The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on May 2, 2008:

• U.S. v. Fambro (Higginbotham, Smith, Owen, JJ.; opinion by Owen, J.). The Fifth Circuit affirmed the defendant’s conviction for being a felon in possession of a firearm and his sentence of 327 months’ imprisonment. The Fifth Circuit held that there was sufficient evidence from which a reasonable jury could infer that the defendant had constructive possession of the firearm found in his bedroom dresser drawer; that the comment by the prosecution that the defendant did not disclaim ownership of the gun to the arresting officers did not constitute a plain error violation of the defendant’s right to freedom from self-incrimination, because the defendant did not choose to remain silent after receiving his Miranda warnings, but proceeded to give a statement to the arresting officers about the gun that did not include a disclaimer as to ownership, which the Fifth Circuit found, upon engaging in a case-by-case analysis, did not constitute a Doyle error; that, while the use of hypothetical “commitment” questions by the prosecution in voir dire may have constituted error, it was not plain error; that it could not engage in a plain error analysis regarding whether the district court erred in applying the Armed Career Criminal Act because the defendant raised the argument for the first time in his appellant’s reply brief; and that the district court did not abuse its discretion in considering 17 other firearms found in other locations in sentencing the defendant because the application of the Armed Career Criminal Act rendered the consideration of the additional firearms immaterial to the sentence received by the defendant.
• Johnston v. Multidata Systems International Corp. (King, Stewart, Prado, JJ.; opinion by King, J.) (revision of opinion released on April 7, 2008). The Fifth Circuit reversed the district court’s finding that it had general personal jurisdiction over the defendant, and, upon finding that the plaintiff had failed to allege specific personal jurisdiction, remanded with instructions to dismiss the matter without prejudice. In so holding, the Fifth Circuit conducted an extensive review of jurisprudence regarding general personal jurisdiction, commenting “how difficult it is to establish general jurisdiction.” Slip op. at 11.
• U.S. v. Burns (Davis, Southwick, Drell, JJ.; opinion by Southwick, J.). Affirming conviction for conspiracy to possess crack cocaine with the intent to distribute and for aiding and abetting in the distribution of crack cocaine, but vacating concurrent sentences of 360 months imprisonment and five years’ supervised release and remanding for resentencing. The Fifth Circuit held that the defendant was not subjected to ineffective assistance of counsel due to a conflict of interest because there was no indication that the defendant’s representation was compromised by any conflict between his counsel’s representation of him and a prior representation of one of the government’s witnesses; that questioning by the prosecution that was the subject of a sustained objection and instruction to the jury did not constitute reversible error as improper prosecutorial comment and that unobjected-to comments by the prosecution in closing argument did not constitute plain error; that it was not clear error for the district court to determine that it was foreseeable that the defendant would convert powder cocaine into crack cocaine; that the defendant’s Due Process rights were not violated by the government’s “excessive use” of cooperating witnesses; and that the district court should resentence in light of Kimbrough and the subsequent revisions to the Sentencing Guidelines regarding sentencing disparities between crack cocaine and powder cocaine.