May 29, 2015

Fifth Circuit

U.S. v. Clay

No. 14-60283      5/22/15


Does a federal district court have discretion to vary from sentencing guidelines even under the career-offender provision in U.S.S.G. §4B1.1?


Yes. A district court is required to follow a two-part sentencing process—first calculating the sentence under the advisory Sentencing Guidelines, then applying an individualized assessment using factors from 18 U.S.C. §3553(a).  The court must evaluate the §3553(a) factors, including the “nature and circumstances of the offense and the history and characteristics of the defendant.”  Because the court must evaluate these factors in addition to the guidelines, it does have discretion to vary from any particular guideline enhancement, here the career-offender provision.   Read opinion.


Count your blessings that our system is different from the federal system. This defendant had a prior armed robbery conviction and a prior delivery conviction. In our system his new conviction would be punishable from 25-99 years or life. The federal guidelines “suggest” around 14 to 18 years, which when adjusting for the way the sentences are served in the federal system is probably comparable to a low-mid-range Texas habitual sentence. But that is just a suggestion after all, so the Fifth Circuit sent this case back for resentencing because the sentencing judge thought 14 to 18 years was too harsh for a violent three-time loser, but did not believe they had discretion regarding a career criminal, i.e. habitual offender. The Texas system is easier to use, can encompass all the same information that the guidelines consider, and almost never requires appellate remands.

Texas Courts of Appeal

Hernandez v. State

No. 03-15-00104-CR        5/27/15


Can a judge revisit and increase a defendant’s bond under CCP article 17.09 when the defendant was previously released on personal bond under CCP article 17.151?


Yes. A defendant is entitled to release under article 17.151 if the State is not prepared for trial by a certain date, and the court is allowed to reduce bail for the purpose of releasing the defendant under 17.151.  However, if there is a reason for the court to revisit the issue of bail under article 17.09, if bail is “defective, excessive, or insufficient, or for other good and sufficient cause,” the court may do so and may increase bail or add conditions.  Any changes to bail under article 17.09 are reviewed for abuse of discretion.   Read opinion.


This is a very useful opinion. The trial court has discretion to increase a 90-day-writ bond after indictment based mainly on the facts of the offense and the offender. This will help when some of your scarier defendants, say sex abusers and murderers, are not quite ready to indict at 90 days and get a PR bond.

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