The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on June 20, 2008:

• U.S. v. Hayes (Higginbotham, Benavides, Dennis, JJ.; opinion by Dennis, J.). Vacating district court’s order of habeas relief related to ineffective assistance of counsel at the sentencing stage and remanding for and evidentiary hearing on that issue. Petitioner had been convicted of conspiracy to distribute more than fifty grams of crack cocaine, and distribution of more than five but less than fifty grams of crack, and sentenced to to 360 months’ imprisonment based on the finding in his PSR that he was a career offender. At sentencing, counsel had orally moved for a reduction from the sentencing guidelines range, but did not challenge the career offender finding. On remand after direct appeal, there was testimony that the petitioner’s three prior state convictions had been functionally consolidated and that Louisiana would treat any subsequent state conviction as only a second offense; the district court held that it had no power under the limited remand to resentence the petitioner, but noted that, had such a challenge and evidence been made and adduced at trial, the career offender enhancement would not have been made. This federal habeas application followed. The Fifth Circuit found that the sentencing counsel should have been aware of the defect in the career offender basis in the PSR, and that any objection counsel would have made would not have been futile because this case was distinct from prior cases. The Fifth Circuit ordered a remand for an evidentiary hearing however, finding, “Despite the apparent merit of the career offender objection, we have no way to analyze the potential strategy behind the decision made by counsel. Because the district court did not hold an evidentiary hearing, we would be engaging in speculation, preventing adequate review of the district court’s judgment as to whether defense counsel performed unreasonably under Strickland.” Slip op. at 10.
• U.S. v. Dillon (Garwood, Clement, Elrod, JJ.; opinion by Garwood, J.). Affirming conviction of former New Orleans Assistant City Attorney under 18 U.S.C. § 242 for depriving victims of their civil rights under color of law. Defendant dismissed one victim’s traffic tickets and made arrangements for her son to be released on his own recognizance from a municipal battery charge, then raped the victim under the threat that he could have her son re-arrested at any time. He later sexually assaulted another victim who had been sent to discuss her municipal charge with him, and threatened her to keep quiet or he would come after her and her family. At trial, the government sought to introduce evidence of four other sexual assaults under FRE 413, over defendant’s objections, and the court admitted evidence regarding two of the prior assaults. Defendant was sentenced to life imprisonment following his guilty verdict. The Fifth Circuit held that there was sufficient evidence on the element of “under color of law,” because there was a nexus between the victims, the alleged misconduct, and the perpetrator’s official duties “when he verbally invoked his power before, during and after he sexually assaulted the victims.” Slip op. at 9. The Fifth Circuit then ruled that the admission of the prior uncharged assaults was not an abuse of discretion.
• Nichols v. Alcatel USA, Inc. (Jones, C.J., Barksdale, Stewart, JJ.; opinion by Stewart, J.). Affirming denial of preliminary injunction in putative class action brought against Alcatel under ERISA for elimination of retirement medical benefits from retirement plan. The Fifth Circuit held that the retiree plaintiffs has not demonstrated a substantial likelihood of success on their ERISA claims; and that they failed to show a substantial threat of irreparable harm even if, arguendo, substantial likelihood of success could be shown.
• In the Matter of SI Restructuring, Inc. (Davis, Southwick, Clark, JJ.; opinion by Davis, J.). Reversing district court’s affirmance of bankruptcy court’s equitable subordination order that effectively converted the appellants’ secured claims to unsecured claims for purposes of distribution. The Fifth Circuit held that the critical factor in application of equitable subordination in this case was that “a claim should be subordinated only to the extent necessary to offset the harm which the debtor or its creditors have suffered as a result of the inequitable conduct.” Slip op. at 7. The Fifth Circuit then found that there was no finding in the district court or the bankruptcy court that the unscured creditors as a class had been harmed.