Justia Criminal Law Opinion Summaries

The Fifth Circuit affirmed defendant's 120-month sentence for wire fraud where he defrauded the victim out of his life savings. Defendant told the victim that he would invest the money in a "high-performing fund called Blueshare Capital Fund" but no such fund existed. The court concluded that defendant's sentence was substantively reasonable where the district court applied an eighty-seven-month variance based on the devastating impact of defendant's crime on the victim. In this case, defendant's crime took all of the victim's life savings, forcing the victim to live off of government assistance for the rest of his life. The district court also relied on the need to deter defendant from future crimes and to promote respect for the law. Therefore, the district court did not abuse its discretion purely based on the length of the sentence. Finally, the court concluded that the district court did not abuse its discretion in choosing how much weight to give the sentencing factors and, at bottom, by determining that defendant's promise to pay was not credible in light of his fraud. View "United States v. Navarro-Jusino" on Justia Law

The Fifth Circuit affirmed defendant's sentence imposed after she violated her conditions of supervised release. In this case, the district court considered an incorrect advisory range, but defendant failed to object. Applying plain error review, the court declined to exercise its discretion in remedying the error because defendant's sentence on revocation does not undermine the fairness, integrity, or public reputation of judicial proceedings. View "United States v. Mims" on Justia Law

The Fifth Circuit affirmed defendant's conviction for one count of receiving material containing child pornography. Even applying stricter de novo review, the court concluded that receipt of pornographic computer files is properly chargeable as receipt of material containing child pornography under 8 U.S.C. 2252A(a)(2)(B).The court rejected defendant's contention that the evidence at trial permitted the judge to conclude only that five files contained child pornography, and the dates of receipt proven for those files materially vary from the dates alleged in the indictment. Rather, the court concluded that the evidence at trial indicated that far more than five files contained child pornography and, even if there were only five files, the dates of receipt defendant points to for those files do not materially vary from the dates alleged in the indictment. The court remanded for the district court to correct a clerical error in the judgment, which mistakenly indicated that defendant pleaded guilty instead of being found guilty after a bench trial. View "United States v. Knowlton" on Justia Law

Petitioner, a legal permanent resident, was twice charged as removable by the federal government, once in 2012 and once in 2016. Petitioner challenged the second removability charge as barred by res judicata. The Fifth Circuit agreed with the BIA's determination that res judicata did not bar the second removability charge because it was based on a different statutory provision and was unavailable to the Government when the first charge was brought. Petitioner also argued that the Government failed to meet 8 U.S.C. 1227(a)(2)(A)(iii)'s statutory requirements and that the BIA denied him due process of law. The court concluded that these two issues have not been addressed by the BIA in the first instance and thus they are not ripe for disposition. Accordingly, the court dismissed in part and denied the petition in part. View "Rodriguez v. Garland" on Justia Law

The Fifth Circuit affirmed defendant's sentence for wire fraud, concluding that the district court did not improperly consider defendant's socio-economic status. Rather, the court considered only defendant's "good" childhood and upbringing in justifying the upward variance. In this case, the district court considered that defendant did not grow "up in abject poverty" or "surrounded by violence," and it considered his parents' occupations in law enforcement. The court explained that these considerations do not constitute defendant's socioeconomic status, but are part of his background. View "United States v. Burney" on Justia Law

The Fifth Circuit affirmed defendant's 60 month sentence imposed after he pleaded guilty to illegal reentry after removal from the United States in violation of 8 U.S.C. 1326(a) and (b)(1). In this case, the parties agree that the district court committed ex post factor error under United States v. Martinez-Ovalle, 956 F.3d 289 (5th Cir. 2020), when it applied the more onerous 2018 Guidelines in effect at the time of defendant's sentencing, rather than the more lenient 2016 Guidelines in effect at the time of his illegal reentry offense.The court concluded that the government has satisfied its heavy burden of proving that the district court's ex post facto error was harmless. The court also concluded that defendant failed to show that the district court committed any error, much less clear or obvious error, affecting his substantial rights in its reliance on the presentence report's description of defendant's sexual assault arrest where it was not a "bare arrest record." View "United States v. Reyna-Aragon" on Justia Law

Defendant was charged with conspiracy to violate 21 U.S.C. 841(a)(l) and (b)(l)(C), namely to possess with intent to distribute a mixture and substance containing more than 50 grams of methamphetamine. However, the information cited the wrong part of section 841(b)(1): Subparagraph B—not C—criminalizes possession of a substance containing more than 50 grams of meth. In this case, the parties agree that subparagraph C is a lesser-included offense of subparagraph B. Despite that initial error and without any plea agreement, defendant pleaded guilty to subparagraph B, referencing it nine times.The Fifth Circuit concluded that jeopardy does not always attach upon acceptance of a guilty plea; explained the framework for analyzing attachment under Ohio v. Johnson, 467 U.S. 493 (1984); and concluded that there was no double jeopardy violation in this case. The court explained that Johnson abrogated United States v. Sanchez's, 609 F.2d 761, 762 (5th Cir. 1980), statement about attachment; defendant's counterarguments are not persuasive; and the rule of orderliness does not preclude that conclusion. Furthermore, defendant's finality interest is low and there is no evidence of prosecutorial overreach. Therefore, jeopardy did not attach upon the district court's acceptance of defendant's guilty plea and there is no violation. Finally, the court concluded that the district court did not clearly err in applying a sentencing enhancement under USSG 2D1.1(b)(5) for an offense involving the importation of methamphetamine. View "United States v. Brune" on Justia Law

The Fifth Circuit granted a petition for review of the BIA's decision upholding the IJ's conclusion that one of petitioner's three convictions rendered petitioner removeable. At issue is petitioner's 2018 conviction for knowingly possessing a controlled substance listed in Penalty Group 2-A, in violation of Texas Health & Safety Code 481.1161(a). In this case petitioner possessed MMB-Fubinaca, which, he agrees, is a federally controlled substance. However, Penalty Group 2-A also includes at least one substance that is not federally controlled.The court concluded that petitioner's 2018 conviction did not render him removeable under 8 U.S.C. 1227(a)(2)(B)(i). The court explained that the government failed to show that Penalty Group 2-A is divisible. Applying the categorical approach, the court concluded that Penalty Group 2-A is broader than the federal statute, and "there is no categorical match" between Penalty Group 2-A and its federal counterpart. Here, the parties agree that Penalty Group 2-A criminalizes possession of at least one substance—naphthoylindane—that the federal statute does not mention. The panel declined to terminate petitioner's removal proceedings. Instead, the court remanded for consideration of whether petitioner has shown a realistic probability that Texas would prosecute conduct that falls outside the relevant federal statute. The panel also remanded for consideration of whether petitioner's 2009 and 2013 convictions render him removable, in the event that petitioner succeeds on the realistic-probability inquiry. View "Alejos-Perez v. Garland" on Justia Law

The Fifth Circuit affirmed defendants' convictions for offenses related to their involvement in two armored truck robberies. The court concluded that a third co-defendant's testimony alone was sufficient to support defendants' convictions; sufficient evidence supported Defendant Armstead's conviction for making a false material statement and for being a felon-in-possession of a firearm; the district court did not abuse its discretion in denying defendants' motions for a new trial where defendants failed to identify any inappropriate questions asked to the jury and the court saw no indication that any juror abandoned his or her role as a neutral fact-finder; and Defendant Jerome's conviction under 18 U.S.C. 924(c) was predicated solely on armed bank robbery and thus United States v. Reece, 938 F.3d 630 (5th Cir. 2019), was inapplicable in this case. View "United States v. Kieffer" on Justia Law

The Fifth Circuit affirmed the district court's grant of defendant's motion to suppress evidence that was critical to establish the Government's charge of possession of a firearm by a convicted felon. The district court determined that police officers did not have reasonable suspicion to conduct the investigatory stop of defendant, and thus the gun and statements to police were suppressed as fruits of the poisonous tree.The court concluded that the district court did not err in finding that the officers did not have reasonable suspicion to conduct an investigatory stop. In this case, the district court found that the informant's tip lacked credibility and reliability because the caller did not provide her name or phone number and had no history of reliable reports of criminal activity, and the police officers did not attempt to contact the management at the Millsaps Apartments to determine who made the phone call. View "United States v. Norbert" on Justia Law