United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 23, 2007
Charles R. Fulbruge III
Clerk
No. 04-50224 c/w
No. 04-50257
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROMAN RODARTE-VASQUEZ, also known as Carlos Carrillo-Lopez,
also known as Roman Rodriguez-Meza,
Defendant-Appellant.
and
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN A. RAMIREZ-RAMIREZ, also known as Juan Ramirez-Rodriguez,
also known as Juan Anatalio Ramirez-Ramirez,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
(EP-03-CR-1791-ALL-FM)
(A-03-CR-292-ALL-LY)
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Roman Rodarte-Vasquez and Juan A. Ramirez-Ramirez
(defendants) pleaded guilty in 2003 in unrelated cases to illegal
reentry after deportation, in violation of 8 U.S.C. § 1326. In
this consolidated appeal, they primarily contend their Sentencing
Guidelines’ offense-level enhancements, imposed as a result of
their prior alien-smuggling convictions, are improper in the light
of United States v. Booker, 543 U.S. 220, 244 (2005) (holding,
inter alia, Sixth Amendment right to jury trial requires “[a]ny
fact (other than a prior conviction) ... necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt”). They
also contend: the district courts’ application of the 2003 version
of the Guidelines constituted an ex post facto violation; and 8
U.S.C. § 1326(b)’s sentence-enhancing provisions are
unconstitutional, in the light of Apprendi v. New Jersey, 530 U.S.
466 (2000).
Resentencing is required. But, under the post-Booker advisory
guidelines regime, the new sentences can conceivably be the same as
those being vacated. CONVICTIONS AFFIRMED; SENTENCES VACATED;
REMANDED FOR RESENTENCING.
I.
In separate cases before different district judges, Rodarte
and Ramirez pleaded guilty in 2003, without written plea
2
agreements, to illegal reentry after deportation. Rodarte had been
deported in 1992, after being convicted of transporting illegal
aliens, in violation of 8 U.S.C. § 1324(a)(1)(B); Ramirez, in 1990,
after being convicted, inter alia, of harboring illegal aliens, in
violation of 8 U.S.C. § 1324(a)(1)(C) (collectively, either prior
convictions or prior offenses).
For defendants’ sentencing in 2003, the Presentence
Investigation Report (PSR) for each used the 2003 version of the
Guidelines and, for those prior convictions, recommended a 16-level
enhancement, pursuant to § 2L1.2(b)(1)(A)(vii) (applicable “[i]f
the defendant previously was deported, or unlawfully remained in
the United States, after ... a conviction for a felony that is ...
an alien smuggling offense”). Rodarte’s recommended Guidelines’
sentencing range was 46 to 57 months; Ramirez’, 57 to 71 months.
Defendants filed similar objections to the PSR, contending,
inter alia, the enhancement was improper under the “categorical
approach”, first articulated in Taylor v. United States, 495 U.S.
575 (1990). That approach limits a sentencing court’s
determination of whether a prior offense qualifies for a sentencing
enhancement to the elements of the offense, rather than the facts
underlying the conviction. At the time, this contention (as
Ramirez recognized in district court) was contrary to United States
v. Sanchez-Garcia, 319 F.3d 677, 678 (5th Cir. 2003) (rejecting the
“categorical approach” for purposes of applying the 16-level
3
enhancement under § 2L1.2(b)(1)(A)(vii)). (Sanchez-Garcia is
discussed infra.) Accordingly, they maintained, inter alia: the
2002 version of the Guidelines (2002 Guidelines) was in effect at
the time of their illegal-reentry offenses; the 2002 Guidelines
restricted the enhancement only to those prior alien-smuggling
offenses “committed for profit”; the statutes under which they
received their prior convictions did not contain a “committed for
profit” element; the 2003 version (2003 Guidelines), however,
applied the enhancement to prior alien-smuggling offenses, the
“committed for profit” element having been removed; and, therefore,
the 2002 Guidelines should apply because use of the 2003 Guidelines
constituted an ex post facto violation.
Defendants’ separate sentencing hearings in 2003 were
conducted prior to Blakely v. Washington, 542 U.S. 296, 301 (2004)
(“‘[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt’” (quoting Apprendi, 530 U.S. at 490)), and Booker, 543 U.S.
at 244 (inter alia, extending Blakely to the Guidelines). Their ex
post facto objections were overruled.
At Rodarte’s sentencing, the district judge stated the 2003
amendment to the Guidelines, which removed the “committed for
profit” element, was “simply for clarification [and] ... [did not]
change the underlying guideline”. At Ramirez’ sentencing, another
4
district judge stated that, particularly in the light of Ramirez’
offense reports, the 16-level increase was appropriate under either
the 2002 or 2003 Guidelines. At each sentencing, the district
judge relied on underlying offense reports for the prior
convictions to find the offenses were “committed for profit”. It
appears the district judges made the “committed for profit” finding
because the 2003 Guidelines’ commentary, explaining the amendment
to the 2002 Guidelines, states: “[The new] definition [for ‘alien
smuggling offense’] generally is consistent with the guideline’s
previous terminology of ‘alien smuggling offense committed for
profit,’ and results in a 16 level increase only for the most
serious of such offenses”. U.S.S.G. app. C-II, amend. 658 at 401
(2003).
Rodarte and Ramirez were respectively sentenced, inter alia,
to 46 and 57 months’ imprisonment for their illegal-reentry
convictions. For Rodarte, an eight-month consecutive sentence for
revocation of supervised release was also imposed, resulting in a
54-month total sentence.
II.
Booker was decided while these consolidated appeals were
pending in our court. Therefore, they were held pending a post-
Booker decision in United States v. Loredo-Torres, 164 F.App’x 523
(5th Cir.), cert. denied, 126 S. Ct. 2343 (2006), on remand from the
Supreme Court for further consideration in the light of Booker.
5
Loredo-Torres was decided, however, without providing guidance on
whether Booker abrogated our court’s earlier-described holding in
Sanchez-Garcia. Because the parties’ initial briefs were filed pre-
Booker, they were directed to submit supplemental briefs, addressing
the implications of Booker on Sanchez-Garcia. That issue is
addressed before turning, inter alia, to the ex post facto issue.
A.
Before considering whether, in the light of Booker, the
enhancements were erroneously imposed, we must address whether such
error was preserved. As discussed below, that error was not
preserved. Therefore, only plain-error review is accorded
defendants’ Booker issue.
1.
In their supplemental briefs, consistent with their reliance
on Blakely in their initial briefs, defendants primarily contend
they should be resentenced in the light of Booker because the
district courts’ finding their prior alien-smuggling offenses were
“committed for profit” constituted Sixth Amendment error. The
Government maintains defendants’ objections at sentencing were
insufficient to preserve Booker error. Although Rodarte and Ramirez
acknowledge their objections in district court for this issue
mentioned neither the Sixth Amendment nor Apprendi, they contend
6
their Taylor-based ex post facto objections adequately preserved
Booker error.
In order to preserve Booker error for, as here, a pre-Booker
sentence, a defendant need not explicitly cite Apprendi, Blakely,
or the Sixth Amendment. See United States v. Akpan, 407 F.3d 360,
376 (5th Cir. 2005). “If a defendant voices [an] objection[]
sufficient to apprise the sentencing court that he is raising a
constitutional claim with respect to judicial fact-finding in the
sentencing process, the error is preserved.” United States v.
Castaneda-Barrientos, 448 F.3d 731, 732 (5th Cir. 2006) (emphasis
added) (citing United States v. Olis, 429 F.3d 540, 543-44 (5th Cir.
2005)). The objection, however, should be couched in terms that
facts used to enhance the sentence were not proven to a jury beyond
a reasonable doubt. See Akpan, 407 F.3d at 376-77 (finding one
defendant, who had objected on the ground the sentencing fact “had
not been proven at trial”, had preserved Booker error, but finding
the other defendant, who did not “couch his arguments ... in the
same terms”, did not preserve such error).
In objecting, Rodarte claimed: to look beyond Taylor-approved
evidence would “not ... fall under the categorical approach as
espoused by the Fifth Circuit and the Supreme Court”; and to adhere
to that approach would “create uniformity in the system, and avoid
... mini-trials ... at sentencing”. Earlier, he had stated:
7
“[T]here were no jury instructions to be available to make [the
committed-for-profit] determination [for the prior offenses]”.
Ramirez’ objection highlighted textual similarities between
Guidelines § 2L1.2 and the statute at issue in Taylor; he then
maintained: “[T]he court should not authorize mini-trials on
conduct that is very remote ... absent some clear unambiguous
indication from the sentencing commission”.
Contrary to defendants’ contentions, citing to Taylor does not
place a sentencing court on sufficient notice that the objection
raises a constitutional violation. In addressing the narrow issue
of “whether the sentencing court in applying [18 U.S.C.] § 924(e)
must look only to the statutory definitions of the prior offenses,
or whether the court may consider other evidence concerning the
defendant’s prior crimes”, 495 U.S. at 600, Taylor focused primarily
on the statute’s plain language and legislative history. Id. at
600-01. At the conclusion of its analysis, while discussing “the
practical difficulties and potential unfairness of a factual
approach”, id. at 601, Taylor asked whether, “[i]f a sentencing
court were to conclude, from its own review of the record, that the
defendant actually committed a generic burglary, ... the defendant
[could] challenge this conclusion as abridging his right to a jury
trial”. Id. Taylor did not, however, further address that
question.
8
Accordingly, neither defendant “adequately apprised the court
that he was raising a constitutional error with respect to [judicial
fact-finding]”. Olis, 429 F.3d at 544 (emphasis added).
Importantly, unlike several other cases in our court in which Booker
error was preserved, neither defendant referenced a violation of his
jury-trial rights or the need to prove facts beyond a reasonable
doubt. See Castaneda-Barrientos, 448 F.3d at 732 (Booker error
preserved where defendant “referenced Apprendi and specifically
stated he was challenging the constitutionality of the court’s fact-
finding regarding his prior conviction for an alien smuggling
offense” (emphasis added)); United States v. Sudeen, 434 F.3d 384,
393-94 (5th Cir. 2005) (Booker error preserved where defendant’s
sentencing comments characterized district court’s factual
determination as “an issue the jury has to decide”); Olis, 429 F.3d
at 544 (Booker error preserved where defendant “repeatedly objected
... to both the district court’s [factual finding] and the burden
of proof utilized by the court. His objections ... alerted the
court to cases that acknowledged the potential for a constitutional
violation when sentencing facts are not found by at least clear and
convincing evidence” (emphasis added) (footnote omitted)); Akpan,
407 F.3d at 376 (Booker error preserved where defendant objected on
the ground the sentencing fact “had not been proven at trial”). But
see United States v. McCrimmon, 443 F.3d 454, 458-59 (5th Cir.)
9
(“Though not expressly alleging a Sixth Amendment violation [at his
pre-Blakely/Booker sentencing, defendant’s] ... contest[ing] the
consideration of facts pertaining to any quantity of drugs exceeding
the [amount admitted to] .... sufficiently invokes the alleged
Booker error.” (footnote omitted)), cert. denied, 126 S. Ct. 1931
(2006).
In sum, defendants’ reliance in district court on Taylor,
without more, is insufficient to preserve Booker error. At best,
their objections captured only the “essence” of such error. See
United States v. Bringier, 405 F.3d 310, 316 (5th Cir.) (defendant’s
sentencing objections, which did not explicitly reference Blakely
or the Sixth Amendment, did not preserve Booker error; our court
rejected defendant’s contention that his objections captured the
“essence” of Blakely and the Sixth Amendment), cert. denied, 126 S.
Ct. 264 (2005). That was not sufficient to put the district
courts on notice of the now-claimed constitutional error.
2.
As noted, because the claimed Booker error was not preserved
by either defendant, we review only for plain error. For such
review, a defendant must show (1) a plain (“clear” or “obvious”)
error that (2) affected his substantial rights. E.g., United States
v. Olano, 507 U.S. 725, 732-35 (1993); see also FED. R. CRIM. P.
52(b). If the defendant does so, our court “‘may then exercise its
10
discretion to notice a forfeited error but only if ... the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings’”. United States v. Mares, 402 F.3d 511, 520
(5th Cir.) (quoting United States v. Cotton, 535 U.S. 625, 631
(2002)), cert. denied, 126 S. Ct. 43 (2005).
Sentencing a defendant, as in the instant cases, contrary to
Booker establishes the requisite “plain-error” prong. See, e.g.,
id. at 520-21. To satisfy the “substantial-rights” prong, Rodarte
and Ramirez must each demonstrate, “with a probability sufficient
to undermine confidence in the outcome, that if the judge had
sentenced him under [the post-Booker] advisory sentencing regime
rather than [the pre-Booker] mandatory one, he would have received
a lesser sentence”. United States v. Infante, 404 F.3d 376, 395
(5th Cir. 2005) (citing Mares, 402 F.3d at 521).
As they conceded at oral argument here, defendants have not met
this burden; there is no indication they would have been given a
lesser sentence under the post-Booker advisory regime. Although
each was sentenced at the bottom of his Guidelines’ sentencing
range, that, alone, “does not indicate that there is a reasonable
probability that the [sentencing] court would have imposed a lesser
sentence under [the post-Booker] advisory sentencing guidelines”.
United States v. Duarte-Juarez, 441 F.3d 336, 339 (5th Cir.)
11
(emphasis added), cert. denied, 127 S. Ct. 161 (2006). Accordingly,
there is no reversible plain error for this Booker issue.
B.
Defendants’ ex post facto claim achieves the resentencing
result for which Booker error is claimed. Their success, however,
may only be fleeting because, when resentenced under the now
advisory guidelines regime, the new sentences can conceivably be the
same as those vacated today.
“A sentencing court must apply the version of the sentencing
guidelines effective at the time of sentencing unless application
of that version would violate the Ex Post Facto Clause of the
Constitution.” United States v. Kimler, 167 F.3d 889, 893 (5th Cir.
1999); see also U.S.S.G. §§ 1B1.11(a), (b)(1). Such a violation
occurs when application of the Guidelines in effect at sentencing
results in a harsher penalty than would application of the
Guidelines in effect when the offense was committed. Kimler, 167
F.3d at 893. Accordingly, in claiming an ex post facto violation,
defendants contend they should have been sentenced under the 2002,
rather than the 2003, Guidelines. As discussed supra, they
maintain: under the 2002 Guidelines, which restricted the
enhancement to prior alien-smuggling offenses “committed for
profit”, they would not have been subject to the 16-level
enhancement because, under the proper Taylor categorical approach,
12
the district courts could not have relied on defendants’ offense
reports to make the “committed for profit” finding.
We review a district court’s application of the Guidelines de
novo; its findings of fact, only for clear error. See United States
v. Butler, 429 F.3d 140, 153 (5th Cir. 2005), cert. denied, 126 S.
Ct. 2049 (2006). This standard of review is applied, inter alia,
to those cases, such as the ones at hand, on direct appeal when
Booker was decided, where the district court had sentenced under the
Booker-rejected mandatory guidelines regime. Id. at 153 n.6
(citation omitted).
The Government maintains: there was no error — or if error was
committed, it was harmless — in the use of the 2003 Guidelines
because defendants’ sentences would have been the same under either
the 2002 or 2003 Guidelines. In support, it: relies on United
States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002), for the
proposition that a prior conviction for transporting or harboring
an unlawful alien is per se a committed-for-profit alien-smuggling
offense; and contends the amendment to the 2003 Guidelines reflects
this. Solis-Campozano, however, held only that “each of the various
offenses listed in [§ 1324(a)(1)(A)] ... is ‘an alien smuggling
offense[]’ for the purposes of ... § 2L1.2(b)(1)(A)(vii)”. Id. at
168. Solis-Campozano does not suggest such an offense is per se an
13
“alien smuggling offense committed for profit” for purposes of the
2002 Guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(vii) (emphasis added).
The Government further claims our court’s decision in 2003 in
Sanchez-Garcia, 319 F.3d at 678 (rejecting the “categorical
approach” for purposes of applying the 16-level increase under §
2L1.2(b)(1)(A)(vii)), forecloses defendants’ ex post facto claim
because it validates the district courts’ “committed for profit”
fact-finding. Defendants counter that Blakely (2004), and
especially Booker (2005), abrogated Sanchez-Garcia (2003), thus
requiring application of Taylor’s “categorical approach”.
It goes without saying that one basis upon which a panel of
this court can overrule a prior panel decision is if compelled “by
controlling Supreme Court precedent”. See Martin v. Medtronic,
Inc., 254 F.3d 573, 577 (5th Cir. 2001) (quotation and citation
omitted). In contending Sanchez-Garcia has been abrogated,
defendants rely on Castaneda-Barrientos, 448 F.3d at 731-32. There,
the defendant contended the district court’s “committed for profit”
fact-finding was improper under Booker, and our court remanded for
resentencing. Castaneda-Barrientos is distinguishable, however;
there, the Government conceded Booker error. Id.
Nonetheless, we view Booker (2005) as inconsistent with
Sanchez-Garcia (2003). As quoted supra, Booker held: “Any fact
(other than a prior conviction) which is necessary to support a
14
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt”. 543 U.S.
at 244. Accordingly, to the extent Sanchez-Garcia suggests judicial
fact-finding for a § 2L1.2(b)(1)(A)(vii) enhancement is proper under
the pre-Booker mandatory guidelines regime, it has been abrogated.
Therefore, at issue is whether use of the 2003 Guidelines was
an ex post facto violation. As noted supra, under the 2002
Guidelines, the § 2L1.2(b)(1)(A)(vii) enhancement applied “[i]f the
defendant previously was deported, or unlawfully remained in the
United States, after ... a conviction for a felony that is ... an
alien smuggling offense committed for profit”. U.S.S.G. §
2L1.2(b)(1)(A)(vii) (emphasis added); see also U.S.S.G. § 2L1.2 cmt.
n.1(B)(i) (2002) (defining “committed for profit” as “committed for
payment or expectation of payment”). The 2003 Guidelines, inter
alia: deleted the “committed for profit” language; and, unlike the
2002 Guidelines, defined “alien smuggling offense” to be consistent
with 8 U.S.C. § 1101(a)(43)’s “aggravated felony” definition.
U.S.S.G. § 2L1.2 cmt. n.1(B)(i) (2003) (“‘[a]lien smuggling offense’
has the meaning given that term in [8 U.S.C. § 1101(a)(43)(N)]”);
see also 8 U.S.C. § 1101(a)(43)(N) (defining “aggravated felony” as
“an offense described in paragraph (1)(A) or (2) of section 1324(a)
of this title (relating to alien smuggling), except in the case of
a first offense for which the alien ... committed the offense for
15
the purpose of assisting, abetting, or aiding only the alien’s
spouse, child, or parent (and no other individual) to violate a
provision of this chapter”).
The Sentencing Commission, in explaining the 2003 amendment,
stated the new “alien smuggling offense” definition “generally is
consistent with the guideline’s previous terminology of ‘alien
smuggling offense committed for profit[]’”. U.S.S.G. app. C-II,
amend. 658 at 401 (2003). The statutory sections referenced in the
new definition, however, do not contain a “committed for profit”
element. In short, the 2002 Guidelines contained an element
(“committed for profit”) requiring proof that was not contained in
the 2003 Guidelines.
Accordingly, application of the 2003 Guidelines “result[ed] in
a more onerous penalty”, Kimler, 167 F.3d at 893, than would
application of the 2002 Guidelines. Therefore, application of the
2003 Guidelines constituted an ex post facto violation. As a
result, defendants’ sentences must be vacated and their cases
remanded for resentencing, applying the 2002 Guidelines in the now
advisory guidelines regime.
Along that line, under this advisory regime, a district court
is still required, as a first step in deciding on the requisite
reasonable sentence, to calculate the applicable guidelines range.
E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005);
Mares, 402 F.3d at 519. Accordingly, if, in using the 2002
16
Guidelines at resentencing, the prior offenses are found, under this
advisory regime, to have been “committed for profit”, the sentences
can conceivably be the same as those vacated today, as noted supra.
C.
As defendants concede, their contention that the sentence-
enhancing provisions contained in 8 U.S.C. § 1326(b) are
unconstitutional in the light of Apprendi is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). The
issue is raised only to preserve it for possible further review.
III.
For the foregoing reasons, the convictions are AFFIRMED; the
sentences are VACATED; and these matters are REMANDED to the
district courts for resentencing.
CONVICTIONS AFFIRMED; SENTENCES VACATED;
REMANDED FOR RESENTENCING
17
EDITH H. JONES, Chief Judge, concurring:
I concur in Judge Barksdale’s careful opinion with two
significant observations. First, I do not view his opinion as
accepting the defendants’ contention that United States v. Sanchez-
Garcia, 319 F.3d 677 (5th Cir. 2003)(per curiam), was wrong because
it eschewed the Taylor categorical approach for determining whether
their prior alien-smuggling offenses were “committed for profit.”
Contrary to Defendants’ assertions, the § 2L1.2 “alien
smuggling” enhancement, as it was in 2002, did not implicate the
statutory elements of the underlying prior conviction in any way.
See U.S.S.G. § 2L1.2(b)(1)(A)(vii) and application note
1(B)(i)(“‘Alien smuggling offense’ has the meaning given that term
in...8 U.S.C. § 1101(a)(43)(N)”). Because the guidelines definition
for immigration crimes was different from that in, e.g. career
offender crimes, where the sentencing court’s inquiry is limited to
the conduct alleged in the indictment, see United States v. Gaitan,
954 F.2d 1005, 1009-11 (5th Cir. 1992); United States v. Fitzhugh,
954 F.2d 253, 254-55 (5th Cir. 1992),1 U.S.S.G. § 1B1.3 allows
reference to other conduct, whether or not formally charged or an
element of the offense of conviction. See Sanchez-Garcia, supra.
Whether an alien smuggling offense was committed “for profit” was
therefore an extrinsic fact – not an element of the crime – on which
the court could make a finding pursuant to § 1B1.3. I make this
1
See also § 2L1.2(b)(1)(A)(ii) “crime of violence,” which we
ultimately defined in terms of the elements of the prior conviction.
18
observation lest Taylor be urged — inappropriately — to apply
outside its currently narrow domain. Even after Booker, were such
a provision to be reimposed in the guidelines, a court could make
the “for profit” determination, although the resulting guideline
range would not be mandatory.
Second, as this case arises from a pre-Booker sentencing,
we do not reach the issue whether the ex post facto clause can apply
to a post-Booker sentence. A logical corollary to Booker would seem
to be that the ex post facto clause does not apply if the sentence
imposed by the court need not be harsher under later guidelines than
it would have been under the guidelines in effect when the offense
was committed. Post-Booker, the guidelines are informative, not
mandatory. A purely advisory regulation does not present an ex post
facto problem solely because it is traceable to Congress and will
possibly disadvantage a defendant. This principle has been
recognized by the Supreme Court with respect to the parole
guidelines, see, e.g., Garner v. Jones, 529 U.S. 244, 256, 120 S.
Ct. 1362, 1370 (2000); Cal. Dept. of Corrections v. Morales,
514 U.S. 499, 511-13, 115 S. Ct. 1597, 1604-05 (1995), and I see no
reason not to extend it to the present context.2 Judge Posner
persuasively adopted this view in United States v. DeMaree, 459 F.3d
791, 794-95 (7th Cir. 2006).
2
But see United States v. Reasor, 418 F.3d 466 (5th Cir. 2005).
Reasor is not necessarily controlling, however, because it was decided shortly
after Booker, and the sentence had to be reversed for reconsideration due to
vacated convictions, regardless of ex post facto concerns.
19
United States v. Rodarte-Vasquez
Court: Court of Appeals for the Fifth Circuit
Date filed: 2007-05-23
Citations: 488 F.3d 316
Copy CitationsCombined Opinion