Articles Posted in US Court of Appeals for the Fifth Circuit

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18 U.S.C. 1030(a)(5)(A) prohibits intentionally damaging a computer system when there was no permission to engage in that particular act of damage. The Fifth Circuit affirmed defendant's conviction of knowingly causing the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causing damage without authorization, to a protected computer, in violation of section 1030(a)(5)(A). In this case, defendant was the Information Technology Operations Manager for ClickMotive, a software webpage hosting company. Upset that a coworker had been terminated, defendant sabotaged the company's electronic system by deleting files, disabling backup operations, diverting emails, and preventing remote access to the company's network. The court held that defendant lacked permission to inflict the damage he caused and sufficient evidence supported defendant's conviction. Finally, the court held that the statute was not unconstitutionally vague. View "United States v. Thomas" on Justia Law

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The Fifth Circuit reversed the district court's grant of defendant's motion to suppress evidence that officers found in his pockets. The court held that the police did not establish an unconstitutional checkpoint by stopping a Greyhound bus where the police did not require the bus driver to stop at the station; the driver made the scheduled stop as required by his employer; the police only approached the driver after he had disembarked from the bus; the police did not order him to interact with them; after the police approached him, the driver could have declined to speak with the police; and the police in no way restrained the driver. The court also held that defendant lacked standing to challenge whether the bus driver voluntarily consented to the search. In this case, defendant voluntarily consented to answering the officers' questions and to the search of his luggage, and the officers did not perform an unconditional Terry pat down. View "United States v. Wise" on Justia Law

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The Fifth Circuit affirmed the district court's grant of summary judgment for the State in this capital murder case. The court held that petitioner failed to present clear and convincing evidence sufficient to overcome the state trial court's determination that he was competent to waive counsel and plead guilty. The court rejected petitioner's claims of ineffective assistance of appointed trial counsel and claims that he did not receive a fair trial and juror bias. Finally, the court held that the district court did not abuse its discretion by denying his request for an evidentiary hearing. View "Austin v. Davis" on Justia Law

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The Fifth Circuit withdrew its prior opinion as to Defendant Adam Main and substituted the following opinion in its place. The only changes to the prior opinion are in sections V(B), VII(A), and the conclusion. The court held that the district court was permitted to give the deliberate ignorance instruction as to Main. The court exercised its discretion to vacate the forfeiture order entered against Main and remanded for the determination of an award based on the property that Main obtained as a result of the fraud. Therefore, the court vacated the forfeiture order entered against Main and remanded for further proceedings in light of Honeycutt v. United States, 137 S. Ct. 1626 (2017). As to all defendants, the court modified the restitution and forfeiture orders to eliminate the offset. View "United States v. Sanjar" on Justia Law

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The Fifth Circuit affirmed defendant's conviction and sentence for possessing, while in federal prison for a child-pornography offense, obscene depictions of a minor engaged in sexually-explicit conduct (images). The court held that defendant, through his nolo contendere plea and statements in district court, knowingly, voluntarily, and intelligently waived his argument that the images were not obscene. The court also held that defendant's ten-year sentence was not grossly disproportionate to his crime and the court declined to impose a categorical rule that a ten-year sentence for a recidivist's possessing obscene material depicting sexual acts of children was categorically disproportionate. View "United States v. Farrar" on Justia Law

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The Fifth Circuit affirmed Defendant Hernandez and Mendoza's sentences after they pleaded guilty to wire and bank fraud charges arising out of their modified Ponzi scheme. Defendants, two former credit union employees, issued unrecorded share certificates and misappropriated the proceeds. The court held that the district court did not abuse its discretion by applying a two-level sentencing increase to Hernandez's sentence under USSG 2B1.1(b)(11) for possession or use of an authentication feature to further the crime; the district court did not err by holding Hernandez responsible for a loss of $18,376,542, which led to a 20-level increase in her base offense level under USSG 2B1.1(b)(1); and the district court carefully considered Mendoza's request for a downward departure, mitigating factors, the 18 U.S.C. 3553(a) factors, and reasonably concluded that her sentence was warranted. View "United States v. Hernandez" on Justia Law

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Defendant pleaded guilty to conspiracy to engage in sex trafficking of children by force, fraud, or coercion. As part of his plea agreement, he agreed to pay restitution to the victims. After defendant's trial counsel was dismissed, but before his appellate counsel was appointed, the probation officer submitted a Fourth Addendum to defendant's presentence report (PSR) recommending a more onerous restitution award based on a new method of calculation. The Fifth Circuit held that the acceptance of an addendum to a PSR recommending a more onerous restitution award constitutes a critical stage. In this case, defendant was unconstitutionally deprived of the effective assistance of counsel during a critical stage of trial proceedings. Accordingly, the court vacated and remanded for further proceedings. View "United States v. Guerra Pleitez" on Justia Law

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When defendants were originally sentenced, each received a sentence reduction for previously serving time on related state charges. The government then requested that the district court "correct" defendants' sentences pursuant to Federal Rule of Criminal Procedure 35(a) to eliminate the reductions. The Fifth Circuit held that defendants' initial sentences were not "clear error" correctable under Rule 35(a). Accordingly, the court vacated the order correcting defendants' sentences and reinstated the original judgments for each defendant. View "United States v. Hankton" on Justia Law

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The Fifth Circuit affirmed defendant's conviction of being a felon in possession of a firearm and ammunition. The court held that, although the alternate juror's presence during deliberations violated Federal Rule of Criminal Procedure 24(c), the temporary presence of the alternate did not impact the jury's verdict and the curative instruction sufficiently dispelled any risk of prejudice. Therefore, the district court did not abuse its discretion by denying defendant's motions for mistrial and a new trial. View "United States v. Kelly" on Justia Law

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An officer who has provided information for the purpose of its being included in a warrant application under Hart v. O'Brien, 127 F.3d 424 (5th Cir. 1997), has assisted in preparing the warrant application for purposes of Jennings v. Patton, 644 F.3d 297 (5th Cir. 2011), and Hampton v. Oktibbeha County Sheriff Department, 480 F.3d 358 (5th Cir. 2007), and may be liable, but an officer who has not provided information for the purpose of its being included in a warrant application may be liable only if he signed or presented the application. Plaintiff filed suit under 42 U.S.C. 1983 against defendant after plaintiff was arrested for an assault committed by another man with the same first and last names. The Fifth Circuit reversed the district court's denial of summary judgment in favor of defendant and held that defendant was entitled to summary judgment even when construing all the facts in the light most favorable to plaintiff. The court reasoned that the connection between defendant's conduct and plaintiff's arrest was too attenuated to hold the deputy liable under the rule that the court reaffirmed or under any law that was clearly established at the time defendant filled out the incident report. View "Melton v. Phillips" on Justia Law