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Federal Corner: Ensuring That Clients Receive Credit for Concurrent State Time


Many of our clients are dismayed to learn that they face charges in federal and state court for the same exact conduct or for relevant conduct.  Fortunately, the federal sentencing guidelines provide that where the state offense “is relevant conduct to the instant offense of conviction under the [relevant conduct provisions], the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.”  (emphasis added).  U.S.S.G. § 5G1.3 Comment n. 3.  So problem solved, right?

Not exactly.  If the client was taken into federal custody on a writ of habeas corpus ad prosequendum, even if the judge sentences him to “concurrent time” with the state offense, the federal Bureau of Prisons (BOP) might not give him credit for all of the time spent in federal custody awaiting sentencing.  The Fifth Circuit’s decision in United States v. Taylor, 973 F.3d 414 (5th Cir. 2020) provides important guidance on how to ensure that clients awarded concurrent sentences for federal and state charges actually receive full credit for that time.

Importantly, Taylor recognized that district courts wishing to award credit for time served while awaiting sentencing should not attempt to award “credit,” and should not state a commencement date for the federal sentence earlier than the date of federal sentencing.  They should instead reduce the sentence by the amount of time the defendant has been in federal custody awaiting sentencing. Judge Wiener’s opinion reads, in part, as follows:

An Overview of the Case

Defendant-Appellant Tyvon Taylor appeals the 120-month sentence imposed by the district court following his plea of guilty to one count of being a felon in possession of a firearm. Taylor contends that: (1) The district court erred when it attempted to reduce the length of his sentence either by ordering that the sentence commence on a particular date or by ordering that he be given credit for time served, and (2) The sentence imposed by the district court is impermissibly ambiguous because the pronouncement that it “run concurrently with any sentence imposed by state authorities” does not specify with which state sentence or sentences, corresponding to four pending state court charges, the federal sentence will run concurrently.

We conclude that the district court’s attempted reduction of Taylor’s sentence was ineffectual and order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence regardless. We also conclude that the sentence imposed is ambiguous because it fails to identify the specific state sentence or sentences with which the federal sentence will run concurrently. We therefore order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence knowing of the ambiguity.

The Federal Charges

In June 2018, a federal grand jury returned a one-count indictment charging Taylor with being a felon in possession of two firearms, viz. a .40 caliber Springfield Armory pistol and a Smith and Wesson 9mm pistol, beginning on or about August 12, 2017, and continuing until on or about August 15, 2017. In October 2018, Taylor pleaded guilty, and the district court ordered the preparation of a presentence report (PSR).

The “offense conduct” section of the PSR includes information about Taylor’s involvement in shootings on August 12 and 13, 2017. That section of the PSR also includes information regarding an August 15, 2017 traffic stop of a vehicle in which Taylor was a passenger during which officers found Taylor in possession of firearms.

The PSR reflects that, during the August 12, 2017 incident, Shreveport (Louisiana) Police Department officers responded to a shooting and located a victim suffering from multiple gunshot wounds. That victim identified Taylor as his assailant. Investigators located .40 caliber and 9mm caliber shell casings at the scene.

The August 13, 2017 incident involved officers responding to a call of shots fired and observing an empty vehicle crashed into a light pole. The PSR noted that investigators located spent shell casings and live rounds in and around the vehicle. The owner stated that Taylor had borrowed the vehicle. Taylor was identified as the person driving and shooting from the vehicle prior to the crash and was observed fleeing from the vehicle prior to the arrival of the police.

As for the August 15, 2017 traffic stop, the PSR recounted that, after procuring an arrest warrant for Taylor, police had arrested him during a traffic stop of a vehicle in which he was a passenger. The driver of the vehicle stated that once police attempted to initiate the stop, Taylor had pointed two handguns at him and accused him of setting up Taylor. As noted, police located a Smith and Wesson 9mm handgun and a .40 caliber Springfield Armory handgun in the vehicle. The analysis conducted on the two firearms in Taylor’s possession at the time of his arrest determined that they matched shell casings found at the scenes of the August 12 and August 13 shootings.

The Pending State Charges

The PSR also listed four pending state charges:

(1) July 31, 2017 (case number 351,576) related to possession of a firearm or carrying a concealed weapon by a convicted felon and illegal use of weapons during violence;

(2) August 12, 2017 (case number 351,577) related to attempted second degree murder and possession of a firearm or carrying a concealed weapon by a convicted felon;

(3) August 13, 2017 (case number 351,999) related to illegal use of weapons or dangerous instrumentalities and possession of a firearm or carrying a concealed weapon by a convicted felon; and

(4) August 15, 2017 (case number 351,578) related to possession of a firearm or carrying a concealed weapon by a convicted felon.

Taylor’s Sentencing Memorandum

Taylor did not object to the PSR, but he did file a sentencing memorandum in which he requested that his sentence be at the low end of the guidelines range and run concurrently to any sentences imposed in the four pending state court charges, pursuant to U.S.S.G. § 5G1.3(c):

If … a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.

Taylor’s Request at Sentencing

At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody, which is the July 9 of 2018 date.” Defense counsel noted that Taylor had already served nine or ten months on the state court charges prior to that date, and he speculated that the Bureau of Prisons would not credit Taylor for that time in state custody. Defense counsel suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

District Court’s Pronouncement of the Sentence

The district court observed that the guidelines sentence had been substantially increased because of the relevant conduct but determined that the application of the attempted murder guideline was appropriate. The court sentenced Taylor to the within-guidelines statutory maximum of 120-months imprisonment and a three-year period of supervised release.

In pronouncing the sentence, the district court stated, “[t]he judgment in this particular matter will show that this sentence is to run concurrently with any sentence imposed by state authorities on the conduct described, and this Court will begin the federal sentence as of the time he is taken into federal custody, which is July 9, 2018.” The written judgment provides, “[t]his sentence shall run concurrently with any sentence imposed by state authorities on the conduct described. Defendant shall receive credit for time served from July 9, 2018.”  At the sentencing hearing, defense counsel objected to the sentence to the extent that the statutory maximum sentence deprived Taylor of the benefit of a guilty plea.

Taylor’s Arguments on Appeal

Taylor here takes issue with the sentence imposed by the district court for two reasons. He first contends that the district court erred when it attempted to reduce the length of his sentence either by giving him credit for time served in federal custody prior to the sentencing (as did the oral pronouncement) or by commencing his sentence retroactively (as did the written judgment). Taylor also claims that the sentence is impermissibly ambiguous because it does not specify with which state sentence or sentences (corresponding to the four pending state court charges) the federal sentence will run concurrently. Taylor requests that we vacate his sentence and remand to the district court to permit that court to: (1) consider reducing his federal sentence by an amount equal to the period of time he served in federal custody prior to being sentenced and (2) clarify with which state sentence or sentences his federal sentence will run concurrently.

Taylor Invited the District Court’s Error

Taylor invited the district court’s error with respect to the backdated commencement of his sentence and the credit for time served in federal custody prior to being sentenced. At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody … July 9 of 2018.” Defense counsel also suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

“The Fifth Circuit will not reverse on the basis of invited error, absent manifest injustice.” Manifest injustice occurs when the district court’s “error was so patent as to have seriously jeopardized the rights of the appellant.”

Taylor Argues that Manifest Injustice Occurred

Taylor insists that a manifest injustice occurred because (1) the district court intended to reduce his sentence by the number of days he served in federal custody prior to being sentenced and (2) the ineffectual sentence fails to do so. In the oral pronouncement of the sentence, the district court stated, “this Court will begin the federal sentence as of the time [Taylor] is taken into federal custody, which is July 9, 2018.” The written judgment provides, “Defendant shall receive credit for time served from July 9, 2018.”

What the District Court Should Have Done

The district court is not permitted to compute the credit for time served or to order the backdated commencement of a sentence. The BOP alone is authorized to take these actions.  If the district court intended to award Taylor credit for the time he served in federal custody prior to being sentenced, that court should have reduced his sentence accordingly and noted the reason for the reduction in the judgment. (emphasis added). 

The Fifth Circuit Orders Limited Remand on the Length of the Sentence

Although the limited remand is a seldom-used practice in this circuit, we deem that procedure warranted in a case such as this. It is not apparent here that the defendant was harmed by an error because it is not clear whether the district court would have acted differently had it known of the error.  We order a limited remand so that the district court may consider, and state on the record, whether it would have imposed the same sentence knowing that it could not order either that (1) the commencement of Taylor’s sentence be backdated or (2) Taylor receive credit for the time he served in federal custody prior to sentencing.  If on remand the district court clarifies that it would not have imposed the same sentence, then the error Taylor invited is manifest, and we would vacate Taylor’s sentence and remand for resentencing. If, on the other hand, the district court indicates that it would have imposed the same sentence even knowing the limitations regarding the commencement of the sentence and credit for time served, then we would conclude that no manifest injustice occurred and would affirm the sentence.

The Fifth Circuit Orders Also Orders Limited Remand on the Concurrent Nature of the Sentence

We conclude that the district court committed an obvious error when it imposed an ambiguous sentence that fails to specify with which of the state sentence or sentences the federal sentence will run concurrently. But it is not clear whether the ambiguous nature of Taylor’s sentence affected his substantial rights, so we order a limited remand for the district court to clarify, and state on the record, whether it would have imposed the same sentence had it known of the ambiguity.


We order a LIMITED REMAND to the district court to consider, and state on the record, whether it would have imposed the same sentence knowing that: (1) it could not effectively order the backdated commencement of Taylor’s sentence, (2) it could not effectively order that Taylor be given credit for the time he served in federal custody prior to being sentenced, and (3) the sentence is susceptible of more than one reasonable interpretation. We retain jurisdiction over this appeal pending the district court’s answer to our inquiry.

My Thoughts

  • Clarity is key to ensuring that our clients receive credit for concurrent time.
  • Asking the Court to reduce your client’s sentence by the amount of time awaiting federal sentencing is not a downward departure or a variance.  Rather, it is an adjustment contemplated by the guidelines, and now by the Fifth Circuit.  See United States Sentencing Guidelines § 5G1.3, Comment n. 2(C).

Federal Corner: “and” means “and” Safety Valve is Open Facts of the Case


United States v. Lopez, 988 F.3d 431 (9th Cir. 2021)
First Step Safety Valve Application

In December of 2018, Eric Lopez, a thirty-five-year-old man from South Gate California, drove across the United States Mexico border in Otay Mesa, California. The Customs and Border Protection Officer noticed a “soapy-odor” coming from the vehicle and referred him to secondary. The secondary inspection of Lopez’s vehicle revealed packages containing methamphetamine. He was arrested and charged with importing at least fifty (50) grams or more of a substance containing methamphetamine in violation of Title 21 U.S.C. §§ 952 and 960. He entered a guilty plea.


At sentencing, the district court explained that Lopez’s Pre-Sentence Investigation Report (“PSR”) revealed only one relevant conviction under the sentencing guidelines. When Lopez was twenty-two years old, he spray-painted a sign onto a building. Lopez was convicted of vandalism. He served 13 months of imprisonment for that vandalism conviction. The Sentencing Guidelines Manual § 4A1.1(a) states that the district court must add 3 points for each prior sentence exceeding thirteen months of imprisonment. The district court agreed with Lopez’s counsel, though, that Lopez only met the criteria under 18 U.S.C. § 3553(f)(1)(B), a prior three-point offense, and that he did not meet the other two parts of the criteria under §3553(f)(1).

The government argued that the safety valve criteria under the First Step Act of 2018 was to be read in the disjunctive. The Act was amended in 2018 to change 18 U.S.C. § 3553(f)(1) from allowing no more than 1 criminal history point if: (1) the defendant does not have – (A) more than 4 criminal history points . . . ; (B) a prior 3-point offense . . . ;  and (C) a prior 2-point violent offense [emphasis added] The district court recognized that the ability to sentence below the guidelines turned on Lopez’s argument that the statute required all three in the conjunctive as opposed to the government’s position. Lopez was eligible for safety-valve relief under the district court’s conjunctive interpretation because, while he had a prior 3-point offense, he did not also have the other two criteria. The court then sentenced him to four years (48 months) of imprisonment. This was one (1) year less than the five-year (60 month) mandatory minimum. The government timely appealed.

Appeal: “and” means “and”

The Court of Appeals went through a very in-depth examination of the word “and.” The government conceded that the plain and ordinary meaning of § 3553(f)(1)’s “and” was conjunctive. See Lopez at 436. Their analysis started with that concession and an examination of Merriam-Webster:

For the past fifty years, dictionaries and statutory-construction treatises have instructed that when the term “and” joins a list of conditions, it requires not one or the other, but all of the conditions. See, e.g., Merriam-Webster’s Collegiate Dictionary 46 (11th ed. 2020) (defining “and” to “indicate connection or addition”); Antonin   Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116-20 (2012) (stating that “and” combines a list of conditions in a statute); New Oxford American Dictionary 57 (3rd ed. 2010) (stating that “and” is “used to connect words of the same part of speech, clauses, or sentences that are to be taken jointly”) (emphasis added); Oxford English Dictionary 449 (2d ed. 1989) (stating that “and” introduces “a word, clause, or sentence, which is to be taken side by side with, along with, or in addition to, that which precedes it”) (italics omitted); Webster’s Third New International Dictionary 80 (1967) (defining “and” to mean “along with or together with” or “as well as”).

See id. The Court then moved to acknowledging that “Congress recognized the problem and sought to give district courts more flexibility” in sentencing below mandatory-minimum sentences that were “unnecessary and harsh.” See Lopez at 435. In addition to Merriam Webster, the Court examined the Senate’s Legislative Drafting Manual 64.

The thrust of the argument lay with the fact that the Court determined that Section 3553(f)(1) is “a conjunctive negative proof.” Lopez at 436. To be eligible for the safety valve, a defendant must prove that he or she does not have the following: (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense. See id.

It only made a footnote, but Justice Scalia and Bryan Garner had an example of the opposite – disjunctive negative proof:

“To be eligible for citizenship, you must prove that you have not (1) been convicted of murder; (2) been convicted of manslaughter; or (3) been convicted of embezzlement.” See Scalia & Garner, supra, at 120 (emphasis added). The person applying for citizenship must “have done none” of the three conditions. Id. If a person is convicted only of murder, for example, that person is automatically ineligible for citizenship under this example of a disjunctive negative proof. See id.

Lopez at fn. 7.

The Court found that this was the opposite of what was intended by Congress with the First Step Act. Congress intended the statute to “allow judges to … use their discretion to craft an appropriate sentence that will fit the crime.” See Lopez at fn. 6.

The government argued that the conjunctive could produce “absurd” results. The government pointed out that a career offender with several drug convictions – but who did not have a violent act conviction – could be eligible for safety-valve relief under a conjunctive interpretation. Id. at 438–39. The Court disagreed that the hypothetical would lead to “absurd” results.  The Court found that a conjunctive interpretation results in § 3553(f)(1) not barring non-violent repeat drug offenders from a safety-valve application while violent repeat drug offenders will almost always be barred. Id. at 439. In another footnote, though, the Court dealt with the career hypothetical even more succinctly, noting that if a career drug offender did qualify for safety valve relief, a district court would still retain discretion to sentence the career drug offender above the mandatory-minimum sentence. Id. at fn. 8.

The government further argued that failing to read parts (B), 2-point violent offense, and (C), three-point offense, was superfluous in the conjunctive because any defendant who has (B) a “prior 3-point offense” and (C) a “prior 2-point violent offense” will always have five criminal history points and therefore meet (A) “more than 4 criminal history points.” Id. at 440. The Court concluded that a conjunctive interpretation did not render the language superfluous and noted that a three-point violent offense can simultaneously satisfy two subsections, (B) and (C), while not satisfying subsection (A). See id.

In sum, the majority stated that “courts must presume that a legislature says in a statute what it means and means in a statute what is says there…too many reasons – plain meaning, structure, the Senate’s own legislative drafting manual, and consistent interpretations” support its conclusion that § 3553(f)(1)’s “and” is unambiguously conjunctive. See Lopez at 441. Further, they noted that § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated…but sometimes Congress uses words that reach further than some members of Congress may have expected and Congress has “the authority to amend the statue accordingly” if “and” was supposed to be “or.” Id. at 444.

Dissent (in part)

Circuit Judge Smith wrote an opinion concurring in part and dissenting in part. The opinion focuses on the majority’s analysis of parts (B) and (C). Judge Smith focused on the fact that the Guidelines separate those two classes of convictions and the First Step Act included language stating this in § 3553(f)(1)(C)- a prior 2-point violent offense, as determined under the sentencing guidelines. He therefore agreed with the government that a conjunctive interpretation of “and” renders subsection (A) surplusage but also agreed with the majority that this superfluity does not change the outcome. Id. at 446.

Judge Smith’s opinion concludes that Congress may very well have intended that the safety valve exclude only a very specific subset of individuals or that there was something particularly disqualifying about having both a prior two-point violent offense and a prior three-point offense. Id. at 447.


In sum, Lopez clarifies and changes the scope of who may qualify for safety valve relief and practically who does not qualify – individuals with 4 total points, a 3-point offense and a 2-point violent offense. It’s time to ensure we evaluate our cases closely. Although, as the majority and dissent pointed out, just because they qualify does not mean that a judge does not retain the discretion to sentence above the mandatory minimum.

Federal Corner: Thomas v. Lumpkin


Capital federal habeas proceedings, or the civil procedure and law governing challenges to state capital sentences in federal court, is a narrow area of practice. These cases often turn on complex procedural issues and federal courts apply a standard of review that is highly deferential to state courts. As a result, federal habeas relief from a death sentence is vanishingly rare. In the broader field of criminal defense, however, this small number of cases offers a rare glimpse into how a single remark in state court or single sentence in a state court opinion can have outsized importance in federal court.

Federal post-conviction review of Texas sentences of death is governed by Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. AEDPA was enacted with the interests of federalism and finality as its driving force. Chapter 153 was accordingly designed to narrowly limit federal courts’ review of state court convictions and sentences of death. For example, 28 U.S.C. § 2254(d) reads:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In other words, where a state court has determined that a claim does not warrant relief from a petitioner’s capital conviction and sentence, a federal court may not come to a different decision unless a petitioner can satisfy one of two very narrow exceptions: either that the state court unreasonably (not just incorrectly) applied an on-point Supreme Court decision or that the state court made an unreasonable (not just incorrect) factual finding.

Section 2254 imposes a notoriously high bar on capital petitioners and will almost always frustrate merits review by a federal court even where a claim goes to the very reliability of a sentence of death. The Fifth Circuit’s recent decision in Thomas v. Lumpkin, 995 F.3d 432 (5th Cir. 2021), illustrates how Section 2254 operates  to prevent a federal court from granting relief from a sentence of death where the jury was tainted by racial bias. In federal court, Mr. Thomas sought to challenges his sentence, in part, on the ground that the jury that sentenced him to death was tainted by racial bias. The majority briefly summarized:

In March 2005, an all-white jury found Thomas guilty of capital murder and sentenced him to death.

The dissent further explained:

An all-white jury found Thomas, a black man, guilty of capital murder and sentenced him to death for killing his wife, a white woman, and two children, including their interracial child. That jury included three jurors who acknowledged bias against interracial marriage.

The Fifth Circuit’s majority opinion summarized Mr. Thomas’s briefing on this issue:

Thomas emphasizes to this court that “his jury included three jurors who admitted that they harbored bias against ‘people of different racial backgrounds marrying and/or having children.’” As we previously discussed, attitudes about interracial marriage were explored because the defendant Thomas, who is a black man, married Laura Christine Boren, a white woman. Though Thomas killed his wife and their own interracial child, Andre Jr., the murder for which he was tried was that of Leyha Marie, his wife’s child by her later relationship. The briefing does not indicate the race of that victim, nor does it raise any issues about race having affected the trial beyond juror attitudes about an interracial marriage and the couple having a child together.

After block-quoting the sections from the jury questionnaire about prospective jurors’ views on interracial marriage, the Fifth Circuit examined the three contested jurors’ answers to those questions and in voir dire. The Fifth Circuit observed that “only one” of the three jurors at issue had answered that:

[H]e “vigorously oppose[d] people of different racial backgrounds marrying and/or having children and [was] not afraid to say so.” [He] was the only one of those three jurors who was questioned on voir dire specifically about racial attitudes. Counsel asked how [he] would feel about sitting on a capital case where the black male defendant was accused of killing his wife, a white female. He answered,

Well, I think—I think it’s wrong to have those relationships, my view, but we are all human beings and God made every one of us. And, you know, as far as—I don’t care if it is white/white, black/black, that don’t matter to me. If you’ve done it, you are a human being, you have got to own up to your responsibility.

  1. So, the color of anyone’s skin would not have any impact or bearing upon your deliberations?
  2. No, not according to that, no.
  3. Okay.
  4. Not whether they were guilty or innocent.

Defense counsel then asked again whether [the juror] would take into account the defendant’s or victim’s race in deciding whether to impose the death penalty. [He] answered: “No, I wouldn’t judge a man for murder or something like that according to something like that, no, I would not.”

As to the other two contested jurors, the Court summarized their answers:

Another juror…checked the option on the questionnaire that his church’s position was that there “should not be” interracial marriage, and [he] indicated he agreed with that view. In response to Question 105, [he] checked the option that he “oppose[d] people of different racial backgrounds marrying and/or having children, but [he] tr[ied] to keep [his] feelings to [himself].” [He] was not specifically questioned about these answers. When the court asked him during voir dire if he could “make up [his] mind solely upon the evidence” presented, [he] answered that he could.

The final relevant juror . . . indicated that her church or spiritual affiliation did not have a position on interracial marriage, and she added: “It is not the church[’s] place to have a position on matters such as this.” Like [the second juror], she checked the option on Question 105 that she opposed interracial marriage and such couples having children but tried to keep those feelings to herself. She added her own explanation: “I think it is harmful for the children involved because they do not have a specific race to belong to.” [She] was not questioned about her answers at voir dire. The court asked whether she could assess the case based only on the evidence presented in the courtroom, and she stated that she could.

A majority of the panel proceeded with applying Section 2254(d) to Mr. Thomas’s claim of racial bias. The first question the panel majority addressed was how Mr. Thomas had raised his claim of racial bias in state court:

In order to understand the claims about juror racial bias presented in state court, we examine the state habeas application. Counsel filed 44 claims for relief in state court. The only one relevant for jury bias itself (as opposed to ineffectiveness of counsel on the issue) was Claim 20, which stated that the “presence of jurors opposed to interracial relationships deprived Mr. Thomas of a fair trial.” Thomas argued that the presence of racially biased jurors “raises overwhelming concerns that significant racial bias affected the decision-making process in Mr. Thomas’s capital trial.” He also contended it was “highly likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as [] juror[s] in accordance with [their] instructions and [their] oath.’”

In accordance with Section 2254(d), the Court then identified the state court’s adjudication of that claim:

The only relevant fact findings by the state habeas court were these:

All members of Mr. Thomas’s jury were white.

There is no evidence that the jury’s decision was racially motivated.

No objection was ever made by the Applicant to the purported racial bias of any juror that was seated.

There were no legal conclusions about jury racial bias other than as to the effectiveness of counsel.

(emphasis added)

Because Section 2254(d) requires a reviewing federal court to determine, as the next step in its analysis, whether a state court’s adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” the panel summarized the relevant Supreme Court case law:

We begin our analysis of the law with essential points: “blatant racial prejudice is antithetical to the functioning of the jury system.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017). It is undeniable “that discrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’” Id. at 868 (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)). Any “defendant has the right to an impartial jury that can view him without racial animus, which so long has distorted our system of criminal justice.” Georgia v. McCollum, 505 U.S. 42, 58 (1992). If a defendant is denied the right to an impartial decisionmaker, regardless of the nature of the bias, any subsequent conviction is tainted with constitutional infirmity. See Virgil [v. Dretke], 446 F.3d [598] at 607 [(5th Cir. 1996)]. Any juror who “the defendant has specific reason to believe would be incapable of confronting and suppressing their racism” should be removed from the jury. See McCollum, 505 U.S. at 58. If a juror should have been removed for cause, then seating that juror requires reversal. United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000).

A defendant’s right to an impartial jury, though fundamental, does not mean that jurors who have preconceived notions cannot be validly seated. To the contrary, as the Supreme Court has instructed:

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 723 (1961).

After identifying the relevant Supreme Court case law, the Court again turned its attention to how Mr. Thomas’s claim of racial bias by the jury was dealt with by the state court:

Thomas presented his argument on this claim to the state habeas court in four short paragraphs. Quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985), he argued that it was “likely that the views of the four impaneled jurors who opposed interracial marriage prevented or substantially impaired ‘the performance of [their] duties as a juror in accordance with [their] instructions and [their] oath.”

In response to this argument, the state court found “[t]here is no evidence that the jury’s decision was racially motivated.” That finding is not directly on point as to whether any juror with a relevant bias that made him or her unable to be impartial was seated on the jury.

Despite conceding that “we can identify no state-court findings directly on the point of whether a biased juror was seated,” the panel continued on with its analysis of whether the state court’s adjudication of Mr. Thomas’s claim was unreasonable:

Indeed, “determining whether a state court’s decision resulted from an unreasonable . . . factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” Richter, 562 U.S. at 98. Rather, a federal court will deny habeas relief “if there was a reasonable justification for the state court’s decision” in the record. Id. at 109.

The issue before us, then, is whether it was “objectively unreasonable” for the state habeas court to reject Thomas’s claim that his right to an impartial jury was violated. See Miller, 420 F.3d at 360. In reviewing whether the state court erred when it did not find that someone with disqualifying racial attitudes was seated as a juror, we should consider any “reasonable justification for the state court’s decision.” See Richter, 562 U.S. at 109. A necessary implicit finding within the state court’s explicit finding is that no juror would base his decision on race rather than on the evidence presented. To rephrase, any bias of a juror could be set aside in determining guilt or a punishment. We now turn to determine whether that finding was “objectively unreasonable.” See Miller, 420 F.3d at 360.

Here, the majority emphasized the first contested juror’s answer in voir dire that he could set aside his expressly racist views:

In evaluating the state habeas court’s finding and any possible reasonable justifications, we consider the answers [he] gave during voir dire. The questioning did not cause [him] to retreat on his beliefs about interracial marriage. Still, when asked if “the color of anyone’s skin would . . . have any impact or bearing upon [his] deliberations,” [he] responded, “No, not according to that, no.” He “wouldn’t judge a man for murder or something like that according to something like [race], no, I would not.” [He] also said that he didn’t “care if it was white/white, black/black, that don’t matter.”

On that record, the state court found “no evidence that the jury’s decision was racially motivated.” We consider it a reasonable understanding of that finding that [his] answers, if accepted as true, which the state habeas court was entitled to do, were clear that his moral judgment would not affect his fact finding. (emphasis added)

The majority accordingly concluded: Thomas is not entitled to relief on the basis that the state court improperly resolved the claim that any partial jurors were seated. Section 2254(d), along with the rest of AEPDA, commands that federal courts defer to state courts’ adjudication on the merits of any claim also raised in federal court. But a state court’s opinion may not always squarely address, let alone resolve, the serious constitutional concerns about the reliability of a petitioner’s capital conviction and sentence of death. As the Thomas decision illustrates, however, one juror’s remark and one phrase in the state court’s opinion may be sufficient for a federal court to find that it will not disturb a sentence of death obtained by a jury tainted by racism.

Federal Corner: United States v. Robinson


United States v. Robinson
Court is required to evaluate 18 U.S.C. § 3553(a) factors.

In United States v. Robinson, 741 F.3d 588 (5th Cir. 2014), a defendant received a re-sentencing for a district court’s failure to consider his cooperation under 18 U.S.C. § 3553(a). This case’s reasoning is important not only to the 5K departure that was requested, but also generally to any departure or variance that is requested.

Facts of the Case

This case reads like many other suppression cases-in 2010, investigators determined that there were images of child pornography in a suspect’s possession. The investigators obtained subscriber information and the Internet Protocol “IP” logs and traced them to a particular IP address assigned to the office of Accurate Roofing Company, Inc.

The investigators determined that the owner’s son appeared in one of the images and obtained a search warrant for both Robinson’s residence and his office. Robinson gave a statement initially but stopped when he was asked how pictures of his son ended up on another computer. The next day, after receiving his rights, he gave a full recorded confession.

Suppression and Conditional Plea

Robinson moved to suppress the evidence as well as the statement. He argued that the affidavit “failed to establish a nexus between the place to be searched and the evidence sought.” The district court denied the suppression motions after an evidentiary hearing. Robison obtained a conditional plea agreement and pled guilty to one count of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography.

Cooperation & Sentencing

Robinson filed a sentencing memorandum which, in relevant part, requested a lower sentence based on his cooperation with investigators in at least two other cases. At sentencing, Robinson urged the Court to consider a reduction under 18 U.S.C. § 3553(a)(2) of his sentence based on cooperation. The district court, however, stated, “it does you no good for the purposes of sentencing in that the Court does not have before it a U.S.S.G. §5K1.1 motion to consider.” The district court further stated that it was a “moot question” whether Robinson would have received a reduction under §5K1.1 because the Government had chosen not to file such a motion. There’s no reason given why they withheld the motion.

As an additional thought, the opinion discusses how Courts need to be specific when making findings. Ask the Court to specify why your client is not getting what you’re advocating for.

Appeal to the 5th Circuit

This case is not about the search and the Court of Appeals made short work of the suppression argument. However, it did provide help in the sentencing realm. The discussion started with outlining that the Court must conduct a two-step process at sentencing – first, calculate the sentence with the “now-advisory Sentencing Guidelines;” secondly, apply an individualized assessment.

Robinson made a winning argument that the Court must consider his cooperation in the individualized examination of his assessment under § 3553(a). The Court of Appeals held that the 5th Circuit was joining its sister circuits in expressly holding that a sentencing court has the power to consider a defendant’s cooperation under § 3553(a), irrespective of whether the Government files a § 5K1.1 motion. We further join our sister circuits in holding that a sentencing court’s failure to recognize its discretion to consider a defendant’s cooperation under § 3553(a)(1) is a significant procedural error.

Non-Harmless Procedural Error

In deciding that the Court committed a procedural error, the most significant point the Court of Appeals addressed was that the trial court appeared to believe its hands were tied and it could not depart.

The § 5K1.1 motion is certainly within the Government’s prerogative to file. They did not in this case. And, so, it’s a moot question as to whether or not you have—would have received a departure from the 720 months had the Government filed that motion. It’s simply not before the Court.

Robinson managed to avoid the dreaded “harmless error”-The Government argued that the error, if any, was harmless. The Court disagreed and discussed its reasoning in United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008) (holding that defendant was “entitled to have his sentence set by a judge aware of the discretion”) with the current scenario. In Burns, the defendant in a pre- Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) (crack mandatory and minimums were the only required parts under statute, not the 100:1 disparity) had argued that the Court should grant a departure, but the Court had believed it could not.

However, Burns had an additional quirk where the Court stated that it would have imposed the same sentence if it would have considered the impermissible pre-Kimbrough disparity stating that “the Court [Burns district court] finds it has no—limited discretion, if any. And if I do have discretion, I exercise my discretion not to downward depart on that basis.” The Court of Appeals in that scenario reversed and remanded for another sentencing.

The Court of Appeals in Robinson found that it had even stronger reasons in the instant case, because the Court did not say that it would have given the same sentence if it had considered the assistance in the other two cases by Robinson. Unfortunately for Robinson, it appears from the re-sentencing that the Court did give the same sentence. That sentence was upheld on reasonableness grounds.

Practical Applications

I only knew one defense attorney who never felt the sirens call of the 5K. Unlike her, most of us, especially Criminal Justice Attorneys, will have to deal with cases like Robinson where our client decides to sell his soul and participate in a part of the process that is deeply baked into the federal system. Simply because a court has the discretion does not mean that it will exercise its discretion.

Going forward, what can the practitioner do to ensure that if his client decides to cooperate, that their cooperation has the best chance of being rewarded- either by the United States, which makes the matter straightforward, or by the Court’s 3553(a) analysis?

We need to look back at the pre-Booker case United States v. White, 71 F.3d 920, (DC Cir. 1995). In White, the defendant obtained a plea agreement to a regular (18 U.S.C. 371) conspiracy with a drug basis, but that plea agreement did not have a provision for cooperation. The Court there discussed that there was no “fairness” or “bad faith” review available under the Constitution. This would have been available to him if he had a plea agreement with a cooperation provision. It cited to United States v. Jones, 313 U.S. App. D.C. 128, 58 F.3d 688, 692 (D.C. Cir.) (noting that a plea agreement with substantial assistance provision “provides additional protection” because “like all contracts, it includes an implied obligation of good faith and fair dealing”). This brings us to a practice in the Western District where a defendant many times is faced with a sealed plea addendum in any case where there is a plea agreement. There may be a benefit to the inclusion in that plea agreement of 5K or cooperation language as you may be receiving “additional” protections.

The other issue that was raised by Robinson is why did the Government choose not to file a 5K? The Court “acknowledge[d]” the cooperation, but was it just not complete enough for the Government? White was illustrative on this point as well- it cited to United States v. Drown, 942 F.2d 55, 59 n.7 (1st Cir. 1991), that discussed a temporal limitation on passing the 5K cooperation from sentencing to a post-sentencing Fed. R. Crim. Proc. 35(b) motion. In Drown, the Court recognized a temporal stricture of 5K1.1 and rule 35(b), stating that a prosecutor must make a good faith evaluation of the assistance rendered before sentencing without considering the possibility of a later rule 35(b) motion. The Drown Court stated that failure to do so touches on a criminal defendant’s due process rights, but it unfortunately did not further explain or justify how.

Final Thoughts

  • Conditional plea agreements are rare in some jurisdictions, but vital as they are your only way to not waive pre-trial motions if a plea will be entered.
  • Consider taking that plea agreement with cooperation language.
  • Watch out for AUSAs who want to massage your cooperation past the sentencing date.

Federal Corner: Seizures by Force


After 25 years and 250 Voice articles, TCDLA legend Buck Files decided to retire or maybe just take a break from writing the Federal Corner. We don’t have Buck Files’ credentials or experience, but we are honored to present this article for the Federal Corner. Fortunately for us, and for you, the reader, on March 25, the United States Supreme Court slow-pitched a softball with its most recent decision in Torres v. Madrid, 141 S. Ct. 989 (2021).

This opinion answers the question of whether a seizure of a person for purposes of the Fourth Amendment occurs when an officer uses force against a person (in this case actually shooting Torres) with the intent to restrain the person even if the force does not succeed in subduing the person. Put simply, if an officer shoots a person in an attempt to detain the person and the person flees after being shot, is this a Fourth Amendment seizure? The answer is Yes.

Justice Roberts delivered the opinion joined by Breyer, Sotomayor, Kagan, and Kavanaugh. The opinion reads, in part, as follows.

The Facts of the Case

New Mexico State Police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant on a white-collar criminal, who was also suspected of involvement in drug trafficking and violent crime including murder. Roxanne Torres was in the parking lot of the apartment complex with another person near a Toyota FJ Cruiser. Officer Williamson concluded that neither Torres nor her companion was the target of the warrant. As the officers approached the vehicle, the companion departed, and Torres got into the driver’s seat. The officers attempted to speak with Torres, but she did not notice their presence until one of them tried to open the door to her car. She thought that the officers were carjackers trying to steal her car, and she hit the gas to escape them. Officer Williamson and Officer Madrid fired thirteen shots at Torres striking her twice in the back and temporarily paralyzing her left arm.

Torres drove to a hospital 75 miles away. The hospital was able to airlift her to a hospital in Albuquerque, where the police arrested her the next day.

The Civil Lawsuit

Torres sought damages from Officers Madrid and Williamson under 42 U.S.C. § 1983, which provides for a cause of action for the deprivation of constitutional rights by a person acting under the color of state law. She claimed that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary Judgment for Madrid and Williamson and the Tenth Circuit affirmed the ruling on the ground that a suspect’s continued flight after being shot by the police negates a Fourth Amendment excessive-force claim. Torres v. Madrid, 769 F. App’x 654, 657 (10th Cir. 2019). 

Question Presented

Whether the application of physical force to the body of the person with the intent to restrain is a seizure, even if the force does not succeed in subduing the person.

California v. Hodari D.

California v. Hodari D., 499 U.S. 621, (1991) interpreted the term “seizure” by consulting the common law of arrest. The common law distinguished the application of force from a show of authority, such as an order for a suspect to halt. The latter does not become an arrest unless and until the arrestee complies with the demand. Hodari D. articulated two pertinent principles.  First, common law arrests are Fourth Amendment seizures. Second, the common law considered the application of force to the body of a person with the intent to restrain to be an arrest, no matter whether the arrestee escaped.

English Common Law Arrests – Mere Touch Rule

The traditional rule persisted that all an arrest required was “corporal seising or touching the defendant’s body.” 3 W. Blackstone, Commentaries on the Laws of England 288 (1768) (Blackstone). Early American courts adopted this mere-touch rule from England, just as they embraced other common law principles of search and seizure. See Wilson v. Arkansas, 514 U.S. 927, 933 (1995). Justice Baldwin, instructing a jury in his capacity as Circuit Justice, defined an arrest to include “touching or putting hands upon [the arrestee] in the execution of process.” United States v. Benner, 24 F.Cas. 1084, 1086–1087 (No. 14,568) (CC ED Pa. 1830).

Stated simply, the cases “abundantly shew that the slightest touch [was] an arrest in point of law.” Nicholl v. Darley, 2 Y. & J. 399, 404, 148 Eng. Rep. 974 (Exch. 1828). Indeed, it was not even required that the officer have, at the time of such an arrest, “the power of keeping the party so arrested under restraint.” Sandon v. Jervis, El. Bl. & El. 935, 940, 120 Eng. Rep. 758, 760 (Q. B. 1858). The consequences would be “pernicious,” an English judge worried, if the question of control “were perpetually to be submitted to a jury.” Ibid.; cf. 3 Blackstone 120 (describing how “[t]he least touching of another’s person” could satisfy the common law definition of force to commit battery, “for the law cannot draw the line between different degrees of violence”).

Countess of Rutland – The Use of a Mace

This case, of course, does not involve “laying hands,” Sheriff v. Godfrey, 7 Mod. 288, 289, 87 Eng. Rep. 1247 (K. B. 1739), but instead a shooting. The closest-fitting decision seems to be Countess of Rutland’s Case, 6 Co. Rep. 52b, 77 Eng. Rep. 332 (Star Chamber 1605). In that case, serjeants-at-mace tracked down Isabel Holcroft, Countess of Rutland, to execute a writ for a judgment of debt. They “shewed her their mace, and touching her body with it, said to her, we arrest you, madam.” Id., at 54a, 77 Eng. Rep., at 336. We think the case is best understood as an example of an arrest made by touching with an object, for the serjeants-at-mace announced the arrest at the time they touched the countess with the mace. See, e.g., Hodges, Cro. Jac., at 485, 79 Eng. Rep., at 414 (similar announcement upon laying of hands). Maybe the arrest could be viewed as a submission to a show of authority because a mace served not only as a weapon but also as an insignia of office. See Kelly, The Great Mace, and Other Corporation Insignia of the Borough of Leicester, 3 Transactions of the Royal Hist. Soc. 295, 296–301 (1874).

However, one reads Countess of Rutland, there is no basis for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest. The required “corporal seising or touching the defendant’s body” can be as readily accomplished by a bullet as by the end of a finger. 3 Blackstone 288.

Objective Intent to Restrain Required

The application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. See County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend.

The appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain, for we rarely probe the subjective motivations of police officers in the Fourth Amendment context. See Nieves v. Bartlett, 587 U. S. ––––, ––––, (2019). Only an objective test “allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Michigan v. Chesternut, 486 U.S. 567, 574 (1988).  While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get one’s attention will rarely exhibit such an intent. See INS v. Delgado, 466 U.S. 210, 220, (1984); Jones v. Jones, 35 N.C., 448, 448–449 (1852).

Nor does the seizure depend on the subjective perceptions of the seized person. Here, for example, Torres claims to have perceived the officers’ actions as an attempted carjacking. But the conduct of the officers—ordering Torres to stop and then shooting to restrain her movement—satisfies the objective test for a seizure, regardless of whether Torres comprehended the governmental character of their actions.

Length of Seizure by Force

The rule is narrow. In addition to the requirement of intent to restrain, a seizure by force—absent submission—lasts only as long as the application of force.  That is to say that the Fourth Amendment does not recognize any “continuing arrest during the period of fugitivity.” Hodari D., 499 U.S., at 625. The fleeting nature of some seizures by force undoubtedly may inform what damages a civil plaintiff may recover, and what evidence a criminal defendant may exclude from trial. See, e.g.Utah v. Strieff, 579 U. S. ––––, ––––, 136 (2016). But brief seizures are seizures all the same.

Applying these principles to the facts, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. Therefore, the officers seized Torres for the instant that the bullets struck her.

There is a distinction between seizures by control and seizures by force. But each type of seizure enjoys a separate common law pedigree that gives rise to a separate rule.

Seizure by Control

Unlike a seizure by force, a seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement. Under the common law rules of arrest, actual control is a necessary element for this type of seizure. See Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 553 (1924). Such a seizure requires that “a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.” Brower, 489 U.S., at 599, 109 S.Ct. 1378. But that requirement of control or submission never extended to seizures by force.  See, e.g.Sandon, El. Bl. & El., at 940–941, 120 Eng. Rep., at 760.

As common law courts recognized, any such requirement of control would be difficult to apply in cases involving the application of force. At the most basic level, it will often be unclear when an officer succeeds in gaining control over a struggling suspect. Courts will puzzle over whether an officer exercises control when he grabs a suspect, when he tackles him, or only when he slaps on the cuffs. None of this squares with our recognition that “ ‘[a] seizure is a single act, and not a continuous fact.’ ” Hodari D., 499 U.S., at 625, 111 S.Ct. 1547 (quoting Thompson v. Whitman, 18 Wall. 457, 471, 21 L.Ed. 897 (1874)).

Our Thoughts

The Court distinguishes between two types of seizures of persons – seizure by control and seizure by force. It is therefore a good read, if not for any other reason, for that reason alone.

For criminal defense purposes, illegal seizures by control will generate suppression issues since, by their nature, the person at this point will have been detained, and the fruits of the illegal detention can be suppressed. 

The seizure by force doctrine can be used effectively by the fleeing client in a 1983 action, just as Torres did. There is not a clear rule for 1983 actions for the “fleeing subject.” However, the Court’s language that a “seizure by force—absent submission—lasts only as long as the application of force” is troubling for the criminal defense lawyer since it does not protect the fleeing client for purposes of suppressing flight or actions occurring during the flight. Presumably, items dropped by a person being illegally seized by force would be subject to suppression since this occurs during the “application of force.” I imagine a person dropping a cell phone or drugs while being assaulted by an officer. However, this author has difficulty imagining any other scenario in which the seizure by force doctrine could be used to suppress evidence.

Federal Corner: Six Days in a Texas Prison Hell


For nearly a quarter of a century, I have been writing for The Voice about federal criminal cases. For my 250th – and last – column, I found a federal civil rights case with facts that are so beyond the pale that I wanted to bring them to your attention. On November 2, 2020, the Supreme Court, in a case from the United States Court of Appeals for the Fifth Circuit, held, per curiam and without oral argument, that

(1) The Court of Appeals properly ruled that the conditions of confinement alleged by Mr. Taylor, whereby for six full days he was confined in a pair of shockingly unsanitary cells, the first of which was covered nearly floor to ceiling in “massive amounts” of feces and the second of which was frigidly cold and equipped with only a clogged floor drain to dispose of bodily wastes, violated the Eighth Amendment’s prohibition on cruel and unusual punishments; but

(2) The prison officials responsible for Taylor’s confinement had fair warning that their specific acts were unconstitutional and, thus, the Court of Appeals erred in granting the official qualified immunity with respect to Mr. Taylor’s claims.
Taylor v. Riojas 1

We are accustomed to the horrible fact situations that we find in some of our criminal cases. It just goes with the territory. Taylor, though, is concerned with the abuse that an inmate in a Texas prison suffered at the hands of his prison guards. We should all hope that nothing like this ever happens to one of our clients.

In their Petition for a Writ of Certiorari, Mr. Taylor’s lawyers included this Statement of the Case:

At the time of the events giving rise to this suit, Petitioner Trent Taylor was incarcerated in the John T. Montford Unit of the Texas Department of Criminal Justice (Montford). Pet. App. 3a. Respondents Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davidson, Shane Swaney, and Joe Martinez were officials at Montford during that period.  Id.

Taylor was transferred to Montford, a psychiatric prison unit, for mental health treatment following a suicide attempt. Electronic Record on Appeal (R.O.A.) 49 Instead of providing that treatment, Respondents stripped Taylor of his clothing, including his underwear, and placed him in a cell where almost every surface— including the floor, ceiling, windows, and walls—was covered in “massive amounts” of human feces belonging to previous occupants. Pet. App. 7a-8a;

R.O.A. 50. The smell was overpowering and could be discerned from the hallway. Pet. App. 8a; R.O.A. 50. Taylor was unable to eat because he feared that any food in the cell would become contaminated. Pet. App. 8a. Feces “packed inside the water faucet” prevented him from drinking water for days. Id. Respondents were aware the cell was coated in excrement:   One Respondent asked several others whether Taylor’s cell was the one covered in feces; another answered, “Yes, he’s going to have a long weekend,” and the officials laughed. Id.; R.O.A. 50. Taylor asked numerous prison staff members to clean the cell, but they refused. Pet. App. 8a n.8. When Taylor complained of the conditions, Respondent Swaney responded, “Dude, this is Montford, there is s*** in all these cells from years of psych patients,” Pet. App. 8a (brackets omitted).

Four days later, Respondents removed Taylor from the first cell; they then transferred him, still naked, to a different “seclusion cell.” Pet. App. 8a, 12a. Montford inmates referred to this cell as “the cold room” because of its frigid temperature; Swaney told Taylor he hoped Taylor would “f***ing freeze” there. Pet. App. 8a n.9. This cell had no toilet, water fountain, or furniture.   Pet. App. 8a. It contained only a drain on the floor, which was clogged, leaving a standing pool of raw sewage in the cell. Pet. App. 8a. Because the cell lacked a bunk, Taylor had to sleep on the floor, naked and soaked in sewage, with only a suicide blanket for warmth. Pet. App. 8a-9a, 33a.

Taylor spent three days in the seclusion cell, during which Respondents repeatedly told him that if he needed to urinate, he would not be escorted to the restroom but should urinate into the backed up drain. Pet. App. 8a. Taylor refused, not wanting to add to the pool of sewage in which he had to sleep naked. Pet. App. 8a-9a. Instead, Taylor avoided urinating for 24 hours until he involuntarily urinated on himself; he attempted to use the clogged drain as instructed, but Taylor’s urine “mix[ed] with the raw sewage and r[a]n all over [his] feet.” Pet. Appl. 91, 19a (alterations in original). As a result of holding his urine in a bacteria-laden environment for an extended period, Taylor developed a distended bladder required catheterization.2

The Supreme Court’s per curiam opinion reads as follows:


Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in ‘ “massive amounts” of feces’: all over the floor, the ceiling, the window, the walls, and even ‘ “packed inside the water faucet.” ’ Taylor v. Stevens, 946 F.3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

[The Eighth Amendment]

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

[The Fifth Circuit Concluded That the Prison Officials Did Not Have Fair Warning]

But, based on its assessment that ‘[t]he law wasn’t clearly established’ that ‘prisoners couldn’t be housed in cells teeming with human waste’ ‘for only six days,’ the court concluded that the prison officials responsible for Taylor’s confinement did not have ‘ “fair warning” that their specific acts were unconstitutional.’ 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

[The Fifth Circuit Erred in Granting Qualified Immunity]

The Fifth Circuit erred in granting the officers qualified immunity on this basis. ‘Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.’ Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct.

596, 160 L.Ed.2d 583 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that ‘ “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question”’ (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997))); 536 U.S. at 745, 122 S.Ct. 2508 (holding that ‘[t]he obvious cruelty inherent’ in putting inmates in certain wantonly ‘degrading and dangerous’ situations provides officers ‘with some notice that their alleged conduct violate[s]’ the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F.3d at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was ‘ “going to have a long weekend” ’); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would ‘ “f***ing freeze” ’).


Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

[Note: Justice Barrett took no part in the consideration order decision of this case. Justice Thomas dissented, without written opinion. Justice Alito concurred in the judgment, with a written opinion.]

[The Prequel to the Supreme Court’s Opinion in Taylor]

In 2014, Trent Taylor, a Texas inmate who was serving a sentence for robbery, began his journey through the federal courts. He filed, pro se, a civil rights complaint pursuant to 42 USC § 1983 in the United States District Court for the Northern District of Texas. Mr. Taylor named eleven correctional officers and/or prison officials as defendants.

In his complaint, Mr. Taylor raised – among other issues – a cell conditions issue. All of the defendants relied on the affirmative defense of qualified immunity and moved for summary judgment. In the district court’s order are the following two sentences:

The Court finds that although the conditions of Plaintiff’s confinement may have been quite uncomfortable during the days he was held in the two cells in question, the conditions did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Accordingly, Plaintiff has failed to rebut Defendants’ assertion of qualified immunity on his conditions-of-confinement claim, and their Motions for Summary Judgment should be granted.3  (emphasis added)

After the district court granted summary judgment in favor of the defendants, Mr. Taylor appealed, pro se, to the United States Court of Appeals for the Fifth Circuit. On December 20, 2019, a panel of the Circuit held in Taylor v. Stevens, inter alia, that “[1] it had jurisdiction over appeal;… and, [3] correctional officers were entitled to qualified immunity from conditions-of- confinement claim; …”

The Court’s opinion reads, in brief part, as follows:

Taylor repeatedly alleged that the defendants knew that his cells were covered in feces and urine and that he had an overflowing sewage drain in his seclusion cell.

‘The risk’ posed by Taylor’s exposure to bodily waste ‘was obvious.’   And the risk was especially obvious here, as the defendants forced Taylor to sleep naked on a urine-soaked floor. Taylor also alleged that the defendants failed to remedy the paltry conditions, so he has shown factual disputes on deliberate indifference. In sum, Taylor has met his burden at the first QI prong to show that his Eighth Amendment rights were violated. See Arenas, 922 F.3d at 620.

* * *

The second prong of QI asks ‘whether the right was clearly established at the time of the violation.’

* * *

The ‘salient question,’ therefore, is whether the defendants had ‘fair warning’ that their specific actions were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005–06 (finding no violation partly because the defendant stayed in the cell for only three days). (emphasis added)

* * *

It was therefore not ‘beyond debate’ that the defendants broke the law. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. They weren’t on ‘fair warning’ that their specific acts were unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508.4

Lawyers to the Rescue

After going 0 for 2 as a pro se litigant, Mr. Taylor’s luck changed for the better. Samuel Weiss, of RIGHTS BEHIND BARS in Washington, D.C., read the Fifth Circuit’s opinion in Taylor and decided to come to Texas and meet with Mr. Taylor. He did so and offered to represent him pro bono to seek relief at the Supreme Court. Mr. Taylor was pleased to become his newest client and accepted Mr. Weiss’ generous offer.

When Mr. Weiss returned to Washington, D.C., he met with his board of directors that included an associate with the Orrick, Herrington and Sutcliffe firm’s Washington, D.C. office. Orrick is a global firm with some 1,100 lawyers in the United States and in at least 12 other countries. At that time, Kelsi Brown Corkran was the head of U.S. Supreme Court practice at Orrick. After a meeting with Mr. Weiss, the decision was made that Orrick lawyers would join with Mr. Weiss in the representation of Mr. Taylor. At the Supreme Court, Ms. Corkran was counsel of record – with three other Orrick lawyers and Mr. Weiss as Mr. Taylor’s appellate team.

Ms. Corkran is now a Pro Bono Senior Fellow at Georgetown University’s Law Center’s Institute for Constitutional Advocacy and Protection. In talking with her about Taylor, she mentioned that this was the first time in 16 years that the Supreme Court has denied qualified immunity to a state official in a § 1983 case. For those representing plaintiffs or defendants in § 1983 cases, it is important to know that Taylor is already being cited in the trials of these cases.

My Thoughts

  • Congratulations to Mr. Taylor’s appellate team for their successful representation of him. It is impressive to see this pooling of talent on behalf of an indigent Texas inmate.
  • Over the years, some of our larger Texas law firms have committed their substantial legal resources to the representation of indigent inmates. It would be wonderful if more of these firms would rise to the challenge. Perhaps Taylor will inspire them to do so. If they do, they should get recognition for their efforts.
  • Man’s Inhumanity to Man were the first words that came to mind as I was reading Taylor.
  • I would have at least these questions:
    • How many, if any, prison employees – in whatever capacity – were disciplined because of the abuse that Mr. Taylor suffered?
    • How many other inmates at the Montford Unit endured the same cell conditions as Taylor?
    • What, if any, remedial action has been taken by prison officials in response to Taylor’s original complaints or to the Supreme Court’s opinion?
    • What, if anything, has the Texas Department of Criminal Justice done to address the issues raised by Mr. Taylor?
  • I am surprised that Taylor has not been picked up by the print media. This is the kind of case that The Dallas Morning News and the Houston Chronicle would have jumped all over 25 or  30 years ago. The days of the investigative reporter may be over.

TCDLA Thanks You, Buck!

All previous installments in “The Federal Corner” series can be found online by logging into your TCDLA member account and visiting

Don’t despair–”The Federal Corner” will continue in future issues of the Voice. Our editors are busily compiling a team of authors with federal experience to contribute to this important topic.

If you have federal experience and would like to contribute, please reach out to one of our editors:

Sarah Roland:
Clay Steadman:
Jeep Darnell:
Amanda Hernandez:

Some Reflections and Some Thank Yous

Buck Files

Writing the “Federal Corner” has been both challenging and rewarding. The challenge has been to find a case for each edition of the VOICE that would be of interest to our members and to the judges who also receive a copy of the magazine. The case would have to be recent and not too long or too complex for me to fit it into the space that I was allocated.

The reward was in what I learned. For each column, I would usually review some six to twenty cases. I always found something in this research that I would never have known if I had not been writing this column.

As the turtle who was sitting on top of the fence post said, “I didn’t get here by myself.” I owe a word of thanks to:

  • Our former executive director Joseph Martinez and our current executive director Melissa They supported my efforts enthusiastically. When I turned in my 100th column, Joseph said, “Keep writing.” When I turned in my 200th column or article, Melissa said, “Keep writing.” I listened to each of them, but now it’s time to hang it up. 250 columns or articles is enough for anyone.
  • Sarah Roland, the current editor of the VOICE. It is her responsibility to turn out ten editions of the VOICE each year and she has done a magnificent job in working with others to improve the quality of the magazine. Sarah has been a pleasure to work with and I have no doubt that she will be a leader in our association for many years.
  • The other editors with whom I have worked. I have good memories of each of you and enjoyed working with you.
  • The TCDLA staff, both past and present, with whom I have worked—especially Craig Hattersley.
  • The TCDLA members who have called to mention a case to me that I later wrote about.
  • The TCDLA members who would have a kind word for me about one of my columns or articles. People who write for a publication are like radio announcers. We never know if anyone is paying attention to what we are trying to communicate.

Federal Corner: If You Have a Cell Phone Search Issue, Assume the Governor is Aware of Morton


On February 2, 2021, a panel of the United States Court of Appeals for the Fifth Circuit held that an officer’s affidavit provided probable cause to search the contacts, call logs, and text messages on the defendant’s cell phone, but not to search for photographs on the cell phone; and, also, that the good faith exception did not apply to allow the admission of the photographs that were found on the cell phone.  United States v. Morton.1

A week or so later, I asked an AUSA whether he had read Morton.  He replied that he and the other lawyers in the office – and one of the magistrate judges in the division – had read it and were concerned about its implications.  If you have a case that involves the search of a cell phone, Morton is a “must read.”  It is another Leon2 case, but one in which the defendant prevailed.

Judge Jolly’s opinion reads, in part, as follows:

An Overview of the Opinion

In this appeal, we are asked to determine whether the good faith exception to the Fourth Amendment’s exclusionary rule allows officers to search the photographs on a defendant’s cellphones for evidence of drug possession, when the affidavits supporting the search warrants were based only on evidence of personal drug possession and an officer’s generalized allegations about the behavior of drug traffickers—not drug users. We hold that the officers’ affidavits do not provide probable cause to search the photographs stored on the defendant’s cellphones; and further, we hold that the good faith exception does not apply because the officers’ reliance on the defective warrants was objectively unreasonable. And while respecting the ‘great deference’ that the presiding judge is owed, we further hold that he did not have a substantial basis for his probable cause determination with regard to the photographs. We thus conclude that the digital images found on Morton’s cellphones are inadmissible, and his conviction is therefore VACATED. Accordingly, the case is REMANDED for further proceedings not inconsistent with this opinion.

The Facts in the Case

Brian Matthew Morton was stopped for speeding near Palo Pinto, Texas. After the officers smelled marijuana, he gave consent to search his van. Officers found sixteen ecstasy pills, one small bag of marijuana, and a glass pipe. When, however, they discovered children’s school supplies, a lollipop, 14 sex toys, and 100 pairs of women’s underwear in the vehicle, they became more concerned that Morton might be a pedophile.  After arresting Morton for drug possession, one of the officers, Texas Department of Public Safety (DPS) Trooper Burt Blue, applied for warrants to search Morton’s three cellphones that were found in the van. Trooper Blue’s affidavits for the search warrants mentioned no concerns about child exploitation; instead, the warrants purported to seek more evidence of Morton’s criminal drug activity based on Trooper Blue’s training and experience—fourteen years in law enforcement and eight years as a ‘DRE-Drug Recognition Expert’—as well as the drugs found in Morton’s possession and his admission that the drugs were in fact marijuana and ecstasy.

The Affidavits and the Warrants

The affidavits and warrants were identical to each other except for naming different cellphones to be searched. The paragraph of the affidavits describing the objects of the search reads:

It is the belief of affiant that suspected party was in possession of and is concealing in the cellphones … evidence of the offense of Possession of ecstasy, possession of marijuana and other criminal activity; to wit telephone numbers, address books; call logs, contacts, recently called numbers, recently received calls; recently missed calls; text messages (both SMS messages and MMS messages); photographs, digital images, or multimedia files in furtherance of narcotics trafficking or possession.3 (emphasis in the opinion)

In full, the sole paragraph in each affidavit purporting to provide probable cause to search Morton’s photographs reads:

Affiant knows through training and experience that photographic images taken on cellular telephones can be stored in the telephones sic memory and retained for future viewing. Affiant also knows through training and experience that criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs. Affiant believes that photograph images stored in the cellular telephone may identify other co-conspirators and show images of illicit drugs and currency derived from the sale of illicit drugs.4 (emphasis in the opinion)

The Search and the Indictment That Followed

Relying on these affidavits, a judge issued warrants to search Morton’s phones. While searching the phones’ photographs, Trooper Blue and another officer came across sexually explicit images of children. The officers then sought and received another set of warrants to further search the phones for child pornography, ultimately finding 19,270 images of sexually exploited minors. The government then indicted Morton for a violation of 18 U.S.C. § 2252(a)(2) for the child pornography found on his three cellphones. The subject of drugs had vaporized.

The Motion to Suppress; the Guilty Plea; and, the Appeal

In pretrial proceedings, Morton moved to suppress this pornographic evidence. He argued that the affidavits in support of the first set of warrants failed to establish probable cause to search for his additional criminal drug activity. The government responded by stating that the warrants were supported by probable cause and, if not, then the good faith exception to the exclusionary rule—first announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)—should apply. The district court ruled in favor of the government, and Morton later pled guilty to the child pornography charge while reserving his right to appeal the district court’s suppression decision. He was sentenced to nine years in prison, and this appeal of the suppression ruling followed.

Appellate Review of the Denial of a Motion to Suppress

… In reviewing a district court’s denial of a suppression motion for evidence obtained pursuant to a search warrant, our precedent usually applies a two-step test. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010). First, we decide whether the good faith exception should apply. Id. If the good faith exception applies, then no further inquiry is required. Id. If the good faith exception does not apply, we proceed to a second step of analysis, in which we review whether the issuing judge had a substantial basis for determining that probable cause existed. Id.

The Good Faith Exception

The good faith exception to the suppression of evidence obtained in violation of the Fourth Amendment arises when an officer’s reliance on a defective search warrant is ‘objectively reasonable.’ United States v. Sibley, 448 F.3d 754, 757 (5th Cir. 2006). In such a case, the evidence obtained from the search ‘will not be excluded.’ Id. This court has decided that the good faith exception applies to most searches undertaken pursuant to a warrant unless one of the four situations enumerated in Leon removes the warrant from the exception’s protection. Leon, 468 U.S. at 923, 104 S.Ct. 3405; see Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Only one of these ‘exceptions to the good faith exception’ is relevant here: Morton alleges that the warrant ‘so lacked indicia of probable cause’ that the officers’ reliance on it was ‘entirely unreasonable.’ Leon, 468 U.S. at 923, 104 S.Ct. 3405.  (emphasis added.)

 Indicia of Probable Cause

To determine if there were indicia of probable cause, the reviewing court will usually be required to look at the affidavit supporting the warrant, but, even so, all of the circumstances surrounding the warrant’s issuance may be considered. United States v. Payne, 341 F.3d 393, 400 (5th Cir. 2003); United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). Affidavits must raise a ‘fair probability’ or a ‘substantial chance’ that criminal evidence will be found in the place to be searched for there to be probable cause. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 371, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (cleaned up).

Trooper Blue’s Affidavits

Here, as suggested by this court’s precedent, we turn to Trooper Blue’s affidavits supporting the search warrants. The affidavits seek approval to search Morton’s contacts, call logs, text messages, and photographs for evidence of his drug possession crimes. As the government properly conceded at oral argument, separate probable cause is required to search each of the categories of information found on the cellphones. Although ‘treating a cell phone as a container … is a bit strained,’ the Supreme Court has explained that cellphones do ‘collect  in one place many distinct types of information.’ Riley v. California, 573 U.S. 373, 394, 397, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). And the Court’s opinion in Riley went to great lengths to explain the range of possible types of information contained on cellphones. (emphasis added.)

Riley made clear that these distinct types of information, often stored in different components of the phone, should be analyzed separately. This requirement is imposed because ‘a cell phone’s capacity allows even just one type of information to convey far more than previously possible.’ … Absent unusual circumstances, probable cause is required to search each category of content. Id. at 395, 134 S.Ct. 2473 (stating that ‘certain types of data’ on cellphones are ‘qualitatively different’ from other types); id. at 400, 134 S.Ct. 2473 (analyzing data from a phone’s call log feature separately)… (emphasis added.)

This distinction dovetails with the Fourth Amendment’s imperative that the ‘place to be searched’ be ‘particularly described.’ U.S. CONST. amend. IV.; cf., e.g., United States v. Beaumont, 972 F.2d 553, 560 (5th Cir. 1992)…

Here, this observation means that the facts as alleged in Trooper Blue’s affidavits must raise a ‘fair probability’ or a ‘substantial chance’ that evidence relevant to Morton’s crime—that is, simple drug possession—will be found in each place to be searched: his contacts, his call logs, his text messages, and his photographs. There must be a specific factual basis in the affidavit that connects each cellphone feature to be searched to the drug possession crimes with which Morton was initially charged.  (emphasis added.)

The affidavits successfully establish probable cause to search Morton’s contacts, call logs, and text messages for evidence of drug possession. In attesting that probable cause exists, officers may rely on their experience, training, and all the facts available to them.

But the affidavits also asserted probable cause to believe that the photographs on Morton’s phones contained evidence of other drug crimes, and on this claim, they fail the test of probable cause as related to the crime of possession. That is, they fall short of raising a ‘substantial chance’ that the photographs on Morton’s phones would contain evidence pertinent to his crime of simple drug possession. As we have said, officers are permitted to rely on training and experience when attesting that probable cause exists, but they must not turn a blind eye to details that do not support probable cause for the particular crime. Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)…  (emphasis in the opinion)

Here, Trooper Blue supplied two facts to provide probable cause to search the images on Morton’s phones. First, Morton was found with less than two ounces of marijuana, a pipe, and sixteen pills that Morton stated were ecstasy. Second, based on Trooper Blue’s training and experience, ‘criminals often take photographs of co-conspirators as well as illicit drugs and currency derived from the sale of illicit drugs.’ This background led Trooper Blue to assert thatphotograph images stored in the cellular telephone may identify other co-conspirators and show images of illicit drugs and currency derived from the sale of illicit drugs.’ These photographs would, in turn, be evidence of ‘other criminal activity … in furtherance of narcotics trafficking’ and Morton’s drug possession crimes. The search warrant is thus expanded to seek information of an alleged narcotics trafficking conspiracy based solely on Morton’s arrest for, and evidence of, simple drug possession.  (emphasis added.)

The Syllogism Fails to Provide Adequate Grounds For the Extensive Search

The syllogism that Trooper Blue offers to gain access to Morton’s photographs does not provide adequate grounds for the extensive search. In short, the syllogism is (1) Morton was found with personal-use quantities of drugs; and (2) drug dealers often take photos of drugs, cash, and co-conspirators; it therefore follows that (3) the photographs on Morton’s phones will provide evidence of Morton’s relationship to drug trafficking. The fallacy of this syllogism is that it relies on a premise that cannot be established, namely that Morton was dealing drugs. And here, Trooper Blue disregarded key facts that show that the evidence did not support probable cause that Morton was a drug dealer.

To begin, the quantity of drugs Morton possessed can best be described as personal-use: a single small bag of marijuana and a few ecstasy pills. Further, Morton did not have scales, weapons, or individual plastic bags that are usually associated with those who sell drugs. It is also significant that the officers arrested Morton for possession of marijuana and ecstasy but not distribution of these drugs. Compare TEX. HEALTH & SAFETY CODE §§ 481.121, 481.116 with id. §§ 481.120, 481.113.  In sum, indications of drug trafficking were lacking: no significant amount of drugs; paraphernalia for personal use, not sale; and no large amounts of cash. Or precisely: there was no evidence supporting drug trafficking.

Since it seems that no evidence supported probable cause to believe that Morton was dealing in drugs, the affidavit leaves us with only the allegations that (1) Morton was found with drugs so (2) it therefore follows that the photographs on Morton’s phones will provide evidence of Morton’s crime of drug possession. With only this bare factual support that Morton possessed drugs, the affidavits contain nothing to link Morton’s marijuana and ecstasy with the photographs on his phones. The affidavits thus do not create a ‘fair probability’ or a ‘substantial chance’ that evidence of the crime of drug possession will be found in the photographs on Morton’s cellphones. Therefore, under these facts and based on the specific language in these affidavits, we hold that probable cause was lacking to search Morton’s photographs for proof of his illegal drug possession.  (emphasis added.)

The Good Faith Exception Does Not Save the Day

Having demonstrated that the warrants to search the photographs stored on Morton’s cellphones were not supported by probable cause, we next turn to the question of whether the evidence produced by the search may nevertheless be admitted based upon the good faith exception. To resolve this question, we ask whether the officers’ good faith reliance on these defective warrants was objectively reasonable. … In reviewing whether an officer’s reliance is reasonable under the good faith exception, we ask ‘whether a reasonably well-trained officer would have known that the search was illegal’ despite the magistrate’s approval. United States v. Gant, 759 F.2d 484, 487–88 (5th Cir. 1985).

The facts here lead to the sensible conclusion that Morton was a consumer of drugs; the facts do not lead to a sensible conclusion that Morton was a drug dealer. Under these facts, reasonably well-trained officers would have been aware that searching the digital images on Morton’s phone—allegedly for drug trafficking-related evidence—was unsupported by probable cause, despite the magistrate’s approval. Consequently, the search here does not receive the protection of the good faith exception to the exclusionary rule.

The Magistrate Did Not Have a Substantial Basis for Determining That Probable Cause to Search the Cell Phone Existed

However, the good faith exception, applicable to the officers, does not end our analysis. As we have said, if the good faith exception does not save the search, we move to a second step: whether the magistrate who issued the warrant had a ‘substantial basis’ for determining that probable cause to search the cellphones existed. United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010). While the good faith analysis focuses on what an objectively reasonable police officer would have known to be permissible, this second step focuses on the magistrate’s decision. The magistrate is permitted to draw reasonable inferences from the material he receives, and his determination of probable cause is entitled to ‘great deference’ by the reviewing court in all ‘doubtful or marginal cases.’ United States v. May, 819 F.2d 531, 535 (5th Cir. 1987); see 2 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 3.1(c) & n.78 (4th ed. 2019).

Here, even giving the magistrate’s determination the deference due, we hold that the magistrate did not have a substantial basis for determining that probable cause existed to extend the search to the photographs on the cellphones. Even if the warrants provided probable cause to search some of the phones’ ‘drawers’ or ‘file cabinets,’ the photographs ‘file cabinet’ could not be searched because the information in the officer’s affidavits supporting a search of the cellphones only related to drug trafficking, not simple possession of drugs. There was thus no substantial basis for the magistrate’s conclusion that probable cause existed to search Morton’s photographs, and the search is not saved by the magistrate’s authority. The search was unconstitutional, not subject to any exceptions, and the evidence must be suppressed as inadmissible. (emphasis added.)

What the Court Has Said

Today, we have held that a reasonably well-trained officer would have known that probable cause was lacking to search the photographs stored on the defendant’s cellphones for evidence related to drug possession, which was the only crime supporting a search. Moreover, we have held that any additional assertions in the affidavits were too minimal and generalized to provide probable cause for the magistrate to authorize the search of the photographs. Because the officers’ search of the stored photographs pursuant to the first warrants was impermissible, obviously the use of that information—which was the evidence asserted to secure the second set of warrants—tainted the evidence obtained as a result of that second search, making it the unconstitutional ‘fruit of the poisonous tree.’ See, e.g., United States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007). Therefore, the evidence obtained as a result of the second set of warrants is inadmissible.  (emphasis added.)

My Thoughts

  • Any analysis of a cell phone search issue should begin with a review of Riley and, now, Morton
  • Any cell phone search can include looking at contacts, cell logs, text messages and photographs.
  • The affidavit prepared by the individual seeking a search warrant for a cell phone, absent unusual circumstances, must show probable cause for searching for each of these distinct types of information.
  • As Judge Jolly noted, “…we ask whether the officer’s good faith reliance on these defective warrants was objectively reasonable… In reviewing whether an officer’s reliance is reasonable under the good faith exception, we ask ‘whether a reasonably well-trained officer would have known that the search was illegal’ despite the magistrate’s approval.”  As criminal defense lawyers, we should like this question.  The Government does not.

Federal Corner: A Nonroutine Border Search + A Leon Good Faith Issue = An Interesting Case


In United States v. Leon1, the Supreme Court held that the Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.  (emphasis added)

On November 21, 2019, a panel of the United States Court of Appeals for the Fourth Circuit held that (1) the forensic searches of an airplane passenger’s laptop computer, cell phone, and digital media player, after he arrived at international airport, had to be regarded as “nonroutine;” (2) warrantless forensic searches of an airplane passenger’s electronic devices was not justified under the “border search” exception to warrant requirement; (3) subsequent warrant-backed searches of electronic devices did not constitute an “independent source” that cured any taint from prior warrantless, forensic searches; (4) but evidence did not have to be suppressed, given the agents’ “good faith” reliance on existing precedent.  United States v. Aigbekaen.2

A search of WestLaw’s ALLFED database reflects 5,215 cases in which a district or appellate court has cited Leon.3  In many of these, Leon’s good faith exception permitted an appellate court to affirm a conviction.  There are, though, other Leon cases where there is no issue as to a warrant.  Aigbekaen is one of those cases.

Judge Motz’ opinion reads, in part, as follows:

The Facts of the Case

In April of 2015, a minor alerted law enforcement officers that Raymond Idemudia Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of the investigation that followed, when Aigbekaen returned to the United States from traveling abroad, the Government seized his MacBook Pro laptop, iPhone, and iPod at the airport and conducted warrantless forensic searches of the data on all three devices. …

The Indictment and the Motion to Suppress

… a grand jury indicted Greene4 and Aigbekaen on six counts, all of which related to interstate sex trafficking of L. and transportation of her for the purpose of prostitution.

Prior to trial, Aigbekaen moved to suppress various pieces of evidence, including (as relevant here) any evidence recovered from the May 2015 warrantless forensic searches.

Aigbekaen’s Argument on the Motion to Suppress and the Government’s Response

Aigbekaen argued that the May 2015 forensic searches were unconstitutional because they were conducted without warrants and did not fall within the border search exception to the warrant requirement. Aigbekaen maintained that ‘there has to be a point at which the nature of the government investigation is so separated and so divorced from anything related to the border’ that the exception becomes inapplicable. He explained that the Government’s ‘general interest in enforcing domestic criminal laws’ does not constitute an interest justifying ‘border searches.’ The Government responded that, at the time of the forensic searches, it had reasonable suspicion both that Aigbekaen had trafficked L. for sex domestically and that he ‘might be bringing contraband in the form of child pornography into the country,’ citing for the latter argument only an ‘allegation from the manager of the hotel where the victim was recovered.’

The District Court’s Holding; the Jury’s Verdict; and, Notice of Appeal

At the close of the suppression hearing, the district court dismissed the Government’s child pornography argument as ‘a lot weaker’ but held that under ‘the traditional border search analysis,’ ‘the circumstances of where the property was and where the person was when the search occurred’ ‘trumped’ any need to justify the specific search. As a result, the court found that no warrants were required for the May 2015 searches. The court further reasoned that if any individualized suspicion was needed to justify the ‘intrusive’ forensic searches of Aigbekaen’s devices, the Government met this standard because HSI had ‘at least’ reasonable suspicion, if not probable cause, that the warrantless searches would reveal evidence of domestic sex trafficking.

The court thus denied the suppression motion, and Aigbekaen proceeded to trial. After considering testimony from over twenty witnesses, a jury found Aigbekaen guilty on all six counts. Aigbekaen timely noted this appeal.

Aigbekaen’s Argument on Appeal

Aigbekaen’s principal argument on appeal is that the May 2015 warrantless forensic searches of his laptop, iPhone, and iPod violated the Fourth Amendment. Although the Government contends (and we ultimately agree) that the good-faith exception to the exclusionary rule requires affirmance in any event, ‘when a Fourth Amendment case presents a novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates, there is sufficient reason for a court to decide the violation issue before turning to the good-faith question.’ United States v. Bosyk, 933 F.3d 319, 332 n.10 (4th Cir. 2019) (alterations in original) (quoting Illinois v. Gates, 462 U.S. 213, 264, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (White, J., concurring)).

The Standard of Review

We review the district court’s legal conclusions de novo and its factual findings for clear error, considering the record evidence in the light most favorable to the Government. Kolsuz, 890 F.3d at 141–42. Because the Government conducted the challenged searches without warrants, it bears the burden of proving, by a preponderance of the evidence, that an exception to the warrant requirement applies. United States v. Davis, 690 F.3d 226, 262 (4th Cir. 2012).

The Fourth Amendment

The Fourth Amendment requires that governmental searches and seizures be reasonable. In most cases, this requires a warrant based on probable cause. … ‘In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’ … (emphasis added)

The Border Search Exception

One such exception applies at our nation’s borders, where the Supreme Court has long recognized the federal Government’s substantial sovereign interests in ‘protecting … territorial integrity’ and national security, … blocking ‘the entry of unwanted persons and effects,’ … ‘regulating the collection of duties,’… and ‘preventing the introduction of contraband,’… These Government concerns are ‘at their zenith’ at the border, whereas an individual’s ‘expectation of privacy is less at the border than it is in the interior.’ … Thus, ‘at a border’ or its ‘functional equivalent, like an international airport … government agents may conduct routine searches and seizures of persons and property without a warrant or any individualized suspicion.’ Kolsuz, 890 F.3d at 137 (internal quotation marks omitted). 

Nonroutine Border Searches

Although this ‘border search’ exception to the warrant requirement is broad, it is not boundless. Even when the exception applies, the Supreme Court has explained that certain ‘highly intrusive searches’ may qualify as ‘ “nonroutine” ’ and so require some level of individualized suspicion. Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582 (quoting Montoya de Hernandez, 473 U.S. at 541 n.4, 105 S.Ct. 3304).

Warrantless Searches Not Related to Sovereign Interests

… neither the Supreme Court nor this court has ever authorized a warrantless border search unrelated to the sovereign interests underpinning the exception, let alone nonroutine, intrusive searches like those at issue here. … This restriction makes particularly good sense as applied to intrusive, nonroutine forensic searches of modern digital devices, which store vast quantities of uniquely sensitive and intimate personal information, id. at 145 (citing Riley, 573 U.S. at 393–97, 134 S.Ct. 2473), yet cannot contain many forms of contraband, like drugs or firearms, the detection of which constitutes ‘the strongest historic rationale for the border-search exception,’ United States v. Molina-Isidoro, 884 F.3d 287, 295 (5th Cir. 2018) (Costa, J., concurring).

to conduct such an intrusive and nonroutine search under the border search exception (that is, without a warrant), the Government must have individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband. See also United States v. Ramsey, 431 U.S. 606, 620, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) … (emphasis added)

The Court’s Conclusion

Applying these principles to the facts at hand, we can only conclude that the warrantless forensic searches of Aigbekaen’s devices in May of 2015 lacked the requisite nexus to the recognized historic rationales justifying the border search exception. Of course, when Aigbekaen landed at the airport with his MacBook Pro, iPhone, and iPod in tow, HSI agents had not only reasonable suspicion but probable cause to suspect that he had previously committed grave domestic crimes. But these suspicions were entirely unmoored from the Government’s sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen’s own entry, or excluding contraband. Thus, holding the border search exception applicable here, based simply on the Government’s knowledge of domestic crimes, would ‘untether’ that exception from its well-established justifications. Riley, 573 U.S. at 386, 134 S.Ct. 2473. (emphasis added in the opinion)

The Court Rejects the Government’s Argument

… the Government asserts that Aigbekaen’s crime ‘clearly was one that is the proper subject of a border search, because sex trafficking is a crime “commonly involving cross-border movements.” ’ Supp. Response Br. at 13 (quoting United States v. Caballero, 178 F. Supp. 3d 1008, 1017 n.7 (S.D. Cal. 2016)). Of course, the general character of a crime may be relevant to an officer’s reasonable suspicion that it involves a transnational component. But inherent in the notion of individualized suspicion is some evidentiary basis for what a specific crime does involve in the individual case at hand, not just what it ‘commonly involves’ as a general matter. Here, the Government has offered no reasonable basis to suspect that Aigbekaen’s domestic crimes had any such transnational component. (emphasis added in the opinion)

The Court Rejects the District Court’s Conclusion

We also must reject the district court’s conclusion that a nonroutine, intrusive search’s physical and temporal proximity to an international border ‘trumps everything’ under the Fourth Amendment. To be sure, the Supreme Court has stated that routine border searches ‘are reasonable simply by virtue of the fact that they occur at the border.’ Ramsey, 431 U.S. at 616, 97 S.Ct. 1972. But in the context of ‘highly intrusive’ nonroutine border searches, … the Court has explicitly struck a ‘balance between the interests of the Government and the privacy right of the individual,’ Montoya de Hernandez, 473 U.S. at 540, 105 S.Ct. 3304; see also Riley, 573 U.S. at 385, 134 S.Ct. 2473 (instructing courts to evaluate any exception to the warrant requirement by weighing individual privacy interests against ‘legitimate governmental interests’ (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999))). Consistent with this balancing, we clarified in Kolsuz that a nonroutine search’s location is not dispositive of whether the border search exception applies; rather, it is the search’s relation to the Government’s sovereign interests that is paramount. 890 F.3d at 142–43.

Border Searches Unrelated to Sovereign Authority

… it would be patently unreasonable to permit highly intrusive forensic Government searches of travelers’ digital devices, without warrants, on bases unrelated to the United States’s sovereign authority over its borders. To be clear, we do not question the import of the Government’s general interest in combatting crime. But we cannot agree that this interest categorically eclipses individuals’ privacy interests in the vast troves of data contained on their digital devices when the suspected offenses have little or nothing to do with the border.

… where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply. Because no such nexus existed here, the warrantless, nonroutine forensic searches violated the Fourth Amendment.

Because the Government lacked sufficient individualized suspicion of criminal activity with any nexus to the sovereign interests underlying the border search exception, its warrantless forensic searches of Aigbekaen’s devices violated the Fourth Amendment.

The Good Faith Exception Saves the Day for the Government

The Government next contends that the good-faith exception to the exclusionary rule bars suppression of any evidence tainted by any constitutional defect in the May 2015 searches. Aigbekaen counters that the lack of a nexus renders the good-faith exception inapplicable. On this point, we must agree with the Government.

The evidentiary fruits of Fourth Amendment violations are generally inadmissible at trial. See Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). But the fruits of ‘a search conducted in reasonable reliance on binding precedent are not subject to the exclusionary rule,’ as that rule is designed ‘to deter future Fourth Amendment violations.’  …

In this case, the HSI agents who searched Aigbekaen’s devices in May of 2015 reasonably relied on an ‘established and uniform body of precedent allowing warrantless border searches of digital devices.’ … Although it has long been understood that the scope of a warrant exception should be tailored to the purposes underlying that exception, no court had yet applied that principle to require a warrant ‘for any border search, no matter how nonroutine or invasive.’ … Molina-Isidoro, 884 F.3d at 294 (Costa, J., concurring) (noting that ‘no reported federal decision has required a warrant for any border search’). Only in 2018 did this court recognize that ‘a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception’ and so require a warrant. Kolsuz, 890 F.3d at 143. And only today have we applied that principle to hold unconstitutional such an attenuated, warrantless, nonroutine forensic search at the border. (emphasis added)

Tellingly, Aigbekaen offers almost no argument against application of the good-faith exception, save for a question-begging allegation that the Government ‘attempted to exploit an exception to the Fourth Amendment warrant requirement.’ He may well be correct that even prior to Kolsuz, ‘the better practice’ would have been for the Government to get a warrant in the first place. But good faith does not mandate best practices. Given the uniform body of precedent that permitted warrantless searches at the border in May of 2015, we cannot help but conclude that the good-faith exception applies here. (emphasis added)


For the foregoing reasons, the judgment of the district court is AFFIRMED.

My Thoughts

  • Although Aigbekaen was decided more than a year ago, it just popped up in WestLaw’s Topical Highlights – Criminal Justice.  Even though this is not a new case, it is a good read.
  • When Leon was decided, it appeared that it would be applicable only to those cases in which law enforcement officers had obtained a search warrant.  Not so.
  • Aigbekaen was convicted in the United States District Court for the District of Maryland.  Chief Judge James K. Bredar presided over his trial.  As Aigbekaen illustrates, search issues are often challenging — even for chief judges.

Federal Corner: There is a Limit to the Power of Federal Probation Officers


On October 27, 2020, a panel1 of the United States Court of Appeals for the Fifth Circuit, held as a matter of first impression, that the district court abused its discretion by giving the defendant’s probation officer the option to choose between inpatient and outpatient drug treatment; and, that when substance abuse treatment is a condition of supervised release, the decision to restrict the defendant’s liberty during the course of substance abuse treatment must remain with the judge, as opposed to the defendant’s probation officerUnited States v. Martinez, ___F.3d___, 2020 WL 6281738 (5th Cir., 2020)

Over the years, we have had a number of instances where a federal probation officer, we believed, was overstepping his authority; however, we have been able to resolve these issues without the necessity of a hearing or an appeal.  Martinez gives us something of a road map of where to go if we cannot do this.  Judge Elrod’s opinion reads, in part, as follows:

Martinez Has Continuing Drug Issues at His Halfway House

Martinez pleaded guilty to unlawful escape after he failed to return to a halfway house at the end of a workday. Martinez began serving the supervised-release portion of his sentence for that offense in August of 2018. In November 2018, Martinez’s probation officer petitioned the district court to modify the conditions of Martinez’s supervised release because Martinez tested positive for cocaine use. The modification required Martinez to ‘participate in a program of testing and treatment for drug abuse.’

Martinez’s probation officer once more petitioned the court for a modification in August of 2019 because Martinez continued to engage in drug use. At the revocation hearing for this petition, Martinez’s counsel said that Martinez ‘would be the first to admit there are times that he struggles with substance abuse.’ Martinez’s substance-abuse struggles sparked the following dialogue between the district court and Martinez:

The Dialogue Between the Court and Martinez

[THE COURT:] It seems to me—you know, I may be off base, or maybe not—that you’re your own worst enemy. You walked away from a halfway house; that got you the escape charge. You failed to report. You’ve done, you know, cocaine on a number of occasions. And I understand how hard sometimes those habits are to break.

But, you know, as a judge, we can order drug treatment, we can order all these different things to try to help, but you’re the only one that can make that decision for yourself. You need to really take it to heart….

I’m going to sentence you, but I’m also going to recommend to the Bureau of Prisons that you participate in the drug treatment program. When you get out, I want you to participate in the drug treatment program.

All right. The Court hereby revokes the term of supervised release in 17-CR-34 and sentences the defendant Abran Martinez to 10 months in the custody of Bureau of Prisons with the reimposition of supervised release under the same terms and conditions of one year….

Mr. Martinez, as I said, I can order things until I’m blue in the face. It only works if you really put your heart into it.

THE DEFENDANT: By continuing on this release, it just—I mean, I’ve tried it. I’ve tried it several times. I don’t know what it is. I just can’t—I can’t do it. I mean, I’ll try. I’ll try again.

THE COURT: I want you to try again. I know that the probation department didn’t recommend it. And that is one of the reasons I only put you back on for a year. If I can help you make that step, I want to help you, but try it one more time.

Our goal is to get you off drugs. I don’t want to run your life. I have enough trouble running my life. But I want to give you a chance to break this drug habit. (emphasis added)

The Written Conditions of Supervised Release

After the hearing, the district court imposed the following written condition:  You must participate in an inpatient or outpatient substance-abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program, including the provider, location, modality, duration, and intensity. You must pay the costs of the program, if financially able. (emphasis added)

Martinez’s Arguments on Appeal

Martinez appealed the written condition, challenging particularly the words ‘inpatient or outpatient.’ Martinez argues first that he did not have an opportunity to object to these words because he encountered them for the first time in the written judgment. Thus, according to Martinez, our review should be for abuse of discretion. Martinez then argues that the words ‘inpatient or outpatient’ impermissibly delegate judicial sentencing authority to Martinez’s probation officer because inpatient drug-treatment involves a significant deprivation of liberty.  (emphasis added)

The Government’s Response

The government, conversely, asserts that we should review for plain error because Martinez failed to object to the condition of supervised release in the district court. According to the government, Martinez did have the opportunity to object because the district court stated it was imposing a term of supervised release ‘under the same terms and conditions’ as the 2018 modification to Martinez’s supervised release. On the government’s theory, although the 2018 modification did not contain the words ‘inpatient or outpatient,’ it implicitly contained those options; ‘by leaving those terms unstated, the 2018 condition necessarily contains both.’

The Court Agrees With Martinez

We agree with Martinez. He had no opportunity to object, and so we review for abuse of discretion. In United States v. Franklin, we reviewed an appeal of a condition of supervised release for abuse of discretion because the defendant had no opportunity to object to the discretion given to a probation officer to require mental-health treatment. 838 F.3d 564, 567 (5th Cir. 2016). The district court’s oral pronouncement at the sentencing hearing did not mention or define the probation officer’s role in the recommended mental-health treatment. Id. Similarly, in this case the district court’s oral statements at the sentencing hearing did not mention or define the discretion the court would give to the probation officer to choose between inpatient and outpatient treatment.

The District Court Abused Its Discretion

The district court abused its discretion by giving Martinez’s probation officer the option to choose between inpatient and outpatient drug treatment. While probation officers may ‘manage aspects of sentences’ and oversee the conditions of supervised release, a probation officer may not exercise the ‘ “core judicial function” of imposing a sentence, “including the terms and conditions of supervised release.”United States v. Barber, 865 F.3d 837, 839 (5th Cir. 2017) (quoting Franklin, 838 F.3d at 568). This duty belongs to the court and may not be delegated. Id. We have previously vacated special conditions that delegate judicial authority to the probation officer by allowing the probation officer to decide whether mental-health or substance-abuse treatment should be required. United States v. Simpson, 788 F. App’x 991, 992 (5th Cir. 2020); United States v. Griffin, 780 F. App’x 103, 106–07 (5th Cir. 2019); United States v. Moreno, 697 F. App’x 384, 384–85 (5th Cir. 2017); Franklin, 838 F.3d at 568. We have not yet, however, decided whether giving a probation officer the option to require inpatient treatment impermissibly delegates a core judicial function.  (emphasis added)

The Second, Ninth and Tenth Circuits Have Addressed This Issue

Three of our sister circuits have addressed this question in published opinions, and each has decided that the court may not delegate the decision to require inpatient treatment to a probation officer because of the significant liberty interests at stake in confinement during inpatient treatmentSee United States v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); United States v. Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009). Inpatient treatment differs from outpatient treatment because the patient cannot leave; the patient must remain at the hospital or facility day and night throughout the duration of the treatment. Matta, 777 F.3d at 122. ‘Conditions that that touch on significant liberty interests are qualitatively different from those that do not.’ Mike, 632 F.3d at 695. (emphasis added)

The Court Agrees With the Second Circuit

Mike is right. The decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers. See Barber, 865 F.3d at 839. The decision to restrict a defendant’s liberty during the course of treatment must remain with the judge. That said, our decision should not be construed to prevent a defendant from electing inpatient treatment in the absence of a court order. Instead, we hold today that the judge may not delegate to the probation officer the decision to require inpatient, rather than outpatient, treatment because of the liberty interests at stake.  (emphasis added) 


 The condition allowing Martinez’s probation officer to elect between inpatient or outpatient treatment is vacated, and the case is remanded for further proceedings consistent with this opinion.

My Thoughts

  • In most opinions, the judge of the court below is mentioned by name in the opinion; however, Judge Elrod did not tell us who the judge was in Martinez’s case.  During his colloquy with Martinez, the judge showed both patience and kindness in his comments.  I want him to hear my next drug case.

Federal Corner: Do Your Research Before Predicting Your Client’s Advisory Sentencing Guidelines Range


This is an experience that we have all had:  The evidence against your client in his federal criminal case is overwhelming and he has realized that a plea of guilty is probably inevitable.  He asks, “What am I looking at?”  The answer to his question may be more or less complex.  In either instance, though, he is entitled to an intelligent – and accurate – answer.  If he receives something less, there is always the possibility of a post-conviction writ alleging ineffective assistance of counsel.  This is something that every lawyer should want to avoid.

Unfortunately, the lawyer for Aluro Pablo Valdez, Jr., did not give him such an answer.  Even so, a divided panel of the United States Court of Appeals for the Fifth Circuit held that Valdez’ lawyer’s performance in incorrectly advising him about the applicable Sentencing Guidelines range was not ineffective.  United States v. Valdez, 973 F.3d 396 (5th Cir. 2020) Panel:  Circuit Judges Wiener, Engelhardt and Oldham.  Opinion by Engelhardt; dissenting opinion by Wiener.)

Judge Engelhardt’s opinion reads, in part, as follows:

Valdez’ Claim of Ineffective Assistance of Counsel

Defendant-Appellant Lauro Valdez, Jr., federal prisoner # 76629-080, appeals the denial of his 28 U.S.C. § 2255 motion to set aside his conviction for being a felon in possession of a firearm. Valdez advanced several grounds for relief in the district court, but this court granted a certificate of appealability as to only one: Valdez’s claim that before he pleaded guilty, he received ineffective assistance of counsel because his trial attorney underestimated the range of imprisonment recommended by the United States Sentencing Guidelines (‘Guidelines’). United States v. Valdez, No. 18-40495 (5th Cir. Feb. 28, 2019) (one-judge order). (emphasis added)

An Overview of Valdez’ Plea and Sentencing in the District Court

After a jury was empaneled for his trial, Valdez pleaded guilty—with no plea agreement—to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Valdez used the firearm to commit murder, so the Guidelines recommended a range of 324 to 405 months’ imprisonment. Valdez’s attorney estimated that his Guidelines range would be between twenty-four and thirty-three months, but the district court, after two colloquies pursuant to Fed.R.Crim.P. 11(b), accepted the guilty plea and sentenced Valdez to the statutory maximum term of 120 months in prison. (emphasis added)

The Background of the Case

Valdez was arrested and charged in state court with murder. While the state case was pending, Valdez was charged in federal court for being a felon in possession of a firearm.  In the federal matter, Valdez planned to assert a justification defense. Someone had fired shots at Valdez’s house ten days before the killing of Rodriguez, and Valdez claimed that he had received threatening phone calls. Valdez argued that he was justified in possessing the firearm because, in the context of those prior incidents, he feared for his life when Rodriguez arrived outside his door and yelled threats.

Valdez decided to go to trial for the possession charge. On October 19, 2015, after the jury had been selected, the district court conducted a hearing on whether to allow Valdez to assert the affirmative defense of justification at trial. The court clarified that Valdez would not be permitted to raise his affirmative defense unless he could make a prima facie showing on all four elements of justification.

 … after conferring with his counsel, Valdez then, before the district court officially ruled on any pretrial motions, sought to change his plea to guilty. The court specifically noted that only his sentence and any § 2255 issues would be appealable, and his counsel confirmed that was correct.

The Plea Colloquies

During the Rule 11 colloquy, the district court told Valdez, appropriately, correctly, and expressly, that

right now you don’t know what sentence I would give you, I don’t know what sentence I would give you and I don’t know that because a Probation officer has to meet with you, your lawyer gets to be present and they have to give me a report about your criminal history and then they’ve got to give me a report about this case and where you score.

Valdez initially said that his attorney had not reviewed the Guidelines with him, but after being shown a copy of the manual, he said that he was familiar with them. The court thoroughly explained how the Guidelines arrive at a recommended sentence, noted clearly that the court had the power to sentence above or below that range, and stated the factors that the court must consider when choosing a sentence. The court asked, ‘Are you aware of the penalties?’ to which Valdez replied, ‘Yes, ma’am.’ The court then explained that the statutory maximum penalty was ten years in prison. Valdez again said that he understood and that he had no questions about the penalty. The court explicitly addressed the issue of an estimated sentence, including one from Valdez’s counsel (emphasis added):

And this is important because I will tell you that your attorney may have given you a good faith estimate where he thinks you may fall in that chart and — and he may tell you, ‘You know, I’ve been in front of this Judge a lot of times, I think she may or may not do this,’ but at the end of the day he really has no idea and you really have no idea and I have no idea because I don’t know where you’re going to score and I don’t know everything about your life history, and so whatever your lawyer may have said to you is not a promise, it’s not a guarantee and it’s not binding on this Court. Do you understand that? (emphasis in the opinion)

Valdez said, ‘Yes, ma’am,’ and confirmed that he wanted to proceed with pleading guilty.

The hearing continued to the next day, October 20, 2015, when the district court again confirmed that Valdez understood that he could not withdraw his guilty plea if he was unhappy with the sentence he received. The court then gave Valdez a chance to withdraw his plea. He declined, and the court accepted Valdez’s plea of guilty.

 The Advisory Sentencing Guidelines Range

The district court determined that the Guidelines recommended a range of imprisonment of 324 to 405 months. Valdez had a criminal history category of II, which the district court found significantly underrepresented Valdez’s criminal activity. The district court determined that Valdez’s base offense level was forty-three because he committed first degree murder … The court then applied a three-level reduction for acceptance of responsibility.

Under the Guidelines, when a firearm is possessed or used in connection with another offense that results in death, the base offense level for illegal possession of that firearm is taken from the homicide subpart of the Guidelines that is most analogous to the conduct, if the resulting offense level is greater than it would be otherwise. U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(c)(1) (U.S. SENTENCING COMM’N 2015). First degree murder results in an offense level of forty-three, second degree murder an offense level of thirty-eight, voluntary manslaughter an offense level of twenty-nine, and involuntary manslaughter an offense level of twelve to eighteen. Id. §§ 2A1.1, 2A1.2, 2A1.3, 2A1.4.

Valdez’ Argument at Sentencing and the Court’s Response

Despite the … undisputed facts, Valdez urged the district court not to apply the homicide cross-reference because he had not been convicted of homicide in state court, making the base offense level twenty. That would have resulted in a Guidelines range of twenty-seven to thirty-three months of imprisonment after a three-level reduction for acceptance of responsibility. See Id. Ch. 5, Pt. A. The court overruled Valdez’s objection to the cross-reference and sentenced him to the statutory maximum term of 120 months in prison. The court observed that, although it found that Valdez committed first degree murder, the Guidelines recommendation would also have exceeded the statutory maximum if Valdez had only committed second degree murder. Important to the issue raised here, the district court further explained that even if it had not used a first or second degree murder application to calculate the Guidelines range, the court would have relied on Valdez’s extensive and underrepresented criminal history to vary upwards to the maximum sentence of 120 months. (emphasis added)

 Valdez’ Allegation in a § 2255 Petition and His Lawyer’s Response

Valdez then filed a motion under 28 U.S.C. § 2255, seeking to set aside his conviction. Valdez … asserted … that his trial counsel was ineffective in substantially underestimating Valdez’s Guidelines range and therefore failing to advise Valdez that he faced a significant risk of receiving the statutory maximum term of imprisonment.

Valdez’s trial counsel submitted an affidavit stating that he ‘informed him of the guideline levels’ and the statutory maximum of ten years but admitting that he did not inform Valdez that the base offense level could be forty. 

The District Court’s Ruling

The district court denied Valdez’s § 2255 motion. As to the issue now on appeal, the district court found that Valdez understood that he faced a maximum possible sentence of 120 months, and there was no evidence that his counsel promised him a particular sentence. With that understanding, the court reasoned, Valdez could not show that he was prejudiced by ignorance of section 2K2.1(c)(1)(B)’s potential application before his decision to plead guilty.

Valdez’ Burden at the Fifth Circuit

To prevail on an ineffective assistance of counsel claim, a defendant must satisfy the test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing that (1) his ‘counsel’s performance fell below an objective standard of reasonableness,’ and (2) that his counsel’s deficient performance caused him prejudice. United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004).

Valdez’ Lawyer’s Advice and the Court’s Holding

Here, although Valdez’s counsel’s estimate of what he ‘hoped’ Valdez’s sentence would be was well below the 120 months to which Valdez was ultimately sentenced, counsel properly apprised Valdez, prior to his pleading guilty, of the maximum penalty the court could impose. And counsel also made abundantly clear to Valdez that no estimation he offered was a guarantee or a promise. It is no doubt that counsel’s estimated sentencing range was far lower than Valdez’s actual sentence. Nevertheless, we do not find any deficiency in counsel’s estimation to be unreasonable. (emphasis added)

Valdez Was Aware of What He was Facing

…Valdez was clearly aware that the maximum possible prison term was 120 months, even though he and his attorney were operating with the understanding that the Guidelines with a plea would suggest a significantly lower sentence. …Valdez and his attorney knew full well the circumstances of the charge against him, including most significantly the use of the subject firearm to murder Rodriguez, … as well as Valdez’s significant criminal history aside from this incident. It came as no surprise to the defendant or his counsel that the district court would indeed factor in all of the circumstances in determining a sentence, whether after trial or following a guilty plea. See Lee, 137 S. Ct. at 1966 (‘The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea.’). (emphasis added)

Valdez was clearly advised—multiple times—by both the court and his counsel of the maximum sentence he could receive, such that he was ‘fully aware of his plea’s consequences.’  

Be Aware That This Analysis Will Not Apply to Every Case

This is not to say that every defendant whose attorney makes an error in estimating his Guidelines range has not suffered prejudice.  But, in this instance, Valdez has not shown that his counsel’s estimation of the applicable Guidelines range alone caused him to plead guilty. Rather, the record indicates that Valdez’s decision to plead guilty at the eleventh hour was logically motivated by the exposure of evidence which proved fatal to his affirmative defense, all but guaranteeing a conviction at trial, without any possible sentencing benefits he knew might be available with a plea of guilty.

Accordingly, the judgment of the district court is affirmed.

Judge Wiener filed a dissenting opinion in which he cited cases from the D.C., Sixth, Seventh, Ninth and Tenth Circuits in support of his conclusion that Valdez’ lawyer had not provided the effective assistance of counsel.

Judge Wiener’s opinion reads, in part, as follows:

I respectfully dissent in the belief that Valdez has satisfied both prongs of Strickland and that the majority deeply undermines the Sixth Amendment’s guarantees in contemporary criminal defense by rendering counsel’s familiarity with the Sentencing Guidelines optional when advising a client of the consequences of a guilty plea. 

Because of the importance of sentencing guidelines in contemporary criminal practice, professional standards for defense counsel repeatedly emphasize that defense counsel must be familiar with the law and procedures applicable to sentencing, including any applicable sentencing guidelines. Such standards can inform the attorney conduct that is reasonable. ‘Although they are “only guides,” … and not “inexorable commands,” … these standards may be valuable measures of the prevailing professional norms of effective representation….’

Recognizing the importance of the Guidelines in the sentencing process, several other circuit courts require defense counsel to make a minimally competent Guidelines estimate, or at least a good faith attempt. They do so, for the most part, even in the era of advisory Guidelines, and so by implication hold that defense counsel does not discharge his duty by merely informing his client of the statutory maximum sentence.

The consistent theme in the foregoing decisions is that defense counsel’s performance in making a Guidelines calculation is unreasonable under prevailing professional norms when, because of his ignorance of basic Guidelines provisions, counsel makes an error of significant magnitude. And that is precisely what happened here. (emphasis added)

At the very least, Valdez has shown enough to merit an evidentiary hearing in the district court, which he was denied. ‘A district court must hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”’ Valdez’s claim is plausible enough that he should be allowed to present evidence regarding (1) why counsel failed to advise him of the cross reference provision and (2) the benefits that counsel erroneously advised Valdez might accrue from his pleading guilty.

These are the reasons why I respectfully dissent.

My Thoughts

  • I liked Judge Wiener’s dissent and can see where another panel might have come to a different conclusion than the one that decided Valdezs appeal.
  • Valdez appeared for his plea and sentencing before United States District Judge Marina Garcia Marmolejo of the United States District Court of the Southern District of Texas.  Her plea colloquies with Valdez and her explanation as to the sentence imposed provided the basis for the panel’s holding in Valdez.
  • After all these years, I can still find some federal sentencing issues to be confusing.  My “go to” resource is Federal Sentencing Guidelines Handbook by Roger W. Haines, Jr., Frank O. Bowman, III, and J. Douglas Wilson 2019 Thomson Reuters.  I would recommend it.