Recent Circuit Cases

The Court affirmed the defendant’s conviction for possession of meth with intent to distribute, holding that the defendant was not entitled to a jury instruction on the lesser included offense of simple possession where the evidence showed that the quantity of meth exceeded the quantity associated with personal use, the meth’s purity suggested that the meth was being used as a cutting agent, and the defendant’s travel indicated possible distribution.

The Court held that the double jeopardy clause did not bar the Government from retrying the defendant where the prosecution did not “coax” the defendant into requesting a mistrial at his first trial. Despite the fact that the prosecution had repeatedly and obviously violated the defendant’s right to confrontation of witnesses at that trial, the district court did not clearly err in finding that the prosecutor had not intended to lure the defendant into requesting a mistrial, citing the strength of the prosecutor’s case and the prosecution consistently arguing that the confrontation clause did not apply.

The Court held that the sentencing court committed plain error by applying the general-fraud Guidelines under U.S.S.G. § 2B1.1 because the defendant’s mail fraud conviction also established a visa fraud offense specifically covered under U.S.S.G. § 2L2.1, the Guideline for visa fraud.

The Court held that confidential, nonpublic information generated and held by a government agency constitutes “property” in Title 18 fraud offenses. The Court also held, unlike in Title 15 securities fraud cases, a defendant charged with securities or wire fraud under Title 18 does not have to receive a personal benefit to be convicted.

The Court affirmed the defendant’s sentence. The district court did not err by holding that the Guidelines recommend consecutive maximum sentences for each count of conviction where the Guidelines range (life imprisonment) exceeds the statutory maximum for each count.

The Court reversed the defendant’s convictions on three of four counts for possession of child pornography. The Court held that 18 U.S.C. § 2252A(a)(5)(B), which prohibits knowingly possessing “any book, magazine…or any other material that contains an image of child pornography,” was ambiguous regarding the “unit of prosecution,” so the defendant could not be convicted for multiple counts based on having child pornography on multiple devices.

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.

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 held that there was no reasonable suspicion to detain a defendant who fled upon being approached by police as there is no per se rule that says flight creates reasonable suspicion, the officers never ordered the defendant to stop before activating their lights, and there was no threat of harm or indication that the defendant was acting in any dangerous manner or that the area was dangerous.

Noting that this was an issue of first impression in this Circuit and any other, the Court held that the defendant “substantially affected” interstate commerce by assaulting the victim and interfering with the victim’s packaging and shipping of products intended for interstate commerce. The Court cited the low standard for invoking jurisdiction under the Commerce Clause, which applies to violent conduct that has even a “minimal effect” on interstate commerce.