Circuit Court Opinions

The Court agreed that an assertion of “legal innocence” as well as “factual innocence” can justify withdrawing a plea, but affirmed the district court’s denial of the defendant’s motion to withdraw his guilty plea since “bald assertions of innocence are insufficient,” and James had failed to allege a sufficient basis for an entrapment defense that he could have utilized at trial.

The Court affirmed the district court’s refusal to instruct the jury on durress, holding that the defendant asserting duress must show either: 1) “a bonafide effort to surrender to law enforcement officials once the alleged duress ends” or 2) “the duress defense elements were satisfied throughout the entirety of his criminal conduct.” The Court rejected the defendant’s argument that he was under duress during the three years he illegally lived in the U.S. due to the belief that he would be deported back to El Salvador, holding that the defendant’s subjective belief was not supported by the record and there was no evidence that his asylum claim would have been denied.

The Court struck a defendant’s condition of supervised release that allowed the probation officer to determine whether the defendant poses a risk to third parties and then require the defendant to notify those third parties, holding that this was an improper delegation of judicial authority to the probation officer.

The district court declined to group the convictions together and the Court affirmed on appeal. While U.S.S.G. § 3D1.2 provides that “all counts involving substantially the same harm shall be grouped together into a single Group,” Faulker had failed to show that: a) the counts were based on the same act or transaction, b) the counts involved “substantially the same harm,” c) the charged offense was already accounted for under the Guidelines provision governing the principal offense, and d) the offense level was not determined on a loss amount or other “measure of aggregate harm.”

The Court held there was sufficient evidence to convict the defendants of identify theft and mail fraud. The Court also rejected the argument that the defendants received ineffective assistance from conflicted counsel after the defendants filed bar complaints against them. The Court held that the defendants failed to show that their attorneys had a conflict of interest, let alone were ineffective, since “the state-bar grievances did not create conflicting obligations” and thus did not put the attorneys in a position to have to choose one interest over another.

On appeal, the Court held that the sentencing court applied the wrong legal standard under U.S.S.G. § 2G2.2(b)(5), which enhances a defendant’s sentence if the offense involves sexual activity with a minor between the ages of 12 and 16 “if the perpretrator was at least four years older than the minor. The district court erred by merely subtracting the victim’s age from the defendant’s without respect to how old each of them actually were at the time of the sexual contact.

Sitting en banc, the Fifth Circuit held that the Commission’s commentary and Application Notes cannot be read into the text of a Guidelines provision and that the Commission’s use of commentary to add elements and definitions to Guidelines provisions “deserves no deference.” Since § 4B1.2, the provisions enhancing the sentencing range for career offenders, does not, by its own text, include attempt crimes as “controlled substance offenses,” prior convictions for attempted crimes do not fall under § 4B1.2(b).

The Court upheld a stop and frisk where, despite evidence that the defendant was not wearing a hoodie and the alleged suspect was reported as wearing a hoodie, the defendant acted nervously around the officer, the officer already knew the defendant was a convicted felon, and there was a “bulge” in the defendant’s pocket.

The Court held that payments made to a victim of a fraud scream can still be part of the loss amount if the payments were made “in furtherance of the scheme.”

The Court held that the officer violated the defendant’s Fourth Amendment right by opening his phone after the defendant’s arrest, where the officer saw a picture of a firearm, but affirmed the district court’s denial of the motion to suppress under the independent source doctrine, since the officers had already seen the picture on another occasion, and since there was probable cause notwithstanding the tainted picture.