Fifth Circuit

The Fifth Circuit vacated a defendant’s sentence and remanded for resentencing based on the district court’s erroneous application of the firearm enhancement under USSG 2D1.1(b)(1). The PSR did not include sufficient facts to establish a temporal and spatial relationship between the defendant, the gun, and the drug trafficking activity. The defendant was not shown to have any connection to or knowledge of the gun, and the district court failed to make a record of what its rationale may have been supporting the enhancement.

The Fifth Circuit vacated a district court’s order denying a defendant’s request to withdraw his guilty plea. The defendant had alleged that had wanted to file suppression motions and that he would not have pleaded guilty but for his then-attorney telling him the time for filing motions was after the change of plea hearing. The Court held that the defendant had alleged sufficient facts that, if true, would have established ineffective assistance of counsel.

The Fifth, Ninth, and Tenth Circuits have issued opinions over the past few weeks holding that district courts have broad, independent discretion in determining whether an inmate has established “extraordinary and compelling reasons” warranting a sentence reduction under 18 USC 3582(c)(1)(A). The courts join the Second, Fourth, Sixth, and Seventh Circuits in recognizing the broad discretion of district courts, creating a substantial majority of the circuits. The other circuits have not yet addressed this issue.

The Fifth Circuit held that an inmate was eligible for a sentence reduction under 18 USC 3582(c)(2) because his initial applicable Guidelines range would have been lower based on a subsequent amendment to the Guidelines and the Guidelines played a “relevant part” in his sentencing.

The Fifth Circuit affirmed a district court’s holding that defendant lacked Fourth Amendment standing to challenge law enforcement’s search for the GPS location of girlfriend’s cell phone while he was with her. While the boyfriend had purchased the phone before giving it to his girlfriend, knew the password, used the phone frequently, and accessed his Facebook account on the phone, the Court held that he did not have a reasonable expectation in the phone because the girlfriend carried it throughout the day, the defendant never used it outside her presence, and her parents paid the bill. The Court further held that Carpenter did not apply here because law enforcement was trying to determine the girlfriend’s location, not the defendant’s.

The Fifth Circuit vacated special conditions of a defendant’s supervised release and remanded for resentencing holding that an absolute ban on computer use or internet access for ten years after serving a 12.5-year sentence was plain error. The Court held that the condition was overbroad because it was not narrowly tailored by scope or duration and would preclude defendant from participating meaningfully in modern society for long periods of time due to the ubiquitous nature and importance of the Internet.

The Fifth Circuit affirmed several conditions of the defendant’s lifetime term of supervised release as a sex offender, including conditions prohibiting him from possessing any pornographic materials, but held that a condition prohibiting use or possession of video games and gaming consoles was overbroad unless limited to consoles that allow internet communication.

The Fifth Circuit vacated a defendant’s felony criminal contempt conviction due to prosecutorial misconduct when the AUSA expressed personal opinion on the merits of the case, made arguments based on facts not in evidence during the trial, and told the jury that any verdict other than guilty would disrespect the judge and the court. The Court held that the district court abused its discretion in entering the contempt conviction because the inappropriate remarks were textbook prosecutorial misconduct and denied defendant his due process.

The Fifth Circuit affirmed the district court’s order granting defendant a new trial where the defendant’s mistaken belief that a bag contained marijuana was not sufficient to establish knowledge for the meth counts in the indictment because the knowledge element requires evidence that the defendant actually knew the controlled substance identity or that the contents were a listed controlled substance.

The Fifth Circuit reversed the grant of a defendant’s motion to suppress evidence under a broad, written consent to search a cell phone and seize property prior to issuance of a search warrant. Applying the objective standard, the Court held that a reasonable person would understand consent to examine a phone includes its contents and that permission to seize materials includes permission to seize and review phone contents later.