The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on July 21, 2008:

• U.S. v. Kimbrough (Reavley, Benavides, Owen, JJ.; opinion by Reavley, J.) (appeal from E.D. La.). Vacating the defendants’ sentences and remanding for resentencing. Defendants pled guilty to various obstruction of justice and accessory-after-the-fact charges for tipping off a cocaine smuggling operation to a DEA investigation. The government appealed the sentence on the basis that the court had erred in applying the sentencing guidelines for obstruction of justice rather than accessory after the fact. The Fifth Circuit held that the district court erred in not applying the factors for accessory after the fact, which do not require a finding of knowledge or reasonable foreseeability as to the quantity of controlled substance at issue in the underlying crime.
• U.S. v. Brantley (Prado, Elrod, Haynes, JJ.; opinion by Elrod, J.) (appeal from W.D. La.). Affirming defendant’s sentence on his conviction on counterfeiting charges. The defendant argued that his sentence was unreasonable because its was 253% higher than the top of the guidelines range and the departure was based primarily on his criminal history enhancement. The Fifth Circuit held that the district court appropriately considered the § 3553 factors in calculating the sentence, and that the sentence was therefore not substantively unreasonable. The defendant also argued that the imposition of a fine in place of restitution was erroneous due to his inability to pay. The Fifth Circuit held that there was no plain error in the imposition of the fine because the district court did not depart from the PSR and the defendant raised no objection at the time of sentencing.
• Wheeler v. Pilgrim’s Pride Corp. (Reavley, Jolly, Garza, JJ.; opinion by Garza, J.; dissent by Reavley, J.) (appeal from E.D. Tex.). Affirming district court’s denial of summary judgment on appeal from interlocutory judgment certified for appeal. The Fifth Circuit held that, in claim alleging violation of the Packers and Stockyards Act (7 U.S.C. § 192(a)-(b)), a plaintiff need not prove an adverse effect on competition to prevail. The Fifth Circuit found that the plain and unambiguous language of the statute supported this conclusion, which foreclosed the need to rely on legislative history of the Act to resolve the issue. The Fifth Circuit recognized that the decision conflicts with other circuits, but noted that other circuits reached beyond the plain text of the Act to rely on legislative history. Moreover, the Fifth Circuit found that the legislative history was not necessarily supportive of a contrary holding. Dissenting, Judge Reavley believed that the plain language of the Act could be read to conform with the results reached by sister Circuits.
• U.S. v. Arami (Prado, Elrod, Haynes, JJ.; opinion by Prado, J.) (appeal from W.D. Tex.). Reversing district court’s denial of defendant’s request to withdraw guilty plea. Defendant had entered a guilty plea in front of the magistrate judge, who recommended that the district court accept the guilty plea. Prior to the acceptance of the guilty plea by the court, however, the defendant requested to withdraw the plea, which request the district court denied. The Fifth Circuit held that the defendant is entitled to the right to withdraw a plea before it is accepted by the court under Fed. R. Crim. P. 11(d)(1).
• CleanCOALition v. TXU Power (Reavley, Smith, Dennis, JJ.; opinion by Dennis, J.) (appeal from W.D. Tex.). Affirming district court’s dismissal of Clean Air Act citizen suit on basis of lack of jurisdiction. The plaintiffs had brought suit seeking to enjoin construction of pulverized coal-fired power plant, alleging numerous violations of the Clean Air Act’s preconstruction permit process. The district court found that the plaintiffs’ claims under 42 U.S.C. § 7604(a)(1) and (3) did not confer jurisdiction under the Act’s citizen suit provisions. The Fifth Circuit held that subsection 1 of the Act’s citizen suit provision does not provide for claims against a defendant for pre-permit, preconstruction, pre-operation violations of the Act; and that subsection 3 of the provision does not provide for a claim against a defendant that has obtained or is in the process of obtaining a permit under the Act, but only applies where an entity seeks to construct a facility without any permit whatsoever.