CRIMINAL PROCEDURE
by Timothy W. Floyd*
I.
II.
INTRODUCTION.. ••••• .•.•••.•. .•.•. .••••.•. ..••.•. .. ...••• ••• ••.•. .
FOURTH AMENDMENT............................................
A. Rule 41......
B. Consent to Search.........................................
C. Good Faith Exception to Exclusionary Rule......
D. Inventory Searches
E. Standing to Assert a Fourth Amendment
Challenge. ....................................................
III.
SENTENCING GUIDELINES .••...•.......•.....•......•..••....•..
A. Introduction.... ..... ... .. .. ...... .. ... ... .... ... ... ..... ... .
B. Enhancement for Organizing or Leading Criminal
Activity.......................................................
C. Acceptance of Responsibility...........................
D. "Double Counting" Under the Guidelines.........
E. Permissible and Impermissible Considerations in
Sentencing.
.
..
.. ..
IV.
V.
FEDERAL RULE OF CRIMINAL PROCEDURE 11
MISCELLANEOUS CASES..........................................
A. Attorney Subpoenas
B. Presumption of Vindictiveness in Resentencing...
C. Special Prosecutors........................................
I.
205
206
206
208
209
210
212
215
215
217
222
224
227
230
234
234
238
239
INTRODUCTION
The criminal caseload of the Fifth Circuit continues to be
enormous. This survey of the Fifth Circuit's work in the area of
criminal procedure will not attempt to discuss every issue decided by
the court during the survey period. Indeed, the selection of issues
and cases for discussion may be said to be idiosyricratic. The issues
discussed, however, are not of academic interest only. I have chosen
to focus on discrete areas in which an analysis of the court's decisions
• Associate Professor of Law, Texas Tech University; B.A., Emory University, 1977;
M.A., 1977; J.D., University of Georgia, 1980.
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may give some guidance to trial judges, prosecutors, and defense
lawyers.
II.
FOURTH AMENDMENT
As usual, the court faced numerous arguments based on the
fourth amendment. I Drug cases, of course, account for the bulk of
fourth amendment challenges. Contrary to popular opinion, however,
few challenges based on the fourth amendment succeed. 2 Many
possible hurdles exist for the accused who challenges the legality of
a search or seizure. J I will discuss exemplary cases on the doctrines
of standing, good faith exception to the exclusionary rule, and
inventory searches. I will first discuss two cases in which the en banc
court overruled previous fourth amendment law in the circuit. 4
A.
Rule 41
In United States v. McKeever,s the issue was the applicability of
Federal Rule of Criminal Procedure 41 to state search warrants when
federal officers participate in the search and the fruits of that search
are offered in a federal prosecution. 6 Rule 41 provided: "A search
warrant authorized by this rule may be issued by a federal magistrate
or a judge of a state court of record within the district wherein the
property or person sought is located, upon request of a federal law
enforcement officer or an attorney for the government."7 The Fifth
I. See infra notes 5-32 and accompanying text.
2. See Charles P. Bubany, Criminal Law and Procedure, Survey of Fith Circuit, 21 TEX.
TECH L. REV. 209, 219 (1990).
3. This article will discuss four such hurdles facing criminal defendants bringing fourth
amendment challenges: I) a finding of effective consent to be searched, see infra notes 24-32
and accompanying text; 2) application of the good faith exception to the exclusionary rule,
see infra notes 33-48 and accompanying text; 3) a finding of a valid inventory search, see
infra notes 49-71 and accompanying text; and 4) lack of standing, see infra notes 72-103 and
accompanying text.
4. United States v. Hurtado, 904 F.2d 74 (5th Cir. July 1990); United States v. McKeever,
905 F.2d 829 (5th Cir. June 1990); see infra notes 5-103 and accompanying text.
5. 905 F.2d 829 (5th Cir. June 1990).
6. [d. at 830.
7. Fed. R. Crim. P. 41(a) (1989). This rule was amended in December 1990 and now
reads as follows:
Upon the request of a federal law enforcement officer or an attorney for the
government, a search warrant authorized by this rule may be issued (I) by a federal
magistrate, or a state court of record within the federal district, for a search of
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Circuit held, in Navarro v. United State~ and United States v.
Sellers, 9 that the requirement of Rule 41(a) that a court of record
must issue a search warrant applies even when a federal search is
executed under the authority of a state warrant. 10
In McKeever, a sheriff obtained a search warrant for the defendants' residence from a municipal judge who was not a judge of a
court of record." After executing the warrant and arresting the
defendants on drug charges, the sheriff called in the Drug Enforcement Agency (DEA).12 The defendants were then prosecuted in federal
court based upon the items seized in the search of their residence. 13
The defendants filed a motion to suppress the evidence, which was
denied. 14 Before the Fifth Circuit the government admitted that the
judge who issued the search warrant was not a judge of a court of
record and also agreed that the search was federal but under a state
rather than a federal warrant. IS A panel of the Fifth Circuit, concluding that it was bound by Navarro and Sellers, reluctantly reversed
the denial of the motion to suppress. 16
The en banc court granted rehearing. l ? The Fifth Circuit declined
the government's suggestion that Navarro was incorrectly decided. 18
Instead, the court relied upon a 1972 amendment to Rule 41(a).19
That amendment provided that "a search warrant may be issued
only upon the request of a federal law enforcement officer or an
attorney for the government."20 The court held that the 1972 amend-
property or for a person within the district and (2) by a federal magistrate for a
search of property or for a person either within or outside the district if the property
or person is within the district when the warrant is sought but might move outside
the district before the warrant is executed.
FED. R. CRIM. P. 41(a) (as amended in 1990).
8. 400 F.2d 315 (5th Cir. 1968).
9. 483 F.2d 37 (5th Cir. 1973).
10. See id. at 43; 400 F.2d at 319.
11. United States v. McKeever, 905 F.2d 829, 830 (5th Cir. June 1990).
12.
13.
14.
15.
[d.
[d.
[d.
[d. at 830-31.
16. See United States v. McKeever, 894 F.2d 712, 714-16 (5th Cir. 1990), rev'd, 905 F.2d
829 (5th Cir. June 1990).
17. 905 F.2d at 830.
18. See id. at 832.
19. See id.
20. [d. (quoting FED. R. CRIM. P. 41 advisory committee's note on 1972 amendment).
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ment reflected a Congressional intent that none of Rule 41's requirements would apply to state warrants. 21 Accordingly, the court
concluded that amended Rule 41 had no applicability to the state
warrant issued by a state judge. 22 Thus, the law in the Fifth Circuit
is now clear that the "court of record" requirement of Federal Rule
of Criminal Procedure 41 does not apply to state warrants, even
when federal officers participate in the search and the fruits of that
search are offered in federal prosecution. 23
B. Consent to Search
Before this past year, Fifth Circuit cases had held that the
government was required to establish the voluntariness of consent to
searches by clear and convincing evidence. 24 In United States v.
Hurtado,25 another en banc case overruling circuit precedent, the
court held that the appropriate standard of proof on the issue of the
voluntariness of an individual's consent to a search is proof by
preponderance of the evidence. 26 The full court explained that various
United States Supreme Court decisions since 1972 made clear that
the preponderance of the evidence standard is the appropriate burden
on a motion to suppress in various contexts, including cases involving
the voluntariness of a confession,27 the inevitable discovery of evidence,28 the waiver of Miranda rights,29 and even the voluntariness
of consent to warrantless searches. 30 Accordingly, the Fifth Circuit
overruled its previous decisions requiring the government at a suppression hearing to prove voluntariness by. clear and convincing
evidence. 31 The standard is now proof by a preponderance of the
evidence. 32
21. [d.
22. [d. at 833.
23. The court did carefully note that there was no issue of collusion between state and
federal officers in procuring the warrant to avoid the requirements of Rule 41. [d. Presumably,
those circumstances would raise different considerations.
24. See, e.g., United States v. Gonzalez, 842 F.2d 748, 7S4 (Sth Cir. 1988), overruled by,
United States v. Hurtado, 90S F.2d 74 (Sth Cir. July 1990).
2S. 90S F.2d 74 (Sth Cir. July 1990).
26. [d. at 76.
27. [d. (citing Lego v. Twomey, 404 U.S. 477, 489 (1972».
28. [d. (citing Nix v. Williams, 467 U.S. 431, 444 n.S (1984».
29. [d. (citing Colorado v. Connelley, 479 U.S.lS7, 168 (1986».
30. [d. (citing United States v. Matlock, 41S U.S. 164, 177 n.14 (1974».
31. [d.
32. See id.
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209
Good Faith Exception to Exclusionary Rule
In a third en banc opinion on the Fourth Amendment, the court
considered the nature of the good faith exception to the exclusionary
rule for warrantless searches. 33 In United States v. De Leon-Reyna,34
a panel of the Fifth Circuit affirmed a district court's grant of a
defendant's motion to suppress evidence gathered following a warrantless investigatory stop.3' A border patrol agent stopped a pickup
truck after being told by his dispatcher that the license plate was
registered to a truck of a different year, make, and type. 36 As it
turned out, the dispatcher misunderstood the agent when he called
in the license plate, and in fact the pickup truck's registration was
perfectly proper.37 As a result of this stop, the border patrol agents
ultimately discovered over a half of a ton of cocaine in a false
compartment underneath the bed of the pickup truck. 38
The district court granted a motion to suppress on the ground
that " 'the [g]overnment cannot justify a stop based on erroneous
information when the error is due to the negligence of its own
employees.' "39 Once the putative false registration was removed from
the picture, the remaining circumstances did not justify a stop.4O The
district court did not question the good faith of the officer, but held
that the officer was negligent when he used letters rather than code
names in calling in the license plate number.41 Emphasizing that a
good faith belief must be reasonable for the exception to the exclusionary rule to apply, the Fifth Circuit panel affirmed the grant of
the motion to suppress. 42
The en banc court reversed the panel opinion and reversed the
district court's grant of the motion to suppress.43 The en banc court
concluded that regardless of whether the agent was negligent in failing
33. See United States v. De Leon-Reyna, 930 F.2d 396, 399-401 (5th Cir. Apr. 1991) (per
curiam).
34. 898 F.2d 486 (5th Cir. 1989), rev'd, 930 F.2d 396 (5th Cir. Apr. 1991).
35. 898 F.2d at 492.
36. [d. at 487-88.
37. [d.
38. [d. at 488.
39. [d.
40. [d.
41.
42.
43.
[d.
[d. at 492.
United States v. De Leon-Reyna, 930 F.2d 396, 397 (5thCir. Apr. 1991) (per curiam).
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to .follow his unit's policy on calling in license numbers, he did rely
in good faith on the license report information. 44 The court held that
under the totality of the facts and circumstances, an objective officer
in the same situation as this agent could have reasonably relied on
the license plate report information. 45 Accordingly, although the
license plate information turned out to be erroneous, it nevertheless
should be considered in determining the objective reasonableness of
the officer. 46 The majority of the en banc court declined to hold, as
the panel had, that negligent conduct by the arresting officer. may
never be "objectively reasonable. "47
In establishing the good faith exception to the exclusionary rule,
the Supreme Court made clear that subjective good faith would not
be sufficient; the officer's conduct must be "objectively reasonable."48 In. its zeal to reverse the grant of the suppression motion in
DeLeon-Reyna, the Fifth Circuit has greatly broadened the scope of
the good faith exception. In applying the exception to negligent
conduct, the court has opened the door to authorizing searches based
solely on the subjective good faith of individual officers.
D.
Inventory Searches
Another area of fourth amendment law worth noting is the
subject of inventory searches. Inventory searches are a "well-defined
exception" to the warrant requirement of the fourth amendment. 49
However, one may question whether or not it is in fact well-defined.
As noted by the Fifth Circuit in a previous case, "[a]n inventory of
an automobile's contents protects the owner's personal property while
it is in police custody; and reciprocally protects the police against
unfounded claims of lost, stolen, or damaged property."50 However,
because they are an exception to the general requirement for a
warrant, inventory searches should not be "a ruse for a general
rummaging in order to discover incriminating evidence. "51 The key
44.
[d. at 399.
45.
[d. at 400.
46.
47.
[d.
[d. at 400-01.
48.
49.
50.
51.
United States v. Leon, 468 U.S. 1250 (1984).
Colorado v. Bertine, 479 U.S. 367, 371 (1987).
United States v. Judge, 864 F.2d 1144, 1144-45 (5th Cir. 1989).
Florida v. Wells, 110 S. Ct. 1632, 1635 (1990).
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to valid inventory searches, therefore, is that an established procedure
exist to guide police officers in making inventory searches. 52 The
Supreme Court cases consistently emphasize that inventories must be
conducted according to standardized criteria.53
In United States v. Hahn,54 the trial court denied the defendant's
motion to suppress evidence discovered in the course of an inventory
search of his vehicle conducted by Internal Revenue Service agents,ss
The defendant was arrested in Midland, Texas, by Internal Revenue
agents after he jumped bail on a tax evasion charge pending in
California.56 The agents did not conduct a search of the vehicle at
the time and the vehicle was impounded and taken to a private lot. 57
During a court appearance the next day, the defendant indicated that
he had a substantial sum of money in the vehicle that could be used
to pay an attorney.58 When the prosecutor learned that the vehicle
was not in police custody but was on a private lot, he urged the
Internal Revenue agents to inventory the defendant's vehicle. 59 Four
agents then went to the lot and performed a thorough inventory
search. 60 The district court denied the defendant's suppression motion,
finding the search had been conducted in conformity with the Midland Police Department's inventory policy.61
The Fifth Circuit, however, held that the warrantless search was
conducted in the entire absence of standardized procedures. 62 Noting
the absence of any Internal Revenue Service procedures for inventory
searches, and the lack of evidence that the Internal Revenue agents
were aware of the Midland, or any other, police department procedures when conducting the search,· or that they conducted the search
on behalf of, or even with the knowledge of, the Midland Police
Department, the court could not validate the search as an inventory.63
52.
See 110 S. Ct. at 1635.
53.
See 110 S. Ct. at 1634-35.
54.
55.
56.
57.
58.
59.
60.
61.
922 F.2d 243 (5th Cir. Jan. 1991).
[d. at 245.
[d. at 243-44.
[d. at 244.
See id.
[d.
[d.
[d. at 245.
See id. at 247.
See id. at 246-47.
62.
63.
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The Fifth Circuit considered itself bound by Florida v. Wells,64 in
which the Supreme Court emphasized that standardized criteria or
established routine must regulate inventory searches. 65
By contrast, United States v. Walker«' shows that inventory
searches can still pass constitutional muster fairly easily in the Fifth
Circuit.67 Although an established policy regulating inventory searches
must exist, that policy need not be in writing. 68 In Walker, the
defendant contended on appeal that the search of his vehicle, although claimed to be conducted as part of a valid inventory, was in
fact conducted for the sole purpose of investigating suspected criminal
activity.69 The Fifth Circuit rejected that argument, holding that the
district court made specific factual findings that the police department
had an established, unwritten, standardized inventory policy and that
the officers were familiar with it.70 Emphasizing that a department
inventory policy need not be written, the Fifth Circuit found that
the record provided ample support for the district court's factual
findings. 71
E.
Standing to Assert a Fourth Amendment Challenge
The Fifth Circuit frequently found that a defendant lacked
standing to raise a fourth amendment challenge to a search, thus
obviating the need to determine whether· the search in question
violated the constitution. 72 United States v. Boruff'3 is a good example
64.
495 U.S. 1 (1990).
65.
See 922 F.2d at 247 (citing Florida v. Wells, 110 S. Ct. 1632, 1635 (1990».
66. 931 F.2d 1066 (5th Cir. May 1991).
67. See id. at 1068-69.
68. See id. at 1069.
69. [d. at 1067.
70. [d. at 1068-69.
71. [d.
72. See, e.g., United States v. Greer, 939 F.2d 1076, 1093 (5th Cir. Aug. 1991) (holding
that mere passengers in vehicle have no standing to complain that their fourth amendment
rights were violated by search of vehicle); United States v. Boruff, 909 F.2d III (5th Cir. July
1990), cert. denied, III S. Ct. 1620 (1991) (holding defendant had no standing to challenge
search of truck from which he had completely disassociated himself, or car which was rented
to his girlfriend); see also United States v. Lanford, 838 F.2d 1351, 1353 (5th Cir. 1988)
(holding possessor of stolen vehicle has no standing under fourth amendment). But see United
States v. Maestas, 941 F.2d 273, 276 n.2 (5th Cir. Aug. 1991) (stating that lack of standing
does not affect court's ability to decide fourth amendment challenge).
73. 909 F.2d III (5th Cir. July 1990), cert. denied, III S. Ct. 1620 (1991).
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of the doctrine of standing in fourth amendment cases. In Boruff,
the defendant, Boruff, purchased a new truck to use in a drugsmuggling operation from the Mexican border into Texas. 74 Boruff
used his own funds to purchase the truck, but placed the title,
registration, and insurance in the name of a confederate. 7s Boruff
and the confederate agreed that if the truck were ever sold, Boruff,
rather than the confederate, would receive the money. 76 Thereafter,
Boruff arranged to have his girlfriend rent a car for him which he
planned to use in the smuggling operation. 77 The girlfriend signed
the rental agreement and then turned the rented car over to Boruff.78
The rental agreement, signed by the girlfriend, provided that only
she would drive the car and that the car would not be used for any
illegal purpose. 79
Boruff and his confederate drove the truck and the car to the
Mexican border to pick up the marijuana. 80 Boruff drove the car
and his friend drove the truck. They maintained contact by citizen's
band (CB) radio. 81 On the return trip, border patrol agents stopped
both the truck and the rental car because they fit a "smuggler"
pattern common to the area. 82 Agents discovered 591 pounds of
marijuana in the back of the truck. 83 The car contained a CB radio
and antenna, cash and a walkie-talkie identical to one· recovered
from the truck. 84
Boruff was indicted on drug and conspiracy charges. 8s He moved
to suppress the evidence on the ground that the search of the pickup
truck and of the car took place without a warrant and without
reasonable suspicion, in violation of the fourth amendment. 86 The
district court denied the motion to suppress on the ground that
Boruff had no legitimate expectation of privacy in either the pickup
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
at 113.
at 113-14.
a1 114.
at 115.
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truck or the rental car and, therefore, lacked standing to challenge
the searches. 87
On appeal, the Fifth Circuit affirmed. 88 The court concluded
first that Boruff had no legitimate expectation of privacy in the
pickup truck. 89 Although he asserted an ownership interest, he had
also done everything he could do to disassociate himself from the
truck in the event it was stopped by law enforcement officials. 90 As
the court stated, his actions clearly demonstrated an intention "to
leave any privacy expectation to Taylor," the confederate in whose
name the truck had been placed. 91
The court found its previous decision in United State v. Dotson 92
clearly distinguishable. 93 In the Dotson case, the defendant loaned
his car to a friend for a brief time to be washed. 94 Police stopped
the friend for speeding, searched the trunk, and found drug-related
evidence. 9s The court held that Dotson had standing to challenge the
search on the ground that he had not given up his expectation of
privacy in the car by temporarily loaning it. 96 In Boruff, by contrast,
the court noted tha~ the defendant did much more than loan the
truck to a friend for a brief period of time. 97 As the court stated,
"he completely disassociated himself from the truck both legally and
factually for the express purpose of avoiding detection. "98
As to the rental car, the court relied upon the express terms of
the rental agreement. 99 Under that agreement, the girlfriend was the
only legal operator of the vehicle, and she had no authority to give
control of the car to Boruff. 100 The rental agreement also prohibited
any use of the vehicle for illegal purposes. IOI Thus, Boruff also had
87.
88.
89.
90.
91.
92.
1987).
93.
94.
95.
96.
97.
98.
99.
100.
101.
[d.
[d. at 113.
[d. at 116.
[d.
[d.
United States v. Dotson, 817 F.2d 1127 (5th Cir.), modified, 821 F.2d 1034 (5th Cir.
909 F.2d at 116.
817 F.2d at 1134.
[d.
[d. at 1135.
909 F.2d at 116.
[d.
[d. at 117.
[d.
[d.
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no legitimate expectation of privacy in the rental car .102 This case
probably does not announce new law for the benefit of lawyers and
judges. Nevertheless, the case is instructive as to how the doctrine
of standing can thwart a criminal defendant's ability to challenge the
legality of a search. 103 In addition, the case probably does give
guidance to drug smugglers: placing vehicles and other property in
other peoples' names to avoid detection may not be such a good
idea.
III.
SENTENCING GUIDELINES
A.
Introduction
Since the promulgation of the Sentencing Guidelines, which
became effective on November 1, 1987, much of the criminal caseload
in the federal circuit courts consists of the review of sentences under
the guidelines. The Sentencing Reform Act of 1984, title 2 of the
Comprehensive Crime Control Act of 1984,104 abolished parole for
federal prisoners and provided for the establishment of the United
States Sentencing Commission which was charged with the responsibility to develop guidelines in federal sentencing. lOS The guidelines
apply to all offenses committed on or after the effective date. 106
The guidelines require the sentencing court to engage in a threestep process,l07 First, the court must determine the appropriate "base
offense level," which is derived from a list in chapter 2 of the
guidelines. lOS This list contains approximately ninety percent of all
federal offenses. I09 This base level is adjusted upward or downward
depending on specified offense characteristics listed in chapter 2, and
also is adjusted upward or downward based on considerations related
102. [d.
103. See id. at 116-17.
104. 28 U.S.C. § 994 (1988).
105. United States v. Mejia-Orosco, 867 F.2d 216, 218-19 (5th Cir. 1989); see 28 U.S.C.
§ 994(a)(I) (1988).
106. United States Sentencing Comm'n, Guidelines Manual, § IA2 (Nov. 1990) [hereinafter
U.S.S.G.).
107. See 867 F.2d at 219-20. See generally Bubany, supra note 2, at 211-18 (outlining the
process for determining sentences under the guidelines).
108. U.S.S.G., supra note 106, § IBI.I(b); see 867 F.2d at 219.
109. Bubany, supra note 2, at 212.
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to the victim, the role of the defendant, and the obstruction of
justice as indicated in chapter 3 of the guidelines. IIO The court may
also apply a downward adjustment as appropriate for the defendant's
acceptance of responsibility.1II Second, the sentencing court must
determine the defendant's criminal history category as specified in
chapter 4 of the guidelines. 1I2 The defendant is placed in one of six
criminal history categories based on a point scale in which points
are assigned based on the seriousness, frequency, and recency of
previous criminal convictions. 1I3 Finally, the court must calculate a
sentencing range from a table of minimum and maximum sentences
by cross-referencing the offense level with the criminal history}14 The
cross-referencing table is contained in chapter 5 of the guidelines. liS
The sentencing range at each level is set so that the maximum sentence
exceeds the minimum sentence by the greater of twenty-five percent
or six months. 116
The vast majority of sentences reviewed by the Fifth Circuit
were affirmed. 1I1 This fact indicates a general unwillingness by the
court to second-guess sentencing courts. liS The case results may also
indicate that since the effective date of the guidelines many of the
uncertainties under the new scheme have been resolved. 1I9 Sentencing
courts are inevitably becoming more adept at sentencing properly
under the guidelines. l20
In addition, obtaining reversal is difficult for several reasons
related to the standard of review. 121 Findings of fact on which the
sentence is based must be affirmed unless "clearly erroneous." 122
Moreover, a sentence outside the appropriate range indicated in the
guidelines will be reversed only if it is "unreasonable." 123 On the
See U.S.S.G., supra note 106, § 181.1 (b), (c); 867 F.2d at 219.
See U.S.S.G., supra note 106, § 181.1(e); 867 F.2d at 219.
112. See U.S.S.G., supra note 106, § 181.1(1); 867 F.2d at 219.
113. See U.S.S.G., supra note 106, § 4Al.l; 867 F.2d at 219.
114. See U.S.S.G., supra note 106, § 181.1(g); 867 F.2d at 219.
liS. See U.S.S.G., supra note 106, § SA; 867 F.2d at 219.
116. 8ubany, supra note 2, at 212; see 867 F.2d at 219.
117. See, e.g., United States v. Hooten, 942 F.2d 878, 883 (Sth Cir. Sept. 1991); United
Stated v. Allibhai, 939 F.2d 244, 2S3 (5th Cir. Aug. 1991); United States v. Parks, 924 F.2d
68, 74 (5th Cir. Feb 1991); United States v. Rocha, 916 F.2d 219, 244 (5th Cir. Oct. 1990).
118. See infra notes 121-23 and accompanying text..
119. See Alan N. Greenspan, Criminal Law, Survey of Fifth Circuit, 22 TEX. TECH L.
REV. 463, 481 (1991).
110.
111.
120.
ld.
121.
122.
123.
See United States v. 8uenrosto, 868 F.2d 135, 136-37 (5th Cir. 1989).
United States v. Sarasti, 869 F.2d 80S, 806 (5th Cir. 1989).
868 F.2d at 136.
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other hand, misapplication of the guidelines by the sentencing court
is considered an error of law which is reviewed de novo by the
appellate court. l24 The appellate court, however, lacks authority to
. correct legally defective sentences on appeal. 12S If the sentencing court
misapplies the guidelines, the appellate court must remand the case
for resentencing. 126
As noted above, however, the law in the Fifth Circuit is becoming
relatively settled as to most questions regarding application of the
guidelines. Given these standards of review, one should not be
surprised that sentences are generally affirmed on appeal. In a few
areas, however, the Fifth Circuit did give guidance to sentencing
courts where there was some uncertainty. Discussion of those areas
follows. 127
B.
Enhancement for Organizing or Leading Criminal Activity
One area of uncertainty is the requirement in section 3Bl.l of
the Sentencing Guidelines that the base offense level be adjusted
upward based on the defendant's role in the offense. 128 Section 3Bl.l
provides that if the defendant was "an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive," the base offense level should be increased by
four levels}29 If the defendant was a "manager or supervisor," but
not an organizer or leader, and "the criminal activity involved five
or more participants or was otherwise extensive," the level should
be increased by three. 130 "If the defendant was an organizer, leader,
manager, or supervisor in any criminal activity" other than described
above, the level should be increased by two. 131 In several cases during
the survey period, the court struggled with the proper interpretation
of these provisions. 132
Two lines of authority have developed within the circuit concerning the scope of the "offense" and the "criminal activity" for
124.
125.
126.
127.
128.
129.
130.
131.
132.
See United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).
See United States v. Stephenson, 887 F.2d 57, 62 (5th Cir. 1989).
[d. (citing 18 U.S.C. § 3742(f)(1) (1988».
See infra notes 128-91 and accompanying text.
U.S.S.G., supra note 106, § 3BI.1.
[d. § 3BI.I(a).
[d. § 3BI.I(b).
[d. § 3BI.I(c).
See infra notes 133-91 and accompanying text.
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purposes of this provision of the guidelines. 133 In United States v.
Barbontin,134 the sentencing court enhanced by four levels the base
offense under 3Bl.l(a).13S Evidence existed that the defendant was a
leader in a cocaine distribution ring that included at least ten persons. 136 At sentencing, ho~ever, the government failed to show that
five or more of the persons in the ring were involved in the actual
transaction leading to the defendant's indictment and guilty plea. 137
Because the sentencing court failed to make this specific finding, the
Fifth Circuit reversed the sentence. 13S In so holding, the Fifth Circuit
stated that a section 3Bl.l(a) adjustment must be "anchored to the
transaction leading to the conviction. "139 Thus, the sentencing court
is not at liberty to include members of the defendant's organization
who were not involved in the transaction leading to conviction. l40
The court vacated the sentence and remanded for resentencing. 141
The court followed this reasoning in United States v. Mourning. 142 The defendant entered a guilty plea to money laundering in
exchange for dismissal of a drug conspiracy charge arising out of a
plan to use the laundered money to purchase drugs for distribution. 143
The sentencing court increased the base offense level because of the
defendant's leadership role in the conspiracy.l44 Relying on Barbontin,
the Fifth Circuit reversed the sentence, holding· that the sentencing
judge erroneously considered the defendant's role in activities not
related to the money laundering conviction. 14s
The second line of authority began in United States v. Manthei,l46
in which the Fifth Circuit also considered the scope of Section 3Bl.l(a)
of the sentencing guidelines. 147 The district court in that case increased
q3.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
See infra notes 134-91 and accompanying text.
907 F.2d 1494 (5th Cir. July 1990).
[d. at 1496.
[d. at 1496 n.1.
[d. at 1497.
[d. at 1498.
[d.
[d.
[d. at 1499.
914 F.2d 699 (5th Cir. Oct. 1990).
[d. at 702.
[d. at 704.
[d. at 704-05.
913 F.2d 1130 (5th Cir. Sept. 1990).
See id. at 1131.
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CRIMINAL PROCEDURE
219
the defendant's sentence based on her being an organizer or leader
of criminal activity even though the defendant, who was involved in
the manufacture and distribution of methamphetamine, was convicted
only for the sale of methamphetamine to one individual. 148
The Fifth Circuit rejected an argument that the sentencing court
could consider only the offense charged, the single sale of methamphetamine. 149 The court noted that section 3B1.I addresses a leadership
role in "criminal activity," and not simply in the specific offense
charged. ISO Moreover, the section takes into account and includes
"participants," which is defined as those persons who are " 'criminally responsible for the comrnission of the offense, but need not
have been convicted.' "lSI Thus, because the guidelines do not require
that a person be charged in the offense of conviction to be considered
a participant, the scope of the section 3B1.I(a) offense must necessarily
be wider than the actual offense charged. 1S2 The court asserted that
its holding was not inconsistent with Barbontin, but was in fact an
application of the Barbontin holding that the adjustment must be
" 'anchored to the transaction leading to the conviction.' "IS3 Accordingly, the Fifth Circuit determined that the sentencing court
could properly look to the activities and persons that led directly to
the final distribution of amphetamine. ls4
In United States v. Villarreal lss the court affirmed a two-level
upward adjustment of the base offense under the federal sentencing
guidelines for the defendant's leadership role in a uncharged but
interdependent plan to buy marijuana. ls6 The court noted that section
3Bl.l(c) of the guidelines requires "a two-level 'increase if the
defendant was an organizer, leader, manager, or supervisor in any
criminal activity' that involved less than five participants."ls7 On
appeal, the defendant contended that the findings of the sentencing
judge were based on the defendant's involvement in an aborted plan
148. [d. at 1132-33.
149. See id. at 1135-36.
150. [d. at 1134·35 (quoting U.S.S.G., supra note 106, § 3BI.1(b».
151. [d. at 1135-36 (quoting U.S.S.G., supra note 106, § 3B1.1(b».
152. See id. at 1136.
153. [d. (quoting United States v. Barbontin, 907 F.2d 1494, 1498 (5th Cir. July 1990».
154. [d. at 1136-37.
155. 920 F.2d 1218 (5th Cir. Jan. 1991).
156. [d. at 1222-24.
157. [d. at 1222 (quoting V.S.S.G., supra note 106, § 3B1.1 (c».
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to buy marijuana rather than the cocaine transaction to which he
pleaded guilty.ls8 The purported purchaser of the cocaine was in fact
an undercover federal narcotics agent. IS9 The defendant negotiated a
deal in which he and some associates would purchase several hundred .
pounds of marijuana, and the agent would, at the same time and
place, purchase two to three kilos of cocaine from the defendant. 160
A week after the meeting with the federal agent, the defendant
viewed the marijuana which the .agent had warehoused at a commercial storage facility. 161 A few days later, the defendant told the
agent that the cocaine and money for the marijuana were available
at his apartment and that he and his associates would be waiting
there. l62 At the last minute, the defendant called off the deal when
one of his associates recognized the police informer who was assisting
the undercover agent. 163 The defendant and his associates were arrested while attempting to flee. l64
The defendant ultimately entered a guilty plea to one count of
possession of cocaine with intent to distribute, and all of the other
charges were dismissed in exchange for the plea. l65 The sentencing
judge found that the defendant's leadership role in the crime warranted a two-level upward adjustment in his base offense level under
section 3Bl.l(c) of the sentencing guidelines. l66 On appeal, the defendant argued that section 3Bl.l only applies when the defendant has
a leadership role in the specific offense for which he is convicted. 161
No evidence existed to indicate that the defendant's associates were
involved in anything more than purchasing the agent's marijuana. l68
The defendant argued, therefore, that since he was not convicted of
conspiracy to purchase marijuana, his supervisory role in the marijuana scheme should not have been considered. 169
158. [d.
159. [d. at 1219.
160. [d. at 1219-20.
161. [d. at 1220.
162.
163.
164.
165.
166.
because
167.
[d.
[d.
[d.
[d.
[d. The judge also made an additional two-level upward adjustment under § 2Dl.l(b)(l)
the defendant possessed a firearm during the commission of the offense. [d.
[d. at 1222;
168. [d. at 1223.
169. [d. at 1222.
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The Fifth Circuit rejected this argument. 170 Although the court
conceded that the term "offense" means the charged offense, the
court also emphasized that the charged offense includes consideration
of related activities and participants who are not necessarily involved
in the elements of the offense of conviction. 171 The court stated that
the marijuana negotiations carried out by the defendant "formed an
inseparable part of the underlying cocaine distribution offense."I72
Moreover, without the marijuana transaction, the cocaine transaction
for which the defendant was convicted could not have succeeded. 173
Accordingly, the court held that the marijuana transaction and the
cocaine transaction were properly considered as one transaction for
the purpose of applying the enhancement provision. 174
The court distinguished United States v. Mourning,m on the
ground that in Mourning the money laundering activity for which
the defendant pleaded guilty occurred three months before the events
surrounding the drug conspiracy.176 Furthermore, the court noted that
the money laundering occurred at the Mexican border, while the drug
conspiracy occurred in Texas. 177 Thus, the two transactions in Mourning were remote from each other in location and in time and "only
loosely linked together in a chain of criminal activity."178 On the
other hand, in Villarreal both the cocaine transaction and the marijuana transaction constituted part of one deal which the defendant
had put together and scheduled to occur simultaneously at the same
location.179
In a subsequent case, the Fifth Circuit acknowledged the apparent inconsistency between Barbontin and Mourning on the one hand,
and Manthei and Villarreal on the other. lso In United States v.
170.
171.
[d. at 1223-24.
[d. at 1223 (citing United States v. Manthei, 913 F.2d 1130, 1136 (5th Cir. Sept.
1990».
172. [d.
173. [d.
174. [d. at 1224.
175. 914 F.2d 699 (5th Cir. Oct. 1990).
176. See id. at 702. The Villarreal court distinguished Mourning and stated that the two
holdings are not inconsistent. 920 F.2d at 1223.
177. 914 F.2d at 702.
178. 920 F.2d at 1223.
179. [d. at 1210-20, 1224.
180. See United States v. Rodriquez, 924 F.2d 107, 110 (5th Cir. Feb. 1991).
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Rodriguez, 181 the government argued that the holding in Barbontin
and the holding in Manthei could not be reconciled, and asked the
court to reject the approach of Barbontin. 182 The court in Rodriguez,
however, stated that it "need not resolve this conflict" because
another panel of the court had "revisited" Barbontin,, 83
The court referred to United States v. Mir,l84 a case involving
the same cocaine ring as Barbontin,, 8s Although a different panel
decided the cases, the writing judge was the same in both Barbontin
and Mir. 186 In Mir, the court broadly construed Barbontin and the
phrase which had caused so much trouble: The adjustment must be
"anchored to the transaction leading to the conviction. "187 Mir
emphasized that the section 3Bl.I adjustment must be anchored to
the transaction leading to the conviction, and not the conviction
alone. 188 The court stated that the sentencing court need not "don
blinders and look solely to the narrowest possible offense charged"
when making an upward adjustment. 189 The court also noted the
commentary to a recent clarifying amendment to the guidelines, which
showed that section 3BI.I is to be read along with other guidelines
allowing a· sentencing judge to look beyond the offense charged to
consider all relevant conduct. 190 In summary, the Fifth Circuit now
clearly will allow sentencing judges to adjust upward under section
3BI.I more expansively thart the court first indicated in Barbontin
and Mourning. 191
C.
Acceptance of Responsibility
A good example of factual findings which are not set aside
unless clearly erroneous arises from the provision in section 3ELl of
181.
925 F.2d 107 (5th Cir. Feb. 1991).
[d. at 110.
[d. (citing United States v. Mir, 919 F.2d 940 (5th Cir. Dec. 1990».
184. 919 F.2d 940 (5th Cir. Dec. 1990).
185. See id. at 944.
186. Judge Smith was the author of both opinions. See id. at 941; United States v.
Barbontin, 907 F.2d 1494, 1496 (5th Cir. July 1990).
187. See 919 F.2d at 945 (quoting United States v. Barbontin, 907 F.2d 1494, 1498 (5th
Cir. July 1990».
.
182.
183.
188.
189.
190.
191.
See id.
[d. at 944.
See id. at 945 (citing U.S.S.G., supra note 6, Ch. 3, Pt. B, introductory comment).
See id. at 945-46.
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223
the guidelines that provides for a two-level reduction if the defendant
"accepts responsibility."I92 According to that section, the defendant
must "clearly demonstrate a recognition and affirmative acceptance
of personal responsibility for his criminal conduct. ... "193 Many
defendants appealed their sentences on the ground that the trial court
did not give the defendant credit for accepting responsibility. 194
Consistently, however, the Fifth Circuit rejected such appeals on the
ground that whether the defendant in fact accepted responsibility for
his offense was a question of fact and therefore entitled to great
deference. 195 Indeed, the court has held that the sentencing court's
findings as to acceptance of responsibility "are entitled to even greater
deference than that accorded under a clearly erroneous standard of
review. "196 The Fifth Circuit often emphasized the unique position
of the trial judge in evaluating the sincerity of the defendant's alleged
acceptance of responsibility. 197
In United States v. Mourning,198 one issue on appeal was the
scope of this acceptance of responsibility provision. l99 The court held
that section 3El.l requires acceptance of responsibility for all relevant
criminal conduct, which includes conduct beyond the offense of
conviction. 200 The court noted that the guidelines define" 'relevant
conduct' " to include
"all acts and omissions committed or aided and abetted by the
defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense,
or that otherwise were in furtherance of that offense.... "201
"Moreover, the commentary to this guideline notes that conduct for
which the defendant is otherwise accountable includes all conduct
192. U.S.S.G., supra note 106, § 3El.l(a).
193. Id.
194. See. e.g., United States v. Hooten, 942 F.2d 878. 882 (5th Cir. Sept. 1991); United
States v. Allibha; 939 F.2d 244, 253 (5th Cir. Aug. 1991); United States v. Mourning. 914
F.2d 699, 705 (5th Cir. Oct. 1990).
195. See. e.g.• 942 F.2d at 883; 939 F.2d at 253.
196. 914 F.2d at 705 (citing United States v. Roberson, 872 F.2d 597. 610 (5th Cir.), cert.
denied, 110 S. Ct. 175 (1989».
197. See. e.g., 939 F.2d at 253 (5th Cir. Aug. 1991); 914 F.2d at 705.
198. 914 F.2d 699 (5th Cir. Oct. 1990).
199. See id. at 705.
200. See id. at 705-06.
201. Id. at 706 (quoting U.S.S.G., supra note 6, § 1B1.3(a)(I».
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that the defendant 'counselled, commanded, induced, procured or
willfully caused.' "202 Thus, the court held that "[r]elevant conduct
may extend beyond the conduct and mental state necessary to the
offense of conviction. "203 Proof beyond a reasonable doubt is not
required in establishing this conduct. 204 Rather, the factual findings
by the sentencing court must only be based upon a preponderance
of the evidence. 20S These findings are subject to the clearly erroneous
standard of review on appeal. 206
In so holding, the Fifth Circuit in Mourning rejected the analysis
of decisions from the First and Second Circuits which concluded that
requiring the defendant to accept responsibility for uncharged criminal conduct compels him to incriminate himself contrary to the fifth
amendment. 207 Those courts reasoned that acceptance of responsibility
could possibly be used against the defendant in a later prosecution. 208
The Fifth Circuit, however, found no fifth amendment problem. 209
The court noted that in cases like Mourning nothing happens if the
defendant chooses not to accept responsibility for all his relevant
criminal conduct; his punishment is not increased. 210 The court stated
that if the defendant wishes to avail himself of the acceptance of
responsibility provision of the sentencing guidelines, the" 'dilemma'
he faces. . .is one of his making. "211 Rewarding contrition is not the
same as compelling self incrimination. 212
D.
"Double Counting" Under the Guidelines
During the survey period, the Fifth Circuit clearly held that
sentences imposed on a pre-guidelines count of an indictment may
202.
203.
204.
lOS.
Id. (quoting U.S.S.G., supra note 6, § IBI.3, comment n.! (Nov. 1990».
Id.
Id.
Id.
206. Id.
2CY1. See id. at 706-(17 (citing United States v. Perez-Franco, 873 F.ld 4SS, 462-63 (1st Cir.
1989); United States v. Oliveras, 90S F.ld 623, 626-28 (ld Cir. 1990».
208. See 90S F.2d at 626; 873 F.ld at 461.
209. 914 F.ld at 706-(17.
210. Id. at 707.
211. Id.
212. Id. (citing United States v. Henry, 883 F.2d 1010, 1011 (lith Cir. 1989».
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225
be served consecutively to sentences imposed on a count that is
governed by the guidelines. 213 This issue arises because offenses
committed before November 1, 1987, are not governed by the sentencing guidelines, while offenses committed on or after that date
are governed by the guidelines. 2\4 In two separate cases, the Fifth
Circuit held that nothing in the guidelines or the Sentencing Reform
Act precludes a sentencing court from ordering that a sentence
imposed on a pre-guidelines count be served consecutively to a
sentence imposed on a guidelines count. 21S In United States v. Garcia,216 the court adopted the view of the Fourth Circuit in United
States v. Watjord. 217 The Watford opinion was written by Judge
Wilkins, the Chair of the United States Sentencing Commission,218
and held that the guidelines permit such consecutive sentences. 219
In United States v. Parks,'l:1JJ the sentencing court considered
conduct underlying pre-guidelines offenses in formulating a sentence
under the sentencing guidelines, and then also ordered the guidelines
sentence to run consecutively to the pre-guidelines sentence. 22 \ The
defendant was found guilty of twenty-seven counts of misapplying
bank funds. 222 Only three of the counts, accounting for less than a
tenth of the total bank losses, involved conduct occurring after
November I, 1987.223 Nevertheless, the district court used the entire
loss figure to compute the offense level on the pre-guidelines counts. 224
Then, the court ordered that the three concurrent thirty-month guidelines sentences it imposed run consecutively to the concurrent sixtymonth sentences it imposed for the pre-guidelines offenses.:m
213. See United States v. Parks, 924 F.2d 68, 73-74 (5th Cir. Feb. 1991); United States v.
Garcia, 903 F.2d 1022, 1025 (5th Cir. June 1990), cert. denied, 111 S. Ct. 364 (1990).
214. See U.S.S.G., supra note 106, § lA2; see also United States v. Watson, 868 F.2d
157, 158 (5th Cir. 1989) (holding that defendant had no right to be sentenced under new
sentencing guidelines as they were not in effect when he committed the crimes).
215. 924 F.2d at 73-74 (5th Cir. Feb. 1991); 903 F.2d at 1025 (5th Cir. June), cert. denied,
111 S. Ct. 364 (1990).
216. 903 F.2d 1022 (5th Cir. June 1990).
217. 894 F.2d 665 (4th Cir. 1990); see 903 F.2d at 1025.
218. See 903 F.2d at 1025.
219. See 894 F.2d at 669.
220. 924 F.2d 68 (5th Cir. Feb. 1991).
221. [d. at 70-71.
222. [d. at 70.
223. [d.
224. [d.
225. [d. at 70-71.
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On appeal, the defendant, argued that her sentence amounted
to "double counting" of pre-. and post-guidelines offenses. 226 In
reality, of course, it did. The pre-guideline offenses for which she
served consecutive sentences were also used to enhance the sentence
on the guidelines count. 227 The defendant pointed to an advisory
issued by the Sentencing Commission that supported her argument. 228
The Sentencing Commission had stated that "[ilf the relevant conduct
for an offense committed on or after November 1, 1987, overlaps
with conduct sanctioned as part of a pre-November I count, there
would be potential for double counting unless the pre-guideline counts
were sentenced concurrently. The court will have to carefully fashion
the sentence with these concerns in mind. "229 The Fifth Circuit noted
this language, but stated that it "sets out no absolute rule" and that
"due deference" to the district court called for affirmance in this
case. 230 The court held that section 3D1.2(d) of the guidelines permits
the court to consider all conduct relevant to the offense of conviction
in arriving at the offense level without regard to the guideline's
implementation date. 231
"Due deference" to the sentencing court is not a principal at
all; when the sentencing court ignores the expressed intention of the
Sentencing Commission, there ought to be an articulated reason why
the sentence is appropriate. The Parks opinion reveals that affirming
sentences is a higher priority to the Fifth Circuit than is compliance
with the guidelines.
In United States v. Rocha,232 the court of appeals affirmed a
district court's decision to enhance certain defendants' sentences
twice, once committing a "kidnapping for the purpose of ransom"
and a second time for committing a kidnapping involving the crime
of extortion. 233 The court of appeals held that this did not constitute
226.
221.
228.
AsKED
229.
230.
231.
[d. at 10.
See id. at 10 n.2.
[d. at 13; UNITED STATES SENTENCING COMMISSION, QUESTIONS MOST FREQUENnv
ABoUT THE SENTENCING GUIDELINES 4 (1990).
UNITED STATES SENTENCING COMMISSION, supra note 228, at 4.
924 at 13-14.
See id. at 72 (citing United States v. Garcia, 903 F.2d 1022, 1025 n.5 (5th Cir. June
1990), cert. denied, III S. Ct. 364 (1990); UNITED STATES SENTENCING COMMISSION supra note
228, at 4).
232. 916 F.2d 219 (5th Cir. Oct. 1990).
233. [d. at 242.
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CRIMINAL PROCEDURE
227
impermissible double counting. 234 The defendants were convicted of
conspiracy, kidnapping, and extortion on the basis of their involvement in a scheme to kidnap the relative of a man who owed them
money from a previous cocaine transaction. 135 After convicting the
defendants, the district court enhanced their sentences under both
guidelines section 2A4.l(b)1 and section 2A4.l(b)5.136 The Fifth Circuit
pointed out that the guidelines do not specify that the categories of
enhancement for base offense level are mutually exclusive. 237 Thus,
the court concluded that a defendant's offense level could be enhanced both for the ransom demand and again for the offense of
extortion. 238
E.
Permissible and Impermissible Considerations in Sentencing
As noted above, if a decision by the sentencing court is characterized as a finding of fact, it will be affirmed unless clearly
erroneous. 239 On the other hand, the Fifth Circuit held that considerations of certain factors by trial courts in imposing sentences are
impermissible under the guidelines. 240 Consideration of an impermissible factor by the sentencing court is treated as an error of law,
and the sentence must be reversed. 241 During the survey period, the
Fifth Circuit held that two of those impermissible factors are community sentiment242 and the defendant's socioeconomic status. 243
In United States v. Barbontin,244 discussed above,245 an additional
ground for reversal was the sentencing court's unjustified two-level
upward departure from the guidelines to reflect the significant amount
of drugs regularly imported by the defendant's organization into San
234. 'd. at 243-44.
235. 'd. at 224-25, 227.
236. 'd. at 242.
237. 'd. at 243-44.
238. 'd. at 244.
239. See supra note 122 and accompanying text.
240. See United States v. Hatchett, 923 F.2d 369, 375 (5th Cir. Jan. 1991); United States
v. Barbontin, 907 F.2d 1494, 1499 (5th Cir. July 1990).
241. See 923 F.2d at 372, 375; 907 F.2d at 1497, 1499.
242. See 907 F.2d at 1499.
243. See 923 F.ld at 373.
244. 907 F.2d 1494 (5th Cir. July 1990).
245. See supra notes 134-41 and accompanying text.
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Antonio. 246 The Fifth Circuit had previously held that an upward
departure from the guidelines "will be affirmed if the district court
offers 'acceptable reasons' for the departure and the departure is
'reasonable.' "247 In Barbontin, however, the Fifth Circuit held that
local community conditions or sentiment do not constitute an acceptable reason to depart from the guidelines. 248 The Fifth Circuit
concluded that "injecting community-based considerations into the
guidelines would undermine Congress's goal of imposing national
uniformity in sentencing. "249 The court concluded that "at least under
circumstances such as those presented by the facts of this case, local
community standards and sentiments regarding any social conduct
are not acceptable justifications for departure.' '250
In United States v. Hatchett, 25 1 the court reversed a sentence on
the grounds that the district court considered the defendants' socioeconomic status as a factor in sentencing. 252 The court found that
neither the enabling legislation nor the guidelines permit such consideration. 253 The Fifth Circuit had previously held that socioeconomic
status may not justify an upward departure from the guidelines. 254
The sentence in Hatchett, however, was within the range authorized
by the sentencing guidelines. 255 Nevertheless, the court concluded that
the guidelines expressly exclude certain factors from consideration in
sentencing, including the socio-economic status, race, sex, religion,
and national origin of the defendant. 256 Thus, even though the
sentence was within the guidelines, the fact that the court had
considered the socioeconomic status of the defendants rendered the
sentence impermissible. 257 Accordingly, the sentence was vacated and
the case remanded for resentencing. 258
246. 907 F.2d at 1496.
247. United States v. Velasquez-Mercado, 872 F.2d 632, 635 (5th Cir. 1989) (quoting United
States v. Mejia-Orosco, 867 F.2d 216, 219 (5th Cir. 1989».
248. 907 F.2d at 1499.
249. [d. In this regard, the Fifth Circuit followed the reasoning of the First Circuit in
United States v. Aguilar-Pena, 887 F.2d 347, 352 (1st Cir. 1989).
250. 907 F.2d at 1499.
251. 923 F.2d 369 (5th Cir. Jan. 1991).
252. See id. at 377.
253. [d. at 373.
254. See United States v. Burch, 873 F.2d 765, 769 (5th Cir. 1989).
255. 923 F.2d at 373~
256. [d. at 373-74 (citing U.S.S.G., supra note 106, §§ 5HI.I-10).
257. See id. at 375.
258. [d.
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The distinction between factors which may never be considered
by the sentencing court and factors which do not authorize a departure from the guidelines is important to recognize. In both United
States v. Burch2s9 and United States v. Reed,26JJ the court held that
the sentencing court may not depart downward from the guidelines
based on the defendant's admirable character traits. 261 Downward
departures are permissible only if the circumstances on which they
are based were not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. 262 The defendant's
personal characteristics were taken into account by the commission;
therefore, consideration of that factor is inappropriate. 263 This, Burch
and Reed held that consideration of the defendant's character in
departing downward was an error of law. 264
In United States v. Lara- Velasquez,26s the sentencing court stated
on the record that it could not consider the defendant's rehabilitative
potential as a basis for imposing the lightest sentence within the
applicable range. 266 The Fifth Circuit reversed, holding that the
sentencing judge misinterpreted the holdings of Burch and Reed. 267
The court emphasized that the sentencing court has wide discretion
to sentence within a range authorized by the guidelines. 268 The court
noted that although the guidelines reject rehabilitation as a valid
penological model, they do not preclude rehabilitative potential as a
mitigating factor within an applicable range of punishment. 269 Rehabilititative potential, therefore, is unlike the defendant's socioeconomic status, which may never be considered in sentencing. 270
Lara- Velasquez emphasizes that in determining a sentence within the
guideline's range, the sentencing court "may consider any relevant
258. [d.
259. 873 F.2d 765 (5th Cir. 1989).
260. 882 F.2d 147 (5th Cir. 1989).
261. 882 F.2d at lSI; 873 F.2d at 768-69.
262. See 873 F.2d at 768.
263. 882 F.2d at lSI; 873 F.2d at 766-67.
264. 882 F.2d at lSI; 873 F.2d at 769.
265. 919 F.2d 946 (5th Cir. Dec. 1990).
266. [d. at 950.
267. [d. at 955.
268. See id. at 956.
269. [d.
270. See id. at 955 n.ll (citing U.S.S.G., supra note 106, §§ 5HU-IO).
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information that the sentencing guidelines do not expressly exclude
from consideration. "271
The guidelines do not allow the sentencing court to depart
downward when the defendant provides assistance to the government
unless the government files a motion requesting such a departure. 272
Section 5KI.l provides for a two-step offense level reduction to
defendants for "substantial assistance in the investigation or prosecution of another person who has committed an offense. . .. "273 In
a case of first impression, United States v. Damer,274 the Fifth Circuit
expressly held that a federal district court has discretion to reject the
government's motion for a reduction pursuant to section 5K 1.1. 27S
The court noted that section SKU states that the district court "may"
depart downward and that a defendant's substantial assistance "may" .
justify a sentence below the statutory minimum. 276 The court further
found, on the facts of this case, that the district court's decision not
to depart from the guidelines despite the fact that the defendant
provided substantial assistance did not amount to an abuse of discretion. 277 Thus, although the sentencing court has no discretion to
depart downward based on cooperation with the authorities absent
a government motion,278 it does retain discretion to refuse such a
departure even when requested by the government. 279
IV.
FEDERAL RULE OF CRIMINAL PROCEDURE
11
Federal Rule of Criminal Procedure II requires that the district
court engage in a colloquy with the defendant before accepting a
plea of guilty. 280 According to Fifth Circuit precedent, Rule 11 addresses three core concerns: (1) whether the guilty plea was coerced;
(2) whether the defendant understands the nature of the charges; and
271.
272.
273.
274.
275.
276.
277.
278.
279.
280.
[d. al 955.
See United States v. Harrison, 918 F.2d 30, 32 (5th Cir. Nov. 1990).
U.S.S.G., supra note 106, § 5KU.
910 F.2d 1239 (5th Cir. Aug. 1990), cert. denied, III S. Ct. 535 (1990).
See·id. at 1240-41.
[d. at 1241 (citing U.S.S.G., supra note 6, § 5KU.)
See id.
See United States v. Harrison, 918 F.2d 30, 32 (5th Cir. Nov. 1990).
See id. at 1240-41.
FED. R. CRIM. P. II (c).
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(3) whether the defendant understands the consequences of his plea. 281
Under Fifth Circuit law, reversal of the conviction is mandatory if
the trial court wholly or entirely fails to address a core concern of
.Rule II in the pleas colloquy.282 By contrast, if the district court gives
a "less than letter perfect" or merely inadequate address to a Rule
II core concern, the appellate court will evaluate such a failure under
a harmless error standard focusing on whether the defendant's "substantive rights" were affected. 283
In United States v. BachynskY,284 the court dealt with the requirements of a plea colloquy under Rule 11.285 Bachynsky, a Houston
physician, and his associates established weight loss and smoke
cessation clinics throughout the United States. 286 The clinics typically
performed numerouS unnecessary tests on the patients and billed the
patients'insurance companies. 287 Often, false diagnoses were submitted to qualify for insurance payments. 288 The total loss resulting from
this fraudulent scheme exceeded $15,000,000. 289 Bachynsky was indicted on eighty-seven counts. 290 After extensive plea negotiations, in
which he was represented by counsel and in which he personally
participated, Bachynsky entered a plea of guilty to one RICO count
and one count of conspiring to defraud the IRS.291 In exchange for
this plea, all other counts were dismissed.292
On appeal, Bachynsky claimed that reversal of his sentence was
required because the district court failed to explain in detail the
charges against him, and also because the district court failed to
inform him that he was subject to supervised release as part of his
281. United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), cert. denied, 110 S. Ct.
203 (1989).
282. United States v. Pierce, 893, F.2d 669, 679 (5th Cir. 1990); United States v. Dayton,
604 F.2d 931, 936-37 (5th Cir. 1979) (en bane), cert. denied, 445 U.S. 904 (1980).
283. 861 F.2d at 436. FED. R. CIuM. P. lI(h) provides: "Harmless Error. Any variance
from the procedures required by this rule which does affect substantial rights shall be
disregarded." [d.
284. 924 F.2d 561 (5th Cir. Feb. 1991), modified, 934 F.2d 1349 (5th Cir. June 1991).
285. See id. at 564-68.
286. [d. at 563.
287. [d.
288. [d.
289. [d.
290. [d.
291. [d. at 563-64.
292. [d. at 563.
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sentence. 293 Regarding the first claim, the Fifth Circuit concluded
that although the charges were complex and the district court did
not explain every facet of each charge, Bachynsky must have understood them. 294 The court found that the defendant was a sophisticated, highly educated· person represented by highly competent
counse1.29S Accordingly, the district court's "less than perfect colloquy" did not abridge or prejudice his substantial rights. 296
As to the second ground, however, the court did find a failure
to comply with Rule 11. 297 The district court did fail entirely to inform
the defendant that he could be subject to a term of supervised release
as part of his sentence. 298 The defendant did not argue on appeal
that he was unaware of the possibility of supervisory release as part
of his sentence, nor did he argue that he was prejudiced by the
district court's oversight. 299 His argument was based entirely on the
Fifth Circuit precedent of United States v, Molina-Uribe,3°O which
held that "[w]hen the district court fails entirely to inform the
defendant of the minimum and maximum terms of supervised release,
the defendant's 'substantive rights [a]re affected and his plea of
guilty . . . must be set aside....' "301 Finding the precedent in
Molina-Uribe binding, the panel in Bachynsky reversed Bachynsky's
conviction and sentence. 302 The court opined, however, that MolinaUribe "narrowly and rigidly" interpreted Rule 11. 303 The panel made
quite clear its displeasure with the "inflexible command" of that
case and its progeny.304 The court concluded that "[b]ecause the
district court failed personally to utter the talismanic words of
supervised release to Bachynsky, [the appellate court had] no leeway
293. [d. at 564.
294. See id. at 565.
295. [d.
296. [d.
297. See id. at 566.
298. [d. at 565-66.
299. [d. at 565.
300. 853 F.2d 1193 (5th Cir. 1988), cert. denied. 489 U.S. 1022 (1989), and overruled by
United States v. Bachynsky, 934 F.2d 1349 (5th Cir. June 1991), petition for cert. filed, 60
U.S.L.W. 2107 (U.S. Sept. 23, 1991) (No. 91-5960).
301. 924 F.2d at 565 (alteration in original) (quoting United States v. Andrews, 918 F.2d
1156, 1159 (5th Cir. Nov. 1990» (quoting United States v. Molina Uribe. 853 f.2d 1193. 1200 .
(5th Cir. 1988). cert. denied. 489 U.S. 1022 (1989), and overruled by United States v. Bachynsky,
934 F.2d 1349 (5th Cir. June 1991».
302. 924 F.2d at 566.
303. [d. at 567.
304. [d. at 568.
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to consider the obvious harmlessness of that omission under the
extreme facts presently before [it]. "30S
If ever a panel signalled its willingness to overrule a case, it was
this one. Not surprisingly, the en banc court did vote to rehear the
case. 306 The full court first reconsidered its holding that failure to
explain supervised release could never be harmless error. 307 Overruling
Molina-Uribe, the court held that the possibility of supervised release
does not constitute a "core concern" under Rule 11. 308 Rather, the
core concern implicated is whether the defendant understood the
consequences of his plea. 309 So long as the court explained the
maximum possible penalty, any failure to explain the possibility of
supervised release is at worst a partial failure to explain a core
concern to which the harmless error standard applies. 310
The court then found on the facts of Bachynsky's case that the
failure to explain supervised release could not have affected the
defendant's decision to plead guilty.311 The court noted that Bachynsky
was well-educated, that he personally participated in the plea negotiations, that he was represented by able counsel, and that he did
not object to the mention of supervised release in the pre-sentence
report. 312
It is hard to quarrel with the result reached by the en banc court
in Bachynsky. No one can doubt that Bachynsky was fully aware of
the possibility of supervised release when he entered his plea. 313
Nevertheless, the opinion may not be so obviously correct in the long
run. The great advantage of the prophylactic rule in Molina-Uribe
was that it let sentencing courts know that they must advise of the
possibility of supervised release. 314 Allowing harmless error analysis,
while creating no injustice for Dr. Bachynsky, opens the door for
persons to enter guilty pleas who truly do not understand the nature
of supervised release.
305. [d.
306. See United States v. Bachynsky, 934 F.2d 1349 (5th Cir. June 1991), petition for cert.
filed, 60 U.S.L.W. 2107 (U.S. Sept. 23, 1991) (No. 91-5960).
307. See id. at 1354-57.
308. [d. at 1355.
309. [d.
310. See id. at 1360.
311. [d. at 1361. .
312. [d. at 1360.
313. [d.
314. See id. at 1356.
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The early returns after Bachynsky are encouraging, however. In
United States v. Garcia,m the court refused to find that the trial
court's complete failure to advise of the possibility of supervised
release was harmless error.316 The defendant in that case, unlike
Bachynsky, was 21 years old, had a sixth-grade education, and did
not participate in a plea bargain. 317 The court was unable to conclude
that the defendant's substantial rights were not affected by the failure
to inform as to supervised release. 318
V.
MISCELLANEOUS CASES
This section contains a discussion of three other cases which
announced new law in the circuit.
A. Attorney Subpoenas
In In re Grand Jury Subpoena for Reyes-Requena,319 the court,
in its own words, confronted "the tension between the requirement
that every citizen be prepared to offer his testimony to a grand jury
and the entitlement of every criminal defendant to the single-minded
attention of his attorney. "320 The case is significantprimarily because
it reinterpreted the court's previous decision of In re Grand Jury
Subpoena (Jones),321 dealing with the scope of the attorney-client
privilege when an attorney is subpoenaed to furnish fee information
to a grand jury.322
The United States Attorney's Office subpoenaed Mike DeGeurin,
the attorney for criminal defendant Jose Evaristo Reyes-Requena, to
testify before a grand jury.323 The subpoena came on the same day
as a preliminary hearing was held concerning Reyes-Requena, and
shortly before his indictment by that same grand jury.324 DeGeurin's
motion to quash the subpoena was granted by the district court,
after a hearing. m
315. 939 F.2d 230 (5th Cir. Aug. 1991).
316. See id. at 233.
317. [d.
318. See id.
319. 913 F.2d 1118 (5th Cir. Sept. 1990), cert. denied, III S. Ct. 1581 (1991).
320. [d. at 1119.
321. 517 F.2d 666 (5th Cir. 1975).
322. See id. at 669-75; 913 F.2d at 1123-27.
323. 913 F.2d at 1120.
324. [d. at 1120-21.
325. [d. at 1121.
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The grand jury subpoena. ordered DeGeurin to appear and
produce records dealing with the fee arrangement he had made for
representing Reyes-Requena. 326 DeGeurin moved to quash the subpoena on several grounds, including the attorney-client privilege
interpreted in light of the Fifth Circuit opinion in In Re Grand Jury
Proceedings (Jones),32.7 Federal Rule of Criminal Procedure 17(c),328
and the sixth amendment to the United States Constitution. 329 The
district court granted the motion on all three grounds noted above. 33o
On appeal, the Fifth Circuit reversed. 331 The court noted that it
was "hardly covering new ground in this appeal.... Although such
subpoenas pose the particularly troublesome possibility of intrusion
by prosecutorial authorities into the attorney-client relationship, the
principles on which they should be enforced now seem-with the
exception of that espoused by our Jones decision-fairly consistent. "332 The Fifth Circuit rejected all three grounds relied upon by
the district court. 333
First, as to the attorney-client privilege, the court noted at the
outset that as a general rule matters involving the payment of fees
and the identity of clients are not generally privileged. 334 DeGeurin,
however, argued that the Jones decision supported his claim for an
exception to that general rule. 335 The court fIrst distinguished Jones
on the ground that the anonymous party who paid the fees in Jones
was also the client of the attorney. 336 According to the court, "Jones
rested on the premise that to identify the anonymous fee-payer clients
would, under the unique circumstances of that case, both incriminate
them and reveal confIdential communications. "337 Reyes-Requena, by
contrast, was already known to be DeGuerin's client. 338 Because
326. Id. at 1120.
327. 517 F.2d 666 (5th Cir. 1975); see 913 F.2d at 1121.
328. FED. R. CRIM. P. 17(c); see 913 F.2d at 1121.
329. U.S. CONST. amend. XI; see 913 F.2d at 1121.
330. 913 F.2d at 1121.
331. Id. at 1130.
332. Id. at 1122.
333. Id.
334. Id. at 1123 (citing In re Grand Jury Proceedings (Jones), 517 F.2d 666, 670-71 (5th
Cir. 1975».
335. Id.
336. See id.; 517 F.2d at 668-69.
337. 913 F.2d at 1123.
338. Id.
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DeGuerin had never claimed that the anonymous fee-payer for RegesRequina was his client, Jones did not apply. 339
The court went on, however, to conclude that even if Jones
were not dependent on the existence of an anonymous fee-payer,
Jones failed on its on terms to apply to DeGuerin's case. 340 The
court noted that "Jones is not unlike actor Peter Sellers' famous
character Inspecter Clouseau: it has been misunderstood because it
invited misunderstanding. "341 In Reyes-Requena, the Fifth Circuit
concluded that Jones "did not fashion a 'last link' attorney-client
privilege independent of the privileged communications between attorney and his client."342 Accordingly, the last link. language in Jones
and succeeding cases did not "significantly amend the normal scope
of the attorney-client privilege" and was not applicable to DeGuerin's
case. 343 Finally, the Fifth Circuit held that even if they were to apply
the last link doctrine literally, DeGuerin's fee information provided
no affirmative link or last link between Reyes-Requena and a criminal
indictment.344 In addition, the government represented in its pleadings
to the district court that it would not use the fee information against
Reyes-Requena in the grand jury proceedings or at trial. 345
The second ground relied upon by the district court in quashing
the subpoena was Federal Rule of Criminal Procedure 17(c), which
allows the court to quash a subpoena if it is found to be unreasonable
or oppressive. 346 The Fifth Circuit found that the district court acted
within its discretion to quash the subpoena because of the critical
timing of the subpoena. 347 The client had just had a detention hearing,
and indictment was imminent.348 The attorney was effectively stalled
from representing the defendant during this critical period. 349 But
because the client at the time of appeal was already tried and
convicted, the court noted that the timing problem had vanished.350
339.
340.
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.
See id.
[d. at 1124.
[d.
[d.
[d.
[d. at 1126.
[d. at 1126-27.
FED. R. CRIM. P. 17(c); see 913 F.2d at 1127.
[d. at 1128.
[d.
[d.
[d. at 1129.
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That is, the defendant's sixth amendment interests were not then at
the same high level as when the subpoena was originally quashed. 351
Thus, the subpoena was found enforceable at the time of the appeal. m In addition, any potential sixth amendment violations in the
subpoena were also moot at the time of appeal in the Fifth Circuit. m
The Fifth Circuit remanded the case to the district court. 354 A
subpoena ducus tecum was subsequently issued commanding DeGuerin to appear before the grand jury. m DeGuerin moved the
district court to quash this subpoena based on an attorney-client
relationship between him and a third-party benefactor who paid
DeGuerin to represent Reyes-Requena. 356 The third-party benefactor
anonymously intervened moving to quash the subpoena as well in
order to protect the benefactor's own identity.m In light of the Fifth
Circuit's previous decision in Reyes-Requena, the district court ordered DeGuerin to comply with the subpoena. 358 However, the government filed a motion asserting that DeGuerin did not fully comply
with the subpoena ducus tecum by not revealing the identity of the
mysterious intervenor and the amount of fees paid. 359 The district
court found that the "[I]ntervenor retained DeGuerin to represent
Reyes-Requena and Intervenor jointly for a confidential purpose. "360
Consequently, the court followed the Fifth Circuit's narrow exception
to Jones3 61 and held that the fee arrangement with the Intervenor
was privileged since revelation of the arrangement would expose that
confidential purpose. 362 In the end, the district court denied the
government's motion to compel compliance with court order and for
judgment and commitment for contempt. 363 On appeal by the government, the Fifth Circuit affirmed the district court's denial. 364
351. See id.
352. Id.
353. Id.
354. Id. at 1130.
355. See In re Grand Jury Subpoena for Reyes-Requena, 752 F. Supp. 239, 240 (S.D. Tex.
1990).
356. Id.
357. Id.
358. Id. at 240.
359. Id. at 241.
360. Id. at 242 (emphasis in orginal).
361. See In re Grand Jury Subpoena for Reyes-Requena, 913 F.2d 1118. 1126 (5th Cir.
Sept. 1990).
362. See 752 F. Supp. at 242.
363. Id. at 243.
364. In re Grand Jury Subpoena for Reyes-Requena, 926 F.2d 1423, 1433 (5th Cir. Mar.
1990).
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B.
[Vol. 23 :205
Presumption of Vindictiveness in Resentencing
In United States v. Vontsteen,36S the defendant succeeded in
having twenty-one of his twenty-two counts of conviction vacated on
appeal. 366 On resentencing, the trial court, without explanation on
the record, sentenced the defendant to an identical ten-year prison
term on the remaining count.367 On appeal from the resentencing,
the defendant argued that the sentence violated the rule of North
Carolina v. Pearce,368 which held that a judge on resentencing after
a fIrst conviction is set aside may not impose a more severe sentence
unless the reasons for doing so affIrmatively appear.369 In addition,
those reasons must be based upon objective information concerning
identifIable conduct on the part of the defendant occurring after the
time of the original sentencing proceeding. 370 This is a per se rule,
or a presumption of vindictiveness, which if applicable to Vontsteen's
case would have required resentencing. 371
The court, however, held that the Pearce presumption was
inapplicable to Vonsteen's case because Vonsteen did not receive a
net increase in his sentence. 372 Although the original sentence on the
remaining count had been a suspended term, the new ten-year sentence was not greater than the original package for all twenty-two
counts;373 The court concluded that it saw no need to remand merely
to require the district judge to state on the record why he imposed
the sentence. 374 The court did, however, recognize the potential for
a claim of vindictiveness, meritorious or not, in any resentencing. m
Thus, the court "recommend[ed] strongly that a court state its reasons
when imposing a new sentence, including [the reasons] for its
length. "376
365.
366.
367.
368.
369.
370.
371.
372.
373.
374.
375.
376.
910 F.2d 187 (5th Cir. Aug. 1990), reh'g granted, 919 F.2d 957 (5th Cir. Dec. 1990).
[d. at 188.
[d. at 189.
395 U.S. 711 (1969); see 910 F.2d at 191.
395 U.S. at 726.
See id.
See 910 F.2d at 192.
[d.
[d. at 189.
[d. at 194.
See id.
[d.
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In dissent, Judge Rubin pointed out that Vontsteen's increased
sentence on count twenty-two is the only sentence meaningful to
Vonsteen. 377 Because the circumstances present the classic indicia
warranting a Pearce presumption of vindictiveness, Judge Rubin
would have vacated the sentence imposed on count twenty-two and
remanded for resentencing. 378 If the new sentence on remand increased
the punishment on that count, Judge Rubin would have required an
explanation on the record of why the increased punishment was not
retaliatory.379 This dissenting opinion is an eloquent example of how
greatly Judge Rubin will be missed. The full court has voted to
rehear the case en banc. 38o
C.
Special Prosecutors
The United States Supreme Court has held that counsel for a
private party who is the beneficiary of a court order may not be
appointed special prosecutor in a criminal contempt action alleging
a violation of that order.381 The Court reasoned that the private
party's attorney may lack a necessary qualification for a prosecutor:
the ability to make a "dispassionate assessment of the propriety of
criminal charges for affronts to the judiciary."382 The holding was
not a matter of constitutional law, but was based on the Supreme
Court's supervisory power over the federal courts. 383
In United States ex rei Securities Exchange Commission v.
Carter,384 the Fifth Circuit dealt with the appointment of a special
prosecutor in a criminal contempt proceeding. 385 Unlike Young, however, the special prosecutors worked for the government rather than
a purely private party.386 The genesis of the case was a civil action
brought by the Securities and Exchange Commission (SEC) against
seven individual and four corporate defendants. 387 The trial court
377.
378.
379.
380.
381.
382.
383.
384.
385.
386.
387.
[d. at 198 (Rubin, J., dissenting).
[d.
[d.
United States v. Vonsteen, 919 F.2d 957 (5th Cir. Dec. 1990).
Young v. United States ex rei. Vuitton et Fils S.A., 481 U.S. 787, 806 (1987).
[d. at 805.
See id. at 808-09.
907 F.2d 484 (5th Cir. July 1990).
See id. at 485.
[d.
[d.
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granted preliminary injunctive relief, which included the appointment
of receivers for two of the defendants. 388 The SEC subsequently was
appointed to investigate allegations of contempt against certain persons for violation of the court's receivership injunctions. 389 These
persons were tried and convicted for criminal contempt with SEC
attorneys serving as special prosecutors. 390
The Fifth Circuit reversed the contempt convictions on a ground
not raised by the parties, that the district court erred in appointing
the SEC attorneys as special prosecutors. 391 The court recognized that
Young did not "precisely control" because the attorneys worked for
the government, but that the "lesson of Young" compelled reversal. 392
Specifically, the court noted that the SEC "avidly and not disinterestedly pursued the convictions," the SEC made misrepresentations
in its brief to the Fifth Circuit, and the local United States Attorney
did not retain control over the prosecution. 393 For all these reasons,
the court concluded that the appointment was plain error. 394
One should note that the court raised this issue sua sponte and
held the appointment plain error. 395 This constitutes a clear signal to
district judges that attorneys who have an interest in a matter should
not be appointed to prosecute a criminal contempt action arising
from that matter.
388. [d.
389. [d.
390. [d. at 486.
391. [d. at 485.
392. [d. at 486.
393. [d. at 487.
394. [d. at 488.
395. See id. at 485, 488.
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