Order granting sentence reduction. 

Argument: David Lyle was convicted at trial of 8 counts, including four 924(c) counts, and sentenced to a total sentence of 1,141 months’ imprisonment. Lyle sought relief on two separate and independent grounds: directly based on retroactive application of the First Step Act’s amendments to 924(c), and under compassionate release on the argument that the discrepancy constituted an “extraordinary and compelling circumstance.” The court resentenced Lyle to a final total of 493 months.

Regarding the original sentence:

“The Court followed the law in effect at the time. Nevertheless, since that time, Congress has recognized that perhaps it either went too far or more likely that it never intended § 924(c) to be interpreted as it was. That being the case, the Court finds that there is no compelling reason not to grant Lyle's motion and there are many compelling factors in its favor.”

Order Granting Compassionate Release

Argument: The court found that "despite being vaccinated, because of his underlying condition of Type 2 diabetes, Ford remains vulnerable to new COVID-19 variants and is at a greater risk of severe illness or death if he were to re-contract the virus."

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant.

Argument: NACDL’s amicus brief argues that under the savings clause of 28 U.S.C. § 2255(e), a prisoner may seek habeas corpus relief through 28 U.S.C. § 2241 under limited circumstances: when the § 2255 remedy is “inadequate or ineffective to test the legality of [the prisoner’s] detention.”  28 U.S.C. § 2255(e).  For 20 years, the Fifth Circuit has recognized that the § 2255 remedy is “inadequate or ineffective” if a petitioner cannot seek relief despite a retroactively applicable Supreme Court decision establishing that the petitioner may have been convicted of a nonexistent crime.  Although that test leaves the door closed on some actual-innocence claims that should be recognized, it is generally consistent with the savings-clause tests applied in nearly every other federal court of appeals.  Most importantly, that test confirms that the savings clause offers more than a hollow process providing no practical opportunity to end unlawful imprisonment.  The Tenth and Eleventh Circuits, by contrast, have held that the savings clause applies only if the procedure afforded by § 2255 was formally unavailable.  According to those courts, so long as there was some theoretical chance to assert a claim under § 2255—even if the claim was futile or frivolous under existing precedent—the remedy was adequate and effective.  The Fifth Circuit should not modify or overrule its savings-clause jurisprudence to align itself with the Tenth and Eleventh Circuits.  The test applied in those circuits contravenes the text of the savings clause and congressional intent, poses constitutional concerns, and would force petitioners and their counsel to disregard binding precedent, court rules, and ethical obligations that forbid arguments that would be frivolous under settled law.  Moreover, application of the formal-process test would undermine public confidence in the justice system’s treatment of prisoners who contend that retroactive changes in the law mean they are actually innocent.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal.

Argument: The Fifth Circuit panel’s interpretation of 18 U.S.C. § 1028A, the aggravated identity theft statute, expands the bounds of the statute beyond what Congress intended.  The interpretation is a result of the overcriminalization of the statute and prosecutorial overreach, and if upheld, threatens to transform the statute to include run-of-the-mill fraudsters, “stray[ing] far afield from the conduct targeted by Congress” under the statute.  United States. v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017).  The panel construed the statute to encompass a healthcare provider manager’s use of a patient’s information to bill Medicaid for services that were provided to that patient but misrepresented during the billing process.  Such an interpretation—which criminalizes conduct beyond real, classic identity theft (i.e., impersonating someone or stealing his identity)—is at odds with the legislative purpose to punish identity thieves and the common-sense reading of the statute. 

Attorney-client communications federal caselaw and state-specific anecdotal data in Texas

Attorney-client communications federal caselaw and state-specific anecdotal data in Mississippi

Attorney-client communications federal caselaw and state-specific anecdotal data in Louisiana

Brief of Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner’s Objections to Magistrate Judge’s Order.

Argument: Investigations by telephone, rather than in-person, deprive Brown of effective assistance of counsel. Defense counsel’s ability in a death penalty case to effectively represent the client is derived from “the overarching duty to advocate the defendant’s cause.” This duty is even more critical in capital cases, since “‘the penalty of death is qualitatively different’ from any other sentence.” As such, capital cases require a “greater degree of reliability when the death sentence is imposed.” However, reliability is only attainable when defense counsel is able to adequately investigate and prepare, which is fundamental to attorney competence. Inhibiting defense counsel’s ability to investigate renders counsel ineffective and harms the client. In fact, several courts have found defense counsel constitutionally ineffective for failing to conduct an in-person investigation. The Magistrate’s Order asks counsel to ignore ethical obligations under standards governing capital cases. A mitigation investigation in a capital case must not deviate from the American Bar Association Guidelines for the Appointment and Performance of Council in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases. Capital life sentence investigations must be conducted according to well-established best practices. The ABA Guidelines, the Supplementary Guidelines, and Texas Guidelines articulate the national and state standards regarding the investigation obligations of defense teams in such cases.

All three defendants were convicted of conspiracy (18 USC § 371); mail, wire and honest services fraud (18 USC §§ 1341, 1343, 1346); and bribery (18 USC 666). In addition, Minor was convicted of RICO (18 USC §1962). The Fifth Circuit vacated all convictions related to bribery and conspiracy to commit bribery. The court affirmed all remaining convictions. Each defendant filed a Petition for A Writ of Certiorari to the U.S. Supreme Court.

Argument: On October 4, 2010, the Supreme Court denied Minor's Petition and, in response, District Court Judge Wingate scheduled resentencing for all three defendants on November 17, 2010. Minor filed a motion to vacate with the U.S. District Court for the Southern District of Missippi on December 17, 2010. The Government opposed that motion on January 7, 2011.

Scruggs pled guilty to the crime of misprision of felony, which the information described as an honest services fraud crime. He has now filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255. On September 16, 2010, District Court Judge Neal B. Biggers ordered the government to respond to the defendant’s motion to vacate by October 16. On October 15, the Government filed for an extension, citing the need to submit an “outline of the government’s proposed response” to the Dept. of Justice for approval in order to ensure DOJ responses are “uniform and consistent nationwide.”

Order granting compassionate release: pre-COVID Compassionate Release grant in mandatory life drug case citing age, rehabilitation, and the "fundamental change to sentencing policy carried out in the First Step Act's elimination of life imprisonment as a mandatory sentence solely by reason of a defendant's prior convictions."

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellant (in support of petition for rehearing en banc).

Argument: In Lohmeyer, the IRS issued a John Doe summons for the names of all of the clients of the Lohmeyer firm who had sought legal advice concerning off shore tax shelters. The Amicus takes the position that the purpose for which such clients seek legal advice is privileged and thus the identity of those clients who sought the advice is privileged because it would reveal their motive for seeing legal advice.

Brief for Harris County Public Defender, Harris County Judge Lina Hidalgo*, Harris County Commissioner Rodney Ellis, Precinct 1* and National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Plaintiffs-Appellees (*as elected officials and not on behalf of Harris County government).

Argument: A determination of bail, pursuant to TEX. CODE CRIM. P. ART. 15.17, at a defendant’s initial appearance, is a critical stage of trial requiring the assistance of counsel. The district court’s findings and conclusions aptly support this proposition. An unrepresented defendant before a magistrate at first appearance has the untenable choice of speaking on her own behalf for release – and possibly saying something that may later be used against her – or lose that opportunity to advocate for freedom by remaining silent. Once that first bail determination has been made, the chance of changing it, particularly to lower bail, significantly diminishes. That loss of liberty has a direct detrimental effect on a defendant’s outcome at trial. In support, Amicus Curiae will offer its current relevant experience and data, some of which were previously accepted as fact by another United States District Judge and a panel of this Honorable Court of Appeals.

President Gerald Goldstein's written statement to the House Judiciary Subcommittee on Crime and House Government Reform and Oversight Subcommittee on National Security, International Affairs and Criminal Justice regarding government and law enforcement conduct in the 1993 confrontation between Branch Davidians and law enforcement in Waco, TX, and proposed changes in Exclusionary Rule Reform Act of 1995 (H.R. 666) and Violent Crime Control and Law Enforcement Improvement Act of 1995 (S. 3).