United States v. Blankenship
In United States v. Blankenship, No. 22-40619 (5th Cir. Feb. 15, 2024) (unpublished), the Fifth Circuit affirmed the defendants’ convictions for violent crimes in aid of racketeering (VICAR)-kidnapping and conspiring to commit kidnapping, and it affirmed their life sentences.
Ruling 1: The Fifth Circuit rejected one defendant’s argument that the evidence was insufficient to establish venue in the Eastern District of Texas because he had failed to argue that he suffered prejudice. Because he had not raised that challenge in the district court, the defendant’s claim was reviewed for plain error, under which the court will only reverse if the defendant proves that his substantial rights were affected — that is, that the error was prejudicial. Here, the defendant failed to argue that point, so the Fifth Circuit did not engage the merits of his argument.
Ruling 2: The Fifth Circuit affirmed the district court’s decision to deny the defendants’ continuance motions from September 2021. Before that, the district court had granted four unopposed continuance motions, and nearly a year had passed since the defendants were indicted. On appeal, the Fifth Circuit reviews these denials for an abuse of discretion, considering at least seven factors: (1) “the amount of time available”; (2) “defendant’s role in shortening the time needed”; (3) “the likelihood of prejudice from denial”; (4) “the availability of discovery from the prosecution”; (5) “the complexity of the case”; (6) “the adequacy of the defense actually provided at trial”; and (7) “the experience of the attorney with the accused.” Here, the defendants failed to show any abuse of discretion.
Ruling 3: The Fifth Circuit found that the evidence was sufficient to support all of the defendants’ convictions. In particular, the court recognized that one witness had given inconsistent testimony regarding an essential element, but on appeal, all conflicts in the evidence are resolved in favor of the verdict because the jury “retains the sole authority to weigh conflicting evidence and evaluate the credibility of the witnesses.” The court also rejected a variety of other challenges to the sufficiency of the evidence.
Ruling 4: The Fifth Circuit affirmed both defendants’ sentences of life imprisonment after rejecting their 14 combined claims of error. Here we note only a couple of those 14 issues. First, the Fifth Circuit agreed with the district court that a victim sustained “serious bodily injury” as opposed to mere “bodily injury.” The relevant difference, under USSG § 2A4.1(b)(2)(B) and USSG § 1B1.1 cmt. n.1(B) & (M), was whether the victim suffered "an injury involving extreme physical pain.” Here, the district court was permitted to infer such an injury based on evidence that gang members heated a metal rod with a blow torch and twice placed the heated rod against the victim’s torso “in an attempt to remove his” gang tatoo.
Second, the Fifth Circuit affirmed application of a two-level dangerous weapon enhancement under USSG § 2A4.1(b)(3). That enhancement can apply, inter alia, if a gun is “otherwise used,” which the Fifth Circuit has explained may include “pointing the weapon at any individual or group of individuals in a specific manner,” as opposed to a more general displaying of the weapon. Here, it was enough that the defendant had placed a firearm on his lap while driving the victim to the tattoo-removal location, while preventing him from leaving the vehicle — that was a sufficiently specific and targeted threat to the victim.
Third, even if the district court had committed procedural error at sentencing, the Fifth Circuit would have affirmed anyway because the errors would have been harmless. The district court had “extensively commented on the reasons for imposing the sentence,” and importantly, it “stated that, even if it had erred in calculating the Guidelines sentencing range, it would have imposed the same sentence.” That statement alone, under Fifth Circuit precedent, is typically sufficient to render procedural error harmless. See United States v. Leontaritis, 977 F.3d 447, 452 (5th Cir. 2020).