Supreme Court and Fifth Circuit Criminal Update

slide1. Supreme Court and Fifth Circuit Criminal UpdateSOUTHERN DISTRICT OF TEXAS BENCH BAR CONFERENCE November 14, 2024 Hon. John A. Kazen,
U.S. District Judge (Moderator)

Timothy Crooks, Esq.

Anna E. Kalluri, Assistant U.S. Attorney

Matthew Wright, Assistant Federal Public Defender<br>
slide2. Topics Second Amendment
Fourth Amendment
Expert Testimony and the Confrontation Clause
Fraud and Obstruction
Sentencing
Miscellaneous<br>
slide3. Second Amendment<br>
slide4. United States v. Rahimi, 144 S. Ct. 1889 (2024) Background:
New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022)—The Supreme Court rejected a means-end analysis for regulations implicating the Second Amendment and held that the only relevant inquiry was whether the regulation was consistent with the “history and tradition” of gun regulation informing the scope of the Second Amendment.
On the basis of Bruen, the Fifth Circuit in Rahimi’s case held that 18 U.S.C. § 922(g)(8) – criminalizing possession of a firearm by a person under a domestic-violence restraining order – was unconstitutional under the Second Amendment (United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023))
SCOTUS granted the Government’s petition for cert.<br>
slide5. United States v. Rahimi, 144 S. Ct. 1889 (2024) Question Presented:
Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face.
Decision:
18 U.S.C. § 922(g)(8) is constitutional “as applied to the facts of Rahimi’s own case” because “the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.”
A modern firearm regulation must “comport with the principles underlying the Second Amendment,” but need not be a “dead ringer” for a Founding-era law. Founding-era surety and “going armed” laws “targeted the misuse of firearms,” and § 922(g)(8) “fits neatly within the tradition the surety and going armed laws represent.”<br>
slide6. Post-Rahimi Cases in the Fifth Circuit United States v. Rahimi, 117 F.4th 331 (5th Cir. 2024)—affirms § 922(g)(8) conviction and sentence on remand from SCOTUS
United States v. Connelly, 117 F.4th 269 (5th Cir. 2024)—sustains as-applied Amendment challenge to 18 U.S.C. § 922(g)(3) (possession by unlawful user of a controlled substance): Connelly, a marijuana user, was not actively intoxicated.
United States v. Medina-Cantu, 113 F.4th 537 (5th Cir. 2024)—rejects Second Amendment challenge to 18 U.S.C. § 922(g)(5)(A) (possession by an alien illegally in the United States), because non-citizens unlawfully present are not among “the people.”<br>
slide7. 18 U.S.C. § 922(g)(1)–Felon in Possession United States v. (Ronnie) Diaz, 116 F.4th 458 (5th Cir. 2024):
Rejects facial challenge
Rejects as-applied challenge “specifically targeted to Diaz’s circumstances,” but others may succeed:
“Felon” status alone is not enough
Ignores Diaz’s misdemeanor convictions; “felony” convictions for conduct that was noncriminal at the Founding (including felon-in-possession); and felonious misconduct during the instant offense
Diaz’s felony conviction for vehicle theft was similar enough to horse- stealing, which was a capital offense at the Founding.
En Banc Reh’g denied (Oct. 25, 2024)<br>
slide8. “As-Applied” Challenges to § 922(g)(1) in the Sixth Circuit: United States v. Williams, 113 F.4th 637 (6th Cir. 2024): Rejects challenge where Defendant had felony convictions for “aggravated robbery”; “attempted murder,” and felon-in-possession. Standard is “Dangerousness.”
“When evaluating a defendant’s dangerousness, a court may consider a defendant’s entire criminal record—not just the specific felony underlying his § 922(g)(1) conviction.”
Convictions that show dangerousness: crimes against the person; crimes like drug-trafficking and burglary that indicate “significant threat of danger”
Convictions that do not: “crimes like mail fraud . . . or making false statements”; “[b]ut we trust district courts will have no trouble concluding that many of these crimes don't make a person dangerous”<br>
slide9. “As-Applied” Challenges to § 922(g)(1) in the Sixth Circuit: United States v. Goins, 118 F.4th 794 (6th Cir. 2024): Applying Williams “dangerousness” standard, rejects as-applied challenge where Defendant had convictions for DUI (x4), Driving w/ suspended license, possession of controlled substance, public intoxication, criminal mischief; condition of probation banning guns
Three reasons Defendant lost:
(1) Goins violated probation by possessing gun;
(2) “Goins was under a relatively short probation sentence for a dangerous crime”; and
(3) “his repeated actions demonstrated a likelihood of future dangerous conduct.”<br>
slide10. “As-Applied” Challenges to § 922(g)(1) in the Eighth Circuit: United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024): Rejects as-applied challenge for Defendant convicted of “sale of a controlled substance” (2x)
“Given these assurances by the Supreme Court, and the history that supports them, we conclude that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”
En Banc Reh’g denied (Nov. 5, 2024)<br>
slide11. “As-Applied” Challenges to § 922(g)(1) in the Third Circuit: United States v. Moore, 111 F.4th 266 (3d Cir. 2024): Rejects as-applied challenge because Defendant was on federal supervised release for prior § 922(g)(1) conviction, which followed a federal cocaine-distribution conviction: “tradition of disarming” people under a criminal justice sentence
Arguably “defense of property” (Defendant confronted, and fired at, people breaking into car)
Range v. Attorney General, No. 21-2835 (3d Cir.): Civil Challenge
Before Rahimi, the En Banc court sustained an as-applied challenge where plaintiff had been convicted of non-felony false statement punishable by five years’ incarceration
SCOTUS vacated, remanded after Rahimi
En Banc Court heard re-argument; awaiting decision<br>
slide12. Unsettled and Uncomfortable Practical Questions At what point in the process may you raise an “as-applied” challenge? At what point in the process must you raise an “as-applied” challenge?
Pretrial motion to dismiss?
Change-of-Plea Hearing?
Objections to Report and Recommendation on Guilty Plea?
Sentencing?
Who has the burden of proof or persuasion? Do Rules of Evidence apply?
Does this challenge survive an unconditional guilty plea?<br>
slide13. Fourth Amendment<br>
slide14. Searches of Cell Phones at the Border United States v. Castillo, 70 F.4th 894 (5th Cir. 2023)
Background: Castillo’s RV was searched by border agents after he arrived at a port of entry late at night. The agents found hidden firearms and ammunition, along with evidence of marijuana. After Castillo admitted to owning the contraband, he gave an agent his cell phone password. An agent manually scrolled through various apps and found child pornography in Castillo’s photos. Based on the initial findings, agents conducted forensic searches of Castillo’s phone and other electronic devices, finding additional images of child pornography. After a failed motion to suppress and a jury trial, Castillo was convicted of six counts of possession of child pornography.<br>
slide15. Searches of Cell Phones at the Border United States v. Castillo, 70 F.4th 894 (5th Cir. 2023)
Claim on Appeal: Castillo argued that the government violated the Fourth Amendment by conducting the manual as well as forensic searches.
Holding: The Fifth Circuit joined all other circuits to have addressed the issue in determining that no individualized suspicion is necessary to manually search cell phones at the border.
The extent of the privacy intrusion of cell phones depends on the methodology employed by the government agent. A routine manual search of a cell phone limits the quantity of information available during the search. Accordingly, a manual cell phone search at the border is reasonable without individualized suspicion.
Note: The Court reserved the question of whether reasonable suspicion is required for forensic searches of cell phones at the border.<br>
slide16. Searches of Cell Phones at the Border Malik v. U.S. DHS, 78 F.4th 191 (5th Cir. 2023)
Malik, an attorney, returned to Dallas from an international trip. The Department of Homeland Security (DHS) diverted him to secondary screening after his name appeared in connection with an investigation involving an arms dealer. DHS seized Malik's phone, decrypted it, screened the files for privilege, searched the remaining files, and then returned the phone to Malik. The process took months.
Malik brought a civil action alleging that DHS’s warrantless seizure and search of his phone violated his constitutional rights.
Holding: The Court declined to determine whether the search was “routine” or “non-routine” because reasonable suspicion was present (i.e. the apparent connection between Malik and the international arms dealer with ties to the Dallas area).<br>
slide17. Searches of Cell Phones at the Border Forensic Searches (Circuit Split):
United States v. Touset, 890 F.3d 1227, 1231 (11th Cir. 2018)—”[T]he Fourth Amendment does not require any suspicion [even] for forensic searches of electronic devices at the border.”
United States v. Cano, 934 F.3d 1002, 1016 (9th Cir. 2019)—”[W]e hold that manual searches of cell phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell phone requires a showing of reasonable suspicion.”<br>
slide18. Geofence Warrants A geofence warrant (a/k/a reverse location warrant) is a search warrant that allows law enforcement to search a database to find all active mobile devices within a particular geofence area.
United States v. Chatrie, 107 F.4th 319, 339 (4th Cir. 2024) “[T]he government did not conduct a Fourth Amendment search when,” pursuant to a geofence warrant, “it accessed two hours’ worth of Chatrie’s location information that he voluntarily exposed to Google.”
En Banc Reh’g granted (Nov. 1, 2024)
United States v. Davis, 109 F.4th 1320 (11th Cir. 2024)—A defendant did not have standing to challenge a geofence warrant for his girlfriend's cell phone even though it may have given law enforcement some information about his movements in public places.<br>
slide19. Geofence Warrants United States v. Smith, 110 F.4th 817 (5th Cir. 2024)
Background: After a man who carried a cell phone robbed a postal worker in rural Mississippi, investigators obtained a Google “geofence” warrant for evidence of the robbery—a warrant directing Google to disclose specified location and identity information regarding users present in a specified place at a specified time. Pursuant to the warrant, Google disclosed a three-hour interval of location information about three individuals. Two were the robbers.
Holding: “We hold that the use of geofence warrants . . . is unconstitutional under the Fourth Amendment.” This was so because:
(1) the government “conduct[ed] a search when it sought Location History data from Google”; and
(2) “geofence warrants are general warrants categorically prohibited by the Fourth Amendment.”
The government has filed a petition for rehearing en banc; mandate stayed<br>
slide20. Looking Ahead Barnes v. Felix, No. 23-1239 (out of the Fifth Circuit)
Question Presented: Whether the reasonableness of force used by police, for purposes of the Fourth Amendment, should be assessed under a “totality of the circumstances” that considers officers’ actions leading up to the use of force or solely at “the moment of the threat” that directly precipitated the use of force.
Four circuits (including the Fifth Circuit) have adopted the “moment of the threat doctrine,” which evaluates the reasonableness of an officer’s actions in the window when the officer’s safety was threatened without regard to events that precede the moment of the threat.
Eight circuits have rejected that doctrine and follow the totality-of-the-circumstances approach.<br>
slide21. Expert Testimony and the Confrontation Clause<br>
slide22. Diaz v. United States, 144 S. Ct. 1727 (2024) Delilah Diaz was stopped at the U.S./Mexico border and was found to have just over 54 pounds of methamphetamine in hidden compartments in the car she was driving.
She went to trial on charges of knowing importation of drugs into the U.S., and she mounted a “blind mule” defense, disclaiming any knowledge that there were drugs in the car.
Over Diaz’s objection, a Homeland Security agent was allowed to testify as an expert that (1) drug-trafficking organizations generally do not entrust large quantities of drugs to people who are unaware they are transporting them and (2) most couriers know they are transporting drugs.<br>
slide23. Diaz v. United States, 144 S. Ct. 1727 (2024) Question Presented:
Does expert testimony like this run afoul of Fed. R. Evid. 704(b), which says that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense”?
Note: The Fifth Circuit had previously answered this question “Yes.” See United States v. Gutierrez-Farias, 294 F.3d 657, 663 (5th Cir. 2002).<br>
slide24. Diaz v. United States, 144 S. Ct. 1727 (2024) Held: NO (6-3, per JUSTICE THOMAS): Rule 704(b) applies only to opinions about the defendant; because the agent did not express an opinion about whether Diaz herself knowingly transported methamphetamine, his testimony did not violate Rule 704(b); the agent’s testimony that most couriers know what they are transporting did not necessarily establish that the Diaz knew what she was transporting
JUSTICE JACKSON concurring: Points out that this cuts both ways, and that defendants may present comparable expert testimony cutting against mens rea
JUSTICE GORSUCH, joined by JUSTICES SOTOMAYOR and KAGAN dissenting: This is slicing the baloney too thin; the agent’s testimony was the functional equivalent of saying that Diaz knew she was carrying drugs; but maybe district courts can use other Rules of Evidence to keep out evidence like this<br>
slide25. Smith v. Arizona, 144 S. Ct. 1785 (2024) Crawford v. Washington, 541 U.S. 36 (2004):
Under the Confrontation Clause of the Sixth Amendment, an out-of-court statement that is
(1) testimonial, and
(2) offered for the truth of the matter asserted,
generally may not be introduced at trial unless
(1) the declarant is unavailable and
(2) the defendant had a prior opportunity for cross-examination.<br>
slide26. Smith v. Arizona, 144 S. Ct. 1785 (2024) Smith was prosecuted for drug offenses.
Arizona Department of Public Safety (DPS) analyst Elizabeth Rast tested the drugs at issue in the case.
However, Rast stopped working at the DPS before Smith’s trial, so the State called forensic scientist Gregory Longoni as a substitute expert. Longoni reviewed Rast’s work and, based on her work, testified that the substances in question were in fact the charged drugs.
Smith objected that this procedure violated his constitutional right to confront Rast.
The Arizona Court of Appeals rejected the Confrontation Clause challenge, holding that Rast’s analysis was not offered for the truth of the matter asserted, but rather was offered only to show the basis of Longoni’s expert opinion.<br>
slide27. Smith v. Arizona, 144 S. Ct. 1785 (2024) Held (per JUSTICE KAGAN): When an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.
Here, Rast’s statements came in for their truth; all of Longoni’s opinions were predicated on the truth of Rast’s factual statements; but Rast could not be cross-examined about those statements.
Because the lower courts did not address the question whether Rast’s statements were also “testimonial” in the Confrontation Clause sense, the Court vacated the judgment and remanded for the Arizona Court of Appeals to address that question in the first instance.
The Confrontation Clause still allows substitute experts to testify from their personal knowledge of the lab’s procedures and forensic techniques or by answering hypothetical questions.<br>
slide28. Related Fifth Circuit Cases United States v. Rider, 94 F.4th 445 (5th Cir. 2024)—district court did not abuse its discretion in excluding, under Fed. R. Evid. 403, defense-proffered expert testimony in prosecution for production of child pornography
United States v. Foreman, 84 F.4th 615 (5th Cir. 2023)—admission of investigative report violated the Confrontation Clause and the rule against hearsay
United States v. Kersee, 86 F.4th 1095 (5th Cir. 2023)—finding violation of the qualified due-process right to confrontation in a supervised-release revocation hearing because no “good cause” justified disallowing confrontation<br>
slide29. Fraud andObstruction<br>
slide30. Fischer v. United States, 144 S. Ct. 2176 (2024) Background: Joseph Fisher was one of the people who invaded the U.S. Capitol on January 6, 2021. Besides entering the building, he was involved in a physical confrontation with law enforcement. He was charged under 18 U.S.C. § 1512(c)(2).
18 U.S.C. § 1512(c)
Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.<br>
slide31. Fischer v. United States, 144 S. Ct. 2176 (2024) Question Presented:
Whether 18 U.S.C. § 1512(c)(2), which prohibits corruptly obstructing an official proceeding, is limited to acts that impair the integrity of evidence for use in that proceeding.<br>
slide32. Fischer v. United States, 144 S. Ct. 2176 (2024) Decision: YES (6-3, per CHIEF JUSTICE ROBERTS)
Section 1512(c)(2) applies only when a defendant impairs (or attempts to impair) the integrity or availability for use in an official proceeding of records, documents, objects, or “other things used in the proceeding.” The scope of the obstruction prohibition following the word “otherwise” in § 1512(c)(2) is limited by the list of criminal violations in subsection (c)(1).
JUSTICE BARRETT dissented, joined by JUSTICES SOTOMAYOR and KAGAN

Note: The Fifth Circuit has already relied on Fischer to reverse a § 1512(c)(2) conviction. See United States v. DeBruhl-Daniels, ____ F.4th ____, 2024 WL 4471417 (5th Cir. Oct. 11, 2024).<br>
slide33. Snyder v. United States, 144 S. Ct. 1947 (2024) Background:
James Snyder, while the mayor of Portage, Indiana, accepted a $13,000 check from Peterbilt, allegedly as a gratuity for awarding a contract for trash trucks to Peterbilt. He was prosecuted under 18 U.S.C. § 666(a)(1)(B) for accepting an illegal gratuity.<br>
slide34. Snyder v. United States, 144 S. Ct. 1947 (2024) 18 U.S.C. 666(a)(1)(B)
(a) Whoever, if the circumstances described in section (b) of this section exists—
(1) Being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof– * * *
(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, any thing of value from any person, intending to be influenced or rewarded in connect with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more
* * *
Shall be fined under this title, imprisoned not more than 10 years, or both.<br>
slide35. Snyder v. United States, 144 S. Ct. 1947 (2024) Question Presented:
Does 18 U.S.C. § 666(a)(1)(B) apply to gratuities as well as bribes?<br>
slide36. Snyder v. United States, 144 S. Ct. 1947 (2024) Decision: NO (6-3, per JUSTICE KAVANAUGH)
18 U.S.C. § 666(a)(1)(B) prohibits accepting bribes (payments made or agreed to before an official action in order to influence the public official with respect to that action) but does not prohibit receiving gratuities (payments made as a reward or token of appreciation for official action, typically after the fact). The textual reference to “rewards” simply ensures that the statute reaches bribes offered before but paid after the relevant action.
JUSTICE JACKSON dissented, joined by JUSTICES SOTOMAYOR and KAGAN.
Note: This does not change the law in the Fifth Circuit, which had previously held the same way. See United States v. Hamilton, 46 F.4th 389, 397 (5th Cir. 2022).<br>
slide37. Looking Ahead Kousisis v. United States, No. 23-909 (OA 12/9/24)
Question Presented: Whether sufficient evidence supported petitioners’ convictions for conspiring to commit wire fraud, in violation of 18 U.S.C. §§ 343 and 1349, where they falsely certified compliance with a requirement that they subcontract to a disadvantaged business and, as a result, overcharged the government entity with which they contracted.
Thompson v. United States, No. 23-1095
Question Presented: Whether 18 U.S.C. § 1014, which prohibits making a “false statement” for the purpose of influencing certain financial institutions and federal agencies, also prohibits making a statement that is misleading but (arguably) not “false.”<br>
slide38. Sentencing<br>
slide39. Armed Career Criminal Act Erlinger v. United States, 144 S. Ct. 1840 (2024)
Background: The Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(1) (ACCA), provides for a minimum 15-year prison sentence where a felon possesses a firearm after three or more previous convictions for qualifying predicate offenses “committed on occasions different from one another”
18 U.S.C. § 924(e)(1)
In the case of a person who violates § 922(g) of this title and has three previous convictions by any court referred to in § 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years. * * *<br>
slide40. Armed Career Criminal Act Erlinger v. United States, 144 S. Ct. 1840 (2024)
Question Presented: Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were “committed on occasions different from one another” before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(1).
Decision:
YES; the Constitution requires that ACCA’s different occasions requirement be found by a jury, not a judge.
Because the factual finding that a defendant’s offenses occurred on at least three separate occasions has the effect of increasing both the maximum and minimum sentences he faces, it falls squarely within the jury-trial requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000).<br>
slide41. Armed Career Criminal Act Brown v. United States, 144 S. Ct. 1195 (2024)
Among the offenses that count as ACCA predicates are “serious drug offenses.” 18 U.S.C. § 924(e)(1); 18 U.S.C. § 924(e)(2)(A)(ii).
Under Shular v. United States, 140 S. Ct. 779 (2020), a predicate counts as a serious drug offense only if it involves a drug punishable under federal law.
Defendant Brown had Pennsylvania marijuana convictions that could have been for hemp; but Congress removed hemp from the drug schedules in 2018, after those convictions were sustained and after Brown’s federal offense.
Defendant Jackson had Florida cocaine convictions, but Congress removed a particular cocaine derivative from the drug schedules in 2015, before Jackson’s federal felon-in-possession offense.<br>
slide42. Armed Career Criminal Act Brown v. United States, 144 S. Ct. 1195 (2024)
Question Presented: Whether the classification of a prior state conviction as a “serious drug offense” under the ACCA depends on the federal controlled-substance schedules in effect at the time of the defendant’s prior state crime, the time of the federal offense for which he is being sentenced, or the time of his federal sentencing.
Decision:
A prior state conviction qualifies as an ACCA serious drug offense if the federal and state definitions of the relevant drug matched when the defendant committed the state crime.
Note: Already the rule in the Fifth Circuit. See United States v. Garza, 93 F.4th 913 (5th Cir. 2024)<br>
slide43. Looking Ahead (ACCA) Delligatti v. United States, No. 23-825 (OA 11/12/24)
Question Presented: Whether attempted murder, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. § 1959(a)(5), qualifies as a crime of violence under 18 U.S.C. § 924(c)(3).
Note: The Second Circuit held that the crime of attempted murder under New York law could count as a “crime of violence” under § 924(c), notwithstanding the fact that the crime could be committed by omissions as well as affirmative acts.<br>
slide44. First Step Act Pulsifer v. United States, 601 U.S. 124 (2024)
Background: The First Step Act of 2018 has a “safety valve” provision that allows defendants to avoid mandatory minimum sentences scattered throughout the federal criminal code. The safety valve requires the defendant to satisfy a laundry list of each of five separate rules. This case involved the first of those rules, which assesses the defendant’s criminal history.
Question Presented:
Whether, in order for a defendant to satisfy the prerequisite for “safety-valve” sentencing relief in 18 U.S.C. § 3553(f)(1), a court must find that the defendant does not have more than 4 criminal history points (excluding any criminal history points resulting from a 1-point offense); does not have a prior 3-point offense; and does not have a prior 2-point violent offense.<br>
slide45. First Step Act 18 U.S.C. 3553(f)
Notwithstanding any other provision of law, [for certain drug offenses], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines….<br>
slide46. First Step Act Pulsifer v. United States, 601 U.S. 124 (2024)
Decision:
To be eligible for safety-valve relief, a criminal defendant must meet all three criminal-history criteria listed in 18 U.S.C. § 3553(f)(1).
Pulsifer’s reading would (1) make subparagraph (f)(1)(A) superfluous and (2) allow relief to defendants with more serious records while barring relief to defendants with less serious records.
Note: Already the rule in the Fifth Circuit. See United States v. Palomares, 52 F.4th 640 (5th Cir. 2022).<br>
slide47. Looking Ahead (First Step Act) Hewitt v. United States, No. 23-1002
Question Presented: Whether Section 403 of the First Step Act of 2018, which reduced certain mandatory consecutive sentences under 18 U.S.C. § 924(c) for “any offense that was committed before the date of enactment of [the] Act, if a sentence for the offense has not been imposed as of such date,” applies at a defendant’s post-Act resentencing following the vacatur of the defendant’s pre-Act sentence.
Duffey v. United States, No. 23-1150 (out of the Fifth Circuit)
Question Presented: Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the act’s enactment, when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the act’s enactment.<br>
slide48. Pending Misc. Sentencing Cases United States v. Jean, 108 F.4th 275 (5th 2024)
Nonretroactive changes in the law can be considered as an extraordinary and compelling reason within the meaning of the compassionate-release statute, 18 U.S.C. § 3582(c)(1)(A).
En banc petition filed September 18, 2024; mandate stayed

Esteras v. United States, No. 23-7483
Question Presented: Whether, even though Congress excluded the sentencing factors listed in 18 U.S.C. § 3553(a)(2)(A) from 18 U.S.C. 3583(e)’s list of factors to consider when revoking supervised release, a district court may rely on the § 3553(a)(2)(A) factors when revoking supervised release.<br>
slide49. Miscellaneous<br>
slide50. Forfeiture McIntosh v. United States, 601 U.S. 330 (2024)
The federal criminal procedure rule generally requiring a district court to enter a preliminary order of forfeiture in advance of sentencing is a time-related directive that, if missed, does not deprive the judge of her power to order forfeiture against the defendant.
Culley v. Marshall, 601 U.S. 377 (2024)
In cases involving civil forfeiture of personal property, due process requires timely forfeiture hearing but does not require separate preliminary hearing.<br>
slide51. Statute of Limitations United States v. Plezia, 115 F.4th 379 (5th Cir. 2024)
Statute of limitations not equitably tolled due to COVID pandemic.

United States v. Boswell, 109 F.4th 368 (5th Cir. 2024)
Statute of limitations not tolled where government lacked legitimate reasons for sealing the indictment.<br>
slide52. Additional Upcoming Supreme Court Cases State Capital Cases
Glossip v. Oklahoma, No. 22-7466—Brady and Napue claims in a capital case (OA 10/9/24)
Gutierrez v. Saenz, No. 23-7809—Standing to challenge state law on postconviction DNA testing (Fifth Circuit / Texas death penalty case)
Civil Cases with Potential Criminal Spillover
Garland v. VanDerStok, No. 23-852—Concerns the validity of an ATF rule regulating privately made firearms—also known colloquially as “ghost guns” (OA 10/8/24)
Hungary v. Simon, No. 23-867—Multiple questions related to foreign sovereign immunity; the most pertinent is how the commingling of assets over time affects the determination whether the sought-after assets are traceable to stolen property (OA 12/3/24)
Free Speech Coalition v. Paxton, No. 23-1122 —First Amendment scrutiny of law regulating adult pornography
Smith & Wesson v. Estados Unidos Mexicanos, No. 23-1141—Aiding-and abetting liability of gunmakers for cross-border firearm trafficking<br>
slide53. Questions?<br>