Federal Criminal Defense: A Complete Reference for Texas Defendants

Federal vs Texas state prosecution

Federal and Texas state cases share a courtroom architecture but very little else. Federal cases are tried in U.S. District Court under the Federal Rules of Criminal Procedure, prosecuted under Title 18 and other federal codes, and sentenced under the advisory U.S. Sentencing Guidelines with no parole. Texas state cases run under the Texas Penal Code with parole eligibility for most felonies and a strong tradition of jury-recommended probation.

The first practical difference is who is prosecuting. A federal case is brought by an Assistant United States Attorney working out of a U.S. Attorney's Office — in TXND that means Dallas, Fort Worth, Lubbock, or Amarillo; in TXED that means Plano, Sherman, Tyler, Beaumont, Marshall, or Lufkin. A Texas state case is brought by a county or district attorney elected to the local bench. The case-charging culture, the trial schedule, the willingness to negotiate, and the pretrial-release norms all differ between the two systems and even between divisions within a single federal district.

The second practical difference is the math. Federal sentences are computed under the advisory U.S. Sentencing Guidelines, which assign a base offense level to each charge, apply specific offense characteristics and adjustments, and intersect the resulting total offense level with a criminal history category on the Sentencing Table to produce a range in months. The judge then considers the seven factors at 18 U.S.C. § 3553(a) and arrives at a sentence that is sufficient, but not greater than necessary, to accomplish the statutory purposes of sentencing. Texas state sentences are bracketed by the punishment ranges in Penal Code Chapter 12 and decided by either a jury or a judge after a punishment phase, with no Guidelines analogue at the state level.

The third practical difference is the back end. There is no parole in the federal system — the Sentencing Reform Act of 1984 abolished it. A federal sentence is served day-for-day, less up to fifty-four days per year of good-conduct time under 18 U.S.C. § 3624(b), less First Step Act earned-time credits where the defendant is eligible, less Residential Drug Abuse Program credits for completers. In Texas state cases, parole eligibility is calculated under Government Code § 508.145 — one-quarter time for most felonies, half-time or thirty calendar years for aggravated offenses — and the Board of Pardons and Paroles ultimately decides release.

The fourth practical difference is leverage. Federal cooperation under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) can break a mandatory minimum and pull a defendant well below the Guidelines. The state system has no direct analogue with that kind of statutory escape valve — the leverage in Texas cases runs through favorable plea bargains and probation eligibility, not through a discrete cooperation departure.

Finally, the federal system is much less local. A federal trial in Sherman or Tyler before a Senate-confirmed Article III judge is a different proceeding than a state-court bench trial in Collin County before an elected judge facing primary opposition. Counsel selection should account for this — federal practice is a separate discipline, and admission to TXND and TXED is by separate motion in each district.

Federal investigation & grand jury

Federal investigations begin in the dark. By the time a target hears anything from the Government — a grand jury subpoena, a target letter, a search warrant, an arrest — investigators have often been working the file for months or years. The right move at first notice is silence to agents and a phone call to federal defense counsel.

The grand jury under Fed. R. Crim. P. 6 is composed of sixteen to twenty-three citizens, twelve of whom must concur to return a true bill. Grand jury proceedings are secret; the prosecutor, the witness, the court reporter, and an interpreter (when required) are the only non-juror participants in the room. Defense counsel is not permitted to attend. A target who is called to testify must come alone, though counsel can wait outside and the witness can step out to consult after individual questions.

Federal grand juries serve two functions: they vote on indictments, and they wield the subpoena power to gather documents and testimony. A grand jury subpoena duces tecum can compel production of bank records, phone records, business books, and electronic communications under standards looser than a Fourth Amendment search warrant. Recipients have limited standing to quash — the standard is generally relevance and reasonableness, not probable cause.

The target letter

A target letter is the formal courtesy notice from the United States Attorney that the recipient is a target of a pending grand jury investigation. The Department of Justice's Justice Manual encourages target letters as a matter of policy, but practice varies by district and division. In TXND and TXED, target letters are common in white-collar and drug-conspiracy investigations and rarer in violent-crime or immediate-arrest cases.

The target letter creates a window. Receipt typically means the AUSA expects to seek an indictment within weeks or months. During that window, defense counsel can: (i) decline an invited interview without escalating the case; (ii) seek a proffer agreement to assess whether cooperation makes sense; (iii) negotiate a pre-indictment plea, which often produces a charging instrument the defendant accepts via waiver of indictment under Rule 7(b); or (iv) press for declination, especially in close cases involving willfulness, materiality, or mens rea questions.

The proffer agreement

A proffer agreement — sometimes called a queen-for-a-day — is a written contract between the target and the U.S. Attorney that allows the target to speak with prosecutors and agents about the conduct under investigation. The terms vary by district. In TXND and TXED, the standard proffer provides that the Government will not use the statements directly against the speaker at trial, but reserves the right to use them for impeachment, to develop derivative evidence, and to introduce them on rebuttal if the defense opens the door.

A proffer is not immunity. Two narrower instruments — use immunity under 18 U.S.C. § 6002 and transactional immunity by agreement — provide more protection but are rarer and require more upfront concession from the defendant. Counsel should never permit a proffer without a written agreement and should treat the proffer session as a serious credibility test — minimization or omission detected during the proffer typically ends cooperation discussions.

Search warrants and document subpoenas

Federal search warrants issue under Fed. R. Crim. P. 41 on a probable cause affidavit submitted to a magistrate judge. A warrant for a business or home is the loudest investigative signal short of arrest — it produces public exposure, witness contact opportunities for agents, and an evidentiary record that the defense can later challenge. Pre-execution counseling on records retention, attorney-client material, and post-search statements is essential; the right of a homeowner or business operator to remain silent during the search is rarely understood without prompting.

Subpoenas issue separately from warrants — under Rule 17 (trial subpoena), the grand jury power (investigative subpoena), and various administrative authorities (IRS summonses, SEC subpoenas, HHS-OIG subpoenas). A target who receives a third-party subpoena directed at a bank or service provider may have notice rights under the Right to Financial Privacy Act for personal accounts and the Stored Communications Act for certain electronic content; standing to quash is fact-specific.

Indictment under Rule 7

Federal felonies must be charged by grand jury indictment under Fed. R. Crim. P. 7, unless the defendant waives indictment. The indictment is a plain, concise, and definite written statement of the essential facts constituting the charged offense. Each count must allege a single offense and state the statute violated. A speaking indictment provides additional factual detail; a bare-bones indictment may itself be a defense entry point.

Indictment is more than a charging formality. The Fifth Amendment's grand jury clause makes indictment a structural right for federal felonies, and the Government's choice of charges, counts, and theory inside the indictment frames the entire case. A drug-conspiracy indictment that alleges 21 U.S.C. § 841(b)(1)(A) quantities triggers a ten-year mandatory minimum and a Guidelines base offense level much higher than an (b)(1)(B) or (b)(1)(C) charge would.

The most common pre-trial motions arising from the indictment include: a motion to dismiss for failure to state an offense or duplicity; a motion to strike surplusage; a motion for a bill of particulars under Rule 7(f); and motions to sever or join under Rules 8 and 14. Severance fights are common in multi-defendant conspiracy cases where antagonistic defenses or a co-defendant's confession could produce Bruton problems.1

Joinder and severance

Joinder of offenses — Rule 8(a)

Two or more offenses may be charged in the same indictment when the offenses are of the same or similar character, are based on the same act or transaction, or are connected by a common scheme or plan. Joinder of offenses is broad and rarely successfully challenged.

Joinder of defendants — Rule 8(b)

Two or more defendants may be charged in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense. Joinder of defendants is narrower than joinder of offenses; misjoinder is a per se reversible error if prejudice resulted.

Severance — Rule 14

Even when joinder is proper under Rule 8, the court may order separate trials if joinder appears to prejudice a defendant or the Government. The standard is high — the Supreme Court has emphasized that mutual antagonism of defenses, standing alone, is not enough — but cases with Bruton issues, dramatic disparities in evidence, or genuinely incompatible defenses can support severance.

Superseding indictment

The Government may obtain a superseding indictment to add charges, modify allegations, or correct errors. A superseding indictment generally relates back to the original for Speedy Trial Act calculations on charges that were in the first indictment, but new charges restart the seventy-day clock.

Following indictment and initial appearance, the magistrate judge sets a detention hearing under 18 U.S.C. § 3142. The Bail Reform Act creates a rebuttable presumption of detention for many drug offenses (those carrying a ten-year-or-more mandatory minimum), firearms offenses, child exploitation offenses, and crimes of violence as defined by 18 U.S.C. § 3156 after United States v. Davis, 588 U.S. 445 (2019). Rebutting the presumption requires evidence of community ties, employment history, lack of flight risk, and absence of danger to specified persons or the community. A strong detention package filed in advance of the hearing is the most consequential pretrial document in many cases.

Sentencing Guidelines & § 3553(a)

Federal sentencing is a three-step process. First, the court computes the advisory U.S. Sentencing Guidelines range. Second, it considers Guidelines departures (within the Guidelines framework) and variances (outside the framework based on § 3553(a)). Third, it imposes a sentence sufficient, but not greater than necessary, to accomplish the statutory purposes.

The Guidelines themselves are organized in chapters. Chapter Two contains the offense-specific guidelines — one section per category of offense (drugs at § 2D1.1, fraud at § 2B1.1, firearms at § 2K2.1, child exploitation at § 2G2.2, and so forth). Each Chapter Two section assigns a base offense level and lists specific offense characteristics that adjust the level upward or downward based on facts of the offense (drug quantity, loss amount, role enhancements, victim characteristics). Chapter Three contains general adjustments (role in offense, obstruction, acceptance of responsibility, multiple counts). Chapter Four computes criminal history. Chapter Five contains the Sentencing Table and the departure provisions. Chapter Six addresses sentencing procedures. Chapter Seven addresses violations of supervised release.

The total offense level after all adjustments intersects with the criminal history category (I through VI) on the Sentencing Table at Chapter Five Part A to produce the advisory range. The range is expressed in months; for example, a total offense level of 22 in criminal history category III produces an advisory range of 51 to 63 months.

Booker, Gall, Kimbrough — the post-mandatory era

The Guidelines have been advisory since United States v. Booker, 543 U.S. 220 (2005), which severed the provision of the Sentencing Reform Act that made the Guidelines binding. Gall v. United States, 552 U.S. 38 (2007), reinforced that appellate courts must review sentences under a deferential abuse-of-discretion standard and that within-Guidelines sentences are not presumptively reasonable from the district court's perspective. Kimbrough v. United States, 552 U.S. 85 (2007), confirmed that district courts may vary based on a policy disagreement with the Guidelines — a power district judges in TXND and TXED occasionally exercise in crack-versus-powder cocaine cases and in child-pornography cases under § 2G2.2.2

The seven § 3553(a) factors that frame the court's sentencing decision are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for law, provide just punishment, afford adequate deterrence, protect the public, and provide rehabilitative care; (3) the kinds of sentences available; (4) the kinds of sentences and the sentencing range established under the Guidelines; (5) any pertinent Sentencing Commission policy statement; (6) the need to avoid unwarranted disparities; and (7) the need to provide restitution. A well-drafted sentencing memorandum walks the court through each factor against the defendant's record.

Apprendi, Alleyne, and the mandatory minimum trigger

Two constitutional cases govern how facts increase a federal sentence beyond the statutory maximum or trigger a mandatory minimum. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact (other than a prior conviction) that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt to a jury (or admitted by the defendant). Under Alleyne v. United States, 570 U.S. 99 (2013), any fact that increases the floor of the statutory range — that is, triggers a mandatory minimum — is likewise an element that must be charged and proved beyond a reasonable doubt.

The practical consequence is that drug-quantity allegations in § 841 indictments, brandishing or discharge allegations under § 924(c), and loss-amount or victim-count allegations in fraud cases now appear as elements in the indictment and are submitted to the jury via special interrogatory or general verdict. Guidelines-only enhancements (those that adjust the offense level but do not raise the statutory maximum or trigger a statutory minimum) remain subject to judicial fact-finding by a preponderance of the evidence under Booker's remedial holding.

Criminal history and Brown

Chapter Four assigns criminal history points based on prior convictions: three points for prior sentences of more than thirteen months, two points for prior sentences of more than sixty days but less than thirteen months, and one point for shorter sentences (up to four single-point priors). Points convert to a criminal history category (I through VI). Career-offender status under § 4B1.1 boosts the total offense level dramatically for defendants with two prior felony convictions for crimes of violence or controlled-substance offenses.

The Supreme Court has narrowed certain career-offender and ACCA predicates in recent terms. In United States v. Davis, 588 U.S. 445 (2019), the Court invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague. In Brown v. United States, 602 U.S. 101 (2024), the Court addressed the categorical-approach inquiry for ACCA serious drug offense predicates and held that the federal drug schedule in effect at the time of the prior state conviction (not the current schedule) controls.3 Predicate analysis remains the most technical and consequential area of federal sentencing — a single reclassified predicate can move a defendant from career-offender level 32 down to a non-enhanced level in the high teens.

Cooperation & § 5K1.1 motions

Cooperation under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) is the most consequential downward departure in federal practice. Both are unlocked only by a Government motion, and both require substantial assistance — meaningful, truthful, and complete — in the investigation or prosecution of another person.

The distinction between § 5K1.1 and § 3553(e) matters. Section 5K1.1 is a Guidelines departure that allows the court to sentence below the advisory range. Section 3553(e) is a statutory provision that allows the court to sentence below an otherwise applicable mandatory minimum on the Government's motion. The Government must request both expressly — a 5K1.1 motion alone will not break a mandatory minimum. Counsel negotiating a cooperation deal should make clear which authority is being invoked, in writing, before the proffer process begins.

Substantial assistance can take many forms: testifying at the trial of co-defendants or targets; identifying and locating evidence; debriefing investigators on the organizational structure of a criminal enterprise; participating in controlled purchases or recorded conversations as a confidential source; or accepting a wire and proactively engaging targets. The Government's evaluation typically rests on (i) the significance and usefulness of the assistance; (ii) the truthfulness, completeness, and reliability of the information; (iii) the nature and extent of the assistance; (iv) any injury suffered or risk of injury to the defendant or the defendant's family; and (v) the timeliness of the assistance.

Rule 35(b) — post-sentence cooperation

If cooperation continues after sentencing — for example, the defendant testifies in a co-defendant's trial after the defendant's own sentence has been imposed — the Government may move under Fed. R. Crim. P. 35(b) to reduce the sentence. The motion is filed in the sentencing court and is governed by the same substantial-assistance framework as 5K1.1, but it operates post-judgment. Rule 35(b)(1) governs motions filed within one year of sentencing; Rule 35(b)(2) covers later motions in specified circumstances.

Cooperation strategy in TXND and TXED

Cooperation practice varies by AUSA, by office, and by case. In TXND, the Dallas and Fort Worth offices generally evaluate cooperation through the section chief and may rotate the same AUSA through multiple cooperation arcs in a single organizational case. In TXED, the Plano and Sherman offices tend to use written cooperation agreements early and to coordinate timing of cooperation testimony around indictment cycles. Cooperation counsel should map (i) which other targets the defendant can help against; (ii) whether cooperation would be against a co-defendant, a charged third party, or an uncharged target; (iii) whether the assistance is corroborated; and (iv) whether security or family considerations require relocation under the federal witness protection program.

Safety valve relief

Safety valve under 18 U.S.C. § 3553(f) allows a court to sentence below an otherwise applicable mandatory minimum in certain drug cases without any Government motion. The First Step Act of 2018 expanded the criminal-history filter and made safety valve available to a substantially larger pool of defendants — though Pulsifer v. United States, 601 U.S. 124 (2024), narrowed the gateway again.

Five conditions must be met for safety valve eligibility:

(1) Criminal history

After the First Step Act amendments, the defendant must not have (A) more than four criminal history points (excluding one-point priors), (B) a prior three-point offense, and (C) a prior two-point violent offense. Pulsifer held that these three conditions are read conjunctively — the defendant is disqualified only if all three are met, not if any one is met. The practical effect is that some defendants who would have been disqualified under a disjunctive reading retain eligibility.4

(2) No violence or weapon

The defendant did not use violence or credible threats of violence, and did not possess a firearm or other dangerous weapon in connection with the offense.

(3) No death or serious injury

The offense did not result in death or serious bodily injury to any person.

(4) Not an organizer, leader, manager, or supervisor

The defendant was not an organizer, leader, manager, or supervisor of others in the offense and was not engaged in a continuing criminal enterprise under 21 U.S.C. § 848.

(5) Truthful disclosure

Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense and offenses that were part of the same course of conduct or a common scheme or plan. Disclosure does not need to be useful to the Government — only truthful and complete — but the AUSA's view of completeness is often decisive in practice.

Where all five conditions are met, the court must impose a sentence in accordance with the Guidelines without regard to the statutory minimum, and the Guidelines provide a two-level reduction at U.S.S.G. § 2D1.1(b)(18). The combined effect on a drug case with a ten-year statutory minimum can be substantial — an otherwise applicable Guidelines range tightly anchored at 120 months can drop into the 60s or low 70s with safety valve plus acceptance of responsibility.

Safety valve and a 5K1.1 cooperation motion can stack. A defendant who qualifies for safety valve and also provides substantial assistance can receive the safety-valve reduction and a Government departure for cooperation, with the floor effectively gone and the Guidelines range serving as a starting point rather than a constraint. Safety-valve eligibility analysis belongs at the front of any drug case, well before the proffer interview, because the truthful-disclosure requirement is hard to satisfy retroactively.

BOP designation & custody

After sentencing, the Bureau of Prisons designates the inmate to a specific facility under 18 U.S.C. § 3621(b). The court's recommendation is influential but not binding. Designation drives almost every quality-of-life issue inside — programming, security level, proximity to family, and access to the Residential Drug Abuse Program (RDAP) and First Step Act earned-time credits.

BOP designation considers (i) the resources of the facility contemplated; (ii) the nature and circumstances of the offense; (iii) the history and characteristics of the prisoner; (iv) any statement by the sentencing court concerning the purpose for which the sentence was imposed or recommending a type of facility; (v) any pertinent Sentencing Commission policy statement; and (vi) for women, certain proximity considerations under the First Step Act. The Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas, makes initial designations for most male inmates.

Security classifications run from minimum to high to administrative. The classification rests primarily on a custody scoring instrument that weighs offense severity, history of violence, escape history, gang affiliation, sentence length, and certain medical or psychological factors. The instrument is points-based and not negotiable, but counsel can influence the data inputs through the Presentence Investigation Report and a designation letter submitted at sentencing.

RDAP and earned time

The Residential Drug Abuse Program is a 500-hour, nine-to-twelve-month intensive program. Successful completion entitles eligible inmates to up to a year off the sentence under 18 U.S.C. § 3621(e). Eligibility requires (i) a documented substance use disorder reflected in the PSR or in BOP intake records; (ii) no disqualifying offense (certain violent crimes, sex offenses, and arsons are categorical exclusions); (iii) sufficient time remaining on the sentence to complete the program with at least eighteen months left.

First Step Act earned-time credits under 18 U.S.C. § 3632(d)(4) allow inmates assessed as minimum or low risk on the PATTERN risk assessment to earn ten or fifteen days of credit toward prerelease custody (home confinement, halfway house, or supervised release) for each thirty days of successful programming. The credits compound with traditional good-conduct time at § 3624(b) (up to 54 days per year of sentence imposed). For an eligible inmate, a 60-month sentence can produce real in-custody time in the high 30s once FSA credits, GCT, and prerelease custody time are stacked.

Compassionate release under § 3582(c)(1)(A)

Compassionate release allows the sentencing court to reduce a sentence when extraordinary and compelling reasons warrant the reduction. The First Step Act gave defendants the right to file directly after exhausting BOP administrative review (or thirty days from filing a request with the warden). The Sentencing Commission's policy statement at U.S.S.G. § 1B1.13 (amended November 2023) lists six categories of extraordinary and compelling reasons: medical condition, advanced age, family circumstances, victim of abuse in custody, other reasons of similar gravity, and unusually long sentences (where there has been a change in law). Concepcion v. United States, 597 U.S. 481 (2022), confirmed that district courts may consider intervening changes in law and fact when ruling on compassionate-release motions and on resentencing motions under the First Step Act.5 Compassionate release filings require careful sequencing — the warden request, the thirty-day waiting period, the supporting medical records, and a written sentencing-reasonableness analysis.

MVRA restitution

The Mandatory Victims Restitution Act of 1996, codified at 18 U.S.C. § 3663A and procedurally at § 3664, makes restitution mandatory for many crimes of violence, property crimes, consumer fraud, and certain other offenses. The amount is the victim's actual loss caused by the offense, and the order generally cannot be reduced based on the defendant's inability to pay.

MVRA restitution applies to identifiable victims who have suffered a physical injury or pecuniary loss directly and proximately caused by the offense. The Government bears the burden of proving loss by a preponderance of the evidence under § 3664(e). The defendant bears the burden as to financial resources, financial needs, and earning ability. The court must enter restitution at sentencing unless the loss is sufficiently complex that a final amount cannot be determined — in which case the court may defer final determination for up to ninety days under § 3664(d)(5).

Lagos and the scope of recoverable expenses

In Lagos v. United States, 584 U.S. 577 (2018), the Supreme Court held that the MVRA's authorization at § 3663A(b)(4) for restitution covering investigation and proceedings does not extend to private internal investigations or non-government civil litigation. The provision is limited to Government investigations and criminal-justice proceedings. The case has substantial practical effect in white-collar matters where corporate victims claim large internal-investigation costs — legal fees for the company's outside counsel, forensic accountant fees, and similar expenses are generally not recoverable under Lagos.6

Honeycutt, forfeiture, and joint-and-several liability

Restitution and forfeiture are different remedies with different rules. Restitution compensates identifiable victims for actual losses. Forfeiture takes from the defendant the proceeds, instrumentalities, or facilitating property of the offense and transfers them to the Government. In Honeycutt v. United States, 581 U.S. 443 (2017), the Court held that forfeiture under 21 U.S.C. § 853 is not joint-and-several among co-defendants — each defendant forfeits only the proceeds the defendant personally obtained.7 The same logic does not extend to MVRA restitution, which remains joint-and-several among co-defendants for the victim's full loss under § 3664(h). Restitution defense in white-collar cases typically focuses on causation, the Lagos scope question, and offsets for amounts already paid or covered by insurance.

Payment and collection

Restitution is collected by the Financial Litigation Unit of the U.S. Attorney's Office, with help from the Clerk of Court and the BOP. Inmates earning UNICOR or institutional wages pay through the Inmate Financial Responsibility Program. After release, restitution payments resume on a schedule set by the probation officer and reviewed by the court. The Government may bring collection actions against assets discovered during the twenty-year liability window (or longer for child-victim cases). Restitution is not dischargeable in bankruptcy under 11 U.S.C. § 523(a)(13).

Fifth Circuit appeals & § 2255

Federal sentences in TXND and TXED are appealed to the United States Court of Appeals for the Fifth Circuit, headquartered in New Orleans. Notice of appeal is due within fourteen days of judgment under Fed. R. App. P. 4(b). Sentencing review proceeds in two layers — procedural reasonableness and substantive reasonableness — under Gall. Unpreserved error is reviewed for plain error under Fed. R. Crim. P. 52(b).

Procedural reasonableness asks whether the district court computed the Guidelines range correctly, considered the § 3553(a) factors, treated the Guidelines as advisory rather than mandatory, selected a sentence based on facts that are not clearly erroneous, and adequately explained the sentence. Substantive reasonableness asks whether the resulting sentence is within the wide range of choices a reasonable judge could have made on the record.

The Fifth Circuit's plain-error standard for unpreserved sentencing error is demanding. Reversal requires (1) error; (2) that is clear or obvious; (3) that affected the appellant's substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. The third prong is the usual battleground — the appellant must show a reasonable probability that the error affected the outcome, which in sentencing usually means showing that the Guidelines miscalculation would have produced a different range and probably a different sentence. Fifth Circuit appellate practice is a separate discipline; preservation of error in the district court is the single most consequential thing a trial team can do for a future appeal.

28 U.S.C. § 2255 — federal post-conviction

A motion under 28 U.S.C. § 2255 is the federal prisoner's primary vehicle for collateral attack on a conviction or sentence. The motion is filed in the sentencing court within one year of when the judgment became final (or, in limited circumstances, within one year of a newly recognized constitutional right made retroactive, a new factual predicate, or removal of an impediment).

The substantive grounds available under § 2255 include ineffective assistance of counsel (judged under the two-pronged Strickland v. Washington, 466 U.S. 668 (1984), framework), jurisdictional defects, constitutional violations not foreclosed by procedural default, and certain non-constitutional errors that resulted in a complete miscarriage of justice. Successive § 2255 motions face a high gateway: the petitioner must obtain authorization from the Fifth Circuit by showing newly discovered evidence of innocence or a new retroactive rule of constitutional law.

Davis litigation and § 2255 viability

The Supreme Court's invalidation of the residual clause of § 924(c)(3)(B) in United States v. Davis, 588 U.S. 445 (2019), produced a wave of § 2255 motions. The Fifth Circuit has resolved many of the categorical-approach questions for predicate offenses arising under TXND and TXED indictments, but new predicate analyses continue to emerge. A defendant whose § 924(c) conviction rests on a Hobbs Act robbery predicate, an attempted Hobbs Act robbery predicate, or a similar contested categorical question should review Davis with current circuit law in mind. The categorical approach is technical, but the relief — vacatur of a stacked § 924(c) sentence — is among the most consequential post-conviction outcomes available.

TXND & TXED local practice

North Texas federal practice plays out across two districts with very different temperaments. TXND covers seven divisions including Dallas, Fort Worth, Lubbock, and Amarillo; TXED covers six including Sherman, Tyler, and Plano. Local rules, division-specific scheduling practices, and judge-by-judge preferences matter. Counsel admission is by separate motion in each district.

TXND Dallas and Fort Worth divisions handle the largest federal docket in North Texas: white-collar, healthcare fraud, securities, large-scale drug conspiracies, and federal firearms cases. The Dallas Division U.S. Attorney's Office is structured around division-based section chiefs in narcotics, white-collar, public corruption, and civil rights. Detention motions in Dallas and Fort Worth go before magistrate judges with active dockets and short timelines. Pretrial release in TXND drug-conspiracy cases often requires a robust third-party custodian with documented ties to the district, an electronic monitoring proposal, and a community treatment plan.

TXED Plano and Sherman divisions cover Collin County, the fastest-growing federal docket in North Texas. The Sherman Division has emerged as a high-volume venue for healthcare fraud, technology trade-secret cases, and large-scale narcotics prosecutions involving organized trafficking organizations. The Plano courthouse hears many of the Collin and Denton County cases that originate in DEA, ATF, or Homeland Security investigations centered in the eastern half of the metroplex. TXED's Tyler Division handles East Texas cases and a long tradition of patent and complex civil work alongside its criminal docket.

The Fifth Circuit's appellate practice from both districts has a distinct flavor: oral argument is granted selectively, panel composition matters, and certain panels read sentencing-reasonableness challenges more strictly than others. Counsel preparing a TXND or TXED case for trial should be planning the appellate record from the first pretrial motion forward — preservation of objections at sentencing, contemporaneous offers of proof at trial, and clean exhibit numbering save months on appeal.

Frequently asked questions

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