Not Established Personal Jurisdiction in Civil Case First Metropolitan argues that Genesis’s web presence subjects it to general personal jurisdiction in Texas. We disagree. General personal jurisdiction can be exercised only when “the defendant’s ‘affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum State.’” Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014)) (alteration in original). “It is . . . incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business.” Id. First Metropolitan’s general jurisdiction argument is based on Genesis’s operation of a website that lets users express interest in Genesis’s services by entering their contact information. The website also listed First Metropolitan and other Texas entities as references for Genesis. But maintaining interactive website is not enough to establish general personal jurisdiction. Id. The allegation that Genesis maintained a web form, even when combined with the allegation that Genesis listed Texas residents as references on the website, does not make Genesis’s contacts with Texas so continuous and systematic as to render it essentially at home in Texas. “In this case, at most, [Genesis’s] website shows that [Genesis] conducts business with Texas, not in Texas.” Id. As to specific personal jurisdiction over the contract claim, First Metropolitan essentially argues that, because Genesis entered into and then breached a contract with First Metropolitan—a known Texas resident—Texas can exercise personal jurisdiction over Genesis. This is simply not the law in this circuit. Negotiating and closing a contract with a forum resident by sending communications into the forum state is insufficient to establish specific personal jurisdiction for a breach of contract claim, at least if the contract does “not contemplate a long-term relationship with . . . continuing obligations and wide-reaching contacts.” Stuart v. Spademan, 772 F.2d 1185, 1193 (5th Cir. 1985). The instant contract did not contemplate such continuing obligations or wide-reaching contacts. Further, the contract did not provide that Genesis would perform its work in Texas specifically. While Genesis did contact a Texas bank on First Metropolitan’s behalf, nothing indicates that Genesis was required to do so. Accordingly, Texas was not the hub of the contract’s activities. See Moncrief Oil Int’l Inc. v. OAO Gazprom, 481 F.3d 309, 313 (5th Cir. 2007) (finding no specific personal jurisdiction in part because the contract was silent as to the location of performance, so the forum state was not the hub of the contract’s activity).

Internet Traveling 18 U.S.C. § 2422(b)United States v. Caudill, __ F.3d __ (5th Cir. Feb. 19, 2013)(12-10292):

74

We have previously clarified that to obtain a conviction for attemptedpersuasion, inducement, enticement, or coercion under § 2422(b), the statute does not require that the defendant bring about or attempt sexual contact; only that he persuade, induce, entice, coerce, or attempt to persuade, induce, entice, or coerce a minor to engage in such contact. United States v. Barlow, 568 F.3d 215, 219 n.10 (5th Cir. 2009). More recently, this court held in United States v. Olvera, 687 F.3d 645 (5th Cir. 2012) (per curiam) that a defendant can also violate the statute solely through communications with an adult whom he knows to be an adult if he directs “some of his intended inducements to the [child].” Id. at 647-48.

Caudill correctly asserts, however, that he did not seek to have any of his communications with the adult passed on directly to a child. The question on appeal, therefore, is whether this distinction removes Caudill’s conduct from the scope of § 2422(b). We expressly reserved judgment on this issue in Olvera. Id. at 64. We now conclude that Caudill’s conduct is proscribed by § 2422(b). He used a means ofinterstate commerce in a knowing attempt to persuade, induce, or entice individuals whom he believed to be under the age of 18 to engage in sexualactivity with him. Caudill argues that he never attempted to persuade, induce or entice a minor and that, “as far as [he] knew, the children had already assented to the conduct.” We find this argument unavailing. Even if the “girls” that the officer described to Caudill could theoretically assent to sexual activity as a general proposition, they could not assent to sexual activity with Caudill until they were aware of his existence and desire or intent to have sexual contact with them. Whether Caudill intended to persuade, induce, or entice them to have sexual contact when he met them at the hotel or he intended for the adult intermediary to persuade, induce, or entice them to have sexual contact with Caudill before he actually appeared at the hotel, Caudill’s conduct violated § 2422(b). He used the Internet in an attempt to arrange direct contact so that he could persuade, induce, or entice minor children to engage in sexual United States v. Howard, __ F.3d __ (5th Cir. Sept. 9, 2014)(13-40767). See also Attempt. This appeal presents the issue that we left open in Broussard. What conduct—in the absence of travel or definite plans to travel—crosses the line from mere preparation to attempt to violate § 2422(b)?

2. The View of the Other CircuitsAlthough the Fifth Circuit has not addressed this question, other circuits have. The other circuit decisions, as discussed below, have

75

held that there must be more than just explicit sex talk to support a § 2422(b) conviction. These courts have upheld criminal convictions when the defendant and the minor victim (or victim’s guardian) have at least began to make arrangements to meet. For instance, the Ninth Circuit in United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007) (per curiam) affirmed a defendant’s § 2422(b) conviction in the absence of travel. …The Ninth Circuit affirmed the conviction and reasoned that the defendant’s sexual letters “essentially began to ‘groom’ [the minor victim] for a sexual encounter in the event he returned to Montana.” Id. at 1235. … To our knowledge, the only circuit to reverse a § 2422(b) conviction is the Seventh Circuit in United States v. Gladish, 536 F.3d 646 (7th Cir. 2008). There, the government caught the defendant in a sting operation in which a government agent impersonated a 14-year-old girl in an internet chatroom. The exchanges were graphic, and the defendant sent a video of himself masturbating. The girl agreed to have sex with the defendant, and in a subsequent chat, he discussed the possibility of traveling to meet her in a couple of weeks, but no specific arrangements were made. Id. at 648.The Seventh Circuit distinguished the Ninth Circuit’s decision in Goetzke and reversed. Id. at 649–51.

The Seventh Circuit’s view in Gladish—that there must be more than just explicit sex talk, such as an arrangement to meet—appears to be consistent with the view of the other circuits. United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v. Brand, 467 F.3d 179, 204 (2d Cir. 2006) United States v. Nestor, 574 F.3d 159, 161 (3d Cir. 2009). … Other courts have affirmed convictions where the defendant did not actually make a definite plan to meet but proposed or began arranging a meeting. See, e.g., United States v. Thomas, 410 F.3d 1235, 1246 (10th Cir. 2005) …The case that most supports the government’s position is United States v. Lee, 603 F.3d 904 (11th Cir. 2010). The Eleventh Circuit in Lee held that “[w]e will not require firm plans to travel where, as here, the defendant, for several months, took other steps sufficient to achieve the end which is the object of the attempt.” Id. at 915. Lee shares many factual similarities with the facts in this case. “Grooming behavior” is a factor other courts have found significant in some cases. See, e.g., United States v. Chambers, 642 F.3d 588, 593 (7th Cir. 2011) Knowingly enticing and coercing an individual to engage in unlawful sexual activity under 18 U.S.C. § 2422(a). United States v. Vasquez, __ F.3d __ (5th Cir. Oct. 6, 2016)(15-41168): She contends that the enhancement in § 2G1.3(b)(5) does not apply to “a fictitious being represented to be real by an offense participant to another participant.” Vasquez also asserts that the district court based its application of the enhancement on an infant Vasquez made up and knew to be imaginary, and made no finding that there was a real infant. The government argues that the enhancement

76

should apply even if the district court did not find that Vasquez’s offense involved a real infant. To support applying the enhancement in this situation, the government cites cases in which circuit courts have chosen to apply similar enhancements to punish the defendant’s intent, all involving undercover officers either posing as fictitious minors or proffering fictitious minors. See, e.g., United States v. Angwin, 560 F.3d 549, 552–53 (6th Cir. 2009); United States v. Vance, 494 F.3d 985, 996 (11th Cir. 2007), superseded by regulation, U.S.S.G. supp. app. C, Amendment 732 (Nov. 2009), as recognized in United States v. Jerchower, 631 F.3d 1181, 1186–87 (11th Cir. 2011). This case does not involve either of those circumstances, which implicate definitions of “minor” not relevant to this case. See § 2G1.3 cmt. n.1. … The district court, without determining whether the infant was a real person, erroneously concluded that the enhancement applied even if the infant was fictitious. When Vasquez’s counsel objected that the eight-level enhancement should not apply because the infant was fictitious, the district court responded that “whether or not the child existed is not the issue.” The district court then went on to say that “you can have a fictitious minor and this is what this was, even if there was nobody that was going to give her a child, she was talking about at the very, very least a fictitious minor.” This legal error infected the district court’s factual findings, as the record does not clearly contain any factual findings about whether the infant Vasquez discussed was real

Interstate Transmission of Photographs on Internet Transmitting photographs via the 18 Internet is “tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce.” United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002) (considering 18 U.S.C. § 2251, which contains a more involved interstate transmission requirement than either statute under consideration here) Use of Telephone to Post Adds on Internet. Held use of a computer.United States v. Bluitt, (5th Cir. Jan. 3, 2016)(16-30582). Bluitt gave the minor and the woman cellular phones, which they used to place advertisements for prostitution on a website, to receive calls in response, and to arrange meetings with clients. Bluitt would then drive the minor to those meetings. In light of the record as a whole, the district court plausibly found that there was no reason for Bluitt to provide the phone to the minor except to facilitate prostitution. See id. at 451. Accordingly, the district court “could conclude that the offense involved the use of a computer to induce third parties to engage in sexual activity with a minor” for the purposes of the § 2G1.3(b)(3)(B) enhancement.

Instruction to Jury We review de novo a district court’s refusal to offer an instruction for a criminal defense that, if credited, would preclude a guilty verdict. See United States v. Gutierrez, 343 F.3d 415, 419 (5th Cir. 2003); United States v. Bradfield, 113 F.3d 515, 521 (5th Cir. 1997).

Ordinarily when reviewing a criminal conviction, we view the evidence, and draw reasonable inferences, in the light most favorable to the verdict. E.g., United States v. Hall, 500 F.3d 439, 442 (5th Cir.

77

2007). The evidence is sufficient to support a finding of guilt if a rational trier of fact could have found that the evidence established the elements of the offense beyond a reasonable doubt. Id.

We take the opposite approach, however, when reviewing a district court’srefusal to instruct on a defense. As with any exculpating defense, the defendant is entitled to an entrapment instruction if he presents “evidence sufficient to support a reasonable jury’s finding of entrapment.” Gutierrez, 343 F.3d at 419; accord Matthews v. United States, 485 U.S. 58, 63 (1988). The question is whether the defendant identified or produced “evidence from which a reasonable jury could derive a reasonable doubt as to the origin of criminal intent and, thus, entrapment.” United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985). A properly preserved challenge to jury instructions is reviewed under an abuse of discretion standard. United States v. Dien Duc Huynh, 246 F.3d 734, 738 (5th Cir. 2008).

Insufficiency of Evidence The standard of review is whether, after viewing all of the evidence and inferences that may be drawn there from in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Holmes, 406 F.3d 337, 351 (5th Cir. 2005). However, if the evidence, viewed in the light most favorable to the verdict, points equally to a theory of innocenceand guilt, we will reverse a conviction based on circumstantial evidence. Id. Where a defendant asserts that the evidence was insufficient to convicted him but fails to make any argument whatsoever to support this content, the issue is considered abandoned. United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992); United States v. Stalnaker, 571 F.3d 428 (5th Cir. 2009)(07-60247)(June 10, 2009). Insufficiency and Constructive Possession of Drugs. Cases collected on insufficiencyof the evidence when constructive possession of drugs is charged. United States v. Henderson, 2009 WL 3806070, __ Fed. App’x __ (5th Cir. Nov. 13, 2009)(08-51008)(Note: opinion was revised 4 Dec 2009)[Thus, despite our great deference to jury verdicts, “[w]hen the evidence is in equipoise,” as a matter of law it cannot serve as the basis of a finding necessary to a conviction, id. at 686, because “when circumstantial evidence and the reasonable inferences to be drawn from it permit conclusions of both guilt and innocence that are essentially in balance, there has to be reasonable doubt.” United

78

States v. Ortega Reyna, 148 F.3d 540, 547 (5th Cir. 1998). “When that is the case, we have no choice but to reverse the conviction.” Id.] Insanity We review de novo a district court’s refusal to provide a jury instruction on insanity. United States v. Dixon, 185 F.3d 939, 403 (5th Cir. 1999); United States v. Long, 562 F.3d 325 (5th Cir. 2009)(07-31131): The application of the less deferential standard of review makes sense in light of reduced deference afforded to rulings that take decisions from the jury. Conditions of Release after Verdict of NG because of Insanity. United States v.Washington, __ F.3d __ (5th Cir. Aug. 22, 2014)(13-50870). At a bench trial in October 2009, the district court found Washington not guilty by reason of insanity and committed him to a mental health facility for evaluation and treatment. In 2012, the Bureau of Prisons certified that Washington had recovered from his mental disease or defect to the extent that his conditional release should be considered. The district court held a hearing and, in April 2012, conditionally released Washington based on its finding, by clear and convincing evidence, that his release under a regimen of care and treatment would not pose a substantial risk of bodily injury to another person or serious damage to the property of another. The court set several conditions, including requirements that Washington (1) remain under the supervision of the probation office, (2) participate in a regimen of mental health care, (3) continue to take prescribed medications, and, most importantly for purposes of this appeal, (4) reside at Guidance House, a group home in Burlington, North Carolina—he was not to change his residence without the court’s permission. About fifteen months later, in early July 2013, the probation office filed a petition for a warrant for Washington’s arrest. The warrant petition’s sole allegation was that Washington “violated Condition Number 5; that requires he will reside at the Guidance House. . . . Mr. Washington may not change residences without permission of the Court; in that, he has been served an eviction notice effective July 10, 2013.” The district court issued the warrant and Washington was arrested that day. The district court held a hearing the next month to address the revocation of Washington’s conditional release.

We review questions of statutory interpretation de novo. United States v. Mitchell, 709 F.3d 436, 442 (5th Cir. 2013) (citing Shannon v. United States, 512 U.S. 573, 577 (1994)). Factual findings, such as the district court’s finding of dangerousness 18 U.S.C. § 4243, are reviewed for clear error. “Clear-error review only requires a factual finding to be plausible in light of the record as a whole.”4

79

Section 4243 establishes civil commitment procedures for individuals found not guilty only by reason of insanity. Such individuals may obtain conditional release on demonstrating, by clear and convincing evidence, that their release will not pose a substantial risk to the public. Conditional release, once achieved, “is not necessarily permanent;” Subsection (g) allows for the revocation of a conditional release when a district court makes each of two findings: (1) The individual failed to comply with his treatment regimen, and (2) his continued release would create a substantial risk to society. Washington challenges both findings.

In Mitchell, we affirmed as not clearly erroneous the district court’s finding that Mitchell’s continued release posed a substantial risk. The evidence demonstrated that Mitchell was not taking all of his medications, and that he resisted doing so at least in part because of unwanted side effects. Mitchell also told his therapist that he no longer wished to participate in his treatment.18 Mitchell’s probation officer reported increased agitation and aggressiveness, and Mitchell’s therapist concluded that he was a danger to the community. …

Our only other opinion addressing re-commitment under Section 4243 is United States v. Boggs, a 1995 unpublished per curiam.20 Noting that it was “a close case,” we affirmed the district court’s decision to revoke Boggs’s conditional release. Boggs had also gone off his medication. Two of his mental health care providers testified that he “posed only a small if unpredictable risk of injury to others in the near future,” but, because he failed to take his medication, “he posed a substantial risk of harm in the long term.” They expressed concern that his paranoia would cause him to violently “defend himself” even in the absence of actual provocation. There was no evidence that he had ever harmed anyone in the past.

Note 25: Compares decisions of other circuits.

Interference with WitnessTo prevail on a claim of substantial interference with a witness, a defendant must show a “causal connection” between the Government’s action and the witness’s decision not to testify. United States v. Anderson, 755 F.3d 782, 792 (5th Cir. 2014). The district court found that there was no substantial interference, and our review of the record leads us to conclude that the district court’s factual determination was not clearly erroneous. See Anderson, 755 F.3d at 792; United States v. Thompson, 130 F.3d 676, 686-87 (5th Cir. 1997)

Investigatory Stop Defendant argues that the district court erred in denying his motion to suppress the evidence because the investigatory stop was

80

not justified by reasonable suspicion that criminal activity was afoot, as required by Terry v. Ohio, 392 U.S. 1 (1968). Howard alsocontends that his consent to search the vehicle was not valid because it was tainted by the illegal detention. We review the district court’s factual findings for clear error and thelegality of the investigatory stop de novo. See United States v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003); United States v. Vasquez, 298 F.3d 354, 356 (5th Cir. 2002). Police officers are permitted to stop and briefly detain individuals “if they have reasonable suspicion that criminal activity is afoot.” Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). Reasonable suspicion must be based on “‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’” United States v. Webster, 162 F.3d 308, 332 (5th Cir. 1998) (quoting Terry, 392 U.S. at 21). Based on the totality of the circumstances, we find that the officer’s suspicion that criminal activity was afoot was reasonable. See United States v. Grant, 349 F.3d 192, 197 (5th Cir. 2003).

Invited Error United States v. Roussel, __ F.3d __ (5th Cir. Jan. 17, 2013)(11-30908):To the extent the introduction of the evidence was erroneous, the doctrineof invited error applies to this situation; when injection of inadmissible evidenceis attributable to the actions of the defense, the defense cannot later object tosuch “invited error.” United States v. Raymer, 876 F.2d 383, 388 (5th Cir. 1989)(citing, e.g., United States v. Lemaire, 712 F.2d 944, 948-49 (5th Cir. 1983), cert.denied, 464 U.S. 1012 (1983)), cert. denied 110 S. Ct. 198 (1989). Roussel invitedany erroneous Rule 404(b) instruction by injecting the evidence of the 1997incident into the case.

Instructions Instructional errors not structural unless they “vitiate all the jury’s findings.” Neder v. United States, 527 U.S. 1, 11 (1999). United States v. Betancourt, 2009 WL 3233532, __ F.3d __ (5th Cir. 2009)(08-40909):

81

We review jury instructions for abuse of discretion and harmless error. United States v. Skilling, 554 F.3d 529, 547 (5th Cir. 2009). But when a defendant fails to object to jury instructions, our review is for plain error. FED. R. CRIM. P. 30(d).

Internet The Internet is a means of interstate commerce, deciding the question as one of law, albeit at the appellate level. See, e.g., United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009)Internet Traveling United States v. Olvera, __ F.3d __ (5th Cir. July 10, 2012)(The question presented by this case is whether an individual can violate the statute solely through communications with an adult whom he knows to be an adult. Though we have yet to address this issue, every other circuit to do so has concluded that suchconduct can fall within the statute. See United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011), cert. denied, 132 S. Ct. 1650 (2012); United States v. Douglas, 626 F.3d 161, 164-65 (2d Cir. 2010), cert. denied, 131 S. Ct. 1024 (2011); United States v. Nestor, 574 F.3d 159, 162 (3d Cir. 2009); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007); United States v. Murrell, 368 F.3d 1283, 1288 (11th Cir. 2004). … Olvera’s argument that the contact with the child must be direct fails. … Because we conclude that the plain language of the statute unambiguously encompasses Olvera’s conduct, and because nothing in the statute suggests any intent to exclude attempts to entice a child through an adult intermediary, we need not delve into this argument.

Intimidating a Flight Attendant---49 U.S.C. 46504United States v. Ziba, (5th Cir. June 8, 2016)(15-10873): Defendant’s defense is that he did not knowingly interfere or intend to threaten. He argues that he was not guilty of either general or specific intent. He relies on Elonis v. United States, 135 S. Ct. 2001 (2015) where the Court required specific intent to transmit in interstate commerce “any communication containing any threat … to injure the person of another.” The mental state required there is not in the crime here. The Fifth Circuit has held that Art. 46504 is a crime of general intent where conduct can prove guilt. United States v. Hicks, 980 F.2d 963 (5th Cir. 1992). This defendant was well aware of his conduct and talk, interfering with the crews and attendants and requiring the flight to be diverted.

Involuntary Medication We have jurisdiction to review the district court’s order for involuntarymedication. See Sell, 539 U.S. 166, at 176-77 (2003); United States v. White, 431 F.3d 431, 432-33 (5th Cir. 2005). We review for clear error the finding that involuntary

82

medication is substantially likely to render a defendant competent for trial. SeeUnited States v. Palmer, 507 F.3d 300, 303 (5th Cir. 2007).

Issue Preclusion on Acquittal of One Conspriacy Charge as Affecting OthersFrom United States v. Sarabia, __ F.3d ___ (5th Cir. Oct. 20, 2011)(10-40125).Sarabia first argues that in acquitting him of conspiracy to possess withthe intent to distribute marijuana, the jury necessarily determined an ultimateissue of fact

Issue preclusion means that “when an issue of ultimate fact has once beendetermined by a valid and final judgment, that issue cannot again be litigated.

between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436,443 (1970). Although originally specific to civil litigation, courts have longapplied this rule in federal criminal proceedings as well. Id. The SupremeCourt has established that issue preclusion, also called collateral estoppel, is“embodied in the Fifth Amendment guarantee against double jeopardy.” Id. at445. This court has applied issue preclusion to criminal proceedings in twodistinct ways: (1) to “bar a subsequent prosecution if one of the facts necessarilydetermined in the former trial is an essential element of the subsequentprosecution”; and (2) if the fact is not an essential element of the subsequentprosecution, to “bar the introduction or argumentation of facts necessarilydecided in the prior proceeding.” United States v. Brackett, 113 F.3d 1396, 1398(5th Cir. 1997). Appellants only invoke the first application here, as possession

83

of the drugs is a necessary element of the subsequent prosecution. See UnitedStates v. Anchondo–Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990).In evaluating a claim of issue preclusion, the first step “is to determinewhich facts were ‘necessarily decided’ in the first trial.” Brackett, 113 F.3d at1398 (citing United States v. Levy, 803 F.2d 1390, 1398–99 (5th Cir. 1986)).Sarabia “bears the burden of demonstrating that the issue he seeks to foreclosewas ‘necessarily decided’ in the first trial.” Id. (citing Dowling v. United States,493 U.S. 342, 350 (1990)). To determine “what [the] jury has necessarilydecided,” the court must “‘examine the record of a prior proceeding, taking intoaccount the pleadings, evidence, charge, and other relevant matter, and concludewhether a rational jury could have grounded its verdict upon an issue other thanthat which the defendant seeks to foreclose from consideration.’” Yeager v.United States, 129 S. Ct. 2360, 2367 (2009) (quoting Ashe, 397 U.S. at 444). This“inquiry ‘must be set in a practical frame and viewed with an eye to all thecircumstances of the proceedings.’” Ashe, 397 U.S. at 444 (quoting Sealfon v.United States, 332 U.S. 575, 579 (1948)).

a ‘relevant’ part of the ‘record of [the] prior proceeding.’” 129 S. Ct. at 2367(alteration in Yeager) (quoting Ashe, 397 U.S. at 444). It noted that “[u]nlike thepleadings, the jury charge, or the evidence introduced by the parties, there is noway to decipher what a hung count represents.” Id. at 2638. Thus, while thecourt must examine the jury’s acquittal of Sarabia on the conspiracy count, the

84

jury’s hung verdict on the possession count is irrelevant to the inquiry. Bearingthese principles in mind, we turn to a review of the record in this case.

Given the evidence presented at trial and the instructions the juryreceived, we determine that the jury’s acquittal of Sarabia for conspiracy doesnot compel the conclusion that it found Sarabia was not driving the RV. Toacquit Sarabia of conspiracy, the jury only needed to find that one of therequired elements was not proved beyond a reasonable doubt. For one of theseelements in particular—the existence of an agreement—the jury could havefound that the Government failed to meet its burden of proof while still findingthat Sarabia was the driver of the RV.The evidence presented at trial makes such a scenario possible.

Sarabia’s other argument on appeal is that double jeopardy prevents theGovernment from retrying him for possession because it is a lesser-includedoffense of conspiracy. This argument has been directly foreclosed by theSupreme Court in United States v. Felix, 503 U.S. 378, 389 (1992) (reaffirmingthat “a substantive crime and a conspiracy to commit that crime are not the‘same offence’ for double jeopardy purposes”). It is therefore not colorable andwe lack jurisdiction to review this argument. Shelby, 604 F.3d at 885.

85