May 17th, 2018

US Court of Appeals for the Fifth Circuit Opinions
United States v. Montalvo Davila

Docket: 16-20081
Opinion Date: May 16, 2018
Judge: James Earl Graves, Jr.
Areas of Law: Criminal Law

The Fifth Circuit granted defendant's motions to recall the mandate and for leave to file an out-of-time petition for panel rehearing in light of United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc). The court held that recalling the mandate was appropriate because Herrold has rendered the court's previous decision affirming defendant's sentence demonstrably wrong; failure to recall the mandate would produce an unwarranted disparity between him and similarly situated defendants in other cases; and defendant demonstrated diligence in asserting his claim. The court also granted the public defender's motion to be reappointed as defendant's counsel on appeal.

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