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

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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  1. Recent Decisions of the Supreme Court and Fifth Circuit Court of Appeals Judy Fulmer Madewell Assistant Federal Public Defender Western District of Texas

  2. 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)

  3. 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.

  4. 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)

  5. 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

  6. 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)

  7. 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

  8. 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)

  9. 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)

  10. 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, . . .

  11. 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

  12. 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)

  13. 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)

  14. 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)

  15. 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

  16. 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)

  17. 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)

  18. 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)

  19. 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)

  20. 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

  21. 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)

  22. 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)

  23. 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)

  24. 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)

  25. 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)

  26. 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)

  27. 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.”

  28. 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

  29. 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)

  30. 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)

  31. 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)

  32. Restitution • 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)

  33. 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)

  34. Appeal • 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)

  35. 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

  36. 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)

  37. 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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