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U.S. v. ESCALANTE-REYES

No. 11-40632.

689 F.3d 415 (2012)

UNITED STATES of America, Plaintiff-Appellee, v. Jose Miguel ESCALANTE-REYES, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

July 25, 2012.

Attorney(s) appearing for the Case

Eileen K. Wilson , Renata Ann Gowie , Asst. U.S. Attys., Houston, Texas, Sangita Katikineni Rao , U.S. Dept. of Justice, Crim. Div., Washington, DC, for Plaintiff-Appellee.

Marjorie A. Meyers , Fed. Pub. Def., Timothy William Crooks , H. Michael Sokolow , Asst. Fed. Pub. Defenders, Houston, TX, for Defendants-Appellants.

Robert Russell Nigh, Jr. , Brewster & De Angelis, P.L.L.C., Tulsa, OK, Julian R. Murray, Jr. , Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Metairie, LA, for Daniel James Broussard, Amicus Curiae.

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES and HIGGINSON, Circuit Judges.

HAYNES, Circuit Judge, joined by E. GRADY JOLLY, W. EUGENE DAVIS, CARL E. STEWART, DENNIS, PRADO, JENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, GRAVES and HIGGINSON, Circuit Judges:

In this case we answer the following question: whether, when the law at the time of trial or plea is unsettled, but becomes clear1 while the case is pending on appeal, review for the second prong of the "plain error" test properly considers the law as it stood...

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