tcdla - Voice For The Defense Online

The district court’s explanation of its sentence was adequate
because the court entertained lengthy comments
from both parties and then elaborated its particularized
explanation for a within-Guidelines sentence; no more
explanation is required. United States v. Camero-Renobato,
670 F.3d 633 (5th Cir. 2012).
The Fifth Circuit clarified that in United States v. Mondragon-Santiago,
564 F.3d 357 (5th Cir. 2009) (finding the district
court’s explanation for its sentence inadequate), no reasons
were given for the sentence beyond a bare recitation of
the Guideline calculation.
D’s inculpatory statement on the doorstep of her home
was the fruit of the unconstitutional attempted forced
entry of D’s trailer and could not supply probable cause
for a valid arrest. United States v. Hernandez, 670 F.3d
616 (5th Cir. 2012).
Having previously established the warrantless attempted
forced entry of D’s trailer (resulting in D’s prosecution for harboring
an illegal alien), the Fifth Circuit held the district court
should also have suppressed the post-arrest, post-Miranda
statements of D and her co-defendant, as well as the post-arrest
statement of an illegal alien found in the trailer. Without a valid
arrest, D’s post-arrest statements were also tainted by the initial
constitutional violation. Finally, the Fifth Circuit found that
the two other people’s statements were likewise the fruit of the
initial constitutional violation and were insufficiently attenuated
from that violation; nor were they admissible under the
inevitable-discovery doctrine.
Where the Chief Judge of the Fifth Circuit issued an order
authorizing only partial payment for expert services
in a pending district court case and ordering the experts
to keep working on the case, the Fifth Circuit had no
appellate jurisdiction or mandamus authority with respect
to the Chief Judge’s action. In re Marcum L.L.P.,
670 F.3d 636 (5th Cir. 2012).
As an order issued pursuant to the Chief Judge’s authority
under 18 U.S.C. § 3006A(e)(3) of the Criminal Justice Act, it
could only be reviewed by a mandamus action filed with the
U.S. Supreme Court.
Where government stipulated in plea agreement to a
Guideline base offense level of 26 but the Probation Office
independently determined D was a career offender
subject to a base of 34, there was no breach of the plea
agreement. United States v. Loza-Gracia, 670 F.3d 639
(5th Cir. 2012).
The plea agreement did not purport to bind the Probation
Office—nor could it, since the Probation Office is a
branch of the federal judiciary. Furthermore, the prosecutor
at the sentencing hearing did not voice any support for or
advocate for application of the “career offender” enhance‐
ment, but simply maintained that the government stood by
the plea agreement.
District court reversibly erred in treating illegal-reentry
D’s prior Oklahoma conviction for domestic assault
and battery as a crime of violence; the offense lacked
the requisite “use of force” element. United States v.
Miranda-Ortegon, 670 F.3d 661 (5th Cir. 2012).
D’s prior conviction did not warrant a 16-level enhancement
under USSG § 2L12.(b)(1)(A)(ii) because Oklahoma law
made clear that the offense could be committed by “only the
slightest touching.”
District court did not commit reversible plain error in
applying a crime of violence enhancement to illegal-reentry
D on the basis of his Florida conviction for sexual
activity with a minor; even if the statute of conviction
was overbroad in that it covered victims who were not
generic “minors,” defense counsel made an evidentiary
admission that the victim was only 14 years old. United
States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir.
2012).
Especially under the deferential “devoid of evidence”
standard applicable to forfeited sufficiency-of-theevidence
claims, the evidence was sufficient to sustain
D’s conviction for conspiracy to possess marijuana with
intent to distribute. United States v. Delgado, 672 F.3d
320 (5th Cir. 2012)(en banc).
Contrary to D’s argument, the evidence did not show merely
a buyer-seller relationship. Furthermore, contrary to the panel
decision in this case, the alleged trial errors—namely, improper
prosecutorial closing argument, the giving of a deliberate-ignorance
instruction, and the failure to give an instruction under
Sears v. United States, 343 F.2d 139 (5th Cir. 1965) (instructing
the jury that one cannot conspire with a government agent)—did
not, either singly or cumulatively, require a new trial.
In case charging D with illegal reentry after deportation
and lying about U.S. citizenship, defense counsel
rendered ineffective assistance by failing to adequately
research and investigate D’s derivative-citizenship defense,
which would have been a defense to the alienage
element of both charges. United States v. Juarez, 672
F.3d 381 (5th Cir. 2012).
Particularly, defense counsel failed to adequately research
and investigate whether D derived citizenship via 8 U.S.C.
§ 1432(a) (1999). Based on the legal authority available when
defense counsel advised D on his pleas, a derivative-citizenship
defense was plausible. Moreover, D was prejudiced because,
under these circumstances, there is a reasonable probability that
D would have been dissuaded from pleading guilty and would
have elected to go to trial. As a result of counsel’s ineffective