Take the Fifth

Designated for publication

• U.S. v. Muhammad, 15-60300, appeal from S.D. Miss.
  • Oldham, J. (Ho, Oldham, Wilson), criminal, harmless error
  • Affirming defendant’s conviction of violations of the Controlled Substances Act and the Controlled Analogue Enforcement Act, which resulted in a 120-year sentence, on finding that error in jury instructions that omitted an element of the Analogue Act was not structural error but was harmless error.
  • As described by the Court, “the Analogue Act is an antidote to statutory evasion: It expands the [Controlled Substances Act’s] coverage to include substances that, while technically not on the schedules, mimic those that are.” The Court noted that the Defendant’s scheme was to sell “substances that (a) could get people high but (b) were not yet on the federal drug schedules,” and that he “actively pitched his products as a legal way to get high.”
  • As to the jury instructions on the Analogue Act, “[t]he district court instructed the jury that, for each count alleging a violation of the Analogue Act, the Government had to prove (1) the alleged analogue’s chemical structure was substantially similar to that of a controlled substance, and (2) the alleged analogue had a stimulant, depressant, or hallucinogenic effect on the nervous system similar to a controlled substance’s effect—or that Muhammad represented it to have such an effect. See 21 U.S.C. § 802(32)(A). The district court added that the Government also needed to prove Muhammad knew the substance was intended for human consumption and what the substance was. But, the court instructed, the Government need not prove Muhammad knew the substance was an analogue.” Five months after the defendant’s conviction, the Supreme Court held in McFadden v. United States, 576 U.S. 186, 188–89 (2015), that the Government must “establish that the defendant knew he was dealing with a controlled substance,” requiring either a showing that “the defendant knew that the substance was controlled under the … Analogue Act” or that “the defendant knew the specific features of the substance that make it a controlled substance analogue.” The Government concedes that the jury instructions here omitted the McFadden requirement.
  • The Court held that the omission of the McFadden requirement was subject to harmless error rather than structural error analysis, and found that there was uncontroverted evidence in the record establishing beyond a doubt that the defendant had the knowledge required by McFadden.

• U.S. v. Johnson, 20-11046, appeal from N.D. Tex.
  • Stewart, J. (Smith, Stewart, Willett), criminal, sentencing
  • On remand after the sentence for possession with the intent to distribute had been vacated for the district court’s failure to make an enumerated set of factual findings regarding its attribution of cash found in the house where defendant was arrested to defendant (for purposes of determining the equivalent amount of drugs in order to calculate the appropriate sentencing level), the Court affirmed the 105-month sentence.
  • Defendant argued that the district court on remand essentially cut and pasted the remand instructions as factual findings, without any reference to evidence that supported those findings. The Court rejected this argument. “[T]his court did not mandate that the district court make findings with references to the underlying evidence. And while we acknowledge that the district court could have done more to explain its reasoning, the deferential, clear-error standard of review that applies to the district court’s findings, see infra at 11–15, requires us to determine whether those findings are plausible within the totality of the record existent on remand.”
  • The Court then examined the totality of the record and determined that sufficient evidence supported the factual findings that were required to attribute the various stashes of cash to the defendant.

Unpublished

• U.S. v. Castillo, 19-10649, c/w U.S. v. Goosby, 19-10712, c/w U.S. v. Guevara-Bonilla, 19-10821, c/w U.S. v. Russell, 19-11220, c/w U.S. v. Hoyos, 19-11224, c/w U.S. v. Lopez-Campos, 19-11241, c/w U.S. v. Wright-Nasalski, 19-11265, c/w U.S. v. Tarin-Valerio, 19-11290, c/w U.S. v. Cantrell, 20-10026, c/w U.S. v. Ramos-Quezada, 20-10037, c/w U.S. v. Zamudio, 20-10237, appeals from N.D. Tex.
  • per curiam (Clement, Haynes, Wilson), criminal, sentencing, mootness
  • Affirming all but one of the defendants’ sentences (that one had become moot, so that appeal was dismissed as moot), with one modification to remove a condition of supervised release in the written judgments that diverged from the oral pronouncement of the sentences.

• Sivanathanan v. Garland, 19-60935, petition for review of BIA order
  • per curiam (Higginbotham, Jones, Costa), immigration
  • Denying Sri Lankan citizen’s petition for review of BIA order denying his asylum and Convention Against Torture claims.

• Quinn v. Ghanem, 20-20638, appeal from S.D. Tex.
  • per curiam (Dennis, Clement, Haynes), bankruptcy
  • Dismissing appeal from dismissal of adversary proceeding, where appellant was actually seeking to collaterally attack a settlement order as to which appeal would have been untimely.

• First National Capital, L.L.C. v. S-3 Pump Service Inc., 20-30372, appeal from W.D. La.
  • per curiam (Dennis, Engelhardt, Hicks (by desig.)), bankruptcy
  • Affirming grant of summary judgment to debtor in proceeding to retrieve deposits it had paid for equipment rentals.

• U.S. v. Sullivan, 20-50817, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Gonzalez-Castelan v. Garland, 20-60162, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal from an order of the immigration judge (IJ) pretermitting his application for cancellation of removal.

• U.S. v. Romero-Gonzalez, 21-40127, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Leon-Turrubiartes, 21-40215, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Guillen-Cruz, 21-40248, appeal from S.D. Tex.
  • per curiam (King, Costa, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rodriguez-Aguilera, 21-50126, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Granting summary affirmance of conviction and sentence for illegal reentry.

• U.S. v. Morris, 21-50170, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Parra-Robles, 21-50233, appeal from W.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
  • Granting summary affirmance of 48-month sentence on conviction for illegal reentry.