Background
Julius Augillard pleaded guilty to two counts of unlawful firearm possession under 18 U.S.C. § 922(g)(1). The district court set his base offense level at 22 under U.S.S.G. § 2K2.1(a)(3), relying on his 2011 Louisiana conviction for possession with intent to distribute cocaine as a prior controlled-substance offense, and sentenced him to 70 months in prison.
Augillard argued that the Louisiana conviction did not qualify under the categorical approach because Louisiana’s 2011 definition of cocaine included Ioflupane, a radioactive cocaine derivative that the federal Controlled Substances Act excluded by the time of his federal sentencing. Applying the Fifth Circuit’s en banc precedent in United States v. Castillo-Rivera, the panel rejected that argument because Augillard identified no actual Louisiana prosecution involving Ioflupane. He then sought panel and en banc rehearing.
The Court’s Holding
The Fifth Circuit treated the petition for rehearing en banc as also requesting panel rehearing and denied both forms of rehearing. After a requested en banc poll, only four judges—Chief Judge Elrod and Judges Richman, Graves, and Higginson—voted for rehearing; thirteen judges voted against it.
The denial left the panel decision and the circuit’s “actual case” rule intact. The court therefore did not disturb Augillard’s sentence or the rule that, even when a state statute appears facially broader than its federal counterpart, a defendant must identify an actual case in which the state applied the statute to nongeneric conduct. Judge Oldham concurred in the denial, while Chief Judge Elrod, joined by Judge Higginson, dissented.
Key Takeaways
- The Fifth Circuit denied both panel rehearing and rehearing en banc, leaving Augillard’s 70-month sentence undisturbed.
- Castillo-Rivera remains controlling in the Fifth Circuit: facial statutory overbreadth alone does not eliminate the requirement to identify an actual state prosecution involving the asserted nongeneric conduct.
- The separate opinions exposed a sharp disagreement over whether United States v. Taylor undermined that rule and whether the Fifth Circuit should align with other regional circuits that do not require an actual case when statutory text is facially broader.
Why It Matters
The order preserves a demanding evidentiary requirement for criminal defendants and immigration litigants invoking the categorical approach in the Fifth Circuit. A textual mismatch between state and federal law may be insufficient unless the challenger can show that the state has actually applied its law to the disputed conduct.
The divided writings also highlight an acknowledged circuit conflict with consequences beyond drug predicates, including Guidelines enhancements, the Armed Career Criminal Act, and immigration removability determinations.