UNITED STATES of America v. Jehoni WILLIAMS
No. 15-10250
United States Court of Appeals, Fifth Circuit
August 17, 2016
Rehearing Denied August 17, 2016
834 F.3d 581
LESLIE H. SOUTHWICK, Circuit Judge
Stephen Earl Dodd, Dodd Law Firm, P.L.L.C., Big Lake, TX, for Defendant-Appellant.
Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN*, District Judge.
ON PETITION FOR REHEARING
LESLIE H. SOUTHWICK, Circuit Judge:
On May 9, 2016, we vacated Jehoni Williams‘s sentence and remanded to allow Williams to elect whether to withdraw his plea or be resentenced. United States v. Williams, 821 F.3d 656 (5th Cir. 2016). On rehearing, the Government argues we went beyond the controlling caselaw.
We disagree. The Fifth Circuit authority upon which we relied spoke in terms of allowing a defendant to “seek оne of two remedies: (1) specific performance, requiring that the sentence be vacated and that a different judge sentence the defendant; or (2) withdrawal of the guilty plea.” United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). In a different case, the court said that a defendant whose plea agreement was breached “has the option of seeking one of two remedies on appeal: (1) specific performance, which requires that the sentence be vacated and thаt the defendant be resentenced by a different judge; or (2) withdrawal of the guilty plea, and the opportunity to plead аnew, which requires vacation of both the conviction and the sentence.” United States v. Palomo, 998 F.2d 253, 256 (5th Cir. 1993).
The Government argues that the caselaw we cited should be limited to allowing a defendant to “seek” one of the two options, but it would be for the district court to decide which option would apply. We considered such an interpretation both at the time of our original decisiоn and again now. We remain convinced that our earlier decision is the better analysis of the precedents from this сourt. We withdraw our previous terminology that a defendant has a “right” to the exercise of these options upon the breach of a plea agreement. A defendant has a choice to make; that is all we need to say.
We leave unaltered what we labeled a “caveat” in our previous opinion concerning the possible relevance of the materiality of the breach. See Williams, 821 F.3d at 658-59.
The petiton for rehearing is DENIED.
UNITED STATES of America, Plaintiff-Appellee v. Jose OLIVARES, Defendant-Appellant
No. 15-41284
United States Court of Appeals, Fifth Circuit.
Date Filed: 08/17/2016
Summary Calendar
Victoria Guerra, Attorney, Law Office of Victoria Guerra, McAllen, TX, James Scott Sullivan, Esq., Law Offices of J. Scott Sullivan, Houston, TX, for Defendant-Appellant
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:
Jose Olivares pleaded guilty to one count of harboring aliens within the United States for private financial gain, in violatiоn of
Olivares now contends that the district court erred by applying the
Olivares has not made the requisite showing. He first contends that the photograрhic lineup from which the aliens identified him was unconstitutionally suggestive because his photograph was the only one in which thе subject had tattoos and facial hair. Because Olivares did not provide the photographic lineup in connection with his argument, there is no evidence in the record to support his allegation. “Mere objections do not suffice as competent rebuttal evidence.” United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002) (internal quotation marks and citation omitted).
Olivares also contends that the aliens incorrectly identified an innocеnt person (codefendant Priscilla Gutierrez) from a different photographic lineup and that the firearm the aliens сlaimed to have seen was never found. These statements do not comprise competent rebuttal evidencе. The charges against Gutierrez were dismissed, but there is no indication in the record that the dismissal occurred because the aliens misidentified Gutierrez or because she was actually innocent; rather, the record indicates that the photоgraphic lineup which included Gutierrez was created only after law enforcement had already found her to be сonnected to the stash house. The PSR also provided a reasonable
Olivares has not demonstrated by competent rebuttal evidence that the facts in the PSR supporting application of the
AFFIRMED.