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United States v. Demmitt, United States Court of Appeals, 5th Circuit, Docket No. 11-11120

Defendant appealed her convictions of conspiracy to launder monetary instruments, wire fraud, and money laundering. Defendant's convictions stemmed from her involvement in an insurance annuity scheme with her son to defraud customers. The court held that defendant cited no authority in support of her contentions as to the impropriety of admitting a certain witness's testimony and therefore, waived this argument; the record showed that the Government presented significant evidence, albeit circumstantial, that demonstrated defendant was actually involved in her son's scheme or deliberately indifferent to it; given that this evidence was cumulative of the factual resume, the trial court's error in admitting it was harmless and did not warrant reversal; the deliberate ignorance instruction was proper; and no rational trier of fact could have found that the evidence established all of the essential elements of 18 U.S.C. 1956(a)(1)(B)(i) beyond a reasonable doubt and therefore, the court vacated defendant's money laundering conviction (Count 27).

 

Read Opinion here at ca5.uscourts.gov

 

United States v. Garza, United States Court of Appeals, 5th Circuit, Docket No. 11-10543

Defendant pleaded guilty to possession with intent to distribute methamphetamine. Defendant subsequently violated the conditions of his supervised release and was sentenced to 24-months of imprisonment to be followed by 24-months of supervised released. Defendant appealed. The court held that 18 U.S.C. 3582(a) applied to a revocation sentence and the district court erred under Tapia v. United States by considering defendant's rehabilitative needs in imposing his prison sentence. Further, the error affected defendant's substantial rights. Therefore, the court vacated and remanded for resentencing.

 

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United States v. Alvarez, United States Court of Appeals, 5th Circuit, Docket No. 11-41371

Claimant appealed an order of criminal forfeiture. Claimant is the minor child of Omar Alvarez, who pleaded guilty to drug charges and in his plea agreement, agreed to forfeit his interest in certain property, which he admitted to using in furtherance of the conspiracy. Because the petition was untimely under 21 U.S.C. 853(n)(2), the court affirmed the dismissal of claimant's claim.

 

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United States v. Stoker, United States Court of Appeals, 5th Circuit, Docket No. 11-60754

Defendant appealed his conviction and sentence on two counts of retaliating against and threatening a witness, in violation of 18 U.S.C. 1513(e) and 876(c). The court found that the evidence was sufficient to convict defendant on both counts. However, because his crime of retaliation could not be a crime of violence under the career offender guideline, the court misapplied the longest noted guidelines range. Accordingly, the court affirmed the conviction, vacated the sentence, and remanded for resentencing.

 

Read the Opinion here at ca5.uscourts.gov

 

United States v. Cervantes, et al, United States Court of Appeals, 5th Circuit, Docket No. 11-41385

Defendants were convicted on charges stemming from a sting operation conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Defendants worked with an undercover agent to plan an armed home invasion with the aim of stealing a large quantity of drugs. On appeal, defendants challenged their convictions and sentences on a number of grounds. The court held that the district court's only error occurred when it applied a two-level sentence enhancement to the drug conspiracy charge that should not have been applied. Defendants' other arguments lacked merit. Accordingly, the court affirmed in part, vacated in part, and remanded for resentencing.

 

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State of Louisiana v. Manuel Ortiz, Supreme Court of Louisiana, Docket No. 11-KP-2799

Respondent Manuel Ortiz was convicted of first degree murder and sentenced to death for the 1995 for the killing of his wife. The State urged jurors to find that Respondent was involved in a murder-for-hire scheme motivated by his desire to collect on an insurance policy taken out on the wife. Post-conviction relief proceedings stretched out over years. One of the allegations Respondent raised on appeal involved prosecutorial misconduct by a former assistant district attorney. The litigation took place against the background of the assistant DA's subsequent but unrelated legal difficulties which resulted his disbarment and imprisonment on federal charges. The district court ultimately denied respondent the post-conviction relief he sought, effectively rejecting specific claims that the assistant DA had suppressed certain exculpatory evidence and suborned perjury, but vacated Respondent's death sentence. Both Respondent and the State appealed the district court's decision. With no evidence that any prosecutorial decision made before or during the guilt or sentencing stages of trial stemmed in whole or part from any pecuniary interest in the insurance proceeds relating to the victim's death (including the decision to charge Respondent with his wife's murder), the Supreme Court concluded that the district court erred in vacating Respondent's death sentence. Accordingly, the Court reversed the appellate court's decision and reinstated respondent's death sentence. 

 

Read full Opinion here at lasc.org

 

United States v. Andres, United States Court of Appeals, 5th Circuit, No. 11-40783

Defendant appealed his conviction and sentence for conspiracy to possess with intent to distribute more than five kilograms of cocaine. On appeal, defendant contended that the district court erred in denying his motion to suppress evidence and in applying a two-point sentencing enhancement for use of a minor to commit his crime. Because the officer's continued search and seizure beyond the scope of the initial traffic stop were justified by additional reasonable suspicion, the district court did not err in concluding that the scope of the stop was reasonable. Because the court found that the district court did not err in refusing to suppress the drug evidence, the court did not reach the remaining plain error factors. The court also concluded that the district court did not err in applying the U.S.S.G. 3B1.4 enhancement where defendant's choice to drive a truck containing over twenty kilograms of cocaine and a four-year-old girl from Laredo to Chicago constituted an "affirmative act" involving a minor in the offense. Accordingly, the court affirmed the judgment.

 

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United States v. Fraga, United States Court of Appeals, 5th Circuit, No. 12-40302

Defendant appealed his sentence and lifetime term of supervised release following a guilty plea to failing to register as a sex offender. The court found that the sentencing judge adequately explained her reasons for rejecting defendant's mitigating evidence and imposing an upward variance on the term of imprisonment. Therefore, defendant's sentence was procedurally reasonable. Likewise, the court held that the 27 months of imprisonment was substantively reasonable where the sentencing judge did not abuse her discretion by determining that defendant's willingness to cooperate did not mitigate his offense or criminal history, and in giving significant weight to defendant's criminal history and its characteristics. The court held, however, that the order regarding the lifetime term of supervised release must be vacated because the sentencing judge did not give reasons for her decision.

 

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United States v. Gutierrez, United States Court of Appeals, 5th Circuit, No. 12-50028

Defendant was arrested and charged with threatening to kill the President, a former President, and a federal law enforcement officer. On appeal, defendant challenged an order of the district court directing the BOP to involuntarily administer psychiatric medicine to him for the purpose of restoring his competency to stand trial. The court found that the BOP satisfactorily complied with the 1992 version of CFR 549.43(a)(5), which required that a psychiatrist hearing officer "determine whether treatment or psychotropic medication was necessary in order to attempt to make the inmate competent for trial." In light of Sell v. United States, the court affirmed the district court's order approving involuntary medication for the purpose of restoring defendant to competency.

 

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Rodriguez v. Holder, Jr., United States Court of Appeals, 5th Circuit, No. 10-60763 

Petitioner, a native and citizen of Mexico, petitioned for review of the decision of the BIA that he was removable for having been convicted of an aggravated felony. The IJ concluded that petitioner's conviction for attempted sexual assault under Texas Penal Code section 22.011 was a crime of violence as defined in 18 U.S.C. 16(b) because the offense presented a substantial risk of the use of physical force against another. When petitioner appealed the IJ's order of removal, the BIA dismissed the appeal. Because the record did not establish that petitioner was convicted of an aggravated felony, as defined by 8 U.S.C. 1101(a)(43), the court granted his petition and vacated the order of removal.

 

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