Recent Circuit Cases

The Fifth Circuit affirmed a defendant’s sentence as a career offender based on his prior convictions. The defendant argued that his prior convictions did not count as “controlled substances” under the Guidelines since the Guidelines themselves do not include inchoate drug offenses like attempt and conspiracy–only the commentary to the Guidelines does. The Fifth Circuit deepened a circuit split by holding that the commentary are still binding on courts notwithstanding the Supreme Court’s recent decision in Kisor v. Wilkie.

The Tenth Circuit reversed a defendant’s conviction where the prosecutor told the jury in closing arguments that the defendant’s right to be presumed innocent was gone after the close of evidence.

The Ninth Circuit rejected a plaintiff’s Fourth Amendment challenge to the LA Department of Transportation’s permit scheme, wherein LA requires e-scooter companies like Bird and Lyft to collect real-time location data for their scooters and provide it to LADOT. The Court concluded there was no reasonable expectation of privacy under the third-party doctrine.

The Eleventh Circuit rejected a defendant’s constitutional challenge to his conviction for possession of a firearm by an unlawful alien. The Court held that the Second Amendment did not provide a right for illegal aliens to possess firearms since that right did not exist at the time of the amendment’s ratification.

The Eleventh Circuit affirmed a defendant’s ACCA-enhanced sentence. While the defendant’s three prior convictions under Alabama law were punishable by less than ten years under Alabama’s sentencing guidelines, the Court relied on the statutory maximum of over 10 years for those convictions in holding that they were “serious drug offenses” under the ACCA.

The Fifth Circuit reversed a defendant’s conviction after finding that the Government violated his rights under the Confrontation Clause when it presented testimonial hearsay from two non-testifying witnesses that alleged the defendant sold drugs. In doing so, the Fifth Circuit recounted its recent cases involving Confrontation Clause challenges and how the government “has repeatedly failed to take the lesson.”

The Fifth Circuit vacated a defendant’s sentence after holding that the district court improperly enhanced the sentence under 18 USC 3559(c). The Court concluded that the defendant’s prior convictions for aggravated assault under Texas law were not convictions for a “serious violent felony” under 3559(c) because a defendant need only act “recklessly” to be convicted.

The Ninth Circuit held that delta-8-THC, and likely other hemp-derived cannabinoids, are not controlled substances in light of the 2018 Farm Bill. The 2018 Farm Bill excludes hemp and hemp products from the definition of marijuana and THC under the Controlled Substances Act, and the definition of “hemp” includes all cannabinoids, extracts, and derivates from cannabis as long as there is less than 0.3% delta-9-THC.

The Ninth Circuit reversed a defendant’s conviction for possession of a firearm by a convicted felon. Due to the COVID-19 pandemic, the defendant’s trial and motions hearing had been closed to the public, which only had a live audio stream of the proceedings. The Court concluded this violated the defendant’s Sixth Amendment right to a public trial.

The Tenth Circuit reversed a district court’s denial of two motions for early termination of probation, which the district judge had denied on the grounds that the defendants had not been sentenced to any prison time. The Tenth Circuit held that nothing in the statute or case law supports an assertion that probation-only sentences must be treated differently for termination, and courts may not make decisions about whether to grant early termination based on a blanket personal policy and must instead consider the statutory factors as they apply to each individual.