U.S. Court of Appeals for the Fifth Circuit Opinions United States v. Enrique-Ascencio Docket: 16-10274 Opinion Date: May 19, 2017 Judge: James Earl Graves, Jr. Areas of Law: Criminal Law After defendant pleaded guilty to illegal reentry after removal, he challenged the application of a 16-level sentencing enhancement under USSG 2L1.2 for a prior drug trafficking conviction. The Fifth Circuit affirmed, holding that defendant's 120-day sentence was a sentence of imprisonment, regardless of whether he served it in whole or in part through the work release program under California Penal Code section 4024.2. Based on his cumulative 485-day sentence, defendant was previously convicted of a felony during a trafficking offense for which the sentence exceeded 13 months. The court also held that, even assuming the district court's reliance on the plea document was error, the error was harmless. Finally, United States v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014), was dispositive of defendant's argument that the court should remand for the district court to determine whether a lesser sentence was appropriate under an amendment to the Guidelines that took effect after the date of his sentence. In Garcia-Carrillo, the court held that it is not plain error for a district court to fail to consider a non-retroactive post-sentencing amendment to the Guidelines, even if it might have affected the sentence imposed by the district court.
0 Comments
United States v. Ocampo-Vergara Dockets: 15-41235 , 15-41286 Opinion Date: May 19, 2017 Judge: Jerry E. Smith Areas of Law: Criminal Law Defendants Ocampo-Vergara, Salazar, and Ortiz-Fernandez were convicted of conspiracy to possess with intent to distribute heroin. The Fifth Circuit affirmed, holding that the evidence was sufficient to sustain the conviction; Ortiz-Salazar's evidentiary challenges failed because all the evidence at issue was relevant to show that he was a member of the conspiracy and none of it was unfairly prejudicial; the district court did not plainly err by permitting the testimony of a DEA agent where Ortiz-Salazar failed to show that there was a reasonable probability that his trial would have come out differently but for the illegitimate aspects of the agent's testimony; and, even assuming that the district court erred by admitting certain summary charts, such error was harmless. A look at Louisiana’s laws pertaining to drinking and driving www.theadvocate.com/new_orleans/article_8d02e16a-33fd-11e7-9436-1f96f7215d94.html Louisiana, nation’s biggest jailer, is poised to overhaul criminal sentencing laws www.washingtonpost.com/national/louisiana-nations-biggest-jailer-poised-to-overhaul-criminal-sentencing-laws/2017/05/18/9bc0b976-2a92-11e7-be51-b3fc6ff7faee_story.html?utm_term=.b65b563d72b9 U.S. Court of Appeals for the Fifth Circuit Opinions United States v. Cluff Docket: 16-20116 Opinion Date: May 18, 2017 Judge: Junell Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's denial of defendant's motion for a new trial, holding that the Government did not breach the plea agreement. In this case, the Government was not estopped from recommending that the district court deny a reduction for acceptance of responsibility and to instead apply a two-level increase for obstructing justice. Furthermore, the record did not support defendant's claim of prosecutorial vindictiveness. United States v. Torres Docket: 16-50320 Opinion Date: May 18, 2017 Judge: Jerry E. Smith Areas of Law: Criminal Law The Fifth Circuit reversed and remanded the denial of defendant's motion for a sentence reduction. The court held that the district court's stated view that its hands were tied with regard to reducing the money-laundering sentence was error. The court explained that if a reduction was appropriate for the drug-trafficking offense levels, then it was appropriate for money-laundering as well. The error affected defendant's substantial rights and the court chose to exercise its discretion to correct the error. Co-Sponsor of Louisiana Death Penalty Ban Trounces Own Bill www.usnews.com/news/best-states/louisiana/articles/2017-05-17/co-author-of-louisiana-death-penalty-ban-trounces-own-bill Effort to end La. death penalty fails www.houmatoday.com/news/20170517/effort-to-end-la-death-penalty-fails Third Confederate memorial comes down in New Orleans www.washingtonpost.com/news/post-nation/wp/2017/05/17/third-confederate-memorial-comes-down-in-new-orleans/?utm_term=.305c70cfe672 Louisiana Senate Agrees to Criminal Sentencing Law Revamp www.usnews.com/news/best-states/louisiana/articles/2017-05-16/louisiana-governor-deal-reached-on-criminal-justice-revamp Louisiana Supreme Court Opinions Louisiana v. Stewart Dockets: 2015-K-1845 , 2015-K-1846 Opinion Date: May 12, 2017 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law The Louisiana Supreme Court granted certiorari review in two consolidated matters to examine the timeliness of a prosecution following defendant’s failure to appear in court after receiving actual notice and whether the court of appeal erroneously reversed the trial court’s ruling. The trial court granted defendant’s motion to quash, finding the prosecution untimely. The Supreme Court affirmed the court of appeal’s ruling, which reversed the quashal and found the State had no affirmative duty to locate an absent defendant, and remanded these cases to the trial court for further proceedings. U.S. Court of Appeals for the Fifth Circuit Opinions Koch v. United States Docket: 15-30811 Opinion Date: May 12, 2017 Judge: James L. Dennis Areas of Law: Admiralty & Maritime Law, Personal Injury Plaintiff and his wife filed suit against the Government under the third-party liability provision of the Longshore and Harborworkers' Compensation Act (LHWCA), 33 U.S.C. 905(b), after plaintiff was injured while aboard a public vessel owned by the Government and operated by its agents. Plaintiff was inspecting the vessel in connection with his employer's bidding on repair work. The district court concluded that, because the Government's negligent failure to safely illumine the stairwell was the factual and legal cause of plaintiff's accidental fall and its disabling consequences, the Government was fully liable for his resulting harm and disability, even though his preexisting conditions made the consequences of the Government's negligence more severe than they would have been for an ordinary victim. The Fifth Circuit affirmed, holding that the district court did not apply the wrong legal standard in this case with regard to plaintiff's preexisting medical conditions; the district court did not err in holding that the accident was the sole cause of plaintiff's damages; and the district court did not abuse its discretion by limiting the testimony of the Government's expert witness. Louisiana Lawmakers Stall Bill to Prioritize Some in TOPS www.usnews.com/news/best-states/louisiana/articles/2017-05-10/louisiana-lawmakers-stall-bill-to-prioritize-some-in-tops Davis v. Dynamic Offshore Resources Docket: 16-40059 Opinion Date: May 12, 2017 Judge: Edith Brown Clement Areas of Law: Personal Injury Plaintiff filed suit against Dynamic for negligence and gross negligence after he was injured during a personnel-basket transfer to Dynamic's 86A platform. The district court granted summary judgment to Dynamic, holding that it was not vicariously liable for the alleged negligence of its independent contractors. The Fifth Circuit affirmed, holding that personnel-basket transfers are not ultrahazardous activity because they require substandard conduct to cause injury, and that Dynamic did not authorize an unsafe working condition that caused injury to plaintiff. In Re: Deepwater Horizon Docket: 16-30717 Opinion Date: May 12, 2017 Judge: W. Eugene Davis Areas of Law: Business Law The Fifth Circuit affirmed the district court's order holding Crystal and two of its officers jointly and severally liable for a payment that Crystal received pursuant to the BP settlement. The district court granted a clawback motion without a hearing, holding that there was no genuine dispute of material fact that Crystal was a failed business under the terms of the settlement agreement and that Crystal's sworn statement to the contrary constituted fraud. The Fifth Circuit held that there was no genuine dispute of material fact that Crystal materially misrepresented itself as an ongoing business when it filed its claim in 2012; Crystal either knew or should have known that it was a failed business when it filed its claim in 2012; and Crystal lacked standing to champion the rights of its officers because they have not sought to appeal the judgment of the district court and because Crystal failed to identify a genuine obstacle preventing the officers from filing their own appeal. Louisiana Lawmakers Band Together to Fight Opioid Crisis www.usnews.com/news/best-states/louisiana/articles/2017-05-13/louisiana-lawmakers-band-together-to-fight-opioid-crisis Rights Group Sues Orleans Prosecutor Over Subpoena Records The Roderick and Solange MacArthur Justice Center's lawsuit, filed in state court, is based in part on news reports revealing that District Attorney Leon Cannizzaro's office had no system for filing subpoenas. It also noted that Cannizzaro's office sometimes sent out documents labeled as subpoenas without getting a judge's approval, a practice that Cannizzaro recently said has ended. His office had no response to Friday's lawsuit, citing a policy of not commenting on pending litigation. MacArthur lawyers, citing reports by The New Orleans Advocate and the online news outlet The Lens, as well as its own efforts to look at the subpoenas, said the documents apparently were not maintained in accordance with the public records law. The suit also criticizes Cannizzaro's office for allegedly seeking and obtaining court subpoenas for documents and phone records in cases where no criminal prosecution was intended. www.usnews.com/news/best-states/louisiana/articles/2017-05-12/orleans-prosecutor-sued-over-subpoena-records U.S. Court of Appeals for the Fifth Circuit Opinions In Re: Eric Cathey Dockets: 16-20312 , 16-70015 Opinion Date: May 11, 2017 Judge: Per Curiam Areas of Law: Civil Rights, Constitutional Law, Criminal Law Petitioner challenged the district court's transfer of his habeas petition to the Fifth Circuit based on the ground that the petition was second or successive. The Fifth Circuit affirmed the transfer order, holding that there was no intervening judgment here because the 2014 Texas Court of Criminal Appeal decision was not the one authorizing petitioner's confinement. In the alternative, the Fifth Circuit found that petitioner had made a requisite prima facie showing to file a successive habeas petition and the court granted his motion for authorization to file a successive petition. In this case, petitioner's Atkins claim relied on a previously unavailable new rule of constitutional law and his Atkins claim had merit. LOUISIANA HOUSE REJECTS CONSTITUTIONAL CARRY LEGISLATION www.newsweek.com/guns-america-louisiana-house-rejects-constitutional-carry-legislation-607546 Class Action Status Sought In Lawsuit Against Louisiana’s Defense System www.legalreader.com/19240-2/ U.S. Court of Appeals for the Fifth Circuit Opinions Slade v. Progressive Security Insurance Docket: 15-30010 Opinion Date: May 9, 2017 Judge: Stephen Andrew Higginson Areas of Law: Contracts, Insurance Law Plaintiffs filed suit alleging that defendants unlawfully used WCTL to calculate the base value of total loss vehicles. Plaintiffs alleged that using WCTL, instead of lawful sources such as the National Automobile Dealers Association (NADA) Guidebook or the Kelly Blue Book (KBB), resulted in their vehicles being assigned a lower base value and accordingly resulted in plaintiffs receiving lower payouts on their insurance claims. Plaintiffs contended that damages can be calculated by replacing defendants' allegedly unlawful WCTL base value with a lawful base value, derived from either NADA or KBB, and then adjusting that new base value using defendants' current system for condition adjustment. The Fifth Circuit found that plaintiffs' damages methodology was sound and did not preclude class treatment. The Fifth Circuit reversed the district court's certification of a fraud class where plaintiff failed to show that class issues will predominate. Defendant argued for the first time on appeal that by accepting defendants' condition score calculation as is, plaintiffs may have impermissibly waived unnamed class members' ability to assert a future claim contesting defendants' computation of the condition factor. Because this argument was not expressly raised to the district court, and may present important certification questions, the Fifth Circuit remanded the certification order as to the contract and statutory claims. Romain v. Walters Docket: 16-30929 Opinion Date: May 8, 2017 Judge: Catharina Haynes Areas of Law: Legal Ethics The Fifth Circuit reversed the district court's determination that plaintiffs were not prevailing parties and denial of recovery of attorneys' fees. Plaintiffs filed suit under 42 U.S.C. 1988, seeking both declaratory relief that defendant's actions violated their rights and injunctions staying defendant from terminating their Supplemental Nutritional Assistance Program (SNAP) benefits. The Fifth Circuit held that plaintiffs were the prevailing party before the district court because plaintiffs obtained judicially-sanctioned relief in the form of the Settlement Order, and the Settlement Order materially altered the legal relationship of the parties by making defendant subject to additional requirements not included under the SNAP program. The Fifth Circuit remanded to the district court to assess whether special circumstances apply and, if they do not, to determine the amount of reasonable and necessary attorneys' fees. Committee Favors Change to Law That Kept Man From Marrying www.usnews.com/news/best-states/louisiana/articles/2017-05-09/house-advances-change-to-la-law-that-kept-man-from-marrying 5th Circuit upholds fine for lawyer who refused judge's request for a yes-or-no answer www.abajournal.com/news/article/5th_circuit_upholds_fine_for_lawyer_who_refused_judges_request_for_a_yes_or Corporal punishment in Louisiana www.knoe.com/content/news/CORPORAL-PUNISHMENT-LOUISIANA-421687464.html |
Louisiana Law BlogLouisiana Law, News, Issues and Comments from Attorneys at the Shoultz Law Firm Archives
April 2024
Categories |