Articles Posted in US Court of Appeals for the Fifth Circuit

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In1998, police responded to a call at Hayslip’s apartment, where Hayslip’s boyfriend, Cain, was arguing with Thompson, Hayslip’s ex-boyfriend. They let Thompson leave. Three hours later, Thompson returned and shot Cain, killing him. Thompson shot Hayslip in the face, threw the gun into a creek, and went to Zernia's house. Hayslip died days later. Thompson later described the shootings to Zernia, then called his father, who took him to the police. In detention, Thompson talked with inmates Reid and Humphrey, about arranging for Zernia’s death using the Hayslip murder weapon Thompson drew a map of the weapon’s location, and asked Reid to pass the information to a contact. Reid relayed the information to the police. Divers were unable to locate the gun. Although Thompson’s right to counsel had attached, officers instructed Reid to tell Thompson his contact had been unable to find the weapon, and would visit for better directions. Posing as Reid’s outside contact, Investigator Johnson visited Thompson and recorded their conversation. Thompson offered Johnson $1,500 to retrieve the weapon and murder Zernia. The police then recovered the gun. Thompson later spoke with inmate Rhodes, to solicit the murder of witnesses. Thompson was convicted of capital murder; the court imposed the death penalty. After direct appeal and collateral review in Texas state court, he unsuccessfully sought federal habeas corpus relief. The Fifth Circuit grant a Certificate of Appealability on whether Thompson has established a Brady violation in the state’s nondisclosure of its past relationship with Rhodes and whether the introduction of Rhodes’s testimony constituted a “Massiah” violation, which requires determination of whether the informant was promised, reasonably led to believe, or actually received a benefit in exchange for soliciting information from the defendant and whether he acted pursuant to state instructions or otherwise submitted to the state’s control. View "Thompson v. Davis" on Justia Law

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Dispatchers received calls about a man on a rural street, shooting a pistol and yelling “everyone’s going to get theirs.” Dispatchers relayed descriptions of a black male wearing a brown shirt. Officers arrived and observed a suspect matching that description, who fired at them, then disappeared into the trees. The suspect re-appeared 100-500 yards away. The officers advanced but again lost sight of the suspect. They began ordering him to drop his weapon and come out. After a few minutes, the officers spotted a figure on a bicycle, wearing a blue jacket, not a brown shirt, over 100 yards away. All of the officers claim the rider was armed. The rider was Gabriel, not the suspect. His father, Henry, claims that Gabriel was “unarmed” and did not move his hands in any way that might have suggested that he was reaching for something. An officer yelled “put that down!” Officers fired 17 shots within seconds of spotting Gabriel. Hit, Gabriel fled. While Henry was attempting to help Gabriel in their yard, officers advanced. Henry stated that the only gun they had was a toy, which he tossed toward the officers. When the officers attempted to cuff Henry and Gabriel, both resisted. Officers tased them. EMS pronounced Gabriel dead at the scene. In the family's civil rights suit, the court granted the officers summary judgment on limitations and qualified immunity defenses. The Fifth Circuit affirmed that claims against two officers were time-barred but reversed in part. With respect to qualified immunity, the district court erred in excluding Henry’s affidavit. Genuine issues of material fact remain with respect to whether the use of deadly force was objectively reasonable. View "Winzer v. Kaufman County" on Justia Law

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Defendant father and son pleaded guilty to conspiracy to operate an unlicensed money servicing business (MSB). The son also pleaded guilty to conspiracy to distribute and possess Alprazolam, a Schedule IV controlled substance, with the intent to distribute. The district court subsequently denied defendants' motion to withdraw their guilty pleas and sentences. The Fifth Circuit affirmed the district court's judgment as to father and son, with one exception. In this case, the court held that, based on the totality of the circumstances, the evidence presented weighed against the withdrawal of the guilty pleas. The court reversed and remanded for resentencing as to son's maintaining a premises for the purpose of manufacturing or distributing a controlled substance enhancement and special skills enhancement. View "United States v. Lord" on Justia Law

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This case was remanded from the Supreme Court of the United States for reconsideration in light of its decision in Moore v. Texas, 137 S. Ct. 1039 (2017). In Moore, the Supreme Court held that the Briseno factors may not be used to restrict qualification of an individual as intellectually disabled. The Fifth Circuit affirmed the district court's judgment in this case because applying Moore retroactively contradicted the Court's decision in Shoop v. Hill, ___ S. Ct. ___ (Jan. 7, 2019). View "Weathers v. Davis" on Justia Law

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The Fifth Circuit dismissed defendant's appeal of the district court's denial of his motion to relocate his supervised release under 18 U.S.C. 3605. In this case, defendant was not, and still is not, on supervised release. The court held that neither 28 U.S.C. 1291, 18 U.S.C. 3742(a), nor Federal Rule of Appellate Procedure 4(b) provided it with jurisdiction to review the appeal. The court held that the collateral order doctrine was inapplicable in this case and did not confer appellate jurisdiction. View "United States v. Pittman" on Justia Law

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Defendant appealed his sentence after he was convicted of conspiring to transport undocumented immigrants and transporting undocumented immigrants. The Fifth Circuit affirmed the district court's imposition of a sentencing enhancement for recklessness under USSG 2L1.1(b)(6) where defendant consciously disregarded a substantial and unjustifiable risk by crossing a deep part of the Rio Grande river with the immigrants. However, the court reversed the district court's denial of a sentence reduction under USSG 3E1.1 for acceptance of responsibility for the offense where he did not deny the factual elements of his guilt. Accordingly, the court remanded for resentencing. View "United States v. Najera" on Justia Law

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After defendant signed a plea agreement pleading guilty of receipt of child pornography, he claimed that he lacked the requisite mens rea, the government entrapped him, and the factual basis of the plea was inaccurate. However, at the pretrial conference, defendant again pleaded guilty under the original plea agreement. In this appeal, defendant argued that the district court committed plain error by restricting his right to withdraw the guilty plea and by involving itself in plea negotiations. The court held that the district court did not err, plain or otherwise, where defendant never formally requested to withdraw his plea but, instead, continued to waver before ultimately deciding to persist in his original guilty plea. The court rejected defendant's claim that the district court improperly conditioned the withdrawal of the plea on his decision to pursue an affirmative defense. The court also held that the judge's stray comments did not amount to a Federal Rule of Criminal Procedure 11(d)(1) violation, and the district court did not improperly participate in plea discussions in violation of Rule 11(c)(1). Accordingly, the court affirmed the district court's judgment. View "United States v. De Leon" on Justia Law

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The Fifth Circuit denied a petition for review of the the BIA's decision affirming the IJ's determination that petitioner was removable because she was convicted of a drug offense. Petitioner argued that she was not removable because she was convicted for possessing a small amount of marijuana for personal use. The court held that the BIA's interpretation of 8 U.S.C. 1227(a)(2)(B)(i)'s personal-use exception was reasonable. Applying the BIA's circumstances-specific approach, the court held that petitioner's conviction did not fall within the personal-use exception. In this case, substantial evidence supported the BIA's findings that petitioner possessed 54.6 pounds of marijuana—substantially more than the personal-use exception’s 30-gram threshold. View "Cardoso de Flores v. Whitaker" on Justia Law

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Defendant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1), and enhanced per the Armed Career Criminal Act (ACCA). Defendant alleged that the district court plainly erred in applying the ACCA enhancement and that he received ineffective assistance of counsel. The Fifth Circuit dismissed the appeal as to both claims, holding that defendant's ACCA enhancement claim was barred by his appeal waiver and his ineffective assistance of counsel claim was not ripe for review on direct appeal. View "United States v. Kelly" on Justia Law

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After defendant pleaded guilty to trafficking in meth, she moved to suppress evidence, arguing that an officer's tap of her tire was a search not supported by probable cause. The district court denied the motion. The Fifth Circuit held that the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test for deciding what is a search. However, the officer had probable cause to tap the tire. In this case, the tires were wobbly, the truck was veering outside of its lane, and the stripped bolts gave a reasonable officer probable cause to believe that the tire posed a safety risk. Accordingly, the court affirmed the judgment. View "United States v. Richmond" on Justia Law