Hello all. Below is the May 2025 edition of the Fifth Circuit criminal and civil case summaries, with a special focus on cases of interest to white-collar practitioners.
This past month, the Fifth Circuit issued published orders and opinions on many topics, including crimes of violence in the sentencing context, protective sweeps without a warrant, restitution, forfeiture, and sufficiency of the evidence.
All opinions cited here are linked in the case title, and the bolded judge is the author of the Court’s opinion.
United States v. Sanchez-Zurita, No. 24-60602, — F.4th — (5th Cir. May 2, 2025)
Issues: Above-Guideline Sentence, Government Motion to Vacate Case, Plea Bargaining.
Judge Higginbotham, Judge Jones, Judge Oldham (per curiam) (from S.D. Miss.)
This published order assessed a relatively unusual situation, where the government moved to vacate a criminal defendant’s sentence because it believed the sentence did not reflect the spirit of pre-sentencing discussions with defense counsel.
The Fifth Circuit denied the government’s motion to vacate and remand for re-sentencing the 240-month sentence imposed on Luis Javier Sanchez-Zurita for unlawful re-entry after an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a), (b)(2). Sanchez-Zurita pled guilty without a plea agreement. The district court imposed a significant upward variance from the Guidelines range, citing a number of aggravating factors, including repeated illegal re-entries into the United States, a prior conviction for child molestation involving an eight-year-old victim at knifepoint, failure to register as a sex offender, leniency previously shown by the sentencing court for the molestation offense, convictions for DUI and DUI child endangerment while extremely intoxicated with a child in the vehicle, substance abuse issues involving alcohol, cocaine, and methamphetamine, and an inability to demonstrate lawful employment.
The government’s motion to vacate was based on pre-sentencing email exchanges with defense counsel, which it argued could be interpreted as a commitment to recommend a Guidelines sentence. However, the government conceded that it did not intend to be bound to any sentencing recommendation absent a formal plea agreement. The Fifth Circuit distinguished this case from United States v. Munoz, 408 F.3d 222 (5th Cir. 2005), where the government’s obligations arose from explicit promises in a written plea agreement. Here, there was no plea agreement or evidence of a binding promise. The Court concluded that, in the absence of such an agreement, there was no basis to vacate the sentence, and it denied the motion.
United States v. Wickware, No. 24-10519, 136 F.4th (5th Cir. May 7, 2025)
Issues: Sentencing, Sentencing Guidelines, Intervening Amendment, Categorical Approach, Crimes of Violence.
Judge Stewart, Judge Clement, Judge Willett (per curiam) (from N.D. Texas)
The Fifth Circuit here considered the effect of an intervening amendment to the Sentencing Guidelines, and it ultimately affirmed the sentence the district court imposed on Darrell Wickware.
Darrell Wickware was convicted of robbery under Texas law in 2017 and later charged federally for unlawful possession of a firearm by a felon. At sentencing, Wickware objected to the classification of his Texas robbery conviction as a “crime of violence” under the amended Sentencing Guidelines, specifically after the November 2023 amendment to U.S.S.G. § 4B1.2, which provided a new definition of “robbery.” The district court overruled his objection, relying on Fifth Circuit precedent, and it sentenced him to 24 months’ imprisonment.
The central issue on appeal was whether the 2023 amendment to the Sentencing Guidelines’ definition of “robbery” changed the characterization of a Texas robbery conviction as a “crime of violence.” Wickware contended that the new definition, which requires property to be taken “by means of actual or threatened force, or violence, or fear of injury,” was materially different from the Texas statute, which criminalizes harm or threats “in the course of committing theft.”
The Fifth Circuit compared the elements of Texas robbery with the amended Guidelines definition. The Court found that any differences in phrasing—here, comparing “in the course of” with “by means of”—were not substantive and that the Texas statute’s elements were the same as or narrower than those in the Guidelines. The Court also noted that the Guidelines’ definition is broader, encompassing threats to property and future injury, which are not elements of Texas robbery. Thus, a Texas robbery conviction still qualifies as a “crime of violence” under the amended Guidelines.
United States v. August, No. 24-30457, 136 F.4th 595 (5th Cir. May 8, 2025)
Issues: Felon in Possession of a Firearm, Protective Sweep, Search Warrant, Independent Source Doctrine, Exigent Circumstances.
Judge King, Judge Jones, Judge Oldham (from W.D. Louisiana)
The Fifth Circuit assessed a challenge to the admissibility of evidence obtained during a series of police searches at the residence of Kirk August in Lake Charles, Louisiana. The case centered on whether law enforcement’s actions—specifically, protective sweeps of the backyard and home, searches of a vehicle, and the execution of a search warrant—comported with the Fourth Amendment, and whether the evidence seized, including firearms and ammunition, should have been suppressed. The Fifth Circuit ultimately affirmed the district court’s denial of August’s motion to suppress, finding that the searches were justified under established doctrines and that the warrant was valid, thereby upholding August’s conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
The events giving rise to the case began when Lake Charles Police responded to a report of gunshots in a residential neighborhood. Officers were directed to August’s home, where they encountered him in a backyard cluttered with debris, which officers believed could conceal weapons or other individuals. The neighbor informed police that she had just witnessed August firing a handgun in his backyard and that such incidents were frequent, with stray bullets previously striking her home. Officers were aware that August was a convicted felon and thus prohibited from possessing firearms. When questioned, August denied both hearing gunshots and having any weapons on the property. However, the officers, concerned for their safety and the possibility of hidden weapons or accomplices, conducted a protective sweep of the backyard. During this sweep, they discovered spent shell casings, and a sign riddled with bullet holes, further corroborating the neighbor’s account. August was then handcuffed, and officers sought a search warrant for the property.
While waiting for the warrant, officers conducted a protective sweep of the home. Entry was gained using keys retrieved from August’s car, where methamphetamine was observed in plain view. The sweep of the home yielded a magazine clip, and a subsequent search of the car uncovered ammunition. Once the search warrant was obtained and executed, police recovered a .22 caliber rifle, a .410 shotgun, and additional ammunition from the property.
August was charged with possession of a firearm by a convicted felon. He moved to suppress the evidence obtained from the backyard, home, and car, arguing that the searches violated his Fourth Amendment rights. The district court denied the motion, finding that the protective sweeps were justified by exigent circumstances and officer safety concerns, that the independent source doctrine applied to the evidence found in the car and home, and that the search warrant was supported by probable cause. August entered a guilty plea but reserved his right to appeal the suppression ruling.
On appeal, the Fifth Circuit first held that the protective sweep of the backyard was justified by exigent circumstances. The officers had reasonable suspicion that a firearm was present and that another individual could be hiding in the cluttered yard, posing a threat to their safety. The sweep was limited in scope and duration, and the discovery of shell casings further supported the officers’ concerns. Regarding the protective sweep of the home, the Court distinguished this case from precedent where no evidence suggested anyone remained inside. Here, the presence of a recently arrived vehicle, August’s inconsistent statements, and the lack of witnesses confirming the home was empty gave officers reasonable suspicion that someone else could be inside and potentially armed, justifying the sweep.
The Court then considered the searches of the car. Even assuming there had been constitutional defects in the initial car searches, the Fifth Circuit found that the independent source doctrine applied. The search warrant was supported by probable cause independent of the evidence found during the car and home sweeps, and the officers’ decision to seek the warrant was not motivated by the prior searches. Thus, the magazine clip and ammunition were admissible. Finally, the Court found that the search warrant was valid, supported by eyewitness testimony and physical evidence, and that the firearms were lawfully seized. The Court also noted that the good-faith exception to the exclusionary rule would apply even if there were defects in the warrant. The Court therefore affirmed the district court’s ruling.
United States v. Russell, No. 24-50075, 136 F.4th 606 (5th Cir. May 8, 2025)
Issues: Crime of Violence, Plain Error, Sentencing, Categorical Approach.
Judge Smith, Judge Clement, Judge Duncan (from W.D. Texas)
This case involved Billy Russell challenging the classification of his 2017 Tennessee aggravated assault conviction as a crime of violence (“COV”) for sentencing purposes. Russell pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), and his sentence was enhanced based on two prior violent felony convictions, including the 2017 aggravated assault. The Fifth Circuit ultimately affirmed the district court’s decision, finding no plain error in the categorization of the Tennessee conviction as a COV and upholding Russell’s 115-month sentence.
The case began with a 2022 incident in Midland, Texas, where police responded to a domestic disturbance involving Russell and his girlfriend. Upon arrival, officers discovered a handgun in the vehicle, which Russell eventually admitted to possessing. During sentencing, the Presentence Report calculated Russell’s base offense level as 26, citing his two prior felony crimes of violence and the possession of a firearm capable of accepting a large-capacity magazine. After a reduction for acceptance of responsibility, Russell’s guideline range was 92 to 115 months, and he received the maximum sentence within that guideline range.
On appeal, Russell’s primary argument was that the district court erred in categorizing his 2017 Tennessee aggravated assault conviction as a COV. The Fifth Circuit reviewed the issue for plain error, as Russell had not objected at sentencing. The Court explained that a COV under the Sentencing Guidelines includes any offense with an element of the use, attempted use, or threatened use of physical force, or certain enumerated offenses such as aggravated assault. The Court applied the categorical approach, focusing on the least culpable conduct criminalized by the Tennessee statute, which Russell argued could include causing only mental harm.
However, the Fifth Circuit found that Russell failed to identify any Tennessee case where aggravated assault was applied to conduct causing solely mental harm, as required to show a “realistic probability” that the statute was broader than the generic definition of aggravated assault. The Court noted that Russell’s interpretation was based on hypothetical readings of statutory language rather than actual case law. As a result, the Court concluded there was no clear or obvious error in treating the 2017 conviction as a COV and affirmed Russell’s sentence.
United States v. Valencia, No. 22-50283, 137 F.4th 331 (5th Cir. May 15, 2025)
Issues: ACCA, Erlinger Analysis, Different Occasions Inquiry, Sentencing, Shepard Documents.
Judge King, Judge Higginson, Judge Willett (from W.D. Texas [On Remand From U.S. Supreme Court])
On remand from the U.S. Supreme Court, the Fifth Circuit considered whether Samuel Valencia’s sentence enhancement under the Armed Career Criminal Act (“ACCA”) was constitutional after the Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024). Valencia pled guilty to being a felon in possession of a firearm, and his sentence was enhanced based on four prior Texas burglary convictions. The ACCA imposes a mandatory minimum sentence if a defendant has three prior convictions for violent felonies or serious drug offenses “committed on occasions different from one another.”
The district court relied on four prior burglary convictions for Valencia: two burglaries committed on July 16, 1987, one on November 10, 1987, and one on February 1, 1994. The two July 16, 1987, burglaries were treated as occurring on the same occasion, while the others were separated by several months and years. Each burglary involved a different victim, and the substantial gaps in time between the offenses supported the finding that they occurred on different occasions. The district court, relying on the presentence report and Shepard-approved documents concerning these burglaries, determined that the burglaries occurred on three separate occasions and applied the ACCA enhancement, sentencing Valencia to 235 months. During his original appeal, Valencia argued that the ACCA enhancement violated his constitutional rights because the facts establishing his previous felony convictions were committed on those different occasions were not charged in the indictment, not admitted, and not proven to a jury beyond a reasonable doubt.
After the Supreme Court’s Erlinger decision clarified that a jury must decide the “different occasions” inquiry, it vacated the panel’s original decision, and the Fifth Circuit reconsidered Valencia’s case. On remand, Valencia argued, and the government conceded, that the district court erred by not submitting the issue to a jury.
Despite the constitutional error, the Fifth Circuit found it harmless beyond a reasonable doubt, noting that its prior precedent held that Erlinger analyses should be conducted under the harmless-error standard. The Court emphasized that the Shepard documents showed the burglaries were separated by significant periods—months and years—and involved different victims. The Court then reasoned that any rational juror would have found the offenses occurred on different occasions, held the error did not affect the outcome, and affirmed Valencia’s sentence.
United States v. Swick, No. 24-10172, 137 F.4th 336 (5th Cir. May 15, 2025)
Issues: Supervised Release, Fugitive Tolling.
Judge Wiener, Judge Stewart, Judge Southwick (from N.D. Texas)
The Fifth Circuit addressed the application of the fugitive tolling doctrine to supervised release, a question that has produced a circuit split. Swick, who pled guilty in 2009 to possessing a stolen firearm, was sentenced to 33 months in prison (to run concurrently with longer state sentences) and two years of supervised release. Upon his release from state prison in 2017, Swick failed to report to federal probation as required by the conditions of his supervised release. This failure went unnoticed for several years, during which Swick remained in Wichita Falls, Texas, and committed additional state offenses, resulting in further periods of incarceration.
The government eventually sought revocation of Swick’s supervised release based on his post-release conduct, but by then, the original term of supervised release would have expired unless tolled. The district court found that Swick’s intentional failure to report tolled the running of his supervised release under the fugitive tolling doctrine, thus preserving the court’s jurisdiction to revoke. Swick appealed, arguing that fugitive tolling does not apply in the supervised release context and, alternatively, that the evidence did not support a finding that he was a fugitive.
The Fifth Circuit affirmed, holding that fugitive tolling applies to supervised release. The Court noted a four-to-two circuit split, with the Second, Third, Fourth, and Ninth Circuits recognizing fugitive tolling in this context, and the First and Eleventh Circuits rejecting it. The panel found persuasive the reasoning of its own withdrawn opinion in United States v. Cartagena-Lopez, 979 F.3d 356 (5th Cir. 2020), vacated as moot, 2020 WL 13837259 (5th Cir. Nov. 19, 2020), as well as the common-law tradition that a defendant should not benefit from his own wrongdoing. The Court rejected Swick’s argument that Congress’s omission of a fugitive tolling provision in the Sentencing Reform Act of 1984 (which replaced parole with supervised release) was a deliberate repudiation of the doctrine. The Court reasoned that the pre-1984 parole statute’s tolling provision was broader than mere fugitive tolling and that, by 1984, courts had already begun applying fugitive tolling in analogous probation and parole contexts, even absent explicit statutory authorization.
The Court also addressed the factual question of whether Swick was a fugitive. It held that the government bears the burden of proving that the supervisee had knowledge of the obligation to report and intentionally evaded supervision. The district court’s finding that Swick was a fugitive was supported by the 2009 judgment, which explicitly required him to report to probation within 72 hours of release, and by Swick’s experience with state supervision, which undermined his claim of ignorance. The Fifth Circuit found no clear error in the district court’s credibility determination and inference of intent, and it affirmed the district court’s supervised release decision.
United States v. Davis et al, No. 23-20475, 137 F.4th 349 (5th Cir. May 16, 2025)
Issues: Forfeiture, Third-Party Petitions for Forfeited Property, PPP Fraud.
Judge Ho, Judge Engelhardt, Judge Douglas (from S.D. Texas)
The Fifth Circuit’s decision here addresses the strict statutory requirements for third-party petitions in federal criminal forfeiture proceedings. The case arose after Scott Davis purchased property in Texas using fraudulently obtained Paycheck Protection Program funds and subsequently used that property as collateral for a $360,000 loan from Gravity Capital. Following Davis’s guilty plea to wire fraud, the district court issued a preliminary order of forfeiture for the property and notified interested parties pursuant to 21 U.S.C. § 853(n).
Two parties filed petitions asserting interests in the property: E. Alan Tiras, who held a civil judgment lien, and Gravity Funding, L.L.C. The district court granted Tiras’s petition but denied Gravity Funding’s due to a critical drafting error—counsel filed the petition on behalf of Gravity Funding, not Gravity Capital, the actual lender. The Court found this error fatal, as Gravity Funding had no interest in the property and Gravity Capital was not a party to the petition. The Fifth Circuit affirmed, emphasizing that Section 853(n) petitions must be strictly construed and signed by the correct petitioner under penalty of perjury. The Court also rejected the appellants’ attempt to amend the petition to add Gravity Capital, noting the amendment was untimely—filed eleven months after the statutory deadline.
In affirming, the Court reiterated that Section 853(n) provides the exclusive means for third parties to assert interests in forfeited property, and noncompliance precludes any challenge to the forfeiture order.
Issues: Restitution, Paroline, Mandatory Victims Restitution Act, Plain Error.
Judge Elrod, Judge Willett, Judge Duncan (Per Curiam) (from N.D. Texas)
This case addresses the statutory and procedural requirements for restitution orders in federal child pornography cases, with a particular focus on the necessity of a proximate-cause analysis and the proper statutory basis for such orders. The case arose after Kyle West pled guilty to two counts of production of child pornography under 18 U.S.C. § 2251(a), pursuant to a plea agreement in which he reserved the right to appeal any sentence exceeding the statutory maximum punishment, including restitution.
Following West’s guilty plea, West’s Presentence Report (“PSR”) recommended a sentence of 720 months’ imprisonment and $6,000 in restitution to the victim’s mother. The PSR cited the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A, and referenced a statutory minimum under 18 U.S.C. § 2259(b)(2), which applies to trafficking in child pornography. However, West’s conviction was for production, not trafficking, and the victim’s mother did not request restitution. At sentencing, the district court adopted the PSR’s findings and ordered West to pay $6,000 in restitution—$3,000 for each count—citing the MVRA.
On appeal, West challenged the restitution order, arguing that it exceeded the statutory maximum because the district court failed to conduct the proximate-cause analysis required by Supreme Court and Fifth Circuit precedent. The Fifth Circuit reviewed the appeal de novo, holding that the statutory-maximum exception to West’s appellate waiver applied because a restitution order without a proximate-cause analysis constitutes a sentence above the statutory maximum. The Court emphasized that under Paroline v. United States, 572 U.S. 434 (2014), restitution under 18 U.S.C. § 2259 is proper “only to the extent the defendant’s offense proximately caused a victim’s losses.” The Fifth Circuit’s own precedents, including United States v. Winchel, 896 F.3d 387 (5th Cir. 2018), and United States v. Leal, 933 F.3d 426 (5th Cir. 2019), make clear that failure to conduct this analysis renders a restitution order unlawful and outside the scope of an enforceable appellate waiver.
The Court found two critical errors in the district court’s restitution order. First, the PSR and judgment cited inapplicable statutes: the MVRA and the statutory minimum under Section 2259(b)(2), neither of which applied to West’s offense. Section 2259, not the MVRA, governs restitution for child pornography production, and the statutory minimum applies only to trafficking offenses. Second, and more significantly, the district court failed to conduct any proximate-cause analysis or make findings regarding the actual losses suffered by the victim as a result of West’s conduct. The record contained no evidence or calculation of the victim’s losses, and the government did not meet its burden to prove the amount of loss attributable to West.
Applying plain error review, the Fifth Circuit held that these errors were clear and obvious, affected West’s substantial rights, and seriously undermined the fairness and integrity of the judicial proceedings. The Court reiterated that restitution orders must be based on evidence of actual losses proximately caused by the defendant’s conduct, and the government bears the burden of proof. Where no such analysis or evidence exists, any restitution order necessarily exceeds the statutory maximum.
Thus, the Court vacated the restitution order and remanded the case for further proceedings, allowing the district court to determine whether the government may present new evidence of the victim’s losses. The Court noted that, while the general rule precludes the government from introducing new evidence on remand, exceptions may apply, and the district court is best positioned to make that determination.
Judge Willett concurred, agreeing that binding precedent (specifically Winchel) required the panel’s result: the appeal waiver did not bar review of the restitution order. He expressed, however, that there is significant uncertainty in the Fifth Circuit’s approach to these issues and indicated he hoped for en banc review to clarify the law.
Judge Duncan also concurred in the judgment, acknowledging that circuit precedent compelled the holding that the restitution order constituted a “sentence exceeding the statutory maximum punishment,” thus allowing the appeal despite the waiver. He described this result as perplexing and noted a tension between the current precedent and earlier circuit decisions, particularly United States v. Bond, 414 F.3d 542 (5th Cir. 2005).
United States v. Bourrage & Bourrage, No. 23-60286, 138 F.4th 327 (5th Cir. May 21, 2025)
Issues: Sufficiency of the Evidence, Motion to Suppress, Wiretap, Drug Code, Jury Instructions, Sentencing.
Judge Richman, Judge Willett, Judge Douglas (from S.D. Mississippi)
The Fifth Circuit affirmed the convictions and sentences of Donovan Sherill Bourrage (“Donovan”) and Orlando Bourrage (“Orlando”) for conspiracy to possess and distribute methamphetamine, following a jury trial in the Southern District of Mississippi. The opinion addresses a range of issues raised on appeal, including the denial of motions to suppress wiretap evidence, the admissibility of law enforcement testimony interpreting drug code words, the sufficiency of the evidence supporting the convictions, the propriety of certain jury instructions, and the application of sentencing enhancements under the Sentencing Guidelines.
Factual and Procedural Background
The investigation into the Bourrage cousins began in January 2020, focusing on methamphetamine distribution in Kemper County and the surrounding area. Controlled purchases from Donovan initiated the inquiry, and by May 2020, law enforcement had secured a Title III wiretap targeting suspected conspirators’ phones. The intercepted communications, along with testimony from co-conspirators and law enforcement, formed the evidentiary backbone of the prosecution.
The government’s case included evidence of Donovan and Orlando discussing methamphetamine prices, negotiating purchases and sales, and coordinating with other conspirators, notably Cordaryl Ford and Rondarius Gowdy. The intercepted calls revealed Donovan’s wholesale purchases and resale of methamphetamine, as well as Orlando’s involvement in both marijuana and methamphetamine transactions. The investigation also documented a significant drug seizure from Gowdy, who was transporting methamphetamine and marijuana intended for Ford, with the Bourrage cousins implicated as the intended recipients.
A subsequent wiretap in July 2020 captured Donovan’s dealings with a new supplier, Marice Boler, who testified at trial regarding his methamphetamine sales to Donovan. The government’s evidence established that Donovan was purchasing methamphetamine in multi-pound quantities, with the intent to redistribute. Orlando was later found in possession of a firearm and a substantial quantity of marijuana in September 2020, which the district court deemed relevant conduct for sentencing purposes.
The grand jury indicted both defendants for conspiracy to possess with intent to distribute methamphetamine, with Donovan facing an additional count for a separate conspiracy in July 2020. After a five-day trial, the jury convicted both defendants on all counts. The district court imposed sentencing enhancements for managerial roles and, in Orlando’s case, for possession of a firearm.
Wiretap Suppression Issues
The defendants challenged the district court’s denial of their motion to suppress evidence obtained via wiretaps, raising arguments regarding standing, timeliness, probable cause, and the sufficiency of the wiretap orders.
On standing, the Fifth Circuit held that both Donovan and Orlando qualified as “aggrieved persons” under 18 U.S.C. § 2510(11), as their voices were intercepted, and they were targets of the wiretaps. The Court rejected the government’s argument that more specific showings were required, finding that participation in the intercepted conversations sufficed.
Regarding timeliness, the Court found the motion to suppress was filed two days after the dispositive motion deadline. The defense’s arguments that late government disclosures justified the delay were unavailing, as the allegedly new information was either previously available or not shown to have been necessary for the suppression motion. The Court concluded that the defendants failed to show good cause or prejudice, and thus the district court did not abuse its discretion in denying the motion as untimely.
On the merits, the Court reviewed the denial for plain error and found none. The Court rejected the defendants’ request for a Franks hearing because they failed to make a substantial preliminary showing of deliberate falsehood or reckless disregard for the truth in the wiretap affidavits. Even excising the challenged statements, the affidavits contained ample evidence of probable cause, including controlled buys, intercepted communications evidencing large-scale drug transactions, and coordination among conspirators.
The Court also rejected the argument that the wiretap orders were facially insufficient for failing to identify the authorizing Justice Department official. The orders named the Deputy Assistant Attorneys General as required by statute and thus were not deficient.
Admission of Law Enforcement Testimony on Drug Code Words
Orlando challenged the admission of a federal Agent’s testimony interpreting drug-related code words, arguing that such testimony required expert qualification under Federal Rule of Evidence 702. The Fifth Circuit, however, reaffirmed its precedent allowing lay opinion testimony under Rule 701 where the witness’s interpretations are based on first-hand involvement in the investigation. The Court found that McCombs’s extensive participation in the investigation, including reviewing hundreds of intercepted calls and contextual analysis of the conversations, provided a sufficient foundation for his lay opinions. The Court noted that while McCombs drew on his law enforcement experience, his interpretations were grounded in the specifics of the case at bar, and thus the district court did not abuse its discretion in admitting the testimony.
Sufficiency of the Evidence
Both defendants argued that the evidence was insufficient to support their convictions, contending that the government proved, at most, a buyer-seller relationship rather than a conspiracy. The Fifth Circuit, applying the highly deferential standard of review, found that the evidence supported the existence of an agreement to possess and distribute methamphetamine, knowledge of the conspiracy, and voluntary participation in it.
The Court highlighted the cousins’ discussions about drug prices, coordination of purchases and sales, mutual assistance in drug transactions, and shared concern over law enforcement activity as evidence of a concerted effort to distribute drugs. The jury could reasonably infer from the volume of drugs involved and the nature of the communications that the relationship extended beyond mere buyer-seller transactions. The Court distinguished the facts from cases where only parallel conduct or isolated transactions were shown, emphasizing the ongoing, mutually dependent relationship and the scale of the operation.
As to Donovan’s separate conspiracy conviction, the Court found that repeated large-quantity purchases from Boler, coupled with evidence of intent to redistribute, sufficed to establish a conspiracy rather than a single buy-sell agreement.
Jury Instructions
Orlando argued that the district court erred by failing to instruct the jury on the buyer-seller exception to conspiracy liability. The Fifth Circuit reviewed for plain error and found none, as the evidence did not support application of the exception. The Court also rejected the argument that a portion of the jury charge was coercive, noting that the instruction regarding not disclosing the jury’s numerical division was a proper procedural admonition and did not pressure the jury to reach a verdict.
Sentencing Enhancements
Both defendants challenged the application of the three-level enhancement under U.S.S.G. § 3B1.1(b) for managerial or supervisory roles. The Fifth Circuit, relying on Application Note 2 to § 3B1.1 and its en banc decision in United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc), held that the enhancement was proper even absent direct supervision of other participants, so long as the defendant exercised management responsibility over the property, assets, or activities of the criminal organization. The Court found that both Donovan and Orlando exercised such control, as evidenced by their roles in setting prices, acquiring and distributing large quantities of drugs, and coordinating transactions.
Orlando also contested the two-level enhancement under Section 2D1.1(b)(1) for possession of a firearm, arguing that his September 2020 possession of a gun and marijuana was not relevant conduct to the May 2020 conspiracy. The Court, applying the broad definition of relevant conduct in drug cases, found that the September incident was sufficiently similar and temporally proximate to the charged conspiracy to qualify as relevant conduct. The four-month gap between the incidents was well within the range previously deemed acceptable by the Fifth Circuit, and the ongoing nature of Orlando’s drug trafficking supported the enhancement.
Thus, the Fifth Circuit affirmed the convictions and sentences in all respects.
