Justia Criminal Law Opinion Summaries

The Fifth Circuit affirmed in part and vacated in part Defendants McClaren, Keelen, Fortia, Scott, and Allen's convictions for numerous crimes related to their participation in a New Orleans street gang. The court concluded that the district court did not abuse its discretion in denying the motion to sever McClaren and Scott's trials; the district court did not clearly err in its Batson determinations; challenges to co-conspirator testimony rejected; Allen, Fortia, and Keelen's convictions for RICO conspiracy under 18 U.S.C. 1962(d) affirmed; Fortia, Keelen, and Allen's VICAR convictions under 18 U.S.C. 1959(a)(3) affirmed; Fortia, Keelen, McClaren, and Scott's convictions for engaging in a drug-trafficking conspiracy under 21 U.S.C. 846 affirmed; and the victim's murder was sufficient to demonstrate Fortia's ratification of the drug and RICO conspiracies.The court affirmed Keelen, McClaren, and Scott's sentence under 21 U.S.C. 846, but vacated Fortia's conviction and remanded for resentencing; reversed Keelen's conviction under 18 U.S.C. 924(j); affirmed McClaren and Scott's convictions under 18 U.S.C. 924(o); concluded that defendants are not entitled to a new trial because of the admission and use of the plea agreement documents; affirmed the district court's denial of defendants' motion for a new trial; and affirmed Scott and McClaren's sentences. View "United States v. McClaren" on Justia Law

The Fifth Circuit affirmed defendant's conviction for being a felon in possession of a firearm and upheld the district court's denial of defendant's motion to suppress evidence of a firearm discovered during a stop and frisk. The court concluded that reasonable suspicion supported the stop and frisk where defendant was encountered in a high-crime area, and in light of defendant's connection to the stolen vehicle and his interaction with others in and around the vehicle. In this case, the officers were reasonable in suspecting that at least some of the people around and inside the vehicle had been involved in the aggravated robbery. Furthermore, the officers' need to proceed cautiously was obvious in light of them being outnumbered and unable to secure all six people because they had only four sets of handcuffs.The court also concluded that defendant's detention did not exceed the permissible scope of the investigatory stop where the officers' actions were reasonable under the circumstances and the stop was not converted into an arrest prior to defendant being frisked. Finally, the court concluded that the police department's local policy does not affect the constitutionality of the officers' conduct. View "United States v. Thomas" on Justia Law

The Fifth Circuit denied a petition for review of the BIA's decision upholding the IJ's determination that defendant was subject to removal from the United States because he had been convicted of a crime involving moral turpitude. The IJ determined that the plea agreement signed by petitioner, his defense counsel, and the prosecutor was clear and convincing evidence of a criminal conviction because it contained an indication of guilt and the sentence imposed. Applying a deferential standard of review, the court concluded that petitioner failed to show that the IJ or BIA violated a statutorily imposed evidentiary requirement by finding that the plea agreement at issue proved the existence of a forgery conviction by clear and convincing evidence. Therefore, it is not, as a matter of law, deficient or inadmissible. View "Vu Quang Nguyen v. Garland" on Justia Law

The Fifth Circuit vacated defendant's sentence for making false statements and representations regarding firearm records. USSG 2K2.1(a)(4)(B) provides for a base offense level of 20 if, inter alia, the offense involved a semiautomatic firearm that is capable of accepting a large capacity magazine. In United States v. Longoria, 958 F.3d 372, 377 (5th Cir. 2020), the court held that the commentary to the Guidelines, which further defines what it means for a firearm to be capable of accepting a large capacity magazine, is authoritative and must be enforced.In this case, after Longoria was decided, the district court applied section 2K2.1(a)(4)(B), but not the accompanying commentary. Nor did the presentence report indicate that a magazine capable of holding over fifteen rounds of ammunition was either attached to or in close proximity to the firearm in question—let alone bear sufficient indicia of reliability to be considered as evidence during sentencing—as required under the commentary. Accordingly, the court remanded for resentencing consistent with both the Sentencing Guidelines and the accompanying commentary. View "United States v. Abrego" on Justia Law

The Fifth Circuit affirmed defendant's conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1) & 924(e). In this case, defendant was approached by police officers after a tip was received that he was illegally selling CDs outside of a store in a high-crime area. After defendant voluntarily opened the trunk of his vehicle, he was arrested for unlawful labeling of CDs. A search of defendant and his vehicle uncovered a loaded pistol, magazine, cash, drugs, and drug paraphernalia.The court concluded that the district court did not err in denying defendant's motion to suppress defendant's voluntary statements made prior to being in custody after finding the police had reasonable suspicion to detain defendant and probable cause to arrest him and search his vehicle. The court explained that, although the totality of the circumstances suggest that defendant was not free to leave, his restraint had not yet reached the level necessary to necessitate Miranda warnings. In light of Shular v. United States, 140 S. Ct. 779, 782 (2020), persuasive authority in the court's sister circuits, and the court's own precedent, the court concluded that the district court correctly concluded that defendant's convictions could serve as predicates for his Armed Career Criminal Act enhancement. Finally, the court concluded that the district court did not err by applying a four-level sentencing enhancement under USSG 2K2.1(b)(6)(B) for being a felon in possession of a firearm. View "United States v. Bass" on Justia Law

The Fifth Circuit affirmed defendant's conviction and sentence for malicious injury of property located on "Indian country" in violation of 18 U.S.C. 1152 and 1363. On Columbus Day in 2017, defendant poured red paint on a statue of Nestora Piarote, an Indigenous woman, and placed a wooden cross in front of it. The statue was located in El Paso County, Texas, on land reserved to the Yselta Del Sur Indian Tribe (also known as the Tigua Indian Tribe).The court concluded that, with respect to crimes prosecuted via section 1152, settled and reconcilable Supreme Court doctrine, as well as principles of statutory construction, demonstrate that, when the victim is Indian, the defendant's status as Indian is an affirmative defense for which the defendant bears the burden of pleading and production, with the ultimate burden of proof remaining with the Government. In this case, defendant did not raise the issue of Indian status at trial as an affirmative defense, and thus the Government met its burden to prove the jurisdictional element of section 1363 (as extended by section 1152) by introducing evidence sufficient to establish that the offense occurred in Indian country. Finally, the court rejected defendant's contention that the district court erred at sentencing by incorrectly applying USSG 2B1.5, because it should have used the repair cost of $1,800 as the "value" of the statue for purposes of applying the enhancement, rather than its $92,000 purchase price. Rather, the text of section 2B1.5 foreclosed defendant's argument and the Sentencing Commission's explanation of why it promulgated section 2B1.5 further cuts against defendant's view. View "United States v. Haggerty" on Justia Law

The Fifth Circuit reversed defendant's below-Guidelines sentence imposed after he pleaded guilty to a terrorism charge. The court concluded that defendant's sentence was substantively unreasonable where the district court did not account for a sentencing factor -- the seriousness of defendant's offense -- that should have received significant weight. In this case, the judge characterized and discounted defendant's conduct effectively so as to contradict the facts defendant admitted in his plea agreement. Furthermore, the judge failed to acknowledge that defendant had facilitated and fully supported the purposes and atrocities of ISIS.Accordingly, the court remanded for a second resentencing. Because the sentencing judge seems immovable from his views of the sentence he imposed, and because the judge displayed bias against the government and its lawyers, the court sua sponte reassigned this case to a different judge. View "United States v. Khan" on Justia Law

Michael and Cynthia Herman were convicted of one count of conspiracy to defraud the United States. Michael was convicted of five counts and Cynthia of two counts of willfully filing false tax returns. Defendants' convictions stemmed from their understated gross receipts and claiming of personal expenses as business expenses on their tax returns.The Fifth Circuit affirmed the district court's judgment, concluding that the district court did not reversibly err in excluding some of the proffered defense exhibits; the district court did not err in excluding testimony from defendants' forensic accountant regarding the overstated gross receipts and payment of personal expenses with business funds; and there was no Confrontation Clause violation in the district court's limiting of the cross-examination of two Government witnesses. The court joined its sister circuits in declining to extend the Marinello nexus requirement to 18 U.S.C. 371's defraud clause, and accordingly hold that Count One of the indictment is legally sufficient. Finally, the court concluded that there are no errors that the court could aggregate to find cumulative error. View "United States v. Herman" on Justia Law

The Fifth Circuit affirmed defendants' convictions for one count of conspiracy to defraud the United States, based on their efforts to defraud the FDA and to misbrand drugs. Defendants, along with two corporate entities that they owned and controlled, owned and operated a chain of smoke shops in Texas and New Mexico.The court concluded that the district court's conspiracy-to-defraud jury instructions were correct statements of law; a jury would have concluded that defendants' misbranding tended to influence, or was capable of influencing, the FDA's decisionmaking based on evidence presented at trial; and the district court's jury instruction "substantially covered" defendants' proposed instruction and did not misstate the law. The court also concluded that the evidence was sufficient to support the conviction for conspiracy to defraud the FDA; the evidence was sufficient to prove the felony misbranding offense; and defendants' 36-month sentences were substantively reasonable. View "United States v. Gas Pipe, Inc." on Justia Law

The Fifth Circuit vacated defendant's guilty plea for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). The court concluded that there is no evidence in the record that defendant had either actual or constructive possession of the .38 revolver. In this case, defendant signed a factual basis document indicating the only interaction he had with the firearm was that he had "touched" a .38 caliber revolver while at a friend's house. The court explained that the plain text of section 922(g), logic, and analysis of precedent all reveal that mere touching is insufficient to establish possession. Therefore, the district court plainly erred by accepting the guilty plea and the error affected defendant's substantial rights. The court remanded for entry of a new plea and for further proceedings. View "United States v. Smith" on Justia Law