Recent decisions of the supreme court and fifth circuit court of appeals
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Recent Decisions of the Supreme Court and Fifth Circuit Court of Appeals. Judy Fulmer Madewell Assistant Federal Public Defender Western District of Texas. Commerce Clause . Affordable Care Act 5 Justices agree that this is not within Congress’s Commerce Clause Power

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Recent Decisions of the Supreme Court and Fifth Circuit Court of Appeals

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Recent Decisions of the Supreme Court and Fifth Circuit Court of Appeals

Judy Fulmer Madewell

Assistant Federal Public Defender

Western District of Texas

Commerce Clause

  • Affordable Care Act

  • 5 Justices agree that this is not within Congress’s Commerce Clause Power

  • Congress cannot regulate under the Commerce Clause the failure to engage in economic activity

    • National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)

Commerce Clause

  • SORNA registration requirements & the criminal penalties were unconstitutional as to former federal sex offenders released from custody pre-SORNA.

  • Beyond Congress’s Commerce Clause power.

  • Also not within power to criminalize federal sex offenses

    • United States v. Kebodeaux (5th Cir) (en banc)(page 47)

    • Note: SG has filed a petition for writ of certiorari.

4th Amendment

  • Gov’t attaching a GPS tracking device on defendant’s Jeep and monitoring Jeep’s movements for 28 days constituted a search.

  • Decision was based on common law trespass.

  • Not based on Katz’s reasonable expectation of privacy test.

  • Interesting split in reasoning, but 9:0 search.

    • United States v. Jones (page 1)

4th Amendment

  • Visual strip searches of man erroneously arrested on outstanding warrant did not violate 4th amendment.

  • Suspicionless visual strip searches of persons arrested, even for minor offenses, strike a reasonable balance

    • Florence v. Board of Chosen Freeholders (page 2)

    • Consider with Atwater v. City of Lago Vista

4th Amendment

  • Proctoscopy, pursuant to a warrant issued on probable cause, performed while suspect was under sedation that resulted in discovery of crack cocaine in defendant’s rectum was unreasonable.

  • But good faith exception applied

    • United States v. Gray (5th Cir) (page 4)

4th Amendment

  • Absent co-occupant’s refusal to consent to search of home did not invalidate consent of physically present co-occupant.

  • Limited Georgia v. Randolph to only searches conducted in the face of a present and objecting co-occupant.

    • United States v. Cooke (5th Cir.) (page 4)

  • Circuit split

4th Amendment

  • Although warrant that did not list cell phone as item to be searched, it was properly searched as “correspondence, address books and telephone directories,” which were listed in the warrant

    • United States v. Aguirre (5th Cir) (page 4)

4th AmendmentIssues Before Supreme Court

  • Dog Sniffs

  • Is a dog sniff at the front door of a suspected grow house a search requiring probable cause?

    • Florida v. Jardines, cert. granted (page 3)

  • Is a dog sniff of a car sufficient to establish probable cause to search the car when state did not demonstrate dog’s reliability?

    • Florida v. Harris, cert. granted (page 3)

4th AmendmentIssues Before Supreme Court

  • In Michigan v. Summers, 452 U.S. 692 (1981), Supreme Court held that officers executing a search warrant at a home may detain a resident of the home until the search is completed

  • Bailey v. United States, cert. granted (page 3)

  • Whether, based on Summers, . . .

Bailey v. United States, cert. grant

  • when police have a warrant to search a residence,

  • they can stop a person about a mile away from the residence,

  • who is believed to have some connection to the residence but is unaware of the search,

  • search the person,

  • and extend their detention until the residence search is finished

Eye Witness Identification

  • Due Process Clause does not require preliminary inquiry into the reliability of an eyewitness ID when the ID was not procured under unnecessarily suggestive circumstances arranged by law enforcement

  • Even though eyewitness evidence is fallible, without improper state conduct, due process is not implicated

    • Perry v. New Hampshire (page 11)

Double Jeopardy

  • Jury deadlock; foreperson announces unanimous against guilt on capital murder and first-degree murder, deadlocked on manslaughter, no vote yet on negligent homicide. Resulted in mistrial.

  • Retrial on capital murder & first-degree murder not jeopardy barred.

  • Announcement prior to end of deliberations lacked finality required of an acquittal.

    • Blueford v. Arkansas (page 7-8)

Double JeopardyIssue Before Supreme Court

  • Does the Double Jeopardy Clause bar retrial after the trial court erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact?

    • Evans v. Michigan (page 8)

Confrontation Clause

  • In rape case, allowing state forensic specialist to testify about results of DNA testing performed by non-testifying analyst (Cellmark) and that she matched Cellmark DNA profile to the defendant’s DNA profile produced by her lab did not violate the Confrontation Clause

  • Williams v. Illinois (page 16)

  • Plurality opinion 4:1:4

  • “primary purpose” analysis

Confrontation Clause

  • Introduction of recording of conversations setting up a controlled drug deal between CI and two unidentified men did not violate defendant’s Confrontation Clause rights

  • Because the “primary purpose” of the individuals’ statements was to set up a drug deal, not to create a record for trial

    • Brown v. Epps (5th Cir) (page 18)

Plea Agreements

  • Be sure what it is you are bargaining for

  • 11(c)(1)(B) agreement in which parties stipulated the “agreed upon guideline range is 151-188”

  • PSR recommended upward variance; Def objected; Gov’t filed opposition to def’s objection

  • No breach – agreeing to range not same as agreeing to recommend sentence within range

    • United States v. Pizzolato (5th Cir) (page 23)

Plea AgreementsAppeal Waiver Provision

  • Denial of motion to modify conditions of supervised release – appeal barred by waiver

    • United States v. Scallon (5th Cir) (page 38)

  • Challenge to restitution order that exceeded victim’s actual losses or damages – appeal not barred by waiver b/c illegal sentence

  • And b/c agreement allowed for appeal of “punishment in excess of statutory max”

    • United States v. Chemical & Metal Indus. (5th Cir) (page 38)

Plea Agreements Appeal Waiver Provisions

  • Plea agreement in which parties agreed district court not bound by guideline range

  • Huge upward variance

  • District court struck appeal waiver provision

  • Fifth Circuit held that district court cannot strike appeal waiver provision from plea agreement once it has accepted the agreement

  • No “judicial line-item veto”

    • United States v. Serrano-Lara (5th Cir) (page 39)

SentencingCategorical & Modified Categorical

  • Categorical Approach – look at statutory elements

  • Modified Categorical Approach – when there is a divisible statute, court can look at additional reliable documents to determine elements of conviction

  • Under both, determination is based on elements NOT defendant’s conduct

SentencingCategorical & Modified Categorical

  • Ark. Aggravated Assault is not Aggravated Assault under 2L1.2(b)(1)(A) (cat)

    • United States v. Esparza-Perez (5th Cir) (page 33)

  • Conspiracy conviction under 21 U.S.C. s. 846 is not a DTO under 2L1.2(b)(1)(A)(i) (cat & pe)

    • United States v. Rodriguez-Escareno, ___ F.3d ___, 2012 WL 5200190 (5th Cir Oct. 23, 2012)

SentencingCategorical & Modified Categorical

  • Florida conviction for lewd, lascivious act upon a child under age 16 was a divisible statute; reviewed charging instrument which alleged def had sexual intercourse with child; qualified as sexual abuse of a minor under 2L1.2(b)(1)(A) (mod cat)

    • United States v. Romero-Rosales (5th Cir) (page 35)

SentencingStat Rape/Sexual Abuse of a Minor

  • Held, based on prior Fifth Circuit precedent, that Texas conviction for sexual abuse of a child, under TPC 22.011(a)(2) is a cov under 2L1.2(b)(1)(A) b/c it is either stat. rape or sexual abuse of a minor

  • J. Graves concurring opinion criticizes precedent. That correctly considering age of consent, Texas statute is overbroad

    • United States v. Rodriguez (5th Cir) (page 34)

SentencingStat Rape/Sexual Abuse of a Minor

  • Held, based on prior Fifth Circuit precedent, that Texas conviction for indecency with a child by sexual contact, under TPC 21.11(a)(1), was cov under 2L1.2(b)(1)(A) b/c it was sexual abuse of a minor

  • J. Graves concurred

    • United States v. Quiroga-Hernandez (5th Cir) (page 35)

SentencingCategorical & Modified Categorical

  • Florida conviction for sexual activity with a minor; statute was overbroad b/c covered victims not generic “minors”

  • Defense attorney admitted victim was 14

  • J. Haynes dissent

  • 5th Cir precedent contradictory

  • 4th prong of plain error review

    • United States v. Chavez-Hernandez (5th Cir) (pg 31)

SentencingCategorical & Modified Categorical

  • That def’s OK conviction for kidnapping was not a cov, under 2L1.2(b)(1)(A), because it could be violated in such a way as to take it outside the generic contemporary definition and did not have use of force as an element b/c “forcibly” under OK statute could be committed by only the slightest touching

    • United States v. Najera-Mendoza (5th Cir)(page 33)

  • Gov’t petitioned for rehearing en banc in Najera-Mendoza

  • It was denied, but there was a published opinion dissenting to the denial of en banc review

  • Dissenters noted that Supreme Court had granted cert in United States v. Descamps that “presents a question affecting our analysis.”

SentencingIssues Before Supreme Court

  • Was the Ninth Circuit correct in holding that a state conviction for burglary may, on the basis of the modified categorical approach, qualify as a conviction for generic “burglary” even though the statute of conviction lacks an element of the generic offense?

    • Descamps v. United States (page 25)

  • Fifth Circuit has disagreed with the Ninth Circuit in United States v. Ortega-Gonzaga

Sentencing Related Issues Before Supreme Court

  • Does a conviction under a provision of state law that encompasses the distribution of a small amount of marijuana without remuneration constitute an “aggravated felony,” notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal law felony?

    • Moncrieffe v. Holder (page 25)

Sentencing Reasonableness Review

  • Two published cases in 2012 in which 5th Circuit held the sentences were substantively unreasonable

  • Lifetime supervised release in child porn case

    -United States v. Alvarado (5th Cir) (pg 28)

    2. Upward variance in illegal reentry case

    -United States v. Gerezano-Rosales (5th Cir)(pg 29)

Supervised Release

  • 5D1.1(c) – ordinarily not impose supervised release when the defendant is a deportable alien likely will be deported

  • Comm. n.5 –consider supervised release if court determines would provide added deterrence & protection based on the facts & circumstances of the particular case

  • Court must give particularized explanation

    • United States v. Dominguez-Alvarado (5th Cir)(pg 34)


  • In child pornography cases, for the former child victim to obtain restitution there is no requirement of a showing of proximate cause.

  • Also, each defendant can be assessed the full amount of the victim’s damages

  • Circuit split on proximate cause issue

    • In re Unknown (en banc) (page 35)

Costs of Prosecution

  • District court does not have authority to order a defendant to pay, as costs of prosecution, the costs of investigation.

  • The defendant was convicted of possession of stolen mail. He was assessed the costs of investigation by the Postal Service.

  • Costs of prosecution 28 U.S.C. s 1920

    • United States v. Estill (unpub.) (EDTX) (page 36)


  • Plain error review – whether an error is plain is determined at the time of appeal, not at the time the error was made.

    • United States v. Escalante-Reyes (en banc) (39)

  • This issue is before the Supreme Court on a cert grant

    • Henderson v. United States (37)

Ineffective Assistance of Counsel

  • Effective assistance of counsel requires attorneys to convey to their clients, in a timely manner, favorable plea offers that are subject to expiration if not accepted by a particular deadline

    • Missouri v. Frye (43)

  • See also Lafler v. Cooper (42) involving claim of ineffective assistance based on atty’s recommendation to reject plea offer & go to trial

Ineffective Assistance of Counsel

  • Defense attorney rendered ineffective assistance of counsel in illegal reentry case by failing to adequately research and investigate defendant’s derivative citizenship claim

    • United States v. Juarez (5th Cir) (page 43)

Ineffective Assistance of Counsel Issue Before Supreme Court

  • In Padilla v. Kentucky, the Supreme Court held that it was ineffective assistance for an attorney to fail to advise his client in a criminal case of the immigration consequences of his guilty plea

  • Does that ruling apply to persons whose convictions became final before its announcement?

    • Chaidez v. United States (page 41)

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