Higginson, J. (Higginbotham, Jones, Higginson), criminal, attempted enticement of a minor, sentencing
Affirming conviction and sentence of defendant for attempted enticement of a minor to engage in sexual activity under 18 U.S.C. § 2422(b).
The Court rejected defendant’s challenge to the sufficiency f the evidence to prove the element of enticement, inducement, or persuasion, in which he argued that the government must show that he, in essence, took an action to change the minor’s mind to become “willing.” The Court noted that it had previously rejected this interpretation of “enticement,” and that all that was required was evidence that the defendant had taken steps toward encouraging the engagement in sexual activity. Here, this evidence included repeated explicit text conversations, the offer to purchase the victim a cell phone for the purpose of taking sexually explicit photos and videos, and showing up at a proposed meeting with erectile dysfunction medication, an empty condom box, and a gift bag with lingerie from Victoria’s Secret purchased that same morning.
The Court also rejected defendant’s argument that the district court erred in rejecting his proposed jury instruction definition of “enticement,” as it was not a substantially correct definition of that term under Fifth Circuit precedent.
The Court upheld the sentence of 240 months’ imprisonment and a life term of supervised release thereafter. While rejecting the government’s argument that defendant had not properly preserved his objection to asserted procedural defects in the district court’s sentencing process, the Court held that Fifth Circuit precedent dictated that the district court was not required to employ the methodology in Guideline § 4A1.3 before imposing a non-Guidelines sentence. The Court held that 2010 Guidelines amendment 741 did not materially change Guideline § 1B1.1 and therefore did not abrogate the Fifth Circuit precedent on whether the methodology must be followed. The Court also held that two incidents showing predatory behavior that were included in the pre-sentencing report had sufficient indicia of reliability to be considered by the district court in its sentencing decision.
U.S. v. Becerra, 19-50447, appeal from W.D. Tex., designated for publication
per curiam (King, Stewart, Southwick), criminal, child pornography, supervised release
Vacating sentence with supervised release conditions prohibiting use of the Internet, computers, or other electronic devices for ten years following release from his sentence of 151 months’ imprisonment, and remanding for resentencing.
Court reviewed supervised release conditions on a plain error review because defendant had not objected at the time of sentencing. The Court then found no procedural error in the district court’s summary explanation of the reason for the conditions imposed, because the reason was fairly inferred from the PSR and from the record of the proceedings. Nevertheless, the Court held that the conditions were substantively unreasonable, noting that it had previously held that such bans were only acceptable when narrowly tailored in scope or duration. The Court recognized that access to computers and the Internet is essential to functioning in today’s society–and held that the error in imposing the unconditional ten-year ban was plain, and affected defendant’s substantial rights. The Court then held that the conditions imposed by the district court “seriously affect the fairness, integrity or public reputation of judicial proceedings.”
Higginson, J. (Higginbotham, Jones, Higginson), habeas corpus
Affirming dismissal of petition, but modifying the judgment to reflect dismissal without prejudice on all claims.
The Court held that the district court did not err in holding that the plaintiff’s Bivens claim should be recharacterized as a § 2241 claim in part and a § 2255 claim in part, that the § 2241 claims should be dismissed for lack of jurisdiction, and that the § 2255 claims should be dismissed as barred under Heck v. Humphrey, 512 U.S. 477 (1994). However, the Court held that the Heck-related dismissal should have been without prejudice.
per curiam (Higginbotham, Jones, Higginson), immigration, mootness
Dismissing petition for review of BIA order denying a second motion to reopen removal proceedings. During pendency of petition at the Court of Appeals, petitioner was granted permanent resident status. Court held that petition was moot, and that exception for claims capable of repetition but evading review could not apply–as an inherent characteristic of the permanent resident status.
per curiam (Jolly, Southwick, Wilson), criminal, sentencing
Affirming sentence for illegal reentry. Court held there was no plain error in the inclusion of defendant’s criminal history points a misdemeanor conviction for failure to stop, because the inclusion did not affect defendant’s substantial rights because the district court’s upward variance was based on more factors than just the inclusion of the misdemeanor in his criminal history. Court also found no plain error in any variance between the oral pronouncement of supervised release conditions and the written sentence.
Dismissing appeal as moot. Prior appeal proceeding had affirmed dismissal of petitioner’s § 2255 proceeding, leaving only an issue for appeal the denial of petitioner’s request for a transcript from her sentencing hearing for use in her § 2255 proceeding. That issue was moot.
per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
Affirming sentence of 30 months’ imprisonment and one year of supervised release for conviction of one count of alteration of a postal money order. Court held sentence was not substantively unreasonable in light of district court’s finding that defendant’s offense was similar to many of his prior offenses and that shorter prison sentences had not seemed to have an effect on his conduct.