Articles Posted in US Court of Appeals for the Fifth Circuit

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The Fifth Circuit denied a petition for review of the BIA's decision finding petitioner eligible for deportation under 8 U.S.C. 1227(a)(2)(B)(i) for possessing a controlled substance in violation of Oklahoma law. Petitioner challenged both the determination that the Oklahoma schedule of controlled substances was a categorical match to the federal schedule and that in order to terminate his order of removal he was required to show a "realistic probability" that Oklahoma actually prosecutes cases involving substances not included in the federal schedules. The Fifth Circuit has held that the realistic probability test applies whenever the categorical approach is employed. See United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc). The court held that petitioner waived this viable argument under Castillo-Rivera, because he never suggested that the realistic probability test was satisfied in this case. Because petitioner waived his only viable argument, the court denied relief. View "Rodriguez Vazquez v. Sessions" on Justia Law

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The Fifth Circuit reversed Defendants Ganji and Davis' convictions and sentences for conspiracy to commit health care fraud, holding that the evidence was insufficient to convict defendants. In regard to Dr. Ganji, the court held that the Government failed to present evidence that allowed any rational juror to infer the existence of a conspiratorial agreement beyond a reasonable doubt. In this case, the record substantiated that once Dr. Ganji became affiliated with a specific home health care agency, her patients followed her instead of having to establish a new doctor-patient relationship with a medical professional at a different home health care agency. Furthermore, although the Government presented a plausible scheme of fraudulence, it did not implicate Davis in the scheme with proof beyond a reasonable doubt. The court also held that Dr. Ganji could not be held liable for fraudulence as a result of activity that was legal. Because the Government based Davis' fraud completely on the actions of Dr. Ganji, Davis also did not commit fraud. View "United States v. Ganji" on Justia Law

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The Fifth Circuit reversed Defendants Ganji and Davis' convictions and sentences for conspiracy to commit health care fraud, holding that the evidence was insufficient to convict defendants. In regard to Dr. Ganji, the court held that the Government failed to present evidence that allowed any rational juror to infer the existence of a conspiratorial agreement beyond a reasonable doubt. In this case, the record substantiated that once Dr. Ganji became affiliated with a specific home health care agency, her patients followed her instead of having to establish a new doctor-patient relationship with a medical professional at a different home health care agency. Furthermore, although the Government presented a plausible scheme of fraudulence, it did not implicate Davis in the scheme with proof beyond a reasonable doubt. The court also held that Dr. Ganji could not be held liable for fraudulence as a result of activity that was legal. Because the Government based Davis' fraud completely on the actions of Dr. Ganji, Davis also did not commit fraud. View "United States v. Ganji" on Justia Law

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The Fifth Circuit affirmed defendants' convictions and sentences arising from their participation in racketeering activities that centrally involve violence, murder, and the distribution of drugs for the Texas Syndicate gang in Uvalde, Texas. The court held that there was sufficient evidence to convict defendants; evidence presented at trial relating to defendants' tattoos did not constitute error, much less plain error by the district court; the district court did not err by failing to give jury instructions regarding accomplice witness testimony and use of addictive drugs, as well as severance for one of the defendants; the district court did not prejudice Defendant Velasquez by failing to sua sponte sever his case from his codefendants; Velasquez's ineffective assistance of counsel claim was denied without prejudice to collateral review; Velasquez was properly sentenced; the district court did not abuse its discretion by denying Defendant Sanchez's motion for mistrial; and reversal or remand was not warranted where there was not a substantial and significant portion of the record missing regarding Sanchez's severance. View "United States v. Velasquez" on Justia Law

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The Fifth Circuit reversed the district court's denial of defendant's 28 U.S.C. 2255 motion, holding that his guilty plea was rendered involuntary by ineffective assistance of counsel (IAC). Defendant claimed that he is not currently, nor ever was, under a legal duty to register in Texas and that his trial attorney was ineffective for failing to make that claim. The court held that, under the circumstances of this case, counsel's lack of inquiry beyond comparing two statutes was IAC and defendant was prejudiced by it. Accordingly, the court rendered judgment granting defendant's motion. View "United States v. Shepherd" on Justia Law

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The Fifth Circuit affirmed defendant's motions to suppress evidence filed after defendant pleaded guilty to drug-related charges. The court held that officers had reasonable suspicion to conduct the searches of defendant's residence, his dealership, and his mother's home; an officer's Terry-style frisk of defendant once he arrived at the dealership to transport defendant to his residence was proper given the visible bulges in defendant's pockets that were large enough to conceal weapons; and thus the district court did not err by denying the motions to suppress. View "United States v. Williams" on Justia Law

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The Fifth Circuit vacated the district court's sentence requiring defendant to obtain mental health treatment as a special condition of supervised release after she pleaded guilty to transportation of an undocumented alien. The court held that the district court committed reversible error in imposing this special condition without the statutorily required factual findings. In this case, there was no reported history of mental or emotional health related problems and the probation office's investigation had revealed no information to indicate otherwise. Accordingly, the court remanded for the district court to reconsider whether to impose this special condition. View "United States v. Alvarez" on Justia Law

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The Fifth Circuit affirmed defendant's conviction and sentence for carjacking and two related firearms offenses. The court held that even if the district court erred by excluding a government witness's Facebook posts, defendant failed to show that the error had a substantial and injurious effect or influence in determining the jury's verdict; assuming that the Government's reference to defendant's three prior felonies was improper, defendant failed to demonstrate prejudice sufficient to require a new trial; the district court did not err by applying a two-level sentencing enhancement to defendant's sentence under USSG 3C1.1 for perjury; the district court did not erroneously calculate defendant's base offense level; and the court rejected defendant's claim that the district court should have set aside his conviction under 18 U.S.C. 924(c)(3). The court remanded to the district court for the limited purpose of correcting a clerical error. View "United States v. Johnson" on Justia Law

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Defendant appealed his conviction for theft of government property (counts two and three) and conspiracy to commit theft of government property (count one). The court held that errors in the indictment, jury instruction, and verdict form directly undermined defendant's defense. Therefore, the court vacated defendant's convictions as to counts two and three. The court affirmed defendant's conviction under count one, as well as the district court's evidentiary and sentencing rulings. The court remanded for the district court to determine whether defendant's sentence should change in light of counts two and three being vacated. View "United States v. Fairley" on Justia Law

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Defendant appealed his conviction for theft of government property (counts two and three) and conspiracy to commit theft of government property (count one). The court held that errors in the indictment, jury instruction, and verdict form directly undermined defendant's defense. Therefore, the court vacated defendant's convictions as to counts two and three. The court affirmed defendant's conviction under count one, as well as the district court's evidentiary and sentencing rulings. The court remanded for the district court to determine whether defendant's sentence should change in light of counts two and three being vacated. View "United States v. Fairley" on Justia Law