Represent bankruptcy litigant in his appeal from the Bankruptcy Judge to the presiding Article III judge of a large award of sanctions payable to the client’s ex-wife. In re Muth; 15-cv-557. On March 10, 2016, Chief Judge Kreiger reversed and vacated the entire award of fees and costs. 2016 U.S. Dist. LEXIS 31653.
Exergy Dev. Grp. of Idaho, LLC v. Higher Power Energy, LLC, No. 14-14-00788-CV, 2016 Tex. App. LEXIS 105 (App.—Houston [14th Dist.] 2016). Unanimous reversal of $20 million in “death penalty” sanctions when my client had been excluded from the damages phase of the trial court’s proceedings.
SENTENCING REVERSAL: RESTITUTION IN BANK FRAUD CASE:
United States v. Tisdale; 774 F.3d 267 (5th Cir. 2014). Fifth Circuit unanimously reversed for resentencing when the District Court erred in awarding restitution to secondary purchasers of mortgages because the Government did not establish what price was paid in the secondary market. Michael Lipkin, Law360.com, “5th Circ. Vacates Sentences In Ex-NFL Star’s $20M RE Scam”. Available here (December 12, 2014).
SENTENCING REVERSAL IN PONZI SCHEME CASE:
United States v. Pate; 15-41481 (5th Cir. 2016). On appeal from the jury trial of a multi-million dollar Ponzi scheme involving currency trading, Government confessed error and moved to remand for resentencing in response to my argument that a 2-level Specific Offense Characteristic for obstruction of justice in the form of perjured testimony in a related civil suit when the District Judge had never seen a transcript of the allegedly false testimony, and the deposition was taken years before the criminal investigation began.
SENTENCING REVERSAL IN CHILD PORN CASE:
United States v. Lozano; 15-40163 (5th Cir. 2015). Government confessed error and moved for remand on appeal when restitution was imposed without any mention of the Supreme Court’s recent Paroline opinion establishing new and more restrictive standards for restitution in this context. No objection was made by trial counsel, so review was confined to plain error. Nevertheless, soon before re-sentencing, the Government abandoned all efforts to seek restitution, and an amended judgment memorialized the reduction from tens of thousands of dollars to zero. 5:14-cr-315-1 (S.D. Tex. 2015). In addition, Lozano’s term of supervised release was lowered from LIFE to 25 years, and several of his conditions were relaxed.
SENTENCING REVERSAL IN DEATH PENALTY PROSECUTION:
United States v. Tyrone Williams, 610 F.3d 271 (5th Cir. 2010). Fifth Circuit unanimously reversed 19 LIFE sentences on grounds of both instructional error and sufficiency of the evidence. Defendant’s sentence was reduced to 34 years on remand. KHOU, “Life sentences overturned in smuggling deaths case”. Available here (June 24, 2010).
SENTENCING REVERSAL:BANK ROBBERY
United States v. Corey Duffey, 2012 U.S. App. LEXIS 35 (5th Cir. 2012): Corey Duffey was convicted of leading the “Scarecrow Bandits” on a spree of bank robberies across the Dallas Metroplex. The Fifth Circuit unanimously reversed two attempt counts for insufficient evidence because no robber actually approached the banks in question. Two appurtenant 924(c) counts were also vacated. As a result, Duffey’s sentence was reduced by 50 years at resentencing.
SENTENCING GUIDELINES REVERSALS
- United States v. Tyrone Jordan, 2011 U.S. App. LEXIS 21831 (5th Cir. 2011): money laundering case where defendant was convicted of facilitating the purchase of a Cessna airplane for the Los Zetas Gulf Coast Drug Cartel. On clear error review, the Fifth Circuit unanimously concluded that the sentencing judge incorrectly included as relevant conduct a massive amount of cash absent from the indictment and which could not qualify as money laundering because, at most, the defendant did no more than help to physically transport that lucre. The error inflated the defendant’s sentence by over 50%. At resentencing, successfully obtained a Guidelines sentence of 5 years, compared to the 10 year sentence originally imposed.
- United States v. Juan Moron-Solis, 388 Fed. Appx. 443 (5th Cir. 2010): credit card fraud prosecution, the Fifth Circuit unanimously reversed and remanded after the government confessed sentencing error.
- United States v. Tobias; 14-40848 (5th Cir. 2015): Government confessed error on appeal and moved to remand for resentencing when the Prosecutor breached plea agreement and District Court sentenced based on an artificially inflated Guidelines range. Mr. Tobias’s sentence was lowered from 405 months to 280 months.
- United States v. Cox; 15-40412 (5th Cir. 2015): Government confessed error and moved to remand for resentencing when appellant’s brief established that Mr. Cox did not come within the ambit of the Armed Career Act, and at least nine (9) Guidelines points were incorrectly added to the score on which we was originally sentenced.
State of Texas v. $11,000; 2015-55303 (151st Civil District Court of Harris County, Texas): My client’s cash was seized from his wallet at the Houston Intercontinental Airport even though there was no indication he had done anything illegal whatsoever and no criminal charged were ever pressed, much less investigated. After I filed a motion for summary judgment, the State dismissed the case and returned all the money with interest.