The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on May 8, 2008:

• Ayanbadejo v. Chertoff (Wiener, Barksdale, Dennis, JJ.; per curiam opinion) (revision of opinion originally released February 8, 2008). Reversing district court and remanding for new trial on appellants’ immigration claims. The Fifth Circuit held that “[d]eterminations regarding the validity of marriage for I-130 petition purposes are not discretionary within the meaning of § 1252(a)(2)(B), and this are subject to review by the courts.” Slip op. at 7. The Court therefore reversed the district court’s ruling that it did not have subject matter jurisdiction to entertain the plaintiffs’ challenge to a DHS decision that they were involved in a sham marriage.
• U.S. v. Burns (Davis, Southwick, Drell, JJ.; opinion by Southwick, J.) (revision of opinion originally released on May 2, 2008). 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.
• In Re: Dean (Smith, Barksdale, Elrod, JJ.; per curiam opinion). Following a refinery explosion at a facility operated by the criminal defendant, BP North America Inc., due to which fifteen people were killed and more than 170 injured, the Department of Justice investigated whether to bring criminal charges against BP. Prior to charges being brought, DOJ filed a sealed ex parte motion for provisions to be followed under the Crime Victims’ Rights Act (”CVRA”) should a guilty plea be worked out with BP. The government sought to avoid notification and consultation with the victims of the refinery explosion regarding the potential plea agreement, as required under the CVRA, on the basis that there were too many victims and consultation would be impracticable and on the basis that the notification would draw media interest that could either scuttle the plea negotiations or unfairly prejudice BP in a subsequent trial should the plea negotiations fail. At a series of hearings held after the plea deal was announced, the victims’ representatives were given opportunity to be heard, but protested that the circumvention of the CVRA requirements resulted in an overly lenient plea deal for the defendant. The victims then moved the Fifth Circuit for a writ of mandamus to the district court to engage in the CVRA process. The Fifth Circuit found that the district court had, indeed, violated the CVRA’s requirements, and that the reasons stated by DOJ for avoiding the CVRA’s notice and consultation requirements were unwarranted. Nonetheless, the Fifth Circuit held that the victims did not meet the strict requirements for issuance of a writ of mandamus because “[t]he decision whether to grant mandamus is largely prudential. We conclude that the better course is to deny relief, confident that the district court will take heed that the victims have not been accorded their full rights under the CVRA and will carefully consider their objections and briefs as this matter proceeds.”