The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on June 4, 2008:

• U.S. v. Rowan (Jolly, Garza, Prado, JJ.; opinion by Garza, J.) (on remand from U.S. Supreme Court). The government appealed the district court’s sentencing of the defendant to sixty months’ supervised release, a non-Guidelines sentence, for his conviction of possession of child pornography. The Fifth Circuit vacated and remanded for resentencing. The U.S. Supreme Court then vacated and remanded the Fifth Circuit’s decision for consideration pursuant to the Supreme Court’s decision in Gall v. United States, 128 S. Ct. 586 (2007). Under the Gall framework for evaluating non-Guidelines sentences, the Fifth Circuit held that there was no significant procedural error in the district court’s sentencing decision, and affirmed the sentence.
• U.S. v. Molina (Reavley, Benavides, Owen, JJ.; opinion by Owen, J.). Affirming sentence for convictions on marijuana and firearm possession charges, to which defendant pleaded guilty. The defendant failed to object to the PSR or the sentence at the time of sentencing, then appealed his sentence as unreasonable, triggering the Court’s plain error review. The defendant argued that his conviction and sentence on the separate count of possession of a firearm while in commission of a drug possession offense was unreasonable in that the same conduct, if used as a sentencing enhancement factor on the drug possession count rather than as a separately charged offense, would have resulted in a lesser sentence. In a case of first impression, the Fifth Circuit held that it owed great deference to prosecutorial discretion in how to charge the offenses related to the conduct; and that Congress’s intent to provide for an additional mandatory minimum for commission of a drug offense while in possession of a firearm was clear.
• U.S. v. Cepeda-Rios (Jones, C.J., Wiener, Clement, JJ.; per curiam opinion). Affirming the sentence of the defendant for conviction of illegal re-entry, where defendant challenged use of a prior California conviction for possession of a controlled substance (tar heroin) as an “aggravated felony” for purposes of an eight-level sentencing enhancement. The Fifth Circuit held that the drug possession charge, standing by itself, could not qualify as an aggravated felony; but that, because the Fifth Circuit’s analysis requires treating a prior state conviction as a felony if it would have been punishable as such under federal law, and because under federal law a second possession conviction would be treated as a felony, the district court did not err in counting the California conviction (which was the defendant’s second conviction) as an aggravated felony.
• Pimentel v. Mukasey (Reavley, Benavides, Owen, JJ.; per curiam opinion). Denying petition for review of BIA decision upholding IJ decision to deny waiver of inadmissibility and application for adjustment of status. Petitioner had entered the U.S. illegally in 1978, been convicted of burglary in 1983, and possession of marijuana in 1990. Petitioner was married with three children, two of whom were born U.S. citizens. Petitioner sought a waiver of inadmissibility on the basis that his deportation would present an extreme hardship on his U.S. citizen children. The IJ found that, while the deportation would create an “extreme hardship” under 8 U.S.C. § 1182(h), his prior burglary conviction was a violent crime triggering the regulatory requirement in 8 C.F.R. § 212.7(d) that the petitioner show “exceptional and extremely unusual hardship” in order to justify a waiver of inadmissibility; the IJ found that the petitioner failed to make this showing. The Fifth Circuit held that the regulatory requirement at 8 C.F.R. § 212.7(d) was not an ultra vires act under Chevron, and that the regulation was not impermissibly retroactive.